Maryland Maryland | 001-32265 333-181102-01 | 76-0753089 56-2473181 |
(State or other jurisdiction of incorporation or organization) | (Commission file number) | (I.R.S. Employer Identification Number) |
Exhibit Number | Title | |
Form of First Amendment to Fifth Amended and Restated Credit Agreement, dated as of February 13, 2019, among American Campus Communities Operating Partnership LP, as Borrower; American Campus Communities, Inc., as Guarantor; KeyBank National Association, as Administrative Agent; and each of the lenders from time to time party thereto |
Date: | February 20, 2019 | ||||||
AMERICAN CAMPUS COMMUNITIES, INC. | |||||||
By: | /s/ Kim K. Voss | ||||||
Kim K. Voss | |||||||
Executive Vice President, Chief Accounting Officer and Assistant Secretary | |||||||
AMERICAN CAMPUS COMMUNITIES OPERATING PARTNERSHIP LP | |||||||
By: | American Campus Communities Holdings LLC, its general partner | ||||||
By: | American Campus Communities, Inc., its sole member | ||||||
By: | /s/ Kim K. Voss | ||||||
Kim K. Voss | |||||||
Executive Vice President, Chief Accounting Officer and Assistant Secretary |
I. | COMMITMENTS. Each Lender hereby commits, severally, but not jointly, on the terms set forth in this Agreement to make the applicable Commitment Increase set forth on Schedule A hereto available to the Borrower on the First Amendment Effective Date (defined below) subject to the conditions precedent set forth in Section IV below. |
II. | AMENDMENTS. Pursuant to Section 9.01 of the Credit Agreement, the parties hereto agree that the Credit Agreement is hereby amended as follows: |
A. | Section 1.01 of the Credit Agreement is hereby amended by adding the following defined terms thereto, in the appropriate alphabetical location: |
B. | Section 2.07(a)(ii)(B) of the Credit Agreement is hereby replaced in its entirety with the following: |
C. | A new Section 2.07(e) is hereby added to the Credit Agreement as follows: |
D. | Schedule I of the Credit Agreement is hereby replaced in its entirety with Schedule I attached hereto. |
III. | REPRESENTATIONS. The Borrower, on its own behalf and on behalf of the other Loan Parties, makes, on the First Amendment Effective Date, the representations and warranties in Article IV of the Credit Agreement, and confirms that such representations and warranties are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) as of the date hereof, except to the extent any such representation or warranty relates solely to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date. Additionally, the Borrower represents and warrants that (a) immediately before and after giving effect to this Agreement on the date hereof, no Default exists, and (b) as of the date hereof, each of the conditions of Section 3.02(a) of the Credit Agreement is satisfied. |
IV. | CONDITIONS TO EFFECTIVENESS. This Agreement will become effective on the first date (the “First Amendment Effective Date”) on which the following conditions are satisfied: |
A. | The Administrative Agent shall have received counterparts of this Agreement executed and delivered by the Borrower, the Guarantor, each Lender and the Administrative Agent. |
B. | The Administrative Agent shall have received a First Amended and Restated Revolving Credit Note made by the Borrower and payable to each Lender. |
C. | The Administrative Agent shall have received a duly executed Notice of Borrowing with respect to the Commitment Increase. |
D. | The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower and each Guarantor, dated as of the First Amendment Effective Date, certifying (i) that attached thereto is a true and complete copy of each organizational document of such entity certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its incorporation or organization, as the case may be, (ii) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, managers, or other applicable governing body of such entity authorizing the execution, delivery and performance of the documents executed in connection with this Agreement, (iii) that attached thereto is a certificate of good standing (or certificate of similar meaning) with respect to each such entity issued as of a recent date by the Secretary of State of the state of its incorporation or organization, as the case may be, and (iv) as to the incumbency and specimen |
E. | The Administrative Agent shall have received an opinion of Dentons US LLP, counsel to the Borrower and the other Loan Parties, dated as of the First Amendment Effective Date, addressed to the Administrative Agent, the Issuing Banks and the Lenders and covering such matters as the Administrative Agent may reasonably request. |
