UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended June 30, 2010
OR
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from
to
Commission file number: 1-12110
CAMDEN PROPERTY TRUST
(Exact Name of Registrant as Specified in Its Charter)
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Texas
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76-6088377
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification No.)
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3 Greenway Plaza, Suite 1300
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Houston, Texas
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77046
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(Address of principle executive offices)
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(Zip Code)
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(713) 354-2500
(Registrants Telephone Number, Including Area Code)
N/A
(Former Name, Former Address and Former Fiscal Year, If Changed Since Last Report)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes
þ
No
o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files).
Yes
þ
No
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer or a smaller reporting company. See definition of accelerated filer and
large accelerated filer in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
þ
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Accelerated filer
o
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Non-accelerated filer
o
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Smaller Reporting Company
o
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act. Yes
o
No
þ
On July 26, 2010, 66,982,349 common shares of the registrant were outstanding.
CAMDEN PROPERTY TRUST
Table of Contents
2
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
CAMDEN PROPERTY TRUST
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
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June 30,
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December 31,
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(in thousands, except per share amounts)
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2010
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2009
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|
Assets
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Real estate assets, at cost
|
|
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|
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Land
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$
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746,195
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$
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747,921
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Buildings and improvements
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4,521,376
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4,512,124
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5,267,571
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5,260,045
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Accumulated depreciation
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(1,221,422
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)
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(1,149,056
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)
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Net operating real estate assets
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4,046,149
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4,110,989
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Properties under development, including land
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199,012
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201,581
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Investments in joint ventures
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50,392
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43,542
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Properties held for sale
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9,692
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|
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|
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Total real estate assets
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4,305,245
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4,356,112
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Accounts receivable affiliates
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31,993
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36,112
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|
Notes receivable affiliates
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38,478
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|
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|
45,847
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|
Other assets, net
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87,371
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|
|
|
102,114
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Cash and cash equivalents
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128,155
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64,156
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|
Restricted cash
|
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|
3,738
|
|
|
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3,658
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|
|
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|
|
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Total assets
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$
|
4,594,980
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$
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4,607,999
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Liabilities and equity
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Liabilities
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Notes payable
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Unsecured
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$
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1,590,287
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$
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1,645,926
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Secured
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981,816
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979,273
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Accounts payable and accrued expenses
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63,663
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74,420
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Accrued real estate taxes
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28,416
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23,241
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Distributions payable
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34,275
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33,025
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Other liabilities
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137,020
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145,176
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|
|
|
|
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|
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Total liabilities
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2,835,477
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|
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2,901,061
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Commitments and contingencies
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Perpetual preferred units
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97,925
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97,925
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Equity
|
|
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Common shares of beneficial interest; $0.01 par value per share;
100,000 shares authorized; 82,511 and 79,543 issued; 79,757 and
76,996 outstanding, respectively
|
|
|
798
|
|
|
|
770
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|
Additional paid-in capital
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2,641,354
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2,525,656
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Distributions in excess of net income attributable to common shareholders
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(550,039
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)
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(492,571
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)
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Notes receivable secured by common shares
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|
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(102
|
)
|
|
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(101
|
)
|
Treasury shares, at cost (12,773 and 12,897 shares, respectively)
|
|
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(461,517
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)
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(462,188
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)
|
Accumulated other comprehensive loss
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(43,718
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)
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|
(41,155
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)
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|
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Total common equity
|
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|
1,586,776
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|
1,530,411
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Noncontrolling interests
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74,802
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78,602
|
|
|
|
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|
|
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Total equity
|
|
|
1,661,578
|
|
|
|
1,609,013
|
|
|
|
|
|
|
|
|
Total liabilities and equity
|
|
$
|
4,594,980
|
|
|
$
|
4,607,999
|
|
|
|
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|
See Notes to Condensed Consolidated Financial Statements.
3
CAMDEN PROPERTY TRUST
CONDENSED CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
(Unaudited)
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|
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Three Months
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|
Six Months
|
|
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|
Ended June 30,
|
|
|
Ended June 30,
|
|
(in thousands, except per share amounts)
|
|
2010
|
|
|
2009
|
|
|
2010
|
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|
2009
|
|
Property revenues
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|
|
|
|
|
|
|
|
|
|
|
|
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Rental revenues
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|
$
|
131,237
|
|
|
$
|
134,854
|
|
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$
|
261,657
|
|
|
$
|
270,490
|
|
Other property revenues
|
|
|
21,969
|
|
|
|
21,454
|
|
|
|
42,844
|
|
|
|
41,804
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total property revenues
|
|
|
153,206
|
|
|
|
156,308
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|
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|
304,501
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|
312,294
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Property expenses
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|
|
|
|
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|
|
|
|
|
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Property operating and maintenance
|
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|
44,258
|
|
|
|
44,141
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|
|
|
88,414
|
|
|
|
86,019
|
|
Real estate taxes
|
|
|
18,228
|
|
|
|
18,444
|
|
|
|
36,542
|
|
|
|
36,889
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total property expenses
|
|
|
62,486
|
|
|
|
62,585
|
|
|
|
124,956
|
|
|
|
122,908
|
|
|
|
|
|
|
|
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|
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|
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Non-property income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fee and asset management
|
|
|
2,045
|
|
|
|
2,244
|
|
|
|
3,883
|
|
|
|
4,275
|
|
Interest and other income
|
|
|
492
|
|
|
|
1,097
|
|
|
|
3,537
|
|
|
|
1,832
|
|
Income (loss) on deferred compensation plans
|
|
|
(3,582
|
)
|
|
|
7,660
|
|
|
|
(100
|
)
|
|
|
3,508
|
|
|
|
|
|
|
|
|
|
|
|
|
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Total non-property income (loss)
|
|
|
(1,045
|
)
|
|
|
11,001
|
|
|
|
7,320
|
|
|
|
9,615
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property management
|
|
|
5,022
|
|
|
|
4,542
|
|
|
|
10,205
|
|
|
|
9,471
|
|
Fee and asset management
|
|
|
1,262
|
|
|
|
1,303
|
|
|
|
2,456
|
|
|
|
2,438
|
|
General and administrative
|
|
|
7,367
|
|
|
|
7,246
|
|
|
|
14,771
|
|
|
|
15,478
|
|
Interest
|
|
|
31,742
|
|
|
|
34,002
|
|
|
|
63,297
|
|
|
|
66,247
|
|
Depreciation and amortization
|
|
|
42,660
|
|
|
|
43,702
|
|
|
|
86,278
|
|
|
|
87,500
|
|
Amortization of deferred financing costs
|
|
|
713
|
|
|
|
857
|
|
|
|
1,439
|
|
|
|
1,674
|
|
Expense (benefit) on deferred compensation plans
|
|
|
(3,582
|
)
|
|
|
7,660
|
|
|
|
(100
|
)
|
|
|
3,508
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expenses
|
|
|
85,184
|
|
|
|
99,312
|
|
|
|
178,346
|
|
|
|
186,316
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on sale of properties, including land
|
|
|
236
|
|
|
|
|
|
|
|
236
|
|
|
|
|
|
Loss on early retirement of debt
|
|
|
|
|
|
|
(2,716
|
)
|
|
|
|
|
|
|
(2,550
|
)
|
Equity in income (loss) of joint ventures
|
|
|
(436
|
)
|
|
|
222
|
|
|
|
(541
|
)
|
|
|
630
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations before income taxes
|
|
|
4,291
|
|
|
|
2,918
|
|
|
|
8,214
|
|
|
|
10,765
|
|
Income tax expense current
|
|
|
(304
|
)
|
|
|
(347
|
)
|
|
|
(574
|
)
|
|
|
(646
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
3,987
|
|
|
|
2,571
|
|
|
|
7,640
|
|
|
|
10,119
|
|
Income from discontinued operations
|
|
|
261
|
|
|
|
1,029
|
|
|
|
389
|
|
|
|
1,986
|
|
Gain on sale of discontinued operations
|
|
|
|
|
|
|
16,887
|
|
|
|
|
|
|
|
16,887
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
4,248
|
|
|
|
20,487
|
|
|
|
8,029
|
|
|
|
28,992
|
|
Less income allocated to noncontrolling interests
from continuing operations
|
|
|
(364
|
)
|
|
|
(422
|
)
|
|
|
(110
|
)
|
|
|
(943
|
)
|
Less income allocated to perpetual preferred units
|
|
|
(1,750
|
)
|
|
|
(1,750
|
)
|
|
|
(3,500
|
)
|
|
|
(3,500
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders
|
|
$
|
2,134
|
|
|
$
|
18,315
|
|
|
$
|
4,419
|
|
|
$
|
24,549
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
CAMDEN PROPERTY TRUST
CONDENSED CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months
|
|
|
Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
(in thousands, except per share amounts)
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Earnings per share basic
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common
shareholders
|
|
$
|
0.03
|
|
|
$
|
0.01
|
|
|
$
|
0.06
|
|
|
$
|
0.10
|
|
Income from discontinued operations, including gain on sale,
attributable to common shareholders
|
|
|
|
|
|
|
0.29
|
|
|
|
|
|
|
|
0.32
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders
|
|
$
|
0.03
|
|
|
$
|
0.30
|
|
|
$
|
0.06
|
|
|
$
|
0.42
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per share diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common
shareholders
|
|
$
|
0.03
|
|
|
$
|
0.01
|
|
|
$
|
0.06
|
|
|
$
|
0.09
|
|
Income from discontinued operations, including gain on sale,
attributable to common shareholders
|
|
|
|
|
|
|
0.29
|
|
|
|
|
|
|
|
0.32
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders
|
|
$
|
0.03
|
|
|
$
|
0.30
|
|
|
$
|
0.06
|
|
|
$
|
0.41
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Distributions declared per common share
|
|
$
|
0.45
|
|
|
$
|
0.45
|
|
|
$
|
0.90
|
|
|
$
|
1.15
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding
|
|
|
68,090
|
|
|
|
61,499
|
|
|
|
67,287
|
|
|
|
58,542
|
|
Weighted average number of common and common dilutive equivalent
shares outstanding
|
|
|
68,386
|
|
|
|
61,499
|
|
|
|
67,521
|
|
|
|
59,025
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
$
|
3,987
|
|
|
$
|
2,571
|
|
|
$
|
7,640
|
|
|
$
|
10,119
|
|
Less income allocated to noncontrolling interests from
continuing operations
|
|
|
(364
|
)
|
|
|
(422
|
)
|
|
|
(110
|
)
|
|
|
(943
|
)
|
Less income allocated to perpetual preferred units
|
|
|
(1,750
|
)
|
|
|
(1,750
|
)
|
|
|
(3,500
|
)
|
|
|
(3,500
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common
shareholders
|
|
|
1,873
|
|
|
|
399
|
|
|
|
4,030
|
|
|
|
5,676
|
|
Income from discontinued operations, including gain on sale,
attributable to common shareholders
|
|
|
261
|
|
|
|
17,916
|
|
|
|
389
|
|
|
|
18,873
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders
|
|
$
|
2,134
|
|
|
$
|
18,315
|
|
|
$
|
4,419
|
|
|
$
|
24,549
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Condensed Consolidated Statements of Comprehensive Income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
4,248
|
|
|
$
|
20,487
|
|
|
$
|
8,029
|
|
|
$
|
28,992
|
|
Other comprehensive income (loss)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized gain (loss) on cash flow hedging activities
|
|
|
(7,409
|
)
|
|
|
1,361
|
|
|
|
(14,226
|
)
|
|
|
(1,574
|
)
|
Reclassification of net losses on cash flow hedging activities
|
|
|
5,784
|
|
|
|
5,469
|
|
|
|
11,663
|
|
|
|
10,744
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
2,623
|
|
|
|
27,317
|
|
|
|
5,466
|
|
|
|
38,162
|
|
Less income allocated to noncontrolling interests from
continuing operations
|
|
|
(364
|
)
|
|
|
(422
|
)
|
|
|
(110
|
)
|
|
|
(943
|
)
|
Less income allocated to perpetual preferred units
|
|
|
(1,750
|
)
|
|
|
(1,750
|
)
|
|
|
(3,500
|
)
|
|
|
(3,500
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income attributable to common shareholders
|
|
$
|
509
|
|
|
$
|
25,145
|
|
|
$
|
1,856
|
|
|
$
|
33,719
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See Notes to Condensed Consolidated Financial Statements.
5
CAMDEN PROPERTY TRUST
CONDENSED CONSOLIDATED STATEMENTS OF EQUITY
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common
|
|
|
|
|
|
|
|
|
|
|
receivable
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
shares of
|
|
|
Additional
|
|
|
Distributions
|
|
|
secured by
|
|
|
Treasury
|
|
|
other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
beneficial
|
|
|
paid-in
|
|
|
in excess of
|
|
|
common
|
|
|
shares, at
|
|
|
comprehensive
|
|
|
Noncontrolling
|
|
|
|
|
|
|
Perpetual
|
|
(in thousands, except per share amounts)
|
|
interest
|
|
|
capital
|
|
|
net income
|
|
|
shares
|
|
|
cost
|
|
|
loss
|
|
|
interests
|
|
|
Total equity
|
|
|
preferred units
|
|
|
|
December 31, 2009
|
|
$
|
770
|
|
|
$
|
2,525,656
|
|
|
$
|
(492,571
|
)
|
|
$
|
(101
|
)
|
|
$
|
(462,188
|
)
|
|
$
|
(41,155
|
)
|
|
$
|
78,602
|
|
|
$
|
1,609,013
|
|
|
$
|
97,925
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
4,419
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
110
|
|
|
|
4,529
|
|
|
|
3,500
|
|
Other comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,563
|
)
|
|
|
|
|
|
|
(2,563
|
)
|
|
|
|
|
Common shares issued
|
|
|
23
|
|
|
|
106,399
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
106,422
|
|
|
|
|
|
Net share awards
|
|
|
4
|
|
|
|
6,021
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,025
|
|
|
|
|
|
Employee stock purchase plan
|
|
|
|
|
|
|
(190
|
)
|
|
|
|
|
|
|
|
|
|
|
671
|
|
|
|
|
|
|
|
|
|
|
|
481
|
|
|
|
|
|
Share awards placed into deferred
plans
|
|
|
(2
|
)
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common share options exercised
|
|
|
1
|
|
|
|
2,131
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,132
|
|
|
|
|
|
Conversions of operating
partnership units
|
|
|
2
|
|
|
|
1,335
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,337
|
)
|
|
|
|
|
|
|
|
|
Distributions to perpetual
preferred units
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,500
|
)
|
Cash distributions to equity holders
|
|
|
|
|
|
|
|
|
|
|
(61,887
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,573
|
)
|
|
|
(64,460
|
)
|
|
|
|
|
Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2010
|
|
$
|
798
|
|
|
$
|
2,641,354
|
|
|
$
|
(550,039
|
)
|
|
$
|
(102
|
)
|
|
$
|
(461,517
|
)
|
|
$
|
(43,718
|
)
|
|
$
|
74,802
|
|
|
$
|
1,661,578
|
|
|
$
|
97,925
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6
CAMDEN PROPERTY TRUST
CONDENSED CONSOLIDATED STATEMENTS OF EQUITY
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common
|
|
|
|
|
|
|
|
|
|
|
receivable
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
shares of
|
|
|
Additional
|
|
|
Distributions
|
|
|
secured by
|
|
|
Treasury
|
|
|
other
|
|
|
|
|
|
|
|
|
|
|
Perpetual
|
|
|
|
beneficial
|
|
|
paid-in
|
|
|
in excess of
|
|
|
common
|
|
|
shares, at
|
|
|
comprehensive
|
|
|
Noncontrolling
|
|
|
|
|
|
|
preferred
|
|
(in thousands, except per share amounts)
|
|
interest
|
|
|
capital
|
|
|
net income
|
|
|
shares
|
|
|
cost
|
|
|
loss
|
|
|
interests
|
|
|
Total equity
|
|
|
units
|
|
|
|
December 31, 2008
|
|
$
|
660
|
|
|
$
|
2,237,703
|
|
|
$
|
(312,309
|
)
|
|
$
|
(295
|
)
|
|
$
|
(463,209
|
)
|
|
$
|
(51,056
|
)
|
|
$
|
89,862
|
|
|
$
|
1,501,356
|
|
|
$
|
97,925
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
24,549
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
943
|
|
|
|
25,492
|
|
|
|
3,500
|
|
Other comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,170
|
|
|
|
|
|
|
|
9,170
|
|
|
|
|
|
Common shares issued
|
|
|
104
|
|
|
|
272,008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
272,112
|
|
|
|
|
|
Net share awards
|
|
|
3
|
|
|
|
5,392
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,395
|
|
|
|
|
|
Employee stock purchase plan
|
|
|
|
|
|
|
(54
|
)
|
|
|
|
|
|
|
|
|
|
|
464
|
|
|
|
|
|
|
|
|
|
|
|
410
|
|
|
|
|
|
Share awards placed into deferred
plans
|
|
|
1
|
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common share options exercised
|
|
|
|
|
|
|
329
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
329
|
|
|
|
|
|
Conversions and redemptions of
operating partnership units
|
|
|
1
|
|
|
|
1,763
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,780
|
)
|
|
|
(16
|
)
|
|
|
|
|
Purchase of noncontrolling interests
|
|
|
|
|
|
|
648
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(748
|
)
|
|
|
(100
|
)
|
|
|
|
|
Distributions to perpetual
preferred units
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,500
|
)
|
Cash distributions to equity holders
|
|
|
|
|
|
|
|
|
|
|
(69,408
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,544
|
)
|
|
|
(72,952
|
)
|
|
|
|
|
Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8
|
|
|
|
(6
|
)
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009
|
|
$
|
769
|
|
|
$
|
2,517,788
|
|
|
$
|
(357,168
|
)
|
|
$
|
(287
|
)
|
|
$
|
(462,751
|
)
|
|
$
|
(41,886
|
)
|
|
$
|
84,733
|
|
|
$
|
1,741,198
|
|
|
$
|
97,925
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See Notes to Condensed Consolidated Financial Statements.
7
CAMDEN PROPERTY TRUST
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
Six Months
|
|
|
|
Ended June 30,
|
|
(in thousands)
|
|
2010
|
|
|
2009
|
|
Cash flows from operating activities
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
8,029
|
|
|
$
|
28,992
|
|
Adjustments to reconcile net income to net cash from operating activities:
|
|
|
|
|
|
|
|
|
Depreciation and amortization, including discontinued operations
|
|
|
85,987
|
|
|
|
86,201
|
|
Gain on sale of discontinued operations
|
|
|
|
|
|
|
(16,887
|
)
|
Gain on sale of properties, including land
|
|
|
(236
|
)
|
|
|
|
|
Distributions of income from joint ventures
|
|
|
2,514
|
|
|
|
3,106
|
|
Equity in (income) loss of joint ventures
|
|
|
541
|
|
|
|
(630
|
)
|
Interest from notes receivable affiliates
|
|
|
(191
|
)
|
|
|
(212
|
)
|
Share-based compensation
|
|
|
5,767
|
|
|
|
4,555
|
|
Loss on early retirement of debt
|
|
|
|
|
|
|
2,550
|
|
Amortization of deferred financing costs
|
|
|
1,439
|
|
|
|
1,674
|
|
Accretion of discount on unsecured notes payable
|
|
|
255
|
|
|
|
376
|
|
Net change in operating accounts
|
|
|
(4,130
|
)
|
|
|
(4,022
|
)
|
|
|
|
|
|
|
|
Net cash from operating activities
|
|
$
|
99,975
|
|
|
$
|
105,703
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities
|
|
|
|
|
|
|
|
|
Development and capital improvements
|
|
$
|
(27,892
|
)
|
|
$
|
(33,122
|
)
|
Proceeds from sales of properties, including land and discontinued operations, net
|
|
|
937
|
|
|
|
27,967
|
|
Payments received on notes receivable other
|
|
|
|
|
|
|
8,710
|
|
Increase in notes receivable affiliates
|
|
|
(511
|
)
|
|
|
(5,381
|
)
|
Investments in joint ventures
|
|
|
(348
|
)
|
|
|
(466
|
)
|
Other
|
|
|
(556
|
)
|
|
|
(1,040
|
)
|
|
|
|
|
|
|
|
Net cash from investing activities
|
|
$
|
(28,370
|
)
|
|
$
|
(3,332
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities
|
|
|
|
|
|
|
|
|
Borrowings on unsecured line of credit
|
|
$
|
37,000
|
|
|
$
|
|
|
Repayments on unsecured line of credit
|
|
|
(37,000
|
)
|
|
|
(145,000
|
)
|
Repayment of notes payable
|
|
|
(56,955
|
)
|
|
|
(420,212
|
)
|
Proceeds from notes payable
|
|
|
4,220
|
|
|
|
429,618
|
|
Proceeds from issuance of common shares
|
|
|
106,422
|
|
|
|
272,112
|
|
Common share options exercised
|
|
|
1,040
|
|
|
|
|
|
Distributions to common shareholders, perpetual preferred units and
noncontrolling interests
|
|
|
(66,655
|
)
|
|
|
(86,409
|
)
|
Payment of deferred financing costs
|
|
|
(574
|
)
|
|
|
(3,692
|
)
|
Net decrease in accounts receivable affiliates
|
|
|
4,119
|
|
|
|
1,113
|
|
Other
|
|
|
777
|
|
|
|
357
|
|
|
|
|
|
|
|
|
Net cash from financing activities
|
|
$
|
(7,606
|
)
|
|
$
|
47,887
|
|
|
|
|
|
|
|
|
Net increase in cash and cash equivalents
|
|
|
63,999
|
|
|
|
150,258
|
|
Cash and cash equivalents, beginning of period
|
|
|
64,156
|
|
|
|
7,407
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of period
|
|
$
|
128,155
|
|
|
$
|
157,665
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental information
|
|
|
|
|
|
|
|
|
Cash paid for interest, net of interest capitalized
|
|
$
|
64,608
|
|
|
$
|
70,626
|
|
Cash paid for income taxes
|
|
|
1,221
|
|
|
|
1,740
|
|
|
|
|
|
|
|
|
|
|
Supplemental schedule of noncash investing and financing activities
|
|
|
|
|
|
|
|
|
Distributions declared but not paid
|
|
$
|
34,275
|
|
|
$
|
33,050
|
|
Value of shares issued under benefit plans, net of cancellations
|
|
|
14,513
|
|
|
|
8,462
|
|
Conversion of operating partnership units to common shares
|
|
|
1,337
|
|
|
|
1,756
|
|
Accrual associated with construction and capital expenditures
|
|
|
3,337
|
|
|
|
4,793
|
|
Conversion of mezzanine note to joint venture equity
|
|
|
8,204
|
|
|
|
9,213
|
|
See Notes to Condensed Consolidated Financial Statements.
8
CAMDEN PROPERTY TRUST
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. Description of Business
Business
. Formed on May 25, 1993, Camden Property Trust, a Texas real estate investment trust
(REIT), is engaged in the ownership, development, construction, and management of multifamily
apartment communities. Our multifamily apartment communities are referred to as communities,
multifamily communities, properties, or multifamily properties in the following discussion.
As of June 30, 2010, we owned interests in or operated 185 multifamily properties comprising 63,658
apartment homes across the United States, and land parcels we may develop into multifamily
apartment communities; one multifamily property comprised of 602 apartment homes was designated as
held for sale.
2. Summary of Significant Accounting Policies and Recent Accounting Pronouncements
Principles of Consolidation
. Our condensed consolidated financial statements include our
accounts and the accounts of other subsidiaries and joint ventures (including partnerships and
limited liability companies) over which we have control. All intercompany transactions, balances,
and profits have been eliminated in consolidation. Investments acquired or created are continuously
evaluated based on the accounting guidance relating to variable interest entities (VIEs), which
requires the consolidation of VIEs in which we are considered to be the primary beneficiary. If the
investment is determined not to be a VIE, then the investment is evaluated for consolidation
(primarily using a voting interest model) under the remaining consolidation guidance relating to
real estate. If we are the general partner of a limited partnership, or manager of a limited
liability company, we also consider the consolidation guidance relating to the rights of limited
partners or non-managing members, as the case may be, to assess whether any rights held by the
limited partners or non-managing members, as the case may be, overcome the presumption of control
by us.
Interim Financial Reporting
. We have prepared these financial statements in accordance with
accounting principles generally accepted in the United States of America (GAAP) for interim
financial statements and the applicable rules and regulations of the Securities and Exchange
Commission (SEC). Accordingly, these statements do not include all information and footnote
disclosures normally included for complete financial statements. While we believe the disclosures
presented are adequate for interim reporting, these interim financial statements should be read in
conjunction with the audited financial statements and notes included in our 2009 Form 10-K. In the
opinion of management, all adjustments and eliminations, consisting of normal recurring
adjustments, necessary for a fair representation of our financial statements have been included.
Operating results for the three and six months ended June 30, 2010 are not necessarily indicative
of the results which may be expected for the full year.
Asset Impairment
. Long-lived assets are reviewed for impairment annually or whenever events
or changes in circumstances indicate the carrying amount of an asset may not be recoverable.
Impairment exists if estimated future undiscounted cash flows associated with long-lived assets are
not sufficient to recover the carrying value of such assets. We consider projected future
discounted cash flows, trends, strategic decisions regarding future development plans, and other
factors in our assessment of whether impairment conditions exist. When impairment exists, the
long-lived asset is adjusted to its fair value. While we believe our estimates of future cash flows
are reasonable, different assumptions regarding a number of factors, including market rents,
economic conditions, and occupancies, could significantly affect these estimates. In estimating
fair value, management uses appraisals, management estimates, and discounted cash flow calculations
which maximize inputs from a marketplace participants perspective. In addition, we evaluate our
investments in joint ventures and mezzanine construction financing and if, with respect to
investments, we believe there is an other than temporary decline in market value, or if, with
respect to mezzanine loans, it is probable we will not collect all amounts due in accordance with
the terms, we will record an impairment charge based on these evaluations. In general, we provide
mezzanine loans to affiliated joint ventures constructing or operating multifamily assets. While we
believe it is currently probable we will collect all amounts due with respect to these mezzanine
loans, current market conditions related to credit markets and real estate market fundamentals
inject a significant amount of uncertainty into the environment and any further adverse economic or
market development may cause us to re-evaluate our conclusions, and could result in material
impairment charges with respect to our mezzanine loans.
The value of our properties under development depends on market conditions, including
estimates of the project start date as well as estimates of demand for multifamily communities. We
have reviewed market trends and other marketplace information and have incorporated this
information as well as our current outlook into the
assumptions we use in our impairment analyses. Due to, among other factors, the judgment and
assumptions applied in the impairment analyses and the fact limited market information regarding
the value of comparable land exists at this time, it is possible actual results could differ
substantially from those estimated.
9
We believe the carrying value of our operating real estate assets, properties under
development, and land is currently recoverable. However, if market conditions deteriorate beyond
our current expectations or if changes in our development strategy significantly affect any key
assumptions used in our fair value calculations, we may need to take material charges in future
periods for impairments related to existing assets. Any such material non-cash charges would have
an adverse effect on our consolidated financial position and results of operations.
Cash and Cash Equivalents
. All cash and investments in money market accounts and other highly
liquid securities with a maturity of three months or less at the date of purchase are considered to
be cash and cash equivalents. We maintain the majority of our cash and cash equivalents at major
financial institutions in the United States and deposits with these financial institutions may
exceed the amount of insurance provided on such deposits; however, we regularly monitor the
financial stability of these financial institutions and believe we are not currently exposed to any
significant default risk with respect to these deposits.
Cost Capitalization
. Real estate assets are carried at cost plus capitalized carrying
charges. Carrying charges are primarily interest and real estate taxes which are capitalized as
part of properties under development. Capitalized interest is generally based on the weighted
average interest rate of our unsecured debt. Transaction and restructuring costs associated with
the acquisition of real estate assets are expensed. Expenditures directly related to the
development and improvement of real estate assets are capitalized at cost as land and buildings and
improvements. Indirect development costs, including salaries and benefits and other related costs
directly attributable to the development of properties, are also capitalized. All construction and
carrying costs are capitalized and reported in the balance sheet as properties under development
until the apartment homes are substantially completed. Upon substantial completion of the apartment
homes, the total cost for the apartment homes and the associated land is transferred to buildings
and improvements and land, respectively.
As discussed above, carrying charges are principally interest and real estate taxes
capitalized as part of properties under development and buildings and improvements. Capitalized
interest was approximately $1.3 million and $2.6 million for the three and six months ended June
30, 2010, respectively, and approximately $2.5 million and $4.9 million for the three and six
months ended June 30, 2009, respectively. Capitalized real estate taxes were approximately $0.2
million and $0.5 million for the three and six months ended June 30, 2010, respectively, and
approximately $0.4 million and $1.0 million for the three and six months ended June 30, 2009,
respectively.
Where possible, we stage our construction to allow leasing and occupancy during the
construction period, which we believe minimizes the duration of the lease-up period following
completion of construction. Our accounting policy related to properties in the development and
leasing phase is to expense all operating expenses associated with completed apartment homes. We
capitalize renovation and improvement costs we believe extend the economic lives of depreciable
property. Capital expenditures subsequent to initial construction are capitalized and depreciated
over their estimated useful lives.
Depreciation and amortization is computed over the expected useful lives of depreciable
property on a straight-line basis with lives generally as follows:
|
|
|
|
|
Estimated
|
|
|
Useful Life
|
Buildings and improvements
|
|
5-35 years
|
Furniture, fixtures, equipment, and other
|
|
3-20 years
|
Intangible assets (in-place leases and above and below market leases)
|
|
underlying lease term
|
Derivative Financial Instruments.
Derivative financial instruments are recorded in the
condensed consolidated balance sheet at fair value and we do not apply master netting for financial
reporting purposes. Accounting for changes in the fair value of derivatives depends on the
intended use of the derivative, whether we have elected to designate a derivative in a hedging
relationship and apply hedge accounting, and whether the hedging relationship has satisfied the
criteria necessary to apply hedge accounting. Derivatives designated and qualifying as a hedge of
the exposure to variability in expected future cash flows or other types of forecasted transactions
are cash flow hedges. Hedge accounting generally provides for the matching of the timing of gain or
loss recognition on the hedging instrument with the recognition of the changes attributable to the
earnings effect of the hedged transactions. We may enter into derivative contracts which are
intended to economically hedge certain of
our risks, even though hedge accounting does not apply or we elect not to apply hedge
accounting.
10
Income Recognition
. Our rental and other property revenue is recorded when due from residents
and is recognized monthly as it is earned. Other property revenue consists primarily of utility
rebillings and administrative, application, and other transactional fees charged to our residents.
Our apartment homes are rented to residents on lease terms generally ranging from six to fifteen
months, with monthly payments due in advance. All sources of income, including from interest and
fee and asset management income, are recognized as earned. Nine of our properties are subject to
rent control. Operations of multifamily properties acquired are recorded from the date of
acquisition in accordance with the acquisition method of accounting. In managements opinion, due
to the number of residents, the types and diversity of submarkets in which the properties operate,
and the collection terms, there is no significant concentration of credit risk.
Reportable Segments
. Our multifamily communities are geographically diversified throughout
the United States, and management evaluates operating performance on an individual property level.
As each of our apartment communities has similar economic characteristics, residents, and products
and services, our apartment communities have been aggregated into one reportable segment. Our
multifamily communities generate rental revenue and other income through the leasing of apartment
homes, which comprises approximately 98% of our total property revenues and total non-property
income, excluding income (loss) on deferred compensation plans, for all periods presented.
Use of Estimates
. In the application of GAAP, management is required to make estimates and
assumptions which affect the reported amounts of assets and liabilities at the date of the
financial statements, results of operations during the reporting periods, and related disclosures.
Our more significant estimates include estimates supporting our impairment analysis related to the
carrying values of our real estate assets, estimates of the useful lives of our assets, estimates
related to the valuation of our investments in joint ventures and mezzanine financing, and
estimates of expected losses of potential variable interest entities. These estimates are based on
historical experience and other assumptions believed to be reasonable under the circumstances.
Future events rarely develop exactly as forecasted, and the best estimates routinely require
adjustment.
Recent Accounting Pronouncements.
In December 2009, the FASB issued ASU 2009-17,
Consolidations (Topic 810) Improvements to Financial Reporting by Enterprises Involved with
Variable Interest Entities,
which codified the previously issued Statement of Financial Accounting
Standards 167,
Amendments to FASB Interpretation No. 46R.
ASU 2009-17 changes the consolidation
analysis for VIEs and requires a qualitative analysis to determine the primary beneficiary of the
VIE. The determination of the primary beneficiary of a VIE is based on whether the entity has the
power to direct matters which most significantly impact the activities of the VIE and has the
obligation to absorb losses, or the right to receive benefits, of the VIE which could potentially
be significant to the VIE. The ASU requires an ongoing reconsideration of the primary beneficiary
and also amends the events triggering a reassessment of whether an entity is a VIE. ASU 2009-17
requires additional disclosures for VIEs, including disclosures about a reporting entitys
involvement with VIEs, how a reporting entitys involvement with a VIE affects the reporting
entitys financial statements, and significant judgments and assumptions made by the reporting
entity to determine whether it must consolidate the VIE. ASU 2009-17 was effective for us beginning
January 1, 2010. Our adoption of ASU 2009-17 did not have a material effect on our financial
statements, but could potentially have a material impact on future reconsideration events and
subsequent reassessment of VIE status.
3. Per Share Data
Basic earnings per share are computed using net income attributable to common shareholders and
the weighted average number of common shares outstanding. Diluted earnings per share reflect common
shares issuable from the assumed conversion of common share options and share awards granted and
units convertible into common shares. Only those items having a dilutive impact on our basic
earnings per share are included in diluted earnings per share. Our unvested share-based awards are
considered participating securities and are reflected in the calculation of basic and diluted
earnings per share using the two-class method. The number of common share equivalent securities
excluded from the diluted earnings per share calculation was approximately 4.9 million and 5.5
million for the three months ended June 30, 2010 and 2009, respectively, and was approximately 5.0
million and 4.9 million for the six months ended June 30, 2010 and 2009, respectively. These
securities, which include common share options and share awards granted and units convertible into
common shares, were excluded from the diluted earnings per share calculation as they were
determined to be anti-dilutive.
11
The following table presents information necessary to calculate basic and diluted earnings per
share for the three and six months ended June 30, 2010 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Six Months Ended
|
|
|
|
June 30,
|
|
|
June 30,
|
|
(in thousands, except per share amounts)
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Basic earnings per share calculation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common shareholders
|
|
$
|
1,873
|
|
|
$
|
399
|
|
|
$
|
4,030
|
|
|
$
|
5,676
|
|
Amount allocated to participating securities
|
|
|
(32
|
)
|
|
|
(147
|
)
|
|
|
(70
|
)
|
|
|
(223
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common shareholders, net of amount allocated to participating securities
|
|
|
1,841
|
|
|
|
252
|
|
|
|
3,960
|
|
|
|
5,453
|
|
Income from discontinued operations, including gain on sale, attributable to common shareholders
|
|
|
261
|
|
|
|
17,916
|
|
|
|
389
|
|
|
|
18,873
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders, as adjusted basic
|
|
$
|
2,102
|
|
|
$
|
18,168
|
|
|
$
|
4,349
|
|
|
$
|
24,326
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common shareholders, as adjusted per share
|
|
$
|
0.03
|
|
|
$
|
0.01
|
|
|
$
|
0.06
|
|
|
$
|
0.10
|
|
Income from discontinued operations, including gain on sale, attributable to common shareholders per share
|
|
|
|
|
|
|
0.29
|
|
|
|
|
|
|
|
0.32
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders, as adjusted per share
|
|
$
|
0.03
|
|
|
$
|
0.30
|
|
|
$
|
0.06
|
|
|
$
|
0.42
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding
|
|
|
68,090
|
|
|
|
61,499
|
|
|
|
67,287
|
|
|
|
58,542
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted earnings per share calculation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common shareholders, net of amount allocated to participating securities
|
|
$
|
1,841
|
|
|
$
|
252
|
|
|
$
|
3,960
|
|
|
$
|
5,453
|
|
Income allocated to common units
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common shareholders, as adjusted
|
|
|
1,841
|
|
|
|
252
|
|
|
|
3,960
|
|
|
|
5,474
|
|
Income from discontinued operations, including gain on sale, attributable to common shareholders
|
|
|
261
|
|
|
|
17,916
|
|
|
|
389
|
|
|
|
18,873
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders, as adjusted
|
|
$
|
2,102
|
|
|
$
|
18,168
|
|
|
$
|
4,349
|
|
|
$
|
24,347
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations attributable to common shareholders, as adjusted per share
|
|
$
|
0.03
|
|
|
$
|
0.01
|
|
|
$
|
0.06
|
|
|
$
|
0.09
|
|
Income from discontinued operations, including gain on sale, attributable to common shareholders per share
|
|
|
|
|
|
|
0.29
|
|
|
|
|
|
|
|
0.32
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders, as adjusted per share
|
|
$
|
0.03
|
|
|
$
|
0.30
|
|
|
$
|
0.06
|
|
|
$
|
0.41
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding
|
|
|
68,090
|
|
|
|
61,499
|
|
|
|
67,287
|
|
|
|
58,542
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incremental shares issuable from assumed conversion of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common share options and share awards granted
|
|
|
296
|
|
|
|
|
|
|
|
234
|
|
|
|
|
|
Common units
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
483
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding, as adjusted
|
|
|
68,386
|
|
|
|
61,499
|
|
|
|
67,521
|
|
|
|
59,025
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12
4. Common Shares
We currently have an automatic shelf registration statement on file with the SEC which allows
us to offer, from time to time, an unlimited amount of common shares, preferred shares, debt
securities, or warrants. Our declaration of trust provides we may issue up to 110 million shares of
beneficial interest, consisting of 100 million common shares and 10 million preferred shares. As of
June 30, 2010, we had approximately 67.0 million common shares outstanding, net of treasury shares
and shares held in our deferred compensation arrangements, and no preferred shares outstanding.
In March 2010, we announced the creation of an at-the-market (ATM) share offering program
through which we may, but have no obligation to, sell common shares having an aggregate offering
price of up to $250 million, in amounts and at times as we determine, into the existing trading
market at current market prices as well as through negotiated transactions. Actual sales will
depend on a variety of factors we determine from time to time including, among others, market
conditions, the trading price of our common shares, and determinations of the appropriate sources
of funding for us. During the six months ended June 30, 2010, we sold approximately 2.3 million
common shares at an average price of $46.61 per share for total net consideration of approximately
$106.4 million through the ATM share offering program. As of June 30, 2010, we had common shares
having an aggregate offering price of up to $141.8 million remaining available for sale under the
ATM program. No additional shares were sold through July 30, 2010 (the date the financial
statements were issued).
5. Investments in Joint Ventures
As of June 30, 2010, our equity investments in unconsolidated joint ventures, which we account
for utilizing the equity method of accounting, consisted of 25 joint ventures, with our ownership
percentages ranging from 15% to 72%. We provide property management services to the majority of
these joint ventures which own operating properties and may provide construction and development
services to the joint ventures which own properties under development. The following table
summarizes aggregate balance sheet and statement of income data for the unconsolidated joint
ventures as of and for the periods presented:
|
|
|
|
|
|
|
|
|
|
|
June 30,
|
|
|
December 31,
|
|
(
in millions
)
|
|
2010
|
|
|
2009
|
|
Total assets
|
|
$
|
1,186.9
|
|
|
$
|
1,202.0
|
|
Total third-party debt
|
|
|
983.4
|
|
|
|
980.9
|
|
Total equity
|
|
|
143.0
|
|
|
|
151.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Six Months Ended
|
|
|
|
June 30,
|
|
|
June 30,
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Total revenues
|
|
$
|
34.5
|
|
|
$
|
34.3
|
|
|
$
|
68.2
|
|
|
$
|
68.0
|
|
Net loss
|
|
|
(5.1
|
)
|
|
|
(3.8
|
)
|
|
|
(10.2
|
)
|
|
|
(7.0
|
)
|
Equity in income (loss)(
1
)
|
|
|
(0.4
|
)
|
|
|
0.2
|
|
|
|
(0.5
|
)
|
|
|
0.6
|
|
|
|
|
(1)
|
|
Equity in income (loss) excludes our ownership interest of fee income from various
property management services and interest income from mezzanine loans with our joint ventures.
|
The joint ventures in which we have an interest have been funded in part with secured,
third-party debt. We have guaranteed no more than our proportionate interest, totaling
approximately $63.5 million, of five loans utilized for construction and development activities for
our joint ventures.
Mezzanine loans we have made to affiliate joint ventures are recorded as Notes receivable
affiliates as discussed in Note 6, Notes Receivable.
We may earn fees for property management, construction, development, and other services
related primarily to joint ventures in which we own an interest. Fees earned for these services
amounted to approximately $2.0 million and $2.2 million for the three months ended June 30, 2010
and 2009, respectively, and approximately $3.9 million and $4.3 million for the six months ended
June 30, 2010 and June 30, 2009, respectively. We eliminate
fee income from property management services provided to these joint ventures to the extent of
our ownership.
13
On April 15, 2010, a $24.5 million secured third-party construction note made by one of our
joint ventures which owns a multifamily property located in Houston, Texas, originally scheduled to
mature in April 2010, was contractually extended to April 2011. Concurrent with the construction
note extension, our $8.2 million mezzanine loan to this joint venture was converted into an
additional common equity interest in the amount of $7.2 million (with a preference on distribution
of cash flows) and the remaining $1.0 million was converted into an additional equity interest in
the joint venture.
In July 2010, we completed two acquisitions of multifamily properties for approximately $41 million through one of our joint ventures in which we have a 20% ownership interest. One property is comprised of 306 units located in Houston, Texas and the second property is a 110 unit substantially complete development community located in Atlanta, Georgia.
6. Notes Receivable
Notes receivable affiliates.
We provide mezzanine financing with rates ranging from the
London Interbank Offered Rate (LIBOR) plus 3% to a fixed maximum rate of 12% per year, in
connection with certain of our joint venture transactions. As of June 30, 2010 and December 31,
2009, the balance of Notes receivable affiliates totaled approximately $38.5 million and $45.8
million, respectively, on notes maturing through 2019. We eliminate the interest income to the
extent of our percentage ownership in the joint ventures. We have reviewed the terms and
conditions underlying these notes receivable and believe these notes are collectible, and no
impairment existed at June 30, 2010.
At June 30, 2010, our commitment to fund additional amounts under the mezzanine loans was an
aggregate of approximately $6.0 million.
7. Notes Payable
The following is a summary of our indebtedness:
|
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
|
June 30,
|
|
|
December 31,
|
|
(in millions)
|
|
2010
|
|
|
2009
|
|
Commercial Banks
|
|
|
|
|
|
|
|
|
Unsecured line of credit and short-term borrowings
|
|
$
|
|
|
|
$
|
|
|
$500 million term loan, due 2012
|
|
|
500.0
|
|
|
|
500.0
|
|
|
|
|
|
|
|
|
|
|
$
|
500.0
|
|
|
$
|
500.0
|
|
|
|
|
|
|
|
|
|
|
Senior unsecured notes
|
|
|
|
|
|
|
|
|
$250.0 million 4.39% Notes, due 2010
|
|
|
|
|
|
|
55.3
|
|
$100.0 million 6.75% Notes, due 2010
|
|
|
57.8
|
|
|
|
57.8
|
|
$150.0 million 7.69% Notes, due 2011
|
|
|
88.0
|
|
|
|
87.9
|
|
$200.0 million 5.93% Notes, due 2012
|
|
|
189.4
|
|
|
|
189.4
|
|
$200.0 million 5.45% Notes, due 2013
|
|
|
199.5
|
|
|
|
199.4
|
|
$250.0 million 5.08% Notes, due 2015
|
|
|
249.1
|
|
|
|
249.0
|
|
$300.0 million 5.75% Notes, due 2017
|
|
|
246.1
|
|
|
|
246.1
|
|
|
|
|
|
|
|
|
|
|
$
|
1,029.9
|
|
|
$
|
1,084.9
|
|
|
|
|
|
|
|
|
|
|
Medium-term notes
|
|
|
|
|
|
|
|
|
$10.0 million 4.90% Notes, due 2010
|
|
|
10.0
|
|
|
|
10.2
|
|
$14.5 million 6.79% Notes, due 2010
|
|
|
14.5
|
|
|
|
14.5
|
|
$35.0 million 4.99% Notes, due 2011
|
|
|
35.9
|
|
|
|
36.3
|
|
|
|
|
|
|
|
|
|
|
$
|
60.4
|
|
|
$
|
61.0
|
|
|
|
|
|
|
|
|
Total unsecured notes payable
|
|
$
|
1,590.3
|
|
|
$
|
1,645.9
|
|
14
|
|
|
|
|
|
|
|
|
Secured notes
|
|
|
|
|
|
|
|
|
1.18% - 6.00% Conventional Mortgage Notes, due 2011 2019
|
|
$
|
940.9
|
|
|
$
|
937.8
|
|
1.73% Tax-exempt Mortgage Note due 2028
|
|
|
40.9
|
|
|
|
41.5
|
|
|
|
|
|
|
|
|
|
|
$
|
981.8
|
|
|
$
|
979.3
|
|
|
|
|
|
|
|
|
Total notes payable
|
|
$
|
2,572.1
|
|
|
$
|
2,625.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Floating rate debt included in secured notes (1.18% - 1.80%)
|
|
$
|
189.5
|
|
|
$
|
186.9
|
|
Floating rate tax-exempt debt included in secured notes (1.73%)
|
|
|
40.9
|
|
|
|
41.5
|
|
We have a $600 million unsecured credit facility which matures in January 2011. The
scheduled interest rate spreads are subject to change as our credit ratings change. Advances under
the line of credit may be priced at the scheduled rates, or we may enter into bid rate loans with
participating banks at rates below the scheduled rates. These bid rate loans have terms of six months or less and may not exceed the lesser of $300 million
or the remaining amount available under the line of credit. The line of credit is subject to
customary financial covenants and limitations, all of which we are in compliance.
Our line of credit provides us with the ability to issue up to $100 million in letters of
credit. While our issuance of letters of credit does not increase our borrowings outstanding under
our line of credit, it does reduce the amount available. At June 30, 2010, we had outstanding
letters of credit totaling approximately $10.3 million, leaving approximately $589.7 million
available under our unsecured line of credit.
At June 30, 2010 and 2009, the weighted average interest rate on our floating rate debt, which
includes our unsecured line of credit, was approximately 1.3% and 2.0%, respectively.
During the three months ended March 31, 2010, we repaid the remaining principal amount of our
$250 million, 4.39% senior unsecured notes which matured on January 15, 2010 for a total of
approximately $55.3 million.
Our indebtedness, including our unsecured line of credit, had a weighted average maturity of
approximately 5.2 years at June 30, 2010. Scheduled repayments on outstanding debt assuming all
contractual extensions, including our line of credit and scheduled principal amortizations, and the
weighted average interest rate on maturing debt at June 30, 2010 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
|
Average
|
|
(in millions)
|
|
Amount
|
|
|
Interest Rate
|
|
2010
|
|
$
|
84.2
|
|
|
|
6.5
|
%
|
2011
|
|
|
157.5
|
|
|
|
6.2
|
|
2012
|
|
|
761.9
|
|
|
|
5.4
|
|
2013
|
|
|
227.2
|
|
|
|
5.4
|
|
2014
|
|
|
10.1
|
|
|
|
6.0
|
|
2015 and thereafter
|
|
|
1,331.2
|
|
|
|
4.7
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
2,572.1
|
|
|
|
5.1
|
%
|
|
|
|
|
|
|
|
On July 19, 2010, we repaid the remaining amounts outstanding of our $10.0 million, 4.90%
medium term notes maturing in 2010 for a total of approximately $10.4 million, of which
approximately $0.4 million represented accrued and unpaid interest.
15
8. Derivative Instruments and Hedging Activities
Risk Management Objective of Using Derivatives.
We are exposed to certain risks arising from
both our business operations and economic conditions. We principally manage our exposures to a
wide variety of business and operational risks through management of our core business activities.
We manage economic risks, including
interest rate, liquidity, and credit risk, primarily by managing the amount, sources, and
duration of our debt funding and the use of derivative financial instruments. Specifically, we may
enter into derivative financial instruments to manage exposures arising from business activities
resulting in differences in the amount, timing, and duration of our known or expected cash payments
principally related to our borrowings.
Cash Flow Hedges of Interest Rate Risk
. Our objectives in using interest rate derivatives are
to add stability to interest expense and to manage our exposure to interest rate movements. To
accomplish these objectives, we primarily use interest rate swaps and caps as part of our interest
rate risk management strategy. Interest rate swaps involve the receipt of variable rate amounts
from a counterparty in exchange for us making fixed-rate payments over the life of the agreements
without exchange of the underlying notional amount. Interest rate caps involve the receipt of
variable rate amounts from a counterparty if interest rates rise above the strike rate on the
contract in exchange for an up front premium.
Designated Hedges.
The effective portion of changes in the fair value of derivatives
designated and qualifying as cash flow hedges is recorded in accumulated other comprehensive income
or loss and is subsequently reclassified into earnings in the period the hedged forecasted
transaction affects earnings. Over the next twelve months, we estimate an additional $21.7 million
will be reclassified to interest expense. During the three and six months ended June 30, 2010 and
2009, such derivatives were used to hedge the variable cash flows associated with existing variable
rate debt. The ineffective portion of the change in fair value of the derivatives, if any, is
recognized directly in earnings. No portion was ineffective during the three or six months ended
June 30, 2010 and 2009.
As of June 30, 2010, we had the following outstanding interest rate derivatives designated as
cash flow hedges of interest rate risk:
|
|
|
|
|
|
|
|
|
Interest Rate Derivative
|
|
Number of Instruments
|
|
|
Notional Amount
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Swaps
|
|
|
2
|
|
|
$
|
516.5 million
|
|
Non-designated Hedges.
Derivatives not designated as hedges are not speculative and are
used to manage our exposure to interest rate movements and other identified risks. Non-designated
hedges are either specifically non-designated by management or do not meet strict hedge accounting
requirements. Changes in the fair value of derivatives not designated in hedging relationships are
recorded directly in earnings in other income or other expense.
As of June 30, 2010, we had the following outstanding interest rate derivative which was not
designated as a hedge of interest rate risk:
|
|
|
|
|
|
|
|
|
Interest Rate Derivative
|
|
Number of Instruments
|
|
|
Notional Amount
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Cap
|
|
|
1
|
|
|
$
|
175.0 million
|
|
16
The table below presents the fair value of our derivative financial instruments as well
as their classification in the condensed consolidated balance sheets at June 30, 2010 and December
31, 2009 (in millions):
Fair Values of Derivative Instruments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Asset Derivatives
|
|
|
Liability Derivatives
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
Balance Sheet
|
|
|
Fair
|
|
|
Balance Sheet
|
|
|
Fair
|
|
|
Balance Sheet
|
|
|
Fair
|
|
|
Balance Sheet
|
|
|
Fair
|
|
|
|
Location
|
|
|
Value
|
|
|
Location
|
|
|
Value
|
|
|
Location
|
|
|
Value
|
|
|
Location
|
|
|
Value
|
|
Derivatives designated as hedging instruments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Swaps
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other Liabilities
|
|
|
$
|
43.8
|
|
|
Other Liabilities
|
|
|
$
|
41.1
|
|
Derivatives
not
designated as hedging instruments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Cap
|
|
Other Assets
|
|
$
|
|
|
|
Other Assets
|
|
$
|
0.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The tables below present the effect of our derivative financial instruments on the
condensed consolidated statements of income and comprehensive income for the three and six months
ended June 30, 2010 and 2009 (in millions):
Effect of Derivative Instruments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location of Gain
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) Recognized
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
in Income on
|
|
|
|
|
|
|
Amount of Gain (Loss)
|
|
|
Location of Loss
|
|
|
Amount of Loss
|
|
|
Derivative
|
|
|
|
|
|
|
Recognized in Other
|
|
|
Reclassified from
|
|
|
Reclassified from
|
|
|
(Ineffective Portion
|
|
|
Amount of Gain (Loss) Recognized in
|
|
|
|
Comprehensive Income
|
|
|
Accumulated OCI
|
|
|
Accumulated OCI
|
|
|
and Amount
|
|
|
Income on Derivative (Ineffective
|
|
|
|
(OCI) on Derivative
|
|
|
into Income
|
|
|
into Income (Effective
|
|
|
Excluded from
|
|
|
Portion and Amount Excluded from
|
|
|
|
(
Effective Portion
)
|
|
|
(Effectiveness
|
|
|
Portion)
|
|
|
Effectiveness
|
|
|
Effectiveness Testing)
|
|
Derivatives in Cash Flow Hedging Relationships
|
|
2010
|
|
|
2009
|
|
|
Portion)
|
|
|
2010
|
|
|
2009
|
|
|
Testing)
|
|
|
2010
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Swaps
|
|
$
|
(7.4
|
)
|
|
$
|
1.4
|
|
|
Interest expense
|
|
$
|
5.8
|
|
|
$
|
5.5
|
|
|
Not applicable
|
|
Not applicable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location of Gain/Loss
|
|
|
Amount of Loss
Recognized in Income on
|
|
|
|
Recognized in Income on
|
|
|
Derivative
|
|
Derivatives not
designated as
hedging instruments
|
|
Derivative
|
|
|
2010
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Cap
|
|
Other income/expense
|
|
$
|
|
|
|
$
|
0.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location of Gain
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) Recognized
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
in Income on
|
|
|
|
|
|
|
Amount of Gain (Loss)
|
|
|
Location of Loss
|
|
|
Amount of Loss
|
|
|
Derivative
|
|
|
|
|
|
|
Recognized in Other
|
|
|
Reclassified from
|
|
|
Reclassified from
|
|
|
(Ineffective Portion
|
|
|
Amount of Gain (Loss) Recognized in
|
|
|
|
Comprehensive Income
|
|
|
Accumulated OCI
|
|
|
Accumulated OCI
|
|
|
and Amount
|
|
|
Income on Derivative (Ineffective
|
|
|
|
(OCI) on Derivative
|
|
|
into Income
|
|
|
into Income (Effective
|
|
|
Excluded from
|
|
|
Portion and Amount Excluded from
|
|
|
|
(
Effective Portion
)
|
|
|
(Effectiveness
|
|
|
Portion)
|
|
|
Effectiveness
|
|
|
Effectiveness Testing)
|
|
Derivatives in Cash Flow Hedging Relationships
|
|
2010
|
|
|
2009
|
|
|
Portion)
|
|
|
2010
|
|
|
2009
|
|
|
Testing)
|
|
|
2010
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Swaps
|
|
$
|
(14.2
|
)
|
|
$
|
(1.6
|
)
|
|
Interest expense
|
|
$
|
11.7
|
|
|
$
|
10.7
|
|
|
Not applicable
|
|
Not applicable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location of Gain/Loss
|
|
|
Amount of Loss Recognized
in Income on
|
|
|
|
Recognized in Income on
|
|
|
Derivative
|
|
Derivatives not designated as
hedging instruments
|
|
Derivative
|
|
|
2010
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Cap
|
|
Other income/expense
|
|
$
|
|
|
|
$
|
0.1
|
|
17
Credit-risk-related Contingent Features
. Derivative financial investments expose us to
credit risk in the event of non-performance by the counterparties under the terms of the interest
rate hedge agreements. We believe we minimize our credit risk on these transactions by transacting
with major creditworthy financial institutions. As part of our on-going control procedures, we
monitor the credit ratings of counterparties and our exposure to any single entity, which we
believe minimizes credit risk concentration. We believe the likelihood of realized losses from
counterparty non-performance is remote.
Our agreements with each of our derivative counterparties contain provisions which provide the
counterparty the right to declare a default on our derivative obligations if we are in default on
any of our
indebtedness, subject to certain thresholds. For all instances, these provisions include a
default even if there is no acceleration of the indebtedness. Our agreements with each of our
derivative counterparties also provide if we consolidate with, merge with or into, or transfer all
or substantially all our assets to another entity and the creditworthiness of the resulting,
surviving, or transferee entity is materially weaker than ours, the counterparty has the right to
terminate the derivative obligations.
At June 30, 2010, the fair value of derivatives in a net liability position, which includes
accrued interest but excludes any adjustment for nonperformance risk (the termination value),
related to these agreements was approximately $45.8 million. As of June 30, 2010, we had not
posted any collateral related to these agreements. If we were in breach of any of these provisions
at June 30, 2010, or terminated these agreements, we would have been required to settle our
obligations at their aggregate termination value of approximately $45.8 million.
9. Share-based Compensation
Options
. During the six months ended June 30, 2010, approximately 0.1 million options were
exercised at prices ranging from $25.88 to $42.90 per option. The total intrinsic value of options
exercised during the six months ended June 30, 2010 was approximately $1.3 million. There were no
options exercised during the six months ended June 30, 2009. As of June 30, 2010, there was
approximately $2.6 million of total unrecognized compensation cost related to unvested options,
which is expected to be amortized over the next four years.
The following table summarizes share options outstanding and exercisable at June 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding Options (1)
|
|
|
Exercisable Options (1)
|
|
|
Remaining
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
Weighted
|
|
|
Contractual
|
|
|
|
|
|
|
|
Average
|
|
|
|
|
|
|
Average
|
|
|
Life
|
|
Range of Exercise
Prices
|
|
Number
|
|
|
Price
|
|
|
Number
|
|
|
Price
|
|
|
(Years)
|
|
$30.06$41.91
|
|
|
611,918
|
|
|
$
|
33.03
|
|
|
|
220,311
|
|
|
$
|
38.31
|
|
|
|
6.1
|
|
$42.90$44.00
|
|
|
508,835
|
|
|
|
43.32
|
|
|
|
452,940
|
|
|
|
43.25
|
|
|
|
3.9
|
|
$45.53$73.32
|
|
|
728,124
|
|
|
|
49.57
|
|
|
|
498,412
|
|
|
|
50.29
|
|
|
|
5.8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total options
|
|
|
1,848,877
|
|
|
$
|
42.38
|
|
|
|
1,171,663
|
|
|
$
|
45.31
|
|
|
|
5.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
The aggregate intrinsic value of outstanding options and exercisable options at June 30,
2010 was $4.9 million and $0.6 million, respectively. The aggregate intrinsic values were
calculated as the excess, if any, between our closing share price of $40.85 per share on
June 30, 2010 and the strike price of the underlying award.
|
Valuation Assumptions
. Options generally have a vesting period of three to five years.
We estimate the fair values of each option award on the date of grant using the Black-Scholes
option pricing model. The following assumptions were used for options granted during the three
months ended March 31, 2010 (no options were granted during the quarter ended June 30, 2010):
|
|
|
Weighted average fair value of options granted
|
|
$11.69
|
Expected volatility
|
|
35.6% - 39.2%
|
Risk-free interest rate
|
|
3.6% - 3.7%
|
Expected dividend yield
|
|
4.1% - 4.4%
|
Expected life (in years)
|
|
7.0 - 9.0
|
Our computation of expected volatility for 2010 is based on the historical volatility of our
common shares over a time period equal to the expected life of the option and ending on the grant
date. The interest rate for periods within the contractual life of the award is based on the U.S.
Treasury yield curve in effect at the time of grant. The expected dividend yield on our common
shares is estimated using the annual dividends paid in the prior year and the market price on the
date of grant. Our computation of expected life for 2010 is estimated based on historical
experience of similar awards, giving consideration to the contractual terms of the share-based
awards.
18
Share Awards and Vesting
. Share awards generally have a vesting period of five years. The
compensation cost for share awards is based on the market value of the shares on the date of grant
and is amortized over the vesting period. To estimate forfeitures, we use actual forfeiture
history. At June 30, 2010, the unamortized value of previously issued unvested share awards was
approximately $27.8 million. The total fair value of shares vested during the six months ended
June 30, 2010 and 2009 was approximately $10.1 million and $9.4 million, respectively.
The following table summarizes activity under our 1993 and 2002 Share Incentive Plans for the
six months ended June 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
Options /
|
|
|
Average
|
|
|
|
Share Awards
|
|
|
Exercise /
|
|
|
|
Outstanding
|
|
|
Grant Price
|
|
Balance at December 31, 2009
|
|
|
4,826,757
|
|
|
$
|
39.00
|
|
Vested share awards at December 31, 2009 (1)
|
|
|
(2,257,392
|
)
|
|
|
(37.49
|
)
|
|
|
|
|
|
|
|
Options and nonvested share awards
outstanding at December 31, 2009
|
|
|
2,569,365
|
|
|
$
|
40.32
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options
|
|
|
|
|
|
|
|
|
Granted
|
|
|
55,895
|
|
|
|
43.94
|
|
Exercised
|
|
|
(131,359
|
)
|
|
|
31.96
|
|
Forfeited
|
|
|
(49,871
|
)
|
|
|
46.85
|
|
|
|
|
|
|
|
|
|
Net options
|
|
|
(125,335
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share Awards
|
|
|
|
|
|
|
|
|
Granted
|
|
|
370,036
|
|
|
|
39.89
|
|
Vested
|
|
|
(206,593
|
)
|
|
|
(49.01
|
)
|
Forfeited
|
|
|
(5,459
|
)
|
|
|
38.52
|
|
|
|
|
|
|
|
|
|
Nonvested awards
|
|
|
157,984
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total outstanding options and nonvested
share awards at June 30, 2010
|
|
|
2,602,014
|
|
|
$
|
42.34
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nonvested share awards at June 30, 2010
|
|
|
753,137
|
|
|
$
|
42.17
|
|
|
|
|
(1)
|
|
Balance includes 76,563 shares which do not impact compensation expense.
|
10. Net Change in Operating Accounts
The effect of changes in the operating accounts on cash flows from operating activities is as
follows:
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
June 30,
|
|
(in thousands)
|
|
2010
|
|
|
2009
|
|
Change in assets:
|
|
|
|
|
|
|
|
|
Other assets, net
|
|
$
|
(734
|
)
|
|
$
|
6,848
|
|
|
|
|
|
|
|
|
|
|
Change in liabilities:
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses
|
|
|
(9,270
|
)
|
|
|
(16,129
|
)
|
Accrued real estate taxes
|
|
|
5,175
|
|
|
|
6,849
|
|
Other liabilities
|
|
|
699
|
|
|
|
(1,590
|
)
|
|
|
|
|
|
|
|
Change in operating accounts
|
|
$
|
(4,130
|
)
|
|
$
|
(4,022
|
)
|
|
|
|
|
|
|
|
19
11. Commitments and Contingencies
Litigation
. We are subject to various legal proceedings and claims which arise in the
ordinary course of business. Matters which arise out of allegations of bodily injury, property
damage, and employment practices are generally covered by insurance. While the resolution of these
legal proceedings and claims cannot be predicted with certainty, management believes the final
outcome of such matters will not have a material adverse effect on our condensed consolidated
financial statements.
Other Contingencies
. In the ordinary course of our business, we issue letters of intent
indicating a willingness to negotiate for acquisitions, dispositions, or joint ventures and also
enter into arrangements contemplating various transactions. Such letters of intent and other
arrangements are non-binding as to either party unless and until a definitive contract is entered
into by the parties. Even if definitive contracts relating to the
purchase or sale of real property are entered into, these contracts generally provide the
purchaser with time to evaluate the property and conduct due diligence, during which periods the
purchaser will have the ability to terminate the contracts without penalty or forfeiture of any
deposit or earnest money. There can be no assurance definitive contracts will be entered into with
respect to any matter covered by letters of intent or we will consummate any transaction
contemplated by any definitive contract. Furthermore, due diligence periods for real property are
frequently extended as needed. An acquisition or sale of real property becomes probable at the
time the due diligence period expires and the definitive contract has not been terminated. We are
then at risk under a real property acquisition contract, but generally only to the extent of any
earnest money deposits associated with the contract, and are obligated to sell under a real
property sales contract.
Lease Commitments
. At June 30, 2010, we had long-term leases covering certain land, office
facilities, and equipment. Rental expense totaled approximately $0.7 million and $0.8 million for
the three months ended June 30, 2010 and 2009, respectively, and approximately $1.5 million for
each of the six months ended June 30, 2010 and 2009. Minimum annual rental commitments for the
remainder of 2010 are approximately $1.3 million, and for the years ending December 31, 2011
through 2014 are approximately $2.4 million, $2.0 million, $1.9 million, and $1.8 million,
respectively, and approximately $1.7 million in the aggregate thereafter.
Investments in Joint Ventures
. We have entered into, and may continue in the future to enter
into, joint ventures or partnerships (including limited liability companies) through which we own
an indirect economic interest in less than 100% of the community or communities owned directly by
the joint venture or partnership. Our decision whether to hold the entire interest in an apartment
community ourselves, or to have an indirect interest in the community through a joint venture or
partnership, is based on a variety of factors and considerations, including: (i) our projection, in
some circumstances, that we will achieve higher returns on our invested capital or reduce our risk
if a joint venture or partnership vehicle is used; (ii) our desire to diversify our portfolio of
communities by market; (iii) our desire at times to preserve our capital resources to maintain
liquidity or balance sheet strength; and (iv) the economic and tax terms required by a seller of
land or of a community, who may prefer or who may require less payment if the land or community is
contributed to a joint venture or partnership. Investments in joint ventures or partnerships are
not limited to a specified percentage of our assets. Each joint venture or partnership agreement is
individually negotiated, and our ability to operate and/or dispose of a community in our sole
discretion is limited to varying degrees in our existing joint venture agreements and may be
limited to varying degrees depending on the terms of future joint venture agreements.
12. Income Taxes
We have maintained and intend to maintain our election as a REIT under the Internal Revenue
Code of 1986, as amended. In order for us to continue to qualify as a REIT we must meet a number of
organizational and operational requirements, including a requirement to distribute annual dividends
to our shareholders equal to a minimum of 90% of our REIT taxable income, computed without regard
to the dividends paid deduction and our net capital gains. As a REIT, we generally will not be
subject to federal income tax on our taxable income at the corporate level to the extent such
income is distributed to our shareholders annually. If our taxable income exceeds our dividends in
a tax year, REIT tax rules allow us to designate dividends from the subsequent tax year in order to
avoid current taxation on undistributed income. If we fail to qualify as a REIT in any taxable
year, we will be subject to federal and state income taxes at regular corporate rates, including
any applicable alternative minimum tax. In addition, we may not be able to requalify as a REIT for
the four subsequent taxable years. Historically, we have incurred only state and local income,
franchise, and excise taxes. Taxable income from non-REIT activities managed through taxable REIT
subsidiaries is subject to applicable federal, state, and local income taxes. Our operating
partnerships are flow-through entities and are not subject to federal income taxes at the entity
level. We have provided for income, franchise, and state income taxes in the condensed
consolidated statements of income and comprehensive income for the three and six months ended June
30, 2010 and 2009. These taxes are primarily for entity level taxes on certain ventures, state
taxes, and federal taxes on certain of our taxable REIT subsidiaries. We have no significant
temporary differences or tax credits associated with our taxable REIT subsidiaries.
20
We believe we have no uncertain tax positions or unrecognized tax benefits requiring
disclosure as of and for the six months ended June 30, 2010.
13. Dispositions and Assets Held for Sale
Discontinued Operations and Assets Held for Sale
. For the three and six months ended June 30,
2010 and 2009, income from discontinued operations included the results of operations of one
operating property comprised of 602 apartment homes classified as held for sale. As of June 30,
2010, this property had an approximate net book
value of $9.7 million. For the three and six months ended June 30, 2009, income from
discontinued operations also included the results of operations of one operating property sold in
2009 through its sale date in the second quarter of 2009. We recognized a gain of approximately
$16.9 million from the sale of the property, comprised of 671 apartment homes with a net book value
of approximately $11.3 million, to an unaffiliated third party. This sale generated total net
proceeds of approximately $28.0 million. There were no sales of operating properties during the
six months ended June 30, 2010.
The following is a summary of income from discontinued operations for the three and six months
ended June 30, 2010 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months
|
|
|
Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
(in thousands)
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Property revenues
|
|
$
|
911
|
|
|
$
|
2,360
|
|
|
$
|
1,822
|
|
|
$
|
4,603
|
|
Property expenses
|
|
|
520
|
|
|
|
1,145
|
|
|
|
1,108
|
|
|
|
2,249
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
391
|
|
|
|
1,215
|
|
|
|
714
|
|
|
|
2,354
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
130
|
|
|
|
186
|
|
|
|
325
|
|
|
|
368
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from discontinued
operations
|
|
$
|
261
|
|
|
$
|
1,029
|
|
|
$
|
389
|
|
|
$
|
1,986
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14. Fair Value Disclosures
For financial assets and liabilities fair valued on a recurring basis, fair value is the price
we would receive to sell an asset, or pay to transfer a liability, in an orderly transaction with a
market participant at the measurement date. In the absence of such data, fair value is estimated
using internal information consistent with what market participants would use in a hypothetical
transaction which occurs at the transaction date.
Observable inputs reflect market data obtained from independent sources, while unobservable
inputs reflect our market assumptions; preference is given to observable inputs. These two types
of inputs create the following fair value hierarchy:
|
|
|
|
|
|
|
|
|
|
|
Level 1:
|
|
Quoted prices for identical instruments in active markets.
|
|
|
|
|
|
|
|
|
|
|
|
Level 2:
|
|
Quoted prices for similar instruments in active markets; quoted prices
for identical or similar instruments in markets that are not active; and
model-derived valuations whose inputs are observable or whose significant value
drivers are observable.
|
|
|
|
|
|
|
|
|
|
|
|
Level 3:
|
|
Significant inputs to the valuation model are unobservable.
|
21
The following table presents information about our financial assets and liabilities measured
at fair value as of June 30, 2010 and December 31, 2009 under the fair value hierarchy discussed
above.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
(
in millions
)
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
|
Level 1
|
|
|
Level 2
|
|
|
Level 3
|
|
|
Total
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred compensation plan investments
|
|
$
|
36.9
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
36.9
|
|
|
$
|
49.7
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
49.7
|
|
Derivative financial instruments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.1
|
|
|
|
|
|
|
|
0.1
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivative financial instruments
|
|
$
|
|
|
|
$
|
43.8
|
|
|
$
|
|
|
|
$
|
43.8
|
|
|
$
|
|
|
|
$
|
41.1
|
|
|
$
|
|
|
|
$
|
41.1
|
|
Deferred compensation plan investments
. The estimated fair values of investment
securities classified as deferred compensation plan investments are included in Level 1 and are
based on quoted market prices utilizing public information for the same transactions or information
provided through third-party advisors. Our deferred compensation plan investments are recorded in
other assets in our condensed consolidated balance sheets. The balance at June 30, 2010 also
reflects approximately $13.7 million of participant withdrawals from our deferred compensation plan
investments during 2010.
Derivative financial instruments
. The estimated fair values of derivative financial
instruments are included in Level 2 and are valued using widely accepted valuation techniques
including discounted cash flow analysis on the expected cash flows of each derivative. This
analysis reflects the contractual terms of the derivatives, including the period to maturity, and
uses observable market-based inputs, including interest rate curves and volatility. The fair
values of interest rate swaps and caps are estimated using the market standard methodology of
netting the discounted fixed cash payments and the discounted expected variable cash receipts. The
variable cash receipts are based on an expectation of interest rates (forward curves) derived from
observable market interest rate curves. In addition, credit valuation adjustments, which consider
the impact of any credit enhancements to the contracts, are incorporated in the fair values to
account for potential nonperformance risk, both our own nonperformance risk and the respective
counterpartys nonperformance risk. The fair value of interest rate caps are determined using the
market standard methodology of discounting the future expected cash receipts which would occur if
variable interest rates rise above the strike rate of the caps. The variable interest rates used
in the calculation of projected receipts on the cap are based on an expectation of future interest
rates derived from observed market interest rate curves and volatilities.
Although we have determined the majority of the inputs used to value our derivatives fall
within Level 2 of the fair value hierarchy, the credit valuation adjustments associated with our
derivatives utilize Level 3 inputs, such as estimates of current credit spreads, to evaluate the
likelihood of default by us and our counterparties. However, as of June 30, 2010, we have assessed
the significance of the impact of the credit valuation adjustments on the overall valuation of our
derivative positions and have determined the credit valuation adjustments are not significant to
the overall valuation of our derivatives. As a result, we have determined our derivative valuations
in their entirety are classified in Level 2 of the fair value hierarchy.
Other Fair Value Disclosures.
As of June 30, 2010 and December 31, 2009, the carrying value of
cash and cash equivalents, restricted cash, accounts receivable, accounts payable, accrued expenses
and other liabilities, and distributions payable approximated their fair value based on the
short-term nature of these instruments.
22
In calculating the fair value of our notes receivable and notes payable, interest rates and
spreads reflect current creditworthiness and market conditions available for the issuance of notes
receivable and notes payable with similar terms and remaining maturities. In instances where market
conditions are not available, we follow the guidance of the Fair Value Measurements and Disclosures
Topic of the Accounting Standards Codification to estimate fair value in a non-active market. The
following table presents the carrying and estimated fair value of our notes receivable and notes
payable at June 30, 2010 and December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
Carrying
|
|
|
Estimated
|
|
|
Carrying
|
|
|
Estimated
|
|
(
in millions
)
|
|
Value
|
|
|
Fair Value
|
|
|
Value
|
|
|
Fair Value
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes receivable affiliates
|
|
$
|
38.5
|
|
|
$
|
38.5
|
|
|
$
|
45.8
|
|
|
$
|
46.1
|
|
Fixed rate notes payable
(1)
|
|
|
2,341.7
|
|
|
|
2,394.5
|
|
|
|
2,396.8
|
|
|
|
2,380.9
|
|
Floating rate notes payable
|
|
|
230.4
|
|
|
|
191.7
|
|
|
|
228.4
|
|
|
|
189.4
|
|
|
|
|
(1)
|
|
Includes a $500 million term loan entered into in 2007 and $16.5
million of a construction loan entered into in 2008 which are fixed by
the use of interest rate swaps but evaluated for estimated fair value
at the floating rate.
|
Nonrecurring Fair Value Disclosures.
Nonfinancial assets and nonfinancial liabilities
measured on a nonrecurring basis primarily relate to impairment of long-lived assets or
investments. There were no events during the six months ended June 30, 2010 which required fair
value adjustments of our nonfinancial assets and nonfinancial liabilities.
15. Noncontrolling Interests
The following table summarizes the effect of changes in our ownership interest in subsidiaries
on the equity attributable to us for the six months ended June 30:
|
|
|
|
|
|
|
|
|
(
in thousands
)
|
|
2010
|
|
|
2009
|
|
Net income attributable to common shareholders
|
|
$
|
4,419
|
|
|
$
|
24,549
|
|
Transfers from the noncontrolling interests:
|
|
|
|
|
|
|
|
|
Increase in equity for conversion of operating partnership units
|
|
|
1,337
|
|
|
|
1,764
|
|
Increase in equity from purchase of noncontrolling interests
|
|
|
|
|
|
|
648
|
|
|
|
|
|
|
|
|
Change in common shareholders equity and net transfers
from noncontrolling interests
|
|
$
|
5,756
|
|
|
$
|
26,961
|
|
|
|
|
|
|
|
|
23
Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations
The following discussion should be read in conjunction with the condensed consolidated
financial statements and notes appearing elsewhere in this report, as well as Part I, Item 1A,
Risk Factors within our Annual Report on Form 10-K for the year ended December 31, 2009.
Historical results and trends which might appear in the condensed consolidated financial statements
should not be interpreted as being indicative of future operations.
We consider portions of this report to be forward-looking within the meaning of Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, both as
amended, with respect to our expectations for future periods. Forward-looking statements do not
discuss historical fact, but instead include statements related to expectations, projections,
intentions, or other items relating to the future; forward-looking statements are not guarantees of
future performance, results, or events. Although we believe the expectations reflected in our
forward-looking statements are based upon reasonable assumptions, we can give no assurance our
expectations will be achieved. Any statements contained herein which are not statements of
historical fact should be considered forward-looking statements. Reliance should not be placed on
these forward-looking statements as they are subject to known and unknown risks, uncertainties, and
other factors beyond our control and could differ materially from our actual results and
performance.
Factors which may cause our actual results or performance to differ materially from those
contemplated by forward-looking statements include, but are not limited to, the following:
|
|
|
volatility in capital and credit markets could adversely impact us;
|
|
|
|
we could be negatively impacted by the condition of Fannie Mae or Freddie Mac;
|
|
|
|
unfavorable changes in economic conditions could adversely impact occupancy or rental
rates;
|
|
|
|
short-term leases expose us to the effects of declining market rents;
|
|
|
|
we face risks associated with land holdings and related activities;
|
|
|
|
difficulties of selling real estate could limit our flexibility;
|
|
|
|
compliance or failure to comply with laws requiring access to our properties by disabled
persons could result in substantial cost;
|
|
|
|
competition could limit our ability to lease apartments or increase or maintain rental
income;
|
|
|
|
development and construction risks could impact our profitability;
|
|
|
|
our acquisition strategy may not produce the cash flows expected;
|
|
|
|
competition could adversely affect our ability to acquire properties;
|
|
|
|
losses from catastrophes may exceed our insurance coverage;
|
|
|
|
investments through joint ventures involve risks not present in investments in which we
are the sole investor;
|
|
|
|
we face risks associated with investments in and management of discretionary funds;
|
|
|
|
we depend on our key personnel;
|
|
|
|
changes in laws and litigation risks could affect our business;
|
|
|
|
tax matters, including failure to qualify as a REIT, could have adverse consequences;
|
|
|
|
insufficient cash flows could limit our ability to make required payments for debt
obligations or pay distributions to shareholders;
|
|
|
|
we have significant debt, which could have important adverse consequences;
|
|
|
|
we may be unable to renew, repay, or refinance our outstanding debt;
|
|
|
|
variable rate debt is subject to interest rate risk;
|
|
|
|
we may incur losses on interest rate hedging arrangements;
|
|
|
|
issuances of additional debt may adversely impact our financial condition;
|
|
|
|
failure to maintain current credit ratings could adversely affect our cost of funds,
related margins, liquidity, and access to capital markets;
|
|
|
|
share ownership limits and our ability to issue additional equity securities may prevent
takeovers beneficial to shareholders;
|
|
|
|
our share price will fluctuate; and
|
|
|
|
we may reduce dividends on our equity securities.
|
These forward-looking statements represent our estimates and assumptions as of the date of
this report, and we assume no obligation to update or supplement forward-looking statements because
of subsequent events.
24
Executive Summary
We are primarily engaged in the ownership, development, construction, and management of
multifamily apartment communities. As of June 30, 2010, we owned interests in or operated 185 multifamily properties comprising 63,658 apartment homes across the United States as
detailed in the following Property Portfolio table. Additionally, we also own land parcels we may
develop into multifamily apartment communities.
During 2008 and 2009, the U.S. economy experienced a significant recession. Record levels of
job losses and high unemployment rates impacted our business, resulting in declines in both rental
rates and occupancy levels. During the most recent quarter our occupancy and rental rates increased
modestly and signs of improvement were visible. However, we continue to expect 2010 to remain
challenging and believe our property revenues will continue to decline in 2010 as compared to 2009.
When economic conditions improve, we believe the short-term nature of our leases and the limited
supply of new rental housing constructed should enhance our ability to realize revenue growth and
improvement in our operating results.
During the near term, we plan to continue to focus on strengthening our capital and liquidity
positions by generating positive cash flows from operations, reducing outstanding debt and leverage
ratios, and controlling and reducing overhead costs. We intend to meet our long-term liquidity
requirements through available cash balances, cash flows generated from operations, draws on our
unsecured credit facility, proceeds from property dispositions and secured mortgage notes, and the
use of debt and equity offerings under our automatic shelf registration statement, including under
our ATM share offering program.
We believe we are well-positioned with a strong balance sheet and sufficient liquidity to
cover debt maturities and potential new development funding requirements in the short-term, which
we believe should allow us to take advantage of investment opportunities in the future if and when
they arise. Subject to market conditions, we intend to continue to look for opportunities to
acquire existing communities through our investment in and management of our discretionary
investment funds (the Funds). Until the earlier of (i) December 31, 2011 or (ii) such time as 90%
of their committed capital is invested, subject to two one-year extensions and certain exceptions,
the Funds will be our exclusive investment vehicles for acquiring fully developed multifamily
properties.
25
Property Portfolio
Our multifamily property portfolio, excluding land and joint venture properties for which
development has been put on hold, is summarized as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
Apartment
|
|
|
|
|
|
|
Apartment
|
|
|
|
|
|
|
Homes
|
|
|
Properties
|
|
|
Homes
|
|
|
Properties
|
|
Operating Properties
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Las Vegas, Nevada
|
|
|
8,016
|
|
|
|
29
|
|
|
|
8,016
|
|
|
|
29
|
|
Houston, Texas
|
|
|
6,661
|
|
|
|
18
|
|
|
|
6,289
|
|
|
|
16
|
|
Dallas, Texas (1)
|
|
|
6,119
|
|
|
|
15
|
|
|
|
6,119
|
|
|
|
15
|
|
Washington, D.C. Metro
|
|
|
6,068
|
|
|
|
17
|
|
|
|
6,068
|
|
|
|
17
|
|
Tampa, Florida
|
|
|
5,503
|
|
|
|
12
|
|
|
|
5,503
|
|
|
|
12
|
|
Charlotte, North Carolina
|
|
|
3,574
|
|
|
|
15
|
|
|
|
3,574
|
|
|
|
15
|
|
Orlando, Florida
|
|
|
3,557
|
|
|
|
9
|
|
|
|
3,557
|
|
|
|
9
|
|
Atlanta, Georgia
|
|
|
3,202
|
|
|
|
10
|
|
|
|
3,202
|
|
|
|
10
|
|
Raleigh, North Carolina
|
|
|
2,704
|
|
|
|
7
|
|
|
|
2,704
|
|
|
|
7
|
|
Southeast Florida
|
|
|
2,520
|
|
|
|
7
|
|
|
|
2,520
|
|
|
|
7
|
|
Los Angeles/Orange County, California
|
|
|
2,481
|
|
|
|
6
|
|
|
|
2,481
|
|
|
|
6
|
|
Austin, Texas
|
|
|
2,454
|
|
|
|
8
|
|
|
|
2,454
|
|
|
|
8
|
|
Phoenix, Arizona
|
|
|
2,433
|
|
|
|
8
|
|
|
|
2,433
|
|
|
|
8
|
|
Denver, Colorado
|
|
|
2,171
|
|
|
|
7
|
|
|
|
2,171
|
|
|
|
7
|
|
San Diego/Inland Empire, California
|
|
|
1,196
|
|
|
|
4
|
|
|
|
1,196
|
|
|
|
4
|
|
Other
|
|
|
4,999
|
|
|
|
13
|
|
|
|
4,999
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Operating Properties
|
|
|
63,658
|
|
|
|
185
|
|
|
|
63,286
|
|
|
|
183
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Properties Under Development
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Houston, Texas
|
|
|
|
|
|
|
|
|
|
|
372
|
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Properties
|
|
|
63,658
|
|
|
|
185
|
|
|
|
63,658
|
|
|
|
185
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less: Joint Venture Properties (2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Las Vegas, Nevada
|
|
|
4,047
|
|
|
|
17
|
|
|
|
4,047
|
|
|
|
17
|
|
Houston, Texas (3)
|
|
|
2,199
|
|
|
|
7
|
|
|
|
2,199
|
|
|
|
7
|
|
Phoenix, Arizona
|
|
|
992
|
|
|
|
4
|
|
|
|
992
|
|
|
|
4
|
|
Los Angeles/Orange County, California
|
|
|
711
|
|
|
|
2
|
|
|
|
711
|
|
|
|
2
|
|
Austin, Texas
|
|
|
601
|
|
|
|
2
|
|
|
|
601
|
|
|
|
2
|
|
Washington, D.C. Metro
|
|
|
508
|
|
|
|
1
|
|
|
|
508
|
|
|
|
1
|
|
Dallas, Texas
|
|
|
456
|
|
|
|
1
|
|
|
|
456
|
|
|
|
1
|
|
Denver, Colorado
|
|
|
320
|
|
|
|
1
|
|
|
|
320
|
|
|
|
1
|
|
Other
|
|
|
3,237
|
|
|
|
9
|
|
|
|
3,237
|
|
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Joint Venture Properties
|
|
|
13,071
|
|
|
|
44
|
|
|
|
13,071
|
|
|
|
44
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Properties Owned 100%
|
|
|
50,587
|
|
|
|
141
|
|
|
|
50,587
|
|
|
|
141
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Includes one multifamily property comprised of 602 apartment homes designated as held for sale as of June 30, 2010.
|
|
(2)
|
|
Refer to Note 5, Investments in Joint Ventures in the notes to condensed consolidated
financial statements for further discussion of our joint venture investments.
|
|
(3)
|
|
Includes Camden Travis Street, a fully-consolidated joint venture, of which we retain a 25%
ownership.
|
26
Stabilized Communities
We generally consider a property stabilized once it reaches 90% occupancy at the beginning of
a period. Two of our recently completed properties reached stabilization during the six months
ended June 30, 2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
($ in millions)
|
|
Apartment
|
|
|
Date of
|
|
|
Date of
|
|
Property and Location
|
|
Homes
|
|
|
Completion
|
|
|
Stabilization
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Camden Dulles Station
|
|
|
|
|
|
|
|
|
|
|
|
|
Oak Hill, VA
|
|
|
366
|
|
|
|
1Q09
|
|
|
|
2Q10
|
|
Camden Amber Oaks joint venture
|
|
|
|
|
|
|
|
|
|
|
|
|
Austin, TX
|
|
|
348
|
|
|
|
2Q09
|
|
|
|
2Q10
|
|
Discontinued Operations and Assets Held for Sale
We intend to maintain a long-term strategy of managing our invested capital through the
selective sale of properties and expect to utilize the proceeds to reduce our outstanding debt and
leverage ratios and fund investments with higher anticipated growth prospects in our markets.
Income from discontinued operations includes the operations of properties, including land, sold
during the period or classified as held for sale as of June 30, 2010. The components of earnings
classified as discontinued operations include separately identifiable property-specific revenues,
expenses, depreciation, and interest expense. Any gain or loss on the disposal of the properties
held for sale, if any, is also classified as discontinued operations.
As of June 30, 2010, we had one operating property held for sale, comprised of 602 apartment
homes with an approximate net book value of $9.7 million. During the six months ended June 30,
2009, we recognized a gain of approximately $16.9 million from the sale of one property, comprised
of 671 apartment homes with an approximate net book value of $11.3 million, to an unaffiliated
third party. This sale generated net proceeds of approximately $28.0 million. There were no sales
of operating properties during the six months ended June 30, 2010.
Development and Lease-Up Properties
At June 30, 2010, we had one completed consolidated property in lease-up as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
Date of
|
|
|
Estimated
|
|
($ in millions)
|
|
Apartment
|
|
|
Cost
|
|
|
% Leased at
|
|
|
Construction
|
|
|
Date of
|
|
Property and Location
|
|
Homes
|
|
|
Incurred
|
|
|
7/25/10
|
|
|
Completion
|
|
|
Stabilization
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Camden Travis Street
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Houston, TX (1)
|
|
|
253
|
|
|
$
|
30.9
|
|
|
|
86
|
%
|
|
|
1Q10
|
|
|
|
1Q11
|
|
|
|
|
(1)
|
|
Camden Travis Street is owned in a fully-consolidated joint venture, of which we retain a 25%
ownership.
|
Our condensed consolidated balance sheet at June 30, 2010 included approximately $199.0
million related to properties under development and land, comprised of approximately $93.8 million
invested in land for projects we plan to develop, and approximately $105.2 million invested in land
tracts for which future development activities have been put on hold for the foreseeable future.
27
At June 30, 2010, we had investments in non-consolidated joint ventures which were developing
the following multifamily communities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Total
|
|
|
% Leased
|
|
($ in millions)
|
|
|
|
|
|
Apartment
|
|
|
Cost
|
|
|
at
|
|
Property and Location
|
|
Ownership %
|
|
|
Homes
|
|
|
Incurred
|
|
|
7/25/10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Completed Communities
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Braeswood Place
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Houston, TX
|
|
|
72
|
%
|
|
|
340
|
|
|
$
|
50.3
|
|
|
|
81
|
%
|
Belle Meade
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Houston, TX
|
|
|
72
|
%
|
|
|
119
|
|
|
|
37.6
|
|
|
|
66
|
%
|
Total Completed Communities
|
|
|
|
|
|
|
459
|
|
|
$
|
87.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Acres
|
|
|
|
|
|
|
|
|
|
Pre-Development
(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lakes at 610
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Houston, TX
|
|
|
30
|
%
|
|
|
6.1
|
|
|
$
|
7.2
|
|
|
|
|
|
Town Lake
(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Austin, TX
|
|
|
72
|
%
|
|
|
25.9
|
|
|
|
41.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pre-Development Total
|
|
|
|
|
|
|
32.0
|
|
|
$
|
48.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Properties in lease-up as of June 30, 2010.
|
|
(2)
|
|
Properties in pre-development by joint venture partner.
|
|
(3)
|
|
We have discontinued development activities on this project as of December 31, 2009.
|
Refer to Note 5, Investments in Joint Ventures in the notes to condensed consolidated
financial statements for further discussion of our joint venture investments.
Results of Operations
Changes in revenues and expenses related to our operating properties from period to period are
due primarily to the performance of stabilized properties in the portfolio, the lease-up of newly
constructed properties, acquisitions, and dispositions. Where appropriate, comparisons of income
and expense on communities included in continuing operations are made on a dollars-per-weighted
average apartment home basis in order to adjust for such changes in the number of apartment homes
owned during each period. Selected weighted averages for the three and six months ended June 30,
2010 and 2009 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Six Months Ended
|
|
|
|
June 30,
|
|
|
June 30,
|
|
($ in thousands)
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Average monthly property revenue per apartment home
|
|
$
|
1,020
|
|
|
$
|
1,051
|
|
|
$
|
1,014
|
|
|
$
|
1,052
|
|
Annualized total property expenses per apartment home
|
|
$
|
4,991
|
|
|
$
|
5,050
|
|
|
$
|
4,996
|
|
|
$
|
4,967
|
|
Weighted average number of operating apartment homes owned 100%
|
|
|
50,078
|
|
|
|
49,573
|
|
|
|
50,027
|
|
|
|
49,494
|
|
Weighted average occupancy of operating apartment homes owned 100%
|
|
|
94.1
|
%
|
|
|
94.4
|
%
|
|
|
93.7
|
%
|
|
|
94.0
|
%
|
28
Property-level operating results
The following tables present the property-level revenues and property-level expenses,
excluding discontinued operations, for the three and six months ended June 30, 2010 as compared to
the same periods in 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Apartment
|
|
|
Three Months
|
|
|
|
|
|
|
|
|
|
|
Six Months
|
|
|
|
|
|
|
Homes At
|
|
|
Ended June 30,
|
|
|
Change
|
|
|
Ended June 30,
|
|
|
Change
|
|
($ in thousands)
|
|
6/30/10
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
Property revenues
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Same store communities
|
|
|
46,757
|
|
|
$
|
141,176
|
|
|
$
|
146,012
|
|
|
$
|
(4,836
|
)
|
|
|
(3.3
|
)%
|
|
$
|
280,280
|
|
|
$
|
292,064
|
|
|
$
|
(11,784
|
)
|
|
|
(4.0
|
)%
|
Non-same store
communities
|
|
|
3,228
|
|
|
|
10,425
|
|
|
|
9,052
|
|
|
|
1,373
|
|
|
|
15.2
|
|
|
|
21,205
|
|
|
|
17,789
|
|
|
|
3,416
|
|
|
|
19.2
|
|
Development and
lease-up communities
|
|
|
253
|
|
|
|
461
|
|
|
|
|
|
|
|
461
|
|
|
|
100.0
|
|
|
|
661
|
|
|
|
|
|
|
|
661
|
|
|
|
100.0
|
|
Other
|
|
|
|
|
|
|
1,144
|
|
|
|
1,244
|
|
|
|
(100
|
)
|
|
|
(8.0
|
)
|
|
|
2,355
|
|
|
|
2,441
|
|
|
|
(86
|
)
|
|
|
(3.5
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total property
revenues
|
|
|
50,238
|
|
|
$
|
153,206
|
|
|
$
|
156,308
|
|
|
$
|
(3,102
|
)
|
|
|
(2.0
|
)%
|
|
$
|
304,501
|
|
|
$
|
312,294
|
|
|
$
|
(7,793
|
)
|
|
|
(2.5
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Same store communities
|
|
|
46,757
|
|
|
$
|
56,620
|
|
|
$
|
57,797
|
|
|
$
|
(1,177
|
)
|
|
|
(2.0
|
)%
|
|
$
|
113,464
|
|
|
$
|
113,495
|
|
|
$
|
(31
|
)
|
|
|
|
%
|
Non-same store
communities
|
|
|
3,228
|
|
|
|
4,111
|
|
|
|
4,095
|
|
|
|
16
|
|
|
|
0.4
|
|
|
|
8,182
|
|
|
|
7,781
|
|
|
|
401
|
|
|
|
5.2
|
|
Development and
lease-up communities
|
|
|
253
|
|
|
|
493
|
|
|
|
1
|
|
|
|
492
|
|
|
|
*
|
|
|
|
817
|
|
|
|
1
|
|
|
|
816
|
|
|
|
*
|
|
Other
|
|
|
|
|
|
|
1,262
|
|
|
|
692
|
|
|
|
570
|
|
|
|
82.4
|
|
|
|
2,493
|
|
|
|
1,631
|
|
|
|
862
|
|
|
|
52.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total property
expenses
|
|
|
50,238
|
|
|
$
|
62,486
|
|
|
$
|
62,585
|
|
|
$
|
(99
|
)
|
|
|
(0.2
|
)%
|
|
$
|
124,956
|
|
|
$
|
122,908
|
|
|
$
|
2,048
|
|
|
|
1.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Same store communities are communities we owned and were stabilized as of January 1, 2009. Non-same
store communities are stabilized communities we have acquired, developed or re-developed after
January 1, 2009. Development and lease-up communities are non-stabilized communities we have
acquired or developed after January 1, 2009.
