EXHIBIT 10.1
________________________________________________________________________________
CREDIT AGREEMENT
By and Among
WEEKS REALTY, L.P., WEEKS CONSTRUCTION SERVICES, INC.,
WEEKS REALTY SERVICES, INC., WEEKS DEVELOPMENT PARTNERSHIP
and WEEKS FINANCING LIMITED PARTNERSHIP,
as BORROWERS,
and
WEEKS REALTY, L.P.,
as BORROWERS' AGENT,
and
WEEKS REALTY, L.P. and
WEEKS CORPORATION,
as GUARANTORS,
and
EACH BANK THAT IS OR BECOMES A SIGNATORY HERETO,
as BANKS,
and
WACHOVIA BANK OF GEORGIA, N.A.,
as BANKS' AGENT,
and
WACHOVIA BANK OF GEORGIA, N.A.,
as SWING LENDER
and
in the Maximum Amount of
$175,000,000
September 25, 1996
________________________________________________________________________________
TABLE OF CONTENTS
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PAGE
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ARTICLE I
DEFINITIONS.................................................. 2
1.01 Defined Terms..................................... 2
"Acceptance and Assumption"....................... 2
"Additional Obligor".............................. 2
"Advance Request"................................. 2
"Affected Bank"................................... 2
"Affiliate"....................................... 2
"Agreement"....................................... 2
"Annualized NOI".................................. 2
"Assignee"........................................ 3
"Assignment and Acceptance"....................... 3
"Authorized Signatory"............................ 3
"Available Credit"................................ 3
"Available Swing Credit".......................... 3
"Banks"........................................... 3
"Banks' Agent".................................... 3
"Base Rate"....................................... 3
"Base Rate Loan".................................. 3
"BBA"............................................. 3
"Borrowers' Agent"................................ 3
"Breakage Costs".................................. 3
"Capitalized Lease Obligation".................... 4
"Change in Control"............................... 4
"Code"............................................ 5
"Commitment"...................................... 5
"Commitment Share"................................ 5
"Consolidated Entity"............................. 5
"Control"......................................... 5
"Debt"............................................ 5
"Debt Rating"..................................... 5
"Debt Rating Table"............................... 6
"Debt Securities"................................. 6
"Default"......................................... 6
"Development in Progress"......................... 6
"Development in Progress Value"................... 7
"Direct Financing Lease".......................... 7
"Direct Financing Lease Value".................... 7
"Dollars" or "$".................................. 7
"Domestic Business Day"........................... 7
"Employee Benefit Plan"........................... 7
"Environmental Laws".............................. 7
"ERISA"........................................... 7
"Euro-Dollar Business Day"........................ 7
"Expiration Date"................................. 7
"Extension Date".................................. 7
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"Federal Funds Rate"............................... 8
"Fixed Charges".................................... 8
"Fixed Charge Coverage Ratio"...................... 8
"Floating Rate".................................... 8
"Full Recourse Covenants".......................... 8
"Funds from Operations"............................ 8
"GAAP"............................................. 9
"Guaranty" or "Guarantee".......................... 9
"Income"........................................... 9
"Income Property".................................. 9
"Income Property Value"............................ 9
"Indebtedness for Money Borrowed".................. 9
"Initial Date"..................................... 10
"Initial Permitted Mortgage Debt".................. 10
"Intercompany Debt"................................ 10
"Interest Expense"................................. 10
"Interest Period".................................. 10
"Key Executives"................................... 11
"Land Held for Future Development"................. 11
"Land Value"....................................... 11
"Lending Office"................................... 11
"Leverage Ratio"................................... 11
"LIBOR Margin"..................................... 11
"LIBOR Rate"....................................... 12
"LIBOR Rate Loan".................................. 12
"Lien"............................................. 12
"Loan Documents"................................... 12
"Loans"............................................ 12
"Mandate Letter"................................... 12
"Margin Stock"..................................... 12
"Measurement Date"................................. 12
"Measurement Period"............................... 13
"Minority Interests"............................... 13
"Monthly LIBOR Index Rate"......................... 13
"Mortgage"......................................... 13
"Mortgage Debt".................................... 13
"MPPAA"............................................ 13
"Multiemployer Plan"............................... 13
"Non-Consolidated Subsidiary"...................... 13
"Notes"............................................ 13
"Notes Receivable Value"........................... 13
"Obligations"...................................... 13
"Participant"...................................... 14
"PBGC"............................................. 14
"Performance Pricing Determination Date"........... 14
"Permitted Encumbrances"........................... 14
"Permitted Guaranties"............................. 16
"Permitted Mortgage Debt".......................... 16
"Permitted Tax-Exempt Financing"................... 16
"Person"........................................... 17
"Prime Rate"....................................... 17
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"Prior Indebtedness to Wachovia"................... 17
"Property"......................................... 17
"Property Interest(s)"............................. 17
"Refunding Loan"................................... 17
"Reportable Event"................................. 17
"Required Banks"................................... 17
"Restricted Investment"............................ 18
"Revolving Credit Facility"........................ 18
"SEC".............................................. 18
"Subsidiary"....................................... 19
"Substances"....................................... 19
"Swing Lender"..................................... 19
"Swing Loan LIBOR Rate"............................ 19
"Swing Loan Note".................................. 19
"Swing Loans"...................................... 19
"Syndicated Loans"................................. 19
"Syndicated Master Note"........................... 19
"Taxes"............................................ 19
"Terminating Bank"................................. 20
"Total Annualized NOI"............................. 20
"Total Asset Value"................................ 20
"Total Debt"....................................... 20
"Total Interest Bearing Debt"...................... 20
"Total Secured Debt"............................... 20
"Total Unsecured Debt"............................. 20
"Unencumbered Property Value"...................... 20
"Venture Interests"................................ 20
"Venture Interests Value".......................... 21
"Weeks Guaranties"................................. 21
"Weeks Venture".................................... 21
1.02 Accounting Terms and Determinations................ 21
1.03 References......................................... 22
1.04 Use of Defined Terms............................... 22
1.05 Terminology........................................ 22
ARTICLE II
REVOLVING CREDIT FACILITY.................................... 22
2.01 Syndicated Loans................................... 22
2.02 Swing Loans........................................ 22
2.03 Facility Amount Reduction or Termination........... 22
2.04 Expiration; Extension.............................. 23
2.05 Rate of Interest on Syndicated Loans............... 24
2.06 Rate of Interest on Swing Loans.................... 24
2.07 Notice and Manner of Borrowing..................... 25
2.08 Automatic Conversion............................... 27
2.09 Interest Payments on Syndicated Loans.............. 27
2.10 Interest Payments on Swing Loans................... 27
2.11 Maturity........................................... 28
2.12 Participation in Swing Loans....................... 28
2.13 Notes.............................................. 28
2.14 Use of Loan Proceeds............................... 29
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2.15 Prepayment of Syndicated Loans..................... 30
2.16 Prepayment of Swing Loans.......................... 30
2.17 Mandatory Prepayments.............................. 31
2.18 General Provisions as to Payments.................. 31
2.19 Default Rate of Interest........................... 33
2.20 Fees............................................... 33
(a) Origination Fee................................ 34
(b) Extension Fees................................. 34
(c) Unused Commitment Fee.......................... 34
2.21 Limitation of Liability............................ 34
2.22 Increased Costs; Illegality; Capital Adequacy...... 35
2.23 Calculation of Compensation to Banks; Required
Transfer by Banks.................................. 36
ARTICLE III
BORROWERS' AGENT............................................. 37
3.01 Appointment of Borrowers' Agent.................... 37
3.02 Performance of Duties on Behalf of Borrowers....... 38
3.03 Termination of Agency.............................. 38
3.04 Disbursements of Loan Proceeds..................... 39
3.05 Recordkeeping...................................... 39
3.06 Covenant Not to ▇▇▇................................ 39
ARTICLE IV
BANKS' AGENT................................................. 40
4.01 Appointment; Powers and Immunities................. 40
4.02 Reliance by Banks' Agent........................... 41
4.03 Defaults........................................... 41
4.04 Rights of Banks' Agent as a Bank and as
Swing Lender....................................... 42
4.05 Indemnification.................................... 42
4.06 Consequential Damages.............................. 42
4.07 Payee of Note Treated as Owner..................... 42
4.08 Nonreliance on Banks' Agent and Other Banks or
Swing Lender....................................... 43
4.09 Failure to Act..................................... 43
4.10 Resignation or Removal of Banks' Agent............. 43
4.11 Directions to Banks' Agent......................... 44
ARTICLE V
CONDITIONS TO REVOLVING CREDIT FACILITY...................... 45
5.01 Operating Partnership's Authority.................. 45
5.02 Weeks Corporation's Authority...................... 45