F. | The Administrative Agent shall have received all reasonable fees and other amounts due and payable by the Borrower to the Administrative Agent, Arrangers and the Lenders on or prior to the date hereof, including, to the extent invoiced, reimbursement or payment of all out of pocket expenses required pursuant to the terms of the Credit Agreement to be reimbursed or paid by the Borrower in connection herewith. |
G. | Upon the reasonable request of any Lender made at least ten (10) days prior to the First Amendment Effective Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least five (5) days prior to the First Amendment Effective Date. |
H. | As of the date hereof, both immediately before and immediately after entering into this Agreement, no Default exists. |
I. | After giving effect to this Agreement, the Borrower is in compliance with the requirements of Section 2.16 of the Credit Agreement. |
V. | TERMS GENERALLY. Other than as set forth herein, for all purposes under the Credit Agreement and the other Loan Documents, the Commitment Increase shall have the same term as the initial Commitments and shall be treated for all terms and conditions in the same manner as the initial Commitments. Upon the occurrence of the First Amendment Effective Date, the Commitment Increase shall automatically and without further action by any Person constitute, for all purposes of the Credit Agreement and the other Loan Documents, part of the Revolving Credit Facility. The Administrative Agent shall take any and all action as may be reasonably necessary to ensure that the Commitment Increase is included in each |
VI. | CREDIT AGREEMENT GOVERNS. Notwithstanding anything to the contrary set forth in this Agreement, the Credit Agreement or the other Loan Documents and for the avoidance of doubt, the obligation of each Lender to make (i) its Increased Commitment available on the First Amendment Effective Date shall be subject to the satisfaction or waiver of the conditions set forth in Section IV above, and (ii) its portion of the Increased Commitment from time to time thereafter shall be subject to the terms and conditions of the Credit Agreement. |
VII. | CONFIRMATION OF GUARANTY. Each Loan Party (a) confirms its obligations under the Guaranty, (b) confirms that its obligations under the Credit Agreement as modified hereby constitute “Obligations” (as defined in the Credit Agreement), (c) confirms its guarantee of the Obligations under the Guaranty, (d) confirms that its obligations under the Credit Agreement as modified hereby are entitled to the benefits of the guarantee set forth in the Guaranty, and (e) agrees that the Credit Agreement as modified hereby is the Credit Agreement under and for all purposes of the Guaranty. Each Loan Party, by its execution of this Agreement, hereby confirms that the Obligations shall remain in full force and effect. |
A. | Each party hereto agrees, that except as specifically amended hereby, the Loan Documents shall remain unmodified and in full force and effect. |
B. | On and after the date hereof, references in the Credit Agreement or in any other Loan Document to the Loan Documents shall be deemed to be references to the Loan Documents as amended hereby and as further amended, restated, modified or supplemented from time to time. This Agreement shall constitute a Loan Document. |
C. | This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic mail message shall be effective as delivery of a manually executed counterpart of this Agreement. |
D. | This Agreement shall be construed in accordance with and governed by the law of the State of New York. Sections 9.13, 9.14 and 9.15 of the Credit Agreement are incorporated herein by reference, mutatis mutandis. |
E. | Any provision in this Agreement that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Agreement are declared to be severable. |
Lender | Commitment Increase |
KEYBANK NATIONAL ASSOCIATION | $42,400,000 |
JPMORGAN CHASE BANK, N.A. | $42,400,000 |
CAPITAL ONE, NATIONAL ASSOCIATION | $42,400,000 |
BANK OF AMERICA, N.A. | $28,800,000 |
DEUTSCHE BANK AG NEW YORK BRANCH | $28,800,000 |
U.S. BANK NATIONAL ASSOCIATION | $28,800,000 |
COMPASS BANK | $0 |
PNC BANK, NATIONAL ASSOCIATION | $28,800,000 |
WELLS FARGO BANK, NATIONAL ASSOCIATION | $28,800,000 |
REGIONS BANK | $28,800,000 |
Total | $300,000,000 |
Name of Initial Lender/ Initial Issuing Bank | Commitment | Letter of Credit Commitment | Swing Line Commitment | Commitment Percentage | Domestic Lending Office | Eurodollar Lending Office |
KeyBank National Association | $119,400,000 | $35,000,000 | $35,000,000 | 11.940000000000% | 127 Public Square, 8th Floor Cleveland, OH 44114-1306 Attn: Jon Bond Tel. 216-689-4495 Fax: 216-689-4997 Email: Jonathan_k_bond@keybank.com | 127 Public Square, 8th Floor Cleveland, OH 44114-1306 Attn: Jon Bond Tel. 216-689-4495 Fax: 216-689-4997 Email: Jonathan_k_bond@keybank.com |