* Not a meaningful percentage
Same store analysis
Same store property revenues for the three months ended June 30, 2010 decreased approximately
$4.8 million, or 3.3%, from the same period in 2009. Same store rental revenues decreased
approximately $5.0 million due to a modest decline in average occupancy and a 3.5% decline in
average rental rates for our same store portfolio due to, among other factors, the challenges
within the multifamily industry as discussed in the Executive Summary. The decrease was partially
offset by an approximate $0.2 million increase in other property revenue primarily due to utility
rebilling programs, partially offset by decreases in miscellaneous income.
Same store property revenues for the six months ended June 30, 2010 decreased approximately
$11.8 million, or 4.0%, from the same period in 2009. Same store rental revenues decreased
approximately $12.2 million due to a modest decline in average occupancy and a 4.5% decline in
average rental rates for our same store portfolio due to, among other factors, the challenges
within the multifamily industry as discussed in the Executive Summary. The decrease was partially
offset by an approximate $0.4 million increase in other property revenue primarily due to increases
in revenues from our utility rebilling programs, partially offset by decreases in miscellaneous
income.
Property expenses from our same store communities decreased approximately $1.2 million, or
2.0%, for the three months ended June 30, 2010 as compared to the same period in 2009. The
decrease in same store property expenses was primarily due to lower real estate taxes as a result
of declining rates and valuations at a number of our communities and a decline in compensation
costs primarily due to lower incentive payments. These decreases were partially offset by
increases in expenses related to our utility rebilling programs and higher property insurance
costs. Excluding the expenses associated with our utility rebilling programs, same store property
expenses for this period decreased approximately $1.5 million, or 2.8%.
Property expenses from our same store communities decreased slightly for the six months ended
June 30, 2010 as compared to the same period in 2009. The decrease in same store property expenses
was primarily due to lower real estate taxes as a result of declining rates and valuations at a
number of our communities and a decline in compensation costs primarily due to lower incentive
payments. These decreases were partially offset by increases in expenses related to our utility
rebilling programs, repairs and maintenance, and higher property insurance costs. Excluding the
expenses associated with our utility rebilling programs, same store property expenses for this
period decreased approximately $0.9 million, or 0.9%.
29
Non-same store analysis
Property revenues from non-same store and development and lease-up communities increased
approximately $1.8 million and $4.1 million for the three and six months ended June 30, 2010,
respectively, as compared to the same periods in 2009. Property expenses from non-same store and
development and lease-up communities increased approximately $0.5 million and $1.2 million for the
three and six months ended June 30, 2010, respectively, as compared to the same periods in 2009.
The increases during the period were primarily due to five consolidated properties in our
re-development and development pipelines reaching stabilization during 2009, and the completion and
lease up of the remaining consolidated properties during the six months ended June 30, 2010. See
Development and Lease-Up Properties above for additional detail of occupancy at properties in our
development pipeline.
Other property analysis
Other property revenues relates primarily to retail lease income. Other property expenses
increased approximately $0.6 million and $0.9 million for the three and six months ended June 30,
2010, respectively, as compared to the same periods in 2009. The increase was primarily related to
increases in property taxes expensed on land holdings for eight projects for which we decided in
2009 to postpone development for the foreseeable future. As a result, we ceased capitalization of
expenses, including property taxes.
Non-property income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
|
|
|
June 30,
|
|
|
Change
|
|
|
June 30,
|
|
|
Change
|
|
($ in thousands)
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
Fee and asset management
|
|
$
|
2,045
|
|
|
$
|
2,244
|
|
|
$
|
(199
|
)
|
|
|
(8.9
|
)%
|
|
$
|
3,883
|
|
|
$
|
4,275
|
|
|
$
|
(392
|
)
|
|
|
(9.2
|
)%
|
Interest and other income
|
|
|
492
|
|
|
|
1,097
|
|
|
|
(605
|
)
|
|
|
(55.2
|
)
|
|
|
3,537
|
|
|
|
1,832
|
|
|
|
1,705
|
|
|
|
93.1
|
|
Income (loss) on
deferred compensation
plans
|
|
|
(3,582
|
)
|
|
|
7,660
|
|
|
|
(11,242
|
)
|
|
|
*
|
|
|
|
(100
|
)
|
|
|
3,508
|
|
|
|
(3,608
|
)
|
|
|
(102.9
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-property
income (loss)
|
|
$
|
(1,045
|
)
|
|
$
|
11,001
|
|
|
$
|
(12,046
|
)
|
|
|
(109.5
|
)%
|
|
$
|
7,320
|
|
|
$
|
9,615
|
|
|
$
|
(2,295
|
)
|
|
|
(23.9
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Not a meaningful percentage
|
Fee and asset management income decreased approximately $0.2 million and $0.4 million for the
three and six months ended June 30, 2010, respectively, as compared to the same periods in 2009.
These decreases were primarily related to declines in development and construction fees earned on
our development joint ventures in 2010 as compared to 2009 due to the completion of construction
activities at several joint venture communities in 2009 and 2010. The decrease was also the result
of lower fees earned on our stabilized joint ventures due to declines in rental income during the
three and six months ended June 30, 2010 as compared to the same periods in 2009. These decreases
were partially offset by an increase in third-party construction activities during 2010.
Interest and other income decreased approximately $0.6 million and increased approximately
$1.7 million for the three and six months ended June 30, 2010, respectively, as compared to the
same periods in 2009. The $1.7 million increase was primarily due to recognition of approximately
$2.7 million of other income relating to indemnification provisions in an operating joint venture
agreement which expired in January 2010. The increase in other income was partially offset by a
$0.5 million decrease in interest income primarily due to declines in interest income on our
mezzanine loan portfolio related to contractual reductions in interest rates on mezzanine loans for
development communities which have reached stabilization and lower balances of outstanding
mezzanine loans due in part to conversion of the mezzanine loans into additional equity interests
in certain of our joint ventures in 2009 and 2010.
Losses on deferred compensation plans were approximately $3.6 million and $0.1 million for the
three and six months ended June 30, 2010, respectively, as compared to income recognized of
approximately $7.7 million and $3.5 million for the three and six months ended June 30, 2009,
respectively. The changes were related to the performance of the investments held in deferred
compensation plans for participants and were directly offset by the expense (benefit) related to
these plans, as discussed below.
30
Other expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
|
|
|
June 30,
|
|
|
Change
|
|
|
June 30,
|
|
|
Change
|
|
($ in thousands)
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
Property management
|
|
$
|
5,022
|
|
|
$
|
4,542
|
|
|
$
|
480
|
|
|
|
10.6
|
%
|
|
$
|
10,205
|
|
|
$
|
9,471
|
|
|
$
|
734
|
|
|
|
7.8
|
%
|
Fee and asset management
|
|
|
1,262
|
|
|
|
1,303
|
|
|
|
(41
|
)
|
|
|
(3.2
|
)
|
|
|
2,456
|
|
|
|
2,438
|
|
|
|
18
|
|
|
|
0.7
|
|
General and administrative
|
|
|
7,367
|
|
|
|
7,246
|
|
|
|
121
|
|
|
|
1.7
|
|
|
|
14,771
|
|
|
|
15,478
|
|
|
|
(707
|
)
|
|
|
(4.6
|
)
|
Interest
|
|
|
31,742
|
|
|
|
34,002
|
|
|
|
(2,260
|
)
|
|
|
(6.7
|
)
|
|
|
63,297
|
|
|
|
66,247
|
|
|
|
(2,950
|
)
|
|
|
(4.5
|
)
|
Depreciation and amortization
|
|
|
42,660
|
|
|
|
43,702
|
|
|
|
(1,042
|
)
|
|
|
(2.4
|
)
|
|
|
86,278
|
|
|
|
87,500
|
|
|
|
(1,222
|
)
|
|
|
(1.4
|
)
|
Amortization of deferred
financing costs
|
|
|
713
|
|
|
|
857
|
|
|
|
(144
|
)
|
|
|
(16.8
|
)
|
|
|
1,439
|
|
|
|
1,674
|
|
|
|
(235
|
)
|
|
|
(14.0
|
)
|
Expense (benefit) on
deferred compensation plans
|
|
|
(3,582
|
)
|
|
|
7,660
|
|
|
|
(11,242
|
)
|
|
|
*
|
|
|
|
(100
|
)
|
|
|
3,508
|
|
|
|
(3,608
|
)
|
|
|
(102.9
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other expenses
|
|
$
|
85,184
|
|
|
$
|
99,312
|
|
|
$
|
(14,128
|
)
|
|
|
(14.2
|
)%
|
|
$
|
178,346
|
|
|
$
|
186,316
|
|
|
$
|
(7,970
|
)
|
|
|
(4.3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Not a meaningful percentage
|
Property management expense, which represents regional supervision and accounting costs
related to property operations, increased approximately $0.5 million and $0.7 million for the three
and six months ended June 30, 2010, respectively, as compared to the same periods in 2009. The
increase in 2010 was due to an increase in salary and benefit expenses, higher rental expense, and
an increase in marketing costs.
General and administrative expense increased approximately $0.1 million and decreased
approximately $0.7 million for the three and six months ended June 30, 2010, respectively, as
compared to the same periods in 2009. The decrease during the six months ended June 30, 2010 as
compared to 2009 was primarily due to $1.0 million in severance payments made in connection with
the reduction in force of our construction and development staff in January 2009, and a decrease in
legal costs and discretionary expenses during the six months ended June 30, 2010. These decreases
were partially offset by an increase in salary and benefit expenses, including long-term incentive
compensation, during the three and six months ended June 30, 2010 as compared to 2009. General and
administrative expenses were approximately 4.7% of total property revenues and non-property income,
excluding income (loss) on deferred compensation plans, for both the three and six months ended
June 30, 2010, and were approximately 4.5% and 4.9% of total property revenues and non-property
income, excluding income (loss) on deferred compensation plans, for the three and six months ended
June 30, 2009, respectively.
Interest expense for the three and six months ended June 30, 2010 decreased approximately $2.3
million and $3.0 million, respectively, as compared to the same periods in 2009. These decreases
were primarily due to decreases in indebtedness as a result of early retirement of outstanding debt
of approximately $325.0 million during the first six months of 2009 and payments of maturing
secured and unsecured notes payable during 2009 and 2010. Additionally, interest expense was lower
during the first six months of 2010 due to the reduction of balances outstanding on our unsecured
line of credit during the second quarter of 2009. The early retirement of outstanding debt and
reductions to the balances outstanding on our line of credit resulted in part from net proceeds
received from the completion of our equity offering during the second quarter of 2009 of
approximately $272.1 million. The decreases discussed above were partially offset by the increased
interest expense incurred on our $420 million credit facility entered into during the second
quarter of 2009. The decreases were further offset due to lower capitalized interest of
approximately $1.2 million and $2.3 million during the three and six months ended June 30, 2010,
respectively, as compared to the same periods in 2009 primarily due to our decision in fiscal year
2009 to postpone the development of land holdings for eight future projects for the foreseeable
future.
Depreciation and amortization decreased approximately $1.0 million and $1.2 million for the
three and six months ended June 30, 2010, respectively, as compared to the same periods in 2009
primarily due to more assets being fully depreciated in 2010 as compared to 2009, offset by new
development and capital improvements placed in service during 2009 and 2010.
Amortization of deferred financing costs decreased approximately $0.1 million and $0.2 million
for the three and six months ended June 30, 2010, respectively, as compared to the same periods in
2009. These decreases were primarily due to the repurchase and retirement of certain series of
notes during 2009, partially offset by additional financing costs incurred on our $420 million
credit facility entered into in the second quarter of 2009.
31
The benefit on deferred compensation plans totaled approximately $3.6 million and $0.1 million
for the three and six months ended June 30, 2010, respectively, as compared to an expense
recognized of approximately $7.7 million and $3.5 million for the three and six months ended June
30, 2009, respectively. The changes were related to the performance of the investments held in
deferred compensation plans for participants, and were directly offset by the income (loss) related
to these plans, as discussed above.
Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
|
|
|
June 30,
|
|
|
Change
|
|
|
June 30,
|
|
|
Change
|
|
($ in thousands)
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
Gain on sale of properties,
including land
|
|
$
|
236
|
|
|
$
|
|
|
|
$
|
236
|
|
|
|
100.0
|
%
|
|
$
|
236
|
|
|
$
|
|
|
|
$
|
236
|
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss on early retirement of debt
|
|
|
|
|
|
|
(2,716
|
)
|
|
|
2,716
|
|
|
|
100.0
|
|
|
|
|
|
|
|
(2,550
|
)
|
|
|
2,550
|
|
|
|
100.0
|
|
Equity in income (loss) of
joint ventures
|
|
|
(436
|
)
|
|
|
222
|
|
|
|
(658
|
)
|
|
|
*
|
|
|
|
(541
|
)
|
|
|
630
|
|
|
|
(1,171
|
)
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax expense current
|
|
|
(304
|
)
|
|
|
(347
|
)
|
|
|
(43
|
)
|
|
|
(12.4
|
)
|
|
|
(574
|
)
|
|
|
(646
|
)
|
|
|
(72
|
)
|
|
|
(11.2
|
)
|
|
|
|
*
|
|
Not a meaningful percentage
|
Loss on early retirement of debt was approximately $2.7 million and $2.6 million for the three
and six months ended June 30, 2009, respectively, primarily due to the repurchase and retirement of
approximately $317.6 million of various unsecured and secured notes from unrelated third parties
for approximately $320.3 million during the three months ended June 30, 2009. The $2.7 million
loss was partially offset by the repurchase and retirement of approximately $7.4 million of
unsecured notes from unrelated third parties for approximately $7.2 million during the three months
ended March 31, 2009. The loss on early retirement of debt includes reductions for applicable loan
costs. There was no gain or loss on early retirement of debt for the three or six months ended
June 30, 2010.
Equity in income (loss) of joint ventures decreased approximately $0.7 million and $1.2
million for the three and six months ended June 30, 2010, respectively, as compared to the same
periods in 2009. These decreases were primarily the result of declining earnings by our stabilized
operating joint ventures due to declines in rental income. The decreases were also due to certain
development joint ventures which have recognized net operating losses during the lease-up phase of
operations, offset by increases in earnings in other development joint ventures reaching or nearing
stabilization during 2009 and 2010.
We incurred entity-level taxes for our operating partnerships and other state and local taxes
totaling approximately $0.3 million for each of the three months ended June 30, 2010 and 2009, and
totaling approximately $0.6 million for each of the six months ended June 30, 2010 and 2009. The
slight decreases during the three and six months ended June 30, 2010 as compared to the same
periods in 2009 were due to lower state income taxes incurred by our taxable REIT subsidiaries.
Noncontrolling interests
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
|
|
|
June 30,
|
|
|
Change
|
|
|
June 30,
|
|
|
Change
|
|
($ in thousands)
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
|
2010
|
|
|
2009
|
|
|
$
|
|
|
%
|
|
Income allocated to
noncontrolling
interests from
continuing
operations
|
|
$
|
(364
|
)
|
|
$
|
(422
|
)
|
|
$
|
(58
|
)
|
|
|
(13.7
|
)%
|
|
$
|
(110
|
)
|
|
$
|
(943
|
)
|
|
$
|
(833
|
)
|
|
|
(88.3
|
)%
|
Income allocated to
perpetual preferred
units
|
|
|
(1,750
|
)
|
|
|
(1,750
|
)
|
|
|
|
|
|
|
|
|
|
|
(3,500
|
)
|
|
|
(3,500
|
)
|
|
|
|
|
|
|
|
|
Income allocated to noncontrolling interests from continuing operations decreased
approximately $0.8 million for the six months ended June 30, 2010 as compared to the same period in
2009. The decrease was primarily due to losses allocated to noncontrolling interests resulting
from the completion and continued lease-up of a property within a fully-consolidated joint venture
of which we retain a 25% ownership. This joint venture completed construction during the three
months ended March 31, 2010.
32
Funds from Operations (FFO)
Management considers FFO to be an appropriate measure of the financial performance of an
equity REIT. The National Association of Real Estate Investment Trusts (NAREIT) currently
defines FFO as net income (computed in accordance with GAAP), excluding gains (or losses)
associated with the sale of previously depreciated operating properties, real estate depreciation
and amortization, and adjustments for unconsolidated joint ventures. Our calculation of diluted
FFO also assumes conversion of all potentially dilutive securities, including certain
noncontrolling interests, which are convertible into common shares. We consider FFO to be an
appropriate supplemental measure of operating performance because, by excluding gains or losses on
dispositions of operating properties and depreciation, FFO can help one compare the operating
performance of a companys real estate between periods or as compared to different companies.
To facilitate a clear understanding of our consolidated historical operating results, we
believe FFO should be examined in conjunction with net income attributable to common shareholders
as presented in the condensed consolidated statements of income and comprehensive income and data
included elsewhere in this report. FFO is not defined by GAAP and should not be considered as an
alternative to net income attributable to common shareholders as an indication of our operating
performance. Additionally, FFO as disclosed by other REITs may not be comparable to our
calculation.
Reconciliations of net income attributable to common shareholders to diluted FFO for the three
and six months ended June 30, 2010 and 2009 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months
|
|
|
Six Months
|
|
|
|
Ended June 30,
|
|
|
Ended June 30,
|
|
($ in thousands)
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
Funds from operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders
|
|
$
|
2,134
|
|
|
$
|
18,315
|
|
|
$
|
4,419
|
|
|
$
|
24,549
|
|
Real estate depreciation and amortization,
including discontinued operations
|
|
|
41,579
|
|
|
|
42,863
|
|
|
|
84,218
|
|
|
|
85,873
|
|
Adjustments for unconsolidated joint ventures
|
|
|
2,298
|
|
|
|
1,961
|
|
|
|
4,461
|
|
|
|
3,877
|
|
Gain on sale of properties, including land and
discontinued operations, net of taxes
|
|
|
|
|
|
|
(16,887
|
)
|
|
|
|
|
|
|
(16,887
|
)
|
Income allocated to noncontrolling interests
|
|
|
688
|
|
|
|
321
|
|
|
|
583
|
|
|
|
742
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Funds from operations diluted
|
|
$
|
46,699
|
|
|
$
|
46,573
|
|
|
$
|
93,681
|
|
|
$
|
98,154
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares basic
|
|
|
68,090
|
|
|
|
61,499
|
|
|
|
67,287
|
|
|
|
58,542
|
|
Incremental shares issuable from assumed conversion of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common share options and awards granted
|
|
|
296
|
|
|
|
|
|
|
|
234
|
|
|
|
|
|
Common units
|
|
|
2,601
|
|
|
|
2,858
|
|
|
|
2,625
|
|
|
|
2,888
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares diluted
|
|
|
70,987
|
|
|
|
64,357
|
|
|
|
70,146
|
|
|
|
61,430
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liquidity and Capital Resources
Financial Condition and Sources of Liquidity
We intend to maintain a strong balance sheet and preserve our financial flexibility, which we
believe should enhance our ability to identify and capitalize on investment opportunities as they
become available. We intend to maintain what management believes is a conservative capital
structure by:
|
|
|
extending and sequencing the maturity dates of our debt where practicable;
|
|
|
|
managing interest rate exposure using what management believes to be prudent levels
of fixed and floating rate debt;
|
|
|
|
maintaining what management believes to be conservative coverage ratios; and
|
|
|
|
using what management believes to be a prudent combination of debt and common and
preferred equity.
|
33
Our interest expense coverage ratio, net of capitalized interest, was approximately 2.5 times
for each of the three and six months ended June 30, 2010, and approximately 2.5 and 2.6 times for
the three and six months ended June 30, 2009, respectively. Our interest expense coverage ratio is
calculated by dividing interest expense for the period into the sum of property revenues and
expenses, non-property income, other expenses, income from
discontinued operations, depreciation, amortization, and interest expense. This ratio is a
method for calculating the amount of operating cash flows available to cover interest expense. At
June 30, 2010 and 2009, approximately 72.8% and 73.2%, respectively, of our properties (based on
invested capital) were unencumbered. Our weighted average maturity of debt, including our line of
credit, was approximately 5.2 years at June 30, 2010.
Due to the instability experienced during the challenging economic environment, we believe the
strength of an economic recovery is unclear and these conditions may not improve quickly. We plan
to continue to focus on strengthening our capital and liquidity position by generating positive
cash flows from operations, reducing outstanding debt and leverage ratios, and controlling and
reducing overhead costs.
Our primary source of liquidity is cash flow generated from operations. Other sources include
the availability under our unsecured credit facility and other short-term borrowings, secured
mortgage debt, proceeds from dispositions of properties and other investments, and access to the
capital markets including our ATM share offering program. We believe our liquidity and financial
condition are sufficient to meet all of our reasonably anticipated cash flow needs during 2010
including:
|
|
|
normal recurring operating expenses;
|
|
|
|
current debt service requirements;
|
|
|
|
recurring capital expenditures;
|
|
|
|
initial funding of property developments, acquisitions, joint venture investments,
and notes receivable; and
|
|
|
|
the minimum dividend payments required to maintain our REIT qualification under the
Internal Revenue Code of 1986.
|
Factors which could increase or decrease our future liquidity include, but are not limited to,
current volatility in capital and credit markets, sources of financing, our ability to complete
asset sales, the effect our debt level and decreases in credit ratings could have on our costs of
funds and our ability to access capital markets, and changes in operating costs resulting from a
weakened economy, all of which could adversely impact occupancy and rental rates and our liquidity.
Cash Flows
Certain sources and uses of cash, such as the level of discretionary capital expenditures,
repurchases of debt and common shares, and distributions paid on our equity securities are within
our control and are adjusted as necessary based upon, among other factors, market conditions. The
following is a discussion of our cash flows for the six months ended June 30, 2010 and 2009.
Net cash from operating activities was approximately $100.0 million during the six months
ended June 30, 2010 as compared to approximately $105.7 million for the same period in 2009. The
decrease was primarily due to declines in property revenues within our same store communities
offset by an increase in revenues from certain non-same store communities reaching stabilization in
2009. The decrease in net cash from operating activities was offset by lower interest payments and
the timing of payments relating to accounts payable and accrued expenses.
Net cash used in investing activities during the six months ended June 30, 2010 totaled
approximately $28.4 million as compared to approximately $3.3 million during the six months ended
June 30, 2009. Cash outflows for property development and capital improvements were approximately
$27.9 million during the six months ended June 30, 2010 as compared to approximately $33.1 million
for the same period in 2009 due to the timing of completions of communities in our development
pipeline and a reduction in construction and development activity in 2010 as compared to 2009. The
cash outflows during the six months ended June 30, 2009 were offset primarily by proceeds received
from the sale of one operating property of approximately $28.0 million and from payments received
on notes receivable other for approximately $8.7 million.
Net cash used in financing activities totaled approximately $7.6 million for the six months
ended June 30, 2010, primarily as a result of the repayment of maturing outstanding unsecured notes
payable of approximately $57.0 million, and distributions paid to common shareholders, perpetual
preferred unit holders, and noncontrolling interest holders of approximately $66.7 million. The
cash outflows were partially offset by cash receipts of approximately $106.4 million relating to
proceeds received from the sale of approximately 2.3 million common shares under our ATM share
offering program entered into in March 2010. Cash outflows were further offset by decreases in
accounts receivable from affiliates of approximately $4.1 million relating to proceeds received
from participant withdrawals from our deferred compensation plans and approximately $4.2 million
for proceeds received from secured notes payable relating to a construction loan for a consolidated joint venture.
Net cash provided by financing activities totaled approximately $47.9 million during the six months
ended June 30, 2009, primarily due to proceeds from the issuance of a $420 million secured credit
facility entered into during the second quarter of 2009. Additionally, we received net proceeds of
approximately $272.1 million from the completion of our equity offering in May 2009. These
increases in cash flows from financing activities were offset by cash outflows of approximately
$565.2 million used for the repayment of notes payable and pay-off of all amounts outstanding on
our unsecured line of credit, and approximately $86.4 million used for distributions paid to
shareholders, perpetual preferred unit holders, and noncontrolling interest holders.
34
Financial Flexibility
We have a $600 million unsecured credit facility which matures in January 2011. The scheduled interest rate spreads are subject to change as our credit ratings
change. Advances under the line of credit may be priced at the scheduled rates, or we may enter
into bid rate loans with participating banks at rates below the scheduled rates. These bid rate loans have terms of six months or less and may not exceed the
lesser of $300 million or the remaining amount available under the line of credit. The line of
credit is subject to customary financial covenants and limitations, all of which we are in
compliance. We are currently in discussions with various lenders regarding a new unsecured credit facility to replace our existing $600 million unsecured credit facility. We believe the new unsecured credit facility will be finalized during the third quarter of 2010.
Our line of credit provides us with the ability to issue up to $100 million in letters of
credit. While our issuance of letters of credit does not increase our borrowings outstanding under
our line of credit, it does reduce the amount available. At June 30, 2010, we had outstanding
letters of credit totaling approximately $10.3 million, leaving approximately $589.7 million
available under our unsecured line of credit.
We currently have an automatic shelf registration statement on file with the SEC which allows
us to offer, from time to time, an unlimited amount of common shares, preferred shares, debt
securities, or warrants. Our declaration of trust provides we may issue up to 110 million shares of
beneficial interest, consisting of 100 million common shares and 10 million preferred shares. As of
June 30, 2010, we had approximately 67.0 million common shares outstanding, net of treasury shares
and shares held in our deferred compensation arrangements, and no preferred shares outstanding.
In March 2010, we announced the creation of an at-the-market (ATM) share offering program
through which we may, but have no obligation to, sell common shares having an aggregate offering
price of up to $250 million, in amounts and at times as we determine, into the existing trading
market at current market prices as well as through negotiated transactions. Actual sales will
depend on a variety of factors we determine from time to time, including, among others, market
conditions, the trading price of our common shares and determinations of the appropriate sources of
funding for us. During the six months ended June 30, 2010, we sold approximately 2.3 million
common shares at an average price of $46.61 per share for total net consideration of approximately
$106.4 million through the ATM share offering program. As of June 30, 2010, we had common shares
having an aggregate offering price of up to $141.8 million remaining available for sale under the
ATM program. No additional shares were sold through July 30, 2010 (the date the financial
statements were issued).
We believe our ability to access capital markets is enhanced by our senior unsecured debt
ratings by Moodys and Standard and Poors, which are currently Baa1 and BBB, respectively, with
stable outlooks, as well as by our ability to borrow on a secured basis from Fannie Mae, Freddie
Mac, and other sources. However, we may not be able to maintain our current credit ratings and may
not be able to borrow on a secured or unsecured basis in the future. The capital and credit markets
have been experiencing continued volatility. We have noted a recent increase in issuances of debt
and equity by REITs at more attractive rates. While this may be a positive sign, we are uncertain
if this level of activity will increase or continue.
Future Cash Requirements and Contractual Obligations
One of our principal long-term liquidity requirements includes the repayment of maturing debt,
including borrowings under our unsecured line of credit used to fund development and acquisition
activities. During the remainder of 2010, approximately $84.2 million of debt, including scheduled
principal amortizations, is scheduled to mature. On July 19, 2010, we repaid the remaining amounts
outstanding of our $10.0 million, 4.90% medium term notes maturing in 2010 for a total of
approximately $10.4 million, of which approximately $0.4 million
represented accrued and unpaid interest. We intend to meet our long-term liquidity
requirements through available cash balances, cash flows generated from operations, draws on our
unsecured credit facility, proceeds from property dispositions and secured mortgage notes, and the
use of debt and equity offerings under our automatic shelf registration statement, including under
our ATM share offering program.
35
In order for us to continue to qualify as a REIT we are required to distribute annual
dividends equal to a minimum of 90% of our REIT taxable income, computed without regard to the
dividends paid deduction and our net capital gains. In June 2010, we announced our Board of Trust
Managers had declared a dividend distribution of $0.45 per share to common shareholders of record
as of June 30, 2010. The dividend was subsequently paid on July 16, 2010. We paid equivalent
amounts per unit to holders of the common operating partnership units. This distribution to common
shareholders and holders of common operating partnership units equates to an annualized dividend
rate of $1.80 per share or equivalent unit.
Off-Balance Sheet Arrangements
The joint ventures in which we have an interest have been funded in part with secured,
third-party debt. We are also committed to additional funding under mezzanine loans provided to
joint ventures. We have guaranteed no more than our proportionate interest, totaling approximately
$63.5 million, of five loans utilized for construction and development activities for our joint
ventures. Our commitment to fund additional amounts under the mezzanine loans was an aggregate of
approximately $6.0 million at June 30, 2010.
Inflation
Substantially all of our apartment leases are for a term generally ranging from six to fifteen
months. In an inflationary environment, we may realize increased rents at the commencement of new
leases or upon the renewal of existing leases. The short-term nature of our leases generally
minimizes our risk from the adverse affects of inflation.
Critical Accounting Policies
Our critical accounting policies have not changed materially from information reported in our
Annual Report on Form 10-K for the year ended December 31, 2009.
Recent Accounting Pronouncements.
In December 2009, the FASB issued ASU 2009-17,
Consolidations (Topic 810) Improvements to Financial Reporting by Enterprises Involved with
Variable Interest Entities,
which codified the previously issued Statement of Financial Accounting
Standards 167,
Amendments to FASB Interpretation No. 46R.
ASU 2009-17 changes the consolidation
analysis for VIEs and requires a qualitative analysis to determine the primary beneficiary of the
VIE. The determination of the primary beneficiary of a VIE is based on whether the entity has the
power to direct matters which most significantly impact the activities of the VIE and has the
obligation to absorb losses, or the right to receive benefits, of the VIE which could potentially
be significant to the VIE. The ASU requires an ongoing reconsideration of the primary beneficiary
and also amends the events triggering a reassessment of whether an entity is a VIE. ASU 2009-17
requires additional disclosures for VIEs, including disclosures about a reporting entitys
involvement with VIEs, how a reporting entitys involvement with a VIE affects the reporting
entitys financial statements, and significant judgments and assumptions made by the reporting
entity to determine whether it must consolidate the VIE. ASU 2009-17 was effective for us beginning
January 1, 2010. Our adoption of ASU 2009-17 did not have a material effect on our financial
statements, but could potentially have a material impact on future reconsideration events and
subsequent reassessment of VIE status.
36
Item 3. Quantitative and Qualitative Disclosures About Market Risk
No material changes to our exposures to market risk have occurred since our Annual Report on
Form 10-K for the year ended December 31, 2009.
Item 4. Controls and Procedures
Evaluation of disclosure controls and procedures.
We carried out an evaluation, under the
supervision and with the participation of our management, including the Chief Executive Officer and
Chief Financial Officer, of the effectiveness of our disclosure controls and procedures as of the
end of the period covered by this report pursuant to Securities Exchange Act (Exchange Act) Rules
13a-15(e) and 15d-15(e). Based on the evaluation, the Chief Executive Officer and Chief Financial
Officer concluded the disclosure controls and procedures as of the end of the period covered by
this report are effective to ensure information required to be disclosed by us in our Exchange Act
filings is recorded, processed, summarized, and reported within the periods specified in the
Securities and Exchange Commissions rules and forms.
Changes in internal controls
. There were no changes in our internal control over financial
reporting (identified in connection with the evaluation required by paragraph (d) in Rules 13a-15
and 15d-15 under the Exchange Act) during our most recent fiscal quarter which have materially
affected, or are reasonably likely to materially affect, our internal control over financial
reporting.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
For discussion regarding legal proceedings, see Note 11, Commitments and Contingencies, to
the condensed consolidated financial statements.
Item 1A. Risk Factors
There have been no material changes to the Risk Factors previously disclosed in Item 1A in our
Annual Report on Form 10-K for the year ended December 31, 2009.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
None
Item 3. Defaults Upon Senior Securities
None
Item 4. Reserved
Item 5. Other Information
None
37
Item 6. Exhibits
(a) Exhibits
|
|
|
|
|
10.1
|
|
|
Form of Amendment No. 1 to Amended and Restated Master Exchange Agreement (Trust
Managers) effective November 27, 2007
|
|
|
|
|
10.2
|
|
|
Form of Amendment No. 1 to Amended and Restated Master Exchange Agreement (Key
Employees) effective November 27, 2007
|
|
|
|
|
10.3
|
|
|
Form of First Amendment to Credit Agreement, dated as of January 18, 2006, among Camden
Property Trust and Bank of America, N.A. on behalf of itself and the Lenders
|
|
|
|
|
10.4
|
|
|
Master Credit Agreement, dated as of September 24, 2008, among CSP Community Owner,
LLC, CPT Community Owner, LLC, and Red Mortgage Capital, Inc. (1)
|
|
|
|
|
10.5
|
|
|
Form of Master Credit Facility Agreement, dated as of April 17, 2009, among Summit
Russett, LLC, 2009 CPT Community Owner, LLC, 2009 CUSA Community Owner, LLC, 2009 CSP
Community Owner LLC, and 2009 COLP Community Owner, LLC, as borrowers, Camden Property
Trust, as guarantor, and Red Mortgage Capital, Inc., as lender (1)
|
|
|
|
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31.1
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|
|
Certification pursuant to Rule 13a-14(a) of Chief Executive Officer dated July 30, 2010.
|
|
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|
31.2
|
|
|
Certification pursuant to Rule 13a-14(a) of Chief Financial Officer dated July 30, 2010.
|
|
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32.1
|
|
|
Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes Oxley Act of 2002.
|
|
|
|
|
101.INS
|
|
XBRL Instance Document
|
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
|
|
(1)
|
|
Portions of the exhibit have been omitted pursuant to a request for confidential treatment.
|
38
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on our behalf by the undersigned thereunto duly authorized.
|
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CAMDEN PROPERTY TRUST
|
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/s/ Michael P. Gallagher
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July 30, 2010
|
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|
Michael P. Gallagher
|
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Date
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Vice President Chief Accounting Officer
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39
Exhibit Index
|
|
|
|
|
Exhibit
|
|
Description of Exhibits
|
10.1
|
|
|
Form of Amendment No. 1 to Amended and Restated Master Exchange Agreement (Trust
Managers) effective November 27, 2007
|
|
|
|
|
10.2
|
|
|
Form of Amendment No. 1 to Amended and Restated Master Exchange Agreement (Key
Employees) effective November 27, 2007
|
|
|
|
|
10.3
|
|
|
Form of First Amendment to Credit Agreement, dated as of January 18, 2006, among Camden
Property Trust and Bank of America, N.A. on behalf of itself and the Lenders
|
|
|
|
|
10.4
|
|
|
Master Credit Agreement, dated as of September 24, 2008, among CSP Community Owner,
LLC, CPT Community Owner, LLC, and Red Mortgage Capital, Inc. (1)
|
|
|
|
|
10.5
|
|
|
Form of Master Credit Facility Agreement, dated as of April 17, 2009, among Summit
Russett, LLC, 2009 CPT Community Owner, LLC, 2009 CUSA Community Owner, LLC, 2009 CSP
Community Owner LLC, and 2009 COLP Community Owner, LLC, as borrowers, Camden Property
Trust, as guarantor, and Red Mortgage Capital, Inc., as lender. (1)
|
|
|
|
|
31.1
|
|
|
Certification pursuant to Rule 13a-14(a) of Chief Executive Officer dated July 30, 2010.
|
|
|
|
|
31.2
|
|
|
Certification pursuant to Rule 13a-14(a) of Chief Financial Officer dated July 30, 2010.
|
|
|
|
|
32.1
|
|
|
Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes Oxley Act of 2002.
|
|
|
|
|
101.INS
|
|
XBRL Instance Document
|
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
|
|
(1)
|
|
Portions of the exhibit have been omitted pursuant to a request for confidential
treatment.
|
Exhibit 10.4
EXECUTION VERSION
MASTER CREDIT FACILITY AGREEMENT
BY AND AMONG
CSP COMMUNITY OWNER, LLC,
CPT COMMUNITY OWNER, LLC
AND
RED MORTGAGE CAPITAL, INC.
DATED AS OF
September 24, 2008
Master Credit Facility Agreement
Camden 2008
TABLE OF CONTENTS
|
|
|
|
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|
|
Page
|
|
|
|
|
|
|
ARTICLE 1 THE COMMITMENT
|
|
|
2
|
|
Section 1.01. The Commitment
|
|
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2
|
|
Section 1.02. Requests for Advances
|
|
|
2
|
|
Section 1.03. Maturity Date of Advances; Amortization
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|
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3
|
|
Section 1.04. Interest on Advances
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|
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4
|
|
Section 1.05. Coupon Rates for Advances
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|
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5
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|
Section 1.06. Notes
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5
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|
Section 1.07. Reserved
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6
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|
Section 1.08. Conversion from Variable Facility Commitment to Fixed Facility Commitment
|
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6
|
|
Section 1.09. Limitations on Right to Convert
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6
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|
Section 1.10. Conditions to Conversion
|
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|
7
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|
Section 1.11. Yield Maintenance
|
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7
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|
Section 1.12. Interest Rate Cap
|
|
|
7
|
|
ARTICLE 2 THE ADVANCES
|
|
|
7
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|
Section 2.01. Rate Setting for an Advance
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7
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|
Section 2.02. DMBS Refinance Confirmation Form for Rollover Variable Advances
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8
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|
Section 2.03. Breakage and other Costs
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|
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8
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|
Section 2.04. Advances
|
|
|
9
|
|
Section 2.05. Determination of Allocable Facility Amount and Valuations
|
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9
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|
Section 2.06. Future Advances Made on Increased Values
|
|
|
10
|
|
ARTICLE 3 COLLATERAL CHANGES
|
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11
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Section 3.01. Right to Add Collateral
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11
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|
Section 3.02. Procedure for Adding Collateral
|
|
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11
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|
Section 3.03. Right to Obtain Releases of Collateral
|
|
|
12
|
|
Section 3.04. Procedure for Obtaining Releases of Collateral
|
|
|
12
|
|
Section 3.05. Right to Substitutions
|
|
|
13
|
|
Section 3.06. Procedure for Substitutions
|
|
|
14
|
|
Section 3.07. Substitution Deposit
|
|
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15
|
|
ARTICLE 4 INCREASE OF CREDIT FACILITY
|
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|
17
|
|
Section 4.01. Right to Increase Commitment
|
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17
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|
Section 4.02. Procedure for Obtaining Increases in Commitment
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17
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|
Section 4.03. Closing
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17
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|
ARTICLE 5 TERMINATION OF FACILITIES
|
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|
18
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Section 5.01. Right to Complete or Partial Termination of Facilities
|
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18
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|
Section 5.02. Procedure for Complete or Partial Termination of Facilities
|
|
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18
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|
Section 5.03. Right to Terminate Credit Facility
|
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|
18
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|
Section 5.04. Procedure for Terminating Credit Facility
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|
|
19
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|
Master Credit Facility Agreement
Camden 2008
i
|
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|
|
ARTICLE 6 CONDITIONS PRECEDENT TO ALL REQUESTS
|
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|
19
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|
Section 6.01. Conditions Applicable to All Requests
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19
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Section 6.02. Conditions Precedent to Initial Advance
|
|
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21
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|
Section 6.03. Conditions Precedent to Future Advances
|
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21
|
|
Section 6.04. Conditions Precedent to Addition of an Additional Mortgaged Property to the
Collateral Pool
|
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22
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|
Section 6.05. Conditions Precedent to Release of Property from the Collateral Pool
|
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24
|
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Section 6.06. Conditions Precedent to Substitutions
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25
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|
Section 6.07. Conditions Precedent to Increase in Commitment
|
|
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26
|
|
Section 6.08. Conditions Precedent to Conversion
|
|
|
26
|
|
Section 6.09. Conditions Precedent to Complete or Partial Termination of Facilities
|
|
|
27
|
|
Section 6.10. Conditions Precedent to Termination of Credit Facility
|
|
|
27
|
|
Section 6.11. Delivery of Opinion Relating to Advance Request, Addition Request,
Substitution Request, Conversion Request or Expansion Request
|
|
|
28
|
|
Section 6.12. Delivery of Property-Related Documents
|
|
|
28
|
|
Section 6.13. Additional Collateral
|
|
|
29
|
|
Section 6.14. Reserved
|
|
|
30
|
|
Section 6.15. Letters of Credit
|
|
|
30
|
|
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
|
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|
31
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|
Section 7.01. Representations and Warranties of Borrower
|
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31
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|
Section 7.02. Representations and Warranties of Lender
|
|
|
32
|
|
ARTICLE 8 AFFIRMATIVE COVENANTS OF BORROWER AND GUARANTOR
|
|
|
32
|
|
Section 8.01. Compliance with Agreements
|
|
|
32
|
|
Section 8.02. Maintenance of Existence
|
|
|
32
|
|
Section 8.03. Financial Statements; Accountants Reports; Other Information
|
|
|
33
|
|
Section 8.04. Access to Records; Discussions With Officers and Accountants
|
|
|
36
|
|
Section 8.05. Certificate of Compliance
|
|
|
36
|
|
Section 8.06. Maintain Licenses
|
|
|
37
|
|
Section 8.07. Inform Lender of Material Events
|
|
|
37
|
|
Section 8.08. Compliance with Applicable Law
|
|
|
38
|
|
Section 8.09. Alterations to the Mortgaged Properties
|
|
|
38
|
|
Section 8.10. Loan Document Taxes
|
|
|
39
|
|
Section 8.11. Further Assurances
|
|
|
39
|
|
Section 8.12. Transfer of Ownership Interests in Borrower or Guarantor
|
|
|
40
|
|
Section 8.13. Transfer of Ownership of Mortgaged Property
|
|
|
41
|
|
Section 8.14. Consent to Prohibited Transfers
|
|
|
42
|
|
Section 8.15. Date-Down Endorsements
|
|
|
43
|
|
Section 8.16. Ownership of Mortgaged Properties
|
|
|
43
|
|
Section 8.17. Compliance with Net Worth Test
|
|
|
43
|
|
Section 8.18. Compliance with Liquidity Test
|
|
|
43
|
|
Section 8.19. Change in Property Manager
|
|
|
44
|
|
Section 8.20. Single Purpose Entity
|
|
|
44
|
|
Section 8.21. ERISA
|
|
|
44
|
|
Master Credit Facility Agreement
Camden 2008
ii
|
|
|
|
|
Section 8.22. Consents or Approvals
|
|
|
44
|
|
Section 8.23. Post-Closing Obligations
|
|
|
44
|
|
ARTICLE 9 NEGATIVE COVENANTS OF BORROWER
|
|
|
45
|
|
Section 9.01. Other Activities
|
|
|
45
|
|
Section 9.02. Liens
|
|
|
45
|
|
Section 9.03. Indebtedness
|
|
|
45
|
|
Section 9.04. Principal Place of Business
|
|
|
46
|
|
Section 9.05. Condominiums
|
|
|
46
|
|
Section 9.06. Restrictions on Distributions
|
|
|
46
|
|
Section 9.07. No Hedging Arrangements
|
|
|
46
|
|
Section 9.08. Confidentiality of Certain Information
|
|
|
46
|
|
ARTICLE 10 FEES
|
|
|
47
|
|
Section 10.01. Reserved
|
|
|
47
|
|
Section 10.02. Reserved
|
|
|
47
|
|
Section 10.03. Origination Fees
|
|
|
47
|
|
Section 10.04. Due Diligence Fees
|
|
|
47
|
|
Section 10.05. Legal Fees and Expenses
|
|
|
48
|
|
Section 10.06. Failure to Close any Request
|
|
|
48
|
|
ARTICLE 11 EVENTS OF DEFAULT
|
|
|
48
|
|
Section 11.01. Events of Default
|
|
|
48
|
|
ARTICLE 12 REMEDIES
|
|
|
51
|
|
Section 12.01. Remedies; Waivers
|
|
|
51
|
|
Section 12.02. Waivers; Rescission of Declaration
|
|
|
51
|
|
Section 12.03. Lenders Right to Protect Collateral and Perform Covenants and Other
Obligations
|
|
|
51
|
|
Section 12.04. No Remedy Exclusive
|
|
|
52
|
|
Section 12.05. No Waiver
|
|
|
52
|
|
Section 12.06. No Notice
|
|
|
52
|
|
ARTICLE 13 INSURANCE, REAL ESTATE TAXES AND REPLACEMENT RESERVES
|
|
|
52
|
|
Section 13.01. Insurance and Real Estate Taxes
|
|
|
52
|
|
Section 13.02. Replacement Reserves
|
|
|
53
|
|
Section 13.03. Completion/Repair Reserves
|
|
|
53
|
|
Section 13.04. Tax Escrows Letter of Credit
|
|
|
54
|
|
ARTICLE 14 LIMITS ON PERSONAL LIABILITY
|
|
|
56
|
|
Section 14.01. Personal Liability to Borrower
|
|
|
56
|
|
Section 14.02. Additional Borrowers
|
|
|
58
|
|
Section 14.03. Borrower Agency Provisions
|
|
|
58
|
|
Section 14.04. Joint and Several Obligation; Cross-Guaranty
|
|
|
59
|
|
Section 14.05. Waivers With Respect to Other Borrower Secured Obligation
|
|
|
59
|
|
Section 14.06. No Impairment
|
|
|
64
|
|
Section 14.07. Election of Remedies
|
|
|
64
|
|
Section 14.08. Subordination of Other Obligations
|
|
|
65
|
|
Section 14.09. Insolvency and Liability of Other Borrower
|
|
|
65
|
|
Master Credit Facility Agreement
Camden 2008
iii
|
|
|
|
|
Section 14.10. Preferences, Fraudulent Conveyances, Etc.
|
|
|
66
|
|
Section 14.11. Maximum Liability of Each Borrower
|
|
|
66
|
|
Section 14.12. Liability Cumulative; References to California Law
|
|
|
67
|
|
ARTICLE 15 MISCELLANEOUS PROVISIONS
|
|
|
67
|
|
Section 15.01. Counterparts
|
|
|
67
|
|
Section 15.02. Amendments, Changes and Modifications
|
|
|
67
|
|
Section 15.03. Payment of Costs, Fees and Expenses
|
|
|
68
|
|
Section 15.04. Payment Procedure
|
|
|
69
|
|
Section 15.05. Payments on Business Days
|
|
|
69
|
|
Section 15.06. Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial
|
|
|
69
|
|
Section 15.07. Severability
|
|
|
70
|
|
Section 15.08. Notices
|
|
|
71
|
|
Section 15.09. Further Assurances and Corrective Instruments
|
|
|
73
|
|
Section 15.10. Term of this Agreement
|
|
|
73
|
|
Section 15.11. Assignments; Third Party Rights
|
|
|
73
|
|
Section 15.12. Headings
|
|
|
74
|
|
Section 15.13. General Interpretive Principles
|
|
|
74
|
|
Section 15.14. Interpretation
|
|
|
74
|
|
Section 15.15. Standards for Decisions, Etc.
|
|
|
74
|
|
Section 15.16. Decisions in Writing
|
|
|
75
|
|
Section 15.17. Requests
|
|
|
75
|
|
Section 15.18. Conflicts Between Agreements
|
|
|
75
|
|
Master Credit Facility Agreement
Camden 2008
iv
EXHIBITS
|
|
|
EXHIBIT A
|
|
Schedule of Initial Mortgaged Properties and Initial Valuations
|
EXHIBIT B
|
|
RESERVED
|
EXHIBIT C
|
|
RESERVED
|
EXHIBIT D
|
|
RESERVED
|
EXHIBIT E
|
|
Confirmation of Guaranty
|
EXHIBIT F
|
|
Compliance Certificate
|
EXHIBIT G-1
|
|
Borrower Organizational Certificate
|
EXHIBIT G-2
|
|
Guarantor Organizational Certificate
|
EXHIBIT H
|
|
Conversion Request
|
EXHIBIT I
|
|
Master Credit Facility Agreement Conversion Amendment
|
EXHIBIT J
|
|
Rate Form
|
EXHIBIT K
|
|
RESERVED
|
EXHIBIT L
|
|
Advance Request
|
EXHIBIT M
|
|
Request (Addition/Release)
|
EXHIBIT N
|
|
Confirmation of Obligations
|
EXHIBIT O
|
|
Expansion Request
|
EXHIBIT P
|
|
Facility Termination Request
|
EXHIBIT Q
|
|
Amendment to Master Credit Facility Agreement
|
EXHIBIT R
|
|
Credit Facility Termination Request
|
EXHIBIT S
|
|
RESERVED
|
EXHIBIT T
|
|
RESERVED
|
EXHIBIT U
|
|
Cash Collateral, Security and Custody Agreement
|
EXHIBIT V-1
|
|
Letter of Credit (Foreign)
|
EXHIBIT V-2
|
|
Letter of Credit (Domestic)
|
EXHIBIT W-1
|
|
Bank Legal Opinion (Foreign)
|
EXHIBIT W-2
|
|
Bank Legal Opinion (Domestic)
|
EXHIBIT X
|
|
Form of Rent Roll
|
|
|
|
APPENDIX I
|
|
Definitions
|
|
|
|
SCHEDULE I
|
|
List of Borrowers
|
Master Credit Facility Agreement
Camden 2008
v
MASTER CREDIT FACILITY AGREEMENT
THIS MASTER CREDIT FACILITY AGREEMENT is made as of the 24th day of September, 2008, by and
among (i) CSP COMMUNITY OWNER, LLC and CPT COMMUNITY OWNER, LLC, each as borrower hereunder; (ii)
RED MORTGAGE CAPITAL, INC., an Ohio corporation; and (iii) CAMDEN PROPERTY TRUST, a Real Estate
Investment Trust organized under the laws of the State of Texas and CAMDEN SUMMIT PARTNERSHIP,
L.P., a Delaware limited partnership organized under the laws of the State of Delaware.
RECITALS
A. Borrower owns one (1) or more Multifamily Residential Properties (unless otherwise defined
or the context clearly indicates otherwise, capitalized terms shall have the meanings ascribed to
such terms in Appendix I of this Agreement) as more particularly described in
Exhibit A
to
this Agreement.
B. Borrower has requested that Lender establish a $380,000,000 Credit Facility in favor of
Borrower, comprised initially of (a) a $175,000,000 Variable Facility, all or part of which can be
converted to a Fixed Facility in accordance with, and subject to, the terms and conditions of this
Agreement and (b) a $205,000,000 Fixed Facility.
C. To secure the obligations of Borrower under this Agreement and the other Loan Documents
issued in connection with the Credit Facility, Borrower shall create a Collateral Pool in favor of
Lender. The Collateral Pool shall be comprised of (i) the Multifamily Residential Properties
listed on
Exhibit A
and (ii) any other collateral pledged to Lender from time to time by
Borrower pursuant to this Agreement or any other Loan Documents.
D. Each Note and Security Document related to the Mortgaged Properties comprising the
Collateral Pool shall be cross-defaulted (
i.e.
, a default under any Note, Security Document
relating to the Collateral Pool and under this Agreement, shall constitute a default under each
Note, Security Document and this Agreement related to the Mortgaged Properties comprising the
Collateral Pool) and cross-collateralized (
i.e.
, each Security Instrument related to the
Mortgaged Properties within the Collateral Pool shall secure all of Borrowers obligations under
this Agreement and the other Loan Documents) and it is the intent of the parties to this Agreement
that, after an Event of Default, Lender may accelerate any Note without needing to accelerate any
other Note and that in the exercise of its rights and remedies under the Loan Documents, Lender
may, except as provided in this Agreement, exercise and perfect any and all of its rights in and
under the Loan Documents with regard to any Mortgaged Property without needing to exercise and
perfect its rights and remedies with respect to any other Mortgaged Property and that any such
exercise shall be without regard to the Allocable Facility Amount assigned to such Mortgaged
Property and that Lender may recover an amount equal to the full
Master Credit Facility Agreement
Camden 2008
amount outstanding in respect of any of the Notes in connection with such exercise and any
such amount shall be applied as determined by Lender in its sole and absolute discretion.
E. Subject to the terms, conditions and limitations of this Agreement, Lender has agreed to
establish the Credit Facility.
NOW, THEREFORE, Borrower, Lender, Camden and Camden Summit in consideration of the mutual
promises and agreements contained in this Agreement, hereby agree as follows:
ARTICLE 1
THE COMMITMENT
Section 1.01.
The Commitment.
Subject to the terms, conditions and limitations of this Agreement:
(a)
Variable Facility Commitment
. Subject to the provisions of
Section 2.06
,
Lender agrees to make Variable Advances to Borrower from time to time during the Variable Facility
Availability Period. The aggregate principal balance of the Variable Advances Outstanding at any
time shall not exceed the Variable Facility Commitment. Except during such time as one Mortgaged
Property remains in the Collateral Pool, no Variable Advances shall be made, or be permitted to
remain Outstanding unless the aggregate of Variable Advances Outstanding is at least $25,000,000.
The borrowing of a Variable Advance shall permanently reduce the Variable Facility Commitment by
the original principal amount of such Variable Advance. Borrower may not re-borrow any part of the
Variable Advance which it has previously borrowed and repaid. Except as set forth in
Section
2.06
of this Agreement, no Variable Advances shall be made as a result of increases in the
Valuation of any Mortgaged Property.
(b)
Fixed Facility Commitment
. Subject to the provisions of
Section 2.06
,
Lender agrees to make Fixed Advances to Borrower from time to time during the Fixed Facility
Availability Period. The aggregate original principal of the Fixed Advances shall not exceed the
Fixed Facility Commitment. The borrowing of a Fixed Advance shall permanently reduce the Fixed
Facility Commitment by the original principal amount of such Fixed Advance. Borrower may not
re-borrow any part of the Fixed Advance which it has previously borrowed and repaid. Except as set
forth in
Section 2.06
, no Fixed Advances shall be made as a result of increases in the
Valuation of any Mortgaged Property.
Section 1.02.
Requests for Advances
.
Borrower shall request an Advance by giving Lender an Advance Request in accordance with
Section 6.01
. The Advance Request shall indicate whether the Request is for a Fixed
Advance, a Variable Advance or both.
Master Credit Facility Agreement
Camden 2008
2
Section 1.03.
Maturity Date of Advances; Amortization
.
(a)
Variable Advances; Amortization
. The maturity date of each Variable Advance shall
be the earlier of (i) the Variable Facility Termination Date, (ii) the maturity date of the
applicable outstanding DMBS, or (iii) such other maturity date referenced in any Variable Facility
Note. The maturity date of any Variable Advance shall be specified by Borrower for such Variable
Advance, provided that such maturity date shall be no earlier than the date that is the first day
of the month following the date five (5) years after the Closing Date of such Variable Advance and
not later than the Variable Facility Termination Date, except as permitted in
Section 2.06
.
Not less than thirty (30) Business Days prior to the maturity date of the applicable outstanding
DMBS, the relevant Borrower may request that the Variable Advance backing the outstanding DMBS be
refinanced through the sale of a new DMBS using the DMBS Refinance Request Form (in the form
attached to the Variable Facility Note) or converted to a Fixed Advance which, in each instance
shall take effect on the maturity date of the outstanding DMBS and shall be funded by the sale of a
single DMBS, in an amount sufficient to fund the aggregate outstanding principal balance of such
Variable Advance. No Borrower may refinance any Variable Advance on or after the Variable Facility
Termination Date. The DMBS Issue Date shall be the first day of the month in which the DMBS is
issued, and the maturity date of the DMBS funding each Variable Advance shall be specified by
Borrower in its Advance Request, which date shall be three, six or nine full months after the DMBS
Issue Date; provided, however, in connection with a release or an addition of a Mortgaged Property
and subject to Borrowers payment to Lender of an administrative fee of $1,500, the maturity date
of the DMBS funding a Variable Advance shall be one or two full months after the DMBS Issue Date.
For these purposes, a year shall be deemed to consist of twelve (12) 30-day months. For
example, the date which completes three full months after September 1 shall be December 1; and the
date which completes three full months after January 1 shall be April 1. The Indebtedness extended
to Borrower hereunder through Variable Advances shall not require amortization.
(b)
Fixed Advances; Amortization
. The maturity date of any Fixed Advance shall be
specified by Borrower for such Fixed Advance, provided that such maturity date shall be no earlier
than the date that is the first day of the month following the date five (5) years after the
Closing Date of such Fixed Advance, provided that no maturity date shall be after October 1, 2019.
Fixed Advances shall be payable interest only and shall not require amortization.
(c)
Prepayment
.
(i) Fixed Advances are not prepayable at any time, provided that, notwithstanding the
foregoing, Borrower may prepay all or a portion of any Fixed Advance pursuant to the yield
maintenance provisions of the Fixed Facility Note.
Master Credit Facility Agreement
Camden 2008
3
(ii) Subject to the terms and conditions of the Variable Facility Note, the Indebtedness
extended to Borrowers hereunder through Variable Advances is prepayable in whole or in part at any
time.
Section 1.04.
Interest on Advances
.
(a)
Partial Month Interest
. Notwithstanding anything to the contrary in this
Section 1.04
, if an Advance is not made on the first day of a calendar month, and the DMBS
Issue Date is the first day of the month following the month in which the Advance is made, Borrower
shall pay interest on the original stated principal amount of the Advance for the partial month
period commencing on the Closing Date for the Advance and ending on the last day of the calendar
month in which the Closing Date occurs. Borrower shall pay interest for such partial month on any
Variable Advance at a rate per annum equal to the greater of (1) the Coupon Rate as determined in
accordance with
Section 1.05
and (2) a rate determined by Lender, based on Lenders cost of
funds and approved at least three (3) Business Days prior to such Advance, in writing, by Borrower,
and (3) Fixed Advance at a rate, per annum equal to the greater of (i) the interest rate described
in subsection (c)(i) of this
Section 1.04
and (ii) a rate determined by Lender, based on
Lenders cost of funds, and approved at least three (3) Business Days prior to such Advance, in
writing, by Borrower.
(b)
Variable Advances
.
(i)
Discount
. Subject to
Section 1.04(a)
, each Variable Advance shall be a
discount loan. The original stated principal amount of a Variable Advance shall be the sum of the
Price and the Discount. The Price and Discount of each Variable Advance shall be determined in
accordance with the procedures set forth in
Section 1.03
. The proceeds of the Variable
Advance made available by Lender to Borrower will equal the Price. Borrower shall pay to Lender,
in advance of Lender making the initial Variable Advance requested by Borrower, the entire Discount
for the Variable Advance as estimated by or determined by Lender. With respect to any subsequent
Variable Advances, Borrower shall pay to Lender the Discount for the Variable Advance in monthly
installments. Each monthly installment shall be equal to the product of (1) a fraction with one as
the numerator and the number of months in the term of the applicable DMBS as the denominator,
multiplied by (2) the Discount calculated on the applicable then Outstanding DMBS (for example, if
the DMBS term is three (3) months and the entire Discount is $100,000, such monthly installments
shall equal one third (1/3) of the entire Discount (
i.e.
$33,333). The first installment
shall be payable on or prior to the Closing Date of such Variable Advance. Subsequent installments
shall be payable on the first day of each calendar month, commencing on the first day of the second
full calendar month following the DMBS Issue Date, to the first day of the month prior to the
maturity date of such DMBS.
(ii)
Variable Facility Fee
. In addition to paying the Discount and the partial month
interest, if any, Borrower shall pay monthly installments of the Variable Facility Fee to Lender
for each Variable Advance Outstanding from the applicable DMBS Issue Date to
Master Credit Facility Agreement
Camden 2008
4
its maturity date. The Variable Facility Fee shall be payable in advance, in accordance with
the terms of the Variable Facility Note. The first installment shall be payable on or prior to the
Closing Date for the Variable Advance and shall apply to the first full calendar month of the DMBS
issued in connection with such Variable Advance. Subsequent installments shall be payable on the
first day of each calendar month, commencing on the first day of the second full calendar month of
such DMBS, to its maturity date. Each installment of the Variable Facility Fee shall be in an
amount equal to the product of (1) the Variable Facility Fee, (2) the Variable Advance Outstanding,
and (3) 1/12.
(c)
Fixed Advances
.
(i)
Annual Interest Rate
. Each Fixed Advance shall bear interest at a rate, per
annum, equal to the Cash Interest Rate for such Fixed Advance.
(ii)
Monthly Payment
. In addition to paying the partial month interest, if any,
Borrower shall pay monthly installments of the Cash Interest Rate to Lender for each Fixed Advance
from the first day of the month following the Closing Date for such Advance, to its maturity date.
The Cash Interest Rate shall be payable in arrears, in accordance with the terms of the Fixed
Facility Note. The first installment shall be payable on the first day of each calendar month,
commencing on the first day of the second full calendar month of such Advance, to its maturity
date.
Section 1.05.
Coupon Rates for Advances
.
(a)
Variable Advances.
The Coupon Rate applicable to a Variable Advance shall mean
the sum of (1) an imputed interest rate as determined by Lender (rounded to three places) payable
for the DMBS pursuant to the DMBS Commitment (
DMBS Imputed Interest Rate
) and (2) the
Variable Facility Fee.
(b)
Fixed Advances
. The Coupon Rate applicable to a Fixed Advance shall be the rate
of interest applicable to such Fixed Advance pursuant to
Section 1.11
.
Section 1.06.
Notes
.
(a)
Variable Advances
. The obligation of Borrower to repay the Variable Advances
shall be evidenced by the Variable Facility Notes. The Variable Facility Notes shall be payable to
the order of Lender and shall be made in the original principal amount of each Variable Advance.
(b)
Fixed Advances
. The obligation of Borrower to repay the Fixed Advances shall be
evidenced by the Fixed Facility Notes. The Fixed Facility Notes shall be payable to the order of
Lender and shall be made in the original principal amount of each Fixed Advance.
Master Credit Facility Agreement
Camden 2008
5
Section 1.07.
Reserved
.
Section 1.08.
Conversion from Variable Facility Commitment to Fixed Facility Commitment
.
Except as provided in
Section 1.09
, Borrower shall have the right, from time to time
during the Fixed Facility Availability Period, or thereafter with the prior written consent of
Lender, to convert all or any portion of the Variable Facility Commitment to the Fixed Facility
Commitment. The Variable Facility Commitment shall automatically be reduced by, and the Fixed
Facility Commitment shall be automatically increased by, the amount of each conversion. Borrower
shall not be required to pay any fee maintenance in connection with any such conversion.
(a)
Request
. To convert all or a portion of the Variable Facility Commitment to the
Fixed Facility Commitment, Borrower shall deliver a Conversion Request to Lender. Each Conversion
Request shall designate (1) the amount of the Variable Facility Commitment to be converted, and (2)
any Variable Advances Outstanding that will be prepaid on or before the Closing Date for the
conversion as required by
Section 1.09
.
(b)
Closing
. Subject to
Section 1.09
and provided that all conditions
contained in
Section 1.10
are satisfied, Lender shall permit the requested conversion to
close at offices designated by Lender on a Closing Date selected by Lender, and occurring on the
maturity date of the applicable outstanding DMBS within thirty (30) Business Days after Lenders
receipt of the Conversion Request (or on such other date as Borrower and Lender may agree). At the
closing, Lender and Borrower shall execute and deliver, at the sole cost and expense of Borrower,
in form and substance satisfactory to Lender, the Conversion Documents.
(c)
Minimum Remaining Amount of Variable Advances
. After the closing of any
conversion, if any Variable Advances remain Outstanding, the minimum aggregate principal amount
Outstanding of such remaining Variable Advances shall be not less than $25,000,000, subject to
Section 1.01(a)
of this Agreement. If the aggregate principal amount Outstanding of
Variable Advances is less than $25,000,000, such Variable Advances must be converted to Fixed
Advances pursuant to the terms of this Section and
Sections 1.09
and
1.10
.
Section 1.09.
Limitations on Right to Convert
.
Borrowers right to convert all or any portion of the Variable Facility Commitment to the
Fixed Facility Commitment is subject to the following limitations:
(a)
Closing Date
. The Closing Date shall occur during the Fixed Facility Availability
Period.
(b)
Minimum Request
. Each Conversion Request shall be in the minimum amount of
$5,000,000.
Master Credit Facility Agreement
Camden 2008
6
(c)
Obligation to Prepay Variable Advances
. Borrower shall prepay any difference by
which, after the conversion, the aggregate unpaid principal balance of all Variable Advances
Outstanding will exceed the Variable Facility Commitment, unless otherwise agreed to by Lender.
Section 1.10.
Conditions to Conversion
.
The conversion of all or any portion of the Variable Facility Commitment to the Fixed Facility
Commitment is subject to the satisfaction, on or before the Closing Date, of the conditions
precedent contained in
Section 6.08
and
Section 6.11
and all applicable General
Conditions contained in
Section 6.01
.
Section 1.11.
Yield Maintenance
.
At such time as Borrower requests the first Fixed Advance, or, if prior in time, elects to
convert all or a portion of the Variable Facility Commitment to a Fixed Facility Commitment,
Borrower shall select yield maintenance with respect to Fixed Advances. Borrower shall notify
Lender of such selection on the Advance Request for the first Fixed Advance or on the first
Conversion Request, as applicable. The terms and conditions of yield maintenance are contained in
the Fixed Facility Notes. The selection of Borrower as to yield maintenance made at the time of
the first Advance Request for a Fixed Advance or the first Conversion Request shall apply to all
Fixed Advances made pursuant to this Agreement.
Section 1.12.
Interest Rate Cap.
To protect against fluctuations in interest rates during the term, pursuant to the terms of
the Pledge, Interest Rate Cap Agreement, Borrower shall make arrangements for a Three-Month
LIBOR-based interest rate cap in form and substance satisfactory to Lender with a counterparty
satisfactory to Lender (
Interest Rate Cap
) to be in place and maintained at all times
with respect to the portion of the Variable Facility Commitment which has been funded and remains
Outstanding. As set forth in the Pledge, Interest Rate Cap Agreement, Borrower agrees to pledge
its right, title and interest in the Interest Rate Cap to Lender as additional collateral for the
Indebtedness.
ARTICLE 2
THE ADVANCES
Section 2.01.
Rate Setting for an Advance
.
Rates for an Advance shall be set in accordance with the following procedures:
(a)
Preliminary, Nonbinding Quote
. At Borrowers request, Lender shall quote an
estimate of the Cash Interest Rate (for a proposed Fixed Advance) or DMBS Imputed Interest Rate
(for a proposed Variable Advance). Lenders quote shall be based on (1) in the
Master Credit Facility Agreement
Camden 2008
7
case of a proposed Variable Advance, a solicitation of bids from institutional investors
selected by Lender in the case of an DMBS execution or, in the case of a Fixed Advance, the rate
quoted by Fannie Mae for a cash execution and (2) the proposed terms and amount of the Advance
selected by Borrower. The quote shall not be binding upon Lender.
(b)
Rate Setting
. Borrower may submit to Lender, by facsimile transmission before
1:00 p.m. Washington, D.C. time on any Business Day (
Rate Setting Date
), a completed and
executed Rate Form. The Rate Form shall specify the amount, term, DMBS Issue Date, Variable
Facility Fee, any breakage fee deposit amount, as required by Lender, the proposed maximum Coupon
Rate (
Maximum Annual Coupon Rate
) or Cash Interest Rate, as applicable, and Closing Date
for the Advance.
(c)
Rate Confirmation
. In the case of a DMBS execution, within one (1) Business Day
after receipt of the Rate Form and upon satisfaction of all of the conditions to Lenders
obligation to make the Advance, Lender shall solicit bids from institutional investors selected by
Lender based on the information in the Rate Form and, provided the actual Coupon Rate would be at
or below the Maximum Annual Coupon Rate, shall obtain a commitment (
DMBS Commitment
) for
the purchase of an DMBS having the bid terms described in the related Rate Form. In the case of a
cash execution, within one (1) Business Day after receipt of the Rate Form, Lender shall obtain a
commitment from Fannie Mae (
Fannie Mae Commitment
) for the purchase of the proposed
Advance having the terms described in the related Rate Form. Lender shall then complete and
countersign the Rate Form thereby confirming the amount, term, and Closing Date for the Advance, in
the case of a Variable Advance, the DMBS Issue Date, DMBS Delivery Date or DMBS Imputed Interest
Rate, Variable Facility Fee, Coupon Rate, Discount and Price, and in the case of a Fixed Advance,
the Cash Interest Rate and shall immediately deliver by facsimile transmission the Rate Form to
Borrower.
Section 2.02.
DMBS Refinance Confirmation Form for Rollover Variable Advances
.
Not later than four (4) Business Days before the Closing Date for a Rollover Variable Advance,
Borrower shall execute and deliver to Lender a fully executed DMBS Refinance Confirmation Form (in
the form attached to the Variable Facility Note).
Section 2.03.
Breakage and other Costs
.
If Lender obtains, and then fails to fulfill, the DMBS Commitment or Fannie Mae Commitment
because the Advance is not made (for a reason other than Lenders default), Borrower shall pay all
reasonable out-of-pocket costs payable to the potential investor and other reasonable costs, fees
and damages incurred by Lender in connection with its failure to fulfill the DMBS Commitment or
Fannie Mae Commitment. Lender reserves the right to require Borrower to post a deposit at the time
the DMBS Commitment or Fannie Mae Commitment is obtained.
Master Credit Facility Agreement
Camden 2008
8
Such deposit shall be refundable to Borrower upon the delivery of the related DMBS or the
purchase of the Advance for cash by Fannie Mae.
Section 2.04.
Advances
.
Borrower may deliver an Advance Request to Lender.
(a) If the Advance Request is to obtain the Initial Advance and all conditions precedent
contained in
Section 6.08
and
Section 6.11
and the General Conditions contained in
Section 6.01
are satisfied on or before the Closing Date for the Initial Advance, Lender
shall make the Initial Advance on the Initial Closing Date or on such other date as Borrower and
Lender may agree.
(b) If the Advance Request is to obtain a Future Advance, such Advance Request shall be in the
minimum amount of $3,000,000 or the remaining unfunded amount of the Commitment with respect to the
last Advance if less. If all conditions precedent contained in
Section 6.08
and
Section 6.11
and the General Conditions contained in
Section 6.01
are satisfied,
Lender shall make the requested Future Advance, at a closing to be held at offices designated by
Lender on a Closing Date selected by Lender, which date shall be not more than three (3) Business
Days after Borrowers receipt from Lender of the confirmed Rate Form (or on such other date as
Borrower and Lender may agree).
Section 2.05.
Determination of Allocable Facility Amount and Valuations
.
(a)
Initial Determinations
. On the Initial Closing Date, Lender shall determine (1)
the Allocable Facility Amount and Valuation for each Initial Mortgaged Property, the Aggregate Debt
Service Coverage Ratio and the Aggregate Loan to Value Ratio, (2) the amount of the Advance, and
(3) the Commitment amount. Subject to
Section 2.05(b)
, the determinations made as of the
Initial Closing Date shall remain unchanged until the First Anniversary. Changes in Allocable
Facility Amount, Valuations, the Aggregate Debt Service Coverage Ratio and the Aggregate Loan to
Value Ratio shall be made pursuant to
Section 2.05(b)
.
(b)
Monitoring Determinations
. Once each Calendar Quarter or, if the Commitment
consists only of a Fixed Facility Commitment, once each Calendar Year, within twenty (20) Business
Days after Borrower has delivered to Lender the reports required in
Section 8.03
, Lender
shall determine the Aggregate Debt Service Coverage Ratio, the Aggregate Loan to Value Ratio, the
Valuations and the Allocable Facility Amounts and whether Borrower is in compliance with the other
covenants set forth in the Loan Documents. After the First Anniversary, on an annual basis, and if
Lender decides that changed market or property conditions warrant, Lender shall redetermine
Allocable Facility Amounts and Valuations. Lender shall also redetermine Allocable Facility
Amounts to take account of any addition or release of Collateral or other event that invalidates
the outstanding determinations. In
Master Credit Facility Agreement
Camden 2008
9
determining Valuations, Lender shall use Cap Rates based on its internal survey and analysis
of cap rates for comparable sales in the vicinity of the Mortgaged Property, with such adjustments
as Lender deems appropriate and without any obligation to use any information provided by Borrower.
If Lender is unable to determine a Cap Rate for a Mortgaged Property, Lender shall have the right,
with the prior consent of Borrower, not more than once annually, to obtain, at Borrowers expense,
a market study in order to establish a Cap Rate. In the event Borrower fails to consent to Lender
obtaining a market study, Lender shall determine the Cap Rate in its sole discretion. Lender shall
promptly disclose its determinations to Borrower. Until redetermined, the outstanding Allocable
Facility Amounts and Valuations shall remain in effect. Notwithstanding anything in this Agreement
to the contrary, no change in Allocable Facility Amounts, Valuations, the Aggregate Loan to Value
Ratio or the Aggregate Debt Service Coverage Ratio shall, unless resulting from the concurrent
removal of Collateral from the Collateral Pool, (1) result in a Potential Event of Default or Event
of Default, (2) require the prepayment of any Advances, (3) require the addition of Collateral to
the Collateral Pool, or (4) preclude the request of a Rollover Variable Advance.
Section 2.06.
Future Advances Made on Increased Values.
Notwithstanding anything to the contrary in this Agreement, not more than one (1) time per
Calendar Year after the First Anniversary and before October 1, 2016, Borrower shall be entitled to
Future Advances based on decreases in the Aggregate Loan to Value Ratio and increases in the
Aggregate Debt Service Coverage Ratio as determined by Lender in accordance with this Agreement and
based on Lenders determination that such Future Advance may be made pursuant to Lenders
Underwriting Requirements and pursuant to the terms and conditions of the Loan Documents. Any such
Future Advance with a term of less than five (5) years shall be a Variable Advance and the maximum
amount of any such Future Advance shall be equal to the amount which, when combined with Advances
already outstanding, equals the maximum amount of Advances that could be outstanding based upon the
Coverage and LTV Tests. No such Future Advance shall be permitted if there are Outstanding
Advances in the full amount of the Variable Facility Commitment and the Fixed Facility Commitment,
as applicable, and as may have been expanded pursuant to
Section 4.01
. Borrower shall pay
all reasonable costs related to such Future Advance requested under this
Section 2.06
(whether or not such Future Advance is actually made), including but not limited to Appraisal
costs, environmental site assessment costs, physical needs assessment costs, Lenders nonrefundable
due diligence fee of $5,000 payable at the time a Request for a Future Advance is made, a Borrow Up
Fee, all legal fees incurred by Lender and Fannie Mae in connection with such proposed Future
Advance. In relation to any Future Advance made pursuant to this
Section 2.06
, Borrower
shall be obligated to pay a variable facility fee or a fixed facility fee, as applicable,
determined in accordance with the requirements of the Fannie Mae Supplemental Loan product line
then in effect. Borrower shall request such Future Advance by giving Lender an Advance Request in
accordance with
Section 2.04
.
Master Credit Facility Agreement
Camden 2008
10
ARTICLE 3
COLLATERAL CHANGES
Section 3.01.
Right to Add Collateral
.
Subject to the terms and conditions of this Article, Borrower shall have the right, from time
to time during the Term of this Agreement, to add Multifamily Residential Properties to the
Collateral Pool.
Section 3.02.
Procedure for Adding Collateral
.
The procedure for adding Collateral contained in this
Section 3.02
shall apply to all
additions of Collateral.
(a)
Request
. From time to time, and subject to the limitations set forth in
Section 15.17
, Borrower may deliver to Lender an Addition Request to add one (1) or more
Multifamily Residential Properties to the Collateral Pool. Each Addition Request shall be
accompanied by the following: (1) the quality and type of property-related information required by
Lender in connection with the Initial Advances made hereunder and any additional information Lender
may reasonably request; and (2) the payment of all Additional Collateral Due Diligence Fees.
(b)
Underwriting
. Borrower may add any Additional Mortgaged Property provided that,
after such addition, the proposed Additional Mortgaged Property must itself have a Debt Service
Coverage Ratio of not less than 1.55 with respect to the portion of the Allocated Facility Amount
for such Additional Mortgaged Property drawn from the Fixed Facility Commitment and 1.30 with
respect to the portion of the Allocated Facility Amount for such Additional Mortgaged Property
drawn from the Variable Facility Commitment, and its Loan to Value Ratio must not exceed fifty-five
percent (55%), or, after such addition, the Collateral Pool must satisfy the Coverage and LTV
Tests, provided that the Additional Mortgage Property has a Debt Service Coverage Ratio of not less
than 1.35 with respect to the portion of the Allocated Facility Amount for such Additional
Mortgaged Property drawn from the Fixed Facility Commitment and 1.10 with respect to the portion of
the Allocated Facility Amount for such Additional Mortgaged Property drawn from the Variable
Facility Commitment, and its Loan to Value Ratio must not exceed sixty-five percent (65%). Lender
shall evaluate the proposed Additional Mortgaged Property in accordance with the Underwriting
Requirements and shall make underwriting determinations as to the Debt Service Coverage Ratio and
the Loan to Value Ratio of the proposed Additional Mortgaged Property and the Aggregate Debt
Service Coverage Ratio and the Aggregate Loan to Value Ratio applicable to the Collateral Pool on
the basis of the lesser of (1) the acquisition price of the proposed Additional Mortgaged Property
if purchased by Borrower within twelve (12) months of the related Addition Request, and (2) a
Valuation made with respect to the proposed Additional Mortgaged Property. Within thirty (30)
Business Days after receipt of (i) the Addition Request and (ii) all reports, certificates and
documents required
Master Credit Facility Agreement
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11
by the Underwriting Requirements, including a zoning analysis required by Lender in connection
with similar loans anticipated to be sold to Fannie Mae, Lender shall notify Borrower whether it
has determined whether the proposed Additional Mortgaged Property meets the Underwriting
Requirements and the other conditions for addition set forth in this Agreement. If Lender
determines that the proposed Additional Mortgaged Property meets the Underwriting Requirements and
the other conditions set forth in this Agreement, it shall set forth the Aggregate Debt Service
Coverage Ratio, the Aggregate Loan to Value Ratio, and the amount of the Advance that Lender
estimates shall result from the addition of the proposed Additional Mortgaged Property. Within five
(5) Business Days after receipt of Lenders written consent to the Addition Request, Borrower shall
notify Lender in writing whether it elects to add the proposed Additional Mortgaged Property to the
Collateral Pool. If Borrower fails to respond within the period of five (5) Business Days, it
shall be conclusively deemed to have elected not to add the proposed Additional Mortgaged Property
to the Collateral Pool.
(c)
Closing
. If Lender determines that the proposed Additional Mortgaged Property
meets the conditions set forth in this Agreement, Borrower timely elects to add the proposed
Additional Mortgaged Property to a Collateral Pool and all conditions precedent contained in
Section 6.04
,
Section 6.11
and
Section 6.12
and all General Conditions
contained in
Section 6.01
are satisfied, the proposed Additional Mortgaged Property shall
be added to the Collateral Pool, at a closing to be held at offices designated by Lender on a
Closing Date selected by Lender, occurring within thirty (30) Business Days after Lenders receipt
of Borrowers election (or on such other date as Borrower and Lender may agree).
Section 3.03.
Right to Obtain Releases of Collateral
.
Subject to the terms and conditions of this
Article 3
and the limitations set forth in
Section 15.17
, Borrower shall have the right from time to time to obtain a release of
Collateral from the Collateral Pool.
Section 3.04.
Procedure for Obtaining Releases of Collateral
.
(a)
Request
. To obtain a release of Collateral from the Collateral Pool, Borrower
shall deliver a Release Request to Lender. Upon delivery of the Release Request, Borrower shall
not be permitted to re-borrow any amounts that will be prepaid in connection with the release of
Collateral.
(b)
Closing
. If all conditions precedent contained in
Section 6.11
and all
General Conditions contained in
Section 6.01
are satisfied, Lender shall cause the Release
Mortgaged Property to be released, at a closing to be held at offices designated by Lender on a
Closing Date selected by Lender, and occurring within thirty (30) days after Lenders receipt of
the Release Request (or on such other date as Borrower and Lender may agree), by executing and
delivering, and causing all applicable parties to execute and deliver, all at the sole cost and
Master Credit Facility Agreement
Camden 2008
12
expense of Borrower, the Release Documents. Borrower shall prepare the Release Documents and
submit them to Lender for its review.
(c)
Release Price
. The
Release Price
for each Release Mortgaged Property
means the greater of (1) one hundred percent (100%) of the Allocable Facility Amount for the
Release Mortgaged Property and (2) one hundred percent (100%) of the amount, if any, of Advances
Outstanding that are required to be repaid by Borrower to Lender in connection with the proposed
release of the Release Mortgaged Property from the Collateral Pool so that, immediately after the
release, the Coverage and LTV Tests will be satisfied. In addition to the Release Price, Borrower
shall pay to Lender all associated prepayment premiums and other amounts due under the Notes being
repaid. In connection with a non-simultaneous substitution of Collateral pursuant to
Section
3.06(c)(ii)
of this Agreement, Borrower shall be permitted, in lieu of paying the Release
Price, to post a Letter of Credit issued by a financial institution acceptable to Lender and having
terms and conditions acceptable to Lender, having a face amount equal to the Release Price.
(d)
Application of Release Price
. Borrower shall determine whether the Release Price
for the Release Mortgaged Property will be applied first against the Variable Advances Outstanding
until there are no further Variable Advances Outstanding, or first against the prepayment of Fixed
Advances Outstanding, so long as the prepayment is permitted under the applicable Fixed Facility
Note. The remainder of the Release Price, if any, shall be held by Lender (or its appointed
collateral agent) as Additional Collateral, in accordance with a security agreement and other
documents in form and substance acceptable to Lender. Any such Additional Collateral remaining
will be returned to Borrower on the Termination Date. If, on the date Borrower pays the Release
Price, Variable Advances are Outstanding but not then due and payable, Lender shall hold the
Release Price as Additional Collateral, until the next date on which Variable Advances are due and
payable, at which time Lender shall apply the appropriate portion of the Release Price to such
Variable Advances.
(e)
Release of Borrower and Guarantor
. Upon the release of a Mortgaged Property, the
Borrower that is the owner of such Release Mortgaged Property shall be released of all obligations
under this Agreement and the other Loan Documents with respect to the Release Mortgage Property,
except for any provisions of this Agreement and the other Loan Documents that are expressly stated
to survive any release or termination. In addition, each Borrower and Guarantor shall be released
of all obligations related to the Release Mortgaged Property under this Agreement and the other
Loan Documents except for any provisions of this Agreement and the other Loan Documents that are
expressly stated to survive any release or termination.
Section 3.05.
Right to Substitutions.
Subject to the terms and conditions of this
Article 3
and the limitations sets forth
in
Section 15.17
, Borrower shall have the right to obtain the release of the Mortgaged
Property securing the Advances made to such Borrower by replacing such Mortgaged Property with a
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13
Multifamily Residential Property that meets the requirements of this Agreement (the
Substitute Mortgaged Property
) thereby
effecting a
Substitution
of Collateral.
Section 3.06.
Procedure for Substitutions.
(a)
Request
. Borrower shall deliver to Lender a completed and executed Substitution
Request. Each Substitution Request shall be accompanied by the following: (i) the information
required by the Underwriting Requirements with respect to the proposed Substitute Mortgaged
Property and any additional information Lender reasonably requests; and (ii) the payment of all
Additional Collateral Due Diligence Fees.
(b)
Underwriting
.
(i) Lender shall evaluate the proposed Substitute Mortgaged Property in accordance with the
Underwriting Requirements including the then applicable underwriting floors, and shall make
underwriting determinations as to (A) the Debt Service Coverage Ratio (calculated in each instance
using an imputed amortization component based on a 30-year amortization schedule (regardless of the
actual amortization of the Advance) and based on the interest rate equal to the greater of (1) the
applicable underwriting interest rate floor, if any, or (2) the rate that equals the sum of (x) the
base U.S. Treasury Index Rate for the Term of the Agreement as of the date of such Advance, plus
(y) the anticipated investor spread calculated on a actual/360 basis) and (B) the Loan to Value
Ratio on the basis of the lesser of (1) the acquisition price of the proposed Substitute Mortgaged
Property if purchased by the applicable Borrower within twelve (12) months of the related
Substitution Request and (2) a Valuation made with respect to the proposed Substitute Mortgaged
Property.
(ii) A Substitution may be effected if the proposed Substitute Mortgaged Property satisfies
the better of the following tests (i.e. the test which produces a lower Aggregate Loan to Value
Ratio and a higher Aggregate Debt Service Coverage Ratio): (1) the Coverage and LTV Tests
(calculated using the Allocable Facility Amount of the proposed Release Mortgaged Property) and (2)
the Loan to Value Ratio and the Debt Service Coverage Ratio of the proposed Release Mortgaged
Property. If necessary in order for the Collateral Pool to meet Coverage and LTV Tests after the
Substitution, Borrower may prepay a portion of the Loan (including all prepayment premiums)
pursuant to the terms of the Notes and this Agreement.
(iii) Within thirty (30) Business Days after receipt of (A) the Substitution Request and (B)
all reports, certificates and documents required by the Underwriting Requirements and this
Agreement, including a zoning analysis required by Lender in connection with similar loans
anticipated to be sold to Fannie Mae, Lender shall notify the applicable Borrower whether the
Substitute Mortgaged Property meets the requirements of this
Section 3.06(b)
and the
Underwriting Requirements and the other requirements for the Substitution of a Mortgaged Property
as set forth in this Agreement. Within five (5) Business Days after receipt of Lenders written
notice in response to the Substitution Request, Borrower
Master Credit Facility Agreement
Camden 2008
14
shall notify Lender whether it elects to proceed with the Substitution. If Borrower fails to respond within the
period of five (5) Business Days, it shall be conclusively deemed to have elected not to proceed
with the Substitution.
(c)
Closing
. If Lender determines that the Substitution Request satisfies the
conditions set forth herein, Borrower timely elects to proceed with the substitution, and all
conditions precedent contained in
Section 3.05
,
Section 3.06
,
Section 6.04
,
Section 6.05
,
Section 6.06
,
Section 6.11
,
Section 6.12
and all
General Conditions contained in
Section 6.01
are satisfied, the proposed Substitute
Mortgaged Property shall be added in replacement of the Mortgaged Property being released, at a
closing to be held at offices designated by Lender on a Closing Date selected by Lender and
occurring
(i) if the substitution of the proposed Substitute Mortgaged Property is to occur
simultaneously with the release of the Release Mortgaged Property, within sixty (60) days after
Lenders receipt of the applicable Borrowers election (or on such other date to which Borrower and
Lender may agree); or
(ii) if the substitution of the proposed Substitute Mortgaged Property is to occur subsequent
to the release of the Release Mortgaged Property, within ninety (90) days after the release of such
Release Mortgaged Property (provided such date may be extended an additional ninety (90) days if
Borrower provides evidence satisfactory to Lender of Borrowers diligent efforts in finding a
suitable proposed Substitute Mortgaged Property) (the
Property Delivery Deadline
) in
accordance with the terms of this
Section 3.06(c)
.
Section 3.07.
Substitution Deposit
.
(a)
The Deposit
. If a Substitution of the proposed Substitute Mortgaged Property is
to occur subsequent to the release of the Release Mortgaged Property pursuant to Section
3.06(c)(ii), at the Closing Date of the release of the Release Mortgaged Property, Borrower shall
deposit with Lender the
Substitution Deposit
described in
Section 3.07(b)
in the
form of cash in a non-interest bearing account held by Lender or, in lieu of depositing cash for
the Substitution Deposit, Borrower may post a Letter of Credit issued by a financial institution
acceptable to Lender and having terms and conditions acceptable to Lender, having a face amount
equal to the Substitution Deposit.
(b)
Substitution Deposit Amount
. The
Substitution Deposit
for each proposed
substitution shall be an amount equal to the sum of (i) the Release Price, plus (ii) any and all of
the fee maintenance for the DMBS, or the prepayment premium for a Note funded through a cash
execution, calculated as of the end of the month in which the Property Delivery Deadline occurs, as
if the Note (and applicable DMBS, if applicable) were to be prepaid in such month, plus (iii)
interest on the Note (or Discount, if applicable, and if necessary as estimated by Lender) through
the end of the month in which the Property Delivery Deadline occurs, if necessary as reasonably
estimated by Lender, plus (iv) costs, expenses and fees of Lender pertaining to the substitution
(the
Substitution Cost Deposit
). If a Substitution of the last
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Camden 2008
15
remaining asset is taking place, the cash collateral or Letter of Credit must include, (A) any
yield maintenance that would be due to the extent that the Fixed Advance must be prepaid to effect
a Release at that time and (B) any Discount that would be due for any Variable Advance, as
applicable, if necessary as reasonably estimated by Lender. The Substitution Cost Deposit shall be
used by Lender to cover all reasonable out-of-pocket costs and expenses incurred by Lender and
Fannie Mae, including any out-of-pocket legal fees and expenses incurred by Fannie Mae and Lender
in connection with such substitution whether such substitution actually closes. In the event that
the Borrower elects to post a Letter of Credit in lieu of cash for the Substitution Deposit,
Borrower shall also be obligated to make any regularly scheduled payments of principal and interest
due under the applicable Note during any period between the closing of the Release Mortgaged
Property and the earlier of the closing of the Substitute Mortgaged Property and the date of
prepayment of the Note, or the applicable DMBS.
(c)
Failure to Close Substitution
. If the substitution of the proposed Substitute
Mortgaged Property does not occur by the Property Delivery Deadline in accordance with
Section
3.06(c)(ii)
, then such Borrower shall have irrevocably waived its right to substitute such
Release Mortgaged Property with the proposed Substitute Mortgaged Property, and the release of the
Release Mortgaged Property shall be deemed a prepayment of the Note and the DMBS, if applicable.
The Property Delivery Deadline shall be no later than the date ninety (90) days (or one hundred
eighty (180) days, if applicable) after the date the Lenders lien on such Release Mortgaged
Property is released. Any DMBS being prepaid shall be deemed to be prepaid as of the end of the
month in which the Property Delivery Deadline falls, and the Lender, shall follow standard Fannie
Mae procedures for the prepayment of the Note, or any applicable DMBS, including delivery of the
Substitution Deposit (less the Substitution Cost Deposit) to Fannie Mae in accordance with such
procedures. Any portion of the Substitution Deposit not needed to prepay the Note, or any
applicable DMBS, all interest, and any prepayment fees (including any portion of the Substitution
Cost Deposit not used by Lender to cover all reasonable out-of-pocket costs and expenses incurred
by Lender and Fannie Mae, including any out-of-pocket legal fees and expenses incurred by Fannie
Mae and Lender in connection with such Substitution) shall be promptly refunded to the applicable
Borrower after the Property Delivery Deadline.
(d)
Substitution Deposit Disbursement
. At closing of the Substitution, the Lender
shall disburse the Substitution Deposit (less any portion of the Substitution Cost Deposit used by
Lender to cover all reasonable out-of-pocket costs and expenses incurred by Lender and Fannie Mae,
including any out-of-pocket legal fees and expenses incurred by Fannie Mae and Lender in connection
with such substitution) directly to the Borrower at such time as the conditions set forth in
Sections 3.05
,
3.06
,
6.06
,
6.11
,
6.12
and all General
Conditions contained in
Section 6.01
have been satisfied, which must occur no later than
the Property Delivery Deadline.
Master Credit Facility Agreement
Camden 2008
16
ARTICLE 4
INCREASE OF CREDIT FACILITY
Section 4.01.
Right to Increase Commitment
.
Subject to the terms, conditions and limitations of this Article and this Agreement, Borrower
shall have the right to increase the Fixed Facility Commitment, the Variable Facility Commitment,
or both (the
Expansion
). Borrowers right to the Expansion is subject to the following
limitations:
(a)
Maximum Amount of Increase in Commitment
. The maximum amount of the Expansion is
$70,000,000 (for a maximum total Commitment of $450,000,000).
(b)
Minimum Request
. Each Request for an Expansion shall be in the minimum amount of
$5,000,000.
(c)
Terms and Conditions
. The terms and conditions (including pricing) applicable to
any Expansion shall be mutually agreed upon by Lender and Borrower.
Section 4.02.
Procedure for Obtaining Increases in Commitment.
To obtain an Expansion, Borrower shall notify Lender of its intention to make an Expansion
Request and Lender shall communicate to Borrower the indicative terms of such Expansion. Any such
indication of terms shall not be binding or a commitment to make the Expansion in a manner
consistent with such indicative terms or otherwise. If Borrower chooses to proceed with requesting
an Expansion, Borrower shall deliver an Expansion Request to Lender. Each Expansion Request shall
be accompanied by a nonrefundable deposit of $25,000 and shall include the following:
(a) the total amount of the proposed increase;
(b) a designation of the increase as being part of the Fixed Facility Commitment and/or the
Variable Facility Commitment;
(c) if applicable, a request that Lender inform Borrower of the fixed facility fee and/or the
variable facility fee that will apply to Advances drawn from such Expansion; and
(d) a request that Lender inform Borrower of Net Worth and Liquidity requirements that will
apply upon the Expansion.