5.03 Construction's Authority........................... 45
5.04 Realty's Authority................................. 45
5.05 Development's Authority............................ 45
5.06 Financing's Authority.............................. 46
5.07 Satisfactory Financial Condition................... 46
5.08 Representations and Warranties..................... 46
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5.09 Payment of Fees................................... 46
5.10 Syndicated Master Notes........................... 46
5.11 Swing Loan Note................................... 46
5.12 Weeks Guaranties.................................. 46
5.13 Certificates of Incumbency........................ 46
5.14 Other Documentation............................... 46
5.15 REIT Status....................................... 47
5.16 Opinion of Counsel................................ 47
5.17 Key Executives.................................... 47
5.18 Repayment of Debt................................. 47
5.19 General Conditions................................ 47
ARTICLE VI
CONDITIONS TO SYNDICATED LOANS................................ 47
6.01 Representations and Warranties.................... 47
6.02 Available Credit.................................. 47
6.03 No Material Adverse Change........................ 47
6.04 Full Compliance................................... 48
6.05 No Default; No Claims............................. 48
6.06 Incumbency........................................ 48
6.07 Advance Request................................... 48
ARTICLE VII
CONDITIONS TO SWING LOANS..................................... 48
7.01 Representations and Warranties.................... 48
7.02 Available Swing Credit............................ 48
7.03 General Conditions................................ 48
ARTICLE VIII
ENVIRONMENTAL MATTERS......................................... 49
8.01 Representations, Warranties....................... 49
8.02 Continued Compliance.............................. 50
ARTICLE IX
REPRESENTATIONS AND WARRANTIES................................ 50
9.01 Consolidated Entities and Non-Consolidated
Subsidiaries...................................... 50
9.02 Corporate Organization............................ 50
9.03 Limited Partnership Organization.................. 51
9.04 Development Organization.......................... 51
9.05 Power and Authority............................... 51
9.06 Enforceability.................................... 51
9.07 Violation of Organizational Documents............. 51
9.08 Conflicts......................................... 51
9.09 Title............................................. 52
9.10 Existence of Liens................................ 52
9.11 Financial Condition............................... 52
9.12 Litigation........................................ 52
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9.13 Foreign Qualifications............................. 52
9.14 Tax Obligations.................................... 52
9.15 Capital Stock...................................... 53
9.16 Insolvency......................................... 53
9.17 Margin Stock....................................... 53
9.18 Franchises, Licenses, Etc.......................... 53
9.19 ERISA.............................................. 54
9.20 Financial Statements............................... 55
9.2 Misrepresentations................................. 55
ARTICLE X
AFFIRMATIVE COVENANTS......................................... 55
10.01 Location of Records................................. 55
10.02 Inspection.......................................... 55
10.03 Financial and Other Information..................... 56
10.0 Governmental Obligations............................ 57
10.05 Insurance........................................... 58
10.06 Operation of Properties, Inspection................. 58
10.07 Preservation of Business............................ 59
10.08 Maintenance of Records.............................. 59
10.09 Notice of Adverse Changes........................... 59
10.10 Notice of Litigation................................ 60
10.11 Payment of Obligations.............................. 60
10.12 REIT Status......................................... 60
10.13 Compliance With Laws................................ 60
10.14 Notice of Exercise of Remedies Under Mortgages...... 61
10.15 Management.......................................... 61
10.16 Deposit Accounts.................................... 61
10.17 Intercompany Transactions........................... 61
10.18 Debt Rating........................................ .61
ARTICLE XI
NEGATIVE COVENANTS............................................. 61
11.01 Guaranties......................................... 61
11.02 Merger, Consolidation, etc......................... 62
11.03 Disposition of Assets.............................. 63
11.04 Judgments.......................................... 63
11.05 Indebtedness....................................... 63
11.06 Dividends and Distributions........................ 64
11.07 Material Adverse Changes........................... 64
11.08 Environmental Matters.............................. 65
11.09 Change in Control.................................. 65
11.10 Advances, Loans and Other Restricted Investments... 65
11.11 Liens.............................................. 66
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ARTICLE XII
FINANCIAL COVENANTS............................................ 66
12.01 Minimum Fixed Charge Coverage Ratio................. 66
12.02 Maximum Leverage.................................... 66
12.03 Maximum Unsecured Debt.............................. 66
12.04 Maximum Secured Debt................................ 66
12.05 Maximum Debt Yield.................................. 66
ARTICLE XIII
DEFAULT........................................................ 66
13.01 Nonpayment of Obligations........................... 66
13.02 Other Monetary Defaults of Weeks Corporation
or Borrowers..................................... 67
13.03 Defaults of Weeks Ventures.......................... 67
13.04 Breach of Warranty or Representation................ 67
13.05 Breach of Covenants................................. 67
13.06 Weeks Realty Partnership Agreement Defaults......... 67
13.07 Permitted Mortgage Debt Defaults.................... 68
13.08 Voluntary Insolvency Proceedings.................... 68
13.09 Involuntary Insolvency Proceedings.................. 68
13.10 Voluntary Receivership.............................. 68
13.11 Involuntary Receivership............................ 68
13.12 Assignment for the Benefit of Creditors............. 68
13.13 Insolvency.......................................... 68
13.14 Termination of Agency............................... 69
13.15 Interest Rate Agreements............................ 69
13.16 Weeks Guaranties.................................... 69
ARTICLE XIV
RIGHTS AND REMEDIES............................................ 69
14.01 Prior to Default.................................... 69
14.02 Upon Default........................................ 69
14.03 Cure of Defaults.................................... 69
14.04 Costs of Collection................................. 70
14.05 Setoff.............................................. 70
14.06 Sharing of Collections.............................. 71
ARTICLE XV
FEES AND EXPENSES; INDEMNIFICATION............................. 71
15.01 Fees and Expenses................................... 71
15.02 Agent's Administration Fee.......................... 72
15.03 Amendment, Waiver and Prepayment Fees............... 72
15.04 Indemnification..................................... 72
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ARTICLE XVI
MISCELLANEOUS................................................ 73
16.01 Cumulative Rights; Non-waiver...................... 73
16.02 No Obligation to Third Parties..................... 74
16.03 Successors and Assigns............................. 74
16.04 Governing Law...................................... 76
16.05 Survival of Obligations............................ 76
16.06 Entire Agreement................................... 77
16.07 Invalidity......................................... 77
16.08 Headings........................................... 77
16.09 Changes in Forms................................... 77
16.10 Notices............................................ 77
16.11 Amendments and Waivers............................. 79
16.12 Time of the Essence................................ 79
16.13 Execution in Counterparts.......................... 80
16.14 Joint and Several Liability........................ 80
16.15 Attorneys' Fees.................................... 80
16.16 Additional Parties................................. 80
16.17 Confidentiality.................................... 81
16.18 Representations by Banks and Swing Lender.......... 81
16.19 Miscellaneous...................................... 81
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TABLE OF EXHIBITS
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EXHIBIT DESCRIPTION REFERENCE SECTION
------- ----------- -----------------
A Acceptance and Assumption 1.01
B Advance Request 1.01
C Assignment and Acceptance 1.01
D Swing Loan Note 1.01
E Syndicated Master Note 1.01
F Unconditional Guaranty of Payment
and Performance (executed by Weeks
Corporation in favor of Banks and
Swing Lender) 1.01
G Unconditional Guaranty of Payment
and Performance (executed by Operating
Partnership in favor of Banks and
Swing Lender 10.03(b)
H Certificate of Chief Financial Officer 10.03(b)
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CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT (the "Agreement") is made and entered into as of
---------
September 25, 1996, by and among WEEKS REALTY, L.P., a Georgia limited
partnership ("Operating Partnership"), WEEKS CONSTRUCTION SERVICES, INC., a
---------------------
Georgia corporation ("Construction"), WEEKS REALTY SERVICES, INC., a Georgia
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corporation ("Realty"), WEEKS DEVELOPMENT PARTNERSHIP, a Georgia general
------
partnership ("Development"), WEEKS FINANCING LIMITED PARTNERSHIP, a Georgia
-----------
limited partnership ("Financing") (Operating Partnership, Construction, Realty,
---------
Development and Financing, collectively, "Borrowers," and each, individually, a
---------
"Borrower"); WEEKS REALTY, L.P., a Georgia limited partnership, in its capacity
--------
as Borrowers' Agent ("Borrowers' Agent"); WEEKS CORPORATION, a Georgia
----------------
corporation ("Weeks Corporation")(Weeks Corporation and Operating Partnership,
-----------------
collectively, "Guarantors," and each, individually, a "Guarantor"); each Bank
---------- ---------
that is or becomes a signatory hereto (collectively, "Banks," and each,
-----
individually, a "Bank"); WACHOVIA BANK OF GEORGIA, N.A., a national banking
----
association ("Wachovia"), in its capacity as Swing Lender hereunder ("Swing
-------- -----
Lender") and in its capacity as Banks' Agent hereunder (including any successor,
------
"Banks' Agent").