JPMorgan Chase Bank, N.A. | $119,400,000 | $0 | $0 | 11.940000000000% | 10 South Dearborn Chicago, Illinois 60603 Attn. Jasmine C. Doke Tel: 312-732-2671 Fax: 312-233-2257 Email: cls.reb.chicago@jpmorgan.com | 10 South Dearborn Chicago, Illinois 60603 Attn. Jasmine C. Doke Tel: 312-732-2671 Fax: 312-233-2257 Email: cls.reb.chicago@jpmorgan.com |
Capital One, National Association | $119,400,000 | $0 | $0 | 11.940000000000% | 1680 Capital One Drive, 10th Floor Mclean, Virginia 22102 Attn: Barbara Heubner Tel: 703-720-6769 Fax: 703-720-2026 Email: Barbara.Heubner@capitalone.com | 1680 Capital One Drive, 10th Floor Mclean, Virginia 22102 Attn: Barbara Heubner Tel: 703-720-6769 Fax: 703-720-2026 Email: Barbara.Heubner@capitalone.com |
Bank of America, N.A. | $95,800,000 | $0 | $0 | 9.580000000000% | 700 Louisiana Street, 4th Floor Houston, TX 77002 Attn: Greg Nelson Tel: 713-247-7511 Fax: 312-453-6431 Email: greg.v.nelson@baml.com | 700 Louisiana Street, 4th Floor Houston, TX 77002 Attn: Greg Nelson Tel: 713-247-7511 Fax: 312-453-6431 Email: greg.v.nelson@baml.com |
Name of Initial Lender/ Initial Issuing Bank | Commitment | Letter of Credit Commitment | Swing Line Commitment | Commitment Percentage | Domestic Lending Office | Eurodollar Lending Office |
Deutsche Bank AG New York Branch | $95,800,000 | $0 | $0 | 9.580000000000% | 60 Wall Street New York, NY 10005 Attn: Ajit Subramanian Tel. 904-527-6628 Fax: 866-240-3622 Email: Loan.admin-NY@db.com Hanover Street Capital 200 Crescent Court, Suite 550 Dallas, TX 75201 Attn: Linda J. Davis Tel: (214) 740-7904 Email: linda-x.davis@db.com Deutsche Bank Securities, Inc. 60 Wall Street New York, NY 10005 Attn: Andrew Bartrop Tel: (212) 250-9139 Email: Andrew.Bartrop@db.com Deutsche Bank Securities Inc. 60 Wall Street, 10th Floor New York, NY 10005 Attn: Bernie Kaplan Tel: 212.250.9924 Email: bernie.kaplan@db.com 200 Crescent Court, Suite 550 Dallas, TX 75201 Attn: Scott Speer Tel: (214) 740-7903 Email: scott-x.speer@db.com | 60 Wall Street New York, NY 10005 Attn: Ajit Subramanian Tel. 904-527-6628 Fax: 866-240-3622 Email: Loan.admin-NY@db.com Hanover Street Capital 200 Crescent Court, Suite 550 Dallas, TX 75201 Attn: Linda J. Davis Tel: (214) 740-7904 Email: linda-x.davis@db.com Deutsche Bank Securities, Inc. 60 Wall Street New York, NY 10005 Attn: Andrew Bartrop Tel: (212) 250-9139 Email: Andrew.Bartrop@db.com Deutsche Bank Securities Inc. 60 Wall Street, 10th Floor New York, NY 10005 Attn: Bernie Kaplan Tel: 212.250.9924 Email: bernie.kaplan@db.com 200 Crescent Court, Suite 550 Dallas, TX 75201 Attn: Scott Speer Tel: (214) 740-7903 Email: scott-x.speer@db.com |
U.S. Bank National Association | $95,800,000 | $0 | $0 | 9.580000000000% | 13737 Noel Road, Suite 800 Dallas, Texas 75240 Attn: Patrick A. Trowbridge Tel: 972-581-1618 Fax: 972-581-1670 Email: Patrick.Trowbridge@usbank.com | 13737 Noel Road, Suite 800 Dallas, Texas 75240 Attn: Patrick A. Trowbridge Tel: 972-581-161 Fax: 972-581-1670 Email: Patrick.Trowbridge@usbank.com |
Compass Bank | $67,000,000 | $0 | $0 | 6.700000000000% | 1703 West 5th Street, Suite 500 Austin, TX 78703 Attn: Brian Tuerff Tel: 512-421-5716 Fax: 512-480-0431 Email: Brian.Tuerff@bbvacompass.com | 1703 West 5th Street, Suite 500 Austin, TX 78703 Attn: Brian Tuerff Tel: 512-421-5716 Fax: 512-480-0431 Email: Brian.Tuerff@bbvacompass.com |
Name of Initial Lender/ Initial Issuing Bank | Commitment | Letter of Credit Commitment | Swing Line Commitment | Commitment Percentage | Domestic Lending Office | Eurodollar Lending Office |
PNC Bank, National Association | $95,800,000 | $0 | $0 | 9.580000000000% | 13355 Noel Road, Suite 1770 (Mail Stop: XX-ARO4-01-1_ Dallas, TX 75240 Attn: Michael J. Catalano Tel. 972-361-2143 Fax: 972-490-6018 Email: Michael.Catalano@pnc.com | 13355 Noel Road, Suite 1770 (Mail Stop: XX-ARO4-01-1_ Dallas, TX 75240 Attn: Michael J. Catalano Tel. 972-361-2143 Fax: 972-490-6018 Email:Michael.Catalano@pnc.com |
Wells Fargo Bank, National Association | $95,800,000 | $0 | $0 | 9.580000000000% | 10 South Wacker Drive, 32nd Floor Chicago, IL 60606 Attn: Scott Solis Tel. 312-269-4818 Scott.S.Solis@wellsfargo.com | 10 South Wacker Drive, 32nd Floor Chicago, IL 60606 Attn: Scott Solis Tel. 312-269-4818 Scott.S.Solis@wellsfargo.com |
Regions Bank | $95,800,000 | $0 | $0 | 9.580000000000% | Regions Bank 1717 McKinney Avenue, 12th Floor Dallas, TX 75202 Attn: Barrett Vawter Tel: 469.608.2787 Fax: 469.608.2842 Email: barrett.vawter@regions.com | Regions Bank 1717 McKinney Avenue, 12th Floor Dallas, TX 75202 Attn: Barrett Vawter Tel: 469.608.2787 Fax: 469.608.2842 Email: barrett.vawter@regions.com |
Total | $1,000,000,000 | $35,000,000 | $35,000,000 | 100.000000000000% |