Section 4.03.
Closing
.
If all conditions precedent contained in
Section 6.07
and
Section 6.11
and all
applicable General Conditions contained in
Section 6.01
are satisfied, Lender shall permit
the Expansion to occur, at a closing to be held at offices designated by Lender on a Closing Date
selected by
Master Credit Facility Agreement
Camden 2008
17
Lender, and occurring within thirty (30) Business Days after Lenders receipt of the Expansion
Request (or on such other date as Borrower and Lender may agree).
ARTICLE 5
TERMINATION OF FACILITIES
Section 5.01.
Right to Complete or Partial Termination of Facilities
.
Subject to the terms and conditions of this Article, Borrower shall have the right from time
to time to permanently reduce the Variable Facility Commitment and/or the Fixed Facility
Commitment.
Section 5.02.
Procedure for Complete or Partial Termination of Facilities
.
(a)
Request
. To permanently reduce the Variable Facility Commitment or the Fixed
Facility Commitment, Borrower shall deliver a Facility Termination Request to Lender. A permanent
reduction of the Variable Facility Commitment to $0 shall be referred to as a
Complete
Variable Facility Termination
. A permanent reduction of the Fixed Facility Commitment to $0
shall be referred to as a
Complete Fixed Facility Termination
. The Facility Termination
Request shall include the following:
(i) The proposed amount of the reduction in the Variable Facility Commitment and/or Fixed
Facility Commitment; and
(ii) Unless there is a Complete Variable Facility Termination or a Complete Fixed Facility
Termination, a designation by Borrower of any Variable Advances that will be prepaid and/or any
Fixed Advances that will be prepaid.
Any release of Collateral, whether or not made in connection with a Facility Termination Request,
must comply with all conditions to a release that are contained in
Section 6.05
.
(b)
Closing
. If all conditions precedent contained in
Section 6.09
and all
General Conditions contained in
Section 6.01
are satisfied, Lender shall reduce the
Variable Facility Commitment or Fixed Facility Commitment, as the case may be, to the amount
designated by Borrower, at a closing to be held at offices designated by Lender on a Closing Date
selected by Lender, within thirty (30) Business Days after Lenders receipt of the Facility
Termination Request (or on such other date as Borrower and Lender may agree), by executing and
delivering the Facility Termination Document evidencing the reduction in the Facility Commitment.
Section 5.03.
Right to Terminate Credit Facility
.
Subject to the terms and conditions of this Article, Borrower shall have the right to
terminate this Agreement and the Credit Facility and receive a release of all of the Collateral.
Master Credit Facility Agreement
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18
Section 5.04.
Procedure for Terminating Credit Facility
.
(a)
Request
. To terminate this Agreement and the Credit Facility, Borrower shall
deliver a Credit Facility Termination Request to Lender.
(b)
Closing
. If all conditions precedent contained in
Section 6.10
are
satisfied, this Agreement shall terminate, and Lender shall cause all of the Collateral to be
released, at a closing to be held at offices designated by Lender on a Closing Date selected by
Lender, within thirty (30) Business Days after Lenders receipt of the Credit Facility Termination
Request (or on such other date as Borrower and Lender may agree), by executing and delivering, and
causing all applicable parties to execute and deliver, all at the sole cost and expense of
Borrower, the Credit Facility Termination Documents.
ARTICLE 6
CONDITIONS PRECEDENT TO ALL REQUESTS
Section 6.01.
Conditions Applicable to All Requests
.
Borrowers right to close the transaction requested in a Request shall be subject to Lenders
determination that all of the following general conditions precedent (
General Conditions
)
have been satisfied, in addition to any other conditions precedent contained in this Agreement:
(a)
Reserved
.
(b)
Payment of Expenses
. The payment by Borrower of Lenders and Fannie Maes
reasonable third party out-of-pocket fees and expenses payable in accordance with this Agreement,
including, but not limited to, the legal fees and expenses described in Section 10.05.
(c)
No Material Adverse Change
. Except in connection with a Credit Facility
Termination Request, there has been no material adverse change in the financial condition, business
or prospects of Borrower or Guarantor or in the physical condition, operating performance or value
of any of the Mortgaged Properties since the date of the most recent Compliance Certificate (or,
with respect to the conditions precedent to the Initial Advance, from the condition, business or
prospects reflected in the financial statements, reports and other information obtained by Lender
during its review of Borrower and Guarantor and the Initial Mortgaged Properties).
(d)
No Default
. Except in connection with a Credit Facility Termination Request,
there shall exist no Event of Default or Potential Event of Default on the Closing Date for the
Request and, after giving effect to the transaction requested in the Request, no Event of Default
or Potential Event of Default shall have occurred.
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(e)
No Insolvency
. Receipt by Lender on the Closing Date for the Request of evidence
satisfactory to Lender that neither Borrower nor Guarantor is insolvent (within the meaning of any
applicable federal or state laws relating to bankruptcy or fraudulent transfers) or will be
rendered insolvent by the transactions contemplated by the Loan Documents, including the making of
a Future Advance, or, after giving effect to such transactions, will be left with an unreasonably
small capital with which to engage in its business or undertakings, or will have intended to incur,
or believe that it has incurred, debts beyond its ability to pay such debts as they mature or will
have intended to hinder, delay or defraud any existing or future creditor.
(f)
No Untrue Statements
. The Loan Documents shall not contain any untrue or
misleading statement of a material fact and shall not fail to state a material fact necessary to
make the information contained therein not misleading.
(g)
Representations and Warranties
. Except in connection with a Credit Facility
Termination Request, all representations and warranties made by Borrower and Guarantor in the Loan
Documents shall be true and correct in all material respects on the Closing Date for the Request
with the same force and effect as if such representations and warranties had been made on and as of
the Closing Date for the Request.
(h)
No Condemnation or Casualty
. Except in connection with a Credit Facility
Termination Request or a Release Request, there shall not be pending or threatened any condemnation
or other taking, whether direct or indirect, against the Mortgaged Property and there shall not
have occurred any casualty to any improvements located on the Mortgaged Property, which casualty
would have a Material Adverse Effect.
(i)
Delivery of Closing Documents
. The receipt by Lender of the following, each dated
as of the Closing Date for the Request, in form and substance satisfactory to Lender in all
respects:
(i) The Loan Documents relating to such Request;
(ii) A Compliance Certificate;
(iii) An Organizational Certificate; and
(iv) Such other documents, instruments, approvals (and, if requested by Lender, certified
duplicates of executed copies thereof) and opinions as Lender may reasonably request.
(j)
Covenants
. Except in connection with a Credit Facility Termination Request,
Borrower is in full compliance with each of the covenants contained in
Article 8
and
Article 9
of this Agreement, without giving effect to any notice and cure rights of
Borrower.
Master Credit Facility Agreement
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Section 6.02.
Conditions Precedent to Initial Advance
.
The obligation of Lender to make the Initial Advance is subject to the following conditions
precedent:
(a) Receipt by Lender of the fully executed Advance Request;
(b) If the Initial Advance is a Variable Advance, receipt by Lender at least five (5) days
prior to the Initial Closing Date, of the confirmation of an Interest Rate Cap commitment, in
accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date;
(c) If the Initial Advance is a Variable Advance, receipt by Lender of Interest Rate Cap
Documents in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial
Closing Date;
(d) Delivery to the Title Company, for filing and/or recording in all applicable
jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and
delivered original copies of the Variable Facility Note or Fixed Facility Note, as applicable, the
Guaranty, the Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1
Financing Statements covering the portion of the Collateral comprised of personal property, and
other appropriate instruments, in form and substance reasonably satisfactory to Lender and in form
proper for recordation, as may be necessary in the opinion of Lender to perfect the Liens created
by the applicable Security Instruments and any other Loan Documents creating a Lien in favor of
Lender, and the payment of all taxes, fees and other charges payable in connection with such
execution, delivery, recording and filing;
(e) If the Initial Advance is a Variable Advance, receipt by Lender of the first installment
of Variable Facility Fee and the entire Discount payable by Borrower pursuant to
Section
1.04(b)
; and
(f) Receipt by Lender of the Initial Origination Fee pursuant to
Section 10.03(a)
and
the Initial Due Diligence Fee pursuant to
Section 10.04(a)
.
Section 6.03.
Conditions Precedent to Future Advances
.
A Future Advance is subject to the satisfaction of the following conditions precedent:
(a) Except in connection with a Rollover Variable Advance, receipt by Lender of the fully
executed Advance Request;
(b) Except in connection with a Rollover Variable Advance, delivery by Lender to Borrower of
the Rate Form for the Future Advance;
Master Credit Facility Agreement
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21
(c) Except in connection with a Rollover Variable Advance, after giving effect to the
requested Future Advance, the Coverage and LTV Tests will be satisfied;
(d) If the Advance is a Fixed Advance, delivery of a Fixed Facility Note, duly executed by
Borrower, in the amount and reflecting all of the terms of the Fixed Advance;
(e) If the Advance is a Variable Advance, delivery of the DMBS Refinance Confirmation Form,
duly executed by Borrower and/or (in the case of a Variable Advance that is not a Rollover Variable
Advance) a new Variable Facility Note, as applicable;
(f) For any Title Insurance Policy not containing a revolving credit or future advance
endorsement, the receipt by Lender of an endorsement to the Title Insurance Policy, amending the
effective date of the Title Insurance Policy to the applicable Closing Date and showing no
additional exceptions to coverage other than the exceptions shown on the Initial Closing Date and
other exceptions approved by Lender;
(g) If the Advance is a Variable Advance, the receipt by Lender of the first installment of
Variable Facility Fee for the Variable Advance and the entire Discount for the Variable Advance
payable by Borrower pursuant to
Section 1.04(b)
;
(h) If the Advance is a Variable Advance (and not a Rollover Variable Advance), receipt by
Lender at least five (5) days prior to the applicable Closing Date, of the confirmation of an
Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap Agreement, effective
as of the Closing Date;
(i) If the Advance is a Variable Advance (and not a Rollover Variable Advance), receipt by
Lender of Interest Rate Cap Documents, in accordance with the Pledge, Interest Rate Cap Agreement,
effective as of the Closing Date;
(j) Except in connection with a Rollover Variable Advance, receipt by Lender of a Confirmation
of Guaranty; and
(k) Receipt by Lender of one or more endorsements as specified by Lender increasing the amount
of any or all Title Insurance Policies in the aggregate equal to the amount of Future Advances made
pursuant to
Section 2.06
.
Section 6.04.
Conditions Precedent to Addition of an Additional Mortgaged Property to
the Collateral Pool
.
The addition of an Additional Mortgaged Property to the Collateral Pool on the applicable
Closing Date is subject to the satisfaction of the following conditions precedent:
(a) The proposed Additional Mortgaged Property has a Debt Service Coverage Ratio of not less
than 1.55 with respect to the portion of the Allocated Facility Amount
Master Credit Facility Agreement
Camden 2008
22
for such Additional Mortgaged Property drawn from the Fixed Facility Commitment and 1.30 with
respect to the portion of the Allocated Facility Amount for such Additional Mortgaged Property
drawn from the Variable Facility Commitment and a Loan to Value Ratio of not more than fifty-five
percent (55%) or immediately after giving effect to the requested addition, the Coverage and LTV
Tests will be satisfied, provided that the Additional Mortgaged Property has a Debt Service
Coverage Ratio of not less than 1.35 with respect to the portion of the Allocated Facility Amount
for such Additional Mortgaged Property drawn from the Fixed Facility Commitment and 1.10 with
respect to the portion of the Allocable Facility Amount for such Mortgaged Property drawn from the
Variable Facility Commitment, and its Loan to Value Ratio must not exceed sixty-five percent (65%);
(b) Receipt by Lender of the Addition Fee, or if the Additional Mortgaged Property is being
added in connection with a substitution made pursuant to
Section 3.05
of this Agreement,
receipt by Lender of the Substitution Fee;
(c) Delivery to the Title Company, with fully executed instructions directing the Title
Company to file and/or record in all applicable jurisdictions, all applicable Addition Loan
Documents required by Lender, including duly executed and delivered original copies of any Security
Instruments and UCC-1 Financing Statements covering the portion of the Additional Mortgaged
Property comprised of personal property, and other appropriate documents, in form and substance
satisfactory to Lender and in form proper for recordation, as may be necessary in the opinion of
Lender to perfect the Lien created by the applicable additional Security Instrument, and any other
Addition Loan Document creating a Lien in favor of Lender, and the payment of all taxes, fees and
other charges payable in connection with such execution, delivery, recording and filing;
(d) If required by Lender, amendments to the Notes and the Security Instruments, reflecting
the addition of the Additional Mortgaged Property to the Collateral Pool and, as to any Note or
Security Instrument so amended or if Lender determines that such endorsement is necessary to
maintain the priority of the Lien created in favor of Lender with respect to the Outstanding
Indebtedness or to maintain the validity of any Title Insurance Policy, the receipt by Lender of an
endorsement to each Title Insurance Policy insuring the Security Instrument, amending the effective
date of each Title Insurance Policy to the Closing Date and showing no additional exceptions to
coverage other than the exceptions shown on the Initial Closing Date, Permitted Liens and other
exceptions approved by Lender;
(e) If the Title Insurance Policy for the Additional Mortgaged Property contains a tie-in
endorsement, an endorsement to each other Title Insurance Policy containing a tie-in endorsement,
adding a reference to the Additional Mortgaged Property, to the extent a tie-in endorsement is
available with respect to the applicable Title Insurance Policy;
(f) Any proposed Additional Borrower meets and satisfies all of the requirements and
conditions of
Section 14.02
; and
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Camden 2008
23
(g) Receipt by Lender on the Closing Date of a Confirmation of Obligations.
Section 6.05.
Conditions Precedent to Release of Property from the Collateral Pool
.
The release of a Mortgaged Property from the Collateral Pool is subject to the satisfaction of
the following conditions precedent on or before the Closing Date:
(a) Receipt by Lender of the fully executed Release Request;
(b) Immediately after giving effect to the requested release the Coverage and LTV Tests will
be satisfied;
(c) Receipt by Lender of the Release Price;
(d) Receipt by Lender of the Release Fee and all other amounts owing under
Section
3.04(c)
;
(e) Receipt by Lender on the Closing Date of one (1) or more counterparts of each Release
Document, dated as of the Closing Date, signed by each of the parties (other than Lender) who is a
party to such Release Document;
(f) If required by Lender, amendments to the Notes and the Security Instruments, reflecting
the release of the Release Mortgaged Property from the Collateral Pool and, as to any Security
Instrument or Note so amended or if Lender determines that such endorsement is necessary to
maintain the priority of the Lien created in favor of Lender with respect to the Outstanding
Indebtedness or to maintain the validity of any Title Insurance Policy, the receipt by Lender of an
endorsement to each Title Insurance Policy insuring the Security Instrument, amending the effective
date of each Title Insurance Policy to the Closing Date and showing no additional exceptions to
coverage other than the exceptions shown on the Initial Closing Date, Permitted Liens and other
exceptions approved by Lender;
(g) If Lender determines the Release Mortgaged Property to be one (1) phase of a project, and
one (1) or more other phases of the project are Mortgaged Properties which will remain in the
Collateral Pool (
Remaining Mortgaged Properties
), Lender must determine that the
Remaining Mortgaged Properties can be operated separately from the Release Mortgaged Property and
any other phases of the project which are not Mortgaged Properties and whether any cross use
agreements or easements are necessary. In making this determination, Lender shall evaluate access,
utilities, marketability, community services, ownership and operation of the Release Properties and
any other issues identified by Lender in connection with similar loans anticipated to be sold to
Fannie Mae;
(h) Receipt by Lender of endorsements to the tie-in endorsements of the Title Insurance
Policies, if deemed necessary by Lender, to reflect the release; and
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Camden 2008
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(i) Receipt by Lender on the Closing Date of a Confirmation of Obligation.
Section 6.06.
Conditions Precedent to Substitutions
.
The obligation of Lender to make a requested Substitution is subject to Lenders determination
that each of the following conditions precedent has been met:
(a) Receipt by Lender of the fully executed Substitution Request;
(b) Receipt by Lender of the Substitution Deposit to the extent necessary under Section 3.07;
(c) Receipt by Lender of the Additional Collateral Due Diligence Fees and Substitution Fee;
(d) Such Substitute Mortgaged Property securing such Advance shall comply with the provisions
of Section 3.06(b) of this Agreement;
(e) Delivery to the Title Company, with fully executed instructions directing the Title
Company to file and/or record in all applicable jurisdictions, all applicable Loan Documents
reasonably required by Lender to be filed or recorded, including duly executed and delivered
original copies of any Security Instrument and UCC-1 Financing Statements covering the portion of
the Substitute Mortgaged Property comprised of personal property, and other appropriate documents,
in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may
be necessary in the reasonable opinion of Lender to perfect the Lien created by the applicable
additional Security Instrument, and any other relevant Loan Document creating a Lien in favor of
Lender, and the payment of all taxes, fees and other charges payable in connection with such
execution, delivery, recording and filing;
(f) Receipt by Lender of endorsements to the tie-in endorsements of the Title Insurance
Policies, if deemed necessary by Lender, to reflect the substitution, to the extent a tie-in
endorsement is available with respect to the applicable Title Insurance Policies;
(g) Receipt of all documents required for the addition of the Substitute Mortgaged Property
pursuant to the Underwriting Requirements;
(h) Any proposed Additional Borrower meets and satisfies all of the requirements and
conditions of
Section 14.02
;
(i) Receipt by Lender on the Closing Date of a Confirmation of Obligations; and
(j) If required by Lender, amendments to the Notes and the Security Instruments, reflecting
the Substitution and, as to any Security Instrument or Note so amended or
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Camden 2008
25
if Lender determines that such endorsement is necessary to maintain the priority of the Lien
created in favor of Lender with respect to the Outstanding Indebtedness or to maintain the validity
of any Title Insurance Policy, the receipt by Lender of an endorsement to each Title Insurance
Policy insuring the Security Instrument, amending the effective date of each Title Insurance Policy
to the Closing Date and showing no additional exceptions to coverage other than the exceptions
shown on the Initial Closing Date, Permitted Liens and other exceptions approved by Lender.
Section 6.07.
Conditions Precedent to Increase in Commitment.
The right of Borrower to an Expansion is subject to the satisfaction of the following
conditions precedent on or before the Closing Date:
(a) Receipt by Lender of the fully executed Expansion Request;
(b) Reserved;
(c) Receipt by Lender, if available, of an endorsement to each Title Insurance Policy,
amending the effective date of the Title Insurance Policy to the Closing Date, increasing the
limits of liability to the Commitment, as increased under this Article, showing no additional
exceptions to coverage other than the exceptions shown on the applicable Title Insurance Policy and
other exceptions approved by Lender, together with any reinsurance agreements required by Lender;
and
(d) Receipt by Lender of fully executed original copies of all Expansion Loan Documents, each
of which shall be in full force and effect, and in form and substance satisfactory to Lender in all
respects.
Section 6.08.
Conditions Precedent to Conversion
.
The conversion of all or a portion of the Variable Facility Commitment to the Fixed Facility
Commitment is subject to the satisfaction of the following conditions precedent on or before the
Closing Date:
(a) Receipt by Lender of the fully executed Conversion Request;
(b) After giving effect to the requested conversion, the Coverage and LTV Tests will be
satisfied;
(c) Prepayment by Borrower in full of any Variable Advances Outstanding that Borrower has
designated for payment; provided, however, no associated prepayment premiums and other amounts due
with respect to the prepayment of such Variable Advances shall be payable by Borrower;
Master Credit Facility Agreement
Camden 2008
26
(d) If required by Lender, receipt by Lender of an endorsement to each Title Insurance Policy,
amending the effective date of the Title Insurance Policy to the Closing Date and showing no
additional exceptions to coverage other than the exceptions shown on the Initial Closing Date and
other exceptions approved by Lender; and
(e) Receipt by Lender of one (1) or more counterparts of each Conversion Document, dated as of
the Closing Date, signed by each of the parties (other than Lender) to such Conversion Document.
Section 6.09.
Conditions Precedent to Complete or Partial Termination of Facilities
.
The right of Borrower to reduce the Commitment and the obligation of Lender to execute the
Facility Termination Document, are subject to the satisfaction of the following conditions
precedent on or before the Closing Date:
(a) Receipt by Lender of the fully executed Facility Termination Request;
(b) Payment by Borrower in full of all of the Variable Advances Outstanding and Fixed Advances
Outstanding, as the case may be, required to reduce the aggregate unpaid principal balance of all
Variable Advances Outstanding and Fixed Advances Outstanding, as the case may be, to not greater
than the Variable Facility Commitment and Fixed Facility Commitment, as the case may be, including
any associated prepayment premiums or other amounts due under the Notes (but if Borrower is not
required to prepay all of the Variable Advances Outstanding or Fixed Advances Outstanding, as the
case may be, Borrower shall have the right to select which of the Variable Advances or Fixed
Advances, as the case may be, shall be repaid); and
(c) Receipt by Lender on the Closing Date of one (1) or more counterparts of the Facility
Termination Document, dated as of the Closing Date, signed by each of the parties (other than
Lender) who is a party to such Facility Termination Document.
Section 6.10.
Conditions Precedent to Termination of Credit Facility
.
The right of Borrower to terminate this Agreement and the Credit Facility and to receive a
release of all of the Collateral from the Collateral Pool and Lenders obligation to execute and
deliver the Credit Facility Termination Documents on the Closing Date are subject to the following
conditions precedent:
(a) Receipt by Lender of the fully executed Credit Facility Termination Request; and
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Camden 2008
27
(b) Payment by Borrower in full of all of the Notes Outstanding on the Closing Date, including
any associated prepayment premiums or other amounts due under the Notes and all other amounts owing
by Borrower to Lender under this Agreement; and
Section 6.11.
Delivery of Opinion Relating to Advance Request, Addition Request,
Substitution Request, Conversion Request or Expansion Request
.
With respect to the closing of an Advance Request, an Addition Request, a Substitution
Request, a Conversion Request or an Expansion Request, it shall be a condition precedent that
Lender receives favorable opinions of counsel (including local counsel, as applicable) to Borrower,
as to the due organization and qualification of Borrower, the due authorization, execution,
delivery and enforceability of each Loan Document executed in connection with the Request and such
other matters as Lender may reasonably require, each dated as of the Closing Date for the Request,
in form and substance satisfactory to Lender in all respects.
Section 6.12.
Delivery of Property-Related Documents
.
With respect to each of the Initial Mortgaged Properties or an Additional Mortgaged Property
or a Substitute Mortgaged Property, it shall be a condition precedent that Lender receive from
Borrower each of the documents and reports required by Lender pursuant to the Underwriting
Requirements in connection with the addition of such Mortgaged Property to the Collateral Pool and,
each of the following, each dated as of the applicable Closing Date for the Initial Mortgaged
Property or an Additional Mortgaged Property or a Substitute Mortgaged Property, as the case may
be, in form and substance satisfactory to Lender in all respects:
(a) A commitment for the Title Insurance Policy applicable to the Mortgaged Property and a pro
forma Title Insurance Policy based on the Commitment;
(b) the Insurance Policy (or a certified copy of the Insurance Policy) applicable to the
Mortgaged Property;
(c) The Survey applicable to the Mortgaged Property;
(d) Evidence satisfactory to Lender of compliance of the Mortgaged Property with Property
Laws;
(e) A Replacement Reserve Agreement or an amendment thereto, providing for the establishment
of a replacement reserve account, to be pledged to Lender, in which the owner shall (unless waived
by Lender) periodically deposit amounts for replacements for improvements at the Mortgaged Property
and as additional security for Borrowers obligations under the Loan Documents;
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(f) A Completion/Repair and Security Agreement or an amendment thereto, together with required
escrows, on the standard form required by Lender;
(g) An Assignment of Management Agreement or an amendment thereto, on the standard form
required by Lender, if applicable;
(h) An Assignment of Leases and Rents, if Lender determines one to be necessary or desirable,
provided that the provisions of any such assignment shall be substantively identical to those in
the Security Instrument covering the Collateral, with such modifications as may be necessitated by
applicable state or local law;
(i) In relation to each Initial Mortgaged Property, a Security Instrument to effectuate the
addition of such Initial Mortgaged Property to the Collateral Pool, in relation to each Additional
Mortgaged Property, a Security Instrument to effectuate the addition of such Additional Mortgaged
Property to the Collateral Pool, and in relation to each Substitute Mortgaged Property, a Security
Instrument to effectuate the addition of such Substitute Mortgaged Property to the Collateral Pool
and a Note relating to the Mortgaged Properties. The amount secured by each Security Instrument
shall be equal to the Commitment in effect from time to time;
(j) A Certificate of Borrower Parties;
(k) A Confirmation of Guaranty by each party providing a guaranty to Lender; and
(l) A Contribution Agreement or an amendment thereto.
Section 6.13.
Additional Collateral
.
If Lender determines that, with respect to the addition, release or substitution of Mortgaged
Properties, the Coverage and LTV Tests are not met when required to be satisfied by the terms of
this Agreement, Borrower shall have the option of either (A) providing to Lender a Letter of Credit
which shall either have a term equal to the Term of this Agreement or shall have a term of at least
364 days and provide for a drawing 30 days prior to its date of termination in the event it is not
renewed; (B) depositing cash or Cash Equivalents (as defined in Sections (a) through (c) of the
definition of Cash Equivalents) to the Cash Collateral Account; (C) adding an Additional Mortgaged
Property to the Collateral Pool in a manner which meets the requirements of Article 3 but which
Additional Mortgaged Property is to be encumbered solely by a Security Instrument in favor of
Lender securing all of the Obligations (any of the above constituting
Additional
Collateral
); or (D) to the extent permitted under the Loan Documents, prepaying in part or in
whole the outstanding principal amount of Advances designated by Lender, in each case in an amount
or, in relation to an Additional Mortgaged Property, with value equal to that amount which Lender
determines will cause the Coverage and LTV Tests to be satisfied. For purposes of making such
calculation, Lender shall deduct the amount of cash and Cash
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29
Equivalents (as defined in Sections (a) through (c) of the definition of Cash Equivalents)
deposited to the Cash Collateral Account or the amount available under the Letter of Credit from
the outstanding principal balance of all Advances (the
Assumed Mortgage Principal Amount
)
and (i) calculate the interest component of debt service based on such Assumed Mortgage Principal
Amount and (ii) calculate the principal component of debt service by multiplying the actual amount
of principal times a fraction with a numerator equal to the Assumed Mortgage Principal Amount and a
denominator equal to the actual outstanding principal amount of all of the Advances. In the event
such Borrower exercises either of the options set forth in clauses (A) or (B) of this paragraph,
Borrower shall execute and deliver a Cash Collateral Agreement. Lender shall agree at the request
of Borrower to exchange one type of Additional Collateral for another type of Additional Collateral
within a reasonable time period, provided such other type of Additional Collateral is of equivalent
value and which meets the requirements of this Agreement. Notwithstanding any provision hereof to
the contrary, except for any Substitution Deposit delivered in accordance with Section
3.07
(the amount and application of which shall be determined in accordance with said
Section
3.07
), (i) the value of any Additional Collateral (excluding the Additional Collateral which
constitutes an Additional Mortgaged Property) delivered pursuant to this
Section 6.13
(other than Substitution Deposits) shall not exceed ten percent (10%) of the aggregate Valuation of
all Mortgaged Properties in the Collateral Pool, and (ii) in the event the Coverage and LTV Tests
(without regard to the Additional Collateral) are not satisfied within one year after delivery of
the Additional Collateral, Borrower shall be required to prepay the Advances Outstanding in an
amount determined by Lender to cause the Coverage and LTV Tests to be satisfied, and the Lender may
draw on such Additional Collateral and use the monies to make such prepayment. Any Advances
required to be prepaid pursuant to the preceding sentence shall be selected by the Borrower and, in
addition to the prepayment of the related Notes, Borrower shall pay all associated prepayment
premiums and other amounts due under the Notes being prepaid.
Section 6.14.
Reserved.
Section 6.15.
Letters of Credit.
(a)
Letter of Credit Requirements
. If Borrower provides Lender with a Letter of
Credit pursuant to this Agreement, the Letter of Credit shall be in form and substance satisfactory
to Lender and Lender shall be entitled to draw under such Letter of Credit solely upon presentation
of a sight draft to the LOC Bank. Any Letter of Credit shall be for a term of at least 364 days.
Any Letter of Credit shall be issued by a financial institution satisfactory to Lender and shall
have its long-term debt obligations rated at least A or an equivalent rating by S&P and Moodys
and its short-term debt obligations rated A 1 / P-1 or an equivalent rating by S&P and by
Moodys.
(b)
Draws Under Letter of Credit
. Lender shall have the right in its sole discretion
to draw monies under the Letter of Credit:
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(i) upon the occurrence of (A) an Event of Default; or (B) a Potential Event of Default of
which the Borrower has knowledge has occurred and continued for two (2) Business Days;
(ii) if 30 days prior to the expiration of the Letter of Credit, the Letter of Credit has not
been extended for a term of at least 364 days; or
(iii) upon the downgrading of the long-term obligations of the LOC Bank below A or an
equivalent rating by either Rating Agency or short-term debt below A-1"/P-1 or an equivalent
rating by either Rating Agency.
(c)
Deposit to Cash Collateral Agreement
. If Lender draws under the Letter of Credit
pursuant to Section 6.15(b)(ii) or (iii) above, Lender shall deposit such draw monies into the Cash
Collateral Account.
(d)
Default Draws
. If Lender draws under the Letter of Credit pursuant to Section
6.15(b)(i) above, Lender may in its sole discretion use monies drawn under the Letter of Credit for
any of the following purposes:
(i) to pay any amounts required to be paid by Borrower under the Loan Documents (including,
without limitation, any amounts required to be paid to Lender under this Agreement);
(ii) to (on such Borrowers behalf, or on its own behalf if Lender becomes the owner of the
Mortgaged Property) pre-pay any Note;
(iii) to make improvements or repairs to any Mortgaged Property; or
(iv) to deposit monies into the Cash Collateral Account.
(e)
Legal Opinion
. Prior to or simultaneous with the delivery of any new Letter of
Credit (but not the extension of any existing Letter of Credit), such Borrower shall cause the LOC
Banks counsel to deliver a legal opinion substantially in the form of
Exhibit W-1
or
Exhibit W-2
, as applicable, and in any event satisfactory in form and substance to the
Lender in the Lenders sole discretion.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.01.
Representations and Warranties of Borrower
.
The representations and warranties of Borrower Parties are contained in the Certificate of
Borrower Parties.
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31
Section 7.02.
Representations and Warranties of Lender
.
Lender hereby represents and warrants to Borrower as follows as of the date hereof:
(a)
Due Organization
. Lender is a corporation duly organized, validly existing and in
good standing under the laws of Ohio.
(b)
Power and Authority
. Lender has the requisite power and authority to execute and
deliver this Agreement and to perform its obligations under this Agreement.
(c)
Due Authorization
. The execution and delivery by Lender of this Agreement, and
the consummation by it of the transactions contemplated thereby, and the performance by it of its
obligations thereunder, have been duly and validly authorized by all necessary action and
proceedings by it or on its behalf.
ARTICLE 8
AFFIRMATIVE COVENANTS OF BORROWER AND GUARANTOR
Borrower agrees and covenants with Lender that, at all times during the Term of this
Agreement:
Section 8.01.
Compliance with Agreements.
(a) Borrower and Guarantor shall comply with all the terms and conditions of each Loan
Document to which it is a party or by which it is bound; provided, however, that Borrowers or
Guarantors failure to comply with such terms and conditions shall not be an Event of Default until
the expiration of the applicable notice and cure periods, if any, specified in the applicable Loan
Document.
(b) Borrower shall comply with all the material terms and conditions of any building permits
or any conditions, easements, rights-of-way or covenants of record, restrictions of record or any
recorded or, to the extent Borrower has knowledge thereof, unrecorded agreement affecting or
concerning any Mortgaged Property including planned development permits, mitigation plans,
condominium declarations, and reciprocal easement and regulatory agreements with any Governmental
Authority; provided, however, that Borrowers failure to comply with such terms and conditions
shall not be an Event of Default until the expiration of the applicable notice and cure periods, if
any, specified in the applicable document.
Section 8.02.
Maintenance of Existence
.
(a) Each Borrower Party shall maintain its existence and continue to be organized under the
laws of the state of its organization. Borrower shall continue to be duly qualified to do business
in each jurisdiction in which such qualification is necessary to the conduct of its business and
where the failure to be so qualified would adversely affect the
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32
validity of, the enforceability of, or the ability to perform, its obligations under this
Agreement or any other Loan Document.
(b) During the Term of this Agreement, Camden shall qualify, and be taxed as, a real estate
investment trust under Subchapter M of the Internal Revenue Code and will not be engaged in any
activities which would reasonably be anticipated to jeopardize such qualification and tax
treatment.
Section 8.03.
Financial Statements; Accountants Reports; Other Information
.
(a) Each Borrower Party shall keep and maintain at all times at the address set forth in
Section 15.08
of this Agreement, and (at Lenders request after an Event of Default) shall
make available at the Mortgaged Property, complete and accurate books of accounts and records
(including copies of supporting bills and invoices) in sufficient detail to correctly reflect (i)
all of Borrowers and Guarantors financial transactions and assets, and (ii) the results of the
operation of each Mortgaged Property, and copies of all written contracts, Leases and other
instruments which affect each Mortgaged Property (including all bills, invoices and contracts for
electrical service, gas service, water and sewer service, waste management service, telephone
service and management services). The books, records, contracts, Leases and other instruments
shall be subject to examination and inspection at any reasonable time by Lender.
(b) In addition, each Borrower and Guarantor (with respect to clauses (i), (ii), (xi) and
(xiii) set forth below) shall furnish, or cause to be furnished, to Lender:
(i)
Annual Financial Statements
. As soon as available, and in any event within one
hundred twenty (120) days after the close of its fiscal year during the Term of this Agreement, the
audited consolidated balance sheet showing all assets and liabilities of Camden, the audited
consolidated statement of operations of Camden and the unaudited consolidated statement of
operations of Borrower for such fiscal year, and the audited consolidated statement of cash flows
of Camden and the unaudited consolidated statement of cash flows of Borrower for such fiscal year,
all in reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the prior fiscal year, prepared in accordance with GAAP
consistently applied and as to Camden, accompanied by a certificate of Camdens independent
certified public accountants to the effect that such financial statements have been audited by such
accountants, and that such financial statements fairly present the results of Camdens operations
and financial condition for the periods and dates indicated, with such certification to be free of
exceptions and qualifications as to the scope of the audit as to the going concern nature of the
business;
(ii)
Quarterly Financial Statements
. As soon as available, and in any event within
forty five (45) days after each of the first three fiscal quarters of each fiscal year during the
Term of this Agreement, beginning with the fiscal quarter ending March 31, 2009, the unaudited
consolidated balance sheet showing all assets and liabilities of Camden as of the end of any such
fiscal quarter, the unaudited consolidated statement of operations of Borrower and
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Camden and the unaudited consolidated statement of cash flows of Borrower and Camden for the
portion of the fiscal year ended with the last day of such quarter, all prepared in accordance with
GAAP and in reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the previous fiscal year, accompanied by a certificate of an
authorized representative of Borrower and Camden reasonably acceptable to Lender stating that such
financial statements have been prepared in accordance with GAAP, consistently applied, and fairly
present the results of its operations and financial condition for the periods and dates indicated,
subject to year end adjustments in accordance with GAAP;
(iii)
Quarterly Property Statements
. As soon as available in electronic format, and
in any event within forty five (45) days after each Calendar Quarter, a statement of income and
expenses of each Mortgaged Property prepared in accordance with GAAP and accompanied by a
certificate of an authorized representative of Borrower reasonably acceptable to Lender to the
effect that each such statement of income and expenses fairly, accurately and completely presents
the operations of each such Mortgaged Property for the period indicated;
(iv)
Annual Property Statements
. As soon as available in electronic format, and in
any event on an annual basis within forty five (45) days after the close of its fiscal year, an
annual statement of income and expenses of each Mortgaged Property accompanied by a certificate of
an authorized representative of Borrower reasonably acceptable to Lender to the effect that each
such statement of income and expenses fairly, accurately and completely presents the operations of
each such Mortgaged Property for the period indicated;
(v)
Monthly Property Statements
. Upon Lenders request and no later than 30 days
after such request, a monthly electronic property management report for each Mortgaged Property,
showing the number of inquiries made and rental applications received from tenants or prospective
tenants and deposits received from tenants and any other information requested by Lender and a
statement of income and expense of each Mortgaged Property for the prior month;
(vi)
Updated Rent Rolls
. Within 120 days after the end of each fiscal year of each
Borrower, and at any other time upon Lenders request, a current Rent Roll for each Mortgaged
Property, showing the name of each tenant, and for each tenant, the space occupied, the lease
expiration date, the rent payable for the current month, the date through which rent has been paid
and any other information requested by Lender and accompanied by a certificate of an authorized
representative of Borrower reasonably acceptable to Lender to the effect that each such Rent Roll
fairly, accurately and completely presents the information required therein;
(vii)
Security Deposit Information
. Within 120 days after the end of each fiscal year
of Borrower, and at any other time upon Lenders request, an accounting of all security deposits
held in connection with any Lease of any part of any Mortgaged Property, including the name and
identification number of the accounts in which such security deposits are held, the name and
address of the financial institutions in which such security deposits are held
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and the name and telephone number of the person to contact at such financial institution,
along with any authority or release necessary for Lender to access information regarding such
accounts;
(viii)
Accountants Reports; Other Reports
. Promptly upon receipt thereof: copies of
any reports which address material weaknesses or problems or management letters which address
material weaknesses or problems or audit opinions submitted to Borrower by its independent
certified public accountants in connection with the examination of its financial statements made by
such accountants (except for reports otherwise provided pursuant to subsection (a) above);
provided, however, that Borrower shall only be required to deliver such reports and management
letters to the extent that they relate to Borrower or any Mortgaged Property; and all schedules,
financial statements or other similar reports delivered by Borrower pursuant to the Loan Documents
or requested by Lender with respect to Borrowers business affairs or condition (financial or
otherwise) or any of the Mortgaged Properties;
(ix)
Ownership Interests
. Within 120 days after the end of each fiscal year of
Borrower and Guarantor, and at any other time upon Lenders request, a statement that identifies
all owners of any direct interest in any Targeted Entity (other than Guarantor) and the interest
held by each, if Borrower is a corporation, all executive officers and directors of Borrower or
Guarantor, and if Borrower is a limited liability company, all managers who are not members;
(x)
Annual Budgets
. Prior to the start of its fiscal year, an annual budget for each
Mortgaged Property for such fiscal year, setting forth an estimate of all of the costs and
expenses, including capital expenses, of maintaining and operating each Mortgaged Property; and
(xi)
Federal Tax Returns
. Upon the request of Lender, after an Event of Default, the
Federal tax return of Borrower and Guarantor that was filed with the Internal Revenue Service,
United States Department of Treasury.
(c) Each of the statements, schedules and reports required by
Section 8.03
shall be
certified to be complete and accurate in all material respects by an individual having authority to
bind Borrower, and shall be in such form and contain such detail as Lender may reasonably require.
Upon an Event of Default, Lender also may require that any statements, schedules or reports be
audited at Borrowers expense by independent certified public accountants acceptable to Lender.
(d) If Borrower fails to provide in a timely manner the statements, schedules and reports
required by
Section 8.03
, Lender shall have the right to have Borrowers books and records
audited, at Borrowers expense, by independent certified public accountants selected by Lender in
order to obtain such statements, schedules and reports, and all related costs and expenses of
Lender shall become immediately due and payable and shall become an additional part of the
Indebtedness as provided in Section 12 of each Security Instrument.
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(e) If an Event of Default has occurred and is continuing, Borrower shall deliver to Lender
upon written demand all books and records, or copies thereof, relating to the Mortgaged Property or
its operation.
(f) Borrower irrevocably authorizes Lender to obtain a credit report on Borrower at any time.
(g) If an Event of Default has occurred and Lender has not previously required Borrower to
furnish a quarterly statement of income and expense for the Mortgaged Property, Lender may require
Borrower to furnish such a statement within forty five (45) days after the end of each fiscal
quarter of Borrower following such Event of Default.
Section 8.04.
Access to Records; Discussions With Officers and Accountants.
To the extent permitted by law and in addition to the applicable requirements of the Security
Instruments, Borrower shall permit Lender to:
(a) inspect, make copies and abstracts of, and have reviewed or audited, such of Borrowers
books and records as may relate to the Obligations or any Mortgaged Property;
(b) at any time discuss Borrowers affairs, finances and accounts with Borrowers senior
management or property managers and independent public accountants; after an Event of Default,
discuss Borrowers affairs, finances and account with Guarantors officers, partners and employees;
(c) discuss the Mortgaged Properties conditions, operations or maintenance with the managers
of such Mortgaged Properties, the officers and employees of Borrower and/or the Guarantor; and
(d) receive any other information that Lender reasonably deems necessary or relevant in
connection with any Advance, any Loan Document or the Obligations from the officers and employees
of such Borrower or third parties.
Notwithstanding the foregoing, prior to an Event of Default or Potential Event of Default and in
the absence of an emergency, all inspections shall be conducted at reasonable times during normal
business hours upon reasonable notice to Borrower.
Section 8.05.
Certificate of Compliance.
Borrower shall deliver to Lender concurrently with the delivery of the financial statements
and/or reports required by
Section 8.03(a)
and
Section 8.03(b)
a certificate signed
by an authorized representative of Borrower reasonably acceptable to Lender (1) setting forth in
reasonable detail the calculations required to establish whether Borrower and Guarantor were in
compliance with the requirements of this
Article 8
of this Agreement on the date of such
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financial statements, and (2) stating that, to the best knowledge of such individual following
reasonable inquiry, no Event of Default or Potential Event of Default has occurred, or if an Event
of Default or Potential Event of Default has occurred, specifying the nature thereof in reasonable
detail and the action Borrower is taking or proposes to take. Any certificate required by this
Section shall run directly to and be for the benefit of Lender and Fannie Mae.
Section 8.06.
Maintain Licenses.
Borrower shall procure and maintain in full force and effect all licenses, Permits, charters
and registrations which are material to the conduct of its business and shall abide by and satisfy
all terms and conditions of all such licenses, Permits, charters and registrations.
Section 8.07.
Inform Lender of Material Events.
Borrower shall promptly inform Lender in writing of any of the following (and shall deliver to
Lender copies of any related written communications, complaints, orders, judgments and other
documents relating to the following) of which an officer of Camden has actual knowledge:
(a)
Defaults
. The occurrence of any Event of Default or any Potential Event of
Default under this Agreement or any other Loan Document;
(b)
Regulatory Proceedings
. The commencement of any rulemaking or disciplinary
proceeding or the promulgation of any proposed or final rule which would have, or may reasonably be
expected to have, a Material Adverse Effect; the receipt of notice from any Governmental Authority
having jurisdiction over Borrower that (1) Borrower is being placed under regulatory supervision,
(2) any license, Permit, charter, membership or registration material to the conduct of Borrowers
business or the Mortgaged Properties is to be suspended or revoked or (3) Borrower is to cease and
desist any practice, procedure or policy employed by Borrower in the conduct of its business, and
such cessation would have, or may reasonably be expected to have, a Material Adverse Effect;
(c)
Bankruptcy Proceedings
. The commencement of any proceedings by or against
Borrower or Guarantor under any applicable bankruptcy, reorganization, liquidation, insolvency or
other similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator,
trustee or other similar official is sought to be appointed for it;
(d)
Environmental Claim
. The receipt from any Governmental Authority or other Person
of any notice of violation, claim, demand, abatement, order or other order or direction
(conditional or otherwise) for any damage, including personal injury (including sickness, disease
or death), tangible or intangible property damage, contribution, indemnity, indirect or
consequential damages, damage to the environment, pollution, contamination or other adverse effects
on the environment, removal, cleanup or remedial action or for fines, penalties or
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37
restrictions, resulting from or based upon (1) the existence or occurrence, or the alleged
existence or occurrence, of a Hazardous Substance Activity on any Mortgaged Property in violation
of any law or (2) the violation, or alleged violation, of any Hazardous Materials Laws in
connection with any Mortgaged Property or any of the other assets of Borrower;
(e)
Material Adverse Effects
. The occurrence of any act, omission, change or event
(including the commencement or written threat of any proceedings by or against Borrower in any
Federal, state or local court, or before any Governmental Authority, or before any arbitrator),
that has, or would have, a Material Adverse Effect, subsequent to the date of the most recent
audited financial statements of Borrower delivered to Lender pursuant to
Section 8.03
;
(f)
Accounting Changes
. Any material change in Borrowers accounting policies or
financial reporting practices;
(g)
Legal and Regulatory Status
. The occurrence of any act, omission, change or
event, including any Governmental Approval, the result of which is to change or alter in any way
the legal or regulatory status of Borrower; if such act, omission, change or event has or may
reasonably be expected to have, a Material Adverse Effect; and
(h)
Change in Senior Management
. Any change in the identity of Senior Management.
Section 8.08.
Compliance with Applicable Law.
Borrower shall comply in all material respects with all Applicable Laws now or hereafter
affecting any Mortgaged Property or any part of any Mortgaged Property or requiring any
alterations, repairs or improvements to any Mortgaged Property. Borrower shall procure and
continuously maintain in full force and effect, and shall abide by and satisfy all material terms
and conditions of all Permits, and shall comply with all written notices from Governmental
Authorities.
Section 8.09.
Alterations to the Mortgaged Properties.
Except as otherwise provided in the Loan Documents, Borrower shall have the right to undertake
any alteration, improvement, demolition, removal or construction (collectively,
Alterations
) to the Mortgaged Property which it owns without the prior consent of Lender;
provided, however,
that in any case, no such Alteration shall be made to any Mortgaged
Property without the prior written consent of Lender if (1) such Alteration could reasonably be
expected to adversely affect the value of such Mortgaged Property or its operation as a multifamily
housing facility in substantially the same manner in which it is being operated on the date such
property became Collateral, (2) the construction of such Alteration could reasonably be expected to
result in interference to the occupancy of tenants of such Mortgaged Property such that tenants in
occupancy with respect to five percent (5%) or more of the Leases would be permitted to terminate
their Leases or to abate the payment of all or any portion of their rent, or (3) such
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Alteration will be completed in more than fifteen (15) months from the date of commencement or
in the last year of the Term of this Agreement. Notwithstanding the foregoing, Borrower must
obtain Lenders prior written consent to construct Alterations with respect to the Mortgaged
Property costing in excess of, with respect to any Mortgaged Property, the number of units in such
Mortgaged Property multiplied by $2,000, but in any event, costs in excess of $250,000 and Borrower
must give prior written notice to Lender of its intent to construct Alterations with respect to
such Mortgaged Property costing in excess of $100,000; provided, however, that the preceding
requirements shall not be applicable to Alterations made, conducted or undertaken by Borrower as
part of Borrowers routine maintenance, and repair or replacement of obsolete equipment of the
Mortgaged Properties as required by the Loan Documents. Notwithstanding anything contained in this
paragraph, in the event that the cost of an Alteration is less than $100,000 for any Mortgaged
Property and such Alteration shall take place in the last year of the Term of this Agreement, the
Borrower shall not be required to request the prior written consent of Lender prior to making such
Alteration.
Section 8.10.
Loan Document Taxes.
If any tax, assessment or Imposition (other than a franchise tax or excise tax imposed on or
measured by, the net income or capital (including branch profits tax) of Lender (or any transferee
or assignee thereof, including a participation holder)) (
Loan Document Taxes
) is levied,
assessed or charged by the United States, or any State in the United States, or any political
subdivision or taxing authority thereof or therein upon any of the Loan Documents or the
obligations secured thereby, the interest of Lender in the Mortgaged Properties, or Lender by
reason of or as holder of the Loan Documents, Borrower shall pay all such Loan Document Taxes to,
for, or on account of Lender (or provide funds to Lender for such payment, as the case may be)
within thirty (30) days after written notice from Lender and shall promptly furnish proof of such
payment to Lender, as applicable. In the event of passage of any law or regulation permitting,
authorizing or requiring such Loan Document Taxes to be levied, assessed or charged, which law or
regulation in the opinion of counsel to Lender may prohibit Borrower from paying the Loan Document
Taxes to or for Lender, Borrower shall enter into such further instruments as may be permitted by
law to obligate Borrower to pay such Loan Document Taxes.
Section 8.11.
Further Assurances.
Borrower, at the request of Lender, shall execute and deliver and, if necessary, file or
record such statements, documents, agreements, UCC financing and continuation statements and such
other instruments and take such further action as Lender from time to time may reasonably request
as reasonably necessary, desirable or proper to carry out more effectively the purposes of this
Agreement or any of the other Loan Documents or to subject the Collateral to the lien and security
interests of the Loan Documents or to evidence, perfect or otherwise implement, to assure the lien
and security interests intended by the terms of the Loan Documents or in order to exercise or
enforce its rights under the Loan Documents. If Lender believes that an all-asset collateral
description, as contemplated by Section 9-504(2) of the UCC, is appropriate as to any
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Collateral under any Loan Document, the Lender is irrevocably authorized to use such a
collateral description, whether in one or more separate filings or as part of the collateral
description in a filing that particularly describes the collateral.
Section 8.12.
Transfer of Ownership Interests in Borrower or Guarantor.
(a)
Prohibition on Transfers
. Subject to paragraph (b) of this Section, neither
Borrower nor Guarantor shall cause or permit a Transfer or a Change of Control.
(b)
Permitted Transfers
. Notwithstanding the provisions of paragraph (a) of this
Section, the following Transfers by Borrower or Guarantor (or owners of interests in Guarantor),
upon prior written notice to Lender (however, prior notice will not be required with respect to the
Transfers described in subsections (i), (ii) or (iii) below), are permitted without the consent of
Lender (or the payment of any fee):
(i) The issuance by Camden of additional stock and the subsequent Transfer of such stock, and
the issuance by Camden Summit of additional partnership units and the subsequent Transfer of such
units; provided, however, that no Change in Control occurs as the result of such Transfer.
(ii) A merger with or acquisition of another entity by Camden (or, with respect to a merger
solely to reincorporate in another state, by Camden into another entity), provided that (1) Camden
is the surviving entity (other than a merger to reincorporate in another state when the other
entity can be the surviving entity in which case Lender is satisfied that the surviving corporation
in such merger shall succeed to all the rights, properties, assets and liabilities of Camden) after
such merger or acquisition, (2) no Change in Control occurs, and (3) such merger or acquisition
does not result in an Event of Default, as such terms are defined in this Agreement.
(iii) The Transfer of shares of common stock of Camden units; provided, however, that no
Change in Control occurs as the result of such Transfer.
(iv) A Transfer of Ownership Interests in Texas Member; provided, however, after such
Transfer, Camden shall maintain Control over Texas Member and shall continue to own at least 51% of
the Ownership Interests in Texas Member.
(v) A Transfer of Ownership Interests in Camden Member; provided, however, after such
Transfer, Camden Summit shall maintain Control over Camden Member and shall continue to own at
least 51% of the Ownership Interests in Camden Member.
(vi) A Transfer of Ownership Interests in Camden Summit, provided, however, after such
Transfer, Camden General Partner shall continue to own at least 51% of the Ownership Interests in
Camden Summit and there shall be no Change in Control.
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(vii) A Transfer of any or all, direct or indirect, Ownership Interests in Borrower to any
wholly-owned subsidiary of Camden.
Section 8.13.
Transfer of Ownership of Mortgaged Property.
(a)
Prohibition on Transfers
. Subject to paragraph (b) of this Section, neither
Borrower nor Guarantor shall cause or permit a Transfer of all or any part of a Mortgaged Property
or interest in any Mortgaged Property.
(b)
Permitted Transfers
. Notwithstanding provision (a) of this Section, the following
Transfers of a Mortgaged Property by Borrower or Guarantor, upon prior written notice to Lender
(however, prior notice will not be required with respect to the Transfers permitted pursuant to
subsections (i) and (ii) below), are permitted without the consent of Lender (or the payment of any
fee):
(i) The grant of a leasehold interest in individual dwelling units or commercial spaces in
accordance with the Security Instrument.
(ii) A sale or other disposition of obsolete or worn out personal property which is
contemporaneously replaced by comparable personal property of equal or greater value which is free
and clear of liens, encumbrances and security interests other than those created by the Loan
Documents or Permitted Liens.
(iii) The creation of a mechanics or materialmens lien or judgment lien against a Mortgaged
Property which is released of record or otherwise remedied to Lenders satisfaction within thirty
(30) days of the date of creation.
(iv) The grant of an easement if, prior to the granting of the easement, Borrower causes to be
submitted to Lender all information required by Lender to evaluate the easement, and if Lender
consents to such easement based upon Lenders determination that the easement will not materially
affect the operation of the Mortgaged Property or Lenders interest in the Mortgaged Property and
Borrower pays to Lender, on demand, all reasonable third party out-of-pocket costs and expenses
incurred by Lender in connection with reviewing Borrowers request. Lender shall not unreasonably
withhold its consent to or withhold its agreement to subordinate the lien of a Security Instrument
to (1) the grant of a utility easement serving a Mortgaged Property to a publicly operated utility,
or (2) the grant of an easement related to expansion or widening of roadways, provided that any
such easement is in form and substance reasonably acceptable to Lender and does not materially and
adversely affect the access, use or marketability of a Mortgaged Property.
(c)
Assumption of Collateral Pool
. Notwithstanding paragraph (a) of this Section, a
Transfer of the entire Collateral Pool may be permitted with the prior written consent of Lender if
each of the following requirements is satisfied:
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(i) the transferee (
New Collateral Pool Borrower
) is a Single Purpose entity, and
executes an assumption agreement that is acceptable to Lender pursuant to which such New Collateral
Pool Borrower assumes all obligations of a Borrower under all the applicable Loan Documents;
(ii) the applicable Loan Documents shall be amended and restated as deemed necessary or
appropriate by Lender to meet the then-applicable requirements of the DUS Guide and of Fannie Mae;
provided, however, any waivers granted in connection with the Initial Advances will not be
reinstated unless specifically approved by Lender and Fannie Mae;
(iii) after giving effect to the assumption, the requirements of Section 6.05 and the General
Conditions contained in Section 6.01 shall be satisfied;
(iv) New Collateral Pool Borrower shall make such deposits to the reserves or escrow funds
established under the Loan Documents, including replacement reserves, completion/repair reserves,
and all other required escrow and reserve funds at such times and in such amounts as determined by
Lender at the time of the assumption;
(v) New Collateral Pool Borrower shall propose a guarantor acceptable to Lender, which
guarantor executes and delivers a guaranty acceptable to Lender;
(vi) Lender shall be the servicer of the loan; and
(vii) the requirements of Section 8.14 are satisfied.
Section 8.14. Consent to Prohibited Transfers.
(a)
Consent to Prohibited Transfers
. Lender may, in its sole and absolute discretion,
consent to a Transfer that would otherwise violate this Section if, prior to the Transfer, Borrower
or Guarantor, as the case may be, has satisfied each of the following requirements:
(i) the submission to Lender of all information required by Lender to make the determination
required by this Section;
(ii) the absence of any Event of Default;
(iii) the transferee meets all of the eligibility, credit, management and other standards
(including any standards with respect to previous relationships between Lender and the transferee
and the organization of the transferee) customarily applied by Lender at the time of the proposed
Transfer to the approval of borrowers or guarantors, as the case may be, in connection with the
origination or purchase of similar mortgages, deeds of trust or deeds to secure debt on multifamily
properties;
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(iv) in the case of a Transfer of direct or indirect ownership interests in Borrower or
Guarantor, as the case may be, if transferor or any other person has obligations under any Loan
Documents, the execution by the transferee of one (1) or more individuals or entities acceptable to
Lender and/or Fannie Mae of an assumption agreement that is acceptable to Lender and that, among
other things, requires the transferee to perform all obligations of transferor or such person set
forth in such Loan Document, and may require that the transferee comply with any provisions of this
Instrument or any other Loan Document which previously may have been waived by Lender and/or Fannie
Mae;
(v) Lenders receipt of all of the following:
(1) a transfer fee equal to one (1) percent of the Commitment immediately prior to the
transfer.
(2) In addition, Borrower shall be required to reimburse Lender for all of Lenders reasonable
out-of-pocket costs (including reasonable attorneys fees) incurred in reviewing the Transfer
request.
Section 8.15.
Date-Down Endorsements.
Before the release or substitution of a Mortgaged Property and at any time and from time to
time that Lender has reason to believe than an additional lien may encumber a Mortgaged Property,
Lender may obtain an endorsement to each Title Insurance Policy containing a revolving credit
endorsement, amending the effective date of each such Title Insurance Policy to the date of the
title search performed in connection with the endorsement. Borrower shall pay for the cost and
expenses incurred by Lender to the Title Company in obtaining such endorsement, provided that, for
each Title Insurance Policy, it shall not be liable to pay for more than one (1) such endorsement
in any consecutive twelve (12) month period.
Section 8.16.
Ownership of Mortgaged Properties.
Borrower shall be the sole owner of each of the Mortgaged Properties free and clear of any
Liens other than Permitted Liens.
Section 8.17.
Compliance with Net Worth Test.
Camden shall at all times maintain its Net Worth so that it is not less than: $250 million.
Section 8.18.
Compliance with Liquidity Test.
Camden shall at all times maintain cash and Cash Equivalents of not less than an amount equal
to $14.5 million.
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Section 8.19.
Change in Property Manager.
Borrower shall give Lender notice of any change in the identity of the property manager of
each Mortgaged Property, and except with respect to property managers which are Affiliates of the
applicable Borrower, no such change shall be made without the prior consent of Lender.
Any management agreement must be in form and substance satisfactory to Lender. Borrower
agrees to enter into and cause any property manager to enter into an assignment and subordination
of property management agreement in form and substance satisfactory to Lender and any other
documents or agreements Lender shall deem necessary in connection with the execution of any
property management agreement.
Section 8.20.
Single Purpose Entity
.
Borrower and each general partner or managing member of Borrower shall maintain itself as a
Single Purpose entity, provided, however, that (i) Borrower may own more than one Mortgaged
Property, each of which is part of the Collateral Pool and (ii) Borrower and each general partner
or managing member may commingle its funds with Camden provided that such funds are separately
identified and accounted for.
Section 8.21.
ERISA.
Borrower shall at all times remain in compliance in all material respects with all applicable
provisions of ERISA, if any, and shall not incur any liability to the PBGC on a Plan under Title IV
of ERISA. Neither the Borrower, nor any member of the Controlled Group is or ever has been
obligated to contribute to any Multiemployer Plan. The assets of the Borrower do not constitute
plan assets within the meaning of Department of Labor Regulation §2510.3-101 of any employee
benefit plan subject to Title I of ERISA.
Section 8.22.
Consents or Approvals.
Borrower shall obtain any required consent or approval of any creditor of Borrower, any
Governmental Authority or any other Person to perform its obligations under this Agreement and any
other Loan Documents.
Section 8.23.
Post-Closing Obligations.
(a) With respect to the Mortgaged Property known as Camden Deerfield, Borrower shall use
commercially reasonable efforts to obtain the Wetland Mitigation Plan and any amendments and
modifications (as defined in the Restrictive Covenant dated December 31, 1998 by Summit Properties
Partnership, L.P. recorded with the Clerk of the Superior Court of Fulton County, Georgia in Book
25981, Page 200) and shall deliver the same to Lender promptly upon receipt.
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(b) With respect to (i) the one (1) missing certificate of occupancy for 3115 Norfolk Street
at the Mortgaged Property known as Camden Greenway and (ii) the missing certificates of occupancy
for five (5) buildings at the Mortgaged Property known as Camden Lake Pine, Borrower shall use
commercially reasonable efforts to obtain and shall deliver promptly to Lender upon receipt: (A)
such certificates of occupancy, (B) evidence satisfactory to Lender of the existence of such
certificates of occupancy from the municipal entity with jurisdiction over the applicable Mortgaged
Property, or (C) evidence satisfactory to Lender that, notwithstanding the fact that any such
certificates of occupancy do not exist, have not been issued or cannot be located, the municipal
entity with jurisdiction over the applicable Mortgaged Property acknowledges substantially to the
effect that the Mortgaged Property is not in violation of the applicable local law regarding
certificates of occupancy.
ARTICLE 9
NEGATIVE COVENANTS OF BORROWER
Borrower and Guarantor, as applicable, agree and covenant with Lender that, at all times
during the Term of this Agreement:
Section 9.01.
Other Activities.
(a) No Targeted Entity other than Camden shall amend its Organizational Documents in any
material respect, including without limitation the allocation of decision-making rights among the
members or partners, without the prior written consent of Lender;
(b) No Targeted Entity shall dissolve or liquidate in whole or in part;
(c) No Targeted Entity shall, except as otherwise provided in this Agreement, without the
prior written consent of Lender, merge or consolidate with any Person; or
(d) Borrower shall not use, or permit to be used, any Mortgaged Property for any uses or
purposes other than as a Multifamily Residential Property and ancillary uses consistent with
Multifamily Residential Properties.
Section 9.02.
Liens.
Borrower shall not create, incur, assume or suffer to exist any Lien on Borrowers interest in
any Mortgaged Property or any part of any Mortgaged Property, except the Permitted Liens.
Section 9.03.
Indebtedness.
Borrower shall not incur or be obligated at any time with respect to any Indebtedness (other
than Advances) in connection with any of the Mortgaged Properties. Neither Borrower nor any owner
of Borrower shall incur any mezzanine debt, issue any preferred equity or incur any similar
Indebtedness or equity with respect to any Mortgaged Property.
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Section 9.04.
Principal Place of Business.
Borrower shall not change its principal place of business, state of formation, legal name or
the location of its books and records, each as set forth in the Certificate of Borrower Parties,
without first giving thirty (30) days prior written notice to Lender.
Section 9.05.
Condominiums.
Borrower shall not submit any Mortgaged Property to a condominium regime during the Term of
this Agreement.
Section 9.06.
Restrictions on Distributions.
Borrower shall not make any distributions of any nature or kind whatsoever to the owners of
its Ownership Interests as such if, at the time of such distribution, a Potential Event of Default
that may reasonably be expected to result in a Material Adverse Effect or an Event of Default has
occurred and remains uncured.
Section 9.07.
No Hedging Arrangements.
Without the prior written consent of Lender, or unless otherwise required by the Pledge,
Interest Rate Cap Agreement, Borrower will not enter into or guarantee, provide security for or
otherwise undertake any form of contingent obligation with respect to any Hedging Arrangement.
Section 9.08.
Confidentiality of Certain Information.
Borrower Parties shall not disclose any terms, conditions, underwriting requirements or
underwriting procedures of the Credit Facility or any of the Loan Documents; provided, however,
that such confidential information may be disclosed (A) as required by law or pursuant to generally
accepted accounting procedures, (B) to officers, directors, employees, agents, partners, attorneys,
accountants, engineers and other consultants of Borrower Parties who need to know such information,
provided such Persons are instructed to treat such information confidentially, (C) to any
regulatory authority having jurisdiction over a Borrower Party, (D) in connection with any filings
with the Securities and Exchange Commission or other Governmental Authorities, or (E) to any other
Person to which such delivery or disclosure may be necessary or appropriate (1) in compliance with
any law, rule, regulation or order applicable to a Borrower Party, or (2) in response to any
subpoena or other legal process or information investigative demand. Borrower permits Lender to
disclose all financial and other information received from or on behalf of Borrower to Fannie Mae
in connection with the assignment of the Loan. Borrower may freely disclose any information that
Borrower has previously disclosed in
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connection with any filings with the Securities and Exchange Commission or other Governmental
Authorities, that is generally available to the public.
ARTICLE 10
FEES
Section 10.01.
Reserved.
Section 10.02.
Reserved.
Section 10.03.
Origination Fees.
(a)
Initial Origination Fee
. Borrower shall pay to Lender on the date that is the
earlier of (x) the Initial Closing Date and (y) November 13, 2008 an origination fee (
Initial
Origination Fee
) equal to [
*
] multiplied by the Initial Commitment Amount).
(b)
Reserved
.
Section 10.04.
Due Diligence Fees.
(a)
Initial Due Diligence Fees
. Borrower shall pay to Lender non-refundable due
diligence fees (
Initial Due Diligence Fees
) with respect to each Initial Mortgaged
Property in an amount equal to $5,000 per Initial Mortgaged Property. All Initial Due Diligence
Fees shall have been paid prior to the Initial Closing Date and all third party costs and
out-of-pocket fees and expenses incurred by Lender and Fannie Mae shall be paid by Borrower on the
Initial Closing Date (or, if the proposed Initial Mortgaged Properties do not become part of the
Collateral Pool, on demand).
(b)
Additional Due Diligence Fees for Additional Collateral
. Borrower shall pay to
Lender non-refundable additional due diligence fees (the
Additional Collateral Due Diligence
Fees
) with respect to each proposed Additional Mortgaged Property or Substitute Mortgaged
Property, as applicable, in an amount equal to $5,000 per Additional Mortgaged Property or
Substitute Mortgaged Property, as applicable, which represents the estimated cost for due diligence
expenses. All Additional Collateral Due Diligence Fees, third party costs and out-of-pocket fees
and expenses incurred by Lender and Fannie Mae shall be paid by Borrower on the applicable Closing
Date (or if the relevant proposed Additional Mortgaged Property or Substitute Mortgaged Property,
as applicable, does not become part of a Collateral Pool, on demand) for the Additional Mortgaged
Property or Substitute Mortgaged Property, as applicable.
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*
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Indicates material that has been omitted and for which
confidential treatment has been requested. All such omitted material has been
filed with the Securities and Exchange Commission pursuant to Rule 406
promulgated under the Securities Act of 1933, as amended.
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Section 10.05.
Legal Fees and Expenses.
(a)
Initial Legal Fees
. Borrower shall pay, or reimburse Lender for, all
out-of-pocket third party legal fees and expenses incurred by Lender and by Fannie Mae in
connection with the preparation, review and negotiation of this Agreement and any other Loan
Documents executed on the date of this Agreement.
(b)
Fees and Expenses Associated with Requests
. Borrower shall pay, or reimburse
Lender for, all reasonable out-of-pocket third party costs and expenses incurred by Lender,
including the out-of-pocket legal fees and expenses incurred by Lender in connection with the
preparation, review and negotiation of all documents, instruments and certificates to be executed
and delivered in connection with each Request, the performance by Lender of any of its obligations
with respect to the Request, the satisfaction of all conditions precedent to Borrowers rights or
Lenders obligations with respect to the Request, and all transactions related to any of the
foregoing, including the cost of title insurance premiums and applicable recordation and transfer
taxes and charges and all other reasonable costs and expenses in connection with a Request. The
obligations of Borrower under this subsection shall be absolute and unconditional, regardless of
whether the transaction requested in the Request actually occurs. Borrower shall pay such costs
and expenses to Lender on the Closing Date for the Request, or, as the case may be, after demand by
Lender when Lender determines that such Request will not close.
Section 10.06.
Failure to Close any Request.
If Borrower makes a Request and fails to close on the Request for any reason other than the
default by Lender, then Borrower shall pay to Lender and Fannie Mae all damages incurred by Lender
and Fannie Mae in connection with the failure to close.
ARTICLE 11
EVENTS OF DEFAULT
Section 11.01.
Events of Default.
Each of the following events shall constitute an
Event of Default
under this
Agreement, whatever the reason for such event and whether it shall be voluntary or involuntary, or
within or without the control of Borrower or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any Governmental Authority:
(a) the occurrence of a default under any Loan Document beyond the cure period, if any, set
forth therein or an Event of Default under and as defined in any Loan Document; or
(b) the failure by Borrower to pay when due any amount payable by Borrower, beyond any
applicable cure period, under any Note, any Security Instrument, this Agreement or any other Loan
Document, including any fees, costs or expenses, provided that
Master Credit Facility Agreement
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any payment relating to any fee, cost or expense that is not a scheduled payment must be paid
(if not otherwise specified in the applicable Loan Document) within ten (10) days of written notice
by Lender; or
(c) the failure by Borrower to perform or observe any covenant contained in Sections 8.02,
8.07, 8.12, 8.13, 8.14, 8.16, 8.17, 8.18, 8.20 and ; or
(d) any warranty, representation or other written statement made by or on behalf of any
Targeted Entity contained in this Agreement, any other Loan Document or in any instrument furnished
in compliance with or in reference to any of the foregoing, is false or misleading in any material
respect on any date when made or deemed made; or
(e) (i) any Targeted Entity shall (A) commence a voluntary case (or, if applicable, or joint
case) under any Chapter of the Bankruptcy Code (as now or hereafter in effect) or otherwise, (B)
file a petition seeking to take advantage of any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, debt adjustment, winding up or composition or adjustment of
debts, (C) consent to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (D) apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial
part of its property, domestic or foreign, (E) admit in writing its inability to pay, or generally
not be paying, its debts as they become due, (F) make a general assignment for the benefit of
creditors, (G) assert that any Borrower or Guarantor (solely with respect to the Guaranty), has no
liability or obligations under this Agreement or any other Loan Document to which it is a party; or
(H) take any action for the purpose of effecting any of the foregoing; or
(ii) a case or other proceeding shall be commenced against any Targeted Entity in any court of
competent jurisdiction seeking (A) relief under the Federal bankruptcy laws (as now or hereafter in
effect) or under any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding upon or composition or adjustment of debts, or (B) the appointment of a
trustee, receiver, custodian, liquidator or the like of any Targeted Entity or of all or a
substantial part of the property, domestic or foreign, of any Targeted Entity and any such case or
proceeding shall continue undismissed or unstayed for a period of sixty (60) consecutive calendar
days, or any order granting the relief requested in any such case or proceeding against any
Targeted Entity (including an order for relief under such Federal bankruptcy laws) shall be
entered; or
(iii) any Targeted Entity files an involuntary petition against Borrower under any Chapter of
the Bankruptcy Code or under any other bankruptcy, insolvency, reorganization, arrangement or
readjustment of debt, dissolution, liquidation or similar proceeding relating to Borrower under the
laws of any jurisdiction.
(f) both (i) an involuntary petition under any Chapter of the Bankruptcy Code is filed against
Borrower or Borrower directly or indirectly becomes the subject of any
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bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution,
liquidation or similar proceeding relating to it under the laws of any jurisdiction, or in equity,
and (ii) any Targeted Entity has acted in concert or conspired with such creditors of Borrower
(other than Lender) to cause the filing thereof.
(g) if any provision of this Agreement or any other Loan Document or the lien and security
interest purported to be created hereunder or under any Loan Document shall at any time for any
reason cease to be valid and binding in accordance with its terms on Borrower or Guarantor, or
shall be declared to be null and void, or the validity or enforceability hereof or thereof or the
validity or priority of the lien and security interest created hereunder or under any other Loan
Document shall be contested by any Targeted Entity seeking to establish the invalidity or
unenforceability hereof or thereof, or Borrower or Guarantor (only with respect to the Guaranty)
shall deny that it has any further liability or obligation hereunder or thereunder; or
(h) (1) the execution by Borrower of a chattel mortgage or other security agreement on any
materials, fixtures or articles used in the construction or operation of the improvements located
on any Mortgaged Property or on articles of personal property located therein (other than in
connection with any Permitted Liens), or (2) if any such materials, fixtures or articles are
purchased pursuant to any conditional sales contract or other security agreement or otherwise so
that the Ownership thereof will not vest unconditionally in Borrower free from encumbrances, or if
Borrower does not furnish to Lender upon request the contracts, bills of sale, statements,
receipted vouchers and agreements, or any of them, under which Borrower claim title to such
materials, fixtures, or articles; or
(i) the failure by Borrower to comply with any requirement of any Governmental Authority by
the time required by the Governmental Authority; or
(j) a dissolution or liquidation for any reason (whether voluntary or involuntary) of any
Targeted Entity; or
(k) any judgment against Borrower, any attachment or other levy against any portion of
Borrowers assets with respect to a claim or claims in an amount in excess of $250,000 in the
aggregate remains unpaid, unstayed on appeal undischarged, unbonded, not fully insured or
undismissed for a period of ninety (90) days; or
(l) any judgment against Camden, any attachment or other levy against any portion of Camdens
assets with respect to a claim or claims in an amount in excess of $2,500,000 in the aggregate
remains unpaid, unstayed on appeal, undischarged, unbonded, not fully insured or undismissed for a
period of ninety (90) days; or
(m) the failure by Borrower or Guarantor to perform or observe any material term, covenant,
condition or agreement hereunder, other than as contained in subsections (a) through (j) above,
within thirty (30) days after receipt of notice from Lender identifying such failure, provided such
period shall be extended for up to sixty (60) additional days if Borrower,
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in the discretion of Lender, is diligently pursuing a cure of such default within sixty (60)
days after receipt of notice from Lender.
ARTICLE 12
REMEDIES
Section 12.01.
Remedies; Waivers.
Upon the occurrence of an Event of Default, Lender may do any one or more of the following
(without presentment, protest or notice of protest, all of which are expressly waived by Borrower
Party):
(a) by written notice to Borrower, to be effective upon dispatch, terminate the Commitment and
declare the principal of, and interest on, the Advances and all other sums owing by Borrower to
Lender under any of the Loan Documents forthwith due and payable, whereupon the Commitment will
terminate and the principal of, and interest on, the Advances and all other sums owing by Borrower
to Lender under any of the Loan Documents will become forthwith due and payable.
(b) Lender shall have the right to pursue any other remedies available to it under any of the
Loan Documents.
(c) Lender shall have the right to pursue all remedies available to it at law or in equity,
including obtaining specific performance and injunctive relief.
Section 12.02.
Waivers; Rescission of Declaration.
Lender shall have the right, to be exercised in its complete discretion, to waive any breach
hereunder (including the occurrence of an Event of Default), by a writing setting forth the terms,
conditions, and extent of such waiver signed by Lender and delivered to Borrower. Unless such
writing expressly provides to the contrary, any waiver so granted shall extend only to the specific
event or occurrence which gave rise to the waiver and not to any other similar event or occurrence
which occurs subsequent to the date of such waiver.
Section 12.03.
Lenders Right to Protect Collateral and Perform Covenants and Other
Obligations.
If Borrower or Guarantor fails to perform the covenants and agreements contained in this
Agreement or any of the other Loan Documents, then Lender at Lenders option may make such
appearances, disburse such sums and take such action as Lender deems necessary, in its sole
discretion, to protect Lenders interest, including (1) disbursement of reasonable attorneys fees,
(2) entry upon the Mortgaged Property to make repairs and replacements, (3) procurement of
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satisfactory insurance as provided in Section 5 of the Security Instrument encumbering the
Mortgaged Property, and (4) if the Security Instrument is on a leasehold, exercise of any option to
renew or extend the ground lease on behalf of Borrower and the curing of any default of Borrower in
the terms and conditions of the ground lease. Any amounts disbursed by Lender pursuant to this
Section, with interest thereon, shall become additional indebtedness of Borrower secured by the
Loan Documents. Unless Borrower and Lender agree to other terms of payment, such amounts shall be
immediately due and payable and shall bear interest from the date of disbursement at the weighted
average, as determined by Lender, of the interest rates in effect from time to time for each
Advance unless collection from Borrower of interest at such rate would be contrary to Applicable
Law, in which event such amounts shall bear interest at the highest rate which may be collected
from Borrower under Applicable Law. Nothing contained in this Section shall require Lender to
incur any expense or take any action hereunder.
Section 12.04.
No Remedy Exclusive.
Unless otherwise expressly provided, no remedy herein conferred upon or reserved is intended
to be exclusive of any other available remedy, but each remedy shall be cumulative and shall be in
addition to other remedies given under the Loan Documents or existing at law or in equity.
Section 12.05.
No Waiver.
No delay or omission to exercise any right or power accruing under any Loan Document upon the
happening of any Event of Default or Potential Event of Default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient.
Section 12.06.
No Notice.
To entitle Lender to exercise any remedy reserved to Lender in this Article, it shall not be
necessary to give any notice, other than such notice as may be required under the applicable
provisions of this Agreement or any of the other Loan Documents.
ARTICLE 13
INSURANCE, REAL ESTATE TAXES AND REPLACEMENT RESERVES
Section 13.01.
Insurance and Real Estate Taxes.
(a) Insurance and Tax Escrow; Waiver. Borrower shall establish funds for taxes, insurance
premiums and certain other charges for each Mortgaged Property in accordance with Section 7(a) of
the Security Instrument for each Mortgaged Property. Notwithstanding the foregoing, so long as no
Event of Default or Potential Event of Default has occurred, Lender hereby waives the obligations
of Borrower under Section 7(a) of each Security Instrument with
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respect to the escrow of premiums for insurance and taxes (the
Required Escrow
Payments
). During any period in which the obligation to pay the Required Escrow Payments has
been waived pursuant to this
Section 13.01
, each Borrower shall: (i) pay insurance
premiums by or on behalf of Borrower with respect to the insurance policy meeting the requirements
of the Security Instrument for each Mortgaged Property, (ii) pay taxes by or on behalf of Borrower,
(iii) send Lender invoices and paid receipts, or other documentation satisfactory to Lender,
evidencing payment of such insurance premiums on the earlier of (A) the date that each such premium
is due and payable and (B) thirty (30) days prior to the expiration date of such policy, (iv) send
Lender invoices and paid receipts, or other documentation satisfactory to Lender, evidencing
payment of such taxes on the date such taxes are due and payable, (v) provide to Lender written
proof at least thirty (30) days prior to the then-current expiration date of the insurance policy,
certified by the insurance provider, that such policy has been extended for a period of at least
one (1) year, and (vi) include all payments of insurance premiums and taxes in its monthly and
annual property income and expense data.
(b)
Revocation of Waiver
. Lenders waiver of the Required Escrow Payments shall, at
the option of Lender, be revoked upon the occurrence of any of the following events:
(i) the occurrence of an Event of Default or a Potential Event of Default; or
(ii) any Borrower shall fail to perform its obligations under
Section 13.01(a)
.
(iii) failure by any Borrower to (A) participate in a blanket insurance policy that complies
with Fannie Maes insurance requirements and (B) annually furnish signed insurance binders to
Lender within fifteen (15) days prior to the insurance renewal date.
(c) Upon Lenders revocation of its waiver of the Required Escrow Payments, Borrowers
obligations under Section 7(a) of each of the Security Instruments shall immediately be reinstated.
Section 13.02.
Replacement Reserves.
Borrower shall execute a Replacement Reserve Agreement for the Mortgaged Properties and shall
(unless waived by Lender) make all deposits for replacement reserves in accordance with the terms
of the Replacement Reserve Agreement.
Section 13.03.
Completion/Repair Reserves.
Borrower shall execute a Completion/Repair and Security Agreement for the Mortgaged Properties
and shall (unless waived by Lender) make all deposits for reserves in accordance with the terms of
the Completion/Repair and Security Agreement.
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Section 13.04.
Tax Escrows Letter of Credit.
(a) In the event that Borrower shall be required to make monthly escrow payments for taxes,
Borrower may, upon written notice to Lender, elect to provide in lieu of the required deposits for
taxes a Letter of Credit in accordance with this subsection and pursuant to Section 6.15 of this
Agreement. Any Letter of Credit delivered to Fannie Mae in accordance with this subsection shall
be a clean, irrevocable Letter of Credit, naming Fannie Mae as beneficiary, in the amount equal to
the highest aggregate amount of any tax balance for the Mortgaged Property on an annual basis,
which amount shall be determined in Fannie Maes sole discretion (the
Maximum Escrow
Amount
).
(b)
Administrative Fee
. For so long as Lender or Fannie Mae is holding the Letter of
Credit in accordance with this Section 13.04, Borrower shall pay a nonrefundable annual
administrative fee in an amount equal to $500 per Mortgaged Property (the
LOC Fee
) to Lender.
Such LOC Fee shall be paid by Borrower in advance of the effective date of the Letter of Credit and
shall not be prorated if the Letter of Credit is returned prior to time period set forth in Section
13.04(d)(2) hereof.
(c)
Letter of Credit as Additional Collateral
. Borrower agrees that the Letter of
Credit provides collateral for each Note and all Obligations in addition to the lien of each
Security Instrument.
(d)
Conditions for Providing and Holding Letter of Credit.
(1)
Period During Which Borrower Must Provide Letter of Credit
. Until the earliest of
(i) payment in full of all Obligations and sums secured by each Security Instrument, or (ii) the
date that Fannie Mae fully draws on the Letter of Credit as permitted by this Agreement, Borrower
shall renew, amend or replace the Letter of Credit in accordance with the terms of this Agreement
to ensure that the Letter of Credit remains in effect and does not expire or shall provide cash to
Fannie Mae in the amount of tax escrow deposits which would have been required at the time if
Borrower had not elected to furnish the Letter of Credit at least fifteen (15) days prior to the
date the Letter of Credit terminates.
(2)
Return of the Letter of Credit or the Proceeds Thereof
. Fannie Mae shall return
the Letter of Credit, or the proceeds of any draws on such Letter of Credit (less all amounts which
have been applied by Fannie Mae pursuant to the terms of this Section) to Borrower within five (5)
business days after the date on which Fannie Mae releases the lien of each Security Instrument.
(3)
Adjustment of the Letter of Credit
. Borrower shall deliver to Fannie Mae copies
of the paid bills and notices of assessments for Taxes for each Mortgaged Property within thirty
(30) days after the date on which the Taxes are due and payable. Not more than one time each
calendar year, Borrower shall, promptly after receipt of notice from Fannie Mae, deliver to Fannie
Mae an amendment or replacement of the Letter of Credit in the
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Maximum Escrow Amount for the then-current calendar year, as such yearly amount is reasonably
determined by Fannie Mae pursuant to this Agreement.
(e)
Renewal or Replacement of Letter of Credit
.
(1)
Renewal or Replacement
. At least fifteen (15) days prior to the expiration date
of the Letter of Credit, Borrower shall either (i) cause the Letter of Credit to be amended to
extend its expiration date, (ii) furnish a replacement Letter of Credit or (iii) provide cash to
Fannie Mae in the amount of tax escrow deposits which would have been required at the time if
Borrower had not elected to furnish the Letter of Credit.
(2)
Draw on Letter of Credit
. If Borrower does not provide an amendment to, or
replacement of, the Letter of Credit when required pursuant to paragraph (1) above or provide the
amount of cash referenced in paragraph (1) above or the long-term obligations of the LOC Bank are
downgraded as set forth in Section 6.15(b)(iii) of this Agreement, Fannie Mae shall draw the full
amount of the Letter of Credit and hold and apply the proceeds as permitted hereunder.
(f) (1)
Remedies
. If an Event of Default or Potential Event of Default has occurred,
Fannie Mae may apply the proceeds of the Letter of Credit in its discretion pursuant to Section
6.15 of this Agreement.
(2)
No Obligation to Apply Proceeds; No Cure
. Nothing in this Section shall obligate
Fannie Mae to apply all or any portion of the proceeds of the Letter of Credit to cure any default
under the Loan Documents or to reduce the indebtedness evidenced by any Note. No application of
proceeds of the Letter of Credit by Fannie Mae shall be deemed to cure any default.
(g)
Proceeds of the Letter of Credit
.
(1)
Proceeds Held in Escrow Funds Account(s)
. If Fannie Mae draws on the Letter of
Credit and holds the proceeds under this Instrument, such funds shall be held by Lender in escrow
pursuant to Section 7(b) of each Security Instrument.
(2)
No Obligation to Draw or to Apply Proceeds
. Fannie Mae shall only draw on the
Letter of Credit upon any Event of Default or Potential Event of Default (or in those documents
which do not define Event of Default or Potential Event of Default, upon any breach of an
obligation or covenant (in each beyond any applicable notice and grace period) under any of the
Loan Documents or the Borrowers failure to pay the tax obligations secured by the Letter of
Credit, but in any event Fannie Mae shall have no obligation to draw on the Letter of Credit or
apply the proceeds of any draw on the Letter of Credit to cure a default under the Loan Documents;
provided, however, the proceeds of any draw on the Letter of Credit shall be used by Fannie Mae for
the benefit of Borrower to either pay such tax obligations secured by the Letter of Credit or
otherwise apply the proceeds to satisfy the Obligations of Borrower under and
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as permitted by this Agreement. Fannie Mae may hold the Letter of Credit or the proceeds of
any Letter of Credit until the date for return as determined pursuant to paragraph (c)(2), or apply
all or any portion of the proceeds as permitted by this Agreement or any of the Loan Documents and
hold any remaining proceeds until the date for return determined under paragraph (c)(2).
ARTICLE 14
LIMITS ON PERSONAL LIABILITY
Section 14.01.
Personal Liability to Borrower
.
Except as otherwise provided in this
Article 14
, Borrower shall have no personal
liability under the Loan Documents for the repayment of any Indebtedness or for the performance of
any other Obligations of Borrower under the Loan Documents, and Lenders only recourse for the
satisfaction of the Indebtedness and the performance of such Obligations shall be Lenders exercise
of its rights and remedies with respect to the Mortgaged Properties and any other Collateral held
by Lender as security for the Indebtedness.
(a)
Exceptions to Limits on Personal Liability
. Borrower shall be personally liable
to Lender for the repayment of a portion of the Advances and other amounts due under the Loan
Documents equal to any loss, expense, cost, liability or damage suffered by Lender as a result of
or in any manner relating to (1) failure of Borrower to pay to Lender upon demand after an Event of
Default all Rents received by Borrower or its property manager to which Lender is entitled under
Section 3(a) of the Security Instrument encumbering the Mortgaged Property and the amount of all
security deposits held by Borrower from tenants then in residence; (2) failure of Borrower to apply
all insurance proceeds, condemnation proceeds or security deposits from tenants as required by the
Security Instrument encumbering the Mortgaged Property; (3) failure of such Borrower to comply with
its obligations under the Loan Documents with respect to the delivery of books and records and
financial statements; (4) fraud or intentional material misrepresentation by Borrower or any
officer, director, partner, member or employee of Borrower in connection with the application for
or creation of the Obligations or any request for any action or consent by Lender; (5) any and all
indemnification obligations contained in Section 18 of any Security Instrument; (vi) the litigation
against Camden Property Trust and Camden Builders Inc., filed by the Equal Rights Center in the
United States District Count for the District of Maryland as Case No. PJM 07 CV 2357 with respect
to the Fair Housing Act and the Americans with Disabilities Act; or (vii) failure to apply Rents,
first, to the payment of reasonable operating expenses and then to amounts (
Debt Service
Amounts
) payable under the Loan Documents (except that Borrower will not be personally liable
(1) to the extent that Borrower lacks the legal right to direct the disbursement of such sums
because of a bankruptcy, receivership or similar judicial proceeding, or (2) with respect to Rents
of a Mortgaged Property that are distributed in any Calendar Quarter if Borrower has paid all
operating expenses and Debt Service Amounts for the preceding Calendar Quarter). For purposes of
this subsection (a), the term
Rents
shall have the meaning given to such term in the
Security Instrument.
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(a)
Full Recourse
. Borrower shall be personally liable to Lender for the payment and
performance of all Obligations upon the occurrence of any of the following Events of Default: (1)
Borrower acquisition of any property or operation of any business not permitted by Section 33 of
any Security Instrument; or (2) a Transfer that is an Event of Default under Section 21 of any
Security Instrument; or (3) a Bankruptcy Event.
As used in this Subsection, the term Bankruptcy Event means any one or more of the following
events:
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(A)
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Any Borrower (i) commences a voluntary case (or, if applicable, a joint case)
under any chapter of the Bankruptcy Code or otherwise or consents to or fails to
contest in a timely and appropriate manner any petition filed against it in an
involuntary case under any chapter of the Bankruptcy Code or otherwise, (ii) institutes
(by petition, application, answer, consent or otherwise) any other bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation
or similar proceeding relating to it under the laws of any jurisdiction, (iii) makes a
general assignment for the benefit of creditors, (iv) applies for, consents to or
acquiesces in the appointment of any receiver, liquidator, custodian, sequestrator,
trustee or similar officer for it or for all or any substantial part of the Mortgaged
Properties or (v) admits in writing its inability to pay its debts generally as they
mature.
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(B)
|
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Any Targeted Entity files an involuntary petition against any Borrower under
any chapter of the Bankruptcy Code or under any other bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar
proceeding relating to Borrower under the laws of any jurisdiction.
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(C)
|
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Both (1) an involuntary petition under any chapter of the Bankruptcy Code is
filed against any Borrower, or any Borrower directly or indirectly becomes the subject
of any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
dissolution, liquidation or similar proceeding relating to it under the laws of any
jurisdiction, or in equity, and (ii) any Targeted Entity has acted in concert or
conspired with such creditors of Borrower (other than Fannie Mae or Lender) to cause
the filing thereof.
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(b)
Miscellaneous
. To the extent that Borrower has personal liability under this
Section, or Guarantor has liability under the Guaranty, such liability shall be joint and several
and Lender may exercise its rights against Borrower or Guarantor personally without regard to
whether Lender has exercised any rights against the Mortgaged Property or any other security, or
pursued any rights against any guarantor, or pursued any other rights available to Lender under the
Loan Documents or Applicable Law. For purposes of this Article, the term
Mortgaged
Property
shall not include any funds that (1) have been applied by Borrower as required or
permitted by the Loan Documents prior to the occurrence of an Event of Default, or
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(2) are owned by Borrower or Guarantor and which Borrower was unable to apply as required or
permitted by the Loan Documents because of a bankruptcy, receivership, or similar judicial
proceeding.
Section 14.02.
Additional Borrowers
.
If the owner of an Additional Mortgaged Property or a Substitute Mortgaged Property is an
Additional Borrower, the owner of such Additional Mortgaged Property or Substitute Mortgaged
Property, as the case may be, must demonstrate to the satisfaction of Lender that:
(i) the Additional Borrower is a Single-Purpose entity; and
(ii) the Additional Borrower is directly or indirectly wholly-owned by either Guarantor.
In addition, on the Closing Date of the addition of an Additional Mortgaged Property or a
Substitute Mortgaged Property, the owner of such Additional Mortgaged Property or such Substitute
Mortgaged Property, as the case may be, if such owner is an Additional Borrower, shall become a
party to the Contribution Agreement in a manner satisfactory to Lender, shall deliver a Certificate
of Borrower Parties in form and substance satisfactory to Lender, and execute and deliver, along
with the other Borrowers, Variable Facility Notes and/or Fixed Facility Notes. Any Additional
Borrower of an Additional Mortgaged Property or a Substitute Mortgaged Property which becomes added
to the Collateral Pool shall be a Borrower for purposes of this Agreement and shall execute and
deliver to Lender an amendment adding such Additional Borrower as a party to this Agreement and
revising the Exhibits hereto, as applicable, to reflect the Additional Mortgaged Property or
Substitute Mortgaged Property and Additional Borrower, in each case satisfactory to Lender.
Upon the release of a Mortgaged Property, the Borrower that owns such Release Mortgaged
Property shall automatically without further action be released from its obligations under this
Agreement and the other Loan Documents except for any liabilities or obligations of such Borrower
which arose prior to the Closing Date of such release.
Section 14.03.
Borrower Agency Provisions.
(a) In the event an Additional Borrower becomes a party to this Agreement, each Borrower shall
irrevocably designate the Borrower Agent to be its agent and in such capacity to receive on behalf
of the Borrower all proceeds, receive all notices on behalf of Borrower under this Agreement, make
all requests under this Agreement, and execute, deliver and receive all instruments, certificates,
requests, documents, writings and further assurances now or hereafter required hereunder, on behalf
of such Borrower, and hereby authorizes the Lender to pay over all loan proceeds hereunder in
accordance with the request of the Borrower Agent. Each Borrower hereby acknowledges that all
notices required to be delivered by Lender
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to any Borrower shall be delivered to the Borrower Agent and thereby shall be deemed to have
been received by such Borrower.
(b) The handling of this credit facility as a co-borrowing facility with a Borrower Agent in
the manner set forth in this Agreement is solely as an accommodation to each of Borrower and
Guarantor and is at their mutual request. Lender shall not incur liability to Borrower or
Guarantor as a result thereof. To induce Lender to do so and in consideration thereof, each
Borrower hereby indemnifies the Lender and holds Lender harmless from and against any and all
liabilities, expenses, losses, damages and claims of damage or injury asserted against Lender by
any Person arising from or incurred by reason of the Borrower Agent handling of the financing
arrangements of Borrower as provided herein, reliance by Lender on any request or instruction from
Borrower Agent or any other action taken by the Lender with respect to this Section 14.03 except
due to willful misconduct or gross negligence of the indemnified party.
Section 14.04.
Joint and Several Obligation; Cross-Guaranty.