------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrowers desire to borrow, repay and reborrow money from Banks and
obtain swing loans from Swing Lender, on the terms and conditions set forth
herein; and
WHEREAS, Banks and Swing Lender are willing to make loans to Borrowers, in
amounts which do not exceed at any one time the principal sum outstanding of
$175,000,000.00, on the terms and conditions set forth herein; and
WHEREAS, Weeks Corporation is the sole general partner of Operating
Partnership, the loans will be to the direct financial interest and advantage of
Weeks Corporation, and in order to induce Banks and Swing Lender to enter into
this Agreement and to make loans to Borrowers pursuant to its terms, Weeks
Corporation has agreed to become a party to this Agreement and to become bound
by the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, the parties hereto agree as follows:
ARTICLE I
---------
DEFINITIONS
-----------
1.01 Defined Terms. In addition to those terms defined elsewhere in this
-------------
Agreement, as used in this Agreement, the following terms shall have the
following meanings, unless the context otherwise requires:
"Acceptance and Assumption" shall mean an Acceptance and Assumption
-------------------------
executed in accordance with the provisions of Section 16.16 and in the form of
Exhibit A, which is attached hereto and incorporated herein by reference.
---------
"Additional Obligor" shall have the meaning ascribed to such term in
------------------
Section 16.16.
"Advance Request" shall mean a request for a Loan in the form of Exhibit
--------------- -------
B, which is attached hereto and incorporated herein by reference.
-
"Affected Bank" shall have the meaning ascribed to such term in Section
-------------
2.23(c).
"Affiliate" shall mean any Person which, directly and/or indirectly,
---------
owns or Controls, on an aggregate basis, individually all beneficial ownership
and ownership or Control as a trustee, guardian or other fiduciary, in excess of
twenty percent (20%) of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors (irrespective of whether, at
the time, stock of any other class or classes of any Borrower shall have or
might have voting power by reason of the happening of any contingency).
"Agreement" shall mean this Credit Agreement, together with any
---------
amendments or supplements hereto and schedules or exhibits hereto.
"Annualized NOI" shall mean, with respect to an Income Property or a
--------------
Property subject to a Direct Financing Lease, as of any given date, the annual
net operating income from the collection of rents and reimbursements according
to leases in good standing, including income from property accounted for as
Direct Financing Leases, after deducting all expenses incurred to operate the
property, including, without limitation, an allocation of hypothetical
management fees of three percent (3%) of rent, administration, insurance,
repairs, maintenance, utilities, property taxes and a reasonable reserve for
structural replacements and repairs, but exclusive of any debt service payments
under any indebtedness secured by the subject property, if any, calculated by
annualizing the income received and expenses incurred during the quarterly
period ending most recently prior to such date, reported
2
in accordance with GAAP. "Annualized NOI" for properties acquired by the owner
--------------
thereof during any Measurement Period may be adjusted to reflect the actual
performance of such property for the entire quarterly period irrespective of the
date such property was acquired.
"Assignee" shall have the meaning ascribed to said term in Section
--------
16.03(b).
"Assignment and Acceptance" shall mean an Assignment and Acceptance
-------------------------
executed in accordance with the provisions of Section 16.03(c) and in the form
of Exhibit C, which is attached hereto and incorporated herein by reference.
---------
"Authorized Signatory" shall mean, with respect to a person, such senior
--------------------
personnel of such person as may be duly authorized and designated in writing by
such person to execute documents, agreements and instruments, including the Loan
Documents, on behalf of such person.
"Available Credit" shall mean the amount, if any, by which the Facility
----------------
Amount exceeds the aggregate principal amount of the Loans.
"Available Swing Credit" shall mean the lesser of (a) $5,000,000 or (b)
----------------------
the Available Credit.
"Banks" shall mean all Banks that are or become signatories to this
-----
Agreement. "Bank" means any one of such Banks.
----
"Banks' Agent" shall mean Wachovia, in its capacity as the agent for
------------
Banks in accordance with the agency established pursuant to the provisions of
Article IV.
"Base Rate" shall mean the higher of (a) the Prime Rate or (b) .50% per
---------
annum (50 basis points) plus the Federal Funds Rate.
"Base Rate Loan" shall mean a Syndicated Loan for which Borrowers shall
--------------
have elected the Floating Rate option in accordance with the provisions of
Section 2.05 or for which the interest rate shall have been automatically
converted to the Floating Rate in accordance with the provisions of Section
2.08.
"BBA" shall mean the British Bankers Association.
---
"Borrowers' Agent" shall mean Operating Partnership, in its capacity as
----------------
the agent for Borrowers in accordance with the agency established pursuant to
the provisions of Article III.
"Breakage Costs" shall mean, with respect to any outstanding principal
--------------
amount of any LIBOR Rate Loan being paid
3
before the last day of the Interest Period therefor, such amount or amounts as
shall compensate Banks for any actual loss, cost or expense incurred by Banks
(but excluding lost profits) as a result of such payment being made before the
last day of the Interest Period, including, without limitation, an amount equal
to the excess, if any, of (a) the amount of interest which would have accrued on
the amount so paid for the period from the date of such payment to the last day
of the Interest Period (such period herein referred to as the "Breakage Period")
---------------
at the applicable LIBOR Rate, less the applicable LIBOR Margin, over (b) the
amount of interest (as reasonably determined by Banks' Agent) Banks would have
paid on deposits in Dollars of comparable amounts for a term comparable to the
Breakage Period placed with Banks by leading banks in the London interbank
market.
"Capitalized Lease Obligation" shall mean that portion of any obligation
----------------------------
of a Person, as a lessee under a lease, which at the time would be required to
be capitalized on the balance sheet of such Person in accordance with GAAP.