Notwithstanding anything contained in this Agreement or the other Loan Documents to the
contrary (but subject to the last sentence of this Section 14.04 and the provisions of Section
14.11), each Borrower shall have joint and several liability for all Obligations. Notwithstanding
the intent of all of the parties to this Agreement that all Obligations of each Borrower under this
Agreement and the other Loan Documents shall be joint and several Obligations of each Borrower,
each Borrower, on a joint and several basis, hereby irrevocably guarantees to Lender and its
successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or
otherwise) and performance of, all Obligations owed or hereafter owing to Lender by each other
Borrower. Each Borrower agrees that its guaranty obligation hereunder is an unconditional guaranty
of payment and performance and not merely a guaranty of collection. The Obligations of each
Borrower under this Agreement shall not be subject to any counterclaim, set-off, recoupment,
deduction, cross-claim or defense based upon any claim any Borrower may have against Lender or any
other Borrower; provided, however, that upon the release of a Mortgaged Property, the Borrower
which owns such Release Mortgaged Property shall automatically without further action be released
from its obligations under this Agreement for the Obligations, except for any liabilities or
obligations of such Borrower which arose prior to the Closing Date of such release.
Section 14.05.
Waivers With Respect to Other Borrower Secured Obligation.
To the extent that a Security Instrument or any other Loan Document executed by one Borrower
secures an Obligation of another Borrower (the
Other Borrower Secured Obligation
), and/or
to the extent that a Borrower has guaranteed the debt of another Borrower pursuant to Article 14,
Borrower who executed such Loan Document and/or guaranteed such debt (the
Waiving
Borrower
) hereby agrees as follows:
(a) The Waiving Borrower hereby waives any right it may now or hereafter have to require the
beneficiary, assignee or other secured party under such Loan Document, as a
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condition to the exercise of any remedy or other right against it thereunder or under any
other Loan Document executed by the Waiving Borrower in connection with the Other Borrower Secured
Obligation: (i) to proceed against the other Borrower or any other person, or against any other
collateral assigned to Lender by either Borrower or any other person; (ii) to pursue any other
right or remedy in Lenders power; (iii) to give notice of the time, place or terms of any public
or private sale of real or personal property collateral assigned to Lender by the other Borrower or
any other person (other than the Waiving Borrower), or otherwise to comply with Section 9615 of the
California Commercial Code (as modified or recodified from time to time) with respect to any such
personal property collateral located in the State of California; or (iv) to make or give (except as
otherwise expressly provided in the Security Documents) any presentment, demand, protest, notice of
dishonor, notice of protest or other demand or notice of any kind in connection with the Other
Borrower Secured Obligation or any collateral (other than the Collateral described in such Security
Document) for the Other Borrower Secured Obligation.
(b) The Waiving Borrower hereby waives any defense it may now or hereafter have that relates
to: (i) any disability or other defense of the other Borrower or any other person; (ii) the
cessation, from any cause other than full performance, of the Other Borrower Secured Obligation;
(iii) the application of the proceeds of the Other Borrower Secured Obligation, by the other
Borrower or any other person, for purposes other than the purposes represented to the Waiving
Borrower by the other Borrower or otherwise intended or understood by the Waiving Borrower or the
other Borrower; (iv) any act or omission by Lender which directly or indirectly results in or
contributes to the release of the other Borrower or any other person or any collateral for any
Other Borrower Secured Obligation; (v) the unenforceability or invalidity of any Security Document
or Loan Document (other than the Security Instrument executed by the Waiving Borrower that secures
the Other Borrower Secured Obligation) or guaranty with respect to any Other Borrower Secured
Obligation, or the lack of perfection or continuing perfection or lack of priority of any Lien
(other than the Lien of such Security Instrument) which secures any Other Borrower Secured
Obligation; (vi) any failure of Lender to marshal assets in favor of the Waiving Borrower or any
other person; (vii) any modification of any Other Borrower Secured Obligation, including any
renewal, extension, acceleration or increase in interest rate; (viii) any and all rights and
defenses arising out of an election of remedies by Lender, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has
destroyed the Waiving Borrowers rights of subrogation and reimbursement against the principal by
the operation of Section 580d of the California Code of Civil Procedure or otherwise; (ix) any law
which provides that the obligation of a surety or guarantor must neither be larger in amount nor in
other respects more burdensome than that of the principal or which reduces a suretys or
guarantors obligation in proportion to the principal obligation; (x) any failure of Lender to file
or enforce a claim in any bankruptcy or other proceeding with respect to any person; (xi) the
election by Lender, in any bankruptcy proceeding of any person, of the application or
non-application of Section 1111(b)(2) of the Bankruptcy Code; (xii) any extension of credit or the
grant of any lien under Section 364 of the Bankruptcy Code; (xiii) any use of cash collateral under
Section 363 of the Bankruptcy Code; or (xiv) any agreement or stipulation with respect to the
provision of adequate protection in any bankruptcy proceeding of
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any person. The Waiving Borrower further waives any and all rights and defenses that it may
have because the Other Borrower Secured Obligation is secured by real property; this means, among
other things, that: (A) Lender may collect from the Waiving Borrower without first foreclosing on
any real or personal property collateral pledged by the other Borrower; (B) if Lender forecloses on
any real property collateral pledged by the other Borrower, then (1) the amount of the Other
Borrower Secured Obligation may be reduced only by the price for which that collateral is sold at
the foreclosure sale, even if the collateral is worth more than the sale price, and (2) Lender may
foreclose on the real property encumbered by the Security Instrument executed by the Waiving
Borrower and securing the Other Borrower Secured Obligation even if Lender, by foreclosing on the
real property collateral of the Other Borrower, has destroyed any right the Waiving Borrower may
have to collect from the Other Borrower. Subject to the last sentence of Section 14.04, the
foregoing sentence is an unconditional and irrevocable waiver of any rights and defenses the
Waiving Borrower may have because the Other Borrower Secured Obligation is secured by real
property. These rights and defenses being waived by the Waiving Borrower include, but are not
limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California
Code of Civil Procedure. Without limiting the generality of the foregoing or any other provision
hereof, the Waiving Borrower further expressly waives, except as provided in Section 14.05(g)
below, to the extent permitted by law any and all rights and defenses that might otherwise be
available to it under California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, or
under California Code of Civil Procedure Sections 580a, 580b, 580d and 726, or any of such
sections.
(c) The Waiving Borrower hereby waives any and all benefits and defenses under California
Civil Code Section 2810 and agrees that by doing so the Security Instrument executed by the Waiving
Borrower and securing the Other Borrower Secured Obligation shall be and remain in full force and
effect even if the other Borrower had no liability at the time of incurring the Other Borrower
Secured Obligation, or thereafter ceases to be liable. The Waiving Borrower hereby waives any and
all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so the
Waiving Borrowers liability may be larger in amount and more burdensome than that of the other
Borrower. The Waiving Borrower hereby waives the benefit of all principles or provisions of law
that are or might be in conflict with the terms of any of its waivers, and agrees that the Waiving
Borrowers waivers shall not be affected by any circumstances that might otherwise constitute a
legal or equitable discharge of a surety or a guarantor. The Waiving Borrower hereby waives the
benefits of any right of discharge and all other rights under any and all statutes or other laws
relating to guarantors or sureties, to the fullest extent permitted by law, diligence in collecting
the Other Borrower Secured Obligation, presentment, demand for payment, protest, all notices with
respect to the Other Borrower Secured Obligation that may be required by statute, rule of law or
otherwise to preserve Lenders rights against the Waiving Borrower hereunder, including notice of
acceptance, notice of any amendment of the Loan Documents evidencing the Other Borrower Secured
Obligation, notice of the occurrence of any default or Event of Default, notice of intent to
accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest,
notice of the incurring by the other Borrower of any obligation or indebtedness and all rights to
require Lender to (i)
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proceed against the other Borrower, (ii) proceed against any general partner of the other
Borrower, (iii) proceed against or exhaust any collateral held by Lender to secure the Other
Borrower Secured Obligation, or (iv) if the other Borrower is a partnership, pursue any other
remedy it may have against the other Borrower, or any general partner of the other Borrower,
including any and all benefits under California Civil Code Sections 2845, 2849 and 2850.
(d) The Waiving Borrower understands that the exercise by Lender of certain rights and
remedies contained in a Security Instrument executed by the Other Borrower (such as a nonjudicial
foreclosure sale) may affect or eliminate the Waiving Borrowers right of subrogation against the
Other Borrower and that the Waiving Borrower may therefore incur a partially or totally
nonreimburseable liability. Nevertheless, the Waiving Borrower hereby authorizes and empowers
Lender to exercise, in its sole and absolute discretion, any right or remedy, or any combination
thereof, that may then be available, since it is the intent and purpose of the Waiving Borrower
that its waivers shall be absolute, independent and unconditional under any and all circumstances.
(e) In accordance with Section 2856 of the California Civil Code, the Waiving Borrower also
waives any right or defense based upon an election of remedies by Lender, even though such election
(e.g., nonjudicial foreclosure with respect to any collateral held by Lender to secure repayment of
the Other Borrower Secured Obligation) destroys or otherwise impairs the subrogation rights of the
Waiving Borrower to any right to proceed against the other Borrower for reimbursement, or both, by
operation of Section 580d of the California Code of Civil Procedure or otherwise.
(f) Subject to the last sentence of Section 14.04, in accordance with Section 2856 of the
California Civil Code, the Waiving Borrower waives any and all other rights and defenses available
to the Waiving Borrower by reason of Sections 2787 through 2855, inclusive, of the California Civil
Code, including any and all rights or defenses the Waiving Borrower may have by reason of
protection afforded to the other Borrower with respect to the Other Borrower Secured Obligation
pursuant to the antideficiency or other laws of the State of California limiting or discharging the
Other Borrower Secured Obligation, including Sections 580a, 580b, 580d, and 726 of the California
Code of Civil Procedure.
(g) In accordance with Section 2856 of the California Civil Code and pursuant to any other
Applicable Law, the Waiving Borrower agrees to withhold the exercise of any and all subrogation,
contribution and reimbursement rights against Borrower, against any other person, and against any
collateral or security for the Other Borrower Secured Obligation, including any such rights
pursuant to Sections 2847 and 2848 of the California Civil Code, until the Other Borrower Secured
Obligation has been indefeasibly paid and satisfied in full, all obligations owed to Lender under
the Loan Documents have been fully performed, and Lender has released, transferred or disposed of
all of its right, title and interest in such collateral or security.
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(h) Each Borrower hereby irrevocably and unconditionally agrees that, notwithstanding Section
14.05(g) hereof, in the event, and to the extent, that its agreement and waiver set forth in
Section 14.05(g) is found by a court of competent jurisdiction to be void or voidable for any
reason and such Borrower has any subrogation or other rights against any other Borrower, any such
claims, direct or indirect, that such Borrower may have by subrogation rights or other form of
reimbursement, contribution or indemnity, against any other Borrower or to any security or any such
Borrower, shall be, and such rights, claims and indebtedness are hereby, deferred, postponed and
fully subordinated in time and right of payment to the prior payment, performance and satisfaction
in full of the Obligations. Until payment and performance in full with interest (including
post-petition interest in any case under any chapter of the Bankruptcy Code) of the Obligations,
each Borrower agrees not to accept any payment or satisfaction of any kind of Indebtedness of any
other Borrower in respect of any such subrogation rights arising by virtue of payments made
pursuant to this Article 14, and hereby assigns such rights or indebtedness to Lender, including
(i) the right to file proofs of claim and to vote thereon in connection with any case under any
chapter of the Bankruptcy Code and (ii) the right to vote on any plan of reorganization. In the
event that any payment on account of any such subrogation rights shall be received by any Borrower
in violation of the foregoing, such payment shall be held in trust for the benefit of Lender, and
any amount so collected should be turned over to Lender for application to the Obligations.
(i) At any time without notice to the Waiving Borrower, and without affecting or prejudicing
the right of Lender to proceed against the Collateral described in any Loan Document executed by
the Waiving Borrower and securing the Other Borrower Secured Obligation, (i) the time for payment
of the principal of or interest on, or the performance of, the Other Borrower Secured Obligation
may be extended or the Other Borrower Secured Obligation may be renewed in whole or in part; (ii)
the time for the other Borrowers performance of or compliance with any covenant or agreement
contained in the Loan Documents evidencing the Other Borrower Secured Obligation, whether presently
existing or hereinafter entered into, may be extended or such performance or compliance may be
waived; (iii) the maturity of the Other Borrower Secured Obligation may be accelerated as provided
in the related Note or any other related Loan Document; (iv) the related Note or any other related
Loan Document may be modified or amended by Lender and the Other Borrower in any respect, including
an increase in the principal amount; and (v) any security for the Other Borrower Secured Obligation
may be modified, exchanged, surrendered or otherwise dealt with or additional security may be
pledged or mortgaged for the Other Borrower Secured Obligation.
(j) It is agreed among each Borrower and Lender that all of the foregoing waivers are of the
essence of the transaction contemplated by this Agreement and the Loan Documents and that but for
the provisions of this Article 14 and such waivers Lender would decline to enter into this
Agreement.
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Section 14.06.
No Impairment
.
Each Borrower agrees that the provisions of this Article 14 are for the benefit of Lender and
their successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as
between any other Borrower and Lender, the obligations of such other Borrower under the Loan
Documents.
Section 14.07.
Election of Remedies
.
(a) Lender, in its discretion, may (a) bring suit against any one or more Borrowers, jointly
and severally, without any requirement that Lender first proceed against any other Borrower or any
other Person; (b) compromise or settle with any one or more Borrowers, or any other Person, for
such consideration as Lender may deem proper; (c) release one or more Borrowers, or any other
Person, from liability; and (d) otherwise deal with any Borrower and any other Person, or any one
or more of them, in any manner, or resort to any of the Collateral at any time held by it for
performance of the Obligations or any other source or means of obtaining payment of the
Obligations, and no such action shall impair the rights of Lender to collect from any Borrower any
amount guaranteed by any Borrower under this Article 14.
(b) If, in the exercise of any of its rights and remedies, Lender shall forfeit any of its
rights or remedies, including its rights to enter a deficiency judgment against any Borrower or any
other Person, whether because of any Applicable Law pertaining to election of remedies or the
like, each Borrower hereby consents to such action by Lender and waives any claim based upon such
action, even if such action by Lender shall result in a full or partial loss of any rights of
subrogation that each Borrower might otherwise have had but for such action by Lender. Any
election of remedies that results in the denial or impairment of the right of Lender to seek a
deficiency judgment against any Borrower shall not impair any other Borrowers obligation to pay
the full amount of the Obligations. In the event Lender shall bid at any foreclosure or trustees
sale or at any private sale permitted by law or any of the Loan Documents, Lender may bid all or
less than the amount of the Obligations and the amount of such bid need not be paid by Lender but
shall be credited against the Obligations. The amount of the successful bid at any such sale,
whether Lender or any other party is the successful bidder, shall be conclusively deemed to be fair
market value of the Collateral and the difference between such bid amount and the remaining balance
of the Obligations shall be conclusively deemed to be amount of the Obligations guaranteed under
this Article 14, notwithstanding that any present or future law or court decision or ruling may
have the effect of reducing the amount of any deficiency claim to which Lender might otherwise be
entitled but for such bidding at any such sale.
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Section 14.08.
Subordination of Other Obligations
.
(a) Each Borrower hereby irrevocably and unconditionally agrees that all amounts payable from
time to time to such Borrower by any other Borrower pursuant to any agreement, whether secured or
unsecured, whether of principal, interest or otherwise, other than the amounts referred to in this
Article 14 (collectively, the
Subordinated Obligations
), shall be and such rights, claims
and indebtedness are, hereby deferred, postponed and fully subordinated in time and right of
payment to the prior payment, performance and satisfaction in full of the Obligations; provided,
however, that payments may be received by any Borrower in accordance with, and only in accordance
with, the provisions of Section 14.08(b) hereof.
(b) Until the Obligations under all the Loan Documents have been finally paid in full or fully
performed and all the Loan Documents have been terminated, each Borrower irrevocably and
unconditionally agrees it will not ask, demand, sue for, take or receive, directly or indirectly,
by set-off, redemption, purchase or in any other manner whatsoever, any payment with respect to, or
any security or guaranty for, the whole or any part of the Subordinated Obligations, and in issuing
documents, instruments or agreements of any kind evidencing the Subordinated Obligations, each
Borrower hereby agrees that it will not receive any payment of any kind on account of the
Subordinated Obligations, so long as any of the Obligations under all the Loan Documents are
outstanding or any of the terms and conditions of any of the Loan Documents are in effect;
provided, however, that, notwithstanding anything to the contrary contained herein, if no Potential
Event of Default or Event of Default has occurred and is continuing under any of the Loan
Documents, then payments may be received by such Borrower in respect of the Subordinated
Obligations in accordance with the stated terms thereof. Except as aforesaid, each Borrower agrees
not to accept any payment or satisfaction of any kind of indebtedness of any other Borrower in
respect of the Subordinated Obligations and hereby assigns such rights or indebtedness to Fannie
Mae, including the right to file proofs of claim and to vote thereon in connection with any case
under any chapter of the Bankruptcy Code, including the right to vote on any plan of
reorganization. In the event that any payment on account of Subordinated Obligations shall be
received by any Borrower in violation of the foregoing, such payment shall be held in trust for the
benefit of Lender, and any amount so collected shall be turned over to Lender upon demand.
Section 14.09.
Insolvency and Liability of Other Borrower
.
So long as any of the Obligations are outstanding, if a petition under any chapter of the
Bankruptcy Code is filed by or against any Borrower (the
Subject Borrower
), each other
Borrower (each, an
Other Borrower
) agrees to file all claims against the Subject Borrower
in any bankruptcy or other proceeding in which the filing of claims is required by law in
connection with indebtedness owed by the Subject Borrower and to assign to Lender all rights
thereunder up to the amount of such indebtedness. In all such cases, the Person or Persons
authorized to pay such claims shall pay to Lender the full amount thereof and Lender agrees to pay
such Other Borrower any amounts received in excess of the amount necessary to pay the Obligations.
Each
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Other Borrower hereby assigns to Lender all of such Other Borrowers rights to all such
payments to which such Other Borrower would otherwise be entitled but not to exceed the full amount
of the Obligations. In the event that, notwithstanding the foregoing, any such payment shall be
received by any Other Borrower before the Obligations shall have been finally paid in full, such
payment shall be held in trust for the benefit of and shall be paid over to Lender upon demand.
Furthermore, notwithstanding the foregoing, the liability of each Borrower hereunder shall in no
way be affected by:
(a) the release or discharge of any other Borrower in any creditors, receivership, bankruptcy
or other proceedings; or
(b) the impairment, limitation or modification of the liability of any other Borrower or the
estate of any other Borrower in bankruptcy resulting from the operation of any present or future
provisions of any chapter of the Bankruptcy Code or other statute or from the decision in any
court.
Section 14.10.
Preferences, Fraudulent Conveyances, Etc
.
If Lender is required to refund, or voluntarily refunds, any payment received from any
Borrower because such payment is or may be avoided, invalidated, declared fraudulent, set aside or
determined to be void or voidable as a preference, fraudulent conveyance, impermissible setoff or a
diversion of trust funds under the bankruptcy laws or for any similar reason, including without
limitation any judgment, order or decree of any court or administrative body having jurisdiction
over any Borrower or any of its property, or upon or as a result of the appointment of a receiver,
intervenor, custodian or conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, or any statement or compromise of any claim
effected by Lender with any Borrower or any other claimant (a
Rescinded Payment
), then
each other Borrowers liability to Lender shall continue in full force and effect, or each other
Borrowers liability to Lender shall be reinstated and renewed, as the case may be, with the same
effect and to the same extent as if the Rescinded Payment had not been received by Lender,
notwithstanding the cancellation or termination of any of the Loan Documents, and regardless of
whether Lender contested the order requiring the return of such payment. In addition, each other
Borrower shall pay, or reimburse Lender for, all expenses (including all reasonable attorneys
fees, court costs and related disbursements) incurred by Lender in the defense of any claim that a
payment received by Lender in respect of all or any part of the Obligations must be refunded. The
provisions of this Section 14.10 shall survive the termination of the Loan Documents and any
satisfaction and discharge of any Borrower by virtue of any payment, court order or any federal or
state law.
Section 14.11.
Maximum Liability of Each Borrower
.
Notwithstanding anything contained in this Agreement or any other Loan Document to the
contrary, if the obligations of any Borrower under this Agreement or any of the other Loan
Documents or any Security Instruments granted by any Borrower are determined to exceed the
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reasonably equivalent value received by such Borrower in exchange for such obligations or
grant of such Security Instruments under any Fraudulent Transfer Law (as hereinafter defined), then
the liability of such Borrower shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations under this Agreement or all the other Loan Documents
subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the
United States Code or any applicable provisions of comparable state law (collectively, the
Fraudulent Transfer Laws
), in each case after giving effect to all other liabilities of
such Borrower, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Borrower in respect of Indebtedness to
any other Borrower or any other Person that is an Affiliate of the other Borrower to the extent
that such Indebtedness would be discharged in an amount equal to the amount paid by such Borrower
in respect of the Obligations) and after giving effect (as assets) to the value (as determined
under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of such Borrower pursuant to Applicable Law or
pursuant to the terms of any agreement including the Contribution Agreement.
Section 14.12.
Liability Cumulative; References to California Law
.
The liability of each Borrower under this Article 14 is in addition to and shall be cumulative
with all liabilities of such Borrower to Lender under this Agreement and all the other Loan
Documents to which such Borrower is a party or in respect of any Obligations of any other Borrower.
All references in Article 14 to California law are only applicable if any Mortgaged Property
is located in California.
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.01.
Counterparts.
To facilitate execution, this Agreement may be executed in any number of counterparts. It
shall not be necessary that the signatures of, or on behalf of, each party, or that the signatures
of all persons required to bind any party, appear on each counterpart, but it shall be sufficient
that the signature of, or on behalf of, each party, appear on one (1) or more counterparts. All
counterparts shall collectively constitute a single agreement. It shall not be necessary in making
proof of this Agreement to produce or account for more than the number of counterparts containing
the respective signatures of, or on behalf of, all of the parties hereto.
Section 15.02.
Amendments, Changes and Modifications.
This Agreement may be amended, changed, modified, altered or terminated only by written
instrument or written instruments signed by all of the parties hereto.
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Section 15.03.
Payment of Costs, Fees and Expenses.
In addition to the payments required by
Section 10.05
of this Agreement, Borrower
shall pay, on demand, all reasonable third party out-of-pocket fees, costs, charges or expenses
(including the fees and expenses of attorneys, accountants and other experts) incurred by Lender in
connection with:
(a) Any amendment, consent or waiver to this Agreement or any of the Loan Documents (whether
or not any such amendments, consents or waivers are entered into).
(b) Defending or participating in any litigation arising from actions by third parties and
brought against or involving Lender with respect to (1) any Mortgaged Property, (2) any event, act,
condition or circumstance in connection with any Mortgaged Property or (3) the relationship between
Lender and Borrower and Guarantor in connection with this Agreement or any of the transactions
contemplated by this Agreement.
(c) The administration or enforcement of, or preservation of rights or remedies under, this
Agreement or any other Loan Documents or in connection with the foreclosure upon, sale of or other
disposition of any Collateral granted pursuant to the Loan Documents.
(d) Any disclosure documents, including the reasonable fees and expenses of Lenders attorneys
and accountants.
Borrower shall also pay, on demand, any transfer taxes, documentary taxes, assessments or charges
made by any governmental authority by reason of the execution, delivery, filing, recordation,
performance or enforcement of any of the Loan Documents or the Advances. However, Borrower will
not be obligated to pay any franchise, excise, estate, inheritance, income, excess profits or
similar tax on Lender. Any attorneys fees and expenses payable by Borrower pursuant to this
Section shall be recoverable separately from and in addition to any other amount included in such
judgment, and such obligation is intended to be severable from the other provisions of this
Agreement and to survive and not be merged into any such judgment. Any amounts payable by Borrower
pursuant to this Section, with interest thereon if not paid when due, shall become additional
indebtedness of Borrower secured by the Loan Documents. Such amounts shall bear interest from the
date such amounts are due until paid in full at the weighted average, as determined by Lender, of
the interest rates in effect from time to time for each Advance unless collection from Borrower of
interest at such rate would be contrary to Applicable Law, in which event such amounts shall bear
interest at the highest rate which may be collected from Borrower under Applicable Law. The
provisions of this Section are cumulative with, and do not exclude the application and benefit to
Lender of, any provision of any other Loan Document relating to any of the matters covered by this
Section.
Master Credit Facility Agreement
Camden 2008
68
Section 15.04.
Payment Procedure.
All payments to be made to Lender pursuant to this Agreement or any of the Loan Documents
shall be made in lawful currency of the United States of America and in immediately available funds
by wire transfer to an account designated by Lender before 1:00 p.m. (Eastern Standard Time) on the
date when due.
Section 15.05.
Payments on Business Days.
In any case in which the date of payment to Lender or the expiration of any time period
hereunder occurs on a day which is not a Business Day, then such payment or expiration of such time
period need not occur on such date but may be made on the next succeeding Business Day with the
same force and effect as if made on the day of maturity or expiration of such period, except that
interest shall continue to accrue for the period after such date to the next Business Day.
Section 15.06.
Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial.
NOTWITHSTANDING ANYTHING IN THE NOTES, THE SECURITY DOCUMENTS OR ANY OF THE OTHER LOAN
DOCUMENTS TO THE CONTRARY, EACH OF THE TERMS AND PROVISIONS, AND RIGHTS AND OBLIGATIONS OF BORROWER
UNDER THIS AGREEMENT AND THE NOTES, GUARANTOR UNDER THE GUARANTY, AND BORROWER AND GUARANTOR UNDER
THE OTHER LOAN DOCUMENTS, SHALL BE GOVERNED BY, INTERPRETED, CONSTRUED AND ENFORCED PURSUANT TO AND
IN ACCORDANCE WITH THE LAWS OF THE DISTRICT OF COLUMBIA (EXCLUDING THE LAW APPLICABLE TO CONFLICTS
OR CHOICE OF LAW) EXCEPT TO THE EXTENT OF PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO (1)
THE CREATION, PERFECTION AND FORECLOSURE OF LIENS AND SECURITY INTERESTS, AND ENFORCEMENT OF THE
RIGHTS AND REMEDIES, AGAINST THE MORTGAGED PROPERTIES, WHICH MATTERS SHALL BE GOVERNED BY THE LAWS
OF THE JURISDICTION IN WHICH THE MORTGAGED PROPERTY IS LOCATED, (2) THE PERFECTION, THE EFFECT OF
PERFECTION AND NON-PERFECTION AND FORECLOSURE OF SECURITY INTERESTS ON PERSONAL PROPERTY, WHICH
MATTERS SHALL BE GOVERNED BY THE LAWS OF THE JURISDICTION DETERMINED BY THE CHOICE OF LAW
PROVISIONS OF THE UNIFORM COMMERCIAL CODE IN EFFECT FOR THE JURISDICTION IN WHICH THE BORROWERS
ARE ORGANIZED. BORROWER AND GUARANTOR AGREE THAT ANY CONTROVERSY ARISING UNDER OR IN RELATION TO
THE NOTES, THE SECURITY DOCUMENTS (OTHER THAN THE SECURITY INSTRUMENTS) OR ANY OTHER LOAN DOCUMENT
SHALL BE, EXCEPT AS OTHERWISE PROVIDED HEREIN, LITIGATED IN THE DISTRICT OF COLUMBIA. THE LOCAL
AND FEDERAL COURTS AND AUTHORITIES WITH JURISDICTION IN THE DISTRICT OF COLUMBIA SHALL, EXCEPT AS
OTHERWISE PROVIDED HEREIN, HAVE JURISDICTION OVER ALL CONTROVERSIES WHICH MAY ARISE UNDER OR
Master Credit Facility Agreement
Camden 2008
69
IN RELATION TO THE LOAN DOCUMENTS, INCLUDING THOSE CONTROVERSIES RELATING TO THE EXECUTION,
JURISDICTION, BREACH, ENFORCEMENT OR COMPLIANCE WITH THE NOTES, THE SECURITY DOCUMENTS (OTHER THAN
THE SECURITY INSTRUMENTS) OR ANY OTHER ISSUE ARISING UNDER, RELATING TO, OR IN CONNECTION WITH ANY
OF THE LOAN DOCUMENTS. EACH OF BORROWER AND GUARANTOR IRREVOCABLY CONSENTS TO SERVICE,
JURISDICTION, AND VENUE OF SUCH COURTS FOR ANY LITIGATION ARISING FROM THE NOTES, THE SECURITY
DOCUMENTS OR ANY OF THE OTHER LOAN DOCUMENTS, AND WAIVES ANY OTHER VENUE TO WHICH IT MIGHT BE
ENTITLED BY VIRTUE OF DOMICILE, HABITUAL RESIDENCE OR OTHERWISE. NOTHING CONTAINED HEREIN,
HOWEVER, SHALL PREVENT LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS
AGAINST EITHER OR ALL OF BORROWER AND GUARANTOR AND AGAINST THE COLLATERAL IN ANY OTHER
JURISDICTION. INITIATING SUCH SUIT, ACTION OR PROCEEDING OR TAKING SUCH ACTION IN ANY OTHER
JURISDICTION SHALL IN NO EVENT CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS
OF THE DISTRICT OF COLUMBIA SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF EACH OF BORROWER AND
GUARANTOR AND LENDER AS PROVIDED HEREIN OR THE SUBMISSION HEREIN BY EACH OF BORROWER AND GUARANTOR
TO PERSONAL JURISDICTION WITHIN THE DISTRICT OF COLUMBIA. BORROWER AND GUARANTOR (I) COVENANT AND
AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING UNDER ANY OF THE LOAN
DOCUMENTS TRIABLE BY A JURY AND (II) WAIVE ANY RIGHT TO TRIAL BY JURY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST. THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE ACCRUE. FURTHER,
EACH OF BORROWER AND GUARANTOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF LENDER
(INCLUDING, BUT NOT LIMITED TO, LENDERS COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO
BORROWER AND/OR GUARANTOR THAT LENDER WILL NOT SEEK TO ENFORCE THE PROVISIONS OF THIS SECTION. THE
FOREGOING PROVISIONS WERE KNOWINGLY, WILLINGLY AND VOLUNTARILY AGREED TO BY BORROWER AND GUARANTOR
UPON CONSULTATION WITH INDEPENDENT LEGAL COUNSEL SELECTED BY BORROWERS AND GUARANTORS FREE WILL.
Section 15.07.
Severability.
In the event any provision of this Agreement or in any other Loan Document shall be held
invalid, illegal or unenforceable in any jurisdiction, such provision will be severable from the
remainder hereof as to such jurisdiction and the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired in any jurisdiction.
Master Credit Facility Agreement
Camden 2008
70
Section 15.08.
Notices.
(a)
Manner of Giving Notice
. Each notice, direction, certificate or other
communication hereunder (in this Section referred to collectively as
notices
and singly
as a
notice
) which any party is required or permitted to give to the other party pursuant
to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given
if:
(i) personally delivered with proof of delivery thereof (any notice so delivered shall be
deemed to have been received at the time so delivered);
(ii) sent by Federal Express (or other similar reputable overnight courier) designating
morning delivery (any notice so delivered shall be deemed to have been received on the Business Day
it is delivered by the courier);
(iii) sent by telecopier or facsimile machine which automatically generates a transmission
report that states the date and time of the transmission, the length of the document transmitted,
and the telephone number of the recipients telecopier or facsimile machine (to be confirmed with a
copy thereof sent in accordance with paragraphs (i) or (ii) above within two Business Days) (any
notice so delivered shall be deemed to have been received (1) on the date of transmission, if so
transmitted before 5:00 p.m. (local time of the recipient) on a Business Day, or (2) on the next
Business Day, if so transmitted on or after 5:00 p.m. (local time of the recipient) on a Business
Day or if transmitted on a day other than a Business Day);
addressed to the parties as follows:
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As to Borrower:
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CSP Community Owner, LLC
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CPT Community Owner, LLC
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c/o Camden Property Trust
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Three Greenway Plaza, Suite 1300
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Houston, Texas 77046
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Attention: Alex Jessett
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Telecopy: (713) 354-2710
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with a copy to:
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Camden Property Trust
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Three Greenway Plaza, Suite 1300
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Houston, Texas 77046
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Attention: J. Robert Fisher
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Telecopy: (713) 354-2710
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As to Lender:
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Red Mortgage Capital, Inc.
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Two Miranova Place, 12th Floor
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Columbus, Ohio 43215
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Attention: Servicing Manager
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Telecopy: (614) 857-1620
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Master Credit Facility Agreement
Camden 2008
71
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with a copy to Servicer:
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Red Mortgage Capital, Inc.
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Two Miranova Place, 12th Floor
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Columbus, Ohio 43215
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Attention: Director, Loan Servicing and Asset
Management
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Telecopy: (614) 857-1610
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with a copy to:
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Arent Fox LLP
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1675 Broadway
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New York, New York 10019
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Attention: David L. Dubrow, Esq.
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Telecopy: (212) 484-3990
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As to Fannie Mae:
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Fannie Mae
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3900 Wisconsin Avenue, N.W.
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Washington, D.C. 20016-2899
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Attention: Vice President for
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Multifamily Asset Management
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Telecopy No.: (301) 280-2064
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with a copy to Servicer:
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Red Mortgage Capital, Inc.
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Two Miranova Place, 12th Floor
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Columbus, Ohio 43215
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Attention: Director, Loan Servicing and Asset
Management
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Telecopy: (614) 857-1610
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with a copy to:
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Arent Fox LLP
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1675 Broadway
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New York, NY 10019
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Attention: David L. Dubrow, Esq.
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Telecopy No.: (212) 484-3990
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(b)
Change of Notice Address
. Any party may, by notice given pursuant to this
Section, change the person or persons and/or address or addresses, or designate an additional
person or persons or an additional address or addresses, for its notices, but notice of a change of
address shall only be effective upon receipt. Each party agrees that it shall not refuse or reject
delivery of any notice given hereunder, that it shall acknowledge, in writing, receipt of the same
upon request by the other party and that any notice rejected or refused by it shall be deemed for
all purposes of this Agreement to have been received by the rejecting party on the date so refused
Master Credit Facility Agreement
Camden 2008
72
or rejected, as conclusively established by the records of the U.S. Postal Service, the
courier service or facsimile.
Section 15.09.
Further Assurances and Corrective Instruments.
(a)
Further Assurances
. To the extent permitted by law, the parties hereto agree that
they shall, from time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such further instruments as Lender or
Borrower may reasonably request and as may be required in the opinion of Lender or its counsel to
effectuate the intention of or facilitate the performance of this Agreement or any Loan Document.
(b)
Further Documentation
. Without limiting the generality of subsection (a), in the
event any further documentation or information is required by Lender to correct patent mistakes in
the Loan Documents, materials relating to the Title Insurance Policies or the funding of the
Advances, Borrower shall provide, or cause to be provided to Lender, at Borrowers cost and
expense, such documentation or information. Borrower shall execute and deliver to Lender such
documentation, including but not limited to any amendments, corrections, deletions or additions to
the Notes, the Security Instruments or the other Loan Documents as is reasonably required by
Lender.
(c)
Compliance with Investor Requirements
. Without limiting the generality of
subsection (a), Borrower shall comply with the reasonable requirements of Lender to enable Lender
to sell the DMBS backed by an Advance.
Section 15.10.
Term of this Agreement.
This Agreement shall continue in effect until the Termination Date.
Section 15.11.
Assignments; Third-Party Rights.
No Borrower shall assign this Agreement, or delegate any of its obligations hereunder, without
the prior written consent of Lender. Lender may assign its rights and/or obligations under this
Agreement separately or together, without Borrowers consent, but may not delegate its obligations
under this Agreement unless it first receives Fannie Maes written approval. Lender shall first
assign its rights and/or obligations under this Agreement separately or together, without
Borrowers consent, to Fannie Mae. Upon assignment to Fannie Mae, Fannie Mae shall be permitted to
further assign its rights and/or obligations under this Agreement subject to Section 9.08 of this
Agreement.
Master Credit Facility Agreement
Camden 2008
73
Section 15.12.
Headings.
Article and Section headings used herein are for convenience of reference only, are not part
of this Agreement and are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Section 15.13.
General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (1) the terms defined in Appendix I and elsewhere in this Agreement have the
meanings assigned to them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other genders; (2) accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with GAAP; (3) references
herein to Articles, Sections, subsections, paragraphs and other subdivisions without
reference to a document are to designated Articles, Sections, subsections, paragraphs and other
subdivisions of this Agreement; (4) a reference to a subsection without further reference to a
Section is a reference to such subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to paragraphs and other subdivisions; (5) a reference to an
Exhibit or a Schedule without a further reference to the document to which the Exhibit or Schedule
is attached is a reference to an Exhibit or Schedule to this Agreement; (6) the words herein,
hereof, hereunder and other words of similar import refer to this Agreement as a whole and not
to any particular provision; and (7) the word including means including, but not limited to.
Section 15.14.
Interpretation.
The parties hereto acknowledge that each party and their respective counsel have participated
in the drafting and revision of this Agreement and the Loan Documents. Accordingly, the parties
agree that any rule of construction that disfavors the drafting party shall not apply in the
interpretation of this Agreement and the Loan Documents or any amendment or supplement or exhibit
hereto or thereto.
Section 15.15.
Standards for Decisions, Etc.
Unless otherwise provided herein, if Lenders approval is required for any matter hereunder,
such approval may be granted or withheld in Lenders sole and absolute discretion. Unless
otherwise provided herein, if Lenders designation, determination, selection, estimate, action or
decision is required, permitted or contemplated hereunder, such designation, determination,
selection, estimate, action or decision shall be made in Lenders sole and absolute discretion.
Master Credit Facility Agreement
Camden 2008
74
Section 15.16.
Decisions in Writing.
Any approval, designation, determination, selection, action or decision of Lender or Borrower
must be in writing to be effective.
Section 15.17.
Requests.
Borrower may submit up to a total of four (4) Requests per Calendar Year.
Section 15.18.
Conflicts Between Agreements.
Any terms and conditions contained in this Agreement that may also be contained in another
Loan Document are not, to the extent reasonably practicable, to be construed to be in conflict with
each other but rather is construed as duplicative, confirming, additional, or cumulative
provisions. To the extent that, in the interpretation of this Agreement, any ultimate conflict
between the terms and conditions of this Agreement and those set forth in another Loan Document is
determined to exist, the terms and conditions of this Agreement are to control.
(Signatures appear on following pages)
Master Credit Facility Agreement
Camden 2008
75
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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BORROWER:
CSP COMMUNITY OWNER, LLC
, a Delaware limited liability company
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By:
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Name:
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Title:
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CPT COMMUNITY OWNER, LLC
, a Delaware limited liability company
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By:
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Name:
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Title:
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[Signatures continue on following page.]
Master Credit Facility Agreement
Camden 2008
S-1
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GUARANTORS:
CAMDEN PROPERTY TRUST,
a Texas real estate investment trust
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By:
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Name:
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Title:
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CAMDEN SUMMIT PARTNERSHIP, L.P.,
a Delaware limited partnership
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By:
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Camden Summit, Inc.,
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a Delaware corporation, its general partner
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By:
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Name:
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Title:
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[Signatures continue on following page.]
Master Credit Facility Agreement
Camden 2008
S-2
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LENDER:
RED MORTGAGE CAPITAL, INC.,
an Ohio corporation
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By:
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Name:
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Title:
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Master Credit Facility Agreement
Camden 2008
S-3
EXHIBITS TO MASTER CREDIT FACILITY AGREEMENT
EXHIBITS
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EXHIBIT A
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Schedule of Initial Mortgaged Properties and Initial Valuations
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EXHIBIT B
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RESERVED
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EXHIBIT C
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RESERVED
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EXHIBIT D
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RESERVED
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EXHIBIT E
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Confirmation of Guaranty
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EXHIBIT F
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Compliance Certificate
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EXHIBIT G-1
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Borrower Organizational Certificate
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EXHIBIT G-2
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Guarantor Organizational Certificate
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EXHIBIT H
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Conversion Request
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EXHIBIT I
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Master Credit Facility Agreement Conversion Amendment
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EXHIBIT J
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Rate Form
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EXHIBIT K
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Advance Confirmation Instrument
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EXHIBIT L
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Advance Request
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EXHIBIT M
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Request (Addition/Release)
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EXHIBIT N
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Confirmation of Obligations
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EXHIBIT O
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Expansion Request
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EXHIBIT P
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Facility Termination Request
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EXHIBIT Q
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Amendment to Master Credit Facility Agreement
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EXHIBIT R
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Credit Facility Termination Request
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EXHIBIT S
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RESERVED
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EXHIBIT T
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RESERVED
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EXHIBIT U
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Cash Collateral, Security and Custody Agreement
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EXHIBIT V
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Letter of Credit
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EXHIBIT W-1
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Bank Legal Opinion (Foreign)
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EXHIBIT W-2
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Bank Legal Opinion (Domestic)
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EXHIBIT X
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Form of Rent Roll
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APPENDIX I
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Definitions
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Master Credit Facility Agreement
Camden 2008
EXHIBIT A TO MASTER CREDIT FACILITY AGREEMENT
SCHEDULE OF INITIAL MORTGAGED PROPERTIES
AND INITIAL VALUATIONS
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PROPERTY NAME
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ADDRESS
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INITIAL VALUATION
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Camden Ballantyne
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13901 Summit Commons Boulevard
Charlotte, NC 28277
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Camden Brookwood
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147 26th Street NW
Atlanta, GA 30309
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Camden Deerfield
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13200 Summit Boulevard
Alpharetta, GA 30004
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Camden Dilworth
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1510 Scott Avenue
Charlotte, NC 28203
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Camden Dunwoody
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10 Peachford Circle
Dunwoody, GA 30338
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Camden Governors Village
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100 Durant Street
Chapel Hill, NC 27517
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Camden Greenway
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3800 Audley Street
Houston, TX 77098
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Camden Lake Pine
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600 Park Summit Boulevard
Apex, NC 27523
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Camden Manor Park
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4000 Manor Club Drive
Raleigh, NC 27612
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Camden Midtown Atlanta
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265 Ponce De Leon Avenue NE
Atlanta, GA 30308
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Camden Oak Crest
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12025 Richmond Avenue
Houston, TX 77082
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Camden Reunion Park
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100 Reunion Park Drive
Apex, NC 27539
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Camden Sedgebrook
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16930 Sedgebrook Lane
Huntersville, NC 28078
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Camden St. Clair
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3000 Briarcliff Road NE
Atlanta, GA 30329
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Camden Stockbridge
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1000 Peridot Parkway
Stockbridge, GA 30281
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Camden Summit on the River
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6005 State Bridge Road
Duluth, GA 30097
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Camden Westwood
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2100 Summit Ridge Loop
Morrisville, NC 27560
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Master Credit Facility Agreement
Camden 2008
A-1
EXHIBIT B TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2008
B-1
EXHIBIT C TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2008
C-1
EXHIBIT D TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2008
D-1
EXHIBIT E TO MASTER CREDIT FACILITY AGREEMENT
CONFIRMATION OF GUARANTY
THIS CONFIRMATION OF GUARANTY is made as of the
[_____ day of _____, _____]
, by
[GUARANTOR]
(
Guarantor
), for the benefit of
[LENDER]
(
Lender
).
Guarantor entered into that certain
[Guaranty]
dated as of [_____, _____], for the
benefit of Lender (the
Guaranty
) to guaranty the Guaranteed Obligations (as defined in
the Guaranty) under that certain Master Credit Facility Agreement dated as of
[Master Agreement
Date]
by and among
[BORROWER]
(the
Borrower
), Guarantor and Lender (as amended from time
to time, the
Master Agreement
).
Borrower and Lender have
[increased] [expanded] [other]
the credit facility under the Master
Agreement and made certain other changes to the terms and conditions of the Master Agreement
pursuant to that certain
[_____]
Amendment to Master Agreement dated as of even date herewith
(the
[_____]
Amendment
). As a condition to the entering into the
[_____]
Amendment, Guarantor is required to confirm its obligations under the Guaranty.
Guarantor hereby (i) acknowledges and consents to the
[describe]
under the Master Agreement,
(ii) acknowledges and consents to the
[describe]
of the credit facility and the other changes and
the terms and conditions of the Master Agreement all as set forth in the
[_____]
Amendment,
and (iii) confirms to Lender and Fannie Mae that the terms and provisions of the Guaranty remain in
full force and effect.
Guarantor hereby confirms and ratifies the Loan Documents it has previously executed in
connection with the Master Agreement.
Dated as of [_____, _____]
GUARANTOR:
[GUARANTOR]
[INSERT GUARANTOR BLOCK]
Master Credit Facility Agreement
Camden 2008
E-1
EXHIBIT F TO MASTER CREDIT FACILITY AGREEMENT
COMPLIANCE CERTIFICATE
The undersigned Borrower (
Borrower
) and the undersigned Guarantor (
Guarantor)
hereby certify to
[LENDER]
(
Lender
) and FANNIE MAE as follows:
Section 1.
Master Agreement
.
Borrower is a party to that certain Master Credit
Facility Agreement, dated as of
[Master Agreement Date]
by and among Borrower, Guarantor and Lender
(as amended, restated, modified or supplemented from time to time, the
Master Agreement
).
The rights of Lender under the Master Agreement have been assigned to Fannie Mae. This
Certificate is issued pursuant to the terms of the Master Agreement.
Section 2.
Satisfaction of Conditions
.
Borrower and Guarantor hereby represent,
warrant and covenant to Lender that all conditions to the Request with respect to which this
Certificate is issued have been satisfied.
Section 3.
Capitalized Terms
.
All capitalized terms used but not defined in this
Certificate shall have the meanings ascribed to such terms in the Master Agreement.
Dated: [________________, _____]
BORROWER
:
[BORROWER]
[INSERT BORROWER BLOCK]
GUARANTOR
:
[GUARANTOR]
[INSERT GUARANTOR BLOCK]
Master Credit Facility Agreement
Camden 2008
F-1
EXHIBIT G-1 TO MASTER CREDIT FACILITY AGREEMENT
ORGANIZATIONAL CERTIFICATE
(Borrower)
I, the undersigned, _____, hereby certify as follows:
Section 1.
Position
.
I am the
_____ of
[BORROWER]
(
Borrower
), and I am authorized to deliver this Certificate on behalf of Borrower.
Section 2.
Master Agreement
.
Borrower entered into that certain Master Credit
Facility Agreement, dated as of
[Master Agreement Date]
, by and among Borrower, [
GUARANTOR]
, and
[LENDER]
(
Lender
), and others (as amended from time to time, the
Master
Agreement
). The rights of Lender under the Master Agreement have been assigned to Fannie Mae.
This Certificate is issued pursuant to the terms of the Master Agreement.
Section 3.
Due Authorization of Request
.
I hereby certify that (i) no action by the
members, shareholders or partners, as the case may be, of Borrower is necessary to duly authorize
the execution and delivery of, and the consummation of the transaction contemplated by the Request
with respect to which this Certificate is delivered, or, (ii) if necessary, that attached as
Exhibit A
to this Certificate is a true copy of resolutions or approvals which authorize
the transaction contemplated by the Request. Any such resolutions are in full force and effect and
are unmodified as of the date of this Certificate.
Section 4.
No Changes
.
Since the date of the most recent Organizational Certificate
delivered to Lender, or, if there is no such Organizational Certificate, since the date of the
Master Agreement, there have been no changes in any of the Organizational Documents of Borrower,
except as set forth in
Exhibit B
to this Certificate, and Borrower remains in good standing
or is duly qualified in the jurisdictions in which it is required to be in good standing or duly
qualified under the terms of the Master Agreement.
Section 5.
Incumbency Certificate
.
The persons authorized to execute and deliver any
documents required to be delivered in connection with the Request are as follows:
Section 6.
Capitalized Terms
.
All capitalized terms used but not defined in this
Certificate shall have the meanings ascribed to such terms in the Master Agreement.
Section 7.
Non-Recourse
.
The provisions of
Article 14
of the Master Agreement hereby
are incorporated into this Certificate by this reference.
Dated: [_____, _____]
Master Credit Facility Agreement
Camden 2008
G-1-1
[INDIVIDUAL]
Name:
Title:
Master Credit Facility Agreement
Camden 2008
G-1-2
EXHIBIT G-2 TO MASTER CREDIT FACILITY AGREEMENT
ORGANIZATIONAL CERTIFICATE
(Guarantor)
I, the undersigned,
_____, hereby certify as follows:
Section 1.
Position
.
I am the
_____ of
[GUARANTOR]
(
Guarantor
), and I am authorized to deliver this Certificate on behalf of Borrower.
Section 2.
Master Agreement
.
Guarantor entered into (i) that certain Master Credit
Facility Agreement dated as of
[Master Agreement Date]
, by and among
[BORROWER]
, Guarantor,
[LENDER]
(
Lender
) and others (as amended from time to time, the
Master
Agreement
), and (ii) that certain
[Guaranty]
dated as of
[Master Agreement Date]
(the
Guaranty
). This Certificate is issued pursuant to the terms of the Master Agreement and
the Guaranty.
Section 3.
Due Authorization of Request
.
I hereby certify that (i) no action by the
members, shareholders or partners, as the case may be, of Guarantor is necessary to duly authorize
the execution and delivery of, and the consummation of the transaction contemplated by the Request
with respect to which this Certificate is delivered, or, (ii) if necessary, that attached as
Exhibit A
to this Certificate is a true copy of resolutions or approvals which authorize
the transaction contemplated by the Request. Any such resolutions are in full force and effect and
are unmodified as of the date of this Certificate.
Section 4.
No Changes
.
Since the date of the most recent Organizational Certificate
delivered to Lender, or, if there is no such Organizational Certificate, since the date of the
Master Agreement, there have been no changes in any of the Organizational Documents of Guarantor,
except as set forth in
Exhibit B
to this Certificate, and Guarantor remains in good
standing or is duly qualified in the jurisdictions in which it is required to be in good standing
or duly qualified under the terms of the Master Agreement.
Section 5.
Incumbency Certificate
.
The persons authorized to execute and deliver any
documents required to be delivered in connection with the Request are as follows:
Section 6.
Capitalized Terms
.
All capitalized terms used but not defined in this
Certificate shall have the meanings ascribed to such terms in the Master Agreement.
Dated: [________________, _____]
[INDIVIDUAL]
Name:
Title:
Master Credit Facility Agreement
Camden 2008
G-2-1
EXHIBIT H TO MASTER CREDIT FACILITY AGREEMENT
CONVERSION REQUEST
THE MASTER AGREEMENT PURSUANT TO WHICH THIS REQUEST IS DELIVERED REQUIRES THERE TO OCCUR A
CLOSING TO BE HELD AT OFFICES DESIGNATED BY YOU ON A CLOSING DATE SELECTED BY BORROWER AND APPROVED
BY YOU, AND OCCURRING WITHIN THIRTY (30) BUSINESS DAYS AFTER YOUR RECEIPT OF THE CONVERSION REQUEST
(OR ON SUCH OTHER DATE TO WHICH WE MAY AGREE), AS LONG AS NONE OF THE LIMITATIONS CONTAINED IN
SECTION 1.09
OF THE MASTER AGREEMENT IS VIOLATED, AND ALL CONDITIONS CONTAINED IN
SECTION 1.10
OF
THE MASTER AGREEMENT ARE SATISFIED.
[_____, _____]
[LENDER]
(
Lender
)
[ADDRESS]
[Note: Subject to change in the event Lender or its address changes]
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Re:
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CONVERSION REQUEST issued pursuant to
Master Credit Facility Agreement dated
as of
[Master Agreement Date]
, by and
between the undersigned Borrower
(
Borrower
),
[GUARANTOR]
and Lender
(as amended from time to time, the
Master Agreement
).
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Ladies and Gentlemen:
This constitutes a Conversion Request pursuant to the terms of the above-referenced Master
Agreement.
Section 1.
Request
.
Borrower hereby requests that there occur a conversion of all or
a portion of the Variable Facility Commitment to a Fixed Facility Commitment in accordance with the
terms of the Master Agreement. Following is the information required by the Master Agreement with
respect to this Request:
(a)
Designation of Amount of Conversion
. The amount of the conversion shall be
$_____.
(b)
Prepayment of Variable Advances
. (If necessary) The Variable Advances Outstanding
which will be prepaid on the Closing Date for the conversion are as follows:
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Closing Date of Variable Advance:
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Master Credit Facility Agreement
Camden 2008
H-1
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Maturity Date of Variable Advance:
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Amount of Advance:
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Proposed Closing Date:
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(Note: Any Fixed Advances made in conjunction with a conversion of all or a portion of the
Variable Facility Commitment to a Fixed Facility Commitment must be accompanied by an
Advance Request and shall be reviewed in accordance with the terms of the Master Agreement.)
(c)
Accompanying Documents
. All documents, instruments and certificates required to
be delivered pursuant to the conditions contained in
Section 1.10
of the Master Agreement,
including (i) the Conversion Documents, as well as (ii) a Compliance Certificate and (iii) an
Organizational Certificate will be delivered on or before the Closing Date.
(d)
Defeasance or Yield Maintenance
. [For Fixed Advance only] Borrower requests the
following with respect to prepayments of Fixed Advances, if applicable:
o
Defeasance or
o
Yield Maintenance.
Section 2.
Capitalized Terms
.
All capitalized terms used but not defined in this
Request shall have the meanings ascribed to such terms in the Master Agreement.
Sincerely,
BORROWER
:
[BORROWER]
[INSERT BORROWER BLOCK]
Master Credit Facility Agreement
Camden 2008
H-2
EXHIBIT I TO MASTER CREDIT FACILITY AGREEMENT
MASTER CREDIT FACILITY AGREEMENT CONVERSION AMENDMENT
THIS
[_____]
AMENDMENT TO MASTER CREDIT FACILITY AGREEMENT (the
Amendment
) is
made as of the
[_____ day of _____, _____]
, by and among (i)
[BORROWER]
(
Borrower
),
(ii)
[GUARANTOR]
(
Guarantor
) and (ii)
[LENDER]
(
Lender
).
RECITALS
A. Borrower, Guarantor and Lender are parties to that certain Master Credit Facility Agreement
dated as of
[Master Agreement Date]
(as amended from time to time, the
Master Agreement
).
B. All of Lenders right, title and interest in the Master Agreement and the Loan Documents
executed in connection with the Master Agreement or the transactions contemplated by the Master
Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit
Facility Agreement and Other Loan Documents dated as of even date with the Master Agreement (the
Assignment
). Fannie Mae has not assumed any of the obligations of Lender under the
Master Agreement or the Loan Documents as a result of the Assignment. Fannie Mae has designated
Lender as the servicer of the Advances contemplated by the Master Agreement.
C. The parties are executing this Amendment pursuant to the Master Agreement to reflect a
conversion of all or a portion of the Variable Facility Commitment to the Fixed Facility
Commitment.
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises and agreements
contained in this Amendment and the Master Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows:
Section 1.
Conversion
.
The Variable Facility Commitment shall be reduced by, and the
Fixed Facility Commitment shall be increased by, $_____, and the definitions of
Variable Facility Commitment
and
Fixed Facility Commitment
are hereby replaced
in their entirety by the following new definitions:
Fixed Facility Commitment
means $_____, plus such amount as
Borrower may elect to add to the Fixed Facility Commitment in accordance with
Section 1.08
and less such amount by which Borrower may elect to reduce the Fixed Facility Commitment in
accordance with
Article 5
.
Variable Facility Commitment
means an aggregate amount of
$_____, which shall be evidenced by the Variable Facility Note plus such
amount as Borrower may elect to add to the Variable Facility Commitment in accordance with
Article 4, and less such amount as Borrower may elect to convert from
Master Credit Facility Agreement
Camden 2008
I-1
the Variable Facility Commitment to the Fixed Facility Commitment in accordance with
Section 1.08
and less such amount by which Borrower may elect to reduce the Variable
Facility Commitment in accordance with
Article 5
.
Section 2.
Capitalized Terms
.
All capitalized terms used in this Amendment which are
not specifically defined herein shall have the respective meanings set forth in the Master
Agreement.
Section 3.
Full Force and Effect
.
Except as expressly modified by this Amendment, all
terms and conditions of the Master Agreement shall continue in full force and effect.
Section 4.
Counterparts
.
This Amendment may be executed in counterparts by the
parties hereto, and each such counterpart shall be considered an original and all such counterparts
shall constitute one and the same instrument.
Section 5.
Governing Law; Consent to Jurisdiction and Venue; WAIVER OF TRIAL BY JURY
.
The provisions of
Section 15.06
of the Master Agreement (entitled
Choice of Law; Consent to
Jurisdiction; Waiver of Jury Trial
) are hereby incorporated into this Amendment by this
reference to the fullest extent as if the text of such Section were set forth in its entirety
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as an instrument under
seal as of the day and year first above written.
BORROWER
:
[BORROWER]
[INSERT BORROWER BLOCK]
GUARANTOR
:
[GUARANTOR]
[INSERT GUARANTOR BLOCK]
LENDER
:
[LENDER]
[INSERT LENDER BLOCK]
Master Credit Facility Agreement
Camden 2008
I-2
EXHIBIT J TO MASTER CREDIT FACILITY AGREEMENT
RATE FORM
Pursuant to
Section 2.
01(b)
of that certain Master Credit Facility Agreement dated as of
[Master Agreement Date]
(as amended from time to time, the
Master Agreement
) by and among
[LENDER]
(
Lender
),
[GUARANTOR]
, and the undersigned (the
Borrower
), Borrower
hereby requests that Lender issue to it an advance with the following terms:
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Designation of Advance
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o
Fixed Advance
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(Check One)
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o
Variable Advance
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FOR VARIABLE ADVANCE ONLY:
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Proposed DMBS Imputed Interest Rate
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%
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Advance Amount
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$
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Term
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months
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DMBS Issue Date
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Variable Facility Fee
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bps
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Maximum Annual Coupon Rate
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%
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*Discount
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%
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*Price
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$
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Breakage Fee Deposit
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$
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Amortization/Interest Only:
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Closing Date no later than
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*DMBS Settlement Date
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,
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*
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To be completed by Lender upon confirmation of Rate Form.
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Master Credit Facility Agreement
Camden 2008
J-1
FOR FIXED ADVANCE ONLY:
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Advance Amount
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$
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Term
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months
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Cash Interest Rate
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%
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Amortization Period
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Amortization/Interest Only:
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Closing Date no later than
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,
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Lender will provide Borrower with written confirmation when and if it has obtained a
commitment for the purchase of a Fannie Mae DMBS having the characteristics described above at a
price between
[
]
and
[
]
or better. In the event that the lowest available Coupon Rate is
greater than that specified above, Lender will not proceed without the prior written authorization
of Borrower
Borrower certifies that all conditions contained in
Article 2
of the Master Agreement that are
required to be satisfied will be satisfied on or before the Closing Date.
Defined terms used herein shall have the same meaning as set forth in the Master Agreement.
Dated: [
,
]
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BORROWER
:
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[BORROWER]
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[INSERT BORROWER BLOCK]
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Master Credit Facility Agreement
Camden 2008
J-2
Pursuant to
Section 2.
01(c)
of the Master Agreement, Lender hereby confirms that it has obtained a
commitment for the purchase of a Fannie Mae DMBS in conformance with the terms noted above except
for the following:
Dated: [
,
]
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LENDER
:
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[LENDER]
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[INSERT LENDER BLOCK]
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Rate Setting Date:
,
,
:
AM/PM Eastern Time
Master Credit Facility Agreement
Camden 2008
J-3
EXHIBIT K TO MASTER CREDIT FACILITY AGREEMENT
ADVANCE CONFIRMATION INSTRUMENT
THIS ADVANCE CONFIRMATION INSTRUMENT (the
Advance Confirmation Instrument
) is made
as of the
[
day of
,
]
, by
CPT GREENWAY, LLC AND CSP COMMUNITY OWNER, LLC
(together with their successors and assigns, individually and collectively, the
Borrower
)
for the benefit of
RED MORTGAGE CAPITAL, INC.
, an Ohio corporation (together with its successors
and assigns, the
Lender
) and FANNIE MAE, a federally chartered and stockholder-owned
corporation organized and existing under the Federal National Mortgage Association Charter Act, 12
U.S.C. § 1716 et seq. (together with its successors and assigns,
Fannie Mae
).
RECITALS
A. Borrower,
[GUARANTOR]
and Lender are parties to that certain Master Credit Facility
Agreement dated as of September [
], 2008 (as amended from time to time, the
Master
Agreement
).
B. All of Lenders right, title and interest in the Master Agreement and the Loan Documents
executed in connection with the Master Agreement or the transactions contemplated by the Master
Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit
Facility Agreement and Other Loan Documents, dated as of even date with the Master Agreement (the
Assignment
). Fannie Mae has not assumed any of the obligations of Lender under the
Master Agreement or the Loan Documents as a result of the Assignment. Fannie Mae has designated
Lender as the servicer of the Advances contemplated by the Master Agreement.
C. In accordance with this Advance Confirmation Instrument and the Master Agreement, Lender is
making a Variable Advance to Borrower.
D. Borrower is executing this Advance Confirmation Instrument pursuant to the Master Agreement
to confirm certain terms of the Master Agreement and that certain Variable Facility Note dated as
of September [
], 2008 in the original principal amount of $175,000,000 (as amended from
time to time, the
Variable Facility Note
) relating to the Variable Advance, and
Borrowers obligation to repay the Variable Advance in accordance with the terms of the Variable
Facility Note and this Advance Confirmation Instrument.
NOW, THEREFORE, Borrower, in consideration of Lenders making of the Variable Advance, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agree as follows:
Section 1.
Confirmation of Advance and Terms of Advance
.
Borrower hereby confirms the
following terms of the Variable Advance, and confirms and agrees that it shall repay the Variable
Advance to Lender in accordance with the terms of the Variable Facility Note and the Master
Agreement:
Master Credit Facility Agreement
Camden 2008
K-1
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Advance Amount
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$
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Term
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months
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MBS Issue Date
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MBS Imputed Interest Rate
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%
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Variable Facility Fee
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$
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Coupon Rate
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%
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Discount
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%
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Price
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$
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Closing Date
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Section 2.
Beneficiaries
.
This Advance Confirmation Instrument is made for the
express benefit of Lender.
Section 3.
Purpose
.
The terms of the Master Agreement and the Variable Facility Note
govern the repayment, and all other terms relating to the Variable Advance. However, this Advance
Confirmation Instrument has been executed to create a physical instrument evidencing the
above-described Variable Advance under the Variable Facility Note. The Variable Advance evidenced
by this Advance Confirmation Instrument does not represent a separate indebtedness from that
evidenced by the Variable Facility Note.
Section 4.
Effectiveness of Advance Confirmation Instrument
.
This Advance
Confirmation Instrument will not be effective until Lender funds the Variable Advance, at which
time Lender shall note the date of such funding by completing the date block at the foot of this
Advance Confirmation Instrument, and executing this Advance Confirmation Instrument below such date
block, and such completion shall be binding on Borrower, absent manifest error.
Section 5.
Capitalized Terms
.
All capitalized terms used in this Advance Confirmation
Instrument which are not specifically defined herein shall have the respective meanings set forth
in the Master Agreement.
Section 6.
Counterparts
.
This Advance Confirmation Instrument may be executed in
counterparts by the parties hereto, and each such counterpart shall be considered an original and
all such counterparts shall constitute one and the same instrument.
Section 7.
Governing Law; Consent to Jurisdiction and Venue; WAIVER OF TRIAL BY JURY
.
The provisions of
Section 15.06
of the Master Agreement (entitled
Choice of Law; Consent to
Jurisdiction; Waiver of Jury Trial
) are hereby incorporated into this Advance Confirmation
Agreement by this reference to the fullest extent as if the text of such Section were set forth in
its entirety herein.
[Remainder of page intentionally left blank.]
Master Credit Facility Agreement
Camden 2008
K-2
IN WITNESS WHEREOF, Borrower has executed this Advance Confirmation Instrument as an
instrument under seal as of the day and year first above written.
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BORROWER
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[BORROWER]
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[INSERT BORROWER BLOCK]
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Master Credit Facility Agreement
Camden 2008
K-3
Date of Funding
:
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LENDER
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[LENDER]
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[INSERT LENDER BLOCK]
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Master Credit Facility Agreement
Camden 2008
K-4
PAY TO THE ORDER OF FANNIE MAE, WITHOUT RECOURSE
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RED MORTGAGE CAPITAL, INC.
, an Ohio corporation
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By:
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Name:
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Title:
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Date:
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Fannie Mae Commitment Number:
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Master Credit Facility Agreement
Camden 2008
K-5
EXHIBIT L TO MASTER CREDIT FACILITY AGREEMENT
ADVANCE REQUEST
[SELECT THE APPROPRIATE LANGUAGE:]
[INITIAL ADVANCE:
THE MASTER AGREEMENT REQUIRES YOU TO MAKE THE REQUESTED INITIAL ADVANCE, IF ALL CONDITIONS
CONTAINED IN
SECTION 2.
04(a)
OF THE MASTER AGREEMENT ARE SATISFIED, AT A CLOSING TO BE HELD ON THE
INITIAL CLOSING DATE.]
[FUTURE ADVANCE:
THE MASTER AGREEMENT REQUIRES YOU TO MAKE THE REQUESTED FUTURE ADVANCE, IF ALL CONDITIONS CONTAINED
IN
SECTION 2.
04(b)
OF THE MASTER AGREEMENT ARE SATISFIED, AT A CLOSING TO BE HELD ON A CLOSING DATE
SELECTED BY BORROWER AND APPROVED BY YOU, WHICH DATE SHALL BE NOT MORE THAN THREE (3) BUSINESS DAYS
AFTER OUR RECEIPT OF THE CONFIRMED RATE FORM (OR ON SUCH OTHER DATE AS WE MAY AGREE). LENDER
RESERVES THE RIGHT TO REQUIRE THAT WE POST A DEPOSIT AT THE TIME THE FANNIE MAE COMMITMENT OR DMBS
COMMITMENT IS OBTAINED AS AN ADDITIONAL CONDITION TO YOUR OBLIGATION TO MAKE THE FUTURE ADVANCE]
[
,
]
[LENDER]
(
Lender
)
[ADDRESS]
[Note: Subject to change in the event Lender or its address changes]
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Re:
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ADVANCE REQUEST issued pursuant to
Master Credit Facility Agreement dated
as of
[Master Agreement Date]
by and
among the undersigned (
Borrower
),
[GUARANTOR]
and Lender (as amended from
time to time, the
Master Agreement
)
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Ladies and Gentlemen:
This constitutes an Advance Request pursuant to the terms of the above-referenced Master Agreement.
Master Credit Facility Agreement
Camden 2008
L-1
Section 1.
Request
.
Borrower hereby requests that Lender make an Advance in
accordance with the terms of the Master Agreement. Following is the information required by the
Master Agreement with respect to this Request:
(a)
Amount
. The amount of the
[Initial] [Future]
Advance shall be $
.
(b)
Designation of Facility
. The
[Initial] [Future]
Advance is a: [Check one]
o
Fixed Advance
o
Variable Advance
(c)
Maturity Date
. The Maturity Date of the Advance is as follows:
_____.
(d)
Amortization Period
. [Check one]
o
months
o
The Advance shall be interest only.
(e)
Accompanying Documents
. All documents, instruments and certificates required to
be delivered pursuant to the conditions contained in
Section 2.04
of the Master Agreement,
including (i) a confirmed Rate Form, (ii) an Advance Confirmation Instrument (for Variable Advances
only), (iii) a Fixed Facility Note (for Fixed Advances only), (iv) a Variable Facility Note (for
Variable Advances only), (v) a Compliance Certificate, and (vi) an Organizational Certificate, will
be delivered on or before the Closing Date.
(f)
Defeasance or Yield Maintenance
.
[For Fixed Advance only]
Borrower requests the
following with respect to prepayments of Fixed Advances, if applicable:
o
Defeasance or
o
Yield Maintenance.
Section 2.
Available Commitment Amount
.
The information contained in the following
table is true, correct and complete, to the undersigneds knowledge. The undersigned acknowledges
and agrees that the final determination of the information shall be made by Lender, in accordance
with the terms of the Master Agreement.
Master Credit Facility Agreement
Camden 2008
L-2
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Currently Available Fixed Facility Commitment
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Currently Available Variable Facility Commitment
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Proposed Amount Drawn on Fixed Facility Commitment
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Proposed Amount Drawn on Variable Facility Commitment
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Remaining Fixed Facility Commitment after Proposed Draw
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Remaining Variable Facility Commitment after Proposed Draw
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For these purposes, the terms:
(a)
Available Fixed Facility Commitment
means, at any time, the maximum amount of
Fixed Facility Advances which could be issued and outstanding without causing: (i) the Aggregate
Debt Service Coverage Ratio to be less than 1.55:1.0, or (ii) the Aggregate Loan to Value Ratio to
be greater than fifty-five percent (55%); and
(b)
Available Variable Facility Commitment
means, at any time, the maximum amount of
Variable Advances which could be issued and outstanding without causing: (i) the Aggregate Debt
Service Coverage Ratio to be less than 1.30:1.0, or (ii) the Aggregate Loan to Value Ratio to be
greater than fifty-five percent (55%).
Section 3.
Capitalized Terms
.
All capitalized terms used but not defined in this
Request shall have the meanings ascribed to such terms in the Master Agreement.
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Sincerely,
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BORROWER
:
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[BORROWER]
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[INSERT BORROWER BLOCK]
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Master Credit Facility Agreement
Camden 2008
L-3
EXHIBIT M TO MASTER CREDIT FACILITY AGREEMENT
REQUEST
(Addition/Release)
[
,
]
[LENDER]
(
Lender
)
[ADDRESS]
[Note: Subject to change in the event Lender or its address changes]
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Re:
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REQUEST issued pursuant to Master
Credit Facility Agreement, dated as of
[Master Agreement Date]
, by and between
the undersigned (
Borrower
),
[GUARANTOR]
and Lender (as amended from
time to time, the
Master Agreement
)
|
Ladies and Gentlemen:
This constitutes
[an Addition] [a Release]
Request pursuant to the terms of the above-referenced
Master Agreement.
[SELECT APPROPRIATE SECTIONS]
Section 1.
Addition Request
.
Borrower hereby requests that the Multifamily
Residential Property described in this Request be added to the Collateral Pool
[in connection with
a substitution of Collateral]
in accordance with the terms of the Master Agreement. Following is
the information required by the Master Agreement with respect to this Request:
(a)
Property Description Package
. Attached to this Request is the information and
documents relating to the proposed Additional Mortgaged Property required by Lender and the Master
Agreement;
(b)
Due Diligence Fees
. Enclosed with this Request is a check in payment of all
Additional Collateral Due Diligence Fees required to be submitted with this Request pursuant to
Section 10.
04(b)
of the Master Agreement; and
(c)
Accompanying Documents
. All reports, certificates and documents required to be
delivered pursuant to the conditions contained in
Section 3.
02(c)
of the Master Agreement will be
delivered on or before the Closing Date.
Master Credit Facility Agreement
Camden 2008
M-1
Section 2.
[Substitution Fee][Addition Fee]
. If Lender consents to the addition of
the proposed Additional Mortgaged Property to the Collateral Pool, and Borrower elects to add the
Additional Mortgaged Property to the Collateral Pool, Borrower shall pay the
[Substitution Fee]
[Addition Fee]
to Lender as one of the conditions to the closing of the Additional Mortgaged
Property.
OR
Section 1.
Release Request
.
Borrower hereby requests that the Release Mortgaged
Property described in this Request be released from the Collateral Pool in accordance with the
terms of the Master Agreement. Following is the information required by the Master Agreement with
respect to this Request:
(a)
Description of Release Mortgaged Property
. The name, address and location (county
and state) of the Mortgaged Property, or other designation of the proposed Release Mortgaged
Property is as follows:
(b)
Accompanying Documents
. All documents, instruments and certificates required to
be delivered pursuant to the conditions contained in
Section 3.
04(b)
of the Master Agreement will
be delivered on or before the Closing Date.
Section 2.
Release Price
.
Borrower shall pay the Release Price, if applicable, as a
condition to the closing of the release of the Release Mortgaged Property from the Collateral Pool.
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Sincerely,
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BORROWER
:
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[BORROWER]
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[INSERT BORROWER BLOCK]
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Master Credit Facility Agreement
Camden 2008
M-2
EXHIBIT N TO MASTER CREDIT FACILITY AGREEMENT
CONFIRMATION OF OBLIGATIONS
THIS CONFIRMATION OF OBLIGATIONS (the
Confirmation of Obligations
) is made as of the
[
day of
,
]
, by and among
[BORROWER]
(
Borrower
), for the benefit of
[LENDER]
(
Lender
) and FANNIE MAE.
RECITALS
A. Borrower,
[GUARANTOR]
and Lender are parties to that certain Master Credit Facility
Agreement, dated as of
[Master Agreement Date]
(as amended from time to time, the
Master
Agreement
).
B. All of Lenders right, title and interest in the Master Agreement and the Loan Documents
executed in connection with the Master Agreement or the transactions contemplated by the Master
Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit
Facility Agreement and other Loan Documents, dated as of even date with the Master Agreement (the
Assignment
). Fannie Mae has not assumed any of the obligations of Lender under the
Master Agreement or the Loan Documents as a result of the Assignment. Fannie Mae has designated
Lender as the servicer of the Advances contemplated by the Master Agreement.
C. Borrower has delivered to Lender a
[Addition] [Substitution] [Release]
Request pursuant to
the Master Agreement to release a Release Mortgaged Property from the Collateral Pool.
D. Lender has consented to the
[Addition] [Substitution] [Release]
Request.
E. The parties are executing this Confirmation of Obligations pursuant to the Master Agreement
to confirm that each remains liable for all of its obligations under the Master Agreement and the
other Loan Documents notwithstanding the [addition of the Additional Mortgaged Property to the
Collateral Pool] [release of the Release Mortgaged Property from the Collateral Pool]
[and the
substitution of the Substitute Mortgaged Property into the Collateral Pool]
.
NOW, THEREFORE, Borrower, in consideration of Lenders consent to the [release of the Release
Mortgaged Property from the Collateral Pool] [addition of the Additional Mortgaged Property to the
Collateral Pool]
[and substitution of the Substitute Mortgaged Property into the Collateral Pool]
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agrees as follows:
Section 1.
Confirmation of Obligations
.
Borrower confirms that, [except with respect
to the Release Mortgaged Property and the reduction of amounts outstanding under the
Master Credit Facility Agreement
Camden 2008
N-1
Loan Documents, if any, by virtue of the payment of the Release Price,] [except with respect
to the Additional Mortgaged Property and the increase of amounts outstanding under the Loan
Documents] none of its respective obligations under the Master Agreement and the Loan Documents is
affected by [the release of the Release Mortgaged Property from the Collateral Pool] [addition of
the Additional Mortgaged Property to the Collateral Pool]
[and substitution of the Substitute
Mortgaged Property into the Collateral Pool]
, and each of its respective obligations under the
Master Agreement and the Loan Documents shall remain in full force and effect, and it shall be
fully liable for the observance of all such obligations, notwithstanding [the release of the
Release Mortgaged Property from the Collateral Pool] [the addition of the Additional Mortgaged
Property to the Collateral Pool]
[and substitution of the Substitute Mortgaged Property into the
Collateral Pool]
.
Section 2.
Beneficiaries
.
This Confirmation of Obligations is made for the express
benefit of both Lender and Fannie Mae.
Section 3.
Capitalized Terms
.
All capitalized terms used in this Confirmation of
Obligations which are not specifically defined herein shall have the respective meanings set forth
in the Master Agreement.
Section 4.
Counterparts
.
This Confirmation of Obligations may be executed in
counterparts by the parties hereto, and each such counterpart shall be considered an original and
all such counterparts shall constitute one and the same instrument.
Section 5.
Governing Law; Consent to Jurisdiction and Venue; WAIVER OF TRIAL BY JURY
.
The provisions of
Section 15.06
of the Master Agreement (entitled
Choice of Law; Consent to
Jurisdiction; Waiver of Jury Trial
) are hereby incorporated into this Confirmation of
Obligations by this reference to the fullest extent as if the text of such Section were set forth
in its entirety herein.
Master Credit Facility Agreement
Camden 2008
N-2
IN WITNESS WHEREOF, the parties hereto have executed this Confirmation of Obligations as an
instrument under seal as of the day and year first above written.
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BORROWER
:
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[BORROWER]
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[INSERT BORROWER BLOCK]
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LENDER
:
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[LENDER]
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[INSERT LENDER BLOCK]
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FANNIE MAE
:
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[INSERT SIGNATURE BLOCK]
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Master Credit Facility Agreement
Camden 2008
N-3
EXHIBIT O TO MASTER CREDIT FACILITY AGREEMENT
EXPANSION REQUEST
THE MASTER AGREEMENT REQUIRES YOU TO PERMIT THE REQUESTED INCREASE IN THE COMMITMENT, AT A
CLOSING TO BE HELD AT OFFICES DESIGNATED BY YOU ON A CLOSING DATE SELECTED BY BORROWER AND APPROVED
BY YOU, AND OCCURRING WITHIN FIFTEEN (15) BUSINESS DAYS AFTER YOUR RECEIPT OF THE EXPANSION REQUEST
(OR ON SUCH OTHER DATE AS WE AGREE), AS LONG AS ALL CONDITIONS CONTAINED IN
SECTION 4.03
OF THE
MASTER AGREEMENT ARE SATISFIED. REFERENCE IS MADE TO THE MASTER AGREEMENT FOR THE SCOPE OF
LENDERS OBLIGATIONS WITH RESPECT TO THIS REQUEST.
[
,
]
[LENDER]
(
Lender
)
[ADDRESS]
[Note: Subject to change in the event Lender or its address changes]
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Re:
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EXPANSION REQUEST issued pursuant to
Master Credit Facility Agreement dated
as of
[Master Agreement Date]
, by and
between the undersigned (
Borrower
),
[GUARANTOR]
and Lender (as amended from
time to time, the
Master Agreement
)
|
Ladies and Gentlemen:
This constitutes an Expansion Request pursuant to the terms of the above-referenced Master
Agreement.
Section 1.
Request
.
Borrower hereby requests an increase in the maximum credit
commitment in accordance with the terms of the Master Agreement. Following is the information
required by the Master Agreement with respect to this Request:
(a)
Amount of Increase
. The amount of the increase in the maximum credit commitment
and the amount of the increases in the Fixed Facility Commitment or the Variable Facility
Commitment are as follows:
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RESULTING AMOUNT OF
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NAME
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INCREASE
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COMMITMENT
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MAXIMUM CREDIT
COMMITMENT:
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FIXED FACILITY
COMMITMENT:
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Master Credit Facility Agreement
Camden 2008
O-1
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RESULTING AMOUNT OF
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NAME
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INCREASE
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COMMITMENT
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VARIABLE FACILITY
COMMITMENT:
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[Note:
Section 4.01
of the Master Agreement limits the maximum amount of increase in the Commitment
to
[$
]
and the increase in the Commitment must be in the minimum amount of
$5,000,000.]
(b)
Accompanying Documents
. All documents, instruments and certificates required to
be delivered pursuant to the conditions contained in
Section 4.03
of the Master Agreement will be
delivered on or before the Closing Date.
Section 2.
Capitalized Terms
.
All capitalized terms used but not defined in this
Request shall have the meanings ascribed to such terms in the Master Agreement.
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Sincerely,
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BORROWER
:
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[BORROWER]
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[INSERT BORROWER BLOCK]
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Master Credit Facility Agreement
Camden 2008
O-2
EXHIBIT P TO MASTER CREDIT FACILITY AGREEMENT
FACILITY TERMINATION REQUEST
THE MASTER AGREEMENT REQUIRES YOU TO PERMIT THE [VARIABLE] [FIXED] FACILITY COMMITMENT TO BE
REDUCED TO THE AMOUNT DESIGNATED BY US, AT A CLOSING TO BE HELD AT OFFICES DESIGNATED BY YOU ON A
CLOSING DATE SELECTED BY BORROWER AND APPROVED BY YOU, WITHIN FIFTEEN (15) BUSINESS DAYS AFTER YOUR
RECEIPT OF THE FACILITY TERMINATION REQUEST (OR ON SUCH OTHER DATE AS WE MAY AGREE), IF ALL
CONDITIONS CONTAINED IN
SECTION 5.
02(b)
ARE SATISFIED. REFERENCE IS MADE TO THE MASTER AGREEMENT
FOR THE SCOPE OF LENDERS OBLIGATIONS WITH RESPECT TO THIS REQUEST.
[
,
]
[LENDER]
(
Lender
)
[ADDRESS]
[Note: Subject to change in the event Lender or its address changes]
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Re:
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FACILITY TERMINATION REQUEST issued
pursuant to Master Credit Facility
Agreement dated as of
[Master Agreement
Date]
, by and between the undersigned
(
Borrower
),
[GUARANTOR]
and Lender
(as amended from time to time, the
Master Agreement
)
|
Ladies and Gentlemen:
This constitutes a Facility Termination Request pursuant to the terms of the above-referenced
Master Agreement.
Section 1.
Request
.
Borrower hereby requests a permanent reduction in the amount of
the
[Variable] [Fixed]
Facility Commitment in accordance with the terms of the Master Agreement.
Following is the information required by the Master Agreement with respect to this Request:
(a)
Amount of Reduction
. The amount of the permanent reduction in the
[Variable]
[Fixed]
Facility is as follows:
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Amount of Reduction:
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$
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Resulting Amount of
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[Variable] [Fixed]
Facility:
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$
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Master Credit Facility Agreement
Camden 2008
P-1
(b)
Required Prepayments
. Following are any
[Variable] [Fixed]
Advances that shall be
prepaid in connection with the permanent reduction in the
[Variable] [Fixed]
Facility:
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Closing Date of Advance:
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Maturity Date of Advance:
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Amount of Advance:
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(c)
Accompanying Documents
. All documents, instruments and certificates required to
be delivered pursuant to the conditions contained in
Section 5.
02(b)
of the Master Agreement will
be delivered on or before the Closing Date.
Section 2.
Prepayments and Termination Fee
.
Borrower shall pay the amount of the
prepayment for any
[Variable] [Fixed]
Advances required to be prepaid pursuant to the terms of
Section 6.09
of the Master Agreement, as conditions to the permanent reduction in the
[Variable]
[Fixed]
Facility Commitment on or before the Closing Date.
Section 3.
Capitalized Terms
.
All capitalized terms used but not defined in this
Request shall have the meanings ascribed to such terms in the Master Agreement.
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Sincerely,
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BORROWER
:
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[BORROWER]
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[INSERT BORROWER BLOCK]
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Master Credit Facility Agreement
Camden 2008
P-2
EXHIBIT Q TO MASTER CREDIT FACILITY AGREEMENT
AMENDMENT TO MASTER CREDIT FACILITY AGREEMENT
THIS
[
]
AMENDMENT TO MASTER CREDIT FACILITY AGREEMENT (the
Amendment
) is
made as of the
[
day of
,
]
, by and between
[BORROWER]
(
Borrower
),
[GUARANTOR]
(
Guarantor
) and
[LENDER]
(
Lender
).
RECITALS
A. Borrower, Guarantor and Lender are parties to that certain Master Credit Facility Agreement
dated as of
[Master Agreement Date]
(as amended from time to time, the
Master Agreement
).
B. All of Lenders right, title and interest in the Master Agreement and the Loan Documents
executed in connection with the Master Agreement or the transactions contemplated by the Master
Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit
Facility Agreement and other Loan Documents, dated as of even date with the Master Agreement (the
Assignment
). Fannie Mae has not assumed any of the obligations of Lender under the
Master Agreement or the Loan Documents as a result of the Assignment. Fannie Mae has designated
Lender as the servicer of the Advances contemplated by the Master Agreement.
C. The parties are executing this Amendment pursuant to the Master Agreement to reflect a
permanent reduction of all or a portion of the
[Variable] [Fixed]
Facility Commitment.
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises and
agreements contained in this Amendment and the Master Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as
follows:
Section 1.
Reduction of [Variable] [Fixed] Facility Commitment
.
The
[Variable]
[Fixed]
Facility Commitment shall be reduced by $
, and the definition of
[Variable] [Fixed] Facility Commitment
is hereby replaced in its entirety by the
following new definition:
Variable Facility Commitment
means an aggregate amount of
$
, which shall be evidenced by the Variable Facility Note plus such
amount as Borrower may elect to add to the Variable Facility Commitment in accordance with
Article 4, and less such amount as Borrower may elect to convert from the Variable
Facility Commitment to the Fixed Facility Commitment in accordance with
Section 1.08
and
less such amount by which Borrower may elect to reduce the Variable Facility Commitment in
accordance with
Article 5
.
Master Credit Facility Agreement
Camden 2008
Q-1
Fixed Facility Commitment
means $
, plus such amount as
Borrower may elect to add to the Fixed Facility Commitment in accordance with
Section 1.08
and less such amount by which Borrower may elect to reduce the Fixed Facility Commitment
in accordance with
Article 5
.
Section 2.
Capitalized Terms
.
All capitalized terms used in this Amendment which are
not specifically defined herein shall have the respective meanings set forth in the Master
Agreement.
Section 3.
Full Force and Effect
.
Except as expressly modified by this Amendment, all
terms and conditions of the Master Agreement shall continue in full force and effect.
Section 4.
Counterparts
.
This Amendment may be executed in counterparts by the
parties hereto, and each such counterpart shall be considered an original and all such counterparts
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as an instrument under
seal as of the day and year first above written.
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BORROWER
:
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[BORROWER]
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[INSERT BORROWER BLOCK]
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GUARANTOR
:
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[GUARANTOR]
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[INSERT GUARANTOR BLOCK]
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LENDER
:
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[LENDER]
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[INSERT LENDER BLOCK]
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Master Credit Facility Agreement
Camden 2008
Q-2
EXHIBIT R TO MASTER CREDIT FACILITY AGREEMENT
CREDIT FACILITY TERMINATION REQUEST
THE MASTER AGREEMENT PURSUANT TO WHICH THIS REQUEST IS DELIVERED REQUIRES THAT THIS AGREEMENT
SHALL TERMINATE, AND YOU SHALL CAUSE ALL OF THE COLLATERAL TO BE RELEASED FROM THE COLLATERAL POOL,
AT A CLOSING TO BE HELD AT OFFICES DESIGNATED BY YOU ON A CLOSING DATE SELECTED BY YOU, WITHIN
THIRTY (30) BUSINESS DAYS AFTER THE YOUR RECEIPT OF THE CREDIT FACILITY TERMINATION REQUEST (OR ON
SUCH OTHER DATE AS WE MAY AGREE), AS LONG AS ALL CONDITIONS CONTAINED IN
SECTION 5.
04(b)
OF THE
MASTER AGREEMENT ARE SATISFIED. REFERENCE IS MADE TO THE MASTER AGREEMENT FOR THE SCOPE OF
LENDERS OBLIGATIONS WITH RESPECT TO THIS REQUEST.
[
,
]
[LENDER]
(
Lender
)
[ADDRESS]
[Note: Subject to change in the event Lender or its address changes]
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Re:
|
|
CREDIT FACILITY TERMINATION REQUEST
issued pursuant to Master Credit
Facility Agreement dated as of
[Master
Agreement Date]
, by and among the
undersigned (
Borrower
),
[GUARANTOR]
and Lender (as amended from time to
time, the
Master Agreement
)
|
Ladies and Gentlemen:
This constitutes a Credit Facility Termination Request pursuant to the terms of the
above-referenced Master Agreement.
Section 1.
Request
.
Borrower hereby requests a termination of the Master Agreement
and the Credit Facility in accordance with the terms of the Master Agreement. All documents,
instruments and certificates required to be delivered pursuant to the conditions contained in
Section 5.
04(b)
of the Master Agreement will be delivered on or before the Closing Date.
Section 2.
Prepayments, Release Fees and Termination Fee
.
Borrower shall pay in full
all Notes Outstanding, and the required amount of the Release Fees and the required Facility
Termination Fee as a condition to the termination of the Master Agreement and the Credit Facility.
Master Credit Facility Agreement
Camden 2008
R-1
Section 3.
Capitalized Terms
.
All capitalized terms used but not defined in this
Request shall have the meanings ascribed to such terms in the Master Agreement.
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Sincerely,
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BORROWER
:
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[BORROWER]
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[INSERT BORROWER BLOCK]
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Master Credit Facility Agreement
Camden 2008
R-2
EXHIBIT S TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2008
S-1
EXHIBIT T TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2008
T-1
EXHIBIT U TO MASTER CREDIT FACILITY AGREEMENT
CASH COLLATERAL PLEDGE, SECURITY AND CUSTODY AGREEMENT
This Cash Collateral, Pledge, Security and Custody Agreement (this Cash Collateral
Agreement), dated as of
[DATE]
among
[BORROWER]
(the Grantor), FANNIE MAE (Fannie Mae), a
federally-chartered and stockholder-owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, 12 U.S.C. 1716,
et
seq
. and
[LENDER]
,
acting as agent (the Custodian).
RECITALS
WHEREAS,
the Grantor,
[GUARANTOR]
and
[LENDER]
, in its capacity as lender (
Lender
)
have heretofore entered into that certain Master Credit Facility Agreement, dated
[Master Agreement
Date]
(the Master Agreement) pursuant to which the Lender has established a $380,000,000 credit
facility in favor of the Grantor;
WHEREAS,
the Lender has assigned all of its right, title and interest in and to the Master
Agreement and the other Loan Documents to Fannie Mae;
WHEREAS,
to secure the obligations of the Grantor under the Master Agreement and the other
Loan Documents, the Grantor has created a Collateral Pool in favor of the Lender consisting of (i)
the Mortgaged Properties encumbered by the Security Instruments and (ii) any other property
securing any of the Grantors obligations under the Loan Documents;
WHEREAS,
the Master Agreement provides that a Mortgaged Property may be released from the lien
of a Security Instrument, or a Substituted Mortgaged Property added to the Collateral Pool in
substitution for a Mortgaged Property, under the circumstances and pursuant to the conditions set
forth in the Master Agreement;
WHEREAS,
the Grantor may, in partial satisfaction of such conditions, arrange for the issuance
of a letter of credit for the benefit of Fannie Mae or deposit monies with the Custodian into the
Cash Collateral Account (as defined herein) in order to meet certain debt service coverage and
loan-to-value requirements;
WHEREAS,
the Master Agreement sets forth the conditions under which Fannie Mae shall have the
right to draw monies under the Letter of Credit (collectively, the
Letters of Credit
) and
the purposes for which Fannie Mae may use such monies;
WHEREAS,
the Master Agreement provides that under certain circumstances Fannie Mae may deposit
the proceeds of a draw on the Letters of Credit into the Cash Collateral Account;
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NOW, THEREFORE,
in consideration of the mutual covenants and undertakings set forth in this
Cash Collateral Agreement and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties hereto the Grantor, Fannie Mae and the Custodian agree as
follows:
1. Incorporation of Recitals; Definitions; Interpretation; Reference Materials.
1.1 Incorporation of Recitals.
The recitals set forth above are, by this reference,
incorporated into and deemed a part of this Cash Collateral Agreement.
1.2 Definitions.
Capitalized terms used in this Cash Collateral Agreement shall have the
meanings given to those terms in this Cash Collateral Agreement. Capitalized terms used in this
Cash Collateral Agreement (including in the Recitals) and not otherwise defined in this Cash
Collateral Agreement, but defined in the Master Agreement, shall have the meanings given to those
terms in the Master Agreement.
1.3 Interpretation.
Words importing any gender include all genders. The singular form of
any word used in this Cash Collateral Agreement shall include the plural, and vice versa, unless
the context otherwise requires. Words importing persons include natural persons, firms,
associations, partnerships, corporations and public entities. The parties hereto acknowledge that
each party and their respective counsel have participated in the drafting and revision of this Cash
Collateral Agreement. Accordingly, the parties agree that any rule of construction which disfavors
the drafting party shall not apply in the interpretation of this Cash Collateral Agreement or any
statement or supplement or exhibit hereto.
1.4 Reference Materials.
Sections cited by number only refer to the respective sections of
this Cash Collateral Agreement so numbered. Reference to this Section or this Subsection shall
refer to the particular section or subsection in which such reference appears. Any captions,
titles or headings preceding the text of any section and any table of contents or index attached to
this Cash Collateral Agreement are solely for convenience of reference and shall not constitute
part of this Cash Collateral Agreement or affect its meaning, construction or effect.
2. Appointment of Custodian and Deposits into Cash Collateral Account.
2.1 Appointment of Custodian.
Fannie Mae hereby appoints and designates the Custodian as
agent for Fannie Mae under this Cash Collateral Agreement, and hereby authorizes and instructs the
Custodian to perform such acts required of the agent, on its behalf, under this Cash Collateral
Agreement, with such powers as set forth herein. The Custodian hereby accepts such appointment and
designation. The Grantor hereby acknowledges Fannie Maes appointment of the Custodian as agent
for Fannie Mae under this Cash Collateral Agreement, and the powers granted therewith under this
Cash Collateral Agreement.
2.2 Establishment of Cash Collateral Account and Initial Deposit.
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(i) On the earlier of (i) the initial date Fannie Mae draws monies under the Letter of
Credit and either is required or chooses to deposit such funds in the Cash Collateral
Account or (ii) the initial date the Grantor delivers cash for deposit to the Cash
Collateral Account pursuant to the terms of the Master Agreement, Fannie Mae shall deposit
(the Initial Deposit) such funds into an account established by the Custodian on behalf of
Fannie Mae at the office of a banking institution approved by Fannie Mae (the Custodial
Bank), which account shall be entitled Fannie Mae Cash Collateral Account and maintained
in accordance with Section 6.1 hereof (the Cash Collateral Account)
(ii) All further deposits of funds (each, a Deposit) made pursuant to the terms of
the Master Agreement shall be delivered to the Custodian for deposit into the Cash
Collateral Account in the required amount.
2.3 Monies Drawn Under Letters of Credit.
(i) The parties hereto agree that any monies drawn under the Letters of Credit shall be
owned by Fannie Mae. Fannie Mae has agreed under the circumstances set forth in the Master
Agreement to deposit such monies into the Cash Collateral Account and not to withdraw such
monies except pursuant to the terms of the Master Agreement and this Cash Collateral
Agreement.
(ii) To the extent that the Grantor shall be deemed to have any interest in monies
drawn under any of the Letters of Credit, then the Grantor pledges and assigns to the
Custodian, on behalf of Fannie Mae, and grants to the Custodian, on behalf of Fannie Mae, a
lien and security interest in such monies drawn under the Letters of Credit as set forth in
Section 3.1 hereof.
3. Pledge of Collateral.
3.1 Pledge and Assignment.
In addition to, and consistent with, the provisions of Section
2.3 hereof, the Grantor pledges, assigns to the Custodian, and grants a continuing security
interest in, all of the Grantors right, title and interest in and to the following collateral
(collectively, the Collateral) to the Custodian for the benefit of Fannie Mae:
(i) the Initial Deposit and all future Deposits made pursuant to the Master Agreement
and this Cash Collateral Agreement;
(ii) the Cash Collateral Account, and all funds held therein including all certificates
and instruments, if any, from time to time representing, evidencing or otherwise relating to
the Cash Collateral Account;
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(iii) all investments made from time to time with funds held in the Cash Collateral
Account and all certificates and instruments, if any, from time to time representing or
evidencing such investments;
(iv) all present and future securities, investment securities, notes, certificates of
deposit, treasury obligations, investment agreements, guaranteed investment contracts,
negotiable instruments, general intangibles, cash, bank deposit accounts, checks and other
instruments from time to time hereafter resulting from the investment and/or reinvestment of
Collateral pursuant to Section 4 of this Cash Collateral Agreement; and
(v) all cash and non-cash proceeds of any of the foregoing, including, without
limitation, interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed or distributable in respect of or in exchange
for any or all of the other Collateral.
3.2 Security for Obligations.
This Cash Collateral Agreement and the Collateral secure the
prompt payment and performance in full when due, whether at stated maturity, by acceleration or
otherwise (including the payment of amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(A), or any
successor provision thereto), of all amounts due and owing by the Grantor under the Master
Agreement and the other Loan Documents (the Obligations).
3.3 Perfection of Security Interest in Collateral.
The Grantor shall, from time to time at
the request of the Custodian and at the expense of the Grantor, take or cause to be taken all
actions necessary to provide the Custodian for the benefit of Fannie Mae with a first priority
perfected security interest in the Collateral, including all actions, notifications, registrations,
filings and acts of delivery or transfer required under Articles 8 and 9 of the Uniform Commercial
Code of the State of New York (the Code), as the same may be amended from time to time.
3.4 Further Assurances.
At any time and from time to time, at the expense of the Grantor,
the Grantor shall promptly execute and deliver to the Custodian all further instruments and
documents, and take all further action, including, without limitation the execution of any
financing statements required under the Code and that may be necessary or desirable, or that the
Custodian may request, in order to perfect, continue and protect any security interest granted or
purported to be granted by this Cash Collateral Agreement or to enable the Custodian to exercise
and enforce its rights and remedies under this Cash Collateral Agreement.
3.5 Transfers and other Liens.
The Grantor agrees that it will not (a) sell or otherwise
dispose of any of the Collateral or (b) create or permit to exist any lien, security interest, or
other charge or encumbrance upon or with respect to any of the Collateral, except for the security
interest created pursuant to this Cash Collateral Agreement.
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3.6 Reduction in Value of Collateral.
The Custodian shall not be liable for any reduction in
the value of any Collateral in its possession or credited to its account (except for any reduction
in value resulting from the Custodians willful misconduct or negligence), nor shall any such
reduction in any way diminish the Grantors Obligations.
4. Investment of Cash Collateral Account.
Funds deposited in the Cash Collateral Account may
be invested and reinvested by and in the name of the Custodian only in Permitted Investments (as
hereinafter defined). An investment shall be a
Permitted Investment
if it is a Permitted
Investment designated in Exhibit A to this Agreement. All interest and other earnings accruing on
any Permitted Investments shall remain in the Cash Collateral Account and shall be subject to this
Cash Collateral Agreement, provided that all such interest and other earnings shall be disbursed to
the Grantor on the first Business Day of each August, October, January and April unless Fannie Mae
shall have instructed the Custodian not to so disburse such earnings because a Default or an Event
of Default under the Master Agreement has occurred and is continuing. All Permitted Investments
shall be made by the Custodian at the written direction of the Grantor. The Custodian may act as
principal, agent, sponsor or, if a depository institution, depository with respect to any Permitted
Investments.
5. Representations and Warranties.
5.1 Representations and Warranties of the Grantor.
Each Grantor represents and warrants to
Fannie Mae on the Closing Date that:
(i) it is a limited partnership or limited liability company duly organized, validly
existing and in good standing in the state of its formation;
(ii) it has all requisite power and authority to enter into this Cash Collateral
Agreement and to carry out its obligations under this Cash Collateral Agreement; the
execution, delivery and performance of this Cash Collateral Agreement and the consummation
of the transactions contemplated by this Cash Collateral Agreement have been duly authorized
by all necessary partnership and other action on the part of the Grantor; this Cash
Collateral Agreement has been duly executed and delivered by it and is the valid and binding
obligation of the Grantor, enforceable against it in accordance with its terms (except to
the extent enforceability thereof may be limited by any applicable bankruptcy, insolvency,
receivership or similar laws affecting the rights of creditors generally);
(iii) No consent of any other person or entity and no authorization, approval, or other
action by, and no notice to or filing with, any governmental authority or regulatory body is
required (a) for the pledge by the Grantor of the Collateral pursuant to this Cash
Collateral Agreement or for the execution, delivery or performance of this Cash Collateral
Agreement by the Grantor, (b) for the perfection or maintenance of the security interest
created hereby (including the first priority nature of such security interest) or (c) for
the exercise by the Custodian of the rights provided for in this Cash
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Collateral Agreement or the remedies in respect of the Collateral pursuant to this Cash
Collateral Agreement (except as may be required in connection with any disposition of any
portion of the Collateral by laws affecting the offering and sale of securities generally);
there are no conditions precedent to the effectiveness of this Cash Collateral Agreement, to
which the Grantor may be subject, that have not been satisfied or waived;
(iv) neither the execution nor delivery of this Cash Collateral Agreement nor the
performance by the Grantor of its obligations under this Cash Collateral Agreement, nor the
consummation of the transactions contemplated by this Cash Collateral Agreement, will (a)
conflict with any provision of the certificate of limited partnership, partnership
agreement, articles of organization or operating agreement of the Grantor; (b) conflict
with, result in a breach of, constitute a default (or an event which would, with the passage
of time or the giving of notice or both, constitute a default) under, or give rise to a
right to terminate, amend, modify, abandon or accelerate, any contract, agreement,
promissory note, lease, indenture, instrument or license to which the Grantor is a party or
by which the Grantors assets or properties may be bound or affected; (c) violate or
conflict with any federal, state or local law, statute, ordinance, rule, regulation, order,
judgment, decree or arbitration award which is either applicable to, binding upon or
enforceable against the Grantor; (d) result in or require the creation or imposition of any
liens, security interests, options or other charges or encumbrances (Liens) upon or with
respect to the Collateral, other than Liens in favor of the Custodian; (e) give to any
individual or entity a right or claim against the Grantor; (f) require the consent,
approval, order or authorization of, or the registration, declaration or filing with, any
federal, state or local government entity;
(v) it is the legal and beneficial owner of, and has good and marketable title to (and
has full right and authority to pledge and assign), the Collateral, free and clear of any
Liens, except Liens granted pursuant to this Cash Collateral Agreement; and
(vi) upon delivery of the Collateral to the Custodian and/or the filing of financing
statements, if any, required under the Code, the Custodian for the benefit of Fannie Mae
shall have a valid, enforceable and perfected first priority security interest in all of the
Collateral securing the Obligations; and
(iv) its principal place of business and chief executive office is located as set forth
on Exhibit B hereto.
5.2 Representations and Warranties of the Custodian.
The Custodian represents and warrants
to the Grantor and Fannie Mae that:
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(i) it is a
[
]
duly organized and validly existing under the laws of the
[
]
.
(ii) it has the power and authority to execute, deliver, and perform its obligations
under, this Cash Collateral Agreement;
(iii) all partnership or other action required to authorize the acceptance of its
appointment as Custodian hereunder and the execution, delivery and performance of this Cash
Collateral Agreement and the effectuation of the transactions provided for in this Cash
Collateral Agreement has been duly taken; and
(iv) it is not an agent of the Grantor.
6. Cash Collateral Account.
6.1 Cash Collateral Account.
On or prior to the date of the Initial Deposit pursuant to
Subsection 2.2(i), the Custodian, as agent for Fannie Mae, shall establish with the Custodial Bank
the Cash Collateral Account pursuant to a depository agreement in form and substance satisfactory
to Fannie Mae. The Custodian shall maintain the Cash Collateral Account at an office of the
Custodial Bank approved in writing by Fannie Mae until the termination of this Cash Collateral
Agreement. Possession, dominion and control of the Cash Collateral Account, including the
authority to direct the use and disposition of monies in the Cash Collateral Account, shall be
vested solely in the Custodian, acting as agent for Fannie Mae. The Grantor shall have no
signature authority as to the Cash Collateral Account and shall otherwise have no authority to
direct the use or disposition of monies in the Cash Collateral Account or of Permitted Investments
during the term of this Cash Collateral Agreement. The Grantor shall have no right of withdrawal
from the Cash Collateral Account.
Segregation of investments made with funds held in the Cash Collateral Account from all other
property held by the Custodian or the Custodial Bank shall be accomplished by appropriate
identification on the Custodians and the Custodial Banks books and records. The Custodian shall,
and shall cause the Custodial Bank to, at all times prior to the termination of this Cash
Collateral Agreement, maintain a record of all Permitted Investments and shall identify such
Permitted Investments as being subject to the security interest granted to the Custodian, on behalf
of Fannie Mae, in this Cash Collateral Agreement. So long as the internal procedures set forth in
this Section are followed by the Custodian and the Custodial Bank, the Custodian or the Custodial
Bank, as applicable, may hold the Permitted Investments in its vaults (including any vault over
which it may have exclusive access and dominion) or in a commingled account (whether book-entry or
otherwise), as agent for its customers, or with any bank, central depository or clearing
corporation as the Custodians subcustodian, in nominee name or otherwise.
6.2 Powers of the Custodian.
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(i) Fannie Mae hereby authorizes the Custodian, and the Grantor hereby acknowledges
such power and right, to (a) take such action on behalf of Fannie Mae and to exercise such
rights, remedies, powers and privileges under this Cash Collateral Agreement as are
specifically authorized to be exercised by the Custodian by the terms of this Cash
Collateral Agreement, together with such rights, remedies, powers and privileges as are
reasonably incidental thereto; (b) execute any of its duties as collateral agent under this
Cash Collateral Agreement by or through agents or employees; and (c) retain experts
(including counsel) and to act in reliance upon the advice of such experts concerning all
matters pertaining to the agencies created by this Cash Collateral Agreement and its duties
under this Cash Collateral Agreement, free from any liability for any action taken or
omitted to be taken by it in good faith, without negligence, in accordance with the advice
of such experts;
(ii) The Custodian agrees to perform only those duties specifically set forth in this
Cash Collateral Agreement and no implied duties or obligations shall be read into this Cash
Collateral Agreement. The Custodian shall have no duty to exercise any discretionary right,
remedy, power or privilege granted to it by this Cash Collateral Agreement, or to take any
affirmative action under this Cash Collateral Agreement, unless directed to do so by Fannie
Mae in writing, and shall not, without the prior written approval of Fannie Mae, consent to
any departure by the Grantor from the terms of this Cash Collateral Agreement, waive any
default by the Grantor under this Cash Collateral Agreement or amend, modify, supplement or
terminate, or agree to any surrender of, this Cash Collateral Agreement or the Collateral;
provided, however, that the Custodian shall not be required to take any action which exposes
the Custodian to personal liability or which is contrary to this Cash Collateral Agreement,
or any other agreement or instrument relating to the Collateral or applicable law;
(iii) Neither the Custodian nor any of its directors, officers, employees or agents
shall be liable for any action taken or omitted to be taken by it or them under this Cash
Collateral Agreement, or in connection with this Cash Collateral Agreement, except for its
or their own negligence or willful misconduct; nor shall the Custodian be responsible for
the validity, effectiveness, value, sufficiency or enforceability against the Grantor of
this Cash Collateral Agreement or any other document furnished pursuant to this Cash
Collateral Agreement or in connection with this Cash Collateral Agreement, or of the
Collateral (or any part thereof), or for the perfection or priority of any security interest
purported to be granted under this Cash Collateral Agreement; and
(iv) The Custodian shall be entitled to rely in good faith on any communication,
instrument, paper or other document believed by it to be genuine and correct and to have
been signed or sent by the proper person or persons. The Custodian shall be entitled to
assume that no Event of Default shall have occurred and be continuing, unless the Custodian
has received written notice from the Servicer (as such term is defined in the Master
Agreement) or Fannie Mae that such an Event of Default
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has occurred and is continuing. The Custodian shall be entitled to receive, upon its
written request, and may rely conclusively upon, certificates of Fannie Mae as to the amount
of the outstanding Obligations. The Custodian may accept deposits from, lend money to, and
generally engage in any kind of business with, the Grantor and its affiliates as if it were
not the agent of Fannie Mae.
6.3 Custodian Appointed Attorney-In-Fact.
The Grantor hereby appoints the Custodian as the
Grantors attorney-in-fact, with full authority in the place and stead of the Grantor and in the
name of the Grantor or otherwise, from time to time in the Custodians discretion during the
continuance of an Event of Default, to take any action and to execute any instrument which the
Custodian may deem necessary or advisable to accomplish the purposes of this Cash Collateral
Agreement, including, to receive, indorse and collect all instruments made payable to the Grantor
representing any interest payment, dividend, or other distribution in respect of the Collateral or
any part thereof and to give full discharge for the same. The Grantor agrees that the power of
attorney established pursuant to this Section shall be deemed coupled with an interest and shall be
irrevocable.
6.4 Successor Custodian.
(i) The Custodian may at any time resign and be discharged of the duties and
obligations created by this Cash Collateral Agreement by giving at least 60 days notice to
Fannie Mae and the Grantor by an instrument in writing addressed and delivered to Fannie Mae
and the Grantor. Such resignation shall take effect upon the date specified in such notice,
unless a successor has not been appointed, in which event such resignation shall take place
upon Fannie Maes appointment of a successor. The Custodian may be removed at any time with
or without cause by an instrument in writing duly executed by or on behalf of Fannie Mae.
(ii) Fannie Mae shall, concurrently with any such resignation or removal, appoint a
successor Custodian by a written instrument of substitution that complies with any
requirements of applicable law. Upon the making and acceptance of such appointment, the
execution and delivery by such successor Custodian of a ratifying instrument pursuant to
which such successor Custodian agrees to assume the duties and obligations imposed on the
Custodian by the terms of this Cash Collateral Agreement, and the delivery to such successor
Custodian of the Collateral and documents and instruments then held by the retiring
Custodian, such successor Custodian shall thereupon succeed to and become vested with all
the estate, rights, powers, remedies, privileges, immunities, indemnities, duties and
obligations by this Cash Collateral Agreement granted to or conferred or imposed upon the
predecessor Custodian. No Custodian shall be discharged from its duties or obligations
under this Cash Collateral Agreement until the Collateral and documents and instruments then
held by such Custodian shall have been transferred or delivered to the successor Custodian
and until such retiring Custodian shall have executed and delivered to the successor
Custodian appropriate instruments
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assigning the retiring Custodians security or other interest in the Collateral to the
successor Custodian. The retiring Custodian shall not be required to make any representation
or warranty in connection with any such transfer or assignment.
(iii) Each successor Custodian shall provide the Grantor and Fannie Mae with its
address, to be used for purposes of Section 8.6, in a notice complying with the terms of
Section 8.6. Notwithstanding the resignation or removal of any Custodian under this Cash
Collateral Agreement, the provisions of this Cash Collateral Agreement shall continue to
inure to the benefit of such Custodian in respect of any action taken or omitted to be taken
by such Custodian in its capacity as such while it was Custodian under this Cash Collateral
Agreement.
(iv) Any corporation into which the Custodian may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of the Custodian, shall be the
successor of the Custodian hereunder, provided such corporation shall be otherwise qualified
and eligible under this Cash Collateral Agreement, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
6.5 Waiver of Lien, Set-off.
The Custodian hereby waives and relinquishes any lien or right
of set-off that the Custodian (irrespective of the capacity in which it is acting) may at any time
have with respect to any Collateral, including monies or investments in the Cash Collateral
Account.
7. Events of Default; Rights and Remedies.
7.1 Event of Default.
For purposes of this Cash Collateral Agreement, Event of Default
means:
(i) the failure by the Grantor to observe and perform any duty, obligation or covenant
required to be observed or performed by the Grantor under this Cash Collateral Agreement
within ten (10) days after receipt of notice, from the Custodian or Fannie Mae identifying
such failure;
(ii) any representation or warranty on the part of the Grantor contained in this Cash
Collateral Agreement or repeated and reaffirmed in accordance with this Cash Collateral
Agreement shall prove to be false, misleading or incorrect in any material respect as of the
date made or deemed made; or
(iii) the occurrence of an Event of Default under the Master Agreement.
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7.2 Remedies Upon Grantors Default.
If any Event of Default has occurred and is continuing:
(i) Fannie Mae shall have the right, in its sole and absolute discretion, to liquidate
the investments and use the money in the Cash Collateral Account for any purpose described
in the Master Agreement;
(ii) Fannie Mae may, without notice to the Grantor, except as required by law, and at
any time or from time to time, charge, set-off and otherwise apply all or any part of the
Collateral against the Obligations or any part thereof;
(iii) Fannie Mae shall have the right, in its sole and absolute discretion, to direct
the Custodian to transfer to or register in the name of Fannie Mae or any of its nominees,
any or all of the Collateral; and
(iv) Fannie Mae may, or the Custodian acting at the written direction of Fannie Mae
shall, exercise in respect of the Collateral, in addition to other rights and remedies
provided for in this Cash Collateral Agreement or otherwise available to it, all of the
rights and remedies of a secured party under the Code and also may, without notice except as
specified below, sell the Collateral at public or private sale, at any of the offices of
Fannie Mae or the Custodian or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as may be commercially reasonable. The Grantor agrees that, to the
extent notice of sale shall be required by the Code, ten (10) days prior notice to the
Grantor of the time and place of any public or private sale shall constitute reasonable
notification. Neither Fannie Mae nor the Custodian shall be obligated to sell any
Collateral notwithstanding notice of sale having been previously given. Fannie Mae may, or
the Custodian acting at the direction of Fannie Mae shall, adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so adjourned.
Nothing in this Cash Collateral Agreement shall require or be construed to require Fannie Mae
to accept tender of performance of any of the Grantors obligations under this Cash Collateral
Agreement after the expiration of any time period set forth in this Cash Collateral Agreement for
the performance of such obligations and the expiration of any applicable cure periods, if any.
Upon the occurrence of an Event of Default described in Section 7.1(i), the Custodian may (but
shall not be obligated to) perform, or cause to be performed, such duty, obligation or covenant, or
remedy any such failure, and may expend its funds for such purpose; provided, however, that, in
accordance with Section 8.1 of this Cash Collateral Agreement, the Grantor shall reimburse the
Custodian for any funds so expended.
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7.3 Application of Proceeds.
All cash proceeds received by Fannie Mae in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral shall be applied
by Fannie Mae to the payment of any outstanding Obligations in such order as Fannie Mae may elect.
Any surplus of such cash proceeds held by Fannie Mae, and remaining after payment and satisfaction
in full of all the Obligations, shall be paid over to the Grantor, or to the person or persons who
may be lawfully entitled to receive such surplus. The Grantor shall be liable for any deficiency
(subject to the non-recourse limitations and exceptions thereto set forth in Section 14.01 of the
Master Agreement) if the proceeds of any sale or other disposition of the Collateral are
insufficient to pay the Obligations.
7.4 No Additional Waiver Implied by One Waiver
. If the Grantor shall fail to perform any
obligation it is required to perform under this Cash Collateral Agreement, and such failure is
thereafter waived by Fannie Mae, such waiver shall be limited to the particular failure so waived
and shall not be deemed to waive any other failure to perform as required under this Cash
Collateral Agreement. Any forbearance to demand payment of any amounts payable under this Cash
Collateral Agreement shall be limited to the particular payment for which Fannie Mae, forbears
demand for payment and shall not be deemed a forbearance to demand any other amount payable under
this Cash Collateral Agreement.
8. Miscellaneous Provisions.
8.1 Fee; Costs and Expenses; Indemnification.
The Grantor shall pay to the Custodian an
annual fee in the amount of $
for its services hereunder, payable annually in advance on
the date of execution and delivery hereof and on each anniversary of such date during the term of
this Cash Collateral Agreement. The Grantor agrees to reimburse the Custodian, on demand, for all
reasonable out-of-pocket costs and expenses incurred by the Custodian in connection with the
administration and enforcement of this Cash Collateral Agreement and agrees to indemnify and hold
harmless the Custodian from and against any and all losses, costs, claims, damages, penalties,
causes of action, suits, judgments, liabilities and expenses (including, without limitation,
reasonable attorneys fees and expenses) incurred by the Custodian under this Cash Collateral
Agreement or in connection with this Cash Collateral Agreement, unless such liability shall be due
to willful misconduct or negligence on the part of the Custodian or its agents or employees. Any
and all amounts expended by the Custodian pursuant to Section 7.2 hereof shall be repayable to it
by the Grantor upon the Custodians demand therefor. The obligations of the Grantor under this
Section shall survive the termination of this Cash Collateral Agreement, the resignation of the
Custodian, and the discharge of the other obligations of the Grantor under this Cash Collateral
Agreement.
8.2 Termination.
This Cash Collateral Agreement and the assignments, pledges and security
interests created or granted by this Cash Collateral Agreement shall create a continuing security
interest in the Collateral and shall terminate upon the later to occur of (a) termination of the
Master Agreement (as provided in the Master Agreement) or (b) the date which is ninety-one (91)
days after the date on which all amounts due under the Loan Documents
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have been paid in full,
provided
that during such ninety-one (91) day period, no
filing of a petition in bankruptcy or other commencement of a bankruptcy or similar proceeding by
or against the Grantor under any applicable bankruptcy, insolvency, reorganization or similar law
now in effect or any such proceeding by or against the Grantor under any applicable bankruptcy,
insolvency, reorganization or similar law in effect after the date of this Cash Collateral
Agreement, shall have occurred.
Upon notice of such termination from Fannie Mae, the Custodian shall reassign, without
recourse to, or any warranty whatsoever by it, and deliver to the Grantor all Collateral and
documents then in the custody or possession of the Custodian and, if requested by the Grantor,
shall execute and deliver to the Grantor for recording or filing in each office in which any
assignment or financing statement relative to the Collateral or the agreements relating thereto or
any part thereof, shall have been filed or recorded, a termination statement or release under
applicable law (including, if relevant, the Code) releasing the Custodians interest therein, as
appropriate, and such other documents, notices, orders and instruments as the Grantor may
reasonably request, all without recourse to or any warranty whatsoever by, the Custodian, and at
the cost and expense of the Grantor.
8.3 Entire Agreement.
This Cash Collateral Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, between the parties to
this Cash Collateral Agreement with respect to the subject matter of this Cash Collateral
Agreement.
8.4 Amendment.
This Cash Collateral Agreement may not be amended, changed, waived or
modified except by a writing executed by duly authorized representatives of the Grantor, the
Custodian and Fannie Mae.
8.5 Successors and Assigns.
This Cash Collateral Agreement shall inure to the benefit of,
and be enforceable by, the Grantor, the Custodian and Fannie Mae and their respective successors
and permitted assigns, and nothing herein expressed or implied shall be construed to give any other
person or entity any legal or equitable rights under this Cash Collateral Agreement. The Grantor
shall not assign any of its rights, interests or obligations under this Cash Collateral Agreement
without the prior written consent of Fannie Mae.
8.6 Notices; Change In Principal Place of Business.
All notices, directions, certificates or
other communications hereunder shall be sufficiently given and shall be deemed given when sent by
certified or registered mail, return receipt requested, by overnight courier or by telecopy (to be
confirmed with a copy thereof sent by regular mail within two Business Days), addressed to the
appropriate notice address set forth below. Any of the parties hereto may, by such notice
described above, designate any further or different address to which subsequent notices,
certificates or other communication shall be sent without any requirement of execution of any
amendment to this Cash Collateral Agreement. Any such notice, certificate or communication shall
be deemed to have been given as of the date of actual delivery or the date
Master Credit Facility Agreement
Camden 2008
U-13
of failure to deliver by reason of refusal to accept delivery or changed address of which no
notice was given pursuant to this Section. The notice addresses are as follows:
To Grantor:
As to the Custodian:
Red Mortgage Capital, Inc.
Two Miranova Place, 12
th
Floor
Columbus, Ohio 43215
Attention: Servicing Manager
Telecopy: (614) 857-1620
To Fannie Mae:
If by mail or overnight courier:
Fannie Mae
3900 Wisconsin Avenue, N.W.
Drawer AM
Washington, D.C. 20016
Attention: Director, Multifamily Operations
Asset Management
Telecopy: (202) 752-3542
Re:
If by messenger:
Fannie Mae
4000 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attention: Director, Multifamily Operations Asset Management
Telecopy: (202) 752-3542
Re:
with a copy to:
If by mail or overnight courier:
Fannie Mae
Master Credit Facility Agreement
Camden 2008
U-14
3900 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attention: Vice President, Multifamily Asset Management
Telecopy: (202) 752-5016
Re:
If by messenger:
Fannie Mae
3939 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attention: Vice President, Multifamily Asset Management
Telecopy: (202) 752-5016
Re:
To the Servicer:
All notices to be given by the Grantor under this Cash Collateral Agreement shall be given to
Fannie Mae and the Servicer. The Grantor shall give Fannie Mae and the Servicer at least thirty
(30) days prior written notice of a change in its principal place of business and chief executive
office.
8.7 Rights of Servicer.
The parties to this Cash Collateral Agreement acknowledge and agree,
and the Custodian is hereby authorized and instructed by Fannie Mae, that, except as otherwise
provided below, in connection with any provision of this Cash Collateral Agreement under which
Fannie Mae is otherwise granted the right (A) to request that the Grantor, the Custodian or another
party (i) take or refrain from taking certain action, (ii) deliver certain information, documents
or instruments, or (iii) invest funds in the Cash Collateral Account, (B) to give any instructions
or directions or (C) to exercise remedies under Section 7.2 of this Cash Collateral Agreement, Red
Mortgage Capital, Inc. is hereby authorized to act on behalf of, and in the place and stead of,
Fannie Mae, pursuant to the Servicing Agreement between Fannie Mae and Red Mortgage Capital, Inc.
(the Servicer). Any rights of the Servicer to act on behalf of Fannie Mae pursuant to the
preceding sentence shall be terminated as and to the extent determined by Fannie Mae upon delivery
by Fannie Mae to the parties to this Cash Collateral Agreement of written notice of such
termination. The Servicer is neither affiliated with, nor acting as an agent for, the Grantor.
8.8 Discretion.
Whenever Fannie Mae shall have any right or option to exercise any
discretion, to determine any matter, to accept any presentation or to approve any matter, such
Master Credit Facility Agreement
Camden 2008
U-15
exercise, determination, acceptance or approval shall, without exception, be in Fannie Maes
sole and absolute discretion.
8.9 Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial.
The provisions of Section
15.06 of the Master Agreement (entitled Choice of Law; Consent to Jurisdiction; Waiver of Jury
Trial) are hereby incorporated into this Agreement by this reference to the fullest extent as if
the text of such Section were set forth in its entirety herein.
8.10 Severability.
If any term or other provision of this Cash Collateral Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Cash Collateral Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to any party.
8.11 Multiple Counterparts.
This Cash Collateral Agreement may be simultaneously executed in
multiple counterparts, all of which shall constitute one and the same instrument and each of which
shall be deemed to be an original.
Master Credit Facility Agreement
Camden 2008
U-16
The Grantor, the Custodian and Fannie Mae have caused this Cash Collateral Agreement to be
signed, on the date first written above, by their respective officers duly authorized.
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GRANTOR:
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By:
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Name:
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Title:
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CUSTODIAN
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Name:
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FANNIE MAE
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Master Credit Facility Agreement
Camden 2008
U-17
EXHIBIT A
PERMITTED INVESTMENTS
The following investments are Permitted Investments (please see the exceptions set out in
under the next heading,
Exclusions from Permitted Investments
):
(a)
Government Obligations
. Direct obligations of, and obligations on which the full
and timely payment of principal and interest is unconditionally guaranteed by, the full faith and
credit of the United States of America.
(b)
Agencies; World Bank
. Direct obligations of, and obligations on which the full
and timely payment of principal and interest is unconditionally guaranteed by, any agency or
instrumentality of the United States of America (other than the Federal Home Loan Mortgage
Corporation) or direct obligations of the World Bank. These obligations must be rated in the
Highest Rating Category.
(c)
State and Local Obligations
. Obligations of any state or territory of the United
States of America, obligations of any agency, instrumentality, authority or political subdivision
of a state or territory, and obligations of any public benefit or municipal corporation. Interest
must be payable on a current basis and the obligations must be rated in the Highest Rating
Category.
(d)
Repurchase Agreements
. Any written repurchase agreement entered into with a
Qualified Financial Institution (see definition below) whose unsecured short-term obligations are
rated in the Highest Rating Category.
(e)
Commercial Paper
. Commercial paper rated in the Highest Rating Category.
(f)
Bank Deposits
. Interest-bearing negotiable certificates of deposit,
interest-bearing time deposits, interest-bearing savings accounts or bankers acceptances, issued
by a Qualified Financial Institution whose unsecured short-term obligations are rated in the
Highest Rating Category. Interest-bearing negotiable certificates of deposit, interest-bearing
time deposits or interest-bearing savings accounts, issued by a Qualified Financial Institution, if
such deposits or accounts are fully insured by the Federal Deposit Insurance Corporation.
(g)
Investment Agreements
. Agreements for the investment of moneys at a guaranteed
rate (an Investment Agreement) with Fannie Mae. Investment Agreements with a Qualified Financial
Institution whose unsecured long-term obligations are rated in the Highest Rating Category, or
whose obligations are unconditionally guaranteed or insured by a Qualified Financial Institution
whose unsecured long-term obligations are rated in the Highest Rating Category. The Investment
Agreement must be in a form acceptable to Fannie Mae. The Investment Agreement must include the
following restrictions:
Master Credit Facility Agreement
Camden 2008
U-18
(1) invested funds shall be available for withdrawal without penalty or premium
at any time that (a) moneys are required for payment or (b) if a bond credit
enhancement, any Rating Agency indicates that it will lower, suspend or withdraw or
actually lowers, suspends or withdraws the rating on the bonds on account of the
rating of the Qualified Financial Institution providing, guaranteeing or insuring,
as applicable, the Investment Agreement;
(2) the Investment Agreement is the unconditional and general obligation of the
provider and, if applicable, the guarantor or insurer, of the Investment Agreement,
and is not subordinated to any other obligation;
(3) a legal opinion provides that the Investment Agreement is legal, valid,
binding and enforceable upon the provider of the Investment Agreement in accordance
with its terms and, if applicable, that any guaranty, insurance policy or other
facility provided by a guarantor, insurer or other provider is legal, valid, binding
and enforceable upon the guarantor, insurer or other provider in accordance with its
terms; and
(4) the Investment Agreement provides that if during its term the rating of the
Qualified Financial Institution providing, guaranteeing or insuring, as applicable,
the Investment Agreement, is withdrawn or suspended by any Rating Agency or falls
below the Highest Rating Category, the provider must, within 10 days following a
written request to do so, either: (a) collateralizes the Investment Agreement (if
the Investment Agreement is not already collateralized) with Permitted Investments
described in paragraph (a) or (b) by depositing collateral with the bond trustee (if
a bond credit enhancement) or a third party custodian, such collateralization to be
effected in a manner and in an amount sufficient to maintain the then current rating
of the bonds, or, if the Investment Agreement is already collateralized, increase
the collateral with Permitted Investments described in paragraph (a) or (b) by
depositing collateral with the trustee or a third party custodian, so as to maintain
the then current rating of the bonds, or (b) unless waived, repay the principal of
and accrued but unpaid interest on the investment, in either case with no penalty or
premium unless required by law.
If an Investment Agreement does not require the provider to either (a) post collateral as described
in paragraph (4) upon a downgrade in the rating of the provider or (b) compensate for any loss in
yield upon reinvestment if the Investment Agreement is terminated following a downgrade in the
rating of the provider, the yield on the Investment Agreement above the minimum yield permitted by
the Rating Agency (presently 2.5% per annum) will not be taken into account in any Cash Flow
Projection provided to a Rating Agency.
(h)
Money Market Funds
. Money market mutual funds registered under the Investment
Company Act of 1940 rated AAAm-G or AAAm by S&P or Aaa by Moodys,
Master Credit Facility Agreement
Camden 2008
U-19
provided that the portfolio of such money market mutual fund is limited to obligations
described in paragraph (a) and to agreements to repurchase such obligations or paragraphs (b) or
(c) and approved in writing by Fannie Mae. Mutual funds of any bond trustee or any of its
affiliates are acceptable.
(i)
Any other Investment Approved by Fannie Mae
. Any other investment approved by
Fannie Mae.
Exclusions From Permitted Investments
.
Permitted Investments may not include any of the following:
(1) Any investment with a final maturity or any agreement with a term greater than 30 days
from the date of the investment. This exclusion does not apply to (a) obligations that provide for
the optional or mandatory tender, at par, by the holder at least once within 30 days of the date of
purchase, (b) Government Obligations irrevocably deposited with a bond trustee for the defeasance
of Bonds pursuant to a bond trust indenture, and (c) agreements or other permitted investments
listed in paragraphs (g) and (i)).
(2) Any obligation (other than obligations described in paragraphs (a) and (b)) with a
purchase price greater or less than the par value of such obligation.
(3) Mortgage-backed securities, real estate mortgage investment conduits or collateralized
mortgage obligations.
(4) Interest-only or principal-only stripped securities.
(5) Obligations bearing interest at inverse floating rates.
(6) Any investment which may be prepaid or called at a price less than its purchase price
prior to stated maturity.
(7) Any investment described in paragraph (d) or (g) with a foreign based Qualified Financial
Institution (see clause (d) in the definition of Qualified Financial Institution below) if the
Qualified Financial Institution does not agree to submit to jurisdiction, venue and service of
process in the United States of America in the Investment Agreement.
(8) Any investment the interest rate on which is variable, and is established other than by
reference to a single interest rate index plus a single fixed spread, if any, and which interest
rate moves proportionately with that index.
(9) Any investment to which S&P has added an r highlighter (denotes a derivative, hybrid and
certain other obligations S&P believes may experience high volatility or high variability in
expected returns as a result of noncredit risks).
Master Credit Facility Agreement
Camden 2008
U-20
C.
Definition of a Qualified Financial Institution
.
Qualified Financial Institution
means any of the following having a senior unsecured debt
rating in the Highest Rating Category
and approved by Fannie Mae
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(a) bank or trust company organized under the laws of any state of the United States of
America,
(b) national banking association,
(c) savings bank, a savings and loan association, or an insurance company or association
chartered or organized under the laws of any state of the United States of America,
(d) federal branch or agency pursuant to the International Banking Act of 1978 or any
successor provisions of law or a domestic branch or agency of a foreign bank which branch or agency
is duly licensed or authorized to do business under the laws of any state or territory of the
United States of America,
(e) government bond dealer reporting to, trading with, and recognized as a primary dealer by
the Federal Reserve Bank of New York, and
(f) securities dealer approved in writing by Fannie Mae the liquidation of which is subject to
the Securities Investors Protection Corporation or other similar corporation.
D.
Definition of Highest Rating Category
.
Highest Rating Category
means an S&P rating category of A-1+ for instruments having a term
of one year or less and AAA for instruments having a term of greater than one year, and a Moodys
rating category of P-1 for instruments having a term of one year or less and Aaa for
instruments having a term greater than one year.
Master Credit Facility Agreement
Camden 2008
U-21
EXHIBIT B
Principal Place of Business and Chief Executive Office
Master Credit Facility Agreement
Camden 2008
U-22
EXHIBIT V TO MASTER CREDIT FACILITY AGREEMENT
LETTER OF CREDIT
[Letter of Credit Issuers Letter of Credit Form]
[Banks letterhead]
IRREVOCABLE LETTER OF CREDIT NO.
, 20
Fannie Mae
Multifamily Operations Asset Management
Drawer # AM
3900 Wisconsin Avenue, N.W.
Washington, DC 20016
Re: DRA/Wrangler Facility
Dear Sir or Madam:
For the account of
[
Insert name of account party/customer
]
, we hereby open in
your favor our Irrevocable Letter of Credit No.
(Credit) for an amount not exceeding a
total of U.S. $
, effective immediately and expiring on
, 20
.
1
Funds under this Credit are available to you against a sight draft(s) on us completed by you or
[LENDER]
on your behalf
2
, completed in substantially the form attached as Exhibit I, for
all or any part of this Credit.
We will promptly honor all drafts drawn in compliance with the terms of this Credit if received on
or before the expiration date at
[
Insert Banks address
].
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1
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Must have a term of at least one year.
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2
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Only Fannie Mae may be shown as beneficiary; either
Fannie Mae or
[LENDER]
can draw funds under the Letter of Credit, payable only
to Fannie Mae.
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Master Credit Facility Agreement
Camden 2008
V-1
Drafts presented at our office at the address set forth above in person or by mail or by telecopy
at the following number
no later than 10:00 a.m. shall be honored on the date of
presentation, by payment in accordance with your payment instructions that accompany each such
draft. If requested by you, payment under this Credit may be made by wire transfer of immediately
available funds to your account as specified in the draft (whether executed by you or
[LENDER]
), or
by deposit of same day funds in your designated account that you maintain with us.
This Credit shall be governed by and subject to the Uniform Customs and Practice for Documentary
Credits (1993 revision), International Chamber of Commerce Publication No. 500 (UCP), and to the
extent not inconsistent with the UCP, laws of the State of
_____.
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Sincerely,
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[
Insert Banks name
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By:
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Name:
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Master Credit Facility Agreement
Camden 2008
V-2
Exhibit I
to
Letter of Credit
SIGHT DRAFT
[
Insert Letter of Credit Issuers name and address
]
, 20
Pay on demand to Fannie Mae the sum of U.S. $
. This draft is drawn under your
Irrevocable Letter of Credit No.
.
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FANNIE MAE
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Name:
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Title:
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OR
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RED MORTGAGE CAPITAL, INC.
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Master Credit Facility Agreement
Camden 2008
V-3
EXHIBIT W-1 TO MASTER CREDIT FACILITY AGREEMENT
BANK LEGAL OPINION (FOREIGN)
[DATE]
Fannie Mae
3900 Wisconsin Avenue, N.W.
Washington, DC 20016-2899
Ladies and Gentlemen:
This opinion is being furnished to you at the request of [
] with respect to the
issuance by
(the Bank) of its letter of credit No.
(the Letter of
Credit) in your favor.
We have acted as NATIONALITY counsel to the Bank acting by and through its NEW YORK BRANCH in
connection with the preparation, execution and delivery by the Bank of the Letter of Credit. We
have examined the Letter of Credit and such other instruments, corporate records, certificates,
documents and other matters as we have deemed necessary or advisable in order to give the following
opinions. In giving this opinion, we have assumed the genuineness of signatures and the
authenticity of certificates and documents, other than those of the Bank, submitted to us as
originals and the conformity to original documents of documents submitted to us as copies.
As to various questions of fact material to our opinion, we have relied upon information
provided to us by officers of the Bank and documents issued by governmental bodies and officials.
We have also assumed the Letter of Credit is a legal, valid, binding and enforceable obligation of
the Bank under the laws of the STATE OF NEW YORK and the United States of America.
No opinion is expressed herein as to the laws of any jurisdiction other than the laws of
COUNTRY.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Bank is duly established, validly existing and in good standing in COUNTRY and has the
corporate power and authority to execute, deliver and perform its obligations under the Letter of
Credit.
2. The Banks execution and delivery of, and performance of its obligations under, the Letter
of Credit have been duly authorized by all necessary corporate action of the Bank.
Master Credit Facility Agreement
Camden 2008
W-1-1
3. The Banks execution and performance of the Letter of Credit will not violate any
NATIONALITY law, rule or regulation pertaining to the Bank, including its NEW YORK BRANCH, any
NATIONALITY court order or government order, or any charter or bylaw provision or agreement of the
Bank. No consent, approval, authorization, license, ruling or order of, or action by, any
NATIONALITY court or governmental agency or body not previously obtained, and no filing,
recordation or publication of any document not previously filed, recorded or published, is required
under the laws of COUNTRY currently in effect in connection with the execution and delivery by the
Bank of the Letter of Credit, or for the remittance from COUNTRY to the United States of United
States dollars in an amount sufficient to satisfy the obligations of the Bank under the Letter of
Credit.
4. The Letter of Credit, assuming it has been duly executed and delivered by a duly authorized
representative of the NEW YORK BRANCH of the Bank, enforceable in accordance with its terms under
the laws of the STATE OF NEW YORK to which it is expressly subject, will constitute the legal,
valid and binding obligations of the Bank ranking pari passu with the Banks other unsecured,
unsubordinated indebtedness (including deposit liabilities but except those preferred by law),
enforceable in accordance with its terms; provided, however, that enforcement of the Letter of
Credit against the Bank may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium or other similar proceedings or laws affecting the enforcement of creditors rights in
general as such laws would apply in the event of the bankruptcy, insolvency, reorganization or
liquidation of the Bank.
5. In the event that the Bank fails to honor its obligations under the Letter of Credit (other
than as a result of compliance with the applicable laws, regulations, directives or orders of
appropriate governmental authority of the United States) upon proper demand to the NEW YORK BRANCH
in compliance with the requirements of the Letter of Credit, the Bank would have a direct and
general obligation to make payment in accordance with the Letter of Credit.
6. The beneficiary of the Letter of Credit would be able to institute any actions or
proceedings directly against the Bank in CITY, COUNTRY under the Letter of Credit without first
having to obtain a judgment in respect of the Letter of Credit in a court in the United States, and
access by the beneficiary of the Letter of Credit to the courts of COUNTRY is not restricted. The
beneficiary of the Letter of Credit is not required to qualify under any statute or law or pay any
franchise tax, stamp tax or similar fee to gain such access, whether in respect of a direct suit on
the Letter of Credit, or a proceeding to enforce a judgment obtained by the Trustee before a court
in the United States, nor will the beneficiary of the Letter of Credit be resident, domiciled,
carrying on business or otherwise subject to taxation in COUNTRY solely by reason of the execution,
delivery, or performance by the Bank or the enforcement by the beneficiary of the Letter of Credit.
Any final and conclusive judgment for a definite sum obtained for the recovery of amounts due and
unpaid under the Letter of Credit in a NEW YORK STATE or United States Federal court sitting in NEW
YORK will be held enforceable against the Bank in the appropriate courts of COUNTRY without
re-examination or re-litigation of the
Master Credit Facility Agreement
Camden 2008
W-1-2
matters adjudicated. STATE CUSTOMARY EXCEPTION(S) TO THE ABOVE PROVISIONS, IF ANY.
7. The choice of law provisions of the Letter of Credit are valid under the laws of COUNTRY
and a court in COUNTRY would uphold such choice of law in a suit brought in a court of competent
jurisdiction in COUNTRY.
8. The Bank is subject to commercial law in COUNTRY and is generally subject to suit and
neither it nor any of its property or revenues enjoys any right of immunity from any judicial
proceeding in COUNTRY.
9. There is no income, fee, stamp, tax or other duty or similar impost of the government of
COUNTRY or any political subdivision or instrumentality or agency thereof or account of which any
amount is required to be imposed by withholding or otherwise, which is imposed on or applicable to
any payment to be made by the Bank to the Fannie Mae under the Letter of Credit.
Master Credit Facility Agreement
Camden 2008
Very truly yours,
W-1-3
EXHIBIT W-2 TO MASTER CREDIT FACILITY AGREEMENT
BANK LEGAL OPINION (DOMESTIC)
[DATE]
Fannie Mae
3900 Wisconsin Avenue, N.W.
Washington, DC 20016-2899
Ladies and Gentlemen:
We have acted as counsel to
(the Bank) in connection with the preparation,
execution, and delivery of the Letter of Credit. We have examined a certificate of the
[Comptroller of the Currency or other charterer]
of recent date as to the valid certification of
the Bank to do business as a
[national/state] banking association, such records and
other proceedings of the Bank and such laws, rules, and regulations as we have deemed necessary for
purposes of issuing this opinion. We have also examined a certificate of a
of the
Bank (the Certificate) as to the authority of certain officers of the Bank to execute agreements
on behalf of the Bank and as to the incumbency of the officer(s) of the Bank who have executed the
Letter of Credit on behalf of the Bank. We have assumed the authenticity of certificates and
documents submitted to us as originals (other than the Letter of Credit and the Certificate) and
the conformity to original documents of documents submitted to us as copies.
Based upon and subject to the foregoing, we are of the opinion that the Letter of Credit has been
duly executed and delivered by the Bank and constitutes the legal, valid, and binding obligation of
the Bank, enforceable in accordance with its terms, except that the enforcement of the rights and
remedies with respect thereto is subject to applicable bankruptcy, insolvency, reorganization,
liquidation, moratorium, or similar laws affecting the enforcement of creditors rights generally
as they may be applied in the bankruptcy, insolvency, reorganization or liquidation of the Bank,
and that the availability of the remedies of specific performance, of injunction relief or other
equitable remedies is subject to the discretion of the court before which any proceedings therefor
may be brought.
We authorize Red Mortgage Capital, Inc. (the Lender) to rely on this opinion to the extent and as
if it was addressed to the Lender.
Very truly yours,
Master Credit Facility Agreement
Camden 2008
W-2-1
EXHIBIT X TO MASTER CREDIT FACILITY AGREEMENT
FORM OF RENT ROLL
(See Attached)
Master Credit Facility Agreement
Camden 2008
X-1
CAMDEN CAMDEN
RENT ROLL DETAIL
As of
Details
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Unit
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Other
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Designation
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Unit/Lease
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Move-In
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Lease
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Lease
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Market
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Trans
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Lease
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Charges
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Total
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Dep
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Unit
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Floorplan
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(3.0 only)
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SQFT
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Status
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Name
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Move Out
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Start
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End
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+ Addl.
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Code
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Rent
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Credits
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Billing
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On Hand
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Balance
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Totals:
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Amt/SQFT: Market =
SQFT; Leased =
SQFT;
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Average
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Average
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Market
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Average
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Leased
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Units
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Units
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Floorplan
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# Units
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SQFT
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Market + Addl.
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Amt/SQFT
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Leased
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Amt/SQFT
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Occupied
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Occupancy %
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Available
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Totals:
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Occupancy and Rents Summary for Current Data
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Unit Status
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Market + Addl.
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# Units
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Potential Rent
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Occupied, no NTV
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Occupied, NTV
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Occupied NTV Leased
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Vacant Leased
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Admin/Down
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Vacant Not Leased
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Totals:
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Summary Billing by Transaction Code for Current Date
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Code
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Amount
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MODEL
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RENT
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Total:
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APPENDIX I
DEFINITIONS
For all purposes of the Agreement, the following terms shall have the respective meanings set forth
below:
Acquiring Person
means a person or group of persons within the meaning of
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended.
Addition Fee
means, with respect to an Additional Mortgaged Property added to the
Collateral Pool in accordance with
Section 3.02
, a fee in the amount which
[
*
].
Addition Loan Documents
means the Security Instrument covering an Additional
Mortgaged Property and any other documents, instruments or certificates reasonably required by
Lender in form and substance satisfactory to Lender and Borrower in connection with the addition of
the Additional Mortgaged Property to the Collateral Pool pursuant to
Article 3
.
Addition Request
means a written request, substantially in the form of
Exhibit
M
to the Agreement, to add Additional Mortgaged Properties to the Collateral Pool as set forth
in
Section 3.02(a)
.
Additional Borrower
means the owner of an Additional Mortgaged Property or a
Substitute Mortgaged Property, which entity has been approved by Lender and becomes a Borrower
under the Agreement and the applicable Loan Documents and their permitted successors and assigns.
Additional Collateral
shall have the meaning given that term in Section 6.13.
Additional Collateral Due Diligence Fees
means the due diligence fees paid by
Borrower to Lender with respect to each Additional Mortgaged Property, as set forth in
Section
10.04(b)
.
Additional Mortgaged Property
means each Multifamily Residential Property owned by
Borrower (either in fee simple or as tenant under a ground lease meeting all of Lenders
requirements for similar loans anticipated to be sold to Fannie Mae) and added to the Collateral
Pool after the Initial Closing Date pursuant to
Article 3
.
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*
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Indicates material that has been omitted and for which
confidential treatment has been requested. All such omitted material has been
filed with the Securities and Exchange Commission pursuant to Rule 406
promulgated under the Securities Act of 1933, as amended.
|
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-1
Advance
means a Variable Advance (including a Rollover Variable Advance) and/or a
Fixed Advance.
Advance Request
means a written request, substantially in the form of
Exhibit L
to the Agreement, for an Advance made pursuant to
Section 2.04
.
Affiliate
means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, control (including with correlative meanings, the terms controlling, controlled
by and under common control with), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management (other than property
management) and policies of that Person, whether through the ownership of voting securities,
partnership interests or by contract or otherwise.
Aggregate Debt Service Coverage Ratio
means, for any specified date, the ratio
(expressed as a percentage) of
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(a)
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the aggregate of the Net Operating Income for the Mortgaged Properties
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to
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(b)
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the Facility Debt Service on the specified date.
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Aggregate Loan to Value Ratio
means, for any specified date, the ratio (expressed as
a percentage) of
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(a)
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the Advances Outstanding on the specified date,
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to
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(b)
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the aggregate of the Valuations most recently obtained prior to the specified
date for all of the Mortgaged Properties.
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Agreement
means this Master Credit Facility Agreement, as it may be amended,
restated, supplemented or otherwise modified from time to time, including all Recitals and Exhibits
to the Agreement, each of which is hereby incorporated into the Agreement by this reference.
Allocable Facility Amount
means the portion of the Credit Facility allocated to a
particular Mortgaged Property by Lender in accordance with the Agreement.
Amortization Period
means a period of thirty (30) years.
Applicable Law
means (a) all applicable provisions of all constitutions, statutes,
rules, regulations and orders of all governmental bodies, all Governmental Approvals and all
orders,
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-2
judgments and decrees of all courts and arbitrators, (b) all zoning, building, environmental
and other laws, ordinances, rules, regulations and restrictions of any Governmental Authority
affecting the ownership, management, use, operation, maintenance or repair of any Mortgaged
Property, including the Americans with Disabilities Act (if applicable), the Fair Housing Amendment
Act of 1988 and Hazardous Materials Laws (as defined in the Security Instrument), (c) any building
permits or any conditions, easements, rights-of-way, covenants, restrictions of record or any
recorded or unrecorded agreement affecting or concerning any Mortgaged Property including planned
development permits, condominium declarations, and reciprocal easement and regulatory agreements
with any Governmental Authority, (d) all laws, ordinances, rules and regulations, whether in the
form of rent control, rent stabilization or otherwise, that limit or impose conditions on the
amount of rent that may be collected from the units of any Mortgaged Property, and (e) requirements
of insurance companies or similar organizations, affecting the operation or use of any Mortgaged
Property or the consummation of the transactions to be effected by the Agreement or any of the
other Loan Documents.
Appraisal
means an appraisal of Multifamily Residential Property conforming to the
requirements of Lender for similar loans anticipated to be sold to Fannie Mae and accepted by
Lender.
Appraised Value
means the value set forth in an Appraisal.
Assignment and Subordination of Management Agreement
means the Master Assignment and
Subordination of Management Agreement required by Lender and satisfying Lenders requirements, as
the same may be amended, restated, modified or supplemented from time to time.
Assignment of Leases and Rents
means an Assignment of Leases and Rents, required by
Lender and satisfying Lenders requirements, as the same may be amended, restated, modified or
supplemented from time to time.
Bankruptcy Code
means Title 11 of the United States Code entitled Bankruptcy as
now and hereafter in effect, or any successor statute.
Bankruptcy Event
shall have the meaning set forth in
Section 14.01(b)
.
Borrower
means individually and collectively, the Initial Borrower and any
Additional Borrower becoming a party to the Agreement and other Loan Documents.
Borrower Agent
means Camden.
Borrower Parties
means collectively, Borrower and Guarantor.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-3
Borrow Up Fee
means, with respect to a Future Advance, made pursuant to
Section
2.06
, a fee in the amount which is [
*
].
Business Day
means a day on which Fannie Mae and Servicer is open for business.
Calendar Quarter
means, with respect to any year, any of the following three month
periods: (a) January-February-March; (b) April-May-June; (c) July-August-September; and (d)
October-November-December.
Calendar Year
means the 12-month period from the first day of January to and
including the last day of December, and each 12-month period thereafter.
Camden
means Camden Property Trust, a Texas Real Estate Investment Trust organized
under the laws of the State of Texas, and its permitted successors and assigns.
Camden General Partner
means Camden Summit, Inc., the general partner of Camden
Summit.
Camden Member
means CSP Community Owner Member, LLC, a Delaware limited liability
company.
Camden Summit
means Camden Summit Partnership, L.P., a Delaware limited partnership.
Cap Rate
means, for each Mortgaged Property, a capitalization rate selected by
Lender for use in determining the Valuations, which rate is determined as set forth in Section
2.05(b)
.
Cash Collateral Account
means the cash collateral account established pursuant to
the Cash Collateral Agreement.
Cash Collateral Agreement
means a cash collateral, security and custody agreement by
and among Fannie Mae, Borrower and a collateral agent for Fannie Mae in the form attached as
Exhibit U
to the Agreement, as the same may be amended, modified or supplemented from time
to time.
Cash Equivalents
means
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*
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Indicates material that has been omitted and for which
confidential treatment has been requested. All such omitted material has been
filed with the Securities and Exchange Commission pursuant to Rule 406
promulgated under the Securities Act of 1933, as amended.
|
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-4
(a) securities issued or fully guaranteed or insured by the United States Government or any
agency thereof and backed by the full faith and credit of the United States having maturities of
not more than twelve (12) months from the date of acquisition; and
(b) certificates of deposit, time deposits, demand deposits, eurodollar time deposits,
repurchase agreements, reverse repurchase agreements, or bankers acceptances, having in each case
a term of not more than twelve (12) months, issued by any commercial bank having membership in the
FDIC, or by any U.S. commercial lender (or any branch or agency of a non-U.S. bank licensed to
conduct business in the U.S.) having combined capital and surplus of not less than $100,000,000
whose short-term securities are rated at least A-1 by S&P or P-1 by Moodys; and
(c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moodys and in either
case having a term of not more than twelve (12) months; and
(d) the amount of available balances under any line of credit.
Cash Interest Rate
means a rate of interest, per annum, established by Fannie Mae
for cash loans of similar characteristics then offered by Fannie Mae.
Certificate of Borrower Parties
means that certain Master Certificate of Borrower
Parties executed by the Borrower Parties as of the date hereof, and which must be executed and
delivered by the Borrower Parties to Lender from time to time in accordance with the terms of this
Agreement, the form of which certificate shall be the same or substantially similar to which the
Borrower Parties execute as of the date hereof.
Change of Control
means the earliest to occur of: (a) the date an Acquiring Person
becomes (by acquisition, consolidation, merger or otherwise), directly or indirectly, the
beneficial owner of more than 50% of the total Voting Equity Capital of Camden then outstanding or
(b) the replacement (other than solely by reason of retirement at age sixty-two or older, death or
disability) of more than 50% (or such lesser percentage as is required for decision-making by the
board of directors or trustees, if applicable) of the members of the board of directors (or
trustees, if applicable) of Camden over a one-year period where such replacement shall not have
been approved by a vote of at least a majority of the board of directors (or trustees, if
applicable) of Camden then still in office who either were members of such board of directors (or
trustees, if applicable) at the beginning of such one-year period or whose election as members of
the board of directors (or trustees, if applicable) was previously so approved or (c) Camden ceases
to Control Camden General Partner or (d) Camden General Partner ceases to Control Camden Summit or
(e) Camden Summit ceases to Control CSP Community Owner Member LLC or (f) CSP Community Owner
Member LLC ceases to Control Borrower (other than Texas Borrower) or (g) Camden ceases to Control
Texas Member or (h) Texas Member ceases to Control Texas Borrower.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-5
Closing Date
means the Initial Closing Date and each date after the Initial Closing
Date on which the funding or other transaction requested in a Request is required to take place.
Collateral
means the Mortgaged Properties and other collateral from time to time or
at any time encumbered by the Security Instruments, or any other property securing Borrowers
obligations under the Loan Documents.
Collateral Pool
means all of the Collateral.
Commitment
means, at any time, the sum of the Fixed Facility Commitment and the
Variable Facility Commitment.
Complete Fixed Facility Termination
shall have the meaning set forth in
Section
5.02(a)
.
Complete Variable Facility Termination
shall have the meaning set forth in
Section 5.02(a)
.
Compliance Certificate
means a certificate of Borrower substantially in the form of
Exhibit F
to the Agreement.
Completion/Repair and Security Agreement
means a Master Completion/Repair and
Security Agreement required by Lender and satisfying Lenders requirements, as the same may be
amended, restated, modified or supplemented from time to time.
Confirmation of Guaranty
means a confirmation of the Guaranty executed by Guarantor
in connection with any Request after the Initial Closing, substantially in the form of
Exhibit
E
to the Agreement.
Confirmation of Obligations
means a Confirmation of Obligations delivered in
connection with the addition of an Additional Mortgaged Property or a Substitute Mortgaged Property
to the Collateral Pool or a release of a Release Mortgaged Property from the Collateral Pool, dated
as of the Closing Date for each such addition, signed by Borrower and Guarantor, pursuant to which
Borrower and Guarantor confirm their obligations under the Loan Documents, substantially in the
form of
Exhibit N
to the Agreement.
Contribution Agreement
means the Contribution Agreement by and among Initial
Borrower and each Additional Borrower, as the same may be amended, restated, modified or
supplemented from time to time.
Controlled
(or any variation of such term) of one entity (the controlled entity)
by another (the controlling entity) means that the controlling entity has the power and
authority, directly or indirectly, to direct or cause the direction of the management and policies
of the controlled entity, by contract or otherwise.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-6
Controlled Group
means all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code.
Conversion Amendment
means the Master Credit Facility Agreement Conversion
Amendment, substantially in the form of
Exhibit I
to the Agreement, reflecting the
conversion of all or any portion of the Variable Facility Commitment to the Fixed Facility
Commitment as set forth in
Section 1.08
.
Conversion Documents
means the Conversion Amendment, together with an amendment to
each Security Document if required by Lender and other applicable Loan Documents, in form and
substance satisfactory to Lender, reflecting the change in the Fixed Facility Commitment and the
Variable Facility Commitment pursuant to
Section 1.08
.
Conversion Request
means a written request, substantially in the form of
Exhibit
H
to the Agreement, to convert all or any portion of the Variable Facility Commitment to the
Fixed Facility Commitment pursuant to
Section 1.08
.
Coupon Rate
means, with respect to a Variable Advance, the imputed interest rate
determined by Lender pursuant to
Section 1.05(a)
and, with respect to a Fixed Advance, the
interest rate determined by Lender pursuant to
Section 1.05(b)
.
Coverage and LTV Tests
mean, for any specified date, each of the following financial
tests:
(a) The Aggregate Debt Service Coverage Ratio is not less than 1.55:1.0 with respect to the
portion of the Advances drawn from the Fixed Facility Commitment, and 1.30:1.0 with respect to the
portion of the outstanding Advances drawn from the Variable Facility Commitment.
(b) The Aggregate Loan to Value Ratio does not exceed fifty-five percent (55%).
Credit Facility
means the Fixed Facility and the Variable Facility.
Credit Facility Termination Documents
means the instruments releasing the Security
Instruments as liens on the Mortgaged Properties, UCC-3 Termination Statements terminating the
UCC-1 Financing Statements in favor of Lender, and such other documents and instruments necessary
to evidence the release of the Collateral from any lien securing the Obligations, and the Notes,
all in connection with the termination of the Agreement and the Credit Facility pursuant to
Article 5
.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-7
Credit Facility Termination Request
means a written request, substantially in the
form of
Exhibit R
to the Agreement, to terminate the Agreement and the Credit Facility
pursuant to
Section 5.04(a)
.
Debt Service Amounts
shall have the meaning set forth in
Section 14.01(a)
.
Debt Service Coverage Ratio
means, for any Mortgaged Property, for any specified
date, the ratio (expressed as a percentage) of
(a) the Net Operating Income for the preceding twelve (12) month period for the subject
Mortgaged Property
to
(b) the Facility Debt Service on the specified date, assuming, for the purpose of
calculating the Facility Debt Service for this definition, that Advances Outstanding shall
be the Allocable Facility Amount for the subject Mortgaged Property.
Discount
means, with respect to any Variable Advance, an amount equal to the excess
of
(i) the face amount of the DMBS backed by the Variable Advance, over
(ii) the Price of the DMBS backed by the Variable Advance.
DMBS
means a mortgage-backed security issued by Fannie Mae which is backed by an
Advance and has an interest in the Notes and the Collateral Pool securing the Notes, which interest
permits the holder of the DMBS to participate in the Notes and the Collateral Pool to the extent of
such Advance.
DMBS Commitment
shall have the meaning set forth in
Section 2.01(c)
.
DMBS Imputed Interest Rate
shall have the meaning set forth in
Section
1.05(a)
.
DMBS Issue Date
means the date on which an DMBS is issued by Fannie Mae.
DMBS Delivery Date
means the date on which an DMBS is delivered by Fannie Mae.
DUS Guide
means the Fannie Mae Delegated Underwriting and Servicing Guide in its
present form and as amended, modified, supplemented or reissued from time to time (all references
to Parts, Chapters, Sections and other subdivisions of the DUS Guide shall be deemed references to
(i) the Parts, Chapters, Sections and other subdivisions in effect on the date of the Agreement and
(ii) any successor provisions to such Parts, Chapters, Sections and other subdivisions.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-8
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated thereunder.
Event of Default
means any event defined to be an Event of Default under
Article 11
.
Expansion
means an increase in the Commitment made in accordance with
Article
4
.
Expansion Loan Documents
means an additional Variable Facility Note or Fixed
Facility Note, as the case may be, increasing the amount of such Note to the amount of the
Commitment, as increased in accordance with
Article 4
and amendments to the Security
Instruments, increasing the maximum amount to be secured by such Security Instruments to the amount
of the Commitment.
Expansion Request
means a written request, substantially in the form of
Exhibit
O
to the Agreement, to obtain an Expansion pursuant to Article 4.
Facility Debt Service
means
|
(a)
|
|
For use in determining the Initial Commitment Amount, the sum of the amount of
interest and principal amortization that would be payable during the twelve (12) month
period immediately succeeding the Initial Closing Date, with respect to the full amount
of the initial Commitment, except that, for these purposes:
|
|
(i)
|
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the initial amount of the Variable Facility Commitment shall be
deemed to require level monthly payments of principal and interest (at an
interest rate equal to (A) the Three-Month LIBOR rate plus (B) the Variable
Facility Fee plus (C) up to 300 basis points in Lenders discretion plus (D)
any Monthly Cap Escrow Payment for the succeeding twelve (12) month period) in
an amount necessary to fully amortize the original principal amount of the
Variable Facility Commitment over the Amortization Period, with such
amortization deemed to commence on the first day of the twelve (12) month
period; and
|
|
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(ii)
|
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the initial amount of the Fixed Facility Commitment shall be
deemed to require level monthly payments of principal and interest (at the Cash
Interest Rate for the Fixed Advance) in an amount necessary to fully amortize
the original principal amount of the Fixed Facility Commitment over the
Amortization Period, with such amortization to commence on the first day of the
twelve (12) month period.
|
The interest rates described in this clause (a) are hereinafter referred to as the
Underwriting Rates.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-9
|
(b)
|
|
For use in determining the additional borrowing capacity created by the
addition of Additional Mortgaged Properties, the sum of the amount of interest and
principal amortization, during the twelve (12) month period immediately succeeding the
specified date, with respect to the Advances Outstanding on the specified date and
Advances to be obtained as a result of the Addition of Additional Mortgaged Properties,
except that, for these purposes:
|
|
(A)
|
|
each Variable Advance Outstanding shall be
deemed to require level monthly payments of principal and interest (at
a rate equal to (A) the Three-Month LIBOR rate plus (B) the Variable
Facility Fee plus (C) up to 300 basis points in Lenders discretion
plus (D) any Monthly Cap Escrow Payment for the succeeding twelve (12)
month period) in an amount necessary to fully amortize the original
principal amount of the Variable Advance over the Amortization Period,
with such amortization deemed to commence on the first day of the
twelve (12) month period; and
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(B)
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each Fixed Advance Outstanding shall require
level monthly payments of principal and interest (at the Cash Interest
Rate for the Fixed Advance) in an amount necessary to fully amortize
the original principal amount of the Fixed Advance over the
Amortization Period, with such amortization to commence on the first
day of the twelve (12) month period; and
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(C)
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each Fixed Advance to be obtained shall be
deemed to require level monthly payments of principal and interest at a
rate equal to the estimated Cash Interest Rate for such Fixed Advance
in an amount necessary to fully amortize the original principal amount
of such Fixed Advance over the Amortization Period, with such
amortization deemed to commence on the first day of the twelve (12)
month period.
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(c)
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For use in determining the Aggregate Debt Service Coverage Ratio, for purposes
of determining compliance with the Coverage and LTV Tests, and for other ongoing
monitoring purposes, and for purposes of determining Release Prices pursuant to
Section 3.04(c)
as of any specified date:
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the amount of interest and principal amortization, during the twelve (12) month
period immediately succeeding the specified date, with respect to the Advances
Outstanding on the specified date, except that, for these purposes:
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(A)
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each Variable Advance shall be deemed to
require level monthly payments of principal and interest (at the Coupon
Rate for such Variable Advance) in an amount necessary to fully
amortize the
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Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-10
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original principal amount of the Variable Advance over the
Amortization Period, with such amortization deemed to commence on the
first day of the twelve (12) month period; and
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(B)
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each Fixed Advance shall require level monthly
payments of principal and interest (at the Cash Interest Rate for such
Fixed Advance) in an amount necessary to fully amortize the original
principal amount of the Fixed Advance over the Amortization Period,
with such amortization to commence on the first day of the twelve (12)
month period.
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Facility Termination Document
means the Amendment of the Master Credit Facility
Agreement, substantially in the form of
Exhibit Q
to the Agreement, evidencing the
permanent reduction in the Facility Commitment pursuant to
Section 5.02
.
Facility Termination Request
means a written request, substantially in the form of
Exhibit P
to the Agreement, for a permanent reduction in the Variable Facility Commitment
or the Fixed Facility Commitment pursuant to
Section 5.02
.
Fannie Mae
means the body corporate duly organized under the Federal National
Mortgage Association Charter Act, as amended, 12 U.S.C. §1716
et
seq
. and duly
organized and existing under the laws of the United States.
Fees
means Addition Fee, Additional Collateral Due Diligence Fees, Borrow Up Fee,
Initial Due Diligence Fees, Initial Origination Fee, Release Fee, Substitution Fee, Variable
Facility Fee, LOC Fee and any and all other fees specified in the Agreement.
First Anniversary
means the date that is one year after the Initial Closing Date.
Fixed Advance
means a loan made by Lender to Borrower under the Fixed Facility
Commitment.
Fixed Facility
means the agreement of Lender to make Fixed Advances to Borrower
pursuant to
Section 1.01
.
Fixed Facility Availability Period
means the period beginning on the Initial Closing
Date and ending on the date five (5) years after the Initial Closing Date.
Fixed Facility Commitment
means $205,000,000 plus such amount as Borrower may elect
to add to or convert to the Fixed Facility Commitment in accordance with
Section 1.08
and
Article 4
and less such amount by which Borrower may elect to reduce the Fixed Facility
Commitment in accordance with
Article 5
.
Fixed Facility Note
means a promissory note (together will all schedules, riders,
allonges, addenda, renewals, extensions, amendments and modifications thereto) which will be
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-11
issued by Borrower to Lender, concurrently with the funding of each Fixed Advance, to evidence
Borrowers obligation to repay the Fixed Advance, and which promissory note will be the same or
substantially similar in form to the promissory note issued by Borrower to Lender in connection
with the Fixed Advance made on the Initial Closing Date.
Future Advance
means an Advance made after the Initial Closing Date.
GAAP
means generally accepted accounting principles in the United States in effect
from time to time, consistently applied or any other principles required under Applicable Law.
General Conditions
shall have the meaning set forth in
Article 6
.
Governmental Approval
means an authorization, permit, consent, approval, license,
registration or exemption from registration or filing with, or report to, any Governmental
Authority.
Governmental Authority
means any court, board, agency, commission, office or
authority of any nature whatsoever for any governmental unit (federal, state, county, district,
municipal, city or otherwise) whether now or hereafter in existence.
Gross Revenues
means, for any specified period, with respect to any Multifamily
Residential Property, all income in respect of such Multifamily Residential Property as reflected
on the certified operating statement for such specified period as adjusted to exclude unusual
income (e.g. temporary or nonrecurring income), income not allowed by Lender for similar loans
anticipated to be sold to Fannie Mae (e.g. interest income, furniture income, etc.), and the value
of any unreflected concessions.
Guarantor
means Camden and Camden Summit (except that Camden Summit shall not be a
guarantor for any guaranteed obligations arising in connection with the Mortgaged Property known as
Camden Greenway or Camden Oak Crest) or a substitute Guarantor consented to by Lender.
Guaranty
means each Guaranty executed by Guarantor as of the date hereof, as the
same may be amended, restated, modified or supplemented from time to time.
Hazardous Substance Activity
means, with respect to any Mortgaged Property, any
storage, holding, existence, release, spill, leaking, pumping, pouring, injection, escaping,
deposit, disposal, dispersal, leaching, migration, use, treatment, emission, discharge, generation,
processing, abatement, removal, disposition, handling or transportation of any Hazardous Materials
(as defined in the Security Instrument) from, under, into or on such Mortgaged Property in
violation of Hazardous Materials Laws (as defined in the Security Instrument), including the
discharge of any Hazardous Materials emanating from such Mortgaged Property in violation of
Hazardous Materials Laws through the air, soil, surface water, groundwater or property and also
including the abandonment or disposal of any barrels, containers and other
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-12
receptacles containing any Hazardous Materials from or on such Mortgaged Property in violation
of Hazardous Materials Laws, in each case whether sudden or nonsudden, accidental or nonaccidental.
Hedging Arrangement
means any interest rate swap, interest rate cap or other
arrangement, contractual or otherwise, which has the effect of an interest rate swap or interest
rate cap or which otherwise (directly or indirectly, derivatively or synthetically) hedges interest
rate risk associated with being a debtor of variable rate debt or any agreement or other
arrangement to enter into any of the above on a future date or after the occurrence of one or more
events in the future.
Impositions
means, with respect to any Mortgaged Property, all (1) water and sewer
charges which, if not paid, may result in a lien on all or any part of the Mortgaged Property, (2)
premiums for fire and other hazard insurance, rent loss insurance and such other insurance as
Lender may require under any Security Instrument, (3) Taxes, and (4) amounts for other charges and
expenses which Lender at any time reasonably deems necessary to protect the Mortgaged Property, to
prevent the imposition of liens on the Mortgaged Property, or otherwise to protect Lenders
interests.
Indebtedness
means, with respect to any Person, as of any specified date, without
duplication, all:
(a) indebtedness of such Person for borrowed money or for the deferred purchase price of
property or services (other than (i) current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices, and (ii) for construction of
improvements to property, if such person has a non-contingent contract to purchase such property);
(b) other indebtedness of such Person that is evidenced by a note, bond, debenture or similar
instrument;
(c) obligations of such Person under any lease of property, real or personal, the obligations
of the lessee in respect of which are required by GAAP to be capitalized on a balance sheet of the
lessee or to be otherwise disclosed as such in a note to such balance sheet;
(d) obligations of such Person in respect of acceptances (as defined in Article 3 of the
Uniform Commercial Code of the District of Columbia) issued or created for the account of such
Person;
(e) liabilities secured by any Lien on any property owned by such Person even though such
Person has not assumed or otherwise become liable for the payment of such liabilities; and
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-13
(f) as to any Person (
guaranteeing person
), any obligation of (a) the guaranteeing
person or (b) another Person (including any bank under any letter of credit) to induce the creation
of a primary obligation (as defined below) with respect to which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case guaranteeing, or in effect
guaranteeing, any indebtedness, lease, dividend or other obligation (
primary obligations
)
of any third person (
primary obligor
) in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or not contingent, to (1) purchase any
such primary obligation or any property constituting direct or indirect security therefor, (2)
advance or supply funds for the purchase or payment of any such primary obligation or to maintain
working capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (3) purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (4) otherwise assure or hold harmless the owner of
any such primary obligation against loss in respect of the primary obligation, provided, however,
that the term
Contingent Obligation
shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any Contingent Obligation
of any guaranteeing person shall be deemed to be the lesser of (i) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Contingent Obligation is
made and (ii) the maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Contingent Obligation, unless such primary obligation and
the maximum amount for which such guaranteeing person may be liable are not stated or determinable,
in which case the amount of such Contingent Obligation shall be such guaranteeing persons maximum
reasonably anticipated liability in respect thereof as determined by such person in good faith.
Initial Advance
means the Fixed Advance and/or Variable Advance made on the Initial
Closing Date in the aggregate amount of $380,000,000.
Initial Borrower
means each Borrower under this Agreement as of the Initial Closing
Date and its permitted successors and assigns.
Initial Closing Date
means the date of the Agreement.
Initial Commitment Amount
means $380,000,000.
Initial Due Diligence Fees
shall have the meaning set forth in
Section
10.04(a)
.
Initial Mortgaged Properties
means the Multifamily Residential Properties described
on
Exhibit A
to the Agreement and which represent the Multifamily Residential Properties
which are made part of the Collateral Pool on the Initial Closing Date.
Initial Origination Fee
shall have the meaning set forth in
Section
10.03(a)
.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-14
Initial Security Instruments
means the Security Instruments covering the Initial
Mortgaged Properties.
Initial Valuation
means, when used with reference to specified Collateral, the
Valuation initially performed for the Collateral as of the date on which the Collateral was added
to the Collateral Pool. The Initial Valuation for each of the Initial Mortgaged Properties is as
set forth in
Exhibit A
to the Agreement.
Interest Rate Cap
shall have the meaning set forth in
Section 1.12
.
Interest Rate Cap Documents
means the Pledge, Interest Rate Cap Agreement and any
and all other documents required pursuant thereto or hereto or as Lender shall require from time to
time in connection with Borrowers obligation to maintain an Interest Rate Cap for the term of the
Variable Facility Commitment.
Insurance Policy
means, with respect to a Mortgaged Property, the insurance coverage
and insurance certificates evidencing such insurance required to be maintained pursuant to the
Security Instrument encumbering the Mortgaged Property.
Internal Revenue Code
means the Internal Revenue Code of 1986, as amended. Each
reference to the Internal Revenue Code shall be deemed to include (a) any successor internal
revenue law and (b) the applicable regulations whether final, temporary or proposed.
Lease
means any lease, any sublease or subsublease, license, concession or other
agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any
Person is granted a possessory interest in, or right to use or occupy all or any portion of any
space in any Mortgaged Property, and every modification, amendment or other agreement relating to
such lease, sublease, subsublease or other agreement entered into in connection with such lease,
sublease, subsublease or other agreement, and every guarantee of the performance and observance of
the covenants, conditions and agreements to be performed and observed by the other party thereto.
Lender
means Red Mortgage Capital, Inc., an Ohio corporation and any replacement
Lender designated by Fannie Mae, and its successors and assigns.
Letter of Credit
means a letter of credit issued by an LOC Bank satisfactory to
Fannie Mae naming Fannie Mae as beneficiary, in form and substance as attached hereto as
Exhibit V-1
or
Exhibit V-2
, as applicable.
Lien
means any mortgage, deed of trust, deed to secure debt, security interest or
other lien or encumbrance (including both consensual and non-consensual liens and encumbrances).
Liquidity
means, at any time, the amount of cash and Cash Equivalents owned by a
Person.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-15
Loan Document Taxes
shall have the meaning set forth in
Section 8.10
.
Loan Documents
means the Agreement, the Notes, the Security Documents, the Guaranty,
all documents executed by Borrower or Guarantor pursuant to the General Conditions set forth in
Section 6.01
of the Agreement and any other documents executed by Borrower or Guarantor
from time to time in connection with the Agreement or the transactions contemplated by the
Agreement.
Loan to Value Ratio
means, for a Mortgaged Property, for any specified date, the
ratio (expressed as a percentage) of
(a) the Allocable Facility Amount of the subject Mortgaged Property on the specified date,
to
(b) the Valuation most recently obtained prior to the specified date for the subject
Mortgaged Property.
LOC Bank
means any financial institution issuing the Letter of Credit and meeting
the requirements set forth in Section 6.15(a).
Material Adverse Effect
means, with respect to any circumstance, act, condition or
event of whatever nature (including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, or circumstance or circumstances, whether or not
related, a material adverse change in or a materially adverse effect upon any of (a) the business,
operations, property or condition (financial or otherwise) of Borrower or Guarantor, as applicable,
to the extent specifically referred to in the applicable provision of the applicable Loan Document,
(b) the present or future ability of Borrower to perform the Obligations for which it is liable, or
of Guarantor to perform its obligations under the Guaranty, as the case may be, to the extent
specifically referred to in the applicable provision of the applicable Loan Document, (c) the
validity, priority, perfection or enforceability of the Agreement or any other Loan Document or the
rights or remedies of Lender under any Loan Document, or (d) the value of, or Lenders ability to
have recourse against, any Mortgaged Property.
Maximum Annual Coupon Rate
shall have the meaning set forth in
Section
2.01(b)
.
Moodys
means Moodys Investors Service, Inc., a corporation organized and existing
under the laws of the State of Delaware, and its successors and assigns, if such successors and
assigns shall continue to perform the functions of a securities rating agency.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-16
Mortgaged Properties
means, collectively, the Additional Mortgaged Properties, the
Substitute Mortgaged Properties, and the Initial Mortgaged Properties, but excluding each Release
Mortgaged Property from and after the date of its release from the Collateral Pool.
Multiemployer Plan
has the meaning set forth in Section 4001(a)(3) of ERISA.
Multifamily Residential Property
means a residential property, located in the United
States, containing five or more dwelling units in which not more than twenty percent (20%) of the
net rentable area is or will be rented to non-residential tenants, and conforming to the
requirements of Chapter 2 of Part III of the DUS Guide (Property Requirements).
Net Operating Income
means, for any specified period, with respect to any Mortgaged
Property, the aggregate net income during such period equal to Gross Revenues during such period
less the aggregate Operating Expenses during such period. If a Mortgaged Property is not owned by
a Borrower or an Affiliate of a Borrower for the entire specified period, the Net Operating Income
for the Mortgaged Property for the time within the specified period during which the Mortgaged
Property was owned by a Borrower or an Affiliate of a Borrower shall be the Mortgaged Propertys
pro forma net operating income determined by Lender in accordance with the underwriting procedures
set forth by Lender for similar loans anticipated to be sold to Fannie Mae.
Net Worth
means, as of any specified date, for any Person, the excess of the
Persons assets over the Persons liabilities, determined in accordance with GAAP on a consolidated
basis, provided that all real property shall be valued on an undepreciated basis.
Note
means any Fixed Facility Note and/or any Variable Facility Note.
Obligations
means the aggregate of the obligations of Borrower and Guarantor under
the Agreement and the other Loan Documents.
Operating Expenses
means, for any period, with respect to any Mortgaged Property,
all expenses in respect of such Mortgaged Property, as determined by Lender based on the certified
operating statement for such specified period as adjusted to provide for the following: (i) all
appropriate types of expenses, including a management fee, deposits for the replacement reserves
(whether funded or not), and deposits for completion/repair reserves are included in the total
operating expense figure; (ii) upward adjustments to individual line item expenses to reflect
market norms or actual costs and correct any unusually low expense items, which could not be
replicated by a different owner or manager (
e.g.
, a market rate management fee will be
included regardless of whether or not a management fee is charged, market rate payroll will be
included regardless of whether shared payroll provides for economies, etc.); and (iii) downward
adjustments to individual line item expenses to reflect unique or aberrant costs (
e.g.
,
non-recurring capital costs, non-operating borrower expenses, etc.).
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-17
Organizational Certificate
means, collectively, certificates from Borrower and
Guarantor to Lender, in the form of
Exhibits G-1
and
G-2
to the Agreement,
certifying as to certain organizational matters with respect to each Borrower and Guarantor.
Organizational Documents
means all certificates, instruments and other documents
pursuant to which an organization is organized or operates, including but not limited to, (i) with
respect to a corporation, its articles of incorporation and bylaws, (ii) with respect to a limited
partnership, its limited partnership certificate and partnership agreement, (iii) with respect to a
general partnership or joint venture, its partnership or joint venture agreement and (iv) with
respect to a limited liability company, its articles of organization and operating agreement.
Outstanding
or
outstanding
means, when used in connection with promissory
notes, other debt instruments or Advances, for a specified date, promissory notes or other debt
instruments which have been issued, or Advances which have been made, to the extent not repaid in
full as of the specified date.
Ownership Interests
means, with respect to any entity, any ownership interests in
the entity and any economic rights (such as a right to distributions, net cash flow or net income)
to which the owner of such ownership interests is entitled.
PBGC
means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.
Permits
means all permits, or similar licenses or approvals issued and/or required
by an applicable Governmental Authority or any Applicable Law in connection with the ownership,
use, occupancy, leasing, management, operation, repair, maintenance or rehabilitation of any
Mortgaged Property or any Borrowers business.
Permitted Liens
means, with respect to a Mortgaged Property, (i) the exceptions to
title to the Mortgaged Property set forth in the Title Insurance Policy for the Mortgaged Property
which are approved by Lender, (ii) the Security Instrument encumbering the Mortgaged Property,
(iii) any other Liens approved by Lender, (iv) mechanics liens provided the same is removed or
bonded within thirty (30) days of notice of filing, and (v) real estate taxes and water and sewer
and other utility charges that are a lien but not yet due and payable.
Person
means an individual, an estate, a trust, a corporation, a partnership, a
limited liability company or any other organization or entity (whether governmental or private).
Plan
means at any time an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code
and is either (i) maintained by a member of the Controlled Group for employees of any member of the
Controlled Group or (ii) maintained pursuant to a collective bargaining agreement or any other
agreement under which more than one employer makes contributions and
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-18
to which a member of the Controlled Group is then making or accruing an obligation to make
contributions or has within the preceding five (5) plan years made contributions.
Pledge, Interest Rate Cap Agreement
means that certain Pledge, Interest Rate Cap
Reserve and Security Agreement executed by the Borrowers as of the date hereof, as the same may be
amended, restated, modified or supplemented from time to time.
Potential Event of Default
means any event that, with the giving of notice or the
passage of time, or both, would constitute an Event of Default.
Price
means, with respect to an Advance, the proceeds of the sale of the DMBS backed
by the Advance.
Property
means any estate or interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
Rate Form
means the completed and executed document from Borrower to Lender pursuant
to
Section 2.01(b)
, substantially in the form of
Exhibit J
to the Agreement,
specifying the terms and conditions of the DMBS to be issued for the requested Advance.
Rate Setting Date
shall have the meaning set forth in
Section 2.01(b)
.
Release Documents
mean instruments releasing the applicable Security Instrument as a
Lien on a Mortgaged Property, and UCC-3 Termination Statements terminating the UCC-1 Financing
Statements, and such other documents and instruments to evidence the release of such Mortgaged
Property from the Collateral Pool.
Release Fee
means with respect to any Release effected in accordance with Section
3.04(c), a fee in the amount of $5,000 per Release Mortgaged Property.
Release Mortgaged Property
means the Mortgaged Property to be released pursuant to
Article 3
.
Release Price
shall have the meaning set forth in
Section 3.04(c)
.
Release Request
means a written request, substantially in the form of
Exhibit
M
to the Agreement, to obtain a release of Collateral from the Collateral Pool pursuant to
Section 3.04(a)
.
Remaining Mortgaged Properties
shall have the meaning set forth in
Section
6.05(f)
.
Rent Roll
means, with respect to any Multifamily Residential Property, a rent roll
prepared and certified by the owner of the Multifamily Residential Property, on Fannie Mae Form
4243 or on another form approved by Lender and containing substantially the same information as
Form 4243 requires, it being acknowledged that the forms attached hereto as
Exhibit X
are
satisfactory to Lender.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-19
Replacement Reserve Agreement
means a Master Replacement Reserve and Security
Agreement required by Lender, and satisfying Lenders requirements, as the same may be amended,
modified or supplemented from time to time.
Request
means an Advance Request, an Addition Request, an Expansion Request, a
Release Request, a Substitution Request, a Conversion Request, a Credit Facility Termination
Request, or a Facility Termination Request.
Required Escrow Payments
has the meaning given that term in Section 13.01(a) of this
Agreement.
Rescinded Payment
has the meaning given that term in Section 14.10 of this
Agreement.
Rollover Variable Advance
means a Variable Advance made solely to refinance an
existing Variable Advance on the maturity date of such Variable Advance.
S&P
shall mean Standard & Poors Credit Markets Services, a division of The
McGraw-Hill Companies, Inc., a New York corporation, and its successors and assigns, if such
successors and assigns shall continue to perform the functions of a securities rating agency.
Security
means a security as set forth in Section 2(1) of the Securities Act of
1933, as amended.
Security Documents
means the Security Instruments, the Replacement Reserve
Agreement, the Completion/Repair and Security Agreement and any other documents executed by
Borrower from time to time to secure any of Borrowers obligations under the Loan Documents.
Security Instrument
means, for each Mortgaged Property, a Multifamily Mortgage, Deed
of Trust or Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement given by a
Borrower to or for the benefit of Lender to secure the obligations of Borrower under the Loan
Documents. With respect to each Mortgaged Property owned by a Borrower, the Security Instrument
shall be substantially in the form published by Fannie Mae for use in the state in which the
Mortgaged Property is located. The amount secured by the Security Instrument shall be equal to the
Commitment in effect from time to time.
Senior Management
means (i) Richard J. Campo, (ii) D. Keith Oden and (iii) Dennis M.
Steen.
Servicer
means a multifamily seller and servicer approved by Fannie Mae, which
initially shall be Red Mortgage Capital, Inc., an Ohio corporation, and any permitted successor or
assign.
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-20
Single-Purpose
means, with respect to a Person that is any form of partnership or
corporation or limited liability company, that such Person at all times since its formation:
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(i)
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has been a duly formed and existing partnership, corporation or limited
liability company, as the case may be;
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(ii)
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has been duly qualified in each jurisdiction in which such qualification was at
such time necessary for the conduct of its business;
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(iii)
|
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has complied with the provisions of its organizational documents and the laws
of its jurisdiction of formation in all respects;
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(iv)
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has observed all customary formalities regarding its partnership or corporate
existence, as the case may be;
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(v)
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has accurately maintained its income and expense statements, records and other
partnership or corporate documents separate from those of any other Person;
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(vi)
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has not commingled its assets or funds with those of any other Person;
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(vii)
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has identified itself in all dealings with creditors (other than trade
creditors in the ordinary course of business and creditors for the construction of
improvements to property on which such Person has a non-contingent contract to purchase
such property) under its own name and as a separate and distinct entity;
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(viii)
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has been adequately capitalized in light of its contemplated business operations;
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(ix)
|
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has not assumed, guaranteed or become obligated for the liabilities of any
other Person (except in connection with the Credit Facility or the endorsement of
negotiable instruments in the ordinary course of business) or held out its credit as
being available to satisfy the obligations of any other Person;
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(x)
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has not acquired obligations or securities of any other Person;
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(xi)
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in relation to a Borrower, except for loans made in the ordinary course of
business to Affiliates, has not made loans or advances to any other Person;
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(xii)
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has not entered into and was not a party to any transaction with any Affiliate
of such Person, except in the ordinary course of business and on terms which are no
less favorable to such Person than would be obtained in a comparable arms-length
transaction with an unrelated third party;
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(xiii)
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has paid the salaries of its own employees, if any, and maintained a sufficient
number of employees in light of its contemplated business operations;
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Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-21
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(xiv)
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has allocated fairly and reasonably any overhead for shared office space;
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(xv)
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has not engaged in a non-exempt prohibited transaction described in Section 406
of ERISA or Section 4975 of the Internal Revenue Code; and
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(xvi)
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has complied with the requirements of Section 33 of the Security Instrument.
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Substitution
shall have the meaning set forth in Section 3.05(a).
Substitution Fee
means with respect to any Substitution effected in accordance with
Section 3.05
, a fee in the amount which is [
*
].
Substitution Request
means the written request to add a Substitute Mortgaged
Property to the Collateral Pool pursuant to Section 3.05, Section 3.06 and Section 3.07.
Survey
means the as-built survey of each Mortgaged Property prepared in accordance
with Lenders requirements for similar loans that are anticipated to be sold to Fannie Mae.
Taxes
means all taxes, assessments, vault rentals and other charges, if any,
general, special or otherwise, including all assessments for schools, public betterments and
general or local improvements, which are levied, assessed or imposed by any public authority or
quasi-public authority, and which, if not paid, will become a lien, on the Mortgaged Properties.
Targeted Entity
means individually and collectively, Borrower, Guarantor, Camden
Member, Camden General Partner and Texas Member.
Term of this Agreement
shall be determined as provided in
Section 15.10
.
Termination Date
means, at any time during which Fixed Advances are Outstanding, the
latest maturity date for any Fixed Advance Outstanding, and, at any time during which Fixed
Advances are not Outstanding, the Variable Facility Termination Date.
Texas Borrower
means CPT Community Owner LLC, a Delaware limited liability company.
Texas Member
means CPT Community Owner Member, LLC, a Delaware limited liability
company.
|
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|
*
|
|
Indicates material that has been omitted and for which
confidential treatment has been requested. All such omitted material has been
filed with the Securities and Exchange Commission pursuant to Rule 406
promulgated under the Securities Act of 1933, as amended.
|
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-22
Three-Month LIBOR
means the London interbank offered rate for three-month U.S.
dollar deposits, as such rate is reported in The Wall Street Journal. In the event that a rate is
not published for Three-Month LIBOR, then the nearest equivalent duration London interbank offered
rate for U.S. Dollar deposits shall be selected at Lenders reasonable discretion. If the
publication of Three-Month LIBOR is discontinued, Lender shall determine such rate from another
equivalent source selected by Lender in its reasonable discretion.
Title Company
means Fidelity National Title Insurance Company.
Title Insurance Policies
means the mortgagees policies of title insurance issued by
the Title Company from time to time relating to each of the Security Instruments, conforming to
Lenders requirements for similar loans anticipated to be sold to Fannie Mae, together with such
endorsements, coinsurance, reinsurance and direct access agreements with respect to such policies
as Lender may, from time to time, consider necessary or appropriate, including variable credit
endorsements, if available, and tie-in endorsements, if available, and with a limit of liability
under the policy (subject to the limitations contained in sections of the Stipulations and
Conditions of the policy relating to a Determination and Extent of Liability) equal to the
Commitment.
Transfer
means
(1) as used with respect to ownership interests in a Targeted Entity (i) a sale, assignment,
pledge, transfer or other disposition of any ownership interest in a Targeted Entity (ii) the
issuance or other creation of new ownership interests in a Targeted Entity or (iii) a merger or
consolidation of Targeted Entity into another entity or of another entity into Targeted Entity, as
the case may be or (iv) the reconstitution of Targeted Entity from one type of entity to another
type of entity, or (v) the amendment, modification or any other change in the governing instrument
or instruments of Targeted Entity which has the effect of materially changing the relative powers,
rights, privileges, voting rights or economic interests of the ownership interests in such Targeted
Entity.