"Change in Control," in the case of any entity which is a partnership,
-----------------
shall mean: (a) a change in the identity of any general partner thereof,(b) the
sale of all or substantially all of its assets, or (c) its liquidation or
dissolution or its adoption of any plan of liquidation or dissolution or its
public announcement of its intention to liquidate or dissolve; and in the case
of any entity which is a corporation, shall mean (a) any transaction, whether by
merger, consolidation, asset sale, tender offer, reverse stock split or
otherwise, which results in the acquisition or beneficial ownership (as such
term is defined under rules and regulations promulgated under the Securities
Exchange Act of 1934, as amended) by any Person of 25% or more of the
outstanding shares of all classes of equity securities of any such corporation
having ordinary voting rights, other than A.R. Weeks, Jr., or any of his
siblings, or any of their respective estates, or any trusts or family
partnerships pursuant to which voting control of such equity securities may be
exercised by A.R. Weeks, Jr. or any of his siblings, individually or as a
trustee or pursuant to contractual rights, (b) the sale of all or substantially
all of the assets of such entity, or (c) its liquidation or dissolution or its
adoption of any plan of liquidation or dissolution or its public announcement of
its intention to liquidate or dissolve. In determining the acquisition or
beneficial ownership of the outstanding shares of equity securities by any
individual for purposes of the definition of "Change in Control" hereunder, the
-----------------
term "individual" shall have the meaning ascribed to such term in Section
542(a)(2) of the Code, and an individual shall be deemed to have acquired or to
have beneficial ownership of all shares that would be attributed to or treated
as held by such individual for purposes of determining whether the corporation
is closely held in accordance with Sections 856(a)(6) and 856(h) of the Code.
4
"Code" shall mean the Internal Revenue Code of 1986, as amended,
----
together with the Treasury Regulations promulgated pursuant thereto.
"Commitment" shall mean, with respect to each Bank, as of any given
----------
date, an amount equal to the product obtained by multiplying such Bank's
Commitment Share by the Facility Amount on such date.
"Commitment Share" shall mean, with respect to each Bank, the Commitment
----------------
Share set forth opposite such Bank's name on the signature pages hereof.
"Consolidated Entity" shall mean any entity (a) which shall be under the
-------------------
Control of either Weeks Corporation or any Borrower; and (b) whose accounts
shall be consolidated under GAAP in the financial statements of Weeks
Corporation.
"Control" shall mean, with respect to any entity, the power to direct
-------
the management and policies of such entity, directly, indirectly, whether
through the ownership of voting securities or otherwise.
"Debt" of any Person means, at any date, without duplication, (a) all
----
Indebtedness for Money Borrowed owing by such Person, (b) all Capitalized Lease
Obligations of such Person, (c) all obligations of such Person to reimburse any
bank or other Person in respect of amounts paid or to be paid under a letter of
credit or similar instrument, to the extent such obligations would be required,
in accordance with GAAP, to be included as a liability on such Person's balance
sheet, and (d) all Debt of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person, which Debt at the time would
be required to be capitalized on the balance sheet of such Person in accordance
with GAAP; provided, however, that the term Debt shall not include any such
-------- -------
obligations to the extent such obligations have been the subject of a "legal"
defeasance or an "in substance" defeasance in accordance with GAAP.
"Debt Rating" shall mean, as of any given day, whichever is the higher
-----------
of (a) the higher of the rating, if any, of Operating Partnership's senior
unsecured, unenhanced debt (or, if no such rating exists, its issuer credit
rating, if any, for debt of such type) given by ▇▇▇▇▇'▇ Investor Service or
Standard and Poor's (as such rating may change from time to time) (provided that
--------
in the event of a double or greater split rating, the rating immediately below
the highest rating shall apply), or, if only one of them rates Operating
Partnership's senior unsecured, unenhanced debt, such rating, or (b) the higher
of the rating, if any, of Weeks Corporation's senior unsecured, unenhanced debt
(or, if no such rating exists, its issuer credit rating, if any, for debt of
such type) given by ▇▇▇▇▇'▇ Investor Service or Standard and Poor's (as
5
such rating may change from time to time) (provided that in the event of a
--------
double or greater split rating, the rating immediately below the highest rating
shall apply), or, if only one of them rates Weeks Corporation's senior
unsecured, unenhanced debt, such rating; or, if ▇▇▇▇▇'▇ Investor Service or
Standard and Poor's rate such debt of only Operating Partnership or only Weeks
Corporation but not both, the higher of such ratings of such one entity.
"Debt Rating Table" shall mean the following:
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Performance Debt Rating LIBOR Unused Annual Extension
Pricing Level S&P/Moody's Margin Commitment Fee Fee
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I Above 0.75% 0.150% 0.100%
BBB+/Baal
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II BBB+/Baa1 0.90% 0.150% 0.125%
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III BBB/Baa2 1.05% 0.150% 0.125%
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IV BBB-/Baa3 1.20% 0.150% 0.125%
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V
on or before
December 31, Below BBB- 1.35% 0.200% 0.125%
1997 /Baa3
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V
on or after Below BBB- 1.50% 0.200% 0.125%
January 1, /Baa3
1998
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"Debt Securities" shall mean debt securities issued by Weeks Corporation
---------------
or any Consolidated Entity in a private placement or public offering made in
compliance with all applicable federal securities laws and state Blue Sky laws,
which are not secured by a Mortgage on any Property, payment of which is not
ranked senior to the Obligations and prior written notice of the issuance of
which shall have been given to Banks' Agent (which shall promptly forward copies
of such written notice to all Banks and Swing Lender).
"Default" shall mean any of the events or conditions
-------
described in Article XIII.
"Development in Progress" shall mean a Property that will or is intended
-----------------------
to be income producing upon completion and that is being improved with a
building which is under construction.
6
"Development in Progress Value" shall mean, with respect to a
-----------------------------
Development in Progress, the book value of such property, including the
improvements upon such property and the underlying land, all determined in
accordance with GAAP.
"Direct Financing Lease" shall mean a lease of Property under which
----------------------
Weeks Corporation, any Consolidated Entity or any Non-Consolidated Subsidiary is
the lessor and which is required, in accordance with GAAP, to be capitalized on
the balance sheet of the lessee thereunder and classified as a long term
receivable on the balance sheet of the lessor thereunder.
"Direct Financing Lease Value" shall mean, with respect to a Direct
----------------------------
Financing Lease, the book value of such Direct Financing Lease, determined in
accordance with GAAP.
"Dollars" or "$" means dollars in lawful currency of the United States
------- -
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
---------------------
day on which commercial banks in Georgia are authorized by law to close
(including, without limitation, any day which is a federal banking holiday in
the United States of America).
"Employee Benefit Plan" shall mean any employee welfare benefit plan or
---------------------
any employee pension benefit plan, as those terms are defined in Section 3(1)
and 3(2) of ERISA, for the benefit of the employees of Weeks Corporation or any
Consolidated Entity which is a member of a controlled group or under common
control with any such Person, as such terms are defined in Section 4001(a)(14)
of ERISA.
"Environmental Laws" shall mean all state, federal or local
------------------
environmental laws and regulations.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
-----
as amended from time to time.
"Euro-Dollar Business Day" means any Domestic Business Day on which
------------------------
dealings in Dollar deposits are carried out in the London interbank market.
"Expiration Date" shall mean December 31, 1999, or such later December
---------------
31 to which the expiration of the Revolving Credit Facility may be extended from
time to time pursuant to the provisions of Section 2.04.
"Extension Date" shall have the meaning ascribed to such term in Section
--------------
2.04.
7
"Facility Amount" shall mean $175,000,000 or such reduced amount as
---------------
shall be elected by Borrowers in accordance with Section 2.03.
"Federal Funds Rate" shall mean, for any day, the rate per annum
------------------
(rounded upward, if necessary, to the next higher 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York, on the Domestic
Business Day next succeeding such day, provided that(a) if the day for which
--------
such rate is to be determined is not a Domestic Business Day, the "Federal Funds
-------------
Rate" for such day shall be such rate on such transactions on the next preceding
----
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (b) if such rate is not so published for any day, the "Federal Funds
-------------
Rate" for such day shall be the average rate charged to Banks' Agent on such day
----
on such transactions, as determined by Banks' Agent.
"Fixed Charges" shall mean the sum of Interest Expense and current
-------------
payments under Capitalized Lease Obligations, determined in accordance with GAAP
for Weeks Corporation on a consolidated basis.
"Fixed Charge Coverage Ratio" shall mean, as of any Measurement Date,
---------------------------
the ratio of Income for the Measurement Period ending on such Measurement Date
to Fixed Charges for such Measurement Period.
"Floating Rate" shall mean the Base Rate minus .25% per annum (25 basis
-------------
points).
"Full Recourse Covenants" shall mean those full recourse covenants,
-----------------------
warranties and representations typically found in secured, non-recourse real
property financing documents, including covenants and indemnities with respect
to environmental matters, liability for payment of taxes, payment of rents after
an event of default, fraud and similar matters.
"Funds from Operations" shall mean net income (loss) of Weeks
---------------------
Corporation, determined on a consolidated basis in accordance with GAAP, before
------
deducting the portion of such net income (loss) allocable to Minority Interests,
gains (or losses) from debt restructuring and sales of property, depreciation
and amortization, and after adjustments for unconsolidated partnerships and
joint ventures. Adjustments for unconsolidated partnerships and joint ventures
will be calculated to reflect "Funds from Operations" on the same basis. It is
---------------------
acknowledged that the computation of "Funds from Operations" may be adjusted
---------------------
from time to time to be consistent with the conventions adopted by the National
Association of Real Estate Investment Trusts.
8
"GAAP" means generally accepted accounting principles applied on a basis
----
consistent with those which, in accordance with Section 1.02, are to be used in
making the calculations for purposes of determining compliance with the terms of
this Agreement.
"Guaranty" or "Guarantee", as applied to an obligation (each a "primary
-------- ---------
obligation"), shall mean and include: (a) any guaranty, direct or indirect, in
any manner, of any part or all of such primary obligation; (b) any agreement,
direct or indirect, contingent or otherwise, the intended or practical effect of
which is to assure in any way the payment or performance (or payment of damages
in the event of non-performance) of any part or all of such primary obligation,
including, without limiting the foregoing, any reimbursement obligations as to
amounts drawn by beneficiaries under letters of credit; and (c) any obligation,
whether or not contingent, (i) to purchase any such primary obligation or any
property or asset constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of such primary
obligation or (B) to maintain working capital, equity capital or the net worth,
cash flow, solvency or other balance sheet or income statement condition of any
other person, (iii) to purchase property, assets, securities or services
primarily for the purpose of assuring the owner or holder of any primary
obligation of the ability of the primary obligor with respect to such primary
obligation to make payment thereof, or (iv) otherwise to assure or hold harmless
the owner or holder of such primary obligation against loss in respect thereof.
"Income" shall mean the net income of Weeks Corporation, determined on a
------
consolidated basis in accordance with GAAP, before deducting the portion of
------
such net income allocable to Minority Interests, gains and losses on the sale of
property, federal, state and local income tax, depreciation (excluding non-
recurring write-downs of property values) and amortization.
"Income Property" shall mean an income producing Property which is
---------------
wholly-owned by Weeks Corporation, a Consolidated Entity or a Non-Consolidated
Subsidiary and improved with a completed building, but which is not leased under
a Direct Financing Lease.
"Income Property Value" shall mean, with respect to any Income Property,
---------------------
the quotient obtained by dividing the Annualized NOI for such property by a
capitalization rate of 9.50%.
"Indebtedness for Money Borrowed" of any Person means, at any date,
-------------------------------
without duplication, all indebtedness for money borrowed by such Person, all
indebtedness evidenced by notes, bonds, debentures or similar instruments
payable by such Person (secured or unsecured, full recourse or non-recourse),
all obligations of such Person to reimburse any bank or other Person in
9
respect of amounts paid or to be paid under a banker's acceptance, all
indebtedness of such Person issued or assumed as full or partial payment for
property or services (excluding unsecured accounts payable and other unsecured
obligations incurred in the ordinary and regular course of the business of such
Person), all obligations of such Person for reimbursement with respect to
letters of credit procured for the account of such Person as a credit
enhancement for any of the foregoing, and including interest which is accrued on
any such indebtedness but not paid on the original due date therefor or within
any applicable cure or grace period as provided by the underlying contract for
such interest.
"Initial Date" shall have the meaning ascribed to such term in Section
------------
2.18(c).
"Initial Permitted Mortgage Debt" shall mean those loans identified on
-------------------------------
page 9 of Weeks Corporation's Quarterly Report on Form 10-Q filed in respect of
the quarter ended June 30, 1996, with the SEC, together with all extensions,
renewals, modifications and refinancings thereof.
"Intercompany Debt" shall mean Debt owing by Weeks Corporation, any
-----------------
Consolidated Entity or Non-Consolidated Subsidiary, on the one hand, to Weeks
Corporation or another Consolidated Entity or Non-Consolidated Subsidiary, on
the other hand.
"Interest Expense" shall mean, with respect to any period, an amount
----------------
equal to the sum of (a) the interest payable during such period with respect to
Indebtedness for Money Borrowed of Weeks Corporation and the Consolidated
Entities and reported as an expense in accordance with GAAP and not as a
capitalized item, and (b) the interest component of Capitalized Lease
Obligations of Weeks Corporation and the Consolidated Entities payable during
such period.
"Interest Period" shall mean:
---------------
(a) With respect to each LIBOR Rate Loan, the period commencing on the
date of such Loan and ending on the numerically corresponding day in the first,
second, third or sixth month thereafter, as Borrowers may elect in the
applicable Advance Request; provided that:
--------
(i) any Interest Period (subject to subparagraph (iii) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be extended
to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
10
(ii) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to subparagraph (iii) below, end on the last Euro-
Dollar Business Day of the appropriate subsequent calendar month; and
(iii) no Interest Period may be selected which would end after the
Expiration Date; and
(b) With respect to each Base Rate Loan, the period commencing on the
date of such Loan and ending on the earlier of 30 days thereafter or the
Expiration Date; provided that:
--------
(i) any Interest Period (subject to subparagraph (ii) below) which
would otherwise end on a day which is not a Domestic Business Day shall
be extended to the next succeeding Domestic Business Day; and
(ii) no Interest Period may be selected which would end after the
Expiration Date.
"Key Executives" shall mean the principal officers of Weeks Corporation.
--------------
"Land Held for Future Development" shall mean a Property which is
--------------------------------
neither an Income Property, nor a Development in Progress, nor a Property
subject to a Direct Financing Lease.
"Land Value" shall mean the book value of Land Held for Future
----------
Development, determined in accordance with GAAP.
"Lending Office" shall mean, as to each Bank or Swing Lender, its office
--------------
located at its address set forth on the signature pages hereof (or identified on
the signatures pages hereof as its Lending Office) or such other office as such
Bank or Swing Lender may hereafter designate as its Lending Office by notice to
Borrowers' Agent, Banks' Agent and each other Bank and Swing Lender.
"Leverage Ratio" shall mean the ratio of Total Debt (but excluding
--------------
Minority Interests and liabilities consisting of accruals and valuation
reserves) to Total Asset Value.
"LIBOR Margin" shall mean, as of any given day, the percentage rate per
------------
annum determined by reference to the Debt Rating Table and based on the Debt
Rating, if any, as determined by Banks' Agent, or lack of a Debt Rating, in
effect as of such day, if such day is a Performance Pricing Determination Date,
or otherwise as of the Performance Pricing Determination Date immediately
preceding such day; provided that if as of such day
--------
11
Leverage exceeds .50:1.00, the "LIBOR Margin" shall be the sum of the otherwise
------------
applicable LIBOR Margin and 0.25%.
"LIBOR Rate" shall mean the prevailing London Interbank Offered Rate
----------
(LIBOR) for any Interest Period, as published by the BBA and reported by Reuters
-------
(Screen 3750) (or, in the absence or unavailability of Reuters (Screen 3750), as
-------
such rate is determined by any other comparable interest rate reporting service
available to Banks' Agent) for the second Euro-Dollar Business Day immediately
preceding the first day of the Interest Period, plus the LIBOR Margin, as said
rate may be adjusted by Banks' Agent from time to time as necessary to
compensate Banks for any loss of yield to Banks on LIBOR Rate Loans which would
otherwise result from any change in applicable law, rules, regulations,
treaties, or governmental or judicial directives, in the interpretation or
administration thereof, or in Banks' compliance therewith.
"LIBOR Rate Loan" shall mean a Syndicated Loan for which Borrowers shall
---------------
have elected the LIBOR Rate option in accordance with the provisions of Section
2.05.