(2) as used with respect to ownership interests in a Mortgaged Property, (i) a sale,
assignment, lease, pledge, transfer or other disposition (whether voluntary or by operation of law)
of, or the granting or creating of a lien (other than a Permitted Lien), encumbrance or security
interest in, any estate, rights, title or interest in a Mortgaged Property, or any portion thereof.
Transfer does not include a conveyance of a Mortgaged Property at a judicial or non-judicial
foreclosure sale under any security instrument or the Mortgaged Property becoming part of a
bankruptcy estate by operation of law under the Bankruptcy Code.
Underwriting Requirements
means Lenders overall underwriting requirements for
multifamily residential properties in connection with loans anticipated to be sold to Fannie Mae as
set forth in the DUS Guide, including, without limitation, requirements relating to Appraisals,
physical needs assessments, environmental site assessments, and exit strategies, as such
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-23
requirements may be amended, modified, updated, superseded, supplemented or replaced from time
to time.
Valuation
means, for any specified date, with respect to a Multifamily Residential
Property, (a) if an Appraisal of the Multifamily Residential Property was more recently obtained
than a Cap Rate for the Multifamily Residential Property, the Appraised Value of such Multifamily
Residential Property, or (b) if a Cap Rate for the Multifamily Residential Property was more
recently obtained than an Appraisal of the Multifamily Residential Property, the value derived by
dividing
(i) the Net Operating Income of such Multifamily Residential Property, by
(ii) the most recent Cap Rate determined by Lender.
Notwithstanding the foregoing, any Valuation for a Multifamily Residential Property calculated for
a date occurring before the first anniversary of the date on which the Multifamily Residential
Property becomes a part of the Collateral Pool shall equal the Appraised Value of such Multifamily
Residential Property, unless Lender determines that changed market or property conditions warrant
that the value be determined as set forth in the preceding sentence.
Variable Advance
means a loan made by Lender to Borrower under the Variable Facility
Commitment.
Variable Facility
means the agreement of Lender to make Variable Advances to
Borrower pursuant to
Section 1.01
.
Variable Facility Availability Period
means the period beginning on the Initial
Closing Date and ending on the date five (5) years after the Initial Closing Date.
Variable Facility Commitment
means an aggregate amount of $175,000,000 which shall
be evidenced by the Variable Facility Note, plus such amount as Borrower may elect to add to the
Variable Facility Commitment in accordance with
Article 4
, less such amount as Borrower may
elect to convert from the Variable Facility Commitment to the Fixed Facility Commitment in
accordance with
Section 1.08
, and less such amount by which Borrower may elect to reduce
the Variable Facility Commitment in accordance with
Article 5
.
Variable Facility Fee
means (i) [
*
] for a Variable Advance drawn
from the Variable Facility Commitment in effect on or prior to the First Anniversary (whether or
not drawn by such date), and (ii) for any Variable Advance drawn from any portion of the Variable
Facility.
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*
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Indicates material that has been omitted and for which
confidential treatment has been requested. All such omitted material has been
filed with the Securities and Exchange Commission pursuant to Rule 406
promulgated under the Securities Act of 1933, as amended.
|
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-24
Commitment increased pursuant to
Article 4
after the period ending on the First
Anniversary, the number of basis points per annum determined at the time of such increase by Lender
as the Variable Facility Fee for such Variable Advance.
Variable Facility Note
means the promissory note (together with all schedules,
riders, allonges, addenda, renewals, extensions, amendments and modifications thereto), which has
been issued by Borrower to Lender to evidence Borrowers obligation to repay Variable Advances, and
which promissory note will be the same or substantially similar in form to the promissory note
issued by Borrower to Lender in connection with the Variable Advance made on the Initial Closing
Date.
Variable Facility Termination Date
means October 1, 2018.
Voting Equity Capital
shall mean Securities of any class or classes, the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a majority of the board of
directors (or Persons performing similar functions).
Master Credit Facility Agreement
Definitions
Camden 2008
Appendix I-25
Exhibit 10.5
MASTER CREDIT FACILITY AGREEMENT
BY AND AMONG
SUMMIT RUSSETT, LLC,
2009 CPT COMMUNITY OWNER, LLC,
2009 CUSA COMMUNITY OWNER, LLC,
2009 CSP COMMUNITY OWNER, LLC AND
2009 COLP COMMUNITY OWNER, LLC
AND
CAMDEN PROPERTY TRUST
AND
RED MORTGAGE CAPITAL, INC.
DATED AS OF
APRIL 17, 2009
MASTER CREDIT FACILITY AGREEMENT
THIS MASTER CREDIT FACILITY AGREEMENT is made as of the 17th day of April, 2009 (this
Agreement), by and among (i) SUMMIT RUSSETT, LLC, 2009 CPT COMMUNITY OWNER, LLC, 2009 CUSA
COMMUNITY OWNER, LLC, 2009 CSP COMMUNITY OWNER, LLC AND 2009 COLP COMMUNITY OWNER, LLC, each a
Delaware limited liability company, individually and collectively (Borrower); (ii) RED MORTGAGE
CAPITAL, INC., an Ohio corporation (Lender); and (iii) CAMDEN PROPERTY TRUST, a Real Estate
Investment Trust organized under the laws of the State of Texas, as guarantor (Guarantor).
RECITALS
A. Borrower (other than Summit Russett, LLC) and Camden Summit owns one (1) or more
Multifamily Residential Properties (unless otherwise defined or the context clearly indicates
otherwise, capitalized terms shall have the meanings ascribed to such terms in Appendix I of this
Agreement) as more particularly described in
Exhibit A
to this Agreement.
B. Borrower has requested that Lender make a Term Loan in the amount of $420,000,000 in favor
of Borrower, comprised of a $420,000,000 Fixed Loan.
C. To secure the obligations of Borrower under this Agreement and the other Loan Documents
issued in connection with the Term Loan, Borrower (other than Summit Russett, LLC) and Camden
Summit shall create a Collateral Pool in favor of Lender. The Collateral Pool shall be comprised
of (i) the Multifamily Residential Properties listed on
Exhibit A
and (ii) any other
collateral pledged to Lender from time to time by Borrower and Camden Summit pursuant to this
Agreement or any other Loan Documents.
D. Each Note and Security Document, including the Indemnity Multifamily Deed of Trust, related
to the Mortgaged Properties comprising the Collateral Pool shall be cross-defaulted (
i.e.
,
a default under any Note, Security Document relating to the Collateral Pool and under this
Agreement, shall constitute a default under each Note, Security Document and this Agreement related
to the Mortgaged Properties comprising the Collateral Pool) and cross-collateralized (
i.e.
,
each Security Instrument related to the Mortgaged Properties within the Collateral Pool other than
the Security Instrument for the property commonly known as Camden Russett shall secure all of
Borrowers obligations under this Agreement and the other Loan Documents and the Security
Instrument for the property commonly known as Camden Russett shall secure Camden Summits
obligations under the IDOT Guaranty) and it is the intent of the parties to this Agreement that,
after an Event of Default, Lender may accelerate any Note without needing to accelerate any other
Note and that in the exercise of its rights and remedies under the Loan Documents, Lender may,
except as provided in this Agreement, exercise and perfect any and all
of its rights in and under the Loan Documents with regard to any Mortgaged Property without
needing to exercise and perfect its rights and remedies with respect to any other Mortgaged
Property and that any such exercise shall be without regard to the Allocable Loan Amount assigned
to such Mortgaged Property and that Lender may recover an amount equal to the full amount
outstanding in respect of any of the Notes in connection with such exercise and any such amount
shall be applied as determined by Lender pursuant to the terms of this Agreement, the Notes and the
other Loan Documents.
Master Credit Facility Agreement
Camden 2009
1
E. Subject to the terms, conditions and limitations of this Agreement, Lender has agreed to
make a Term Loan.
NOW, THEREFORE, Borrower, Lender and Guarantor, in consideration of the mutual promises and
agreements contained in this Agreement, hereby agree as follows:
ARTICLE 1
THE TERM LOAN
Section 1.01.
Term Loan.
Subject to the terms, conditions and limitations of this Agreement, Lender agrees to make the
Term Loan to Borrower on the Initial Closing Date. The aggregate original principal amount of the
Term Loan shall be $420,000,000.
Section 1.02.
Notes.
The obligation of the Borrower to repay the Term Loan shall be evidenced by the following
Notes: (i) a Fixed Note in the principal amount of $420,000,000 and (ii) any other Notes as may be
necessary for Borrower to execute during the Term in connection with a conversion. The Notes shall
be payable to the order of Lender and shall equal the aggregate original principal amount of the
Term Loan to the Borrower.
Section 1.03.
Maturity Date.
The maturity date of the Fixed Loan made on the Initial Closing Date shall be May 1, 2019
.
The Term Loan is payable interest only and shall not require amortization, except as otherwise set
forth in
Section 1.05(e)(ii)
.
Section 1.04.
Yield Maintenance/Prepayment.
The terms and conditions of yield maintenance and/or prepayment premiums, as applicable, are
contained in the Notes and such terms and conditions shall apply to the prepayment in part or whole
of the Term Loan during the term of this Agreement.
Master Credit Facility Agreement
Camden 2009
2
Section 1.05.
Conversion from Variable Loan to Fixed Loan
.
Except as provided in
Section 1.06
and subject to the terms of
Section 1.10
,
Borrower shall have the right to convert all or any portion of the Variable Loan to a Fixed Loan.
Borrower shall not be required to pay any fee maintenance in connection with any such conversion.
(a)
Request
. To convert all or a portion of the Variable Loan to a Fixed Loan,
Borrower shall deliver a Conversion Request to Lender. Each Conversion Request shall designate (i)
the amount of the Variable Loan to be converted, and (ii) the maturity date of such converted Fixed
Loan, subject to
Section 1.05(e)
.
(b)
Closing
. Subject to
Section 1.06
and
Section 1.10
, and provided
that all conditions contained in
Section 1.07
are satisfied, Lender shall permit the
requested conversion to close at offices designated by Lender on a Closing Date selected by Lender,
within thirty (30) Business Days after all of the conditions for a conversion have been satisfied
(or on such other date as Borrower and Lender may agree). At the closing, Lender and Borrower
shall execute and deliver, at the sole cost and expense of Borrower, in form and substance
satisfactory to Lender, the Conversion Documents. Borrower shall be obligated to pay an interest
rate and fees in connection with a conversion as determined in accordance with the applicable
requirements of the Fannie Mae product line then in effect.
(c)
Minimum Remaining Amount of Variable Loans
. After the closing of any conversion,
if any Variable Loan remains Outstanding, the minimum aggregate principal amount Outstanding of
such remaining Variable Loan shall be not less than $25,000,000. If the aggregate principal amount
Outstanding of the Variable Loan is less than $25,000,000, such Variable Loan must be repaid
(together with all associated prepayment premiums and other amounts due under the Variable Note) or
converted to a Fixed Loan pursuant to the terms of this Section and Sections 1.06 and 1.07.
(d) If the Variable Loan is converted to a Fixed Loan, such Fixed Loan may be a cash execution
or an MBS execution at Lenders option and rates shall be set in accordance with the following
procedures:
(i)
Preliminary, Nonbinding Quote
. At Borrowers request, Lender shall quote an
estimate of the Cash Interest Rate (for a Fixed Loan with a cash execution) or the MBS Pass-Through
Rate plus Fixed Facility Fee (for a Fixed Loan with an MBS execution). Lenders quote shall be
based on (A) in the case of an MBS execution, a solicitation of bids from institutional investors
selected by Lender or, in the case of a cash execution, the rate quoted by Fannie Mae and (B) the
proposed terms and amount of the Fixed Loan selected by Borrower. The quote shall not be binding
upon Lender.
(ii)
Rate Setting
. Borrower may submit to Lender, by facsimile transmission before
1:00 p.m. Washington, D.C. time on any Business Day (
Rate Setting Date
), a completed and
executed Rate Form. The Rate Form shall specify the amount, term, MBS Issue Date, as applicable,
Fixed Facility Fee, any breakage fee deposit amount, the
proposed maximum interest rate (
Maximum Annual Interest Rate
), the proposed Cash
Interest Rate, as applicable, and Closing Date for the conversion.
Master Credit Facility Agreement
Camden 2009
3
(iii)
Rate Confirmation
. In the case of an MBS execution, within one (1) Business Day
after receipt of the Rate Form and upon satisfaction of all of the conditions for conversion,
Lender shall solicit bids from institutional investors selected by Lender based on the information
in the Rate Form and, provided the MBS Pass-Through Rate would be at or below the Maximum Annual
Interest Rate, shall obtain a commitment (
MBS Commitment
) for the purchase of an MBS
having the bid terms described in the related Rate Form. In the case of a cash execution, within
one (1) Business Day after receipt of the Rate Form, Lender shall obtain a commitment from Fannie
Mae (
Fannie Mae Commitment
) for the converted Fixed Loan having the terms described in
the related Rate Form. Lender shall then complete and countersign the Rate Form thereby confirming
the amount, term, and Closing Date for the conversion, for a Fixed Loan with an MBS execution, the
MBS Issue Date, MBS Delivery Date, MBS Pass-Through Rate, and Fixed Facility Fee and for a Fixed
Loan with a cash execution, the Cash Interest Rate, and shall immediately deliver by facsimile
transmission the Rate Form to Borrower.
(iv)
Breakage and other Costs
. If Lender obtains, and then fails to fulfill, the MBS
Commitment or Fannie Mae Commitment because the conversion does not occur (for a reason other than
Lenders default), Borrower shall pay all reasonable out-of-pocket costs payable to the potential
investor and other reasonable costs, fees and damages incurred by Lender in connection with its
failure to fulfill the MBS Commitment or Fannie Mae Commitment. Lender reserves the right to
require Borrower to post a deposit at the time the MBS Commitment or Fannie Mae Commitment is
obtained. Such deposit shall be refundable to Borrower upon the delivery of the MBS or the closing
of the conversion.
(e)
Term and Conditions of Converted Loans
.
(i) Until the date which is five years from the Initial Closing Date, Borrower shall have the
right to convert all or a portion of the Outstanding Variable Loan to a Fixed Loan for a term of at
least five (5) years from the Closing Date of the conversion, provided that the amendment to the
Variable Note executed in connection with such Fixed Loan shall not have a maturity date beyond the
Fixed Loan Termination Date.
(ii) As an alternative to its rights under Section 1.05(e)(i) and subject to Section 1.10,
during the period of time between the first day of the fourth month after the Initial Closing Date
and the last Business Day of the fourth month prior to the Variable Loan Termination Date, Borrower
shall have the right to convert all or a portion of the Outstanding Variable Loan to a Fixed Loan
for a term as determined by Borrower of no more than ten (10) years from the Closing Date of the
conversion. The maturity date of such Fixed Loan may extend beyond May 1, 2019. Any Fixed Loan
converted in accordance with this subsection 1.05(e)(ii) shall require amortization calculated over
the Amortization Period. No Collateral may be released from the Collateral Pool, upon the maturity
dates of any Loan made under this Agreement, unless the requirements of Sections 3.04 and 6.05 are
satisfied.
Master Credit Facility Agreement
Camden 2009
4
Section 1.06.
Limitations on Right to Convert
.
Borrowers right to convert all or any portion of the Variable Loan to a Fixed Loan is subject
to the following limitations:
(a)
Minimum Request
. Each Conversion Request shall be in the minimum amount of
$5,000,000.
(b)
Failure to Underwrite
. In the event all or a portion of the amount of the
Variable Loan set forth in the Conversion Request cannot be converted because the increased debt
service on the Fixed Loan does not result in the Collateral Pool satisfying the Coverage and LTV
Tests, Borrower shall prepay the amount of the Variable Loan that cannot be converted to a Fixed
Loan and shall pay all prepayment premiums and other fees associated with such prepayment.
(c) Notwithstanding the foregoing, if either of the tests set forth above in subsection (b),
are not satisfied after the conversion, such conversion may be permitted by Lender if the
conversion improves the Collateral Pool based on factors that are consistent with Lenders
Underwriting Requirements and results in improvement in one or both of the following areas: the
then current Aggregate Debt Service Coverage Ratio or the then current Aggregate Loan to Value
Ratio. Notwithstanding the foregoing, under no circumstances shall the Aggregate Loan to Value
Ratio exceed ninety percent (90%).
Section 1.07.
Conditions to Conversion
.
The conversion of all or any portion of the Variable Loan to a Fixed Loan is subject to the
satisfaction, on or before the Closing Date, of the conditions precedent contained in
Section
6.08
and
Section 6.11
and
Section 6.01
all applicable General Conditions
contained in
Section 6.01
.
Section 1.08.
Interest Rate Execution
.
In the event that the Term Loan made on the Initial Closing Date is solely a Fixed Loan, the
provisions in this Agreement referencing the Variable Loan and Variable Note shall be deemed to be
of no further force and effect and be deemed to be eliminated from this Agreement.
Section 1.09.
Interest Rate Cap.
To protect against fluctuations in interest rates during the term, pursuant to the terms of
the Pledge, Interest Rate Cap Agreement, Borrower shall make arrangements for a One-Month
LIBOR-based interest rate cap in form and substance satisfactory to Lender with a counterparty
satisfactory to Lender (
Interest Rate Cap
) to be in place and maintained at all times
with respect to the portion of the Variable Loan which remains Outstanding. As set forth in the
Pledge, Interest Rate Cap Agreement, Borrower agrees to pledge its right, title and interest in the
Interest Rate Cap to Lender as additional collateral for the Indebtedness.
Master Credit Facility Agreement
Camden 2009
5
Section 1.10.
Limitation on All Loans.
Notwithstanding anything in this Agreement or any other Loan Document to the contrary, any
conversion of a Loan shall be subject to the precondition that the Lender must confirm with Fannie
Mae that Fannie Mae is generally offering to purchase in the marketplace loans of the execution
type requested by Borrower at the time of the Request and at the time of the rate setting date for
the conversion. In the event Fannie Mae is not purchasing loans of the type requested by Borrower,
Lender agrees to offer, to the extent available from Fannie Mae, alternative loan executions based
on the types of executions Fannie Mae is generally offering to purchase in the marketplace at that
time. Any alternative execution offered would be subject to mutually agreeable documentation
necessary to implement the terms and conditions of such alternative execution.
ARTICLE 2
THE ALLOCABLE LOAN AMOUNT/SUPPLEMENTAL LOANS
Section 2.01.
Determination of Allocable Loan Amount and Valuations
.
(a)
Initial Determinations
. On the Initial Closing Date, Lender shall determine (i)
the Allocable Loan Amount and Valuation for each Initial Mortgaged Property, and (ii) the Aggregate
Debt Service Coverage Ratio and the Aggregate Loan to Value Ratio. Subject to
Section
2.01(b)
, the determinations made as of the Initial Closing Date shall remain unchanged until
the First Anniversary. Changes in Allocable Loan Amount, Valuations, the Aggregate Debt Service
Coverage Ratio and the Aggregate Loan to Value Ratio shall be made pursuant to
Section
2.01(b)
.
(b)
Monitoring Determinations
. Once each Calendar Quarter or, if only Fixed Loans are
Outstanding, once each Calendar Year, within twenty (20) Business Days after Borrower has delivered
to Lender the reports required in
Section 8.03
, Lender shall determine the Aggregate Debt
Service Coverage Ratio, the Aggregate Loan to Value Ratio, the Valuations and the Allocable Loan
Amounts and whether Borrower is in compliance with the other covenants set forth in the Loan
Documents. After the First Anniversary, on an annual basis, and if Lender decides that changed
market or property conditions warrant, Lender shall redetermine Allocable Loan Amounts and
Valuations. Lender shall also redetermine Allocable Loan Amounts to take account of any
substitution or release of Collateral or a conversion of interest rate or other event that
invalidates the outstanding determinations. In determining Valuations, Lender shall use
Capitalization Rates based on its internal survey and analysis of capitalization rates for
comparable sales in the vicinity of the Mortgaged Property, with such adjustments as Lender deems
appropriate and without any obligation to use any information provided by Borrower. If Lender is
unable to determine a Capitalization Rate for a Mortgaged Property, Lender shall have the right,
with the prior consent of Borrower, not more than once annually, to obtain, at Borrowers expense,
a market study in order to establish a Capitalization Rate. In the event Borrower fails to consent
to Lender obtaining a market study, Lender shall determine the Capitalization Rate pursuant to the
Underwriting Requirements. Lender shall promptly disclose its determinations to Borrower. Until
redetermined, the outstanding Allocable Loan Amounts
and Valuations shall remain in effect. Notwithstanding anything in this Agreement to the
contrary, no change in Allocable Loan Amounts, Valuations, the Aggregate Loan to Value Ratio or the
Aggregate Debt Service Coverage Ratio shall, unless resulting from the concurrent release or
substitution of Collateral from the Collateral Pool or the concurrent conversion of the interest
rate, (i) result in a Potential Event of Default or Event of Default, (ii) require the prepayment
of any Note in whole or in part, or (iii) require the addition of Collateral to the Collateral
Pool.
Master Credit Facility Agreement
Camden 2009
6
Section 2.02.
Supplemental Loan
.
After the First Anniversary, Borrower may participate in the Fannie Mae Supplemental Loan
product if the Supplemental Loan product is offered by Fannie Mae at the time. Any such
Supplemental Loan is subject to Lenders determination that, as a result of its annual valuation of
the Collateral Pool, a Supplemental Loan may be made pursuant to Lenders Underwriting Requirements
for Loans which meet the Coverage and LTV Tests. The Supplemental Loan will be documented with
loan documents similar to the Loan Documents (
Supplemental Loan Documents
). Supplemental
Loans will not be loans advanced under this Agreement. Any Supplemental Loan will be priced at
market at the time of the loan and will be cross-defaulted with the Term Loan. To secure the
obligations of Borrower under the Supplemental Loan Documents, Borrower shall grant, convey and
assign to Lender a second Lien on each Mortgaged Property in the Collateral Pool and on any other
collateral pledged to Lender from time to time pursuant to the Supplemental Loan Documents. On the
closing date of the Supplemental Loan, Lender shall determine the portion of the Supplemental Loan
allocated to a particular Mortgaged Property by Lender (the
Supplemental Allocable Loan
Amount
), which Supplemental Allocable Loan Amounts shall be set forth in a separate exhibit to
this Agreement. Lender shall redetermine the Supplemental Allocable Loan Amounts in the same
manner and at the same time as the redetermination of the Allocable Loan Amounts pursuant to
Section 2.01(b). In the event of a Supplemental Loan, Borrower shall pay the Supplemental Loan Fee
on the date of the closing of such Supplemental Loan. Notwithstanding the foregoing, the
Supplemental Loan shall be monitored pursuant to Section 2.01 of this Agreement and Lender shall
include the Supplemental Loan upon calculating the Coverage and LTV Tests, Aggregate Debt Service
Coverage Ratio and Aggregate Loan to Value Ratio, in connection with any Request.
ARTICLE 3
COLLATERAL CHANGES
Section 3.01.
Reserved
.
Section 3.02.
Reserved
.
Section 3.03.
Right to Obtain Releases of Collateral
.
Subject to the terms and conditions of this
Article 3
and the limitations set forth in
Section 15.17
, Borrower shall have the right from time to time to obtain a release of
Collateral from the Collateral Pool.
Master Credit Facility Agreement
Camden 2009
7
Section 3.04.
Procedure for Obtaining Releases of Collateral
.
(a)
Request
. To obtain a release of Collateral from the Collateral Pool, Borrower
shall deliver a Release Request to Lender. Upon delivery of the Release Request, Borrower shall
not be permitted to re-borrow any amounts that will be prepaid in connection with the release of
Collateral.
(b)
Closing
. If all conditions precedent contained in
Section 6.05
and all
General Conditions contained in
Section 6.01
are satisfied, Lender shall cause the Release
Mortgaged Property to be released, at a closing to be held at offices designated by Lender on a
Closing Date selected by Lender, and occurring within thirty (30) days after Lenders receipt of
the Release Request (or on such other date as Borrower and Lender may agree), by executing and
delivering, and causing all applicable parties to execute and deliver, all at the sole cost and
expense of Borrower, the Release Documents. Borrower shall prepare the Release Documents and
submit them to Lender for its review.
(c)
Release Price
. The
Release Price
for each Release Mortgaged Property
means the greater of (i) one hundred percent (100%) of the Allocable Loan Amount for the Release
Mortgaged Property plus one hundred percent (100%) of the Supplemental Allocable Loan Amount for
the Release Mortgaged Property and (ii) one hundred percent (100%) of the amount, if any, of the
amount of the Term Loan Outstanding and any Supplemental Loan Outstanding that is required to be
repaid by Borrower to Lender in connection with the proposed release of the Release Mortgaged
Property from the Collateral Pool so that, immediately after the release, the Collateral Pool
satisfies the better of the following tests (i.e. the test which produces a lower Aggregate Loan to
Value Ratio and a higher Aggregate Debt Service Coverage Ratio): (1) the Aggregate Debt Service
Coverage Ratio and the Aggregate Loan to Value Ratio immediately prior to the release or (2) the
Coverage and LTV Test. In addition to the Release Price, Borrower shall pay to Lender all
associated prepayment premiums and other amounts due under the Notes being repaid. In connection
with a non-simultaneous substitution of Collateral pursuant to
Section 3.06(c)(ii)
of this
Agreement, Borrower shall be permitted, in lieu of paying the Release Price, to post a Letter of
Credit issued by a financial institution acceptable to Lender and having terms and conditions
acceptable to Lender, having a face amount equal to the Release Price.
(d)
Application of Release Price
. (i) The Release Price for the Release Mortgaged
Property shall be applied in the order selected by Borrower, provided that (A) any amount of the
Supplemental Loan Outstanding which Borrower elects to prepay must be prepaid in full, or if the
Release Price is not sufficient to do so, the Supplemental Loan shall only be partially prepaid;
(B) any amount of the Term Loan Outstanding which Borrower elects to prepay must be prepaid in
full, or if the Release Price is not sufficient to do so, the Term Loan shall be only partially
prepaid; (C) any prepayment is permitted under the applicable Note; (D) any prepayment premium due
and owing is paid; and (E) interest is paid through the end of the month. If Borrower is unable to
meet the conditions set forth in (A) through (E), then the Release Price shall be applied first
against any variable rate Supplemental Loan Outstanding so long as the prepayment is permitted
under the applicable note, until any variable rate
Supplemental Loan is no longer Outstanding, then against any Variable Loan Outstanding so long
as the prepayment is permitted under the Variable Note, until any Variable Loan is no longer
Outstanding, then against any fixed rate Supplemental Loan Outstanding so long as the prepayment is
permitted under the applicable note, until any fixed rate Supplemental Loan is not longer
Outstanding, then against any Fixed Loan Outstanding so long as the prepayment is permitted under
the applicable Fixed Note.
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(ii) In the event Borrower desires to release a Release Mortgaged Property on a date other
than the last Business Day of the month, the Release Price or the remainder of the Release Price,
if any, shall be held by Lender (or its appointed collateral agent) as Additional Collateral, in
accordance with a security agreement (if required by Lender) and other documents in form and
substance acceptable to Lender. Any Additional Collateral shall first be used to prepay the
applicable Supplemental Loan and then the applicable Term Loan on the last Business Day of the
month.
(e)
Release of Borrower and Guarantor
. Upon the release of a Mortgaged Property, the
Borrower that is the owner of such Release Mortgaged Property shall be released of all obligations
under this Agreement and the other Loan Documents with respect to the Release Mortgaged Property,
except for any provisions of this Agreement and the other Loan Documents that are expressly stated
to survive any release or termination or for any liabilities or obligations of such Borrower which
arose prior to the Closing Date of such release. In addition, each Borrower and Guarantor shall be
released of all obligations related to the Release Mortgaged Property under this Agreement and the
other Loan Documents except for any provisions of this Agreement and the other Loan Documents that
are expressly stated to survive any release or termination or for any liabilities or obligations of
such Borrower or Guarantor which arose prior to the Closing Date of such release.
(f)
Test for Release
. A Release may be effected if immediately after giving effect to
the requested release, the better of the following tests are satisfied (i.e. the test which
produces a lower Aggregate Loan to Value Ratio and a higher Aggregate Debt Service Coverage Ratio),
(1) the Aggregate Debt Service Coverage Ratio and the Aggregate Loan to Value Ratio immediately
prior to the release or (2) the Coverage and LTV Test. Notwithstanding the foregoing, if either of
the tests set forth above in subsection (1) or (2) are not satisfied after the release of a
Mortgaged Property, such release may be permitted by Lender if the release improves the Collateral
Pool based on factors that are consistent with Lenders Underwriting Requirements and results in
improvement in one or both of the following areas: the then current Aggregate Debt Service Coverage
Ratio or the then current Aggregate Loan to Value Ratio.
Section 3.05.
Right to Substitutions.
Subject to the terms and conditions of this
Article 3
and the limitations sets forth
in
Section 15.17
, Borrower shall have the right to obtain the release of the Mortgaged
Property securing the Term Loan made to such Borrower by replacing such Mortgaged Property with a
Multifamily Residential Property that meets the requirements of this Agreement (the
Substitute
Mortgaged Property
) thereby effecting a
Substitution
of Collateral.
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Camden 2009
9
Section 3.06.
Procedure for Substitutions.
(a)
Request
. Borrower shall deliver to Lender a completed and executed Substitution
Request. Each Substitution Request shall be accompanied by the following: (i) the information
required by the Underwriting Requirements with respect to the proposed Substitute Mortgaged
Property and any additional information Lender reasonably requests; and (ii) the payment of all
Additional Collateral Due Diligence Fees.
(b)
Underwriting
.
(i) Lender shall evaluate the proposed Substitute Mortgaged Property in accordance with the
Underwriting Requirements.
(ii) A Substitution may be effected if (1) the proposed Substitute Mortgaged Property has a
Debt Service Coverage Ratio of not less than 1.35:1.0 with respect to the amount of the Fixed Loan
which is allocated as the Allocable Loan Amount for such Substitute Mortgaged Property and 1.10:1.0
with respect to the amount of the Variable Loan which is allocated as the Allocable Loan Amount for
such Substitute Mortgaged Property and its Loan to Value Ratio must not exceed seventy percent
(70%) and (2) the Collateral Pool, immediately after the Substitution, satisfies the better of the
following tests (i.e. the test which produces a lower Aggregate Loan to Value Ratio and a higher
Aggregate Debt Service Coverage Ratio): (A) the Coverage and LTV Test and (B) the Aggregate Debt
Service Coverage Ratio and the Aggregate Loan to Value Ratio of the Collateral Pool immediately
prior to the Substitution. If necessary in order for the Collateral Pool to meet the tests set
forth in this Section 3.06(b)(ii) after the Substitution, Borrower may prepay a portion of the Term
Loan (including all prepayment premiums) pursuant to the terms of the Notes and this Agreement.
Notwithstanding the foregoing, if either of the tests set forth above in subsection (1) or (2) are
not satisfied after the Substitution of a proposed Substitute Mortgaged Property, such Substitution
may be permitted by Lender if the Substitution improves the Collateral Pool based on factors that
are consistent with Lenders Underwriting Requirements and result in improvement in one or more of
the following areas: the then current Valuation of the Mortgaged Properties, the then current
Aggregate Debt Service Coverage Ratio, or the then current Aggregate Loan to Value Ratio.
(iii) Within thirty (30) Business Days after receipt of (A) the Substitution Request and (B)
all reports, certificates and documents required by the Underwriting Requirements and this
Agreement, including a zoning analysis required by Lender in connection with similar loans
anticipated to be sold to Fannie Mae, Lender shall notify the applicable Borrower whether the
Substitute Mortgaged Property meets the requirements of this Section 3.06(b) and the Underwriting
Requirements and the other requirements for the Substitution of a Mortgaged Property as set forth
in this Agreement. Within five (5) Business Days after receipt of Lenders written notice in
response to the Substitution Request, Borrower shall notify Lender whether it elects to proceed
with the Substitution. If Borrower fails to respond within the period of five (5) Business Days,
it shall be conclusively deemed to have elected not to proceed with the Substitution.
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(c)
Closing
. If Lender determines that the Substitution Request satisfies the
conditions set forth herein, Borrower timely elects to proceed with the substitution, and all
conditions precedent contained in
Section 3.05
,
Section 3.06
,
Section 6.05
,
Section 6.06
,
Section 6.11
,
Section 6.12
and all General Conditions
contained in
Section 6.01
are satisfied, the proposed Substitute Mortgaged Property shall
be added in replacement of the Mortgaged Property being released, at a closing to be held at
offices designated by Lender on a Closing Date selected by Lender and occurring
(i) if the substitution of the proposed Substitute Mortgaged Property is to occur
simultaneously with the release of the Release Mortgaged Property, within sixty (60) days after
Lenders receipt of the applicable Borrowers election (or on such other date to which Borrower and
Lender may agree); or
(ii) if the substitution of the proposed Substitute Mortgaged Property is to occur subsequent
to the release of the Release Mortgaged Property, within ninety (90) days after the release of such
Release Mortgaged Property (provided such date may be extended an additional ninety (90) days if
Borrower provides evidence satisfactory to Lender of Borrowers diligent efforts in finding a
suitable proposed Substitute Mortgaged Property) (the
Property Delivery Deadline
) in
accordance with the terms of
Section 3.06
.
Section 3.07.
Substitution Deposit.
(a)
The Deposit
. If a Substitution of the proposed Substitute Mortgaged Property is
to occur subsequent to the release of the Release Mortgaged Property pursuant to Section
3.06(c)(ii), at the Closing Date of the release of the Release Mortgaged Property, Borrower shall
deposit with Lender the
Substitution Deposit
described in Section 3.07(b) in the form of
cash in a non-interest bearing account held by Lender or, in lieu of depositing cash for the
Substitution Deposit, Borrower may post a Letter of Credit issued by a financial institution
acceptable to Lender and having terms and conditions acceptable to Lender, having a face amount
equal to the Substitution Deposit.
(b)
Substitution Deposit Amount
. The
Substitution Deposit
for each proposed
substitution shall be an amount equal to the sum of (i) the Release Price, plus (ii) any and all of
the fee maintenance or the prepayment premium for the Notes, calculated as of the end of the month
in which the Property Delivery Deadline occurs, as if the Notes (and the MBS, if applicable) were
to be prepaid in such month, plus (iii) interest on the Notes through the end of the month in which
the Property Delivery Deadline occurs, if necessary as reasonably estimated by Lender, plus (iv)
costs, expenses and fees of Lender pertaining to the substitution (the
Substitution Cost
Deposit
). If a Substitution of the last remaining asset is taking place, the cash collateral
or Letter of Credit must include, (A) any yield maintenance that would be due to the extent that
the Fixed Notes must be prepaid to effect a release at that time and (B) any fee maintenance that
would be due to the extent that the Variable Note must be prepaid to effect a release at that time.
The Substitution Cost Deposit shall be used by Lender to cover all reasonable out-of-pocket costs
and expenses incurred by Lender and Fannie Mae, including any out-of-pocket legal fees and expenses
incurred by Fannie Mae and Lender in connection with
such substitution whether such substitution actually closes. In the event that the Borrower
elects to post a Letter of Credit in lieu of cash for the Substitution Deposit, Borrower shall also
be obligated to make any regularly scheduled payments of principal and interest due under the
applicable Notes during any period between the closing of the Release Mortgaged Property and the
earlier of the closing of the Substitute Mortgaged Property and the date of prepayment of the
Notes, or the MBS, if applicable.
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(c)
Failure to Close Substitution
. If the substitution of the proposed Substitute
Mortgaged Property does not occur by the Property Delivery Deadline in accordance with
Section
3.06(c)(ii)
, then such Borrower shall have irrevocably waived its right to substitute such
Release Mortgaged Property with the proposed Substitute Mortgaged Property, and the release of the
Release Mortgaged Property shall be deemed a prepayment of the Note and the MBS, if applicable.
The Property Delivery Deadline shall be no later than the date ninety (90) days (or one hundred
eighty (180) days, if applicable) after the date the Lenders lien on such Release Mortgaged
Property is released. Any MBS being prepaid shall be deemed to be prepaid as of the end of the
month in which the Property Delivery Deadline falls, and the Lender, shall follow standard Fannie
Mae procedures for the prepayment of the Note, or any applicable MBS, including delivery of the
Substitution Deposit (less the Substitution Cost Deposit) to Fannie Mae in accordance with such
procedures. Any portion of the Substitution Deposit not needed to prepay the Note, or any
applicable MBS, all interest, and any prepayment fees (including any portion of the Substitution
Cost Deposit not used by Lender to cover all reasonable out-of-pocket costs and expenses incurred
by Lender and Fannie Mae, including any out-of-pocket legal fees and expenses incurred by Fannie
Mae and Lender in connection with such Substitution) shall be promptly refunded to the applicable
Borrower after the Property Delivery Deadline.
(d)
Substitution Deposit Disbursement
. At closing of the Substitution, the Lender
shall disburse the Substitution Deposit (less any portion of the Substitution Cost Deposit used by
Lender to cover all reasonable out-of-pocket costs and expenses incurred by Lender and Fannie Mae,
including any out-of-pocket legal fees and expenses incurred by Fannie Mae and Lender in connection
with such substitution) directly to the Borrower at such time as the conditions set forth in
Sections 3.05
,
3.06
,
6.05
,
6.06
,
6.11
,
6.12
and all
General Conditions contained in
Section 6.01
have been satisfied, which must occur no later
than the Property Delivery Deadline.
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Camden 2009
12
ARTICLE 4
RESERVED
ARTICLE 5
RESERVED
ARTICLE 6
CONDITIONS PRECEDENT TO ALL REQUESTS
Section 6.01.
Conditions Applicable to All Requests
.
Borrowers right to close the transaction requested in a Request shall be subject to Lenders
determination that all of the following general conditions precedent (
General Conditions
)
have been satisfied, in addition to any other conditions precedent contained in this Agreement:
(a)
Reserved.
(b)
Payment of Expenses
. The payment by Borrower of Lenders and Fannie Maes
reasonable third party out-of-pocket fees and expenses payable in accordance with this Agreement,
including, but not limited to, the legal fees and expenses described in
Section 10.03
.
(c)
No Material Adverse Change
. There has been no material adverse change in the
financial condition, business or prospects of Borrower or Guarantor or in the physical condition,
operating performance or value of any of the Mortgaged Properties since the date of the most recent
Compliance Certificate (or, with respect to the conditions precedent to the Term Loan, from the
condition, business or prospects reflected in the financial statements, reports and other
information obtained by Lender during its review of Borrower and Guarantor and the Initial
Mortgaged Properties).
(d)
No Default
. There shall exist no Event of Default or Potential Event of Default
in each case under Sections 11.01 (b) - (l) or , in any material respect, under Sections 11.01 (a),
(m) or (n) (it being understood and agreed that any default comparable to the Events of Default
listed in 11.01(b) - (l) in the other Loan Documents or Supplemental Loan Documents will be treated
to be material) on the Closing Date for the Request and, after giving effect to the transaction
requested in the Request, no Event of Default or Potential Event of Default shall have occurred.
(e)
No Insolvency
. Receipt by Lender on the Closing Date for the Request of evidence
satisfactory to Lender that neither Borrower nor Guarantor is insolvent (within the meaning of any
applicable federal or state laws relating to bankruptcy or fraudulent transfers) or will be
rendered insolvent by the transactions contemplated by the Loan Documents, or, after giving effect
to such transactions, will be left with an unreasonably small capital with which to engage in its
business or undertakings, or will have intended to incur, or believe that it has incurred, debts
beyond its ability to pay such debts as they mature or will have intended to hinder, delay or
defraud any existing or future creditor.
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(f)
No Untrue Statements
. The Loan Documents shall not contain any untrue or
misleading statement of a material fact and shall not fail to state a material fact necessary to
make the information contained therein not misleading.
(g)
Representations and Warranties
. All representations and warranties made by
Borrower and Guarantor in the Loan Documents shall be true and correct in all material respects on
the Closing Date for the Request with the same force and effect as if such representations and
warranties had been made on and as of the Closing Date for the Request.
(h)
No Condemnation or Casualty
. Except in connection with a Release Request, there
shall not be pending or threatened any condemnation or other taking, whether direct or indirect,
against the Mortgaged Property and there shall not have occurred any casualty which has not been
previously completely repaired in accordance with the terms of the Loan Documents to any
improvements located on the Mortgaged Property, which casualty would have a Material Adverse
Effect.
(i)
Delivery of Closing Documents
. The receipt by Lender of the following, each dated
as of the Closing Date for the Request, in form and substance satisfactory to Lender in all
respects:
(i) The Loan Documents relating to such Request;
(ii) A Compliance Certificate;
(iii) An Organizational Certificate; and
(iv) Such other documents, instruments, approvals (and, if requested by Lender, certified
duplicates of executed copies thereof) and opinions as Lender may reasonably request.
(j)
Covenants
. Borrower is in full compliance with each of the covenants contained in
Article 8
and
Article 9
of this Agreement, without giving effect to any notice and
cure rights of Borrower.
Section 6.02.
Conditions Precedent to the Term Loan
.
The obligation of Lender to make the Term Loan is subject to the following conditions
precedent:
(a) Reserved;
(b) Receipt by Lender at least five (5) days prior to the Initial Closing Date, of the
confirmation of an Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap
Agreement, effective as of the Initial Closing Date;
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(c) Receipt by Lender of Interest Rate Cap Documents in accordance with the Pledge, Interest
Rate Cap Agreement, effective as of the Initial Closing Date;
(d) Receipt by Lender of the Guaranty, Certificate of Camden Summit, Indemnification Agreement
Regarding Taxes and the Indemnity Multifamily Deed of Trust, Assignment of Rents and Security
Agreement;
(e) Delivery to the Title Company with fully executed instructions directing the Title Company
to file and/or record in all applicable jurisdictions, of all applicable Loan Documents required by
Lender to be filed or recorded, including duly executed and delivered original copies of the
Variable Note or Fixed Note, as applicable, the Guaranty, the Initial Security Instruments covering
the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the
Collateral comprised of personal property, and other appropriate instruments, in form and substance
reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the
opinion of Lender to perfect the Liens created by the applicable Security Instruments and any other
Loan Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other
charges payable in connection with such execution, delivery, recording and filing;
(f) Receipt by Lender of the documents and instruments required by Section 6.12; and
(g) Receipt by Lender of the Initial Origination Fee pursuant to
Section 10.01(a)
and
the Initial Due Diligence Fee pursuant to
Section 10.02(a)
.
Section 6.03. Reserved.
Section 6.04. Reserved
.
Section 6.05.
Conditions Precedent to Release of Property from the Collateral Pool
.
The release of a Mortgaged Property from the Collateral Pool is subject to the satisfaction of
the following conditions precedent on or before the Closing Date:
(a) Receipt by Lender of the fully executed Release Request;
(b) Immediately after giving effect to the requested release, the provisions of Section
3.04(f) are satisfied;
(c) Receipt by Lender of the Release Price;
(d) Receipt by Lender of the Release Fee and all other amounts owing under Section 3.04(c);
Master Credit Facility Agreement
Camden 2009
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(e) Receipt by Lender on the Closing Date of one (1) or more counterparts of each Release
Document, dated as of the Closing Date, signed by each of the parties (other than Lender) who is a
party to such Release Document;
(f) If required by Lender, amendments to this Agreement, the Notes and the Security
Instruments reflecting the release of the Release Mortgaged Property from the Collateral Pool and,
as to any Security Instrument or Note so amended or if Lender determines that such endorsement is
necessary to maintain the priority of the Lien created in favor of Lender with respect to the
Outstanding Indebtedness or to maintain the validity of any Title Insurance Policy, the receipt by
Lender of an endorsement to each Title Insurance Policy insuring the Security Instruments, amending
the effective date of each Title Insurance Policy to the Closing Date and showing no additional
exceptions to coverage other than the exceptions shown on the Initial Closing Date, Permitted Liens
and other exceptions approved by Lender;
(g) If Lender determines the Release Mortgaged Property to be one (1) phase of a project, and
one (1) or more other phases of the project are Mortgaged Properties which will remain in the
Collateral Pool (
Remaining Mortgaged Properties
), Lender must determine that the
Remaining Mortgaged Properties can be operated separately from the Release Mortgaged Property and
any other phases of the project which are not Mortgaged Properties and whether any cross use
agreements or easements are necessary. In making this determination, Lender shall evaluate access,
utilities, marketability, community services, ownership and operation of the Release Properties and
any other issues identified by Lender in connection with similar loans anticipated to be sold to
Fannie Mae;
(h) Receipt by Lender of endorsements to the tie-in endorsements of the Title Insurance
Policies, if deemed necessary by Lender, to reflect the release; and
(i) Receipt by Lender on the Closing Date of a Confirmation of Obligations.
Section 6.06.
Conditions Precedent to Substitutions
.
The obligation of Lender to make a requested Substitution is subject to Lenders determination
that each of the following conditions precedent has been met:
(a) Receipt by Lender of the fully executed Substitution Request;
(b) Receipt by Lender of the Substitution Deposit to the extent necessary under Section 3.07;
(c) Receipt by Lender of the Additional Collateral Due Diligence Fees and Substitution Fee;
(d) Such Substitute Mortgaged Property shall comply with the provisions of Section 3.06(b) of
this Agreement;
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(e) Delivery to the Title Company, with fully executed instructions directing the Title
Company to file and/or record in all applicable jurisdictions, all applicable Loan Documents
reasonably required by Lender to be filed or recorded, including duly executed and delivered
original copies of the Security Instruments covering the Substitute Mortgaged Properties and UCC-1
Financing Statements covering the portion of the Substitute Mortgaged Property comprised of
personal property, and other appropriate instruments, in form and substance reasonably satisfactory
to Lender and in form proper for recordation, as may be necessary in the reasonable opinion of
Lender to perfect the Lien created by the applicable additional Security Instrument, and any other
relevant Loan Document creating a Lien in favor of Lender, and the payment of all taxes, fees and
other charges payable in connection with such execution, delivery, recording and filing;
(f) Receipt by Lender of endorsements to the tie-in endorsements of the Title Insurance
Policies, if deemed necessary by Lender, to reflect the substitution, to the extent a tie-in
endorsement is available with respect to the applicable Title Insurance Policies;
(g) Receipt of all documents required for the addition of the Substitute Mortgaged Property
pursuant to the Underwriting Requirements;
(h) Any proposed Additional Borrower meets and satisfies all of the requirements and
conditions of Section 14.02;
(i) Receipt by Lender on the Closing Date of a Confirmation of Obligations and Confirmation of
Guaranty; and
(j) Amendments to this Agreement, the Notes and the Security Instruments, reflecting the
Substitution and, as to any Security Instrument or Note so amended or if Lender determines that
such endorsement is necessary to maintain the priority of the Lien created in favor of Lender with
respect to the Outstanding Indebtedness or to maintain the validity of any Title Insurance Policy,
the receipt by Lender of an endorsement to each Title Insurance Policy insuring the Security
Instrument, amending the effective date of each Title Insurance Policy to the Closing Date and
showing no additional exceptions to coverage other than the exceptions shown on the Initial Closing
Date, Permitted Liens and other exceptions approved by Lender, together with any reinsurance
agreements required by Lender.
Section 6.07.
Reserved.
Section 6.08.
Conditions Precedent to Conversion
.
The conversion of all or a portion of the Variable Loan to a Fixed Loan is subject to the
satisfaction of the following conditions precedent on or before the Closing Date:
(a) Receipt by Lender of the fully executed Conversion Request;
(b) After giving effect to the requested conversion, the Coverage and LTV Tests will be
satisfied;
Master Credit Facility Agreement
Camden 2009
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(c) If required by Lender, receipt by Lender of an endorsement to each Title Insurance Policy,
amending the effective date of the Title Insurance Policy to the Closing Date and showing no
additional exceptions to coverage other than the exceptions shown on the Initial Closing Date,
Permitted Liens and other exceptions approved by Lender; and
(d) Receipt by Lender of one (1) or more executed, original counterparts of all Conversion
Documents, dated as of the Closing Date, each of which shall be in full force and effect and in
form and substance reasonably satisfactory to Lender in all respects.
Section 6.09.
Reserved.
Section 6.10.
Reserved
.
Section 6.11.
Delivery of Opinion Relating to Substitution Request or Conversion
Request
.
With respect to the closing of a Substitution Request, or a Conversion Request, it shall be a
condition precedent that Lender receives favorable opinions of counsel (including local counsel, as
applicable) to Borrower, as to the due organization and qualification of Borrower, the due
authorization, execution, delivery and enforceability of each Loan Document executed in connection
with the Request and such other matters as Lender may reasonably require, each dated as of the
Closing Date for the Request, in form and substance satisfactory to Lender in all respects.
Section 6.12.
Delivery of Property-Related Documents
.
With respect to each of the Initial Mortgaged Properties or a Substitute Mortgaged Property,
it shall be a condition precedent that Lender receive from Borrower each of the documents and
reports required by Lender pursuant to the Underwriting Requirements in connection with the
addition of such Mortgaged Property to the Collateral Pool and, each of the following, each dated
as of the applicable Closing Date for the Initial Mortgaged Property or a Substitute Mortgaged
Property, as the case may be, in form and substance satisfactory to Lender in all respects:
(a) A commitment for the Title Insurance Policy applicable to the Mortgaged Property and a pro
forma Title Insurance Policy based on the Term Loan amount;
(b) The Insurance Policy (or a certified copy of the Insurance Policy) applicable to the
Mortgaged Property;
(c) The Survey applicable to the Mortgaged Property;
(d) Evidence satisfactory to Lender of compliance of the Mortgaged Property with Applicable
Laws;
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(e) A Replacement Reserve Agreement or an amendment thereto, providing for the establishment
of a replacement reserve account, to be pledged to Lender, in which the owner shall (unless waived
by Lender) periodically deposit amounts for replacements for improvements at the Mortgaged Property
and as additional security for Borrowers obligations under the Loan Documents;
(f) A Completion/Repair and Security Agreement or an amendment thereto, together with required
escrows, on the standard form required by Lender;
(g) An Assignment of Management Agreement or an amendment thereto, on the standard form
required by Lender, if applicable;
(h) An Assignment of Leases and Rents, if Lender determines one to be necessary or desirable,
provided that the provisions of any such assignment shall be substantively identical to those in
the Security Instrument covering the Collateral, with such modifications as may be necessitated by
applicable state or local law;
(i) In relation to each Initial Mortgaged Property, a Security Instrument to effectuate the
addition of such Initial Mortgaged Property to the Collateral Pool, and in relation to each
Substitute Mortgaged Property, a Security Instrument to effectuate the addition of such Substitute
Mortgaged Property to the Collateral Pool, and a Note relating to the Mortgaged Properties. The
amount secured by each Security Instrument shall be equal to the Term Loan;
(j) A Certificate of Borrower Parties;
(k) A Confirmation of Guaranty by each party providing a guaranty to Lender; and
(l) A Contribution Agreement or an amendment thereto.
Section 6.13.
Additional Collateral
.
If Lender determines that, with respect to the substitution of Mortgaged Properties, the
Coverage and LTV Tests are not met when required to be satisfied by the terms of this Agreement,
Borrower shall have the option of either (A) providing to Lender a Letter of Credit which shall
either have a term equal to the Term of this Agreement or shall have a term of at least 364 days
and provide for a drawing 30 days prior to its date of termination in the event it is not renewed;
(B) depositing cash or Cash Equivalents (as defined in Sections (a) through (c) of the definition
of Cash Equivalents) to the Cash Collateral Account; (any of the above constituting
Additional
Collateral
); or (C) to the extent permitted under the Loan Documents, prepaying in part or in
whole the outstanding principal amount of the Notes designated by Lender, in each case in an amount
equal to that amount which Lender determines will cause the Coverage and LTV Tests to be satisfied.
For purposes of making such calculation, Lender shall deduct the amount of cash and Cash
Equivalents (as defined in Sections (a) through (c) of the definition of Cash Equivalents)
deposited to the Cash Collateral Account or the amount available under the Letter of Credit from
the outstanding principal
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balance of all of the Notes (the
Assumed Mortgage Principal Amount
) and (i) calculate the interest component of debt
service based on such Assumed Mortgage Principal Amount and the Cash Interest Rate or MBS
Pass-Through Rate plus the Fixed Facility Fee, as applicable and (ii) calculate the principal
component of debt service by multiplying the actual amount of principal times a fraction with a
numerator equal to the Assumed Mortgage Principal Amount and a denominator equal to the actual
outstanding principal amount of all of the Notes. In the event such Borrower exercises either of
the options set forth in clauses (A) or (B) of this paragraph, Borrower shall execute and deliver a
Cash Collateral Agreement. Lender shall agree at the request of Borrower to exchange one type of
Additional Collateral for another type of Additional Collateral within a reasonable time period,
provided such other type of Additional Collateral is of equivalent value and which meets the
requirements of this Agreement. Notwithstanding any provision hereof to the contrary, except for
any Substitution Deposit delivered in accordance with Section 3.07 (the amount and application of
which shall be determined in accordance with said Section 3.07), (i) the value of any Additional
Collateral delivered pursuant to this Section 6.13 (other than Substitution Deposits) shall not
exceed ten percent (10%) of the aggregate Valuation of all Mortgaged Properties in the Collateral
Pool, and (ii) in the event the Coverage and LTV Tests (without regard to the Additional
Collateral) are not satisfied within one year after delivery of the Additional Collateral, Borrower
shall be required to prepay the amounts Outstanding under the Notes in an amount determined by
Lender to cause the Coverage and LTV Tests to be satisfied, and the Lender may draw on such
Additional Collateral and use the monies to make such prepayment. Any Notes required to be prepaid
pursuant to the preceding sentence shall be selected by the Borrower and, in addition to the
prepayment of the related Notes, Borrower shall pay all associated prepayment premiums and other
amounts due under the Notes being prepaid.
Section 6.14.
Reserved.
Section 6.15.
Letters of Credit.
(a)
Letter of Credit Requirements
. If Borrower provides Lender with a Letter of
Credit pursuant to this Agreement, the Letter of Credit shall be in form and substance satisfactory
to Lender and Lender shall be entitled to draw under such Letter of Credit solely upon presentation
of a sight draft to the LOC Bank. Any Letter of Credit shall be for a term of at least 364 days.
Any Letter of Credit shall be issued by a financial institution satisfactory to Lender and shall
have its long-term debt obligations and its short-term debt obligations rated in accordance with
the requirements of Fannie Mae then in effect.
(b)
Draws Under Letter of Credit
. Lender shall have the right to draw monies under
the Letter of Credit:
(i) upon the occurrence of (A) an Event of Default; or (B) a Potential Event of Default of
which the Borrower has knowledge has occurred and continued for two (2) Business Days;
(ii) if 30 days prior to the expiration of the Letter of Credit, the Letter of Credit has not
been extended for a term of at least 364 days; or
(iii) upon the downgrading of the ratings of the long-term or short-term debt obligations of
the LOC Bank below the requirements of Fannie Mae then in effect.
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20
(c)
Deposit to Cash Collateral Agreement
. If Lender draws under the Letter of Credit
pursuant to Section 6.15(b)(ii) or (iii) above, Lender shall deposit such draw monies into the Cash
Collateral Account. Borrower shall have the right to obtain a release of such draw monies in the
Cash Collateral Account pursuant to the Cash Collateral Agreement if Borrower provides Lender with
a replacement Letter of Credit in accordance with Section 6.15(a) above and in an amount of the
draw monies in the Cash Collateral Account.
(d)
Default Draws
. If Lender draws under the Letter of Credit pursuant to Section
6.15(b)(i) above, Lender shall have the right to use monies drawn under the Letter of Credit for
any of the following purposes:
(i) to pay any amounts required to be paid by Borrower under the Loan Documents (including,
without limitation, any amounts required to be paid to Lender under this Agreement);
(ii) to (on such Borrowers behalf, or on its own behalf if Lender becomes the owner of the
Mortgaged Property) prepay any Note;
(iii) to make improvements or repairs to any Mortgaged Property; or
(iv) to deposit monies into the Cash Collateral Account.
(e)
Legal Opinion
. Prior to or simultaneous with the delivery of any new Letter of
Credit (but not the extension of any existing Letter of Credit), such Borrower shall cause the LOC
Banks counsel to deliver a legal opinion substantially in the form of
Exhibit Q-1
or
Exhibit Q-2
, as applicable, and in any event satisfactory in form and substance to the
Lender.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.01.
Representations and Warranties of Borrower
.
The representations and warranties of Borrower Parties are contained in the Certificate of
Borrower Parties.
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Section 7.02.
Representations and Warranties of Lender
.
Lender hereby represents and warrants to Borrower as follows as of the date hereof:
(a)
Due Organization
. Lender is a corporation duly organized, validly existing and in
good standing under the laws of Ohio.
(b)
Power and Authority
. Lender has the requisite power and authority to execute and
deliver this Agreement and to perform its obligations under this Agreement.
(c)
Due Authorization
. The execution and delivery by Lender of this Agreement, and
the consummation by it of the transactions contemplated thereby, and the performance by it of its
obligations thereunder, have been duly and validly authorized by all necessary action and
proceedings by it or on its behalf.
ARTICLE 8
AFFIRMATIVE COVENANTS OF BORROWER AND GUARANTOR
Borrower agrees and covenants with Lender that, at all times during the Term of this
Agreement:
Section 8.01.
Compliance with Agreements.
(a) Borrower and Guarantor shall comply with all the terms and conditions of each Loan
Document to which it is a party or by which it is bound; provided, however, that Borrowers or
Guarantors failure to comply with such terms and conditions shall not be an Event of Default until
the expiration of the applicable notice and cure periods, if any, specified in the applicable Loan
Document.
(b) Borrower shall comply with all the material terms and conditions of any building permits
or any conditions, easements, rights-of-way or covenants of record, restrictions of record, or any
recorded or, to the extent Borrower has knowledge thereof, unrecorded agreement affecting or
concerning any Mortgaged Property including planned development permits, mitigation plans,
condominium declarations, and reciprocal easement and regulatory agreements with any Governmental
Authority; provided, however, that Borrowers failure to comply with such terms and conditions
shall not be an Event of Default until the expiration of the applicable notice and cure periods, if
any, specified in the applicable document.
Section 8.02.
Maintenance of Existence
.
(a) Each Borrower Party shall maintain its existence and continue to be organized under the
laws of the state of its organization. Borrower shall continue to be duly qualified to do business
in each jurisdiction in which such qualification is necessary to the conduct of its business and
where the failure to be so qualified would adversely affect the validity of, the enforceability of,
or the ability to perform, its obligations under this Agreement or any other Loan Document.
(b) During the Term of this Agreement, Camden shall qualify, and be taxed as, a real estate
investment trust under Subchapter M of the Internal Revenue Code and will not be engaged in any
activities which would reasonably be anticipated to jeopardize such qualification and tax
treatment.
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Section 8.03.
Financial Statements; Accountants Reports; Other Information
.
(a) Each Borrower Party shall keep and maintain at all times at the address set forth in
Section 15.08 of this Agreement, and (at Lenders request after an Event of Default) shall make
available at the Mortgaged Property, complete and accurate books of accounts and records (including
copies of supporting bills and invoices) in sufficient detail to correctly reflect (i) all of
Borrowers and Guarantors financial transactions and assets, and (ii) the results of the operation
of each Mortgaged Property, and copies of all written contracts, Leases and other instruments which
affect each Mortgaged Property (including all bills, invoices and contracts for electrical service,
gas service, water and sewer service, waste management service, telephone service and management
services). The books, records, contracts, Leases and other instruments shall be subject to
examination and inspection at any reasonable time by Lender.
(b) In addition, each Borrower and Guarantor (with respect to clauses (i), (ii), (ix) and (xi)
set forth below) shall furnish, or cause to be furnished, to Lender:
(i)
Annual Financial Statements
. As soon as available, and in any event within one
hundred twenty (120) days after the close of its fiscal year during the Term of this Agreement, the
audited consolidated balance sheet showing all assets and liabilities of Camden, the audited
consolidated statement of operations of Camden and the unaudited consolidated statement of
operations of Borrower for such fiscal year, and the audited consolidated statement of cash flows
of Camden and the unaudited consolidated statement of cash flows of Borrower for such fiscal year,
all in reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the prior fiscal year, prepared in accordance with GAAP
consistently applied and as to Camden, accompanied by an unqualified opinion of Camdens
independent certified public accountants to the effect that such financial statements have been
audited by such accountants, and that such financial statements fairly present the results of
Camdens operations and financial condition for the periods and dates indicated with such opinion
to be free of exceptions and qualifications as to the scope of the audit and as to the going
concern nature of the business;
(ii)
Quarterly Financial Statements
. As soon as available, and in any event within
forty five (45) days after each of the first three fiscal quarters of each fiscal year during the
Term of this Agreement, beginning with the fiscal quarter ending September 30, 2009, the unaudited
consolidated balance sheet showing all assets and liabilities of Camden as of the end of any such
fiscal quarter, the unaudited consolidated statement of operations of Borrower and Camden and the
unaudited consolidated statement of cash flows of Borrower and Camden for the portion of the fiscal
year ended with the last day of such quarter, all prepared in accordance with GAAP and in
reasonable detail and stating in comparative form the respective figures for the corresponding date
and period in the previous fiscal year, accompanied by a certificate of an authorized
representative of Borrower and Camden reasonably acceptable to Lender stating that such financial
statements have been prepared in accordance with GAAP, consistently applied, and fairly present the
results of its operations and financial condition for the periods and dates indicated, subject to
year end adjustments in accordance with GAAP;
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(iii)
Quarterly Property Statements
. As soon as available in electronic format, and
in any event within forty five (45) days after each Calendar Quarter, a statement of income and
expenses of each Mortgaged Property prepared in accordance with GAAP and accompanied by a
certificate of an authorized representative of Borrower reasonably acceptable to Lender to the
effect that each such statement of income and expenses fairly, accurately and completely presents
the operations of each such Mortgaged Property for the period indicated;
(iv)
Annual Property Statements
. As soon as available in electronic format, and in
any event on an annual basis within forty five (45) days after the close of its fiscal year, an
annual statement of income and expenses of each Mortgaged Property accompanied by a certificate of
an authorized representative of Borrower reasonably acceptable to Lender to the effect that each
such statement of income and expenses fairly, accurately and completely presents the operations of
each such Mortgaged Property for the period indicated;
(v)
Monthly Property Statements
. Upon Lenders request and no later than 30 days
after such request, a monthly electronic property management report for each Mortgaged Property,
showing the number of inquiries made and rental applications received from tenants or prospective
tenants and deposits received from tenants and any other information requested by Lender and a
statement of income and expense of each Mortgaged Property for the prior month;
(vi)
Updated Rent Rolls
. Within 120 days after the end of each fiscal year of each
Borrower, and at any other time upon Lenders request, a current Rent Roll for each Mortgaged
Property, showing the name of each tenant, and for each tenant, the space occupied, the lease
expiration date, the rent payable for the current month, the date through which rent has been paid
and any other information requested by Lender and accompanied by a certificate of an authorized
representative of Borrower reasonably acceptable to Lender to the effect that each such Rent Roll
fairly, accurately and completely presents the information required therein;
(vii)
Security Deposit Information
. Within 120 days after the end of each fiscal year
of Borrower, and at any other time upon Lenders request, an accounting of all security deposits
held in connection with any Lease of any part of any Mortgaged Property, including the name and
identification number of the accounts in which such security deposits are held, the name and
address of the financial institutions in which such security deposits are held and the name and
telephone number of the person to contact at such financial institution, along with any authority
or release necessary for Lender to access information regarding such accounts;
(viii)
Accountants Reports; Other Reports
. Promptly upon receipt thereof: (1) copies
of any reports which address material weaknesses or problems or management letters which address
material weaknesses or problems or audit opinions submitted to Borrower by its independent
certified public accountants in connection with the examination of its financial statements made by
such accountants (except for reports otherwise provided pursuant to subsection (a) above);
provided, however, that Borrower shall only be required to deliver such reports and management
letters to the extent that they relate to Borrower or any
Mortgaged Property; and (2) all schedules, financial statements or other similar reports
delivered by Borrower pursuant to the Loan Documents or requested by Lender with respect to
Borrowers business affairs or condition (financial or otherwise) or any of the Mortgaged
Properties;
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(ix)
Ownership Interests
. Within 120 days after the end of each fiscal year of
Borrower and Guarantor, and at any other time upon Lenders request, a statement that identifies
all owners of any direct interest in any Targeted Entity (other than Guarantor) and the interest
held by each, if Borrower is a corporation, all executive officers and directors of Borrower or
Guarantor, and if Borrower is a limited liability company, all managers who are not members;
(x)
Annual Budgets
. Prior to the start of its fiscal year, an annual budget for each
Mortgaged Property for such fiscal year, setting forth an estimate of all of the costs and
expenses, including capital expenses, of maintaining and operating each Mortgaged Property;
(xi)
Federal Tax Returns
. Upon the request of Lender, after an Event of Default, the
Federal tax return of Borrower and Guarantor that was filed with the Internal Revenue Service,
United States Department of Treasury; and
(xii)
Quarterly Litigation Report
. Within forty five (45) days after each Calendar
Quarter or from time to time as Lender may request or as Camden may deem appropriate, Camden shall
provide Lender with a written update, reasonably satisfactory to Lender, with respect to the
pending litigation against Affiliates of Camden, as more particularly described in Section
14.01(a)(vi) of this Agreement.
(c) Each of the statements, schedules and reports required by
Section 8.03
shall be
certified to be complete and accurate in all material respects by an individual having authority to
bind Borrower, and shall be in such form and contain such detail as Lender may reasonably require.
Upon an Event of Default, Lender also may require that any statements, schedules or reports be
audited at Borrowers expense by independent certified public accountants acceptable to Lender.
(d) If Borrower fails to provide in a timely manner the statements, schedules and reports
required by
Section 8.03
, Lender shall have the right to have Borrowers books and records
audited, at Borrowers expense, by independent certified public accountants selected by Lender in
order to obtain such statements, schedules and reports, and all related costs and expenses of
Lender shall become immediately due and payable and shall become an additional part of the
Indebtedness as provided in Section 12 of each Security Instrument.
(e) If an Event of Default has occurred and is continuing, Borrower shall deliver to Lender
upon written demand all books and records, or copies thereof, relating to the Mortgaged Property or
its operation.
(f) Borrower irrevocably authorizes Lender to obtain a credit report on Borrower at any time.
(g) If an Event of Default has occurred and Lender has not previously required Borrower to
furnish a quarterly statement of income and expense for the Mortgaged Property, Lender may require
Borrower to furnish such a statement within forty five (45) days after the end of each fiscal
quarter of Borrower following such Event of Default.
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Section 8.04.
Access to Records; Discussions With Officers and Accountants.
To the extent permitted by law and in addition to the applicable requirements of the Security
Instruments, Borrower shall permit Lender to:
(a) inspect, make copies and abstracts of, and have reviewed or audited, such of Borrowers
books and records as may relate to the Obligations or any Mortgaged Property;
(b) at any time discuss Borrowers affairs, finances and accounts with Borrowers senior
management or property managers and independent public accountants; after an Event of Default,
discuss Borrowers affairs, finances and account with Guarantors officers, partners and employees;
(c) discuss the Mortgaged Properties conditions, operations or maintenance with the managers
of such Mortgaged Properties, the officers and employees of Borrower and/or the Guarantor; and
(d) receive any other information that Lender reasonably deems necessary or relevant in
connection with the Term Loan, any Loan Document or the Obligations from the officers and employees
of such Borrower or third parties.
Notwithstanding the foregoing, prior to an Event of Default or Potential Event of Default and in
the absence of an emergency, all inspections shall be conducted at reasonable times during normal
business hours upon reasonable notice to Borrower.
Section 8.05.
Certificate of Compliance.
Borrower shall deliver to Lender concurrently with the delivery of the financial statements
and/or reports required by
Section 8.03(a)
and
Section 8.03(b)
a certificate signed
by an authorized representative of Borrower reasonably acceptable to Lender (1) setting forth in
reasonable detail the calculations required to establish whether Borrower and Guarantor were in
compliance with the requirements of this
Article 8
of this Agreement on the date of such
financial statements, and (2) stating that, to the best knowledge of such individual following
reasonable inquiry, no Event of Default or Potential Event of Default has occurred, or if an Event
of Default or Potential Event of Default has occurred, specifying the nature thereof in reasonable
detail and the action Borrower is taking or proposes to take. Any certificate required by this
Section shall run directly to and be for the benefit of Lender and Fannie Mae.
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Section 8.06.
Maintain Licenses.
Borrower shall procure and maintain in full force and effect all licenses, Permits, charters
and registrations which are material to the conduct of its business and shall abide by and satisfy
all terms and conditions of all such licenses, Permits, charters and registrations.
Section 8.07.
Inform Lender of Material Events.
Borrower shall promptly inform Lender in writing of any of the following (and shall deliver to
Lender copies of any related written communications, complaints, orders, judgments and other
documents relating to the following) of which an officer of Camden has actual knowledge:
(a)
Defaults
. The occurrence of any Event of Default or any Potential Event of
Default under this Agreement or any other Loan Document or any loan document in connection with a
Supplemental Loan;
(b)
Regulatory Proceedings
. The commencement of any rulemaking or disciplinary
proceeding or the promulgation of any proposed or final rule which would have, or may reasonably be
expected to have, a Material Adverse Effect; the receipt of notice from any Governmental Authority
having jurisdiction over Borrower that (i) Borrower is being placed under regulatory supervision,
(ii) any license, Permit, charter, membership or registration material to the conduct of Borrowers
business or the Mortgaged Properties is to be suspended or revoked or (iii) Borrower is to cease
and desist any practice, procedure or policy employed by Borrower in the conduct of its business,
and such cessation would have, or may reasonably be expected to have, a Material Adverse Effect;
(c)
Bankruptcy Proceedings
. The commencement of any proceedings by or against
Borrower or Guarantor under any applicable bankruptcy, reorganization, liquidation, insolvency or
other similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator,
trustee or other similar official is sought to be appointed for any such party;
(d)
Environmental Claim
. The receipt from any Governmental Authority or other Person
of any notice of violation, claim, demand, abatement, order or other order or direction
(conditional or otherwise) for any damage, including personal injury (including sickness, disease
or death), tangible or intangible property damage, contribution, indemnity, indirect or
consequential damages, damage to the environment, pollution, contamination or other adverse effects
on the environment, removal, cleanup or remedial action or for fines, penalties or restrictions,
resulting from or based upon (i) the existence or occurrence, or the alleged existence or
occurrence, of a Hazardous Substance Activity on any Mortgaged Property in violation of any law or
(ii) the violation, or alleged violation, of any Hazardous Materials Laws in connection with any
Mortgaged Property or any of the other assets of Borrower;
(e)
Material Adverse Effects
. The occurrence of any act, omission, change or event
(including the commencement or written threat of any proceedings by or against Borrower in any
Federal, state or local court, or before any Governmental Authority, or before any
arbitrator), that has, or would have, a Material Adverse Effect, subsequent to the date of the
most recent audited financial statements of Borrower delivered to Lender pursuant to
Section
8.03
;
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(f)
Accounting Changes
. Any material change in Borrowers accounting policies or
financial reporting practices;
(g)
Legal and Regulatory Status
. The occurrence of any act, omission, change or
event, including any Governmental Approval, the result of which is to change or alter in any way
the legal or regulatory status of Borrower; if such act, omission, change or event has or may
reasonably be expected to have, a Material Adverse Effect; and
(h)
Change in Senior Management
. Any change in the identity of Senior Management.
Section 8.08.
Compliance with Applicable Law.
Borrower shall comply in all material respects with all Applicable Laws now or hereafter
affecting any Mortgaged Property or any part of any Mortgaged Property or requiring any
alterations, repairs or improvements to any Mortgaged Property. Borrower shall procure and
continuously maintain in full force and effect, and shall abide by and satisfy all material terms
and conditions of all Permits, and shall comply with all written notices from Governmental
Authorities.
Section 8.09.
Alterations to the Mortgaged Properties.
Except as otherwise provided in the Loan Documents, Borrower shall have the right to undertake
any alteration, improvement, demolition, removal or construction (collectively,
Alterations
) to the Mortgaged Property which it owns without the prior consent of Lender;
provided, however,
that in any case, no such Alteration shall be made to any Mortgaged
Property without the prior written consent of Lender if (i) such Alteration could reasonably be
expected to adversely affect the value of such Mortgaged Property or its operation as a multifamily
housing facility in substantially the same manner in which it is being operated on the date such
property became Collateral, (ii) the construction of such Alteration could reasonably be expected
to result in interference to the occupancy of tenants of such Mortgaged Property such that tenants
in occupancy with respect to five percent (5%) or more of the Leases would be permitted to
terminate their Leases or to abate the payment of all or any portion of their rent, or (iii) such
Alteration will be completed in more than fifteen (15) months from the date of commencement or in
the last year of the Term of this Agreement. Notwithstanding the foregoing, Borrower must obtain
Lenders prior written consent to construct Alterations with respect to the Mortgaged Property
costing in excess of, with respect to any Mortgaged Property, the number of units in such Mortgaged
Property multiplied by $2,000, but in any event, costs in excess of $250,000 and Borrower must give
prior written notice to Lender of its intent to construct Alterations with respect to such
Mortgaged Property costing in excess of $100,000; provided, however, that the preceding
requirements shall not be applicable to Alterations made, conducted or undertaken by Borrower as
part of Borrowers routine maintenance, and repair or replacement of obsolete equipment of the
Mortgaged Properties as required by the Loan Documents. Notwithstanding
anything contained in this paragraph, in the event that the cost of an Alteration is less than
$100,000 for any Mortgaged Property and such Alteration shall take place in the last year of the
Term of this Agreement, the Borrower shall not be required to request the prior written consent of
Lender prior to making such Alteration.
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Section 8.10.
Loan Document Taxes.
If any tax, assessment or Imposition (other than a franchise tax or excise tax imposed on or
measured by, the net income or capital (including branch profits tax) of Lender (or any transferee
or assignee thereof, including a participation holder)) (
Loan Document Taxes
) is levied,
assessed or charged by the United States, or any State in the United States, or any political
subdivision or taxing authority thereof or therein upon any of the Loan Documents or the
obligations secured thereby, the interest of Lender in the Mortgaged Properties, or Lender by
reason of or as holder of the Loan Documents, Borrower shall pay all such Loan Document Taxes to,
for, or on account of Lender (or provide funds to Lender for such payment, as the case may be)
within thirty (30) days after written notice from Lender and shall promptly furnish proof of such
payment to Lender, as applicable. In the event of passage of any law or regulation permitting,
authorizing or requiring such Loan Document Taxes to be levied, assessed or charged, which law or
regulation in the opinion of counsel to Lender may prohibit Borrower from paying the Loan Document
Taxes to or for Lender, Borrower shall enter into such further instruments as may be permitted by
law to obligate Borrower to pay such Loan Document Taxes.
Section 8.11.
Further Assurances.
Borrower, at the request of Lender, shall execute and deliver and, if necessary, file or
record such statements, documents, agreements, UCC financing and continuation statements and such
other instruments and take such further action as Lender from time to time may reasonably request
as reasonably necessary, desirable or proper to carry out more effectively the purposes of this
Agreement or any of the other Loan Documents or to subject the Collateral to the lien and security
interests of the Loan Documents or to evidence, perfect or otherwise implement, to assure the lien
and security interests intended by the terms of the Loan Documents or in order to exercise or
enforce its rights under the Loan Documents. If Lender believes that an all-asset collateral
description, as contemplated by Section 9-504(2) of the UCC, is appropriate as to any Collateral
under any Loan Document, the Lender is irrevocably authorized to use such a collateral description,
whether in one or more separate filings or as part of the collateral description in a filing that
particularly describes the collateral.
Section 8.12.
Transfer of Ownership Interests in Borrower or Guarantor.
(a)
Prohibition on Transfers
. Subject to paragraph (b) of this Section, neither
Borrower nor Guarantor shall cause or permit a Transfer or a Change of Control.
(b)
Permitted Transfers
. Notwithstanding the provisions of paragraph (a) of this
Section, the following Transfers by Borrower or Guarantor (or owners of interests in Guarantor),
upon prior written notice to Lender (however, prior notice will not be required with
respect to the Transfers described in subsections (i), (ii) or (iii) below), are permitted
without the consent of Lender (or the payment of any fee):
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(i) The issuance by Camden of additional stock and the subsequent Transfer of such stock and
the issuance by Camden Summit and Camden OP of additional partnership units and subsequent Transfer
of such units; provided, however, that no Change in Control occurs as the result of such Transfer.
(ii) A merger with or acquisition of another entity by Camden (or, with respect to a merger
solely to reincorporate in another state, by Camden into another entity), provided that (1) Camden
is the surviving entity (other than a merger to reincorporate in another state when the other
entity can be the surviving entity in which case Lender is satisfied that the surviving corporation
in such merger shall succeed to all the rights, properties, assets and liabilities of Camden) after
such merger or acquisition, (2) no Change in Control occurs, and (3) such merger or acquisition
does not result in an Event of Default, as such terms are defined in this Agreement.
(iii) The Transfer of shares of common stock of Camden; provided, however, that no Change in
Control occurs as the result of such Transfer.
(iv) A Transfer of Ownership Interests in CPT-LP, Inc.; provided, however, after such
Transfer, CPT-LP, Inc. shall continue to own at least 51% of the Ownership Interests in Camden OP.
(v) A Transfer of Ownership Interests in Camden Summit; provided, however, after such
Transfer, Camden General Partner shall maintain Control of Camden Summit and shall continue to own
at least 51% of the Ownership Interests in Camden Summit.
(vi) A Transfer of Ownership Interests in Camden OP; provided, however, after such Transfer,
CPT-GP, Inc. shall maintain Control of Camden OP and CPT-LP, Inc. shall continue to own at least
51% of the Ownership Interests in Camden OP.
(vii) A Transfer of Ownership Interests in Camden Legacy Park Member; provided, however, after
such Transfer, Camden OP shall maintain Control of Camden Legacy Park Member and shall continue to
own at least 51% of the Ownership Interests in Camden Legacy Park Member.
(viii) A Transfer of Ownership Interests in Camden CSP Member; provided, however, after such
Transfer, Camden Summit shall maintain Control of Camden CSP Member and shall continue to own at
least 51% of the Ownership Interests in Camden CSP Member.
(ix) A Transfer of Ownership Interests in Camden CUSA Member; provided, however, after such
Transfer, Camden USA shall maintain Control of Camden CUSA Member and shall continue to own at
least 51% of the Ownership Interests in Camden CUSA Member.
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(x) A Transfer of Ownership Interests in Camden CPT Member; provided, however, after such
Transfer, Camden shall maintain Control of Camden CPT Member and shall continue to own at least 51%
of the Ownership Interests in Camden CPT Member.
(xi) A Transfer of any or all, direct or indirect, Ownership Interests in Borrower to any
wholly-owned subsidiary of Camden.
Section 8.13.
Transfer of Ownership of Mortgaged Property.
(a)
Prohibition on Transfers
. Subject to paragraph (b) of this Section, neither
Borrower nor Guarantor shall cause or permit a Transfer of all or any part of a Mortgaged Property
or interest in any Mortgaged Property.
(b)
Permitted Transfers
. Notwithstanding provision (a) of this Section, the following
Transfers of a Mortgaged Property by Borrower or Guarantor, upon prior written notice to Lender
(however, prior notice will not be required with respect to the Transfers permitted pursuant to
subsections (i) and (ii) below), are permitted without the consent of Lender (or the payment of any
fee):
(i) The grant of a leasehold interest in individual dwelling units or commercial spaces in
accordance with the Security Instrument.
(ii) A sale or other disposition of obsolete or worn out personal property which is
contemporaneously replaced by comparable personal property of equal or greater value which is free
and clear of liens, encumbrances and security interests other than those created by the Loan
Documents or Permitted Liens.
(iii) The creation of a mechanics or materialmens lien or judgment lien against a Mortgaged
Property which is released of record or otherwise remedied to Lenders satisfaction within thirty
(30) days of the date of creation.
(iv) The grant of an easement if, prior to the granting of the easement, Borrower or Camden
Summit (with respect to the Mortgaged Property known as Camden Russett) causes to be submitted to
Lender all information required by Lender to evaluate the easement, and if Lender consents to such
easement based upon Lenders determination that the easement will not materially affect the
operation of the Mortgaged Property or Lenders interest in the Mortgaged Property and Borrower or
Camden Summit (with respect to the Mortgaged Property known as Camden Russett) pays to Lender, on
demand, all reasonable third party out-of-pocket costs and expenses incurred by Lender in
connection with reviewing Borrowers or Camden Summits (with respect to the Mortgaged Property
known as Camden Russett) request. Lender shall not unreasonably withhold its consent to or
withhold its agreement to subordinate the lien of a Security Instrument to (i) the grant of a
utility easement serving a Mortgaged Property to a publicly operated utility, or (ii) the grant of
an easement related to expansion or widening of roadways, provided that any such easement is in
form and substance reasonably acceptable to Lender and does not materially and adversely affect the
access, use or marketability of a Mortgaged Property.
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(c)
Assumption of Collateral Pool
. Notwithstanding paragraph (a) of this Section, a
Transfer of the entire Collateral Pool may be permitted with the prior written consent of Lender if
each of the following requirements is satisfied:
(i) the transferee (
New Collateral Pool Borrower
) is a Single Purpose entity, and
executes an assumption agreement that is acceptable to Lender pursuant to which such New Collateral
Pool Borrower assumes all obligations of Borrower and Camden Summit (with respect to the Mortgaged
Property known as Camden Russett) under all the applicable Loan Documents and Supplemental Loan
Documents;
(ii) the applicable Loan Documents and Supplemental Loan Documents shall be amended and
restated as deemed necessary or appropriate by Lender to meet the then-applicable requirements of
Fannie Mae; provided, however, any waivers granted in connection with the Term Loan or Supplemental
Loan will not be reinstated unless specifically approved by Lender and Fannie Mae;
(iii) after giving effect to the assumption, the requirements of Section 6.05 and the General
Conditions contained in Section 6.01 shall be satisfied;
(iv) New Collateral Pool Borrower shall make such deposits to the reserves or escrow funds
established under the Loan Documents and Supplemental Loan Documents, including replacement
reserves, completion/repair reserves, and all other required escrow and reserve funds at such times
and in such amounts as determined by Lender at the time of the assumption;
(v) New Collateral Pool Borrower shall propose a guarantor acceptable to Lender, which
guarantor executes and delivers a guaranty acceptable to Lender provided that the guaranty is
guaranteeing a non-recourse loan with comparable exceptions to non-recourse as set forth in Section
14.01;
(vi) Lender shall be the servicer of the loan; and
(vii) the requirements of Section 8.14 are satisfied.
Section 8.14.
Consent to Prohibited Transfers.
(a)
Consent to Prohibited Transfers
. Lender may, in its sole and absolute discretion,
consent to a Transfer that would otherwise violate
Sections 8.12
and
8.13
if, prior
to the Transfer, Borrower or Guarantor, as the case may be, has satisfied or caused to be satisfied
each of the following requirements:
(i) the submission to Lender of all information required by Lender to make the determination
required by this Section;
(ii) the absence of any Event of Default;
Master Credit Facility Agreement
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(iii) the transferee meets all of the eligibility, credit, management and other standards
(including any standards with respect to previous relationships between Lender and the transferee
and the organization of the transferee) customarily applied by Lender at the time of the proposed
Transfer to the approval of borrowers or guarantors, as the case may be, in connection with the
origination or purchase of similar mortgages, deeds of trust or deeds to secure debt on multifamily
properties;
(iv) in the case of a Transfer of direct or indirect ownership interests in Borrower or
Guarantor, as the case may be, if transferor or any other person has obligations under any Loan
Documents, the execution by the transferee of one (1) or more individuals or entities acceptable to
Lender and/or Fannie Mae of an assumption agreement that is acceptable to Lender and that, among
other things, requires the transferee to perform all obligations of transferor or such person set
forth in such Loan Document, and may require that the transferee comply with any provisions of this
Instrument or any other Loan Document which previously may have been waived by Lender and/or Fannie
Mae;
(v) Lenders receipt of all of the following:
(1) a transfer fee equal to one (1) percent of the unpaid Outstanding principal balance of the
Term Loan.
(2) In addition, Borrower shall be required to reimburse Lender for all of Lenders reasonable
out-of-pocket costs (including reasonable attorneys fees) incurred in reviewing the Transfer
request;
(vi) the Transfer will not result in a significant modification under Section 1001 of the
Internal Revenue Code of any Fixed Loan or any Variable Loan that has been securitized in a
mortgage-backed security.
Section 8.15.
Date-Down Endorsements.
Before the release or substitution of a Mortgaged Property and at any time and from time to
time that Lender has reason to believe that an additional lien may encumber a Mortgaged Property,
Lender may obtain an endorsement to each Title Insurance Policy containing a revolving credit
endorsement, amending the effective date of each such Title Insurance Policy to the date of the
title search performed in connection with the endorsement. Borrower shall pay for the cost and
expenses incurred by Lender to the Title Company in obtaining such endorsement, provided that, for
each Title Insurance Policy, it shall not be liable to pay for more than one (1) such endorsement
in any consecutive twelve (12) month period.
Section 8.16.
Ownership of Mortgaged Properties.
Borrower shall be the sole owner of each of the Mortgaged Properties free and clear of any
Liens other than Permitted Liens.
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Section 8.17.
Compliance with Net Worth Test.
Camden shall at all times maintain its Net Worth so that it is not less than: $325,000,000.
Section 8.18.
Compliance with Liquidity Test.
Camden shall at all times maintain cash and Cash Equivalents of not less than $20,000,000.
Section 8.19.
Change in Property Manager.
Borrower shall give Lender notice of any change in the identity of the property manager of
each Mortgaged Property, and except with respect to property managers which are Affiliates of the
applicable Borrower, no such change shall be made without the prior consent of Lender.
Any management agreement must be in form and substance satisfactory to Lender. Borrower
agrees to enter into and cause any property manager to enter into an assignment and subordination
of property management agreement in form and substance satisfactory to Lender and any other
documents or agreements Lender shall deem necessary in connection with the execution of any
property management agreement.
Section 8.20.
Single Purpose Entity
.
Borrower and each general partner or managing member of Borrower shall maintain itself as a
Single Purpose entity, provided, however, that (i) Borrower may own more than one Mortgaged
Property, each of which is part of the Collateral Pool and (ii) Borrower and each general partner
or managing member may commingle its funds with Camden provided that such funds are separately
identified and accounted for.
Section 8.21.
ERISA.
Borrower shall at all times remain in compliance in all material respects with all applicable
provisions of ERISA, if any, and shall not incur any liability to the PBGC on a Plan under Title IV
of ERISA. Neither the Borrower, nor any member of the Controlled Group is or ever has been
obligated to contribute to any Multiemployer Plan. The assets of the Borrower do not constitute
plan assets within the meaning of Department of Labor Regulation §2510.3-101 of any employee
benefit plan subject to Title I of ERISA.
Section 8.22.
Consents or Approvals.
Borrower shall obtain any required consent or approval of any creditor of Borrower, any
Governmental Authority or any other Person to perform its obligations under this Agreement and any
other Loan Documents.
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Section 8.23.
Post-Closing Obligations
.
Borrower shall use commercially reasonable efforts to deliver to Lender, at Borrowers sole
cost and expense, no later than thirty (30) days from the Initial Closing Date (Estoppel and SNDA
Delivery Date) the estoppel certificates and subordination, non-disturbance and attornment
agreements as described below in form and substance satisfactory to Lender, provided, however, on a
rolling thirty (30) day basis, Borrower shall have the right to extend the Estoppel and SNDA
Delivery Date for an additional thirty (30) days if Borrower furnishes proof satisfactory to Lender
that it is diligently pursuing and undertaking all commercially reasonable efforts to obtain an
estoppel certificate and a subordination, non-disturbance and attornment agreement as described
below. Borrower shall pay, or reimburse Lender for, all reasonable out-of-pocket third party legal
fees and expenses incurred by Lender and by Fannie Mae in respect of the review and/or negotiation
of such estoppel certificates and subordination, non-disturbance and attornment agreements.
(a) Tenant Estoppel Certificate from Moto Enterprises, Inc. for a sit-in and take-out coffee
and tea house located on the property commonly known as Camden Harbor View.
(b) Tenant Estoppel Certificate from Frank Buono for a family-style Italian restaurant located
on the property commonly known as Camden Harbor View.
(c) Tenant Estoppel Certificate from Design X Manufacturing, Inc. for the operation of a salon
furniture showroom and design center located on the property commonly known as Camden Harbor View.
(d) Tenant Estoppel Certificate from Healthcare Partners Medical Group for general medical
office use located on the property commonly known as Camden Harbor View.
(e) Tenant Estoppel Certificate from Moshers Gourmet, Inc. for a sit-in and take-out
delicatessen-style restaurant located on the property commonly known as Camden Harbor View.
(f) Tenant Estoppel Certificate from Andrew M. Kripp for an upscale hair salon located on the
property commonly known as Camden Harbor View.
(g) Tenant Estoppel Certificate from Stuart Smith and Lisa Smith for an upscale wine bar
located on the property commonly known as Camden Harbor View.
(h) Tenant Estoppel Certificate from Yoga World Studio, Inc. for the operation of a yoga
studio located on the property commonly known as Camden Harbor View.
(i) Subordination, Non-Disturbance and Attornment Agreement by and between Camden USA, Inc.
and Moto Enterprises, Inc. for a sit-in and take-out coffee and tea house located on the property
commonly know as Camden Harbor View. Borrower shall, at Borrowers sole cost and expense, make
immediate arrangements for delivery to the Title
Company with fully executed instructions directing the Title Company to file and/or record
such Subordination, Non-Disturbance and Attornment Agreement in the recorders office in the County
of Los Angeles, State of California.
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(j) Subordination, Non-Disturbance and Attornment Agreement by and between Camden USA, Inc.
and Frank Buono for a family-style Italian restaurant located on the property commonly know as
Camden Harbor View. Borrower shall, at Borrowers sole cost and expense, make immediate
arrangements for delivery to the Title Company with fully executed instructions directing the Title
Company to file and/or record such Subordination, Non-Disturbance and Attornment Agreement in the
recorders office in the County of Los Angeles, State of California.
(k) Subordination, Non-Disturbance and Attornment Agreement by and between Camden USA, Inc.
and Design X Manufacturing, Inc. for the operation of a salon furniture showroom and design center
located on the property commonly know as Camden Harbor View. Borrower shall, at Borrowers sole
cost and expense, make immediate arrangements for delivery to the Title Company with fully executed
instructions directing the Title Company to file and/or record such Subordination, Non-Disturbance
and Attornment Agreement in the recorders office in the County of Los Angeles, State of
California.
(l) Subordination, Non-Disturbance and Attornment Agreement by and between Camden USA, Inc.
and Healthcare Partners Medical Group for general medical office use located on the property
commonly know as Camden Harbor View. Borrower shall, at Borrowers sole cost and expense, make
immediate arrangements for delivery to the Title Company with fully executed instructions directing
the Title Company to file and/or record such Subordination, Non-Disturbance and Attornment
Agreement in the recorders office in the County of Los Angeles, State of California.
(m) Subordination, Non-Disturbance and Attornment Agreement by and between Camden USA, Inc.
and Moshers Gourmet, Inc. for a sit-in and take-out delicatessen-style restaurant located on the
property commonly know as Camden Harbor View. Borrower shall, at Borrowers sole cost and expense,
make immediate arrangements for delivery to the Title Company with fully executed instructions
directing the Title Company to file and/or record such Subordination, Non-Disturbance and
Attornment Agreement in the recorders office in the County of Los Angeles, State of California.
(n) Subordination, Non-Disturbance and Attornment Agreement by and between Camden USA, Inc.
and Andrew M. Kripp for an upscale hair salon located on the property commonly know as Camden
Harbor View. Borrower shall, at Borrowers sole cost and expense, make immediate arrangements for
delivery to the Title Company with fully executed instructions directing the Title Company to file
and/or record such Subordination, Non-Disturbance and Attornment Agreement in the recorders office
in the County of Los Angeles, State of California.
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(o) Subordination, Non-Disturbance and Attornment Agreement by and between Camden USA, Inc.
and Stuart Smith and Lisa Smith for an upscale wine bar located on
the property commonly know as Camden Harbor View. Borrower shall, at Borrowers sole cost and
expense, make immediate arrangements for delivery to the Title Company with fully executed
instructions directing the Title Company to file and/or record such Subordination, Non-Disturbance
and Attornment Agreement in the recorders office in the County of Los Angeles, State of
California.
(p) Subordination, Non-Disturbance and Attornment Agreement by and between Camden USA, Inc.
and Yoga World Studio, Inc. for the operation of a yoga studio located on the property commonly
know as Camden Harbor View. Borrower shall, at Borrowers sole cost and expense, make immediate
arrangements for delivery to the Title Company with fully executed instructions directing the Title
Company to file and/or record such Subordination, Non-Disturbance and Attornment Agreement in the
recorders office in the County of Los Angeles, State of California.
ARTICLE 9
NEGATIVE COVENANTS OF BORROWER
Borrower and Guarantor, as applicable, agree and covenant with Lender that, at all times
during the Term of this Agreement:
Section 9.01.