"Lien" shall mean, with respect to any Property Interest, any Mortgage
----
and any other claim of lien, pledge, assignment, charge, security interest,
title retention agreement, levy, execution, attachment, garnishment, encumbrance
or servitude of any kind, whether by consensual agreement or by operation of
statute or other law, and whether voluntary or involuntary, and whether or not
▇▇▇▇▇▇, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Weeks
--------------
Guaranties, and all other documents, agreements, certificates, and reports
called for herein or executed in connection herewith or contemplated hereby, as
the same may be amended from time to time.
"Loans" shall mean all Syndicated Loans and all Swing Loans. "Loan"
----- ----
shall mean any individual such Syndicated Loan or Swing Loan.
"Mandate Letter" shall mean that certain mandate letter dated July 15,
--------------
1996, from Wachovia to Operating Partnership, outlining the proposed terms and
conditions of the financing evidenced by this Agreement.
"Margin Stock" shall mean margin stock, as defined in Section 221.2(h)
------------
(or any successor provision) of the Regulations of the Board of Governors of the
Federal Reserve System.
"Measurement Date" shall mean June 30, 1996, and each September 30,
----------------
December 31, March 31, and June 30 thereafter.
12
"Measurement Period" shall mean the three (3) month period ending on a
------------------
Measurement Date.
"Minority Interests" shall mean the partnership interests in Operating
------------------
Partnership held by limited partners other than Weeks Corporation.
"Monthly LIBOR Index Rate" shall mean the interest rate denominated as
------------------------
Swing Lender's "Monthly LIBOR Index Rate" and set by Swing Lender for each
calendar month in its sole discretion, taking into account the prevailing London
Interbank Offered Rate (LIBOR), as published by the BBA and reported by Reuters
-------
(Screen 3750) (or, in the absence or unavailability of Reuters (Screen 3750), as
-------
such rate is determined by Swing Lender by any other comparable interest rate
reporting service available to Swing Lender), for a term of one (1) month, and
such other factors as Swing Lender shall deem relevant.
"Mortgage" shall mean any mortgage, deed of trust, deed to secure debt
--------
or other security instrument pursuant to which, under applicable law, an
interest in real estate is voluntarily conveyed as security for a debt.
"Mortgage Debt" shall mean all Indebtedness for Money Borrowed which is
-------------
secured by a Mortgage.
"MPPAA" shall mean the Multiemployer Pension Plan Amendments Act of
-----
1980, amending Title IV of ERISA.
"Multiemployer Plan" shall have the meaning set forth in Section
------------------
4001(a)(3) of ERISA.
"Non-Consolidated Subsidiary" shall mean a Subsidiary which is not a
---------------------------
Consolidated Entity. "Non-Consolidated Subsidiaries" shall mean, collectively,
-----------------------------
all such Non-Consolidated Subsidiaries.
"Notes" shall mean each of the Syndicated Master Notes evidencing the
-----
Loans to Borrowers made by Banks pursuant to this Agreement and the Swing Loan
Note evidencing Loans to Borrowers made by Swing Lender pursuant to this
Agreement.
"Notes Receivable Value" shall mean the book value, determined in
----------------------
accordance with GAAP, of those promissory notes from third parties to Weeks
Corporation, any Consolidated Entity or any Non-Consolidated Subsidiary, which
are secured by Mortgages.
"Obligations" shall mean the aggregate amount of all indebtedness,
-----------
liabilities and obligations of Borrowers to Banks or Swing Lender or both under,
pursuant to or arising out of this Agreement, including, without limiting the
generality of the foregoing: any and all indebtedness, liabilities and
obligations of Borrowers to Banks evidenced by the Syndicated Master Notes and
any
13
extensions or renewals thereof; any and all indebtedness, liabilities and
obligations of Borrowers to Swing Lender evidenced by the Swing Loan Note, and
any extensions or renewals thereof; all principal and interest owing under any
of the foregoing; all Banks' Agent's and Banks' fees authorized under the terms
of this Agreement; all charges and expenses of or incidental to the preparation,
renewal, modification or enforcement of any of the foregoing and any and all
extensions or renewals thereof in whole or in part; whether or not any of the
foregoing is absolute, contingent, mature, unmatured, or otherwise; and all
Banks' Agent's and Banks' charges, expenses, and costs of collection of any or
all of the foregoing, including reasonable attorneys' fees (if collected by or
through an attorney).
"Participant" shall have the meaning ascribed to said term in Section
-----------
16.03(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
----
"Performance Pricing Determination Date" shall mean any of the following
--------------------------------------
dates: October 1, 1996, and the first day of each calendar quarter (January 1,
April 1, July 1 and October 1) thereafter as of which day the Debt Rating, as
determined by Banks' Agent, shall be either (a) lower than the Debt Rating, as
determined by Banks' Agent, in effect on the immediately preceding Performance
Pricing Determination Date, or (b) higher than the Debt Rating, as determined by
Banks' Agent, in effect on the immediately preceding Performance Pricing
Determination Date, if Borrowers' Agent shall have given Banks' Agent written
notice on or before such day of Borrowers' Agent's determination that the Debt
Rating as of such day is or shall be higher than the Debt Rating in effect on
such immediately preceding Performance Pricing Determination Date. For purposes
of this definition, if there is no Debt Rating in effect on a Performance
Pricing Determination Date there shall nevertheless be deemed to be a Debt
Rating in effect on such date which is below Standard and Poor's BBB- rating and
below ▇▇▇▇▇'▇ Investor Service Baa3 rating.
"Permitted Encumbrances" shall mean any or all of the following:
----------------------
(a) inchoate Liens arising in the ordinary course of business and
incident to construction or maintenance of real property, or Liens arising in
the ordinary course of business and incident to construction or maintenance of
real property now or hereafter filed of record which are being contested in good
faith by appropriate proceedings and have not proceeded to a judgment which has
remained outstanding for more than ten (10) days after the entering thereof,
provided that, by reason of such proceedings no such real property is subject to
--------
a material risk of loss or forfeiture;
14
(b) Liens arising in the ordinary course of business for taxes,
assessments and brokerage commission on real property which are not yet past
due, or are being contested in good faith by appropriate proceedings and have
not proceeded to a judgment which has remained outstanding for more than ten
(10) days after the entering thereof, provided that, by reason of nonpayment, no
--------
such real property is subject to a material risk of loss or forfeiture;
(c) minor defects and irregularities in title to any real property which
in the aggregate do not materially impair the value or use of the real property
for the purposes for which it is or may reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements for the
purpose of pipelines, conduits, cables, wire communication lines, power lines
and substations, streets, trails, walkways, drainage, irrigation, water, and
sewerage purposes, dikes, canals, ditches, the removal of oil, gas, coal, or
other minerals, and other like purposes affecting real property, facilities, or
equipment which in the aggregate do not materially burden or impair the value or
use of such property for the purposes for which it is or may reasonably be
expected to be held;
(e) easements, exceptions, reservations, or other agreements for the
purpose of facilitating the joint or common use of property in an industrial
park or similar real property project affecting real property which in the
aggregate do not materially burden or impair the value or use of such property
for the purposes for which it is or may reasonably be expected to be held;
(f) rights reserved to or vested in any governmental agency to control
or regulate the use of any real property;
(g) any obligations or duties affecting any real property to any
governmental agency with respect to any right, power, franchise, grant, license,
or permit;
(h) present or future zoning laws and ordinances or other laws and
ordinances restricting the occupancy, use, or enjoyment of real property;
(i) statutory Liens, other than those described in clauses (a) or (b)
above, arising in the ordinary course of business with respect to obligations
which are not delinquent or are being contested in good faith, provided, that
--------
adequate reserves have been set aside with respect thereto and, by reason of
nonpayment, no property is subject to a material risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use of real
property which (i) do not, and will not, interfere in any material respect with
the intended use of the Property by
15
any tenant under any lease in effect with respect to such property, which use is
consistent with such tenant's rights under its lease; (ii) do not contain any
restrictions upon Operating Partnership's transferability of title to such
property or the ability of Operating Partnership to encumber said property; and
(iii) which in the aggregate do not materially impair the value or use of the
real property for the purposes for which it is or may reasonably be expected to
be operated and held, including the present or intended use by all tenants under
leases currently in effect with respect to the property; and
(k) rights of tenants under space leases covering real property entered
into in the ordinary course of business of the owner thereof.