Other Activities.
(a) No Targeted Entity other than Camden shall amend its Organizational Documents in any
material respect, including without limitation the allocation of decision-making rights among the
members or partners, without the prior written consent of Lender;
(b) No Targeted Entity shall dissolve or liquidate in whole or substantially liquidate;
(c) No Targeted Entity shall, except as otherwise provided in this Agreement, without the
prior written consent of Lender, merge or consolidate with any Person; or
(d) Borrower shall not use, or permit to be used, any Mortgaged Property for any uses or
purposes other than as a Multifamily Residential Property and ancillary uses consistent with
Multifamily Residential Properties.
Section 9.02.
Liens.
Borrower shall not create, incur, assume or suffer to exist any Lien on Borrowers interest in
any Mortgaged Property or any part of any Mortgaged Property, except the Permitted Liens.
Section 9.03.
Indebtedness.
Borrower shall not incur or be obligated at any time with respect to any Indebtedness (other
than the Term Loan) in connection with any of the Mortgaged Properties. Neither
Borrower nor any owner of Borrower shall incur any mezzanine debt, issue any preferred
equity or incur any similar Indebtedness or equity with respect to any Mortgaged Property.
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Section 9.04.
Principal Place of Business.
Borrower shall not change its principal place of business, state of formation, legal name or
the location of its books and records, each as set forth in the Certificate of Borrower Parties,
without first giving thirty (30) days prior written notice to Lender.
Section 9.05.
Condominiums.
Borrower shall not submit any Mortgaged Property to a condominium regime during the Term of
this Agreement.
Section 9.06.
Restrictions on Distributions.
Borrower shall not make any distributions of any nature or kind whatsoever to the owners of
its Ownership Interests as such if, at the time of such distribution, a Potential Event of Default
that may reasonably be expected to result in a Material Adverse Effect or an Event of Default has
occurred and remains uncured.
Section 9.07.
No Hedging Arrangements.
Without the prior written consent of Lender, or unless otherwise required by the Pledge,
Interest Rate Cap Agreement, Borrower will not enter into or guarantee, provide security for or
otherwise undertake any form of contingent obligation with respect to any Hedging Arrangement.
Section 9.08.
Confidentiality of Certain Information.
Borrower Parties shall not disclose any terms, conditions, underwriting requirements or
underwriting procedures of this Agreement or any of the Loan Documents; provided, however, that
such confidential information may be disclosed (A) as required by law or pursuant to generally
accepted accounting procedures, (B) to officers, directors, employees, agents, partners, attorneys,
accountants, engineers and other consultants of Borrower Parties who need to know such information,
provided such Persons are instructed to treat such information confidentially, (C) to any
regulatory authority having jurisdiction over a Borrower Party, (D) in connection with any filings
with the Securities and Exchange Commission or other Governmental Authorities, or (E) to any other
Person to which such delivery or disclosure may be necessary or appropriate (1) in compliance with
any law, rule, regulation or order applicable to a Borrower Party, or (2) in response to any
subpoena or other legal process or information investigative demand. Borrower permits Lender to
disclose all financial and other information received from or on behalf of Borrower to Fannie Mae
in connection with the assignment of the Term Loan. Borrower may freely disclose any information
that Borrower has previously disclosed in connection with any
filings with the Securities and Exchange Commission or other Governmental Authorities, that is
generally available to the public.
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ARTICLE 10
FEES
Section 10.01.
Origination Fees.
(a)
Initial Origination Fee
. Borrower shall pay to Lender on the Initial Closing Date
an origination fee (
Initial Origination Fee
) equal to [
*
].
(b)
Reserved
.
Section 10.02.
Due Diligence Fees.
(a)
Initial Due Diligence Fees
. Borrower shall pay to Lender non-refundable due
diligence fees (
Initial Due Diligence Fees
) with respect to each Initial Mortgaged
Property in an amount equal to $5,000 per Initial Mortgaged Property. All Initial Due Diligence
Fees shall have been paid prior to the Initial Closing Date and all third party costs and
out-of-pocket fees and expenses incurred by Lender and Fannie Mae shall be paid by Borrower on the
Initial Closing Date (or, if the proposed Initial Mortgaged Properties do not become part of the
Collateral Pool, on demand).
(b)
Additional Due Diligence Fees for Additional Collateral
. Borrower shall pay to
Lender non-refundable additional due diligence fees (the
Additional Collateral Due Diligence
Fees
) with respect to each proposed Substitute Mortgaged Property, in an amount equal to
$5,000 per Substitute Mortgaged Property, which represents the estimated cost for due diligence
expenses. All Additional Collateral Due Diligence Fees, third party costs and out-of-pocket fees
and expenses incurred by Lender and Fannie Mae shall be paid by Borrower on the applicable Closing
Date (or if the relevant proposed Substitute Mortgaged Property does not become part of a
Collateral Pool, on demand) for the Substitute Mortgaged Property.
Section 10.03.
Legal Fees and Expenses.
(a)
Initial Legal Fees
. Borrower shall pay, or reimburse Lender for, all
out-of-pocket third party legal fees and expenses incurred by Lender and by Fannie Mae in
connection with the preparation, review and negotiation of this Agreement and any other Loan
Documents executed on the date of this Agreement.
|
|
|
*
|
|
Indicates material that has been omitted and for which
confidential treatment has been requested. All such omitted material has been
filed with the Securities and Exchange Commission pursuant to Rule 406
promulgated under the Securities Act of 1933, as amended.
|
Master Credit Facility Agreement
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(b)
Fees and Expenses Associated with Requests
. Borrower shall pay, or reimburse
Lender for, all reasonable out-of-pocket third party costs and expenses incurred by
Lender, including the out-of-pocket legal fees and expenses incurred by Lender in connection
with the preparation, review and negotiation of all documents, instruments and certificates to be
executed and delivered in connection with each Request, the performance by Lender of any of its
obligations with respect to the Request, the satisfaction of all conditions precedent to Borrowers
rights or Lenders obligations with respect to the Request, and all transactions related to any of
the foregoing, including the cost of title insurance premiums and applicable recordation and
transfer taxes and charges and all other reasonable costs and expenses in connection with a
Request. The obligations of Borrower under this subsection shall be absolute and unconditional,
regardless of whether the transaction requested in the Request actually occurs. Borrower shall pay
such costs and expenses to Lender on the Closing Date for the Request, or, as the case may be,
after demand by Lender when Lender determines that such Request will not close.
Section 10.04.
Failure to Close any Request.
If Borrower makes a Request and fails to close on the Request for any reason other than the
default by Lender, then Borrower shall pay to Lender and Fannie Mae all damages incurred by Lender
and Fannie Mae in connection with the failure to close.
ARTICLE 11
EVENTS OF DEFAULT
Section 11.01.
Events of Default.
Each of the following events shall constitute an
Event of Default
under this
Agreement, whatever the reason for such event and whether it shall be voluntary or involuntary, or
within or without the control of Borrower or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any Governmental Authority:
(a) the occurrence of a default under any Loan Document beyond the cure period, if any, set
forth therein or an Event of Default under and as defined in any Loan Document; or
(b) the failure by Borrower to pay when due any amount payable by Borrower, beyond any
applicable cure period, under any Note, any Security Instrument, this Agreement or any other Loan
Document, including any fees, costs or expenses, provided that any payment relating to any fee,
cost or expense that is not a scheduled payment must be paid (if not otherwise specified in the
applicable Loan Document) within ten (10) days of written notice by Lender; or
(c) the failure by Borrower to perform or observe any covenant contained in
Sections
8.02
,
8.07
,
8.12
,
8.13
,
8.14
,
8.16
,
8.17
,
8.18
,
8.20
and
Article 9
; or
(d) any warranty, representation or other written statement made by or on behalf of any
Targeted Entity contained in this Agreement, any other Loan Document or in any
instrument furnished in compliance with or in reference to any of the foregoing, is false or
misleading in any material respect on any date when made or deemed made; or
Master Credit Facility Agreement
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(e) (i) any Targeted Entity shall (A) commence a voluntary case (or, if applicable, or joint
case) under any Chapter of the Bankruptcy Code (as now or hereafter in effect) or otherwise, (B)
file a petition seeking to take advantage of any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, debt adjustment, winding up or composition or adjustment of
debts, (C) consent to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (D) apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial
part of its property, domestic or foreign, (E) admit in writing its inability to pay, or generally
not be paying, its debts as they become due, (F) make a general assignment for the benefit of
creditors, (G) assert that any Borrower or Guarantor (solely with respect to the Guaranty), has no
liability or obligations under this Agreement or any other Loan Document to which it is a party; or
(H) take any action for the purpose of effecting any of the foregoing; or
(ii) a case or other proceeding shall be commenced against any Targeted Entity in any court of
competent jurisdiction seeking (A) relief under the Federal bankruptcy laws (as now or hereafter in
effect) or under any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding upon or composition or adjustment of debts, or (B) the appointment of a
trustee, receiver, custodian, liquidator or the like of any Targeted Entity or of all or a
substantial part of the property, domestic or foreign, of any Targeted Entity and any such case or
proceeding shall continue undismissed or unstayed for a period of sixty (60) consecutive calendar
days, or any order granting the relief requested in any such case or proceeding against any
Targeted Entity (including an order for relief under such Federal bankruptcy laws) shall be
entered; or
(iii) any Targeted Entity files an involuntary petition against Borrower under any Chapter of
the Bankruptcy Code or under any other bankruptcy, insolvency, reorganization, arrangement or
readjustment of debt, dissolution, liquidation or similar proceeding relating to Borrower under the
laws of any jurisdiction; or
(f) both (i) an involuntary petition under any Chapter of the Bankruptcy Code is filed against
Borrower or Borrower directly or indirectly becomes the subject of any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding
relating to it under the laws of any jurisdiction, or in equity, and (ii) any Targeted Entity has
acted in concert or conspired with such creditors of Borrower (other than Lender) to cause the
filing thereof; or
(g) if any provision of this Agreement or any other Loan Document or the lien and security
interest purported to be created hereunder or under any Loan Document shall at any time for any
reason cease to be valid and binding in accordance with its terms on Borrower or Guarantor, or
shall be declared to be null and void, or the validity or enforceability hereof or thereof or the
validity or priority of the lien and security interest created hereunder or under any
other Loan Document shall be contested by any Targeted Entity seeking to establish the
invalidity or unenforceability hereof or thereof, or Borrower or Guarantor (only with respect to
the Guaranty) shall deny that it has any further liability or obligation hereunder or thereunder;
or
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(h) the execution by Borrower of a chattel mortgage or other security agreement on any
materials, fixtures or articles used in the construction or operation of the improvements located
on any Mortgaged Property or on articles of personal property located therein (other than in
connection with any Permitted Liens), or (i) if any such materials, fixtures or articles are
purchased pursuant to any conditional sales contract or other security agreement or otherwise so
that the Ownership thereof will not vest unconditionally in Borrower free from encumbrances, or
(ii) if Borrower does not furnish to Lender upon request the contracts, bills of sale, statements,
receipted vouchers and agreements, or any of them, under which Borrower claim title to such
materials, fixtures, or articles; or
(i) the failure by Borrower to comply with any requirement of any Governmental Authority by
the time required by the Governmental Authority; or
(j) a dissolution or liquidation for any reason (whether voluntary or involuntary) of any
Targeted Entity; or
(k) any judgment against Borrower, any attachment or other levy against any portion of
Borrowers assets with respect to a claim or claims in an amount in excess of $250,000 in the
aggregate remains unpaid, unstayed on appeal undischarged, unbonded, not fully insured or
undismissed for a period of ninety (90) days; or
(l) any judgment against Camden, any attachment or other levy against any portion of Camdens
assets with respect to a claim or claims in an amount in excess of $2,500,000 in the aggregate
remains unpaid, unstayed on appeal, undischarged, unbonded, not fully insured or undismissed for a
period of ninety (90) days; or
(m) the occurrence of a default under any Supplemental Loan beyond the cure period, if any,
set forth therein or an event of default under and as defined in any Supplemental Loan Document; or
(n) the failure by Borrower or Guarantor to perform or observe any material term, covenant,
condition or agreement hereunder, other than as contained in subsections (a) through (m) above,
within thirty (30) days after receipt of notice from Lender identifying such failure, provided such
period shall be extended for up to sixty (60) additional days if Borrower, in the discretion of
Lender, is diligently pursuing a cure of such default within sixty (60) days after receipt of
notice from Lender.
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ARTICLE 12
REMEDIES
Section 12.01.
Remedies; Waivers.
Upon the occurrence of an Event of Default, Lender may do any one or more of the following
(without presentment, protest or notice of protest, all of which are expressly waived by Borrower
Party):
(a) by written notice to Borrower, to be effective upon dispatch, declare the principal of,
and interest on, the Term Loan and all other sums owing by Borrower to Lender under any of the Loan
Documents forthwith due and payable, whereupon the principal of, and interest on, the Term Loan and
all other sums owing by Borrower to Lender under any of the Loan Documents will become forthwith
due and payable.
(b) Lender shall have the right to pursue any other remedies available to it under any of the
Loan Documents.
(c) Lender shall have the right to pursue all remedies available to it at law or in equity,
including obtaining specific performance and injunctive relief.
Section 12.02.
Waivers; Rescission of Declaration.
Lender shall have the right, to be exercised in its complete discretion, to waive any breach
hereunder (including the occurrence of an Event of Default), by a writing setting forth the terms,
conditions, and extent of such waiver signed by Lender and delivered to Borrower. Unless such
writing expressly provides to the contrary, any waiver so granted shall extend only to the specific
event or occurrence which gave rise to the waiver and not to any other similar event or occurrence
which occurs subsequent to the date of such waiver. This provision shall not be construed to
permit the waiver of any condition to a Request otherwise provided for herein.
Section 12.03.
Lenders Right to Protect Collateral and Perform Covenants and Other
Obligations.
If Borrower or Guarantor fails to perform the covenants and agreements contained in this
Agreement or any of the other Loan Documents, then Lender at Lenders option may make such
appearances, disburse such sums and take such action as Lender deems necessary, in its sole
discretion, to protect Lenders interest, including (i) disbursement of reasonable attorneys fees,
(ii) entry upon the Mortgaged Property to make repairs and replacements, (iii) procurement of
satisfactory insurance as provided in Section 5 of the Security Instrument encumbering the
Mortgaged Property, and (iv) if the Security Instrument is on a leasehold, exercise of any option
to renew or extend the ground lease on behalf of Borrower and the curing of any default of Borrower
in the terms and conditions of the ground lease. Any amounts disbursed by Lender pursuant to this
Section, with interest thereon, shall become additional indebtedness of Borrower secured by the
Loan Documents. Unless Borrower and Lender agree to other terms of payment, such amounts shall be
immediately due and payable and shall bear interest from the date of
disbursement at the weighted average, as determined by Lender, of the interest rates in effect
from time to time for the Term Loan unless collection from Borrower of interest at such rate would
be contrary to Applicable Law, in which event such amounts shall bear interest at the highest rate
which may be collected from Borrower under Applicable Law. Nothing contained in this Section shall
require Lender to incur any expense or take any action hereunder.
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Section 12.04.
No Remedy Exclusive.
Unless otherwise expressly provided, no remedy herein conferred upon or reserved is intended
to be exclusive of any other available remedy, but each remedy shall be cumulative and shall be in
addition to other remedies given under the Loan Documents or existing at law or in equity.
Section 12.05.
No Waiver.
No delay or omission to exercise any right or power accruing under any Loan Document upon the
happening of any Event of Default or Potential Event of Default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient.
Section 12.06.
No Notice.
To entitle Lender to exercise any remedy reserved to Lender in this Article, it shall not be
necessary to give any notice, other than such notice as may be required under the applicable
provisions of this Agreement or any of the other Loan Documents.
ARTICLE 13
INSURANCE, REAL ESTATE TAXES AND REPLACEMENT RESERVES
Section 13.01.
Insurance and Real Estate Taxes.
(a) Insurance and Tax Escrow; Waiver. Borrower shall establish funds for taxes, insurance
premiums and certain other charges for each Mortgaged Property in accordance with Section 7(a) of
the Security Instrument for each Mortgaged Property. Notwithstanding the foregoing, so long as no
Event of Default or Potential Event of Default has occurred, and with respect to the waiver of tax
escrows only, so long as Camden has its long-term debt obligations rated at least BBB by S&P or
Baa2 by Moodys, Lender hereby waives the obligations of Borrower under Section 7(a) of each
Security Instrument with respect to the escrow of premiums for insurance and taxes (the
Required Escrow Payments
). During any period in which the obligation to pay the Required
Escrow Payments has been waived pursuant to this
Section 13.01
, each Borrower shall: (i)
pay taxes, (ii) pay insurance premiums with respect to the insurance policy meeting the
requirements of the Security Instrument for each Mortgaged Property, (iii) not later than fifteen
(15) days prior to the expiration date of such policy send Lender copies of binding quotes received
by Camden which set forth the gross pre-tax premiums for new or renewal insurance
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policies, complete information
on who is providing the insurance and to whom the premiums are due, evidence of Camdens
acceptance of such quotes or renewals, certified copies of evidence of insurance effective on or
prior to the expiration date of the old existing policy, (iv) not later than thirty five (35) days
after the then-current expiration date of the insurance policy, send Lender paid receipts or other
documentation satisfactory to Lender evidencing that the premiums for such new or renewal insurance
policies have been paid, (v) send Lender invoices and paid receipts, or other documentation
satisfactory to Lender, evidencing payment of such taxes on the date such taxes are due and
payable, (vi) provide to Lender written proof at least fifteen (15) days prior to the then-current
expiration date of the insurance policy, certified by the insurance provider, that such policy has
been extended for a period of at least one (1) year, and (vii) include all payments of insurance
premiums and taxes in its monthly and annual property income and expense data. In the event that
the rating of the long-term debt obligations of Camden falls below BBB by S&P and below Baa2 by
Moodys, Borrower shall notify Lender of such downgrade within two (2) business days and Borrower
shall have fifteen (15) days to deliver a Letter of Credit to Lender as set forth in
Section
13.04
or deposit funds with Lender, in accordance with this Agreement and the Security
Instruments, for tax escrows.
(b)
Revocation of Waiver
. Lenders waiver of the Required Escrow Payments shall, at
the option of Lender, be revoked upon the occurrence of any of the following events:
(i) the occurrence of an Event of Default or a Potential Event of Default; or
(ii) any Borrower shall fail to perform its obligations under
Section 13.01(a)
.
(iii) failure by any Borrower to (A) participate in a blanket insurance policy that complies
with Fannie Maes insurance requirements and (B) annually furnish signed insurance binders to
Lender within fifteen (15) days prior to the insurance renewal date.
(c) Upon Lenders revocation of its waiver of the Required Escrow Payments, Borrowers
obligations under Section 7(a) of each of the Security Instruments shall immediately be reinstated.
Section 13.02.
Replacement Reserves.
Borrower shall execute a Replacement Reserve Agreement for the Mortgaged Properties and shall
(unless waived by Lender) make all deposits for replacement reserves in accordance with the terms
of the Replacement Reserve Agreement.
Section 13.03.
Completion/Repair Reserves.
Borrower shall execute a Completion/Repair and Security Agreement for the Mortgaged Properties
and shall (unless waived by Lender) make all deposits for reserves in accordance with the terms of
the Completion/Repair and Security Agreement.
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Section 13.04.
Tax Escrows Letter of Credit.
(a) In the event that Borrower shall be required to make monthly escrow payments for taxes,
Borrower may, upon written notice to Lender, elect to provide in lieu of the required deposits for
taxes a Letter of Credit in accordance with this subsection and pursuant to Section 6.15 of this
Agreement. Any Letter of Credit delivered to Fannie Mae in accordance with this subsection shall
be a clean, irrevocable Letter of Credit, naming Fannie Mae as beneficiary, in the amount equal to
the highest aggregate amount of any tax balance for the Mortgaged Property on an annual basis,
which amount shall be determined in Fannie Maes sole discretion (the
Maximum Escrow
Amount
).
(b)
Administrative Fee
. For so long as Lender or Fannie Mae is holding the Letter of
Credit in accordance with this Section 13.04, Borrower shall pay Lender a nonrefundable annual
administrative fee in an amount equal to $500 per Mortgaged Property for which a Letter of Credit
has been delivered to Fannie Mae in lieu of making monthly escrow payments for taxes (the
LOC
Fee
). Such LOC Fee shall be paid by Borrower in advance of the effective date of the Letter of
Credit and shall not be prorated if the Letter of Credit is returned prior to time period set forth
in Section 13.04(d)(2) hereof.
(c)
Letter of Credit as Additional Collateral
. Borrower agrees that the Letter of
Credit provides collateral for each Note and all Obligations in addition to the lien of each
Security Instrument.
(d)
Conditions for Providing and Holding Letter of Credit.
(1)
Period During Which Borrower Must Provide Letter of Credit
. Until the earliest of
(i) payment in full of all Obligations and sums secured by each Security Instrument, or (ii) the
date that Fannie Mae fully draws on the Letter of Credit as permitted by this Agreement, Borrower
shall renew, amend or replace the Letter of Credit in accordance with the terms of this Agreement
to ensure that the Letter of Credit remains in effect and does not expire or shall provide cash to
Fannie Mae in the amount of tax escrow deposits which would have been required at the time if
Borrower had not elected to furnish the Letter of Credit at least fifteen (15) days prior to the
date the Letter of Credit terminates.
(2)
Return of the Letter of Credit or the Proceeds Thereof
. Fannie Mae shall return
the Letter of Credit, or the proceeds of any draws on such Letter of Credit (less all amounts which
have been applied by Fannie Mae pursuant to the terms of this Section) to Borrower within five (5)
business days after the date on which Fannie Mae releases the lien of all of the Security
Instruments.
(3)
Adjustment of the Letter of Credit
. Borrower shall deliver to Fannie Mae copies
of the paid bills and notices of assessments for Taxes for each Mortgaged Property within thirty
(30) days after the date on which the Taxes are due and payable. Not more than one time each
calendar year, Borrower shall, promptly after receipt of notice from Fannie Mae, deliver to Fannie
Mae an amendment or replacement of the Letter of Credit in the
Maximum Escrow Amount for the then-current calendar year, as such yearly amount is reasonably
determined by Fannie Mae pursuant to this Agreement.
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(e)
Renewal or Replacement of Letter of Credit
.
(1)
Renewal or Replacement
. At least fifteen (15) days prior to the expiration date
of the Letter of Credit, Borrower shall either (i) cause the Letter of Credit to be amended to
extend its expiration date, (ii) furnish a replacement Letter of Credit or (iii) provide cash to
Fannie Mae in the amount of tax escrow deposits which would have been required at the time if
Borrower had not elected to furnish the Letter of Credit.
(2)
Draw on Letter of Credit
. If Borrower does not provide an amendment to, or
replacement of, the Letter of Credit when required pursuant to paragraph (1) above or provide the
amount of cash referenced in paragraph (1) above or the long-term obligations of the LOC Bank are
downgraded as set forth in Section 6.15(b)(iii) of this Agreement, Fannie Mae shall draw the full
amount of the Letter of Credit and hold the funds in escrow pursuant to Section 7(b) of the
Security Instrument.
(f) (1)
Remedies
. If an Event of Default or Potential Event of Default has occurred,
Fannie Mae may apply the proceeds of the Letter of Credit in its discretion pursuant to Section
6.15 of this Agreement.
(2)
No Obligation to Apply Proceeds; No Cure
. Nothing in this Section shall obligate
Fannie Mae to apply all or any portion of the proceeds of the Letter of Credit to cure any default
under the Loan Documents or to reduce the indebtedness evidenced by any Note. No application of
proceeds of the Letter of Credit by Fannie Mae shall be deemed to cure any default.
ARTICLE 14
LIMITS ON PERSONAL LIABILITY
Section 14.01.
Personal Liability to Borrower
.
Except as otherwise provided in this
Article 14
, Borrower shall have no personal
liability under the Loan Documents for the repayment of any Indebtedness or for the performance of
any other Obligations of Borrower under the Loan Documents, and Lenders only recourse for the
satisfaction of the Indebtedness and the performance of such Obligations shall be Lenders exercise
of its rights and remedies with respect to the Mortgaged Properties and any other Collateral held
by Lender as security for the Indebtedness.
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(a)
Exceptions to Limits on Personal Liability
. Borrower shall be personally liable
to Lender for the repayment of a portion of the Term Loan and other amounts due under the Loan
Documents equal to any loss, expense, cost, liability or damage suffered by Lender as a result of
or in any manner relating to (i) failure of Borrower to pay to Lender upon demand after an Event of
Default all Rents received by Borrower or its property manager to which Lender is entitled under
Section 3(a) of the Security Instrument encumbering the Mortgaged Property and
the amount of all security deposits held by Borrower from tenants then in residence; (ii) failure
of Borrower to apply all insurance proceeds, condemnation proceeds or security deposits from
tenants as required by the Security Instrument encumbering the Mortgaged Property; (iii) failure of
such Borrower to comply with its obligations under the Loan Documents with respect to the delivery
of books and records and financial statements; (iv) fraud or intentional material misrepresentation
by Borrower or any officer, director, partner, member or employee of Borrower in connection with
the application for or creation of the Obligations or any request for any action or consent by
Lender; (v) any and all indemnification obligations contained in Section 18 of any Security
Instrument; (vi) the litigation against Camden Property Trust and Camden Builders Inc., filed by
the Equal Rights Center in the United States District Count for the District of Maryland as Case
No. PJM 07 CV 2357 with respect to the Fair Housing Act and the Americans with Disabilities Act and
the litigation against Camden Development, Inc. filed by Meredith Ponce as a class action complaint
in Los Angeles County, California alleging that late fees charged constituted unlawful penalties;
(vii) a Camden Summit Bankruptcy Event, or (viii) failure to apply Rents, first, to the payment of
reasonable operating expenses and then to amounts (
Debt Service Amounts
) payable under
the Loan Documents (except that Borrower will not be personally liable (i) to the extent that
Borrower lacks the legal right to direct the disbursement of such sums because of a bankruptcy,
receivership or similar judicial proceeding, or (ii) with respect to Rents of a Mortgaged Property
that are distributed in any Calendar Quarter if Borrower has paid all operating expenses and Debt
Service Amounts for the preceding Calendar Quarter). For purposes of this subsection (a), the term
Rents
shall have the meaning given to such term in the Security Instrument.
As used in this Subsection, the term Camden Summit Bankruptcy Event means any one or more of
the following events:
|
(A)
|
|
Camden Summit (i) commences a voluntary case (or, if applicable, a joint case)
under any chapter of the Bankruptcy Code or otherwise or consents to or fails to
contest in a timely and appropriate manner any petition filed against it in an
involuntary case under any chapter of the Bankruptcy Code or otherwise, (ii) institutes
(by petition, application, answer, consent or otherwise) any other bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation
or similar proceeding relating to it under the laws of any jurisdiction, (iii) makes a
general assignment for the benefit of creditors, (iv) applies for, consents to or
acquiesces in the appointment of any receiver, liquidator, custodian, sequestrator,
trustee or similar officer for it or for all or any substantial part of the Mortgaged
Properties or (v) admits in writing its inability to pay its debts generally as they
mature.
|
|
|
(B)
|
|
Any Borrower, any Affiliate of Borrower, Camden or any Affiliate of Camden
files an involuntary petition against Camden Summit under any chapter of the Bankruptcy
Code or under any other bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceeding relating to Camden
Summit under the laws of any jurisdiction.
|
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(C)
|
|
Both (i) an involuntary petition under any chapter of the Bankruptcy Code is
filed against Camden Summit, or Camden Summit directly or indirectly becomes the
subject of any bankruptcy, insolvency, reorganization, arrangement, readjustment of
debt, dissolution, liquidation or similar proceeding relating to it under the laws of
any jurisdiction, or in equity, and (ii) any Borrower, any Affiliate of Borrower,
Camden or any Affiliate of Camden has acted in concert or conspired with such creditors
of Camden Summit (other than Fannie Mae or Lender) to cause the filing thereof.
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(a)
Full Recourse
. Borrower shall be personally liable to Lender for the payment and
performance of all Obligations upon the occurrence of any of the following Events of Default:
Borrower acquisition of any property or operation of any business not permitted by Section 33 of
any Security Instrument; or (i) a Transfer that is an Event of Default under Section 21 of any
Security Instrument; or (ii) a Bankruptcy Event.
As used in this Subsection, the term Bankruptcy Event means any one or more of the following
events:
|
(A)
|
|
Any Borrower (i) commences a voluntary case (or, if applicable, a joint case)
under any chapter of the Bankruptcy Code or otherwise or consents to or fails to
contest in a timely and appropriate manner any petition filed against it in an
involuntary case under any chapter of the Bankruptcy Code or otherwise, (ii) institutes
(by petition, application, answer, consent or otherwise) any other bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation
or similar proceeding relating to it under the laws of any jurisdiction, (iii) makes a
general assignment for the benefit of creditors, (iv) applies for, consents to or
acquiesces in the appointment of any receiver, liquidator, custodian, sequestrator,
trustee or similar officer for it or for all or any substantial part of the Mortgaged
Properties or (v) admits in writing its inability to pay its debts generally as they
mature.
|
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(B)
|
|
Any Borrower, any Affiliate of Borrower, any Guarantor or any Affiliate of
Guarantor files an involuntary petition against any Borrower under any chapter of the
Bankruptcy Code or under any other bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceeding relating to
Borrower under the laws of any jurisdiction.
|
|
|
(C)
|
|
Both (i) an involuntary petition under any chapter of the Bankruptcy Code is
filed against any Borrower, or any Borrower directly or indirectly becomes the subject
of any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
dissolution, liquidation or similar proceeding relating to it under the laws of any
jurisdiction, or in equity, and (ii) any Borrower, any Affiliate of Borrower, any
Guarantor or any Affiliate of Guarantor has acted in concert or conspired with such
creditors of Borrower (other than Fannie Mae or Lender) to cause the filing thereof.
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(b)
Miscellaneous
. To the extent that Borrower has personal liability under this
Section, or Guarantor has liability under the Guaranty, such liability shall be joint and several
and Lender may exercise its rights against Borrower or Guarantor personally without regard to
whether Lender has exercised any rights against the Mortgaged Property or any other security, or
pursued any rights against any guarantor, or pursued any other rights available to Lender under the
Loan Documents or Applicable Law. For purposes of this Article, the term
Mortgaged
Property
shall not include any funds that (i) have been applied by Borrower as required or
permitted by the Loan Documents prior to the occurrence of an Event of Default, or (ii) are owned
by Borrower or Guarantor and which Borrower was unable to apply as required or permitted by the
Loan Documents because of a bankruptcy, receivership, or similar judicial proceeding.
Section 14.02.
Additional Borrowers
.
If the owner of a Substitute Mortgaged Property is an Additional Borrower, the owner of such
Substitute Mortgaged Property, must demonstrate to the satisfaction of Lender that:
(i) the Additional Borrower is a Single-Purpose entity; and
(ii) the Additional Borrower is directly or indirectly wholly-owned by either Guarantor.
In addition, on the Closing Date of the addition of a Substitute Mortgaged Property, the owner
of such Substitute Mortgaged Property, if such owner is an Additional Borrower, shall become a
party to the Contribution Agreement in a manner satisfactory to Lender, shall deliver a Certificate
of Borrower Parties in form and substance satisfactory to Lender, and execute and deliver, along
with the other Borrowers, Variable Notes and/or Fixed Notes. Any Additional Borrower of a
Substitute Mortgaged Property which becomes added to the Collateral Pool shall be a Borrower for
purposes of this Agreement and shall execute and deliver to Lender an amendment adding such
Additional Borrower as a party to this Agreement and revising the Exhibits hereto, as applicable,
to reflect the Substitute Mortgaged Property and Additional Borrower, in each case satisfactory to
Lender.
Upon the release of a Mortgaged Property, the Borrower that owns such Release Mortgaged
Property shall automatically without further action be released from its obligations under this
Agreement and the other Loan Documents, except for any liabilities or obligations of such Borrower
which arose prior to the Closing Date of such release or for any provisions of this Agreement and
the other Loan Documents that are expressly stated to survive any release or termination.
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Section 14.03.
Borrower Agency Provisions.
(a) In the event an Additional Borrower becomes a party to this Agreement, each Borrower shall irrevocably designate the Borrower Agent to be its agent and in such
capacity to receive on behalf of the Borrower all proceeds, receive all notices on behalf of Borrower under this Agreement, make all requests under this Agreement,
and execute, deliver and receive all instruments, certificates, requests, documents, writings and further assurances now or hereafter required hereunder, on behalf of
such Borrower, and hereby authorizes the Lender to pay over all loan proceeds hereunder in accordance with the request of the Borrower Agent. Each Borrower hereby
acknowledges that all notices required to be delivered by Lender to any Borrower shall be delivered to the Borrower Agent and thereby shall be deemed to have been
received by such Borrower.
(b) The handling of this Term Loan as a co-borrowing loan with a Borrower Agent in the manner set forth in this Agreement is solely as an accommodation to each of
Borrower and Guarantor and is at their mutual request. Lender shall not incur liability to Borrower or Guarantor as a result thereof. To induce Lender to do so
and in consideration thereof, each Borrower hereby indemnifies the Lender and holds Lender harmless from and against any and all liabilities, expenses, losses,
damages and claims of damage or injury asserted against Lender by any Person arising from or incurred by reason of the Borrower Agent handling of the financing
arrangements of Borrower as provided herein, reliance by Lender on any request or instruction from Borrower Agent or any other action taken by the Lender with
respect to this Section 14.03 except due to willful misconduct or gross negligence of the indemnified party.
Section 14.04.
Joint and Several Obligation; Cross-Guaranty.
Notwithstanding anything contained in this Agreement or the other Loan Documents to the contrary (but subject to the provisions of Section 14.01, the last sentence
of this Section 14.04 and the provisions of Section 14.11), each Borrower shall have joint and several liability for all Obligations. Notwithstanding the intent of
all of the parties to this Agreement that all Obligations of each Borrower under this Agreement and the other Loan Documents shall be joint and several Obligations
of each Borrower, each Borrower, on a joint and several basis, hereby irrevocably guarantees on a non-recourse basis, subject to the exceptions to non-recourse
provisions of Section 14.01, to Lender and its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and
performance of, all Obligations owed or hereafter owing to Lender by each other Borrower. Each Borrower agrees that its nonrecourse guaranty obligation hereunder
is an unconditional guaranty of payment and performance and not merely a guaranty of collection. The Obligations of each Borrower under this Agreement shall not be
subject to any counterclaim, set-off, recoupment, deduction, cross-claim or defense based upon any claim any Borrower may have against Lender or any other Borrower;
provided, however, that upon the release of a Mortgaged Property, the Borrower which owns such Release Mortgaged Property shall automatically without further action
be released from its obligations under this Agreement and the other Loan Documents, except for any liabilities or obligations of such Borrower which arose prior to
the Closing Date of such release or for any provisions of this Agreement and the other Loan Documents that are expressly stated to survive any release or termination.
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Section 14.05.
Waivers With Respect to Other Borrower Secured Obligation.
To the extent that a Security Instrument or any other Loan Document executed by one Borrower
secures an Obligation of another Borrower (the
Other Borrower Secured Obligation
), and/or
to the extent that a Borrower has guaranteed the debt of another Borrower pursuant to Article 14,
Borrower who executed such Loan Document and/or guaranteed such debt (the
Waiving
Borrower
) hereby agrees as follows:
(a) The Waiving Borrower hereby waives any right it may now or hereafter have to require the
beneficiary, assignee or other secured party under such Loan Document, as a condition to the
exercise of any remedy or other right against it thereunder or under any other Loan Document
executed by the Waiving Borrower in connection with the Other Borrower Secured Obligation: (i) to
proceed against the other Borrower or any other person, or against any other collateral assigned to
Lender by either Borrower or any other person; (ii) to pursue any other right or remedy in Lenders
power; (iii) to give notice of the time, place or terms of any public or private sale of real or
personal property collateral assigned to Lender by the other Borrower or any other person (other
than the Waiving Borrower), or otherwise to comply with Section 9615 of the California Commercial
Code (as modified or recodified from time to time) with respect to any such personal property
collateral located in the State of California; or (iv) to make or give (except as otherwise
expressly provided in the Security Documents) any presentment, demand, protest, notice of dishonor,
notice of protest or other demand or notice of any kind in connection with the Other Borrower
Secured Obligation or any collateral (other than the Collateral described in such Security
Document) for the Other Borrower Secured Obligation.
(b) The Waiving Borrower hereby waives any defense it may now or hereafter have that relates
to: (i) any disability or other defense of the other Borrower or any other person; (ii) the
cessation, from any cause other than full performance, of the Other Borrower Secured Obligation;
(iii) the application of the proceeds of the Other Borrower Secured Obligation, by the other
Borrower or any other person, for purposes other than the purposes represented to the Waiving
Borrower by the other Borrower or otherwise intended or understood by the Waiving Borrower or the
other Borrower; (iv) any act or omission by Lender which directly or indirectly results in or
contributes to the release of the other Borrower or any other person or any collateral for any
Other Borrower Secured Obligation; (v) the unenforceability or invalidity of any Security Document
or Loan Document (other than the Security Instrument executed by the Waiving Borrower that secures
the Other Borrower Secured Obligation) or guaranty with respect to any Other Borrower Secured
Obligation, or the lack of perfection or continuing perfection or lack of priority of any Lien
(other than the Lien of such Security Instrument) which secures any Other Borrower Secured
Obligation; (vi) any failure of Lender to marshal assets in favor of the Waiving Borrower or any
other person; (vii) any modification of any Other Borrower Secured Obligation, including any
renewal, extension, acceleration or increase in interest rate; (viii) any and all rights and
defenses arising out of an election of remedies by Lender, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security for a
guaranteed obligation, has destroyed the Waiving Borrowers rights of subrogation and reimbursement
against the principal by the operation of Section 580d of the California Code of Civil Procedure or
otherwise; (ix) any law which provides that the obligation of a surety or guarantor must neither be
larger in amount nor in other respects more burdensome than that of the principal or which reduces
a suretys or guarantors obligation in proportion to the principal obligation; (x) any failure of
Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any person;
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(xi) the election by Lender, in any bankruptcy proceeding of any person, of the application or
non-application of Section 1111(b)(2) of the Bankruptcy Code; (xii) any extension of credit or the
grant of any lien under Section 364 of the Bankruptcy Code; (xiii) any use of cash collateral under
Section 363 of the Bankruptcy Code; or (xiv) any agreement or stipulation with respect to the
provision of adequate protection in any bankruptcy proceeding of any person. The Waiving Borrower
further waives any and all rights and defenses that it may have because the Other Borrower Secured
Obligation is secured by real property; this means, among other things, that: (A) Lender may
collect from the Waiving Borrower without first foreclosing on any real or personal property
collateral pledged by the other Borrower; (B) if Lender forecloses on any real property collateral
pledged by the other Borrower, then (1) the amount of the Other Borrower Secured Obligation may be
reduced only by the price for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (2) Lender may foreclose on the real property
encumbered by the Security Instrument executed by the Waiving Borrower and securing the Other
Borrower Secured Obligation even if Lender, by foreclosing on the real property collateral of the
Other Borrower, has destroyed any right the Waiving Borrower may have to collect from the Other
Borrower. Subject to the last sentence of Section 14.04, the foregoing sentence is an
unconditional and irrevocable waiver of any rights and defenses the Waiving Borrower may have
because the Other Borrower Secured Obligation is secured by real property. These rights and
defenses being waived by the Waiving Borrower include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
Without limiting the generality of the foregoing or any other provision hereof, the Waiving
Borrower further expressly waives, except as provided in Section 14.05(g) below, to the extent
permitted by law any and all rights and defenses that might otherwise be available to it under
California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, or under California Code of
Civil Procedure Sections 580a, 580b, 580d and 726, or any of such sections.
(c) The Waiving Borrower hereby waives any and all benefits and defenses under California
Civil Code Section 2810 and agrees that by doing so the Security Instrument executed by the Waiving
Borrower and securing the Other Borrower Secured Obligation shall be and remain in full force and
effect even if the other Borrower had no liability at the time of incurring the Other Borrower
Secured Obligation, or thereafter ceases to be liable. The Waiving Borrower hereby waives any and
all benefits and defenses under California Civil Code Section 2809 and agrees that by doing so the
Waiving Borrowers liability may be larger in amount and more burdensome than that of the other
Borrower. The Waiving Borrower hereby waives the benefit of all principles or provisions of law
that are or might be in conflict with the terms of any of its waivers, and agrees that the Waiving
Borrowers waivers shall not be affected by any circumstances that might otherwise constitute a
legal or equitable discharge of a surety or a
guarantor. The Waiving Borrower hereby waives the benefits of any right of discharge and all
other rights under any and all statutes or other laws relating to guarantors or sureties, to the
fullest extent permitted by law, diligence in collecting the Other Borrower Secured Obligation,
presentment, demand for payment, protest, all notices with respect to the Other Borrower Secured
Obligation that may be required by statute, rule of law or otherwise to preserve Lenders rights
against the Waiving Borrower hereunder, including notice of acceptance, notice of any amendment of
the Loan Documents evidencing the Other Borrower Secured Obligation, notice of the occurrence of
any default or Event of Default, notice of intent to accelerate, notice of acceleration, notice of
dishonor, notice of foreclosure, notice of protest, notice of the incurring by the other Borrower
of any obligation or indebtedness and all rights to require Lender to (i) proceed against the other
Borrower, (ii) proceed against any general partner of the other Borrower, (iii) proceed against or
exhaust any collateral held by Lender to secure the Other Borrower Secured Obligation, or (iv) if
the other Borrower is a partnership, pursue any other remedy it may have against the other
Borrower, or any general partner of the other Borrower, including any and all benefits under
California Civil Code Sections 2845, 2849 and 2850.
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(d) The Waiving Borrower understands that the exercise by Lender of certain rights and
remedies contained in a Security Instrument executed by the Other Borrower (such as a nonjudicial
foreclosure sale) may affect or eliminate the Waiving Borrowers right of subrogation against the
Other Borrower and that the Waiving Borrower may therefore incur a partially or totally
nonreimburseable liability. Nevertheless, the Waiving Borrower hereby authorizes and empowers
Lender to exercise, in its sole and absolute discretion, any right or remedy, or any combination
thereof, that may then be available, since it is the intent and purpose of the Waiving Borrower
that its waivers shall be absolute, independent and unconditional under any and all circumstances.
(e) In accordance with Section 2856 of the California Civil Code, the Waiving Borrower also
waives any right or defense based upon an election of remedies by Lender, even though such election
(e.g., nonjudicial foreclosure with respect to any collateral held by Lender to secure repayment of
the Other Borrower Secured Obligation) destroys or otherwise impairs the subrogation rights of the
Waiving Borrower to any right to proceed against the other Borrower for reimbursement, or both, by
operation of Section 580d of the California Code of Civil Procedure or otherwise.
(f) Subject to the last sentence of Section 14.04, in accordance with Section 2856 of the
California Civil Code, the Waiving Borrower waives any and all other rights and defenses available
to the Waiving Borrower by reason of Sections 2787 through 2855, inclusive, of the California Civil
Code, including any and all rights or defenses the Waiving Borrower may have by reason of
protection afforded to the other Borrower with respect to the Other Borrower Secured Obligation
pursuant to the antideficiency or other laws of the State of California limiting or discharging the
Other Borrower Secured Obligation, including Sections 580a, 580b, 580d, and 726 of the California
Code of Civil Procedure.
(g) In accordance with Section 2856 of the California Civil Code and pursuant to any other
Applicable Law, the Waiving Borrower agrees to withhold the exercise of any and
all subrogation, contribution and reimbursement rights against Borrower, against any other
person, and against any collateral or security for the Other Borrower Secured Obligation, including
any such rights pursuant to Sections 2847 and 2848 of the California Civil Code, until the Other
Borrower Secured Obligation has been indefeasibly paid and satisfied in full, all obligations owed
to Lender under the Loan Documents have been fully performed, and Lender has released, transferred
or disposed of all of its right, title and interest in such collateral or security.
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(h) Each Borrower hereby irrevocably and unconditionally agrees that, notwithstanding Section
14.05(g) hereof, in the event, and to the extent, that its agreement and waiver set forth in
Section 14.05(g) is found by a court of competent jurisdiction to be void or voidable for any
reason and such Borrower has any subrogation or other rights against any other Borrower, any such
claims, direct or indirect, that such Borrower may have by subrogation rights or other form of
reimbursement, contribution or indemnity, against any other Borrower or to any security or any such
Borrower, shall be, and such rights, claims and indebtedness are hereby, deferred, postponed and
fully subordinated in time and right of payment to the prior payment, performance and satisfaction
in full of the Obligations. Until payment and performance in full with interest (including
post-petition interest in any case under any chapter of the Bankruptcy Code) of the Obligations,
each Borrower agrees not to accept any payment or satisfaction of any kind of Indebtedness of any
other Borrower in respect of any such subrogation rights arising by virtue of payments made
pursuant to this Article 14, and hereby assigns such rights or indebtedness to Lender, including
(i) the right to file proofs of claim and to vote thereon in connection with any case under any
chapter of the Bankruptcy Code and (ii) the right to vote on any plan of reorganization. In the
event that any payment on account of any such subrogation rights shall be received by any Borrower
in violation of the foregoing, such payment shall be held in trust for the benefit of Lender, and
any amount so collected should be turned over to Lender for application to the Obligations.
(i) At any time without notice to the Waiving Borrower, and without affecting or prejudicing
the right of Lender to proceed against the Collateral described in any Loan Document executed by
the Waiving Borrower and securing the Other Borrower Secured Obligation, (i) the time for payment
of the principal of or interest on, or the performance of, the Other Borrower Secured Obligation
may be extended or the Other Borrower Secured Obligation may be renewed in whole or in part; (ii)
the time for the other Borrowers performance of or compliance with any covenant or agreement
contained in the Loan Documents evidencing the Other Borrower Secured Obligation, whether presently
existing or hereinafter entered into, may be extended or such performance or compliance may be
waived; (iii) the maturity of the Other Borrower Secured Obligation may be accelerated as provided
in the related Note or any other related Loan Document; (iv) the related Note or any other related
Loan Document may be modified or amended by Lender and the Other Borrower in any respect, including
an increase in the principal amount; and (v) any security for the Other Borrower Secured Obligation
may be modified, exchanged, surrendered or otherwise dealt with or additional security may be
pledged or mortgaged for the Other Borrower Secured Obligation.
(j) It is agreed among each Borrower and Lender that all of the foregoing waivers are of the
essence of the transaction contemplated by this Agreement and the Loan Documents and that but for
the provisions of this Article 14 and such waivers Lender would decline to enter into this
Agreement.
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Section 14.06.
No Impairment.
Each Borrower agrees that the provisions of this Article 14 are for the benefit of Lender and
their successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as
between any other Borrower and Lender, the obligations of such other Borrower under the Loan
Documents.
Section 14.07.
Election of Remedies.
(a) Lender, in its discretion, may (a) bring suit against any one or more Borrowers, jointly
and severally, without any requirement that Lender first proceed against any other Borrower or any
other Person; (b) compromise or settle with any one or more Borrowers, or any other Person, for
such consideration as Lender may deem proper; (c) release one or more Borrowers, or any other
Person, from liability; and (d) otherwise deal with any Borrower and any other Person, or any one
or more of them, in any manner, or resort to any of the Collateral at any time held by it for
performance of the Obligations or any other source or means of obtaining payment of the
Obligations, and no such action shall impair the rights of Lender to collect from any Borrower any
amount guaranteed by any Borrower under this Article 14.
(b) If, in the exercise of any of its rights and remedies, Lender shall forfeit any of its
rights or remedies, including its rights to enter a deficiency judgment against any Borrower or any
other Person, whether because of any Applicable Law pertaining to election of remedies or the
like, each Borrower hereby consents to such action by Lender and waives any claim based upon such
action, even if such action by Lender shall result in a full or partial loss of any rights of
subrogation that each Borrower might otherwise have had but for such action by Lender. Any
election of remedies that results in the denial or impairment of the right of Lender to seek a
deficiency judgment against any Borrower shall not impair any other Borrowers obligation to pay
the full amount of the Obligations. In the event Lender shall bid at any foreclosure or trustees
sale or at any private sale permitted by law or any of the Loan Documents, Lender may bid all or
less than the amount of the Obligations and the amount of such bid need not be paid by Lender but
shall be credited against the Obligations. The amount of the successful bid at any such sale,
whether Lender or any other party is the successful bidder, shall be conclusively deemed to be fair
market value of the Collateral and the difference between such bid amount and the remaining balance
of the Obligations shall be conclusively deemed to be amount of the Obligations guaranteed under
this Article 14, notwithstanding that any present or future law or court decision or ruling may
have the effect of reducing the amount of any deficiency claim to which Lender might otherwise be
entitled but for such bidding at any such sale.
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Section 14.08.
Subordination of Other Obligations.
(a) Each Borrower hereby irrevocably and unconditionally agrees that all amounts payable from
time to time to such Borrower by any other Borrower pursuant to any agreement, whether secured or
unsecured, whether of principal, interest or otherwise, other than the amounts referred to in this
Article 14 (collectively, the
Subordinated Obligations
), shall be and such rights, claims
and indebtedness are, hereby deferred, postponed and fully subordinated in time and right of
payment to the prior payment, performance and satisfaction in full of the Obligations; provided,
however, that payments may be received by any Borrower in accordance with, and only in accordance
with, the provisions of Section 14.08(b) hereof.
(b) Until the Obligations under all the Loan Documents have been finally paid in full or fully
performed and all the Loan Documents have been terminated, each Borrower irrevocably and
unconditionally agrees it will not ask, demand, sue for, take or receive, directly or indirectly,
by set-off, redemption, purchase or in any other manner whatsoever, any payment with respect to, or
any security or guaranty for, the whole or any part of the Subordinated Obligations, and in issuing
documents, instruments or agreements of any kind evidencing the Subordinated Obligations, each
Borrower hereby agrees that it will not receive any payment of any kind on account of the
Subordinated Obligations, so long as any of the Obligations under all the Loan Documents are
outstanding or any of the terms and conditions of any of the Loan Documents are in effect;
provided, however, that, notwithstanding anything to the contrary contained herein, if no Potential
Event of Default or Event of Default has occurred and is continuing under any of the Loan
Documents, then payments may be received by such Borrower in respect of the Subordinated
Obligations in accordance with the stated terms thereof. Except as aforesaid, each Borrower agrees
not to accept any payment or satisfaction of any kind of indebtedness of any other Borrower in
respect of the Subordinated Obligations and hereby assigns such rights or indebtedness to Fannie
Mae, including the right to file proofs of claim and to vote thereon in connection with any case
under any chapter of the Bankruptcy Code, including the right to vote on any plan of
reorganization. In the event that any payment on account of Subordinated Obligations shall be
received by any Borrower in violation of the foregoing, such payment shall be held in trust for the
benefit of Lender, and any amount so collected shall be turned over to Lender upon demand.
Section 14.09.
Insolvency and Liability of Other Borrower.
So long as any of the Obligations are outstanding, if a petition under any chapter of the
Bankruptcy Code is filed by or against any Borrower (the
Subject Borrower
), each other
Borrower (each, an
Other Borrower
) agrees to file all claims against the Subject Borrower
in any bankruptcy or other proceeding in which the filing of claims is required by law in
connection with indebtedness owed by the Subject Borrower and to assign to Lender all rights
thereunder up to the amount of such indebtedness. In all such cases, the Person or Persons
authorized to pay such claims shall pay to Lender the full amount thereof and Lender agrees to pay
such Other Borrower any amounts received in excess of the amount necessary to pay the Obligations.
Each Other Borrower hereby assigns to Lender all of such Other Borrowers rights to all such
payments to which
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such Other Borrower would otherwise be entitled but not to exceed the full
amount of the Obligations. In the event that, notwithstanding the foregoing, any such payment
shall be received by any Other Borrower before the Obligations shall have been finally paid in
full, such payment shall be held in trust for the benefit of and shall be paid over to Lender upon
demand. Furthermore, notwithstanding the foregoing, the liability of each Borrower hereunder shall
in no way be affected by:
(a) the release or discharge of any other Borrower in any creditors, receivership, bankruptcy
or other proceedings; or
(b) the impairment, limitation or modification of the liability of any other Borrower or the
estate of any other Borrower in bankruptcy resulting from the operation of any present or future
provisions of any chapter of the Bankruptcy Code or other statute or from the decision in any
court.
Section 14.10.
Preferences, Fraudulent Conveyances, Etc.
If Lender is required to refund, or voluntarily refunds, any payment received from any
Borrower because such payment is or may be avoided, invalidated, declared fraudulent, set aside or
determined to be void or voidable as a preference, fraudulent conveyance, impermissible setoff or a
diversion of trust funds under the bankruptcy laws or for any similar reason, including without
limitation any judgment, order or decree of any court or administrative body having jurisdiction
over any Borrower or any of its property, or upon or as a result of the appointment of a receiver,
intervenor, custodian or conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, or any statement or compromise of any claim
effected by Lender with any Borrower or any other claimant (a
Rescinded Payment
), then
each other Borrowers liability to Lender shall continue in full force and effect, or each other
Borrowers liability to Lender shall be reinstated and renewed, as the case may be, with the same
effect and to the same extent as if the Rescinded Payment had not been received by Lender,
notwithstanding the cancellation or termination of any of the Loan Documents, and regardless of
whether Lender contested the order requiring the return of such payment. In addition, each other
Borrower shall pay, or reimburse Lender for, all expenses (including all reasonable attorneys
fees, court costs and related disbursements) incurred by Lender in the defense of any claim that a
payment received by Lender in respect of all or any part of the Obligations must be refunded. The
provisions of this Section 14.10 shall survive the termination of the Loan Documents and any
satisfaction and discharge of any Borrower by virtue of any payment, court order or any federal or
state law.
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Section 14.11.
Maximum Liability of Each Borrower.
Notwithstanding anything contained in this Agreement or any other Loan Document to the
contrary, if the obligations of any Borrower under this Agreement or any of the other Loan
Documents or any Security Instruments granted by any Borrower are determined to exceed the
reasonably equivalent value received by such Borrower in exchange for such obligations or grant of
such Security Instruments under any Fraudulent Transfer Law (as hereinafter defined), then the
liability of such Borrower shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations under this Agreement or all the other Loan
Documents subject to avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Code or any applicable provisions of comparable state law
(collectively, the
Fraudulent Transfer Laws
), in each case after giving effect to all
other liabilities of such Borrower, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such Borrower in respect of
Indebtedness to any other Borrower or any other Person that is an Affiliate of the other Borrower
to the extent that such Indebtedness would be discharged in an amount equal to the amount paid by
such Borrower in respect of the Obligations) and after giving effect (as assets) to the value (as
determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement, indemnification or contribution of such Borrower pursuant to Applicable
Law or pursuant to the terms of any agreement including the Contribution Agreement.
Section 14.12.
Liability Cumulative; References to California Law.
The liability of each Borrower under this Article 14 is in addition to and shall be cumulative
with all liabilities of such Borrower to Lender under this Agreement and all the other Loan
Documents to which such Borrower is a party or in respect of any Obligations of any other Borrower.
All references in Article 14 to California law are only applicable if any Mortgaged Property
is located in California.
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.01.
Counterparts.
To facilitate execution, this Agreement may be executed in any number of counterparts. It
shall not be necessary that the signatures of, or on behalf of, each party, or that the signatures
of all persons required to bind any party, appear on each counterpart, but it shall be sufficient
that the signature of, or on behalf of, each party, appear on one (1) or more counterparts. All
counterparts shall collectively constitute a single agreement. It shall not be necessary in making
proof of this Agreement to produce or account for more than the number of counterparts containing
the respective signatures of, or on behalf of, all of the parties hereto.
Section 15.02.
Amendments, Changes and Modifications.
This Agreement may be amended, changed, modified, altered or terminated only by written
instrument or written instruments signed by all of the parties hereto.
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Section 15.03.
Payment of Costs, Fees and Expenses.
In addition to the payments required by
Section 10.03
of this Agreement, Borrower
shall pay, on demand, all reasonable third party out-of-pocket fees, costs, charges or expenses
(including the fees and expenses of attorneys, accountants and other experts) incurred by
Lender in connection with:
(a) Any amendment, consent or waiver to this Agreement or any of the Loan Documents (whether
or not any such amendments, consents or waivers are entered into).
(b) Defending or participating in any litigation arising from actions by third parties and
brought against or involving Lender with respect to (i) any Mortgaged Property, (ii) any event,
act, condition or circumstance in connection with any Mortgaged Property or (iii) the relationship
between Lender and Borrower and Guarantor in connection with this Agreement or any of the
transactions contemplated by this Agreement.
(c) The administration or enforcement of, or preservation of rights or remedies under, this
Agreement or any other Loan Documents or in connection with the foreclosure upon, sale of or other
disposition of any Collateral granted pursuant to the Loan Documents.
(d) Any disclosure documents, including the reasonable fees and expenses of Lenders attorneys
and accountants.
Borrower shall also pay, on demand, any transfer taxes, documentary taxes, assessments or charges
made by any governmental authority by reason of the execution, delivery, filing, recordation,
performance or enforcement of any of the Loan Documents or the Term Loan. However, Borrower will
not be obligated to pay any franchise, excise, estate, inheritance, income, excess profits or
similar tax on Lender. Any attorneys fees and expenses payable by Borrower pursuant to this
Section shall be recoverable separately from and in addition to any other amount included in such
judgment, and such obligation is intended to be severable from the other provisions of this
Agreement and to survive and not be merged into any such judgment. Any amounts payable by Borrower
pursuant to this Section, with interest thereon if not paid when due, shall become additional
indebtedness of Borrower secured by the Loan Documents. Such amounts shall bear interest from the
date such amounts are due until paid in full at the weighted average, as determined by Lender, of
the interest rates in effect from time to time for the Term Loan unless collection from Borrower of
interest at such rate would be contrary to Applicable Law, in which event such amounts shall bear
interest at the highest rate which may be collected from Borrower under Applicable Law. The
provisions of this Section are cumulative with, and do not exclude the application and benefit to
Lender of, any provision of any other Loan Document relating to any of the matters covered by this
Section.
Section 15.04.
Payment Procedure.
All payments to be made to Lender pursuant to this Agreement or any of the Loan Documents
shall be made in lawful currency of the United States of America and in immediately available funds
by wire transfer to an account designated by Lender before 1:00 p.m. (Eastern Standard Time) on the
date when due.
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Section 15.05.
Payments on Business Days.
In any case in which the date of payment to Lender or the expiration of any time period
hereunder occurs on a day which is not a Business Day, then such payment or expiration of such time
period need not occur on such date but may be made on the next succeeding Business Day with the
same force and effect as if made on the day of maturity or expiration of such period, except that
interest shall continue to accrue for the period after such date to the next Business Day.
Section 15.06.
Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial.
NOTWITHSTANDING ANYTHING IN THE NOTES, THE SECURITY DOCUMENTS OR ANY OF THE OTHER LOAN
DOCUMENTS TO THE CONTRARY, EACH OF THE TERMS AND PROVISIONS, AND RIGHTS AND OBLIGATIONS OF BORROWER
UNDER THIS AGREEMENT AND THE NOTES, GUARANTOR UNDER THE GUARANTY, AND BORROWER AND GUARANTOR UNDER
THE OTHER LOAN DOCUMENTS, SHALL BE GOVERNED BY, INTERPRETED, CONSTRUED AND ENFORCED PURSUANT TO AND
IN ACCORDANCE WITH THE LAWS OF THE DISTRICT OF COLUMBIA (EXCLUDING THE LAW APPLICABLE TO CONFLICTS
OR CHOICE OF LAW) EXCEPT TO THE EXTENT OF PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO (1)
THE CREATION, PERFECTION AND FORECLOSURE OF LIENS AND SECURITY INTERESTS, AND ENFORCEMENT OF THE
RIGHTS AND REMEDIES, AGAINST THE MORTGAGED PROPERTIES, WHICH MATTERS SHALL BE GOVERNED BY THE LAWS
OF THE JURISDICTION IN WHICH THE MORTGAGED PROPERTY IS LOCATED, (2) THE PERFECTION, THE EFFECT OF
PERFECTION AND NON-PERFECTION AND FORECLOSURE OF SECURITY INTERESTS ON PERSONAL PROPERTY, WHICH
MATTERS SHALL BE GOVERNED BY THE LAWS OF THE JURISDICTION DETERMINED BY THE CHOICE OF LAW
PROVISIONS OF THE UNIFORM COMMERCIAL CODE IN EFFECT FOR THE JURISDICTION IN WHICH THE BORROWERS
ARE ORGANIZED. BORROWER AND GUARANTOR AGREE THAT ANY CONTROVERSY ARISING UNDER OR IN RELATION TO
THE NOTES, THE SECURITY DOCUMENTS (OTHER THAN THE SECURITY INSTRUMENTS) OR ANY OTHER LOAN DOCUMENT
SHALL BE, EXCEPT AS OTHERWISE PROVIDED HEREIN, LITIGATED IN THE DISTRICT OF COLUMBIA. THE LOCAL
AND FEDERAL COURTS AND AUTHORITIES WITH JURISDICTION IN THE DISTRICT OF COLUMBIA SHALL, EXCEPT AS
OTHERWISE PROVIDED HEREIN, HAVE JURISDICTION OVER ALL CONTROVERSIES WHICH MAY ARISE UNDER OR IN
RELATION TO THE LOAN DOCUMENTS, INCLUDING THOSE CONTROVERSIES RELATING TO THE EXECUTION,
JURISDICTION, BREACH, ENFORCEMENT OR COMPLIANCE WITH THE NOTES, THE SECURITY DOCUMENTS (OTHER THAN
THE SECURITY INSTRUMENTS) OR ANY OTHER ISSUE ARISING UNDER, RELATING TO, OR IN CONNECTION WITH ANY
OF THE LOAN DOCUMENTS. EACH OF BORROWER AND GUARANTOR IRREVOCABLY CONSENTS TO SERVICE,
JURISDICTION, AND VENUE OF SUCH COURTS FOR ANY LITIGATION ARISING FROM THE NOTES, THE SECURITY
DOCUMENTS OR ANY OF THE OTHER
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LOAN DOCUMENTS, AND WAIVES ANY OTHER VENUE TO WHICH IT MIGHT BE ENTITLED BY VIRTUE OF
DOMICILE, HABITUAL RESIDENCE
OR OTHERWISE. NOTHING CONTAINED HEREIN, HOWEVER, SHALL PREVENT LENDER FROM BRINGING ANY SUIT,
ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST EITHER OR ALL OF BORROWER AND GUARANTOR AND
AGAINST THE COLLATERAL IN ANY OTHER JURISDICTION. INITIATING SUCH SUIT, ACTION OR PROCEEDING OR
TAKING SUCH ACTION IN ANY OTHER JURISDICTION SHALL IN NO EVENT CONSTITUTE A WAIVER OF THE AGREEMENT
CONTAINED HEREIN THAT THE LAWS OF THE DISTRICT OF COLUMBIA SHALL GOVERN THE RIGHTS AND OBLIGATIONS
OF EACH OF BORROWER AND GUARANTOR AND LENDER AS PROVIDED HEREIN OR THE SUBMISSION HEREIN BY EACH OF
BORROWER AND GUARANTOR TO PERSONAL JURISDICTION WITHIN THE DISTRICT OF COLUMBIA. BORROWER AND
GUARANTOR (I) COVENANT AND AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING
UNDER ANY OF THE LOAN DOCUMENTS TRIABLE BY A JURY AND (II) WAIVE ANY RIGHT TO TRIAL BY JURY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST. THIS WAIVER IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE
ACCRUE. FURTHER, EACH OF BORROWER AND GUARANTOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF LENDER (INCLUDING, BUT NOT LIMITED TO, LENDERS COUNSEL) HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, TO BORROWER AND/OR GUARANTOR THAT LENDER WILL NOT SEEK TO ENFORCE THE PROVISIONS OF THIS
SECTION. THE FOREGOING PROVISIONS WERE KNOWINGLY, WILLINGLY AND VOLUNTARILY AGREED TO BY BORROWER
AND GUARANTOR UPON CONSULTATION WITH INDEPENDENT LEGAL COUNSEL SELECTED BY BORROWERS AND
GUARANTORS FREE WILL.
Section 15.07.
Severability.
In the event any provision of this Agreement or in any other Loan Document shall be held
invalid, illegal or unenforceable in any jurisdiction, such provision will be severable from the
remainder hereof as to such jurisdiction and the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired in any jurisdiction.
Section 15.08.
Notices.
(a)
Manner of Giving Notice
. Each notice, direction, certificate or other
communication hereunder (in this Section referred to collectively as
notices
and singly
as a
notice
) which any party is required or permitted to give to the other party pursuant
to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given
if:
(i) personally delivered with proof of delivery thereof (any notice so delivered shall be
deemed to have been received at the time so delivered);
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(ii) sent by Federal Express (or other similar reputable overnight courier) designating
morning delivery (any notice so delivered shall be deemed to have been received on the Business Day
it is delivered by the courier);
(iii) sent by telecopier or facsimile machine which automatically generates a transmission
report that states the date and time of the transmission, the length of the document transmitted,
and the telephone number of the recipients telecopier or facsimile machine (to be confirmed with a
copy thereof sent in accordance with paragraphs (i) or (ii) above within two Business Days) (any
notice so delivered shall be deemed to have been received (1) on the date of transmission, if so
transmitted before 5:00 p.m. (local time of the recipient) on a Business Day, or (2) on the next
Business Day, if so transmitted on or after 5:00 p.m. (local time of the recipient) on a Business
Day or if transmitted on a day other than a Business Day);
addressed to the parties as follows:
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As to Borrower:
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2009 COLP Community Owner, LLC
2009 CSP Community Owner, LLC
2009 CUSA Community Owner, LLC
2009 CPT Community Owner, LLC
Summit Russett, LLC
c/o Camden Property Trust
Three Greenway Plaza, Suite 1300
Houston, Texas 77046
Attention: Alex Jessett
Telecopy: (713) 354-2710
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with a copy to:
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Camden Property Trust
Three Greenway Plaza, Suite 1300
Houston, Texas 77046
Attention: J. Robert Fisher
Telecopy: (713) 354-2710
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As to Lender:
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Red Mortgage Capital, Inc.
Two Miranova Place, 12th Floor
Columbus, Ohio 43215
Attention: Servicing Manager
Telecopy: (614) 857-1620
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with a copy to Servicer:
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Red Mortgage Capital, Inc.
Two Miranova Place, 12th Floor
Columbus, Ohio 43215
Attention: Director, Loan Servicing and Asset Management
Telecopy: (614) 857-1610
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Master Credit Facility Agreement
Camden 2009
63
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with a copy to:
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Arent Fox LLP
1675 Broadway
New York, New York 10019
Attention: David L. Dubrow, Esq.
Telecopy: (212) 484-3990
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As to Fannie Mae:
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Fannie Mae
3900 Wisconsin Avenue, N.W.
Washington, D.C. 20016-2899
Attention: Vice President for Multifamily Asset Management
Telecopy No.: (301) 280-2064
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with a copy to Servicer:
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Red Mortgage Capital, Inc.
Two Miranova Place, 12th Floor
Columbus, Ohio 43215
Attention: Director, Loan Servicing and Asset Management
Telecopy: (614) 857-1610
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with a copy to:
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Arent Fox LLP
1675 Broadway
New York, NY 10019
Attention: David L. Dubrow, Esq.
Telecopy No.: (212) 484-3990
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(b)
Change of Notice Address
. Any party may, by notice given pursuant to this
Section, change the person or persons and/or address or addresses, or designate an additional
person or persons or an additional address or addresses, for its notices, but notice of a change of
address shall only be effective upon receipt. Each party agrees that it shall not refuse or reject
delivery of any notice given hereunder, that it shall acknowledge, in writing, receipt of the same
upon request by the other party and that any notice rejected or refused by it shall be deemed for
all purposes of this Agreement to have been received by the rejecting party on the date so refused
or rejected, as conclusively established by the records of the U.S. Postal Service, the courier
service or facsimile.
Section 15.09.
Further Assurances and Corrective Instruments.
(a)
Further Assurances
. To the extent permitted by law, the parties hereto agree that
they shall, from time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such further instruments as Lender or
Borrower may reasonably request and as may be required in the opinion of Lender or its counsel to
effectuate the intention of or facilitate the performance of this Agreement or any Loan Document.
Master Credit Facility Agreement
Camden 2009
64
(b)
Further Documentation
. Without limiting the generality of subsection (a), in the
event any further documentation or information is required by Lender to correct patent mistakes in
the Loan Documents, materials relating to the Title Insurance Policies or the funding of the Term
Loan, Borrower shall provide, or cause to be provided to Lender, at Borrowers cost and expense,
such documentation or information. Borrower shall execute and deliver to Lender such
documentation, including but not limited to any amendments, corrections, deletions or additions to
the Notes, the Security Instruments or the other Loan Documents as is reasonably required by
Lender.
(c)
Compliance with Investor Requirements
. Without limiting the generality of
subsection (a), Borrower shall comply with the reasonable requirements of Lender to enable Lender
to sell the MBS backed by a Fixed Loan.
Section 15.10.
Term of this Agreement.
This Agreement shall continue in effect until the Termination Date.
Section 15.11.
Assignments; Third-Party Rights.
No Borrower shall assign this Agreement, or delegate any of its obligations hereunder, without
the prior written consent of Lender. Lender may assign its rights under this Agreement separately
or together, without Borrowers consent, but may not delegate its obligations under this Agreement
unless it first receives Fannie Maes written approval. Lender shall first assign its rights under
this Agreement separately or together, without Borrowers consent, to Fannie Mae. Upon assignment
to Fannie Mae, Fannie Mae shall be permitted to further assign its rights under this Agreement
subject to Section 9.08 of this Agreement.
Section 15.12.
Headings.
Article and Section headings used herein are for convenience of reference only, are not part
of this Agreement and are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Section 15.13.
General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) the terms defined in Appendix I and elsewhere in this Agreement have the
meanings assigned to them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other genders; accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with GAAP; (ii)
references herein to Articles, Sections, subsections, paragraphs and other subdivisions
without reference to a document are to designated Articles, Sections, subsections, paragraphs and
other subdivisions of this Agreement; (iii) a reference to a subsection without further reference
to a Section is a reference to such subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to paragraphs and other subdivisions; (iv) a
reference to an Exhibit or a Schedule without a further reference to the
document to which the Exhibit or Schedule is attached is a reference to an Exhibit or Schedule
to this Agreement; (v) the words herein, hereof, hereunder and other words of similar import
refer to this Agreement as a whole and not to any particular provision; and (vi) the word
including means including, but not limited to.
Master Credit Facility Agreement
Camden 2009
65
Section 15.14.
Interpretation.
The parties hereto acknowledge that each party and their respective counsel have participated
in the drafting and revision of this Agreement and the Loan Documents. Accordingly, the parties
agree that any rule of construction that disfavors the drafting party shall not apply in the
interpretation of this Agreement and the Loan Documents or any amendment or supplement or exhibit
hereto or thereto.
Section 15.15.
Standards for Decisions, Etc.
Unless otherwise provided herein, if Lenders approval is required for any matter hereunder,
such approval may be granted or withheld in Lenders sole and absolute discretion. Unless
otherwise provided herein, if Lenders designation, determination, selection, estimate, action or
decision is required, permitted or contemplated hereunder, such designation, determination,
selection, estimate, action or decision shall be made in Lenders sole and absolute discretion.
Section 15.16.
Decisions in Writing.
Any approval, designation, determination, selection, action or decision of Lender or Borrower
must be in writing to be effective.
Section 15.17.
Requests.
Borrower may submit up to a total of four (4) Requests per Calendar Year.
Section 15.18.
Conflicts Between Agreements.
Any terms and conditions contained in this Agreement that may also be contained in another
Loan Document are not, to the extent reasonably practicable, to be construed to be in conflict with
each other but rather is construed as duplicative, confirming, additional, or cumulative
provisions. To the extent that, in the interpretation of this Agreement, any ultimate conflict
between the terms and conditions of this Agreement and those set forth in another Loan Document is
determined to exist, the terms and conditions of this Agreement are to control.
(Signatures appear on following pages)
Master Credit Facility Agreement
Camden 2009
66
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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BORROWER:
SUMMIT RUSSETT, LLC,
a Delaware limited liability company
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By:
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Name:
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Title:
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2009 CPT COMMUNITY OWNER, LLC,
a Delaware limited liability
company
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By:
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Name:
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Title:
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2009 CUSA COMMUNITY OWNER, LLC
,
a Delaware limited liability
company
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By:
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Name:
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Title:
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2009 CSP COMMUNITY OWNER, LLC
,
a Delaware limited liability
company
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By:
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Name:
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Title:
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2009 COLP COMMUNITY OWNER, LLC
,
a Delaware limited liability
company
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By:
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Name:
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Title:
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[Signatures continue on following page.]
Master Credit Facility Agreement
Camden 2009
S-1
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GUARANTOR:
CAMDEN PROPERTY TRUST,
a Texas real estate investment trust
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By:
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Name:
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Title:
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[Signatures continue on following page.]
Master Credit Facility Agreement
Camden 2009
S-2
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LENDER:
RED MORTGAGE CAPITAL, INC.
,
an Ohio corporation
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By:
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Name:
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R. Barth Kallmerten
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Title:
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Senior Managing Director
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Master Credit Facility Agreement
Camden 2009
S-3
EXHIBITS TO MASTER CREDIT FACILITY AGREEMENT
EXHIBITS
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EXHIBIT A
|
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Schedule of Initial Mortgaged Properties, Initial Allocable Loan Amounts and Initial Valuations
|
EXHIBIT B
|
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Confirmation of Guaranty
|
EXHIBIT C
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Compliance Certificate
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EXHIBIT D-1
|
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Borrower Organizational Certificate
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EXHIBIT D-2
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Guarantor Organizational Certificate
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EXHIBIT E
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Conversion Request
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EXHIBIT F
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Reserved
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EXHIBIT G
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Rate Form
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EXHIBIT H
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Reserved
|
EXHIBIT I
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Request
|
EXHIBIT J
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Confirmation of Obligations
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EXHIBIT K
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Reserved
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EXHIBIT L
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|
Reserved
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EXHIBIT M
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Reserved
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EXHIBIT N
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|
Reserved
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EXHIBIT O
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Cash Collateral, Security and Custody Agreement
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EXHIBIT P
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Letter of Credit
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EXHIBIT Q-1
|
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Bank Legal Opinion (Foreign)
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EXHIBIT Q-2
|
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Bank Legal Opinion (Domestic)
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EXHIBIT R
|
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Form of Rent Roll
|
|
|
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APPENDIX I
|
|
Definitions
|
Master Credit Facility Agreement
Camden 2009
EXHIBIT A TO MASTER CREDIT FACILITY AGREEMENT
SCHEDULE OF INITIAL MORTGAGED PROPERTIES,
INITIAL ALLOCABLE LOAN AMOUNT AND INITIAL VALUATIONS
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INITIAL ALLOCABLE
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PROPERTY NAME
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ADDRESS
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LOAN AMOUNT
|
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INITIAL VALUATION
|
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Camden Caley
|
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6360 S Havana, Englewood,
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CO 80111
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$
|
15,351,407
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$
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26,900,000
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Camden Interlocken
|
|
705 Eldorado Blvd.,
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Broomfield, CO 80021
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|
$
|
27,431,130
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|
$
|
47,000,000
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Camden Lakeway
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7355 Grant Ranch Blvd.,
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Lakewood, CO 80123
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$
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29,267,341
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$
|
53,000,000
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Camden Harbor View
|
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40 Cedar Walk, Long
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Beach, CA 90802
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$
|
92,716,117
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$
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137,700,000
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Camden Shiloh
|
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4044 George Busbee Pkwy NW,
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Kennesaw, GA 30144
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$
|
10,575,537
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$
|
19,550,000
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Camden Russett
|
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8500 Summit View
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Road, Laurel, MD 20724
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$
|
45,063,462
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$
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69,600,000
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Camden Farmers
|
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2210 Canton St.,
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Market I/II
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Dallas, TX 75201
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|
$
|
50,711,050
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|
$
|
78,750,000
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Camden Legacy Park
|
|
6600 Preston Rd.,
Plano, TX 75024
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|
$
|
13,866,321
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$
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21,000,000
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Camden Midtown
|
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2303 Louisiana St.,
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Houston, TX 77006
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|
$
|
28,057,649
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|
$
|
42,050,000
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Camden City Centre
|
|
301 St. Joseph Pkwy.,
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Houston, TX 77002
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$
|
33,794,509
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$
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51,630,000
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Camden Vanderbilt
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7171 Buffalo Speedway,
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Houston, TX 77025
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$
|
73,165,477
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$
|
103,790,000
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|
Master Credit Facility Agreement
Camden 2009
A-1
EXHIBIT B TO MASTER CREDIT FACILITY AGREEMENT
CONFIRMATION OF GUARANTY
THIS
CONFIRMATION OF GUARANTY is made as of the
[____ day of
,
_____]
, by
[GUARANTOR]
(
Guarantor
), for the benefit of
[LENDER]
(
Lender
).
Guarantor
entered into that certain
[Guaranty]
dated as
of [
,
_____], for the
benefit of Lender (the
Guaranty
) to guaranty the Guaranteed Obligations (as defined in
the Guaranty) under that certain Master Credit Facility Agreement dated as of
[Master Agreement
Date]
by and among
[BORROWER]
(the
Borrower
), Guarantor and Lender (as amended from time
to time, the
Master Agreement
).
Borrower and Lender have
[describe]
the Term Loan under the Master Agreement and made certain
other changes to the terms and conditions of the Master Agreement pursuant to that certain
[
]
Amendment to Master Agreement dated as of even date herewith (the
[
]
Amendment
). As a condition to the entering into the
[
]
Amendment, Guarantor is
required to confirm its obligations under the Guaranty.
Guarantor hereby (i) acknowledges and consents to the
[describe]
under the Master Agreement,
(ii) acknowledges and consents to the
[describe]
of the Term Loan and the other changes and the
terms and conditions of the Master Agreement all as set forth in the
[
]
Amendment, and
(iii) confirms to Lender and Fannie Mae that the terms and provisions of the Guaranty remain in
full force and effect.
Guarantor hereby confirms and ratifies the Loan Documents it has previously executed in
connection with the Master Agreement.
Dated as of [
,
_____]
GUARANTOR:
[GUARANTOR]
[INSERT GUARANTOR BLOCK]
Master Credit Facility Agreement
Camden 2009
B-1
EXHIBIT C TO MASTER CREDIT FACILITY AGREEMENT
COMPLIANCE CERTIFICATE
The undersigned Borrower (
Borrower
) and the undersigned Guarantor (
Guarantor)
hereby certify to
[LENDER]
(
Lender
) and FANNIE MAE as follows:
Section 1.
Master Agreement
.
Borrower and Guarantor are parties to that certain
Master Credit Facility Agreement, dated as of
[Master Agreement Date]
(as amended, restated,
modified or supplemented from time to time, the
Master Agreement
). The rights of Lender
under the Master Agreement have been assigned to Fannie Mae. This Certificate is issued pursuant
to the terms of the Master Agreement.
Section 2.
Satisfaction of Conditions
.
Borrower and Guarantor hereby represent,
warrant and covenant to Lender that all conditions to the Request with respect to which this
Certificate is issued have been satisfied.
Section 3.
Capitalized Terms
.
All capitalized terms used but not defined in this
Certificate shall have the meanings ascribed to such terms in the Master Agreement.
Dated: [
, _____]
BORROWER
:
[BORROWER]
[INSERT BORROWER BLOCK]
GUARANTOR
:
[GUARANTOR]
[INSERT GUARANTOR BLOCK]
Master Credit Facility Agreement
Camden 2009
C-1
EXHIBIT D
-
1 TO MASTER CREDIT FACILITY AGREEMENT
ORGANIZATIONAL CERTIFICATE
(Borrower)
I, the undersigned,
, hereby certify as follows:
Section 1.
Position
.
I am the
of
[BORROWER]
(
Borrower
), and I am authorized to deliver this Certificate on behalf of Borrower.
Section 2.
Master Agreement
.
Borrower entered into that certain Master Credit
Facility Agreement, dated as of
[Master Agreement Date]
, by and among Borrower, [
GUARANTOR]
,
[LENDER]
(
Lender
), and others (as amended from time to time, the
Master
Agreement
). The rights of Lender under the Master Agreement have been assigned to Fannie Mae.
This Certificate is issued pursuant to the terms of the Master Agreement.
Section 3.
Due Authorization of Request
.
I hereby certify that (i) no action by the
members, shareholders or partners, as the case may be, of Borrower is necessary to duly authorize
the execution and delivery of, and the consummation of the transaction contemplated by the Request
with respect to which this Certificate is delivered, or, (ii) if necessary, that attached as
Exhibit A
to this Certificate is a true copy of resolutions or approvals which authorize
the transaction contemplated by the Request. Any such resolutions are in full force and effect and
are unmodified as of the date of this Certificate.
Section 4.
No Changes
.
Since the date of the most recent Organizational Certificate
delivered to Lender, or, if there is no such Organizational Certificate, since the date of the
Master Agreement, there have been no changes in any of the Organizational Documents of Borrower,
except as set forth in
Exhibit B
to this Certificate, and Borrower remains in good standing
or is duly qualified in the jurisdictions in which it is required to be in good standing or duly
qualified under the terms of the Master Agreement.
Section 5.
Incumbency Certificate
.
The persons authorized to execute and deliver any
documents required to be delivered in connection with the Request are as follows:
Name
Office
Section 6.
Capitalized Terms
.
All capitalized terms used but not defined in this
Certificate shall have the meanings ascribed to such terms in the Master Agreement.
Section 7.
Non-Recourse
.
The provisions of
Article 14
of the Master Agreement hereby
are incorporated into this Certificate by this reference.
Dated: [
,
_____]
Master Credit Facility Agreement
Camden 2009
D-1-1
[INDIVIDUAL]
Name:
Title:
Master Credit Facility Agreement
Camden 2009
D-1-2
EXHIBIT D-2 TO MASTER CREDIT FACILITY AGREEMENT
ORGANIZATIONAL CERTIFICATE
(Guarantor)
I, the undersigned,
, hereby certify as follows:
Section 1.
Position
.
I am the
of
[GUARANTOR]
(
Guarantor
), and I am authorized to deliver this Certificate on behalf of Borrower.
Section 2.
Master Agreement
.
Guarantor entered into (i) that certain Master Credit
Facility Agreement dated as of
[Master Agreement Date]
, by and among
[BORROWER]
, Guarantor,
[LENDER]
(
Lender
) and others (as amended from time to time, the
Master
Agreement
), and (ii) that certain
[Guaranty]
dated as of
[Master Agreement Date]
(the
Guaranty
). This Certificate is issued pursuant to the terms of the Master Agreement and
the Guaranty.
Section 3.
Due Authorization of Request
.
I hereby certify that (i) no action by the
members, shareholders or partners, as the case may be, of Guarantor is necessary to duly authorize
the execution and delivery of, and the consummation of the transaction contemplated by the Request
with respect to which this Certificate is delivered, or, (ii) if necessary, that attached as
Exhibit A
to this Certificate is a true copy of resolutions or approvals which authorize
the transaction contemplated by the Request. Any such resolutions are in full force and effect and
are unmodified as of the date of this Certificate.
Section 4.
No Changes
.
Since the date of the most recent Organizational Certificate
delivered to Lender, or, if there is no such Organizational Certificate, since the date of the
Master Agreement, there have been no changes in any of the Organizational Documents of Guarantor,
except as set forth in
Exhibit B
to this Certificate, and Guarantor remains in good
standing or is duly qualified in the jurisdictions in which it is required to be in good standing
or duly qualified under the terms of the Master Agreement.
Section 5.
Incumbency Certificate
.
The persons authorized to execute and deliver any
documents required to be delivered in connection with the Request are as follows:
Name
Office
Section 6.
Capitalized Terms
.
All capitalized terms used but not defined in this
Certificate shall have the meanings ascribed to such terms in the Master Agreement.
Dated: [
, _____]
[INDIVIDUAL]
Name:
Title:
Master Credit Facility Agreement
Camden 2009
D-2-1
EXHIBIT E TO MASTER CREDIT FACILITY AGREEMENT
CONVERSION REQUEST
THE MASTER AGREEMENT PURSUANT TO WHICH THIS REQUEST IS DELIVERED REQUIRES THERE TO OCCUR A
CLOSING TO BE HELD AT OFFICES DESIGNATED BY YOU ON A CLOSING DATE SELECTED BY BORROWER AND APPROVED
BY YOU, AND OCCURRING WITHIN THIRTY (30) BUSINESS DAYS AFTER ALL CONDITIONS TO A CONVERSION ARE
SATISFIED (OR ON SUCH OTHER DATE TO WHICH WE MAY AGREE), AS LONG AS NONE OF THE LIMITATIONS
CONTAINED IN
SECTION 1.06
OF THE MASTER AGREEMENT IS VIOLATED, AND ALL CONDITIONS CONTAINED IN
SECTION 1.07
OF THE MASTER AGREEMENT ARE SATISFIED.
[
,
_____]
[LENDER]
(
Lender
)
[ADDRESS]
[Note: Subject to change in the event Lender or its address changes]
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Re: CONVERSION REQUEST issued pursuant to
Master Credit Facility Agreement dated
as of
[Master Agreement Date]
, by and
among the undersigned Borrower
(
Borrower
),
[GUARANTOR],
Lender and
others (as amended from time to time,
the
Master Agreement
).
|
Ladies and Gentlemen:
This constitutes a Conversion Request pursuant to the terms of the above-referenced Master
Agreement.
Section 1.
Request
.
Borrower hereby requests that there occur a conversion of all or
a portion of the Variable Loan to a Fixed Loan in accordance with the terms of the Master
Agreement. Following is the information required by the Master Agreement with respect to this
Request:
(a)
Designation of Amount of Conversion
. The amount of the conversion shall be
$
.
(b)
Designation of Maturity Date
. The maturity date of the converted loan shall be
.
Master Credit Facility Agreement
Camden 2009
E-1
(c)
Prepayment of Variable Loan
. (If necessary) The Variable Loan Outstanding which
will be prepaid on the Closing Date for the conversion are as follows:
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Closing Date of Variable Loan:
|
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|
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|
Maturity Date of Variable Loan:
|
|
|
|
|
|
|
|
|
|
|
|
Amount of Term Loan:
|
|
|
|
|
|
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|
Proposed Closing Date:
|
|
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|
(Note: Any Fixed Loans made in conjunction with a conversion of all or a portion of the
Variable Loan to a Fixed Loan must be accompanied by a Request and shall be reviewed in
accordance with the terms of the Master Agreement.)
(d)
Accompanying Documents
. All documents, instruments and certificates required to
be delivered pursuant to the conditions contained in
Section 1.07
of the Master Agreement,
including (i) the Conversion Documents, as well as (ii) a Compliance Certificate and (iii) an
Organizational Certificate will be delivered on or before the Closing Date.
(e)
Defeasance or Yield Maintenance
. [For Fixed Loan only] Borrower requests the
following with respect to prepayments of the Fixed Loan, if applicable:
o
Defeasance or
o
Yield Maintenance.
Section 2.
Capitalized Terms
.
All capitalized terms used but not defined in this
Request shall have the meanings ascribed to such terms in the Master Agreement.
Sincerely,
BORROWER
:
[BORROWER]
[INSERT BORROWER BLOCK]
Master Credit Facility Agreement
Camden 2009
E-2
EXHIBIT F TO MASTER CREDIT FACILITY AGREEMENT
RESERVED.
Master Credit Facility Agreement
Camden 2009
F-1
EXHIBIT G TO MASTER CREDIT FACILITY AGREEMENT
RATE FORM
Pursuant to
Section 1.
05(d)
of that certain Master Credit Facility Agreement dated as of
[Master Agreement Date]
(as amended from time to time, the
Master Agreement
) by and among
[LENDER]
(
Lender
),
[GUARANTOR]
, and the undersigned (the
Borrower
), Borrower
hereby requests that Lender issue to it a loan with the following terms:
Designation of Term Loan
(Check One)
*To be completed by Lender upon confirmation of Rate Form.
FOR FIXED LOAN ONLY:
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Fixed Loan Amount
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$
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Term
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months
|
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|
|
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Cash Interest Rate
|
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%
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|
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|
Amortization Period
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Amortization/Interest Only:
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Closing Date no later than
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,
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[Lender will provide Borrower with written confirmation when and if it has obtained a
commitment for the purchase of a Fannie Mae MBS having the characteristics described above at a
price between
[_____]
and
[_____]
or better. In the event that the lowest available [____] is greater than that specified above, Lender will not proceed without the prior written
authorization of Borrower.]
Borrower certifies that all conditions contained in
Section 1.
05(d)
of the Master Agreement
that are required to be satisfied will be satisfied on or before the Closing Date.
Defined terms used herein shall have the same meaning as set forth in the Master Agreement.
Dated: [
,
_____]
Master Credit Facility Agreement
Camden 2009
G-1
BORROWER
:
[BORROWER]
[INSERT BORROWER BLOCK]
[Pursuant to
Section 1.
05(d)
of the Master Agreement, Lender hereby confirms that it has obtained a
commitment for the purchase of a Fannie Mae MBS in conformance with the terms noted above except
for the following:_____ .]
Dated: [
, _____]
LENDER
:
[LENDER]
[INSERT LENDER BLOCK]
Rate Setting Date:
,
_____,
_____:_____
AM/PM Eastern Time
Master Credit Facility Agreement
Camden 2009
G-2
EXHIBIT H TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2009
H-1
EXHIBIT I TO MASTER CREDIT FACILITY AGREEMENT
REQUEST
(Release/Substitution)
[
, _____]
[LENDER]
(
Lender
)
[ADDRESS]
[Note: Subject to change in the event Lender or its address changes]
|
|
Re: REQUEST issued pursuant to Master
Credit Facility Agreement, dated as of
[Master Agreement Date]
, by and among
the undersigned (
Borrower
),
[GUARANTOR],
Lender and others (as
amended from time to time, the
Master
Agreement
)
|
Ladies and Gentlemen:
This constitutes
[a Release] [a Substitution]
Request pursuant to the terms of the above-referenced
Master Agreement.
[SELECT APPROPRIATE SECTIONS]
Section 1.
Substitution Request
.
Borrower hereby requests that the Multifamily
Residential Property described in this Request be added to the Collateral Pool in connection with a
substitution of Collateral in accordance with the terms of the Master Agreement. Following is the
information required by the Master Agreement with respect to this Request:
(a)
Property Description Package
. Attached to this Request is the information and
documents relating to the proposed Substitute Mortgaged Property required by Lender and the Master
Agreement;
(b)
Due Diligence Fees
. Enclosed with this Request is a check in payment of all
Additional Collateral Due Diligence Fees required to be submitted with this Request pursuant to
Section 10.
02(b)
of the Master Agreement; and
(c)
Accompanying Documents
. All reports, certificates and documents required to be
delivered pursuant to the conditions contained in
Section 3.
06(c)
of the Master Agreement will be
delivered on or before the Closing Date.
Master Credit Facility Agreement
Camden 2009
I-1
Section 2.
Substitution Fee
. If Lender consents to the addition of the proposed
Substitute Mortgaged Property to the Collateral Pool, and Borrower elects to add the Substitute
Mortgaged Property to the Collateral Pool, Borrower shall pay the Substitution Fee to Lender
as one of the conditions to the closing of the Substitute Mortgaged Property.
OR
Section 1.
Release Request
.
Borrower hereby requests that the Release Mortgaged
Property described in this Request be released from the Collateral Pool in accordance with the
terms of the Master Agreement. Following is the information required by the Master Agreement with
respect to this Request:
(a)
Description of Release Mortgaged Property
. The name, address and location (county
and state) of the Mortgaged Property, or other designation of the proposed Release Mortgaged
Property is as follows:
(b)
Accompanying Documents
. All documents, instruments and certificates required to
be delivered pursuant to the conditions contained in
Section 3.
04(b)
of the Master Agreement will
be delivered on or before the Closing Date.
Section 2.
Release Price
.
Borrower shall pay the Release Price, if applicable, as a
condition to the closing of the release of the Release Mortgaged Property from the Collateral Pool.
Sincerely,
BORROWER
:
[BORROWER]
[INSERT BORROWER BLOCK]
Master Credit Facility Agreement
Camden 2009
I-2
EXHIBIT J TO MASTER CREDIT FACILITY AGREEMENT
CONFIRMATION OF OBLIGATIONS
THIS CONFIRMATION OF OBLIGATIONS (the
Confirmation of Obligations
) is made as of the
[_____
day of
,
_____]
, by
[BORROWER]
(
Borrower
), for the benefit of
[LENDER]
(
Lender
) and FANNIE MAE.
RECITALS
A. Borrower,
[GUARANTOR]
and Lender are parties to that certain Master Credit Facility
Agreement, dated as of
[Master Agreement Date]
(as amended from time to time, the
Master
Agreement
).