"Permitted Guaranties" shall mean: (a) the Weeks Guaranties, (b)
--------------------
Guaranties of the obligations of Weeks Corporation or any Consolidated Entity or
Non-Consolidated Subsidiary, (c) Guaranties of loans secured by Property owned
by a Non-Consolidated Subsidiary, provided that the aggregate amount of all
indebtedness guaranteed by such Guaranties shall not exceed, at any one time,
five percent (5%) of Total Asset Value, (d) Guaranties by which Guarantors
become obligated for the payment or performance of obligations of a Non-
Consolidated Subsidiary with respect to obligations undertaken in the normal
course of the business operations of such Non-Consolidated Subsidiary, other
than Indebtedness for Money Borrowed of such Non-Consolidated Subsidiary, and
(e) Guaranties by which Guarantors guaranty the payment and performance of
Construction with respect to its construction contracts and surety bonds,
provided the sum of the uncompleted contract values guaranteed by such
--------
Guaranties shall not exceed $50,000,000 at any one time.
-----------
"Permitted Mortgage Debt" shall mean any debt financing which is secured
-----------------------
by a first priority Mortgage granted by Weeks Corporation or any Consolidated
Entity or Non-Consolidated Subsidiary on Property and which is (a) Initial
Permitted Mortgage Debt; or (b) a debt financing which meets the following
conditions: (i) the holder of the Mortgage has recourse only to the collateral
securing the debt financing and not to the general assets of Weeks Corporation
or any Consolidated Entity or Non-Consolidated Subsidiary, except for liability
for Full Recourse Covenants, (ii) the debt financing has an original term of
five (5) years or more, and (iii) the debt financing would not result in a
violation of the restriction set forth in Section 12.04; or (c) a debt financing
which is neither described in clause (a) nor described in clause (b) and which
has a principal amount which, when aggregated with the principal amount of all
other such debt financings described in this clause (c), does not exceed
$10,000,000 at any one time.
"Permitted Tax-Exempt Financing" shall mean a Debt owing by Weeks
------------------------------
Corporation or any Consolidated Entity or Non-Consolidated
16
Subsidiary arising out of the issuance of tax-exempt industrial revenue bonds
issued by a public or quasi-public authority.
"Person" shall mean an individual, a corporation, a partnership, an
------
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Prime Rate" shall mean the interest rate denominated as Wachovia's
----------
"prime rate" and set by Wachovia in its sole discretion from time to time as an
interest rate basis for borrowings, which is one of several interest rate bases
used by Wachovia, and which rate is not the lowest interest rate available from
Wachovia. Loans are made by Wachovia from time to time at interest rates equal
to, above or below its "prime rate." In the event Wachovia shall abolish or
abandon the practice of establishing its "prime rate," Banks' Agent shall
designate a comparable reference rate which shall be deemed to be the "Prime
-----
Rate" hereunder.
----
"Prior Indebtedness to Wachovia" shall mean all those certain loans made
------------------------------
to Borrowers by Wachovia pursuant to that certain Amended and Restated Revolving
Credit Agreement, dated August 25, 1995.
"Property" shall mean real property owned from time to time by Weeks
--------
Corporation, any Consolidated Entity or any Non-Consolidated Subsidiary.
"Property Interest(s)" shall mean any interest in any property or asset
--------------------
of any kind, whether real, personal or mixed, or tangible or intangible.
"Refunding Loan" means a new Loan made on the day on which an
--------------
outstanding Loan is maturing or a Floating Rate Loan is being converted to a
LIBOR Rate Loan, if and to the extent that the proceeds thereof are used
entirely for the purpose of paying such maturing Loan or Loan being converted,
excluding any difference between the amount of such maturing Loan or Loan being
converted and any greater amount being borrowed on such day and actually either
being made available to Borrower pursuant to Section 2.07(d) or remitted to
Banks' Agent as provided in Section 2.18, in each case as contemplated in
Section 2.07(d).
"Reportable Event" shall mean any of the events described in Section
----------------
4043(b) of ERISA.
"Required Banks" shall mean, at any time prior to the maturity of the
--------------
Syndicated Master Notes (whether by acceleration or otherwise), any Bank or
Banks whose Commitment or Commitments constitute at least 66-2/3% of the
Facility Amount or, at and after the maturity of the Syndicated Master Notes
(whether by
17
acceleration or otherwise), any Bank or Banks holding at least 66-2/3% of the
aggregate outstanding principal amount of the Obligations.
"Restricted Investment" shall mean any acquisition of Property Interests
---------------------
by Weeks Corporation or any Consolidated Entity or Non-Consolidated Subsidiary
in exchange for cash or other Property Interests, whether in the form of an
acquisition of stock, debt security, or other indebtedness or obligation, or the
purchase or acquisition of any other Property Interests, or by loan, advance,
capital contribution, or subscription, except the following: (a) tangible and
------
intangible assets including real property to be used in the business of Weeks
Corporation or a Consolidated Entity or Non-Consolidated Subsidiary so long as
the acquisition costs thereof constitute capital expenditures not otherwise
prohibited hereunder; (b) goods held for sale or lease or to be used in the
provision of services by Weeks Corporation or a Consolidated Entity or Non-
Consolidated Subsidiary in the ordinary course of business; (c) current assets
purchased for use, or arising from the sale or lease of goods or the rendering
of services, in the ordinary course of business of Weeks Corporation or any
Consolidated Entity or Non-Consolidated Subsidiary; (d) direct obligations of
the United States of America, or any agency thereof, or obligations guaranteed
by the United States of America, provided that such obligations mature within
--------
one year from the date of acquisition thereof; (e) certificates of deposit
maturing within one year from the date of acquisition, bankers acceptances,
Eurodollar bank deposits, or overnight bank deposits, in each case issued by,
created by, or with a bank or trust company organized under the laws of the
United States or any state thereof having capital and surplus aggregating at
least $100,000,000; (f) commercial paper given the highest rating by a national
credit rating agency, including, without limitation, Standard & Poor's or
Moody's, and maturing not more than 270 days from the date of creation thereof;
(g) tender bonds the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a bank organized or licensed under the
laws of the United States or any state thereof whose long-term certificates of
deposit are rated at least AA or the equivalent thereof by Standard & Poor's
Corporation, or Aa or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc.;
and (h) investments in debt or equity securities rated at least BBB+ or the
equivalent thereof by Standard & Poor's Corporation, or at least Baa1 or the
equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. not exceeding an aggregate
amount outstanding at any one time of $5,000,000.
"Revolving Credit Facility" shall mean the revolving credit facility
-------------------------
established by Banks and Swing Lender for the benefit of Borrowers pursuant to
Article II.
"SEC" shall mean the Securities and Exchange Commission.
---
18
"Subsidiary" means (a) any corporation or other entity the majority of
----------
the shares of the non-voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by Weeks Corporation and/or any Borrower, and the
majority of the shares of the voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by Weeks Corporation or any Consolidated Entity,
and/or any officer of Weeks Corporation, and (b) any other Consolidated Entity.
"Substances" shall mean all hazardous or toxic substances or wastes,
----------
including, but not limited to, asbestos, PCBs, petroleum products, fertilizers
and pesticides.
"Swing Lender" shall mean Wachovia, in its capacity as Swing Lender
------------
hereunder.
"Swing Loan LIBOR Rate" shall mean an interest rate which, as of the
---------------------
date of this Agreement, is equal to the Monthly LIBOR Index Rate determined as
of 11:00 a.m., London time, on the second Euro-Dollar Business Day immediately
preceding the first day of the calendar month in which the date of this
Agreement occurs, plus the LIBOR Margin, and which, after the date of this
Agreement, shall be adjusted on the first day of each calendar month to reflect
changes, if any, in the Monthly LIBOR Index Rate determined as of 11:00 a.m.,
London time, on the second Euro-Dollar Business Day immediately preceding the
first day of such calendar month.