B. All of Lenders right, title and interest in the Master Agreement and the Loan Documents
executed in connection with the Master Agreement or the transactions contemplated by the Master
Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit
Facility Agreement and other Loan Documents, dated as of even date with the Master Agreement (the
Assignment
). Fannie Mae has not assumed any of the obligations of Lender under the
Master Agreement or the Loan Documents as a result of the Assignment. Fannie Mae has designated
Lender as the servicer of the Loans contemplated by the Master Agreement.
C. Borrower has delivered to Lender a
[Substitution] [Release]
Request pursuant to the Master
Agreement [to release a Release Mortgaged Property from the Collateral Pool]
[to add a Substitute
Mortgaged Property to the Collateral Pool]
.
D. Lender has consented to the
[Substitution] [Release]
Request.
E. The parties are executing this Confirmation of Obligations pursuant to the Master Agreement
to confirm that each remains liable for all of its obligations under the Master Agreement and the
other Loan Documents notwithstanding the [release of the Release Mortgaged Property from the
Collateral Pool]
[the substitution of the Substitute Mortgaged Property into the Collateral Pool]
.
NOW, THEREFORE, Borrower, in consideration of Lenders consent to the [release of the Release
Mortgaged Property from the Collateral Pool]
[substitution of the Substitute Mortgaged Property
into the Collateral Pool]
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, hereby agrees as follows:
Section 1.
Confirmation of Obligations
.
Borrower confirms that, [except with respect
to the Release Mortgaged Property and the reduction of amounts outstanding under the Loan
Documents, if any, by virtue of the payment of the Release Price,] [except with respect to the
Substitute Mortgaged Property and any changes in amounts Outstanding] none of its respective
obligations under the Master Agreement and the Loan Documents is affected by [the release of the
Release Mortgaged Property from the Collateral Pool]
[the substitution of the
Substitute Mortgaged Property into the Collateral Pool]
, and each of its respective
obligations under the Master Agreement and the Loan Documents shall remain in full force and
effect, and it shall be fully liable for the observance of all such obligations, notwithstanding
[the release of the Release Mortgaged Property from the Collateral Pool]
[the substitution of the
Substitute Mortgaged Property into the Collateral Pool]
.
Master Credit Facility Agreement
Camden 2009
J-1
Section 2.
Beneficiaries
.
This Confirmation of Obligations is made for the express
benefit of both Lender and Fannie Mae.
Section 3.
Capitalized Terms
.
All capitalized terms used in this Confirmation of
Obligations which are not specifically defined herein shall have the respective meanings set forth
in the Master Agreement.
Section 4.
Counterparts
.
This Confirmation of Obligations may be executed in
counterparts by the parties hereto, and each such counterpart shall be considered an original and
all such counterparts shall constitute one and the same instrument.
Section 5.
Governing Law; Consent to Jurisdiction and Venue; WAIVER OF TRIAL BY JURY
.
The provisions of
Section 15.06
of the Master Agreement (entitled
Choice of Law; Consent to
Jurisdiction; Waiver of Jury Trial
) are hereby incorporated into this Confirmation of
Obligations by this reference to the fullest extent as if the text of such Section were set forth
in its entirety herein.
Section 6.
Limits on Personal Liability
. The provisions of Article 14 of the Master
Agreement are hereby incorporated into this Confirmation of Obligations by this reference to the
fullest extent as if the text of such Article were set forth in its entirety herein.
IN WITNESS WHEREOF, the parties hereto have executed this Confirmation of Obligations as an
instrument under seal as of the day and year first above written.
BORROWER
:
[BORROWER]
[INSERT BORROWER BLOCK]
LENDER
:
[LENDER]
[INSERT LENDER BLOCK]
FANNIE MAE
:
[INSERT SIGNATURE BLOCK]
Master Credit Facility Agreement
Camden 2009
J-2
EXHIBIT K TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2009
K-1
EXHIBIT L TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2009
L-1
EXHIBIT M TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2009
M-1
EXHIBIT N TO MASTER CREDIT FACILITY AGREEMENT
RESERVED
Master Credit Facility Agreement
Camden 2009
N-1
EXHIBIT O TO MASTER CREDIT FACILITY AGREEMENT
CASH COLLATERAL PLEDGE, SECURITY AND CUSTODY AGREEMENT
This Cash Collateral, Pledge, Security and Custody Agreement (this Cash Collateral
Agreement), dated as of
[DATE]
among
[BORROWER]
(the Grantor), FANNIE MAE (Fannie Mae), the
body corporate duly organized and existing under the Federal National Mortgage Association Charter
Act, as amended, 12 U.S.C. 1716,
et
seq
. and
[LENDER]
, acting as servicer (the
Servicer).
RECITALS
WHEREAS,
the Grantor,
[GUARANTOR]
and
[LENDER]
, in its capacity as lender (
Lender
)
have heretofore entered into that certain Master Credit Facility Agreement, dated
[Master Agreement
Date]
(the Master Agreement) pursuant to which the Lender has established a $
[
]
loan
in favor of the Grantor;
WHEREAS,
the Lender has assigned all of its right, title and interest in and to the Master
Agreement and the other Loan Documents to Fannie Mae (except for any obligations of Lender not
assumed by Fannie Mae or Lenders rights in its capacity as servicer of the Term Loan);
WHEREAS,
to secure the obligations of the Grantor under the Master Agreement and the other
Loan Documents, the Grantor has created a Collateral Pool in favor of the Lender consisting of (i)
the Mortgaged Properties encumbered by the Security Instruments and (ii) any other property
securing any of the Grantors obligations under the Loan Documents;
WHEREAS,
the Master Agreement provides that a Mortgaged Property may be released from the lien
of a Security Instrument, or a Substituted Mortgaged Property added to the Collateral Pool in
substitution for a Mortgaged Property, under the circumstances and pursuant to the conditions set
forth in the Master Agreement;
WHEREAS,
the Grantor may, in partial satisfaction of such conditions, arrange for the issuance
of a letter of credit for the benefit of Fannie Mae or deposit monies into the Cash Collateral
Account (as defined herein) in order to meet certain debt service coverage and loan-to-value
requirements;
WHEREAS,
the Master Agreement sets forth the conditions under which Fannie Mae shall have the
right to draw monies under the Letter of Credit (collectively, the
Letters of Credit
) and
the purposes for which Fannie Mae may use such monies;
WHEREAS,
the Master Agreement provides that under certain circumstances Fannie Mae may deposit
the proceeds of a draw on the Letters of Credit into the Cash Collateral Account;
Master Credit Facility Agreement
Camden 2009
O-1
NOW, THEREFORE,
in consideration of the mutual covenants and undertakings set forth in this
Cash Collateral Agreement and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties hereto the Grantor, Fannie Mae and the Servicer agree as
follows:
1. Incorporation of Recitals; Definitions; Interpretation; Reference Materials.
1.1 Incorporation of Recitals.
The recitals set forth above are, by this reference,
incorporated into and deemed a part of this Cash Collateral Agreement.
1.2 Definitions.
Capitalized terms used in this Cash Collateral Agreement shall have the
meanings given to those terms in this Cash Collateral Agreement. Capitalized terms used in this
Cash Collateral Agreement (including in the Recitals) and not otherwise defined in this Cash
Collateral Agreement, but defined in the Master Agreement, shall have the meanings given to those
terms in the Master Agreement.
1.3 Interpretation.
Words importing any gender include all genders. The singular form of
any word used in this Cash Collateral Agreement shall include the plural, and vice versa, unless
the context otherwise requires. Words importing persons include natural persons, firms,
associations, partnerships, corporations and public entities. The parties hereto acknowledge that
each party and their respective counsel have participated in the drafting and revision of this Cash
Collateral Agreement. Accordingly, the parties agree that any rule of construction which disfavors
the drafting party shall not apply in the interpretation of this Cash Collateral Agreement or any
statement or supplement or exhibit hereto.
1.4 Reference Materials.
Sections cited by number only refer to the respective sections of
this Cash Collateral Agreement so numbered. Reference to this Section or this Subsection shall
refer to the particular section or subsection in which such reference appears. Any captions,
titles or headings preceding the text of any section and any table of contents or index attached to
this Cash Collateral Agreement are solely for convenience of reference and shall not constitute
part of this Cash Collateral Agreement or affect its meaning, construction or effect.
2. Deposits into Cash Collateral Account.
2.1 Reserved.
2.2 Establishment of Cash Collateral Account and Initial Deposit.
(i) On the earlier of (i) the initial date Fannie Mae draws monies under the
Letter of Credit and either is required or chooses to deposit such funds in the Cash
Collateral Account or (ii) the initial date the Grantor delivers cash for deposit to
the Cash Collateral Account pursuant to the terms of the Master Agreement, Fannie
Mae shall deposit (the Initial Deposit) such funds into an
account in the name of Fannie Mae at the office of a banking institution
approved by Fannie Mae (the Custodial Bank), which account shall be entitled
Fannie Mae Cash Collateral Account and maintained in accordance with Section 6.1
hereof (the Cash Collateral Account)
Master Credit Facility Agreement
Camden 2009
O-2
(ii) All further deposits of funds (each, a Deposit) made pursuant to the
terms of the Master Agreement shall be delivered to the Servicer for deposit into
the Cash Collateral Account in the required amount.
2.3 Monies Drawn Under Letters of Credit.
(i) The parties hereto agree that any monies drawn under the Letters of Credit
shall be owned by Fannie Mae. Fannie Mae has agreed under the circumstances set
forth in the Master Agreement to deposit such monies into the Cash Collateral
Account and not to withdraw such monies except pursuant to the terms of the Master
Agreement and this Cash Collateral Agreement.
(ii) To the extent that the Grantor shall be deemed to have any interest in
monies drawn under any of the Letters of Credit, then the Grantor pledges, assigns
and grants to Fannie Mae, a lien and security interest in such monies drawn under
the Letters of Credit as set forth in Section 3.1 hereof.
3. Pledge of Collateral.
3.1 Pledge and Assignment.
In addition to, and consistent with, the provisions of Section
2.3 hereof, the Grantor pledges, assigns to Fannie Mae, and grants a continuing security interest
in, all of the Grantors right, title and interest in and to the following collateral
(collectively, the Collateral) to Fannie Mae:
(i) the Initial Deposit and all future Deposits made pursuant to the Master
Agreement and this Cash Collateral Agreement;
(ii) the Cash Collateral Account, and all funds held therein including all
certificates and instruments, if any, from time to time representing, evidencing or
otherwise relating to the Cash Collateral Account;
(iii) all investments made from time to time with funds held in the Cash
Collateral Account and all certificates and instruments, if any, from time to time
representing or evidencing such investments;
(iv) all present and future securities, investment securities, notes,
certificates of deposit, treasury obligations, investment agreements, guaranteed
investment contracts, negotiable instruments, general intangibles, cash, bank
deposit accounts, checks and other instruments from time to time hereafter
resulting from the investment and/or reinvestment of Collateral pursuant to
Section 4 of this Cash Collateral Agreement; and
Master Credit Facility Agreement
Camden 2009
O-3
(v) all cash and non-cash proceeds of any of the foregoing, including, without
limitation, interest, dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed or distributable in respect of or
in exchange for any or all of the other Collateral.
3.2 Security for Obligations.
This Cash Collateral Agreement and the Collateral secure the
prompt payment and performance in full when due, whether at stated maturity, by acceleration or
otherwise (including the payment of amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(A), or any
successor provision thereto), of all amounts due and owing by the Grantor under the Master
Agreement and the other Loan Documents (the Obligations).
3.3 Perfection of Security Interest in Collateral.
The Grantor shall, from time to time at
the request of Fannie Mae or the Servicer and at the expense of the Grantor, take or cause to be
taken all actions necessary to provide Fannie Mae with a first priority perfected security interest
in the Collateral, including all actions, notifications, registrations, filings and acts of
delivery or transfer required under Articles 8 and 9 of the Uniform Commercial Code of the State of
New York (the Code), as the same may be amended from time to time.
3.4 Further Assurances.
At any time and from time to time, at the expense of the Grantor,
the Grantor shall promptly execute and deliver to Fannie Mae all further instruments and documents,
and take all further action, including, without limitation the execution of any financing
statements required under the Code and that may be necessary or desirable, or that Fannie Mae may
request, in order to perfect, continue and protect any security interest granted or purported to be
granted by this Cash Collateral Agreement or to enable Fannie Mae to exercise and enforce its
rights and remedies under this Cash Collateral Agreement.
3.5 Transfers and other Liens.
The Grantor agrees that it will not (a) sell or otherwise
dispose of any of the Collateral or (b) create or permit to exist any lien, security interest, or
other charge or encumbrance upon or with respect to any of the Collateral, except for the security
interest created pursuant to this Cash Collateral Agreement.
3.6 Reduction in Value of Collateral.
Neither Fannie Mae nor the Servicer shall be liable
for any reduction in the value of any Collateral in its possession or credited to its account
(except for any reduction in value resulting from Fannie Maes or the Servicers willful misconduct
or negligence), nor shall any such reduction in any way diminish the Grantors Obligations.
Master Credit Facility Agreement
Camden 2009
O-4
4. Investment of Cash Collateral Account.
Funds deposited in the Cash Collateral Account may
be invested and reinvested only in Permitted Investments (as hereinafter defined). An investment
shall be a
Permitted Investment
if it is a Permitted Investment designated in
Exhibit A to this Agreement. All interest and other earnings accruing on any Permitted
Investments shall remain in the Cash Collateral Account and shall be subject to this Cash
Collateral Agreement, provided that all such interest and other earnings shall be disbursed to the
Grantor on the first Business Day of each July, October, January and April unless Fannie Mae shall
have instructed the Servicer not to so disburse such earnings because a Default or an Event of
Default under the Master Agreement has occurred and is continuing. All Permitted Investments shall
be made by the Servicer at the written direction of the Grantor. The Servicer may act as
principal, agent, sponsor or, if a depository institution, depository with respect to any Permitted
Investments.
5. Representations and Warranties.
5.1 Representations and Warranties of the Grantor.
Each Grantor represents and warrants to
Fannie Mae on the Closing Date that:
(i) it is a limited partnership or limited liability company duly organized,
validly existing and in good standing in the state of its formation;
(ii) it has all requisite power and authority to enter into this Cash
Collateral Agreement and to carry out its obligations under this Cash Collateral
Agreement; the execution, delivery and performance of this Cash Collateral Agreement
and the consummation of the transactions contemplated by this Cash Collateral
Agreement have been duly authorized by all necessary partnership and other action on
the part of the Grantor; this Cash Collateral Agreement has been duly executed and
delivered by it and is the valid and binding obligation of the Grantor, enforceable
against it in accordance with its terms (except to the extent enforceability thereof
may be limited by any applicable bankruptcy, insolvency, receivership or similar
laws affecting the rights of creditors generally);
(iii) No consent of any other person or entity and no authorization, approval,
or other action by, and no notice to or filing with, any governmental authority or
regulatory body is required (a) for the pledge by the Grantor of the Collateral
pursuant to this Cash Collateral Agreement or for the execution, delivery or
performance of this Cash Collateral Agreement by the Grantor, (b) for the perfection
or maintenance of the security interest created hereby (including the first priority
nature of such security interest) or (c) for the exercise by Fannie Mae or the
Servicer of the rights provided for in this Cash Collateral Agreement or the
remedies in respect of the Collateral pursuant to this Cash Collateral Agreement
(except as may be required in connection with any disposition of any portion of the
Collateral by laws affecting the offering and sale of securities generally); there
are no conditions precedent to the effectiveness of this Cash Collateral Agreement,
to which the Grantor may be subject, that have not been satisfied or waived;
Master Credit Facility Agreement
Camden 2009
O-5
(iv) neither the execution nor delivery of this Cash Collateral Agreement nor
the performance by the Grantor of its obligations under this Cash Collateral
Agreement, nor the consummation of the transactions contemplated by this Cash
Collateral Agreement, will (a) conflict with any provision of the certificate of
limited partnership, partnership agreement, articles of organization or operating
agreement of the Grantor; (b) conflict with, result in a breach of, constitute a
default (or an event which would, with the passage of time or the giving of notice
or both, constitute a default) under, or give rise to a right to terminate, amend,
modify, abandon or accelerate, any contract, agreement, promissory note, lease,
indenture, instrument or license to which the Grantor is a party or by which the
Grantors assets or properties may be bound or affected; (c) violate or conflict
with any federal, state or local law, statute, ordinance, rule, regulation, order,
judgment, decree or arbitration award which is either applicable to, binding upon or
enforceable against the Grantor; (d) result in or require the creation or imposition
of any liens, security interests, options or other charges or encumbrances (Liens)
upon or with respect to the Collateral, other than Liens in favor of Fannie Mae; (e)
give to any individual or entity a right or claim against the Grantor; (f) require
the consent, approval, order or authorization of, or the registration, declaration
or filing with, any federal, state or local government entity;
(v) it is the legal and beneficial owner of, and has good and marketable title
to (and has full right and authority to pledge and assign), the Collateral, free and
clear of any Liens, except Liens granted pursuant to this Cash Collateral Agreement;
and
(vi) upon delivery of the Collateral to Fannie Mae and/or the filing of
financing statements, if any, required under the Code, Fannie Mae shall have a
valid, enforceable and perfected first priority security interest in all of the
Collateral securing the Obligations; and
(iv) its principal place of business and chief executive office is located as
set forth on Exhibit B hereto.
6. Cash Collateral Account.
6.1 Cash Collateral Account.
On or prior to the date of the Initial Deposit pursuant to
Subsection 2.2(i), the Servicer, as agent for Fannie Mae, shall establish with the Custodial Bank
the Cash Collateral Account in a manner satisfactory to Fannie Mae. The Servicer shall maintain
the Cash Collateral Account at an office of the Custodial Bank approved in writing by Fannie Mae
until the termination of this Cash Collateral Agreement. Possession, dominion and control of the
Cash Collateral Account, including the authority to direct the use and disposition of monies in the
Cash Collateral Account, shall be vested solely in Fannie Mae.
The Servicer, acting as agent for Fannie Mae, shall have the right to direct investment in and
disburse monies from the Cash Collateral Account pursuant to the terms of the Cash Collateral
Agreement. The Grantor shall have no signature authority as to the Cash Collateral Account and
shall otherwise have no authority to direct the use or disposition of monies in the Cash Collateral
Account or of Permitted Investments during the term of this Cash Collateral Agreement. The Grantor
shall have no right of withdrawal from the Cash Collateral Account.
Master Credit Facility Agreement
Camden 2009
O-6
Segregation of investments made with funds held in the Cash Collateral Account from all other
property held by the Servicer or the Custodial Bank shall be accomplished by appropriate
identification on the Servicers and the Custodial Banks books and records. The Servicer shall,
and shall cause the Custodial Bank to, at all times prior to the termination of this Cash
Collateral Agreement, maintain a record of all Permitted Investments and shall identify such
Permitted Investments as being subject to the security interest granted to Fannie Mae, in this Cash
Collateral Agreement. So long as the internal procedures set forth in this Section are followed by
the Servicer and the Custodial Bank, the Servicer or the Custodial Bank, as applicable, may hold
the Permitted Investments in its vaults (including any vault over which it may have exclusive
access and dominion) or in a commingled account (whether book-entry or otherwise), as agent for its
customers, or with any bank, central depository or clearing corporation as the Servicers
subcustodian, in nominee name or otherwise.
6.2 Servicer and Fannie Mae Appointed Attorney-In-Fact.
The Grantor hereby appoints each of
Fannie Mae and the Servicer as the Grantors attorney-in-fact, with full authority in the place and
stead of the Grantor and in the name of the Grantor or otherwise, from time to time in Fannie Maes
or the Servicers discretion during the continuance of an Event of Default, to take any action and
to execute any instrument which the Fannie Mae or the Servicer may deem necessary or advisable to
accomplish the purposes of this Cash Collateral Agreement, including, to receive, indorse and
collect all instruments made payable to the Grantor representing any interest payment, dividend, or
other distribution in respect of the Collateral or any part thereof and to give full discharge for
the same. The Grantor agrees that the power of attorney established pursuant to this Section shall
be deemed coupled with an interest and shall be irrevocable.
6.3 Waiver of Lien, Set-off.
The Servicer hereby waives and relinquishes any lien or right
of set-off that the Servicer (irrespective of the capacity in which it is acting) may at any time
have with respect to any Collateral, including monies or investments in the Cash Collateral
Account.
7. Events of Default; Rights and Remedies.
7.1 Event of Default.
For purposes of this Cash Collateral Agreement, Event of Default
means:
(i) the failure by the Grantor to observe and perform any duty, obligation or
covenant required to be observed or performed by the Grantor under
this Cash Collateral Agreement within ten (10) days after receipt of notice,
from the Servicer or Fannie Mae identifying such failure;
Master Credit Facility Agreement
Camden 2009
O-7
(ii) any representation or warranty on the part of the Grantor contained in
this Cash Collateral Agreement or repeated and reaffirmed in accordance with this
Cash Collateral Agreement shall prove to be false, misleading or incorrect in any
material respect as of the date made or deemed made; or
(iii) the occurrence of an Event of Default under the Master Agreement.
7.2 Remedies Upon Grantors Default.
If any Event of Default has occurred and is continuing:
(i) Fannie Mae shall have the right, in its sole and absolute discretion, to
liquidate the investments and use the money in the Cash Collateral Account for any
purpose described in the Master Agreement;
(ii) Fannie Mae may, without notice to the Grantor, except as required by law,
and at any time or from time to time, charge, set-off and otherwise apply all or any
part of the Collateral against the Obligations or any part thereof; and
(iii) Fannie Mae shall have the right, in its sole and absolute discretion, to
exercise in respect of the Collateral, in addition to other rights and remedies
provided for in this Cash Collateral Agreement or otherwise available to it, all of
the rights and remedies of a secured party under the Code and also may, without
notice except as specified below, sell the Collateral at public or private sale, at
any of the offices of Fannie Mae or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as may be commercially reasonable. The Grantor
agrees that, to the extent notice of sale shall be required by the Code, ten (10)
days prior notice to the Grantor of the time and place of any public or private
sale shall constitute reasonable notification. Neither Fannie Mae nor the Servicer
shall be obligated to sell any Collateral notwithstanding notice of sale having been
previously given. Fannie Mae may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so adjourned.
Nothing in this Cash Collateral Agreement shall require or be construed to require Fannie Mae
to accept tender of performance of any of the Grantors obligations under this Cash Collateral
Agreement after the expiration of any time period set forth in this Cash Collateral Agreement for
the performance of such obligations and the expiration of any applicable cure periods, if any.
Master Credit Facility Agreement
Camden 2009
O-8
Upon the occurrence of an Event of Default described in Section 7.1(i), the Servicer may (but
shall not be obligated to) perform, or cause to be performed, such duty, obligation or covenant, or
remedy any such failure, and may expend its funds for such purpose; provided, however, that, in
accordance with Section 8.1 of this Cash Collateral Agreement, the Grantor shall reimburse the
Servicer for any funds so expended.
7.3 Application of Proceeds.
All cash proceeds received by Fannie Mae in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral shall be applied
by Fannie Mae to the payment of any outstanding Obligations in such order as Fannie Mae may elect.
Any surplus of such cash proceeds held by Fannie Mae, and remaining after payment and satisfaction
in full of all the Obligations, shall be paid over to the Grantor, or to the person or persons who
may be lawfully entitled to receive such surplus. The Grantor shall be liable for any deficiency
(subject to the non-recourse limitations and exceptions thereto set forth in Section 14.01 of the
Master Agreement) if the proceeds of any sale or other disposition of the Collateral are
insufficient to pay the Obligations.
7.4 No Additional Waiver Implied by One Waiver
. If the Grantor shall fail to perform any
obligation it is required to perform under this Cash Collateral Agreement, and such failure is
thereafter waived by Fannie Mae, such waiver shall be limited to the particular failure so waived
and shall not be deemed to waive any other failure to perform as required under this Cash
Collateral Agreement. Any forbearance to demand payment of any amounts payable under this Cash
Collateral Agreement shall be limited to the particular payment for which Fannie Mae, forbears
demand for payment and shall not be deemed a forbearance to demand any other amount payable under
this Cash Collateral Agreement.
8. Miscellaneous Provisions.
8.1 Fee; Costs and Expenses; Indemnification.
The Grantor shall pay to the Servicer a
reasonable annual fee in as shall be determined by the Servicer, but in no event greater than
$5,000, for its services hereunder, payable annually in advance on the date of execution and
delivery hereof and on each anniversary of such date during the term of this Cash Collateral
Agreement. The Grantor agrees to reimburse Fannie Mae and the Servicer, on demand, for all
reasonable out-of-pocket costs and expenses incurred by either party in connection with the
administration and enforcement of this Cash Collateral Agreement and agrees to indemnify and hold
harmless Fannie Mae and the Servicer from and against any and all losses, costs, claims, damages,
penalties, causes of action, suits, judgments, liabilities and expenses (including, without
limitation, reasonable attorneys fees and expenses) incurred by Fannie Mae or the Servicer under
this Cash Collateral Agreement or in connection with this Cash Collateral Agreement, unless such
liability shall be due to willful misconduct or negligence on the part of Fannie Mae, the Servicer,
or its agents or employees. Any and all amounts expended by Fannie Mae or the Servicer pursuant to
Section 7.2 hereof shall be repayable to it by the Grantor upon such partys demand therefor. The
obligations of the Grantor under this Section shall survive the
termination of this Cash Collateral Agreement, and the discharge of the other obligations of
the Grantor under this Cash Collateral Agreement.
Master Credit Facility Agreement
Camden 2009
O-9
8.2 Termination.
This Cash Collateral Agreement and the assignments, pledges and security
interests created or granted by this Cash Collateral Agreement shall create a continuing security
interest in the Collateral and shall terminate upon the later to occur of (a) termination of the
Master Agreement (as provided in the Master Agreement) or (b) the date which is ninety-one (91)
days after the date on which all amounts due under the Loan Documents have been paid in full,
provided
that during such ninety-one (91) day period, no filing of a petition in bankruptcy
or other commencement of a bankruptcy or similar proceeding by or against the Grantor under any
applicable bankruptcy, insolvency, reorganization or similar law now in effect or any such
proceeding by or against the Grantor under any applicable bankruptcy, insolvency, reorganization or
similar law in effect after the date of this Cash Collateral Agreement, shall have occurred.
Upon termination of the Master Agreement, Fannie Mae and the Servicer shall reassign, without
recourse to, or any warranty whatsoever by it, and deliver to the Grantor all Collateral and
documents then in the custody or possession of Fannie Mae and the Servicer, respectively, and, if
requested by the Grantor, shall execute and deliver to the Grantor for recording or filing in each
office in which any assignment or financing statement relative to the Collateral or the agreements
relating thereto or any part thereof, shall have been filed or recorded, a termination statement or
release under applicable law (including, if relevant, the Code) releasing the Fannie Maes interest
therein, as appropriate, and such other documents, notices, orders and instruments as the Grantor
may reasonably request, all without recourse to or any warranty whatsoever by, Fannie Mae and the
Servicer, and at the cost and expense of the Grantor.
8.3 Entire Agreement.
This Cash Collateral Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, between the parties to
this Cash Collateral Agreement with respect to the subject matter of this Cash Collateral
Agreement.
8.4 Amendment.
This Cash Collateral Agreement may not be amended, changed, waived or
modified except by a writing executed by duly authorized representatives of the Grantor, the
Servicer and Fannie Mae.
8.5 Successors and Assigns.
This Cash Collateral Agreement shall inure to the benefit of,
and be enforceable by, the Grantor, the Servicer and Fannie Mae and their respective successors and
permitted assigns, and nothing herein expressed or implied shall be construed to give any other
person or entity any legal or equitable rights under this Cash Collateral Agreement. The Grantor
shall not assign any of its rights, interests or obligations under this Cash Collateral Agreement
without the prior written consent of Fannie Mae.
Master Credit Facility Agreement
Camden 2009
O-10
8.6 Notices; Change In Principal Place of Business.
All notices, directions, certificates or
other communications hereunder shall be sufficiently given and shall be deemed given when sent by
certified or registered mail, return receipt requested, by overnight courier or by telecopy (to be
confirmed with a copy thereof sent by regular mail within two Business Days), addressed to the
appropriate notice address set forth below. Any of the parties hereto may, by such notice
described above, designate any further or different address to which subsequent notices,
certificates or other communication shall be sent without any requirement of execution of any
amendment to this Cash Collateral Agreement. Any such notice, certificate or communication shall
be deemed to have been given as of the date of actual delivery or the date of failure to deliver by
reason of refusal to accept delivery or changed address of which no notice was given pursuant to
this Section. The notice addresses are as follows:
As to the Servicer:
Red Mortgage Capital, Inc.
Two Miranova Place, 12
th
Floor
Columbus, Ohio 43215
Attention: Servicing Manager
Telecopy: (614) 857-1620
To Fannie Mae:
If by mail or overnight courier:
Fannie Mae
3900 Wisconsin Avenue, N.W.
Drawer AM
Washington, D.C. 20016
Attention: Director, Multifamily Operations
Asset Management
Telecopy: (202) 752-3542
Re:
Master Credit Facility Agreement
Camden 2009
O-11
If by messenger:
Fannie Mae
4000 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attention: Director, Multifamily Operations Asset Management
Telecopy: (202) 752-3542
Re:
with a copy to:
If by mail or overnight courier:
Fannie Mae
3900 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attention: Vice President, Multifamily Asset Management
Telecopy: (202) 752-5016
Re:
If by messenger:
Fannie Mae
3939 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attention: Vice President, Multifamily Asset Management
Telecopy: (202) 752-5016
Re:
All notices to be given by the Grantor under this Cash Collateral Agreement shall be given to
Fannie Mae and the Servicer. The Grantor shall give Fannie Mae and the Servicer at least thirty
(30) days prior written notice of a change in its principal place of business and chief executive
office.
Master Credit Facility Agreement
Camden 2009
O-12
8.7 Rights of Servicer.
The parties to this Cash Collateral Agreement acknowledge and agree,
in connection with any provision of this Cash Collateral Agreement under which Fannie Mae is
otherwise granted the right (A) to request that the Grantor or another party (i) take or refrain
from taking certain action, (ii) deliver certain information, documents or instruments, or (iii)
invest funds in the Cash Collateral Account, (B) to give any instructions or directions or (C) to
exercise remedies under Section 7.2 of this Cash Collateral Agreement, the Servicer is hereby
authorized to act on behalf of, and in the place and stead of, Fannie Mae, pursuant to the
Servicing Agreement between Fannie Mae and the Servicer. All acts taken by the Servicer under this
Cash Collateral Agreement shall be subject to such Servicers Agreement. Any rights of the
Servicer under this Agreement shall be terminated as and to the extent
determined by Fannie Mae upon delivery by Fannie Mae to the parties to this Cash Collateral
Agreement of written notice of such termination. The Servicer is neither affiliated with, nor
acting as an agent for, the Grantor. Fannie Mae shall have the right to replace the Servicer under
this Agreement with another Fannie Mae Servicer in the event the Servicers rights are terminated
by Fannie Mae.
8.8 Discretion.
Whenever Fannie Mae shall have any right or option to exercise any
discretion, to determine any matter, to accept any presentation or to approve any matter, such
exercise, determination, acceptance or approval shall, without exception, be in Fannie Maes sole
and absolute discretion.
8.9 Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial.
The provisions of Section
15.06 of the Master Agreement (entitled Choice of Law; Consent to Jurisdiction; Waiver of Jury
Trial) are hereby incorporated into this Agreement by this reference to the fullest extent as if
the text of such Section were set forth in its entirety herein.
8.10 Severability.
If any term or other provision of this Cash Collateral Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Cash Collateral Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to any party.
8.11 Multiple Counterparts.
This Cash Collateral Agreement may be simultaneously executed in
multiple counterparts, all of which shall constitute one and the same instrument and each of which
shall be deemed to be an original.
Master Credit Facility Agreement
Camden 2009
O-13
The Grantor, the Servicer and Fannie Mae have caused this Cash Collateral Agreement to be
signed, on the date first written above, by their respective officers duly authorized.
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GRANTOR:
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By:
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Name:
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Title:
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SERVICER
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By:
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Name:
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Title:
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FANNIE MAE
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By:
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Master Credit Facility Agreement
Camden 2009
O-14
EXHIBIT A
PERMITTED INVESTMENTS
The following investments are Permitted Investments (please see the exceptions set out in
under the next heading,
Exclusions from Permitted Investments
):
(a)
Government Obligations
. Direct obligations of, and obligations on which the full
and timely payment of principal and interest is unconditionally guaranteed by, the full faith and
credit of the United States of America.
(b)
Agencies
. Direct obligations of, and obligations on which the full and timely
payment of principal and interest is unconditionally guaranteed by, any agency or instrumentality
of the United States of America (other than the Federal Home Loan Mortgage Corporation). These
obligations must be rated in the Highest Rating Category.
(c)
State and Local Obligations
. Obligations of any state or territory of the United
States of America, obligations of any agency, instrumentality, authority or political subdivision
of a state or territory, and obligations of any public benefit or municipal corporation. Interest
must be payable on a current basis and the obligations must be rated in the Highest Rating
Category.
(d)
Bank Deposits
. Interest-bearing negotiable certificates of deposit,
interest-bearing time deposits, interest-bearing savings accounts or bankers acceptances, issued
by a Qualified Financial Institution whose unsecured short-term obligations are rated in the
Highest Rating Category. Interest-bearing negotiable certificates of deposit, interest-bearing
time deposits or interest-bearing savings accounts, issued by a Qualified Financial Institution, if
such deposits or accounts are fully insured by the Federal Deposit Insurance Corporation.
(e)
Money Market Funds
. Money market mutual funds registered under the Investment
Company Act of 1940 approved in writing by Fannie Mae.
(f)
Any other Investment Approved by Fannie Mae
. Any other investment requested by
Grantor and approved by Fannie Mae.
Exclusions From Permitted Investments
.
Permitted Investments may not include any of the following:
(1) Any investment with a final maturity or any agreement with a term greater than thirty (30)
days from the date of the investment. This exclusion does not apply to (a) obligations that
provide for the optional or mandatory tender, at par, by the holder at least once within thirty
(30) days of the date of purchase, and (b) Government Obligations irrevocably deposited with a bond
trustee for the defeasance of Bonds pursuant to a bond trust indenture.
Master Credit Facility Agreement
Camden 2009
O-15
(2) Any obligation (other than obligations described in paragraphs (a) and (b)) with a
purchase price greater or less than the par value of such obligation.
(3) Mortgage-backed securities, real estate mortgage investment conduits or collateralized
mortgage obligations.
(4) Interest-only or principal-only stripped securities.
(5) Obligations bearing interest at inverse floating rates.
(6) Any investment which may be prepaid or called at a price less than its purchase price
prior to stated maturity.
(7) Any investment the interest rate on which is variable, and is established other than by
reference to a single interest rate index plus a single fixed spread, if any, and which interest
rate moves proportionately with that index.
(8) Any investment to which S&P has added an r highlighter (denotes a derivative, hybrid and
certain other obligations S&P believes may experience high volatility or high variability in
expected returns as a result of noncredit risks).
C.
Definition of a Qualified Financial Institution.
Qualified Financial Institution
means any of the following having a senior unsecured debt
rating in the Highest Rating Category
and approved by Fannie Mae
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(a) bank or trust company organized under the laws of any state of the United States of
America,
(b) national banking association,
(c) savings bank, a savings and loan association, or an insurance company or association
chartered or organized under the laws of any state of the United States of America,
(d) federal branch or agency pursuant to the International Banking Act of 1978 or any
successor provisions of law or a domestic branch or agency of a foreign bank which branch or agency
is duly licensed or authorized to do business under the laws of any state or territory of the
United States of America,
(e) government bond dealer reporting to, trading with, and recognized as a primary dealer by
the Federal Reserve Bank of New York, and
(f) securities dealer approved in writing by Fannie Mae the liquidation of which is subject to
the Securities Investors Protection Corporation or other similar corporation.
D.
Definition of Highest Rating Category.
Highest Rating Category
means an S&P rating category of A-1+ for instruments having a term
of one year or less and AAA for instruments having a term of greater than one year, and a Moodys
rating category of P-1 for instruments having a term of one year or less and Aaa for
instruments having a term greater than one year.
Master Credit Facility Agreement
Camden 2009
O-16
EXHIBIT B
Principal Place of Business and Chief Executive Office
Master Credit Facility Agreement
Camden 2009
O-17
EXHIBIT P TO MASTER CREDIT FACILITY AGREEMENT
LETTER OF CREDIT
[Letter of Credit Issuers Letter of Credit Form]
[Banks letterhead]
IRREVOCABLE LETTER OF CREDIT NO.
_____
, 20__
Fannie Mae
Multifamily Operations Asset Management
Drawer # AM
3900 Wisconsin Avenue, N.W.
Washington, DC 20016
Re: Camden 2009
Dear Sir or Madam:
For the account of
[
Insert name of account party/customer
]
, we hereby open in
your favor our Irrevocable Letter of Credit No.
(Credit) for an amount not exceeding a
total of U.S. $
, effective immediately and expiring on
, 20_____.
1
Funds under this Credit are available to you against a sight draft(s) on us completed by you or
[LENDER]
on your behalf
1
, completed in substantially the form attached as Exhibit I, for
all or any part of this Credit.
We will promptly honor all drafts drawn in compliance with the terms of this Credit if received on
or before the expiration date at
[
Insert Banks address
].
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Must have a term of at least one year.
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Only Fannie Mae may be shown as beneficiary; either
Fannie Mae or
[LENDER]
can draw funds under the Letter of Credit, payable only
to Fannie Mae.
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Master Credit Facility Agreement
Camden 2009
P-1
Drafts presented at our office at the address set forth above in person or by mail or by telecopy
at the following number
no later than 10:00 a.m. shall be honored on the date of
presentation, by payment in accordance with your payment instructions that accompany each such
draft. If requested by you, payment under this Credit may be made by wire transfer of immediately
available funds to your account as specified in the draft (whether executed by you or
[LENDER]
), or
by deposit of same day funds in your designated account that you maintain with us.
This Credit shall be governed by and subject to the Uniform Customs and Practice for Documentary
Credits (1993 revision), International Chamber of Commerce Publication No. 500 (UCP), and to the
extent not inconsistent with the UCP, laws of the State of
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Sincerely,
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[
Insert Banks name
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By:
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Name:
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Master Credit Facility Agreement
Camden 2009
P-2
Exhibit I
to
Letter of Credit
SIGHT DRAFT
[
Insert Letter of Credit Issuers name and address
]
, 20__
Pay on demand to Fannie Mae the sum of U.S. $
. This draft is drawn under your
Irrevocable Letter of Credit No.
.
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FANNIE MAE
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Title:
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OR
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RED MORTGAGE CAPITAL, INC.
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By:
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Master Credit Facility Agreement
Camden 2009
P-3
EXHIBIT Q-1 TO MASTER CREDIT FACILITY AGREEMENT
BANK LEGAL OPINION (FOREIGN)
[DATE]
Fannie Mae
3900 Wisconsin Avenue, N.W.
Washington, DC 20016-2899
Ladies and Gentlemen:
This opinion is being furnished to you at the request of [
] with respect to the
issuance by
(the Bank) of its letter of credit No.
(the Letter of
Credit) in your favor.
We have acted as NATIONALITY counsel to the Bank acting by and through its NEW YORK BRANCH in
connection with the preparation, execution and delivery by the Bank of the Letter of Credit. We
have examined the Letter of Credit and such other instruments, corporate records, certificates,
documents and other matters as we have deemed necessary or advisable in order to give the following
opinions. In giving this opinion, we have assumed the genuineness of signatures and the
authenticity of certificates and documents, other than those of the Bank, submitted to us as
originals and the conformity to original documents of documents submitted to us as copies.
As to various questions of fact material to our opinion, we have relied upon information
provided to us by officers of the Bank and documents issued by governmental bodies and officials.
We have also assumed the Letter of Credit is a legal, valid, binding and enforceable obligation of
the Bank under the laws of the STATE OF NEW YORK and the United States of America.
No opinion is expressed herein as to the laws of any jurisdiction other than the laws of
COUNTRY.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Bank is duly established, validly existing and in good standing in COUNTRY and has the
corporate power and authority to execute, deliver and perform its obligations under the Letter of
Credit.
2. The Banks execution and delivery of, and performance of its obligations under, the Letter
of Credit have been duly authorized by all necessary corporate action of the Bank.
Master Credit Facility Agreement
Camden 2009
Q-1-1
3. The Banks execution and performance of the Letter of Credit will not violate any
NATIONALITY law, rule or regulation pertaining to the Bank, including its NEW YORK BRANCH, any
NATIONALITY court order or government order, or any charter or bylaw provision or agreement of the
Bank. No consent, approval, authorization, license, ruling or order of, or action by, any
NATIONALITY court or governmental agency or body not previously obtained, and no filing,
recordation or publication of any document not previously filed, recorded or published, is required
under the laws of COUNTRY currently in effect in connection with the execution and delivery by the
Bank of the Letter of Credit, or for the remittance from COUNTRY to the United States of United
States dollars in an amount sufficient to satisfy the obligations of the Bank under the Letter of
Credit.
4. The Letter of Credit, assuming it has been duly executed and delivered by a duly authorized
representative of the NEW YORK BRANCH of the Bank, enforceable in accordance with its terms under
the laws of the STATE OF NEW YORK to which it is expressly subject, will constitute the legal,
valid and binding obligations of the Bank ranking pari passu with the Banks other unsecured,
unsubordinated indebtedness (including deposit liabilities but except those preferred by law),
enforceable in accordance with its terms; provided, however, that enforcement of the Letter of
Credit against the Bank may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium or other similar proceedings or laws affecting the enforcement of creditors rights in
general as such laws would apply in the event of the bankruptcy, insolvency, reorganization or
liquidation of the Bank.
5. In the event that the Bank fails to honor its obligations under the Letter of Credit (other
than as a result of compliance with the applicable laws, regulations, directives or orders of
appropriate governmental authority of the United States) upon proper demand to the NEW YORK BRANCH
in compliance with the requirements of the Letter of Credit, the Bank would have a direct and
general obligation to make payment in accordance with the Letter of Credit.
6. The beneficiary of the Letter of Credit would be able to institute any actions or
proceedings directly against the Bank in CITY, COUNTRY under the Letter of Credit without first
having to obtain a judgment in respect of the Letter of Credit in a court in the United States, and
access by the beneficiary of the Letter of Credit to the courts of COUNTRY is not restricted. The
beneficiary of the Letter of Credit is not required to qualify under any statute or law or pay any
franchise tax, stamp tax or similar fee to gain such access, whether in respect of a direct suit on
the Letter of Credit, or a proceeding to enforce a judgment obtained by the Trustee before a court
in the United States, nor will the beneficiary of the Letter of Credit be resident, domiciled,
carrying on business or otherwise subject to taxation in COUNTRY solely by reason of the execution,
delivery, or performance by the Bank or the enforcement by the beneficiary of the Letter of Credit.
Any final and conclusive judgment for a definite sum obtained for the recovery of amounts due and
unpaid under the Letter of Credit in a NEW YORK STATE or United States Federal court sitting in NEW
YORK will be held enforceable against the Bank in the appropriate courts of COUNTRY without
re-examination or re-litigation of the
matters adjudicated. STATE CUSTOMARY EXCEPTION(S) TO THE ABOVE PROVISIONS, IF ANY.
Master Credit Facility Agreement
Camden 2009
Q-1-2
7. The choice of law provisions of the Letter of Credit are valid under the laws of COUNTRY
and a court in COUNTRY would uphold such choice of law in a suit brought in a court of competent
jurisdiction in COUNTRY.
8. The Bank is subject to commercial law in COUNTRY and is generally subject to suit and
neither it nor any of its property or revenues enjoys any right of immunity from any judicial
proceeding in COUNTRY.
9. There is no income, fee, stamp, tax or other duty or similar impost of the government of
COUNTRY or any political subdivision or instrumentality or agency thereof or account of which any
amount is required to be imposed by withholding or otherwise, which is imposed on or applicable to
any payment to be made by the Bank to the Fannie Mae under the Letter of Credit.
Very truly yours,
Master Credit Facility Agreement
Camden 2009
Q-1-3
EXHIBIT Q-2 TO MASTER CREDIT FACILITY AGREEMENT
BANK LEGAL OPINION (DOMESTIC)
[DATE]
Fannie Mae
3900 Wisconsin Avenue, N.W.
Washington, DC 20016-2899
Ladies and Gentlemen:
We have acted as counsel to
(the Bank) in connection with the preparation,
execution, and delivery of the Letter of Credit. We have examined a certificate of the
[Comptroller of the Currency or other charterer]
of recent date as to the valid certification of
the Bank to do business as a
[national/state] banking association, such records and
other proceedings of the Bank and such laws, rules, and regulations as we have deemed necessary for
purposes of issuing this opinion. We have also examined a certificate of a
of the
Bank (the Certificate) as to the authority of certain officers of the Bank to execute agreements
on behalf of the Bank and as to the incumbency of the officer(s) of the Bank who have executed the
Letter of Credit on behalf of the Bank. We have assumed the authenticity of certificates and
documents submitted to us as originals (other than the Letter of Credit and the Certificate) and
the conformity to original documents of documents submitted to us as copies.
Based upon and subject to the foregoing, we are of the opinion that the Letter of Credit has been
duly executed and delivered by the Bank and constitutes the legal, valid, and binding obligation of
the Bank, enforceable in accordance with its terms, except that the enforcement of the rights and
remedies with respect thereto is subject to applicable bankruptcy, insolvency, reorganization,
liquidation, moratorium, or similar laws affecting the enforcement of creditors rights generally
as they may be applied in the bankruptcy, insolvency, reorganization or liquidation of the Bank,
and that the availability of the remedies of specific performance, of injunction relief or other
equitable remedies is subject to the discretion of the court before which any proceedings therefor
may be brought.
We authorize Red Mortgage Capital, Inc. (the Lender) to rely on this opinion to the extent and as
if it was addressed to the Lender.
Very truly yours,
Master Credit Facility Agreement
Camden 2009
Q-2-1
EXHIBIT R TO MASTER CREDIT FACILITY AGREEMENT
FORM OF RENT ROLL
(See Attached)
Master Credit Facility Agreement
Camden 2009
R-1
CAMDEN CAMDEN
RENT ROLL DETAIL
As of
Details
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Unit
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Other
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Designation
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Unit/Lease
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Move-In
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Lease
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Lease
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Market
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Trans
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Lease
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Charges
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Total
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Dep
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Unit
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Floorplan
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(3.0 only)
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SQFT
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Status
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Name
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Move Out
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Start
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End
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+ Addl.
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Code
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Rent
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Credits
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Billing
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On Hand
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Balance
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Totals:
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Amt/SQFT: Market = ____ SQFT; Leased = _____ SQFT;
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Average
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Average
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Market
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Average
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Leased
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Units
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Units
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Floorplan
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# Units
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SQFT
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Market + Addl.
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Amt/SQFT
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Leased
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Amt/SQFT
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Occupied
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Occupancy %
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Available
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Totals:
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Occupancy and Rents Summary for Current Data
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Unit Status
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Market + Addl.
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# Units
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Potential Rent
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Occupied, no NTV
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Occupied, NTV
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Occupied NTV Leased
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Vacant Leased
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Admin/Down
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Vacant Not Leased
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Totals:
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Summary Billing by Transaction Code for Current Date
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Code
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Amount
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MODEL
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RENT
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Total:
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Master Credit Facility Agreement
Camden 2009
R-2
APPENDIX I
DEFINITIONS
For all purposes of the Agreement, the following terms shall have the respective meanings set forth
below:
Acquiring Person
means a person or group of persons within the meaning of
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended.
Additional Borrower
means the owner of a Substitute Mortgaged Property, which entity
has been approved by Lender and becomes a Borrower under the Agreement and the applicable Loan
Documents and their permitted successors and assigns.
Additional Collateral
shall have the meaning set forth in
Section 6.13
.
Additional Collateral Due Diligence Fees
means the due diligence fees paid by
Borrower to Lender with respect to each Substitute Mortgaged Property, as set forth in
Section
10.02(b)
.
Adjustable Rate
in connection with a particular Variable Loan has the meaning given
such term in the applicable Variable Note.
Affiliate
means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, control (including with correlative meanings, the terms controlling, controlled
by and under common control with), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management (other than property
management) and policies of that Person, whether through the ownership of voting securities,
partnership interests or by contract or otherwise.
Aggregate Debt Service Coverage Ratio
means, for any specified date, the ratio
(expressed as a percentage) of
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(a)
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the aggregate of the Net Operating Income for the Mortgaged Properties
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to
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(b)
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the Facility Debt Service on the specified date.
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Aggregate Loan to Value Ratio
means, for any specified date, the ratio (expressed as
a percentage) of
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(a)
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the amount of the Term Loan Outstanding and Supplemental Loan Outstanding on
the specified date,
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to
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(b)
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the aggregate of the Valuations most recently obtained prior to the specified
date for all of the Mortgaged Properties.
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Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-1
Agreement
means this Master Credit Facility Agreement, as it may be amended,
restated, supplemented or otherwise modified from time to time, including all Recitals and Exhibits
to the Agreement, each of which is hereby incorporated into the Agreement by this reference.
Allocable Loan Amount
means the portion of the Term Loan allocated to a particular
Mortgaged Property by Lender in accordance with the Agreement. The initial Allocable Loan Amount
for each of the Initial Mortgaged Properties is as set forth in
Exhibit A
to the Agreement.
Amortization Period
means a period of thirty (30) years.
Applicable Law
means (a) all applicable provisions of all constitutions, statutes,
rules, regulations and orders of all governmental bodies, all Governmental Approvals and all
orders, judgments and decrees of all courts and arbitrators, (b) all zoning, building,
environmental and other laws, ordinances, rules, regulations and restrictions of any Governmental
Authority affecting the ownership, management, use, operation, maintenance or repair of any
Mortgaged Property, including the Americans with Disabilities Act (if applicable), the Fair Housing
Amendment Act of 1988 and Hazardous Materials Laws (as defined in the Security Instrument), (c) any
building permits or any conditions, easements, rights-of-way, covenants, restrictions of record or
any recorded or unrecorded agreement affecting or concerning any Mortgaged Property including
planned development permits, condominium declarations, and reciprocal easement and regulatory
agreements with any Governmental Authority, (d) all laws, ordinances, rules and regulations,
whether in the form of rent control, rent stabilization or otherwise, that limit or impose
conditions on the amount of rent that may be collected from the units of any Mortgaged Property,
and (e) requirements of insurance companies or similar organizations, affecting the operation or
use of any Mortgaged Property or the consummation of the transactions to be effected by the
Agreement or any of the other Loan Documents.
Appraisal
means an appraisal of Multifamily Residential Property conforming to the
requirements of Lender for similar loans anticipated to be sold to Fannie Mae and accepted by
Lender.
Appraised Value
means the value set forth in an Appraisal.
Assignment and Subordination of Management Agreement
means the Master Assignment and
Subordination of Management Agreement required by Lender and satisfying Lenders requirements, as
the same may be amended, restated, modified or supplemented from time to time.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-2
Assignment of Leases and Rents
means an Assignment of Leases and Rents, required by
Lender and satisfying Lenders requirements, as the same may be amended, restated, modified or
supplemented from time to time.
Bankruptcy Code
means Title 11 of the United States Code entitled Bankruptcy as
now and hereafter in effect, or any successor statute.
Bankruptcy Event
shall have the meaning set forth in
Section 14.01(b)
.
Borrower
means individually and collectively, the Initial Borrower and any
Additional Borrower becoming a party to the Agreement and other Loan Documents and shall exclude
any Borrower that no longer owns any Mortgaged Property on account of the release of a Mortgaged
Property.
Borrower Agent
means Camden.
Borrower Parties
means collectively, Borrower and Guarantor.
Business Day
means a day on which Fannie Mae and Servicer is open for business.
Calendar Quarter
means, with respect to any year, any of the following three month
periods: (a) January-February-March; (b) April-May-June; (c) July-August-September; and (d)
October-November-December.
Calendar Year
means the 12-month period from the first day of January to and
including the last day of December, and each 12-month period thereafter.
Camden
means Camden Property Trust, a Texas Real Estate Investment Trust organized
under the laws of the State of Texas, and its permitted successors and assigns.
Camden CPT Member
means 2009 CPT Community Owner Member, LLC, a Delaware limited
liability company.
Camden CSP Member
means 2009 CSP Community Owner Member, LLC, a Delaware limited
liability company.
Camden CUSA Member
means 2009 CUSA Community Owner Member, LLC, a Delaware limited
liability company.
Camden General Partner
means Camden Summit, Inc., the general partner of Camden
Summit.
Camden Legacy Park Member
means 2009 COLP Community Owner Member, LLC, a Delaware
limited liability company.
Camden OP
means Camden Operating, L.P., a Delaware limited partnership.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-3
Camden Summit
means Camden Summit Partnership, L.P., a Delaware limited partnership.
Camden USA
means Camden USA, Inc., a Delaware corporation.
Capitalization Rate
means, for each Mortgaged Property, a capitalization rate
selected by Lender for use in determining the Valuations, which rate is determined as set forth in
Section 2.01(b)
.
Cash Collateral Account
means the cash collateral account established pursuant to
the Cash Collateral Agreement.
Cash Collateral Agreement
means a cash collateral, security and custody agreement by
and among Fannie Mae, Borrower and a collateral agent for Fannie Mae in the form attached as
Exhibit O
to the Agreement, as the same may be amended, modified or supplemented from time
to time.
Cash Equivalents
means
(a) securities issued or fully guaranteed or insured by the United States Government or
any agency thereof and backed by the full faith and credit of the United States having
maturities of not more than twelve (12) months from the date of acquisition (for the
purposes of this definition, agency securities shall mean Government Securities within the
meaning of the Investment Act of 1940 or Section 1.860G-2(a)(8)(1) of the Treasury
Regulations); and
(b) certificates of deposit, time deposits, demand deposits, eurodollar time deposits,
repurchase agreements, reverse repurchase agreements, or bankers acceptances, having in
each case a term of not more than twelve (12) months, issued by any commercial bank having
membership in the FDIC, or by any U.S. commercial lender (or any branch or agency of a
non-U.S. bank licensed to conduct business in the U.S.) having combined capital and surplus
of not less than $100,000,000 whose short-term securities are rated at least A-1 by S&P or
P-1 by Moodys; and
(c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moodys and in
either case having a term of not more than twelve (12) months; and
(d) the amount of available balances under any line of credit.
Cash Interest Rate
means for any Variable Loan converted to Fixed Loan, a rate of
interest, per annum, established by Fannie Mae for cash loans of similar characteristics then
offered by Fannie Mae.
Certificate of Borrower Parties
means that certain Master Certificate of Borrower
Parties executed by Borrower and Camden as of the date hereof, and which must be executed and
delivered by the Borrower Parties to Lender from time to time in accordance with the terms
of this Agreement, the form of which certificate shall be the same or substantially similar to
which Borrower and Camden execute as of the date hereof.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-4
Certificate of Camden Summit
means that certain Certificate of Guarantor executed by
Camden Summit as of the date hereof, and which must be executed and delivered by Camden Summit to
Lender from time to time in accordance with the terms of this Agreement, the form of which
certificate shall be the same or substantially similar to which the Camden Summit executes as of
the date hereof.
Change of Control
means the earliest to occur of: (a) the date an Acquiring Person
becomes (by acquisition, consolidation, merger or otherwise), directly or indirectly, the
beneficial owner of more than 50% of the total Voting Equity Capital of Camden then outstanding or
(b) the replacement (other than solely by reason of retirement at age sixty-two or older, death or
disability) of more than 50% (or such lesser percentage as is required for decision-making by the
board of directors or trustees, if applicable) of the members of the board of directors (or
trustees, if applicable) of Camden over a one-year period where such replacement shall not have
been approved by a vote of at least a majority of the board of directors (or trustees, if
applicable) of Camden then still in office who either were members of such board of directors (or
trustees, if applicable) at the beginning of such one-year period or whose election as members of
the board of directors (or trustees, if applicable) was previously so approved or (c) Camden ceases
to Control Camden USA or Camden General Partner or Camden CPT Member or (d) Camden General Partner
ceases to Control Camden Summit or (e) Camden Summit ceases to Control Camden CSP Member or (f)
Camden CSP Member ceases to Control 2009 CSP Community Owner, LLC or Summit Russett, LLC or (g)
Camden USA ceases to Control Camden CUSA Member or CPT-GP, Inc. or (h) Camden CUSA Member ceases to
Control 2009 CUSA Community Owner, LLC or (i) Camden CPT Member ceases to Control 2009 CPT
Community Owner, LLC or (j) Camden OP ceases to Control Camden Legacy Park Member or (k) Camden
Legacy Park Member ceases to Control 2009 COLP Community Owner, LLC or (l) CPT-GP, Inc. ceases to
Control Camden OP or (m) Camden ceases to directly or indirectly Control each Borrower.
Closing Date
means the Initial Closing Date and each date after the Initial Closing
Date on which a transaction requested in a Request is required to take place.
Collateral
means the Mortgaged Properties and other collateral from time to time or
at any time encumbered by the Security Instruments, or any other property securing Borrowers
obligations under the Loan Documents.
Collateral Pool
means all of the Collateral.
Compliance Certificate
means a certificate of Borrower substantially in the form of
Exhibit C
to the Agreement.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-5
Completion/Repair and Security Agreement
means a Master Completion/Repair and
Security Agreement required by Lender and satisfying Lenders requirements, as the same may be
amended, restated, modified or supplemented from time to time.
Confirmation of Guaranty
means a confirmation of the Guaranty executed by Guarantor
in connection with any Request after the Initial Closing, substantially in the form of
Exhibit
B
to the Agreement.
Confirmation of Obligations
means a Confirmation of Obligations delivered in
connection with the addition of a Substitute Mortgaged Property to the Collateral Pool or a release
of a Release Mortgaged Property from the Collateral Pool, dated as of the Closing Date for each
such activity, signed by Borrower and Guarantor, pursuant to which Borrower and Guarantor confirm
their obligations under the Loan Documents, substantially in the form of
Exhibit J
to the
Agreement.
Contribution Agreement
means the Contribution Agreement by and among Initial
Borrower and each Additional Borrower, as the same may be amended, restated, modified or
supplemented from time to time.
Controlled
(or any variation of such term) of one entity (the controlled entity)
by another (the controlling entity) means that the controlling entity has the power and
authority, directly or indirectly, to direct or cause the direction of the management and policies
of the controlled entity, by contract or otherwise.
Controlled Group
means all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code.
Conversion Documents
means the amendment to each Security Document, an amendment to
the Variable Note, and other applicable Loan Documents, in form and substance satisfactory to
Lender, reflecting the change in the Fixed Loan and the Variable Loan pursuant to
Section
1.05
.
Conversion Request
means a written request, substantially in the form of
Exhibit
E
to the Agreement, to convert all or any portion of the Variable Loan to a Fixed Loan pursuant
to
Section 1.05
.
Coverage and LTV Tests
mean, for any specified date, each of the following financial
tests:
(a) The Aggregate Debt Service Coverage Ratio is not less than 1.35:1.0 with respect to the
amount of the Fixed Loan and any fixed rate Supplemental Loan, and 1.10:1.0 with respect to the
amount of the Variable Loan and any variable rate Supplemental Loan.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-6
(b) The Aggregate Loan to Value Ratio does not exceed seventy percent (70%).
Debt Service Amounts
shall have the meaning set forth in
Section 14.01(a)
.
Debt Service Coverage Ratio
means, for any Mortgaged Property, for any specified
date, the ratio (expressed as a percentage) of
(a) the Net Operating Income for the subject Mortgaged Property, as determined in accordance
with this Agreement
to
(b) the Facility Debt Service on the specified date, assuming, for the purpose of calculating
the Facility Debt Service for this definition, that the amount of the Term Loan Outstanding shall
be the Allocable Loan Amount and the amount of the Supplemental Loan Outstanding shall be the
Supplemental Allocable Loan Amount, in each case for the subject Mortgaged Property.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated thereunder.
Event of Default
means any event defined to be an Event of Default under
Article 11
.
Facility Debt Service
means
For use in determining the Aggregate Debt Service Coverage Ratio, for purposes of determining
compliance with the Coverage and LTV Tests, and in connection with the underwriting of any
substitution, release or conversion, the sum of:
the amount of interest and principal amortization, during the twelve (12) month
period immediately succeeding the specified date, with respect to the amount of the
Term Loan Outstanding and Supplemental Loan Outstanding (if any) on the specified
date, except that, for these purposes:
|
(A)
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each Variable Loan and Supplemental Loan shall
be deemed to require level monthly payments of principal and interest
(at a rate equal to (1) One-Month LIBOR plus (2) the Margin plus (3) a
stressed underwriting margin of 300 basis points or if the Underwriting
Requirements change to specify a new stressed underwriting margin which
is a specific number of basis points with no range or discretion in its
amount (the New Stressed Margin) then such New Stressed Margin plus
(D) any Monthly Cap Escrow Payment for the succeeding twelve (12) month
period) in an amount necessary to fully amortize the original principal
amount of the Variable Loan and Supplemental Loan over the
Amortization Period, with such amortization deemed to commence on the
first day of the twelve (12) month period;
|
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-7
|
(B)
|
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each Fixed Loan and Supplemental Loan that is a
cash execution shall require level monthly payments of principal and
interest (at the Cash Interest Rate for such Fixed Loan as set forth in
the Fixed Rate Note or for such Supplemental Loan in the note
evidencing such Supplemental Loan) in an amount necessary to fully
amortize the original principal amount of the Fixed Loan and
Supplemental Loan over the Amortization Period, with such amortization
to commence on the first day of the twelve (12) month period;
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(C)
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each Fixed Loan and Supplemental Loan that is
an MBS execution shall require level monthly payments of principal and
interest (at a rate equal to the (1) MBS Pass-Through Rate plus (2) the
Fixed Facility Fee) in an amount necessary to fully amortize the
original principal amount of the Fixed Loan and Supplemental Loan over
the Amortization Period, with such amortization to commence on the
first day of the twelve (12) month period.
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Fannie Mae
means the body corporate duly organized under the Federal National
Mortgage Association Charter Act, as amended, 12 U.S.C. §1716
et
seq
. and duly
organized and existing under the laws of the United States.
Fannie Mae Commitment
shall have the meaning set forth in
Section
1.05(d)(ii)
.
Fees
means Additional Collateral Due Diligence Fees, Supplemental Loan Fee, Initial
Due Diligence Fees, Initial Origination Fee, Release Fee, Substitution Fee, LOC Fee and any and all
other fees specified in the Agreement.
First Anniversary
means the date that is one year after the Initial Closing Date.
Fixed Facility Fee
means [
*
] on the Initial Closing Date and for
any Fixed Loan with a MBS execution resulting from a conversion or for any Supplemental Loan with a
MBS execution, the number of basis points determined at the time of such MBS execution by Lender as
the Fixed Facility Fee for such Fixed Loan or such Supplemental Loan.
Fixed Loan
means the loan in the amount of $420,000,000 evidenced by the Fixed Note,
plus such amount as Borrower may elect to convert to a Fixed Loan in accordance with
Section
1.05
.
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*
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Indicates material that has been omitted and for which
confidential treatment has been requested. All such omitted material has been
filed with the Securities and Exchange Commission pursuant to Rule 406
promulgated under the Securities Act of 1933, as amended.
|
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-8
Fixed Loan Termination Date
means May 1, 2019
,
which date may be extended pursuant
to the terms of
Section 1.05(e)(ii).
Fixed Note
means a promissory note (together with all schedules, riders, allonges,
addenda, renewals, extensions, amendments and modifications thereto) which will be issued by
Borrower to Lender, concurrently with the funding of the Fixed Loan on the Initial Closing and upon
the conversion of all or a portion of the Variable Loan to a Fixed Loan, to evidence Borrowers
obligation to repay the Fixed Loan, and which promissory note will be the same or substantially
similar in form to the promissory note issued by Borrower to Lender in connection with the Fixed
Loan made on the Initial Closing Date or if no promissory note evidencing a Fixed Loan is issued by
Borrower to Lender on the Initial Closing Date, the promissory note will be in the then current
form of promissory note utilized by Fannie Mae for Fixed Loans.
GAAP
means generally accepted accounting principles in the United States in effect
from time to time, consistently applied or any other principles required under Applicable Law.
General Conditions
shall have the meaning set forth in
Article 6
.
Governmental Approval
means an authorization, permit, consent, approval, license,
registration or exemption from registration or filing with, or report to, any Governmental
Authority.
Governmental Authority
means any court, board, agency, commission, office or
authority of any nature whatsoever for any governmental unit (federal, state, county, district,
municipal, city or otherwise) whether now or hereafter in existence.
Gross Revenues
means, for any specified period, with respect to any Multifamily
Residential Property, all income in respect of such Multifamily Residential Property as reflected
on the certified operating statement for such specified period as adjusted to exclude unusual
income (e.g. temporary or nonrecurring income), income not allowed by Lender for similar loans
anticipated to be sold to Fannie Mae (e.g. interest income, furniture income, etc.), and the value
of any unreflected concessions.
Guarantor
means Camden or a substitute Guarantor consented to by Lender.
Guaranty
means the Guaranty executed by Guarantor as of the date hereof, as the same
may be amended, restated, modified or supplemented from time to time.
Hazardous Substance Activity
means, with respect to any Mortgaged Property, any
storage, holding, existence, release, spill, leaking, pumping, pouring, injection, escaping,
deposit, disposal, dispersal, leaching, migration, use, treatment, emission, discharge, generation,
processing, abatement, removal, disposition, handling or transportation of any Hazardous Materials
(as defined in the Security Instrument) from, under, into or on such Mortgaged Property in
violation of Hazardous Materials Laws (as defined in the Security Instrument), including the
discharge of any Hazardous Materials emanating from such Mortgaged Property in
violation of Hazardous Materials Laws through the air, soil, surface water, groundwater or
property and also including the abandonment or disposal of any barrels, containers and other
receptacles containing any Hazardous Materials from or on such Mortgaged Property in violation of
Hazardous Materials Laws, in each case whether sudden or nonsudden, accidental or nonaccidental.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-9
Hedging Arrangement
means any interest rate swap, interest rate cap or other
arrangement, contractual or otherwise, which has the effect of an interest rate swap or interest
rate cap or which otherwise (directly or indirectly, derivatively or synthetically) hedges interest
rate risk associated with being a debtor of variable rate debt or any agreement or other
arrangement to enter into any of the above on a future date or after the occurrence of one or more
events in the future.
Highest Rating Category
means an S&P rating category of A-1+ for instruments
having a term of one year or less and AAA for instruments having a term of greater than one year,
and a Moodys rating category of P-1 for instruments having a term of one year or less and Aaa
for instruments having a term greater than one year.
IDOT Guaranty
means the Guaranty executed by Camden Summit as of the date hereof, as
the same may be amended, restated, modified or supplemented from time to time.
Impositions
means, with respect to any Mortgaged Property, all (1) water and sewer
charges which, if not paid, may result in a lien on all or any part of the Mortgaged Property, (2)
premiums for fire and other hazard insurance, rent loss insurance and such other insurance as
Lender may require under any Security Instrument, (3) Taxes, and (4) amounts for other charges and
expenses which Lender at any time reasonably deems necessary to protect the Mortgaged Property, to
prevent the imposition of liens on the Mortgaged Property, or otherwise to protect Lenders
interests.
Indebtedness
means, with respect to any Person, as of any specified date, without
duplication, all:
(a) indebtedness of such Person for borrowed money or for the deferred purchase price of
property or services (other than (i) current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices, and (ii) for construction of
improvements to property, if such person has a non-contingent contract to purchase such property);
(b) other indebtedness of such Person that is evidenced by a note, bond, debenture or similar
instrument;
(c) obligations of such Person under any lease of property, real or personal, the obligations
of the lessee in respect of which are required by GAAP to be capitalized on a balance sheet of the
lessee or to be otherwise disclosed as such in a note to such balance sheet;
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-10
(d) obligations of such Person in respect of acceptances (as defined in Article 3 of the
Uniform Commercial Code of the District of Columbia) issued or created for the account of such
Person;
(e) liabilities secured by any Lien on any property owned by such Person even though such
Person has not assumed or otherwise become liable for the payment of such liabilities; and
(f) as to any Person (
guaranteeing person
), any obligation of (a) the guaranteeing
person or (b) another Person (including any bank under any letter of credit) to induce the creation
of a primary obligation (as defined below) with respect to which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case guaranteeing, or in effect
guaranteeing, any indebtedness, lease, dividend or other obligation (
primary obligations
)
of any third person (
primary obligor
) in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or not contingent, to (1) purchase any
such primary obligation or any property constituting direct or indirect security therefor,
(2) advance or supply funds for the purchase or payment of any such primary obligation or to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (3) purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, or (4) otherwise assure or hold harmless the
owner of any such primary obligation against loss in respect of the primary obligation, provided,
however, that the term
Contingent Obligation
shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation of any guaranteeing person shall be deemed to be the lesser of (i) an amount
equal to the stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made and (ii) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Contingent Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Contingent Obligation shall be such
guaranteeing persons maximum reasonably anticipated liability in respect thereof as determined by
such person in good faith.
Indemnification Agreement Regarding Taxes
means that certain Indemnification
Agreement Regarding Taxes executed by Borrower, Camden and Camden Summit on the Initial Closing
Date.
Initial Borrower
means each Borrower under this Agreement as of the Initial Closing
Date and its permitted successors and assigns.
Initial Closing Date
means the date of the Agreement.
Initial Due Diligence Fees
shall have the meaning set forth in
Section
10.02(a)
.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-11
Initial Mortgaged Properties
means the Multifamily Residential Properties described
on
Exhibit A
to the Agreement and which represent the Multifamily Residential Properties
which are made part of the Collateral Pool on the Initial Closing Date.
Initial Origination Fee
shall have the meaning set forth in
Section
10.01(a)
.
Initial Security Instruments
means the Security Instruments covering the Initial
Mortgaged Properties.
Initial Valuation
means, when used with reference to specified Collateral, the
Valuation initially performed for the Collateral as of the date on which the Collateral was added
to the Collateral Pool. The Initial Valuation for each of the Initial Mortgaged Properties is as
set forth in
Exhibit A
to the Agreement.
Interest Rate Cap
shall have the meaning set forth in
Section 1.12
.
Interest Rate Cap Documents
means the Pledge, Interest Rate Cap Agreement and any
and all other documents required pursuant thereto or hereto or as Lender shall require from time to
time in connection with Borrowers obligation to maintain an Interest Rate Cap for the term of the
Variable Loan.
Insurance Policy
means, with respect to a Mortgaged Property, the insurance coverage
and insurance certificates evidencing such insurance required to be maintained pursuant to the
Security Instrument encumbering the Mortgaged Property.
Internal Revenue Code
means the Internal Revenue Code of 1986, as amended. Each
reference to the Internal Revenue Code shall be deemed to include (a) any successor internal
revenue law and (b) the applicable regulations whether final, temporary or proposed.
Lease
means any lease, any sublease or subsublease, license, concession or other
agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any
Person is granted a possessory interest in, or right to use or occupy all or any portion of any
space in any Mortgaged Property, and every modification, amendment or other agreement relating to
such lease, sublease, subsublease or other agreement entered into in connection with such lease,
sublease, subsublease or other agreement, and every guarantee of the performance and observance of
the covenants, conditions and agreements to be performed and observed by the other party thereto.
Lender
means Red Mortgage Capital, Inc., an Ohio corporation and any replacement
Lender designated by Fannie Mae, and its successors and assigns.
Letter of Credit
means a letter of credit issued by an LOC Bank satisfactory to
Fannie Mae naming Fannie Mae as beneficiary, in form and substance as attached hereto as
Exhibit P
.
Lien
means any mortgage, deed of trust, deed to secure debt, security interest or
other lien or encumbrance (including both consensual and non-consensual liens and encumbrances).
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-12
Liquidity
means, at any time, the amount of cash and Cash Equivalents owned by a
Person.
Loan Documents
means the Agreement, the Notes, the Security Documents, the Guaranty,
the IDOT Guaranty, the Indemnification Agreement Regarding Taxes, all documents executed by
Borrower or Guarantor pursuant to the General Conditions set forth in
Section 6.01
of the
Agreement and any other documents executed by Borrower or Guarantor from time to time in connection
with the Agreement or the transactions contemplated by the Agreement.
Loan Document Taxes
shall have the meaning set forth in
Section 8.10
.
Loan to Value Ratio
means, for a Mortgaged Property, for any specified date, the
ratio (expressed as a percentage) of
(a) the Allocable Loan Amount of the subject Mortgaged Property on the specified date,
to
(b) the Valuation most recently obtained prior to the specified date for the subject
Mortgaged Property.
LOC Bank
means any financial institution issuing the Letter of Credit and meeting
the requirements set forth in Section 6.15(a).
LOC Fee
shall have the meaning set forth in
Section 13.04(b)
.
Margin
has the definition set forth in the Variable Note or the note evidencing a
Supplemental Loan, as applicable.
Material Adverse Effect
means, with respect to any circumstance, act, condition or
event of whatever nature (including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, or circumstance or circumstances, whether or not
related, a material adverse change in or a materially adverse effect upon any of (a) the business,
operations, property or condition (financial or otherwise) of Borrower or Guarantor, as applicable,
to the extent specifically referred to in the applicable provision of the applicable Loan Document,
(b) the present or future ability of Borrower to perform the Obligations for which it is liable, or
of Guarantor to perform its obligations under the Guaranty, as the case may be, to the extent
specifically referred to in the applicable provision of the applicable Loan Document, (c) the
validity, priority, perfection or enforceability of the Agreement or any other Loan Document or the
rights or remedies of Lender under any Loan Document, or (d) the value of, or Lenders ability to
have recourse against, any Mortgaged Property.
Maximum Annual Interest Rate
shall have the meaning set forth in
Section
1.05(d)(ii)
.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-13
Maximum Escrow Amount
shall have the meaning set forth in
Section 13.04(a)
.
MBS
means a mortgage-backed security issued by Fannie Mae which is backed by a
Fixed Loan and has an interest in the Note and the Collateral Pool securing the Note, which
interest permits the holder of the MBS to participate in the Note and the Collateral Pool to the
extent of such Fixed Loan.
MBS Commitment
shall have the meaning set forth in
Section 1.05(d)(iii)
.
MBS Delivery Date
means the date on which an MBS is delivered by Fannie Mae.
MBS Issue Date
means the date on which an MBS is issued by Fannie Mae.
MBS Pass-Through Rate
means [
*
] for the initial Fixed Loan, and for
any Fixed Loan or Supplemental Loan, the interest rate as calculated by Lender (rounded to three
places) payable in respect of the Fannie Mae MBS issued pursuant to the MBS Commitment backed by a
Fixed Loan as determined in accordance with
Section 1.05
or by a Supplemental Loan, as
applicable. For purposes of clarity, the MBS Pass-Through Rate does not include the Fixed Facility
Fee.
Monthly Cap Escrow Payment
shall have the same meaning as the term Monthly Deposit
in the Pledge, Interest Rate Cap Agreement.
Moodys
means Moodys Investors Service, Inc., a corporation organized and existing
under the laws of the State of Delaware, and its successors and assigns, if such successors and
assigns shall continue to perform the functions of a securities rating agency.
Mortgaged Properties
means, collectively, the Substitute Mortgaged Properties and
the Initial Mortgaged Properties, but excluding each Release Mortgaged Property from and after the
date of its release from the Collateral Pool.
Multiemployer Plan
shall have the meaning set forth in Section 4001(a)(3) of ERISA.
Multifamily Residential Property
means a residential property, located in the United
States, containing five or more dwelling units in which not more than twenty percent (20%) of the
net rentable area is or will be rented to non-residential tenants, and conforming to Fannie Maes
then current guidelines.
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*
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Indicates material that has been omitted and for which
confidential treatment has been requested. All such omitted material has been
filed with the Securities and Exchange Commission pursuant to Rule 406
promulgated under the Securities Act of 1933, as amended.
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Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-14
Net Operating Income
means, for any specified period, with respect to any Mortgaged
Property, the aggregate net income during such period equal to Gross Revenues during such period
less the aggregate Operating Expenses during such period. If a Mortgaged Property is not
owned by a Borrower or an Affiliate of a Borrower for the entire specified period, the Net
Operating Income for the Mortgaged Property for the time within the specified period during which
the Mortgaged Property was owned by a Borrower or an Affiliate of a Borrower shall be the Mortgaged
Propertys pro forma net operating income determined by Lender in accordance with the underwriting
procedures set forth by Lender for similar loans anticipated to be sold to Fannie Mae.
Net Worth
means, as of any specified date, for any Person, the excess of the
Persons assets over the Persons liabilities, determined in accordance with GAAP on a consolidated
basis, provided that all real property shall be valued on an undepreciated basis.
New Collateral Pool Borrower
shall have the meaning set forth in
Section
8.13(c)
.
Note
means each Fixed Note and/or each Variable Note.
Obligations
means the aggregate of the obligations of Borrower and Guarantor under
the Agreement and the other Loan Documents.
One-Month LIBOR
means the London interbank offered rate for One-Month U.S. Dollar
deposits, as such rate is reported in the Wall Street Journal. In the event that a rate is not
published for One-Month LIBOR, then the nearest equivalent duration London interbank offered rate
for U.S. Dollar deposits shall be selected at Lenders reasonable discretion. If the publication
of One-Month LIBOR is discontinued, Lender shall determine such rate from another equivalent source
selected by Lender in its reasonable discretion.
Operating Expenses
means, for any period, with respect to any Mortgaged Property,
all expenses in respect of such Mortgaged Property, as determined by Lender based on the certified
operating statement for such specified period as adjusted to provide for the following: (i) all
appropriate types of expenses, including a management fee, deposits for the replacement reserves
(whether funded or not), and deposits for completion/repair reserves are included in the total
operating expense figure; (ii) upward adjustments to individual line item expenses to reflect
market norms or actual costs and correct any unusually low expense items, which could not be
replicated by a different owner or manager (
e.g.
, a market rate management fee will be
included regardless of whether or not a management fee is charged, market rate payroll will be
included regardless of whether shared payroll provides for economies, etc.); and (iii) downward
adjustments to individual line item expenses to reflect unique or aberrant costs (
e.g.
,
non-recurring capital costs, non-operating borrower expenses, etc.).
Organizational Certificate
means, collectively, certificates from Borrower and
Guarantor to Lender, in the form of
Exhibits D-1
and
D-2
to the Agreement,
certifying as to certain organizational matters with respect to each Borrower and Guarantor.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-15
Organizational Documents
means all certificates, instruments and other documents
pursuant to which an organization is organized or operates, including but not limited to, (i) with
respect to a corporation, its articles of incorporation and bylaws, (ii) with respect to a limited
partnership, its limited partnership certificate and partnership agreement, (iii) with respect
to a general partnership or joint venture, its partnership or joint venture agreement and (iv) with
respect to a limited liability company, its articles of organization and operating agreement.
Outstanding
or
outstanding
means, when used in connection with promissory
notes, other debt instruments or the Term Loan or the Supplemental Loan, for a specified date,
promissory notes or other debt instruments which have been issued, or loans which have been made,
to the extent not repaid in full as of the specified date.
Ownership Interests
means, with respect to any entity, any ownership interests in
the entity and any economic rights (such as a right to distributions, net cash flow or net income)
to which the owner of such ownership interests is entitled.
PBGC
means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.
Permits
means all permits, or similar licenses or approvals issued and/or required
by an applicable Governmental Authority or any Applicable Law in connection with the ownership,
use, occupancy, leasing, management, operation, repair, maintenance or rehabilitation of any
Mortgaged Property or any Borrowers business.
Permitted Liens
means, with respect to a Mortgaged Property, (i) the exceptions to
title to the Mortgaged Property set forth in the Title Insurance Policy for the Mortgaged Property
which are approved by Lender, (ii) the Security Instrument encumbering the Mortgaged Property,
(iii) any other Liens approved by Lender, (iv) mechanics liens provided the same is removed or
bonded within thirty (30) days of notice of filing, and (v) real estate taxes and water and sewer
and other utility charges that are a lien but not yet due and payable.
Person
means an individual, an estate, a trust, a corporation, a partnership, a
limited liability company or any other organization or entity (whether governmental or private).
Plan
means at any time an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code
and is either (i) maintained by a member of the Controlled Group for employees of any member of the
Controlled Group or (ii) maintained pursuant to a collective bargaining agreement or any other
agreement under which more than one employer makes contributions and to which a member of the
Controlled Group is then making or accruing an obligation to make contributions or has within the
preceding five (5) plan years made contributions.
Pledge, Interest Rate Cap Agreement
means that certain Pledge, Interest Rate Cap
Reserve and Security Agreement executed by the Borrowers as of the date hereof, as the same may be
amended, restated, modified or supplemented from time to time, or as executed by Borrower in
connection with a Supplemental Loan.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-16
Potential Event of Default
means any event that, with the giving of notice or the
passage of time, or both, would constitute an Event of Default.
Property
means any estate or interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
Qualified Financial Institution
means any of the following having a senior unsecured
debt rating in the Highest Rating Category and approved by Fannie Mae:
(a) bank or trust company organized under the laws of any state of the United States of
America,
(b) national banking association,
(c) savings bank, a savings and loan association, or an insurance company or association
chartered or organized under the laws of any state of the United States of America,
(d) federal branch or agency pursuant to the International Banking Act of 1978 or any
successor provisions of law or a domestic branch or agency of a foreign bank which branch or agency
is duly licensed or authorized to do business under the laws of any state or territory of the
United States of America,
(e) government bond dealer reporting to, trading with, and recognized as a primary dealer by
the Federal Reserve Bank of New York, and
(f) securities dealer approved in writing by Fannie Mae the liquidation of which is subject to
the Securities Investors Protection Corporation or other similar corporation.
Rate Form
means the completed and executed document from Borrower to Lender pursuant
to
Section 1.05(d)(ii)
, substantially in the form of
Exhibit G
to the Agreement,
specifying the terms and conditions of the MBS to be issued for the converted Fixed Loan.
Rate Setting Date
shall have the meaning set forth in
Section 1.05(d)(ii)
.
Release Documents
mean instruments releasing the applicable Security Instrument as a
Lien on a Mortgaged Property, and UCC-3 Termination Statements terminating the UCC-1 Financing
Statements, and such other documents and instruments to evidence the release of such Mortgaged
Property from the Collateral Pool.
Release Fee
means with respect to any release effected in accordance with Section
3.04(c), a fee in the amount of $5,000 per Release Mortgaged Property.
Release Mortgaged Property
means the Mortgaged Property to be released pursuant to
Article 3
.
Release Price
shall have the meaning set forth in
Section 3.04(c)
.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-17
Release Request
means a written request, substantially in the form of
Exhibit
T
to the Agreement, to obtain a release of Collateral from the Collateral Pool pursuant to
Section 3.04(a)
.
Remaining Mortgaged Properties
shall have the meaning set forth in
Section
6.05(g)
.
Rent Roll
means, with respect to any Multifamily Residential Property, a rent roll
prepared and certified by the owner of the Multifamily Residential Property, on Fannie Mae Form
4243 or on another form approved by Lender and containing substantially the same information as
Form 4243 requires, it being acknowledged that the forms attached hereto as
Exhibit R
are
satisfactory to Lender.
Replacement Reserve Agreement
means a Master Replacement Reserve and Security
Agreement required by Lender, and satisfying Lenders requirements, as the same may be amended,
modified or supplemented from time to time.
Request
means a Release Request, a Substitution Request, or a Conversion Request.
Required Escrow Payments
shall have the meaning given that term in
Section
13.01(a)
of this Agreement.
Rescinded Payment
shall have the meaning given that term in
Section 14.10
of
this Agreement.
S&P
shall mean Standard & Poors Credit Markets Services, a division of The
McGraw-Hill Companies, Inc., a New York corporation, and its successors and assigns, if such
successors and assigns shall continue to perform the functions of a securities rating agency.
Security
means a security as set forth in Section 2(1) of the Securities Act of
1933, as amended.
Security Documents
means the Security Instruments, the Replacement Reserve
Agreement, the Completion/Repair and Security Agreement and any other documents executed by
Borrower from time to time to secure any of Borrowers obligations under the Loan Documents as the
same may be amended, restated, modified or supplemented from time to time.
Security Instrument
means, for each Mortgaged Property, a Multifamily Mortgage, Deed
of Trust or Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement and that
certain Indemnity Multifamily Deed of Trust, Assignment of Rents and Security Agreement, given by a
Borrower to or for the benefit of Lender to secure the obligations of Borrower and Camden Summit
(with respect to the Mortgaged Property known as Camden Russett) under the Loan Documents. With
respect to each Mortgaged Property owned by a Borrower or Camden Summit (with respect to the
Mortgaged Property known as Camden Russett), the Security Instrument shall be substantially in the
form published by Fannie Mae for use in the state in which the Mortgaged Property is located. The
amount secured by the Security Instrument shall be equal to the Term Loan amount.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-18
Senior Management
means (i) Richard J. Campo, (ii) D. Keith Oden and (iii) Dennis M.
Steen.
Servicer
means a multifamily seller and servicer approved by Fannie Mae, which
initially shall be Red Mortgage Capital, Inc., an Ohio corporation, and any permitted successor or
assign.
Single-Purpose
means, with respect to a Person that is any form of partnership or
corporation or limited liability company, that such Person at all times since its formation:
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(i)
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has been a duly formed and existing partnership, corporation or limited
liability company, as the case may be;
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(ii)
|
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has been duly qualified in each jurisdiction in which such qualification was at
such time necessary for the conduct of its business;
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(iii)
|
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has complied with the provisions of its organizational documents and the laws
of its jurisdiction of formation in all respects;
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(iv)
|
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has observed all customary formalities regarding its partnership or corporate
existence, as the case may be;
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(v)
|
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has accurately maintained its income and expense statements, records and other
partnership or corporate documents separate from those of any other Person;
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(vi) has not commingled its assets or funds with those of any other Person;
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(vii)
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has identified itself in all dealings with creditors (other than trade
creditors in the ordinary course of business and creditors for the construction of
improvements to property on which such Person has a non-contingent contract to purchase
such property) under its own name and as a separate and distinct entity;
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(viii) has been adequately capitalized in light of its contemplated business operations;
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(ix)
|
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has not assumed, guaranteed or become obligated for the liabilities of any
other Person (except in connection with the Term Loan or the endorsement of negotiable
instruments in the ordinary course of business) or held out its credit as being
available to satisfy the obligations of any other Person;
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(x) has not acquired obligations or securities of any other Person;
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(xi)
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in relation to a Borrower, except for loans made in the ordinary course of
business to Affiliates, has not made loans or advances to any other Person;
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(xii)
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has not entered into and was not a party to any transaction with any Affiliate
of such Person, except in the ordinary course of business and on terms which are no
less favorable to such Person than would be obtained in a comparable arms-length
transaction with an unrelated third party;
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Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-19
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(xiii)
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has paid the salaries of its own employees, if any, and maintained a sufficient
number of employees in light of its contemplated business operations;
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(xiv) has allocated fairly and reasonably any overhead for shared office space;
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(xv)
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has not engaged in a non-exempt prohibited transaction described in Section 406
of ERISA or Section 4975 of the Internal Revenue Code; and
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(xvi) has complied with the requirements of Section 33 of the Security Instrument.
Substitution
shall have the meaning set forth in
Section 3.05(a)
.
Substitution Fee
means with respect to any Substitution effected in accordance with
Section 3.05
, a fee in the amount which is the greater of (i) 50 basis points multiplied by
the Allocable Loan Amount of the Mortgaged Property being added in connection with the
Substitution, and (ii) $50,000 per Substitute Mortgaged Property.
Substitution Request
means the written request to add a Substitute Mortgaged
Property to the Collateral Pool pursuant to
Section 3.05
,
Section 3.06
and
Section 3.07
.
Supplemental Allocable Loan Amount
shall have the meaning set forth in
Section
2.02
.
Supplemental Loan
means such loan given in accordance to the Fannie Mae Supplemental
Loan product.
Supplemental Loan Documents
shall have the meaning set forth in
Section
2.02
.
Supplemental Loan Fee
means with respect to any Supplemental Loan effected in
accordance with
Section 2.02
, a fee in the amount which is the greater of (i) 50 basis
points multiplied by the Supplemental Loan amount, and (ii) $50,000.
Survey
means the as-built survey of each Mortgaged Property prepared in accordance
with Lenders requirements for similar loans that are anticipated to be sold to Fannie Mae.
Taxes
means all taxes, assessments, vault rentals and other charges, if any,
general, special or otherwise, including all assessments for schools, public betterments and
general or local improvements, which are levied, assessed or imposed by any public authority or
quasi-public authority, and which, if not paid, will become a lien, on the Mortgaged Properties.
Targeted Entity
means individually and collectively, Borrower, Guarantor, Camden CPT
Member, Camden CUSA Member, Camden Legacy Park Member, Camden CSP Member, Camden General Partner,
Camden OP, Camden USA, CPT-GP, Inc., CPT-LP, Inc and shall
exclude any Targeted Entity that no longer owns directly or indirectly any Mortgaged Property
on account of the release of a Mortgaged Property.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-20
Term Loan
means each Variable Loan and/or each Fixed Loan.
Term of this Agreement
shall be determined as provided in
Section 15.10
.
Termination Date
means at any time during which a Fixed Loan is Outstanding, the
latest maturity date for any Fixed Loan and at any time during which a Variable Loan is
Outstanding, the Variable Loan Termination Date.
Title Company
means First American Title Insurance Company.
Title Insurance Policies
means the mortgagees policies of title insurance issued by
the Title Company from time to time relating to each of the Security Instruments, conforming to
Lenders requirements for similar loans anticipated to be sold to Fannie Mae, together with such
endorsements, coinsurance, reinsurance and direct access agreements with respect to such policies
as Lender may, from time to time, consider necessary or appropriate, including variable credit
endorsements, if available, and tie-in endorsements, if available, and with a limit of liability
under the policy (subject to the limitations contained in sections of the Stipulations and
Conditions of the policy relating to a Determination and Extent of Liability) equal to the Term
Loan amount.
Transfer
means
(1) as used with respect to ownership interests in a Targeted Entity (i) a sale, assignment,
pledge, transfer or other disposition of any ownership interest in a Targeted Entity, or (ii) the
issuance or other creation of new ownership interests in a Targeted Entity or (iii) a merger or
consolidation of Targeted Entity into another entity or of another entity into Targeted Entity, as
the case may be or (iv) the reconstitution of Targeted Entity from one type of entity to another
type of entity, or (v) the amendment, modification or any other change in the governing instrument
or instruments of Targeted Entity which has the effect of materially changing the relative powers,
rights, privileges, voting rights or economic interests of the ownership interests in such Targeted
Entity.
(2) as used with respect to ownership interests in a Mortgaged Property, (i) a sale,
assignment, lease, pledge, transfer or other disposition (whether voluntary or by operation of law)
of, or the granting or creating of a lien (other than a Permitted Lien), encumbrance or security
interest in, any estate, rights, title or interest in a Mortgaged Property, or any portion thereof.
Transfer does not include a conveyance of a Mortgaged Property at a judicial or non-judicial
foreclosure sale under any security instrument or the Mortgaged Property becoming part of a
bankruptcy estate by operation of law under the Bankruptcy Code.
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-21
Underwriting Requirements
means Lenders overall underwriting requirements for
multifamily residential properties in connection with loans anticipated to be sold to Fannie Mae,
pursuant to Fannie Maes then current guidelines, including, without limitation, requirements
relating to Appraisals, physical needs assessments, environmental site assessments, and exit
strategies, as such requirements may be amended, modified, updated, superseded, supplemented or
replaced from time to time.
Valuation
means, for any specified date, with respect to a Multifamily Residential
Property, (a) if an Appraisal of the Multifamily Residential Property was more recently obtained
than a Capitalization Rate for the Multifamily Residential Property, the Appraised Value of such
Multifamily Residential Property, or (b) if a Capitalization Rate for the Multifamily Residential
Property was more recently obtained than an Appraisal of the Multifamily Residential Property, the
value derived by dividing
(i) the Net Operating Income of such Multifamily Residential Property, by
(ii) the most recent Capitalization Rate determined by Lender.
Notwithstanding the foregoing, any Valuation for a Multifamily Residential Property calculated for
a date occurring before the first anniversary of the date on which the Multifamily Residential
Property becomes a part of the Collateral Pool shall equal the Appraised Value of such Multifamily
Residential Property, unless Lender determines that changed market or property conditions warrant
that the value be determined as set forth in the preceding sentence.
Variable Loan
means the loan evidenced by the Variable Note.
Variable Note
means the promissory note (together with all schedules, riders,
allonges, addenda, renewals, extensions, amendments and modifications thereto), which has been
issued by Borrower to Lender to evidence Borrowers obligation to repay the Variable Loan.
Variable Loan Termination Date
means May 1, 2019.
Voting Equity Capital
shall mean Securities of any class or classes, the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a majority of the board of
directors (or Persons performing similar functions).
Master Credit Facility Agreement
Definitions
Camden 2009
Appendix I-22