"Swing Loan Note" shall mean Borrowers' Swing Loan Note, made payable to
---------------
the order of Swing Lender and in the form of Exhibit D, which is attached hereto
---------
and incorporated herein by reference, evidencing the Swing Loans.
"Swing Loans" shall mean all advances made by Swing Lender alone as
-----------
evidenced by the Swing Loan Note. A "Swing Loan" shall mean an individual
----------
advance made by Swing Lender under the Revolving Credit Facility.
"Syndicated Loans" shall mean all advances made by Banks ratably in
----------------
accordance with their respective Commitments under the Revolving Credit
Facility. A "Syndicated Loan" shall mean an individual advance made by Banks
---------------
ratably in accordance with their Commitments under the Revolving Credit
Facility.
"Syndicated Master Note" shall mean each of Borrowers' Syndicated Master
----------------------
Notes, made payable to the order of a Bank and in the form of Exhibit E, which
---------
is attached hereto and incorporated herein by reference, evidencing the
Syndicated Loans to such Bank.
"Taxes" shall have the meaning ascribed to such term in Section 2.18(c).
-----
19
"Terminating Bank" shall have the meaning ascribed to such term in
----------------
Section 2.04.
"Total Annualized NOI" shall mean the aggregate Annualized NOI with
--------------------
respect to all Income Property and all Property subject to a Direct Financing
Lease.
"Total Asset Value" shall mean, at any Measurement Date, the sum of
-----------------
Income Property Value, Direct Financing Lease Value, Development in Progress
Value, Land Value, Venture Interests Value and Notes Receivable Value. The
factors in the foregoing calculation shall be determined with respect to Weeks
Corporation, the Consolidated Entities and the Non-Consolidated Subsidiaries,
without duplication.
"Total Debt" shall mean, without duplication, all Debt (other than
----------
Intercompany Debt) owing by Weeks Corporation or any Consolidated Entity or Non-
Consolidated Subsidiary.
"Total Interest Bearing Debt" shall mean, without duplication, all Debt
---------------------------
(other than Intercompany Debt) of Weeks Corporation or any Consolidated Entity
or Non-Consolidated Subsidiary consisting of Capitalized Lease Obligations or
Indebtedness for Money Borrowed.
"Total Secured Debt" shall mean, without duplication, all Debt (other
------------------
than Intercompany Debt) of Weeks Corporation or any Consolidated Entity or Non-
Consolidated Subsidiary consisting of: (a) Capitalized Lease Obligations; or (b)
Indebtedness for Money Borrowed, which in either case is secured by a Mortgage
on any Property.
"Total Unsecured Debt" means, without duplication, all Debt (other than
--------------------
Intercompany Debt) of Weeks Corporation or any Consolidated Entity or Non-
Consolidated Subsidiary which is not secured by a Mortgage on any Property.
"Unencumbered Property Value" shall mean the Income Property Value of
---------------------------
all Income Property, plus the Direct Financing Lease Value of each Property
leased under a Direct Financing Lease, in each case that is free and clear of
Mortgage Debt. The factors in the foregoing calculation shall be determined
with respect to Weeks Corporation, the Consolidated Entities and the Non-
Consolidated Subsidiaries, without duplication.
"Venture Interests" shall mean the interest of Weeks Corporation, any
-----------------
Consolidated Entity or any Non-Consolidated Subsidiary in any joint ventures,
partnerships, limited liability companies, trusts and corporations which are not
Consolidated Entities or Non-Consolidated Subsidiaries.
20
"Venture Interests Value" shall mean the book value, determined in
-----------------------
accordance with GAAP, of all Venture Interests.
"Weeks Guaranties" shall mean, collectively, an unconditional guaranty
----------------
of payment and performance, in the form of Exhibit F, which is attached hereto
---------
and incorporated herein by reference, executed by Weeks Corporation in favor of
Banks and Swing Lender, whereby Weeks Corporation unconditionally guaranties the
payment and performance when due of all Obligations of any and all Borrowers to
Banks or Swing Lender or both, and an unconditional guaranty of payment and
performance, in the form of Exhibit G, which is attached hereto and incorporated
---------
herein by reference, executed by Operating Partnership in favor of Banks and
Swing Lender, whereby Operating Partnership unconditionally guaranties the
payment and performance when due of all Obligations of Construction, Realty,
Development and Financing, or any or all of them, to Bank or Swing Lender or
both, and a "Weeks Guaranty" shall mean either such unconditional guaranty.
--------------
"Weeks Venture" shall mean any enterprise of any nature whatsoever
-------------
formed by Weeks Corporation or any Consolidated Entity and any other Person for
funding activities approved for real estate investment trusts, in which Weeks
Corporation or such Consolidated Entity owns at least a 50% beneficial interest
or at least a 20% or more Venture Interest and has Control over the enterprise,
including, without limitation, a joint venture, general partnership, limited
partnership, limited liability company, corporation or trust.
1.02 Accounting Terms and Determinations. Unless otherwise specified herein,
-----------------------------------
all terms of an accounting character used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by Borrowers'
independent public accountants or otherwise required by a change in GAAP) with
the most recent audited consolidated financial statements of Weeks Corporation
delivered to Banks, unless with respect to any such change concurred in by the
Borrowers' independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (a) Weeks Corporation or Borrowers shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements, or (b) the Required Banks shall so object in writing
within thirty (30) days after the delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect to the first financial statements delivered under Section 10.03, shall
mean the financial statements referred to in Section 9.11).
21
1.03 References. Unless otherwise indicated, references in this Agreement to
----------
"Articles," "Exhibits," "Schedules," "Sections" and other subdivisions or
paragraphs are references to articles, exhibits, schedules, sections and other
subdivisions or paragraphs hereof.
1.04 Use of Defined Terms. All terms defined in this Agreement shall have
--------------------
the same defined meanings when used in any of the other Loan Documents, unless
otherwise defined therein or unless the context shall require otherwise.
1.05 Terminology. All personal pronouns used in this Agreement, whether used
-----------
in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural, and the plural shall include the
singular. Titles of Articles and Sections in this Agreement are for convenience
only and neither limit nor amplify the provisions of this Agreement.
ARTICLE II
-----------
REVOLVING CREDIT FACILITY
-------------------------
2.01 Syndicated Loans. Upon the satisfaction of each of the conditions of
----------------
Article V, Banks shall extend a line of credit to Borrowers under which Banks
will, ratably in accordance with their respective Commitments, subject to the
conditions of Article VI and all other terms and conditions of this Agreement,
from time to time at Borrowers' request, make Syndicated Loans to Borrowers in
amounts not to exceed the Available Credit, which may be borrowed, repaid
(subject to the provisions of Section 2.15) and reborrowed, from time to time,
in minimum principal amounts as set forth herein, in one or more borrowings
prior to the Expiration Date. Each Base Rate Loan shall be in the principal
amount of $1,000,000 or a larger integral multiple of $500,000. Each LIBOR Rate
Loan shall be in the principal amount of $5,000,000 or a larger integral
multiple of $1,000,000.
2.02 Swing Loans. Upon the satisfaction of each of the conditions of Article
-----------
V, Swing Lender shall extend a line of credit to Borrowers under which Swing
Lender will, subject to the conditions of Article VII and all other terms and
conditions of this Agreement, from time to time at Borrowers' request, make
Swing Loans to Borrowers in amounts not to exceed the Available Swing Credit,
which may be borrowed, repaid and reborrowed, from time to time, in minimum
principal amounts as set forth herein, in one or more borrowings prior to the
Expiration Date. Each Swing Loan shall be in the principal amount of $100,000 or
any larger integral multiple of $25,000.
2.03 Facility Amount Reduction or Termination. Borrowers shall have the
----------------------------------------
option, from time to time, to reduce the Facility
22
Amount by $10,000,000 or any greater integral multiple of $5,000,000, by giving
written notice of their election to exercise such option to Banks' Agent no
later than three (3) Domestic Business Days before the date the reduction is to
be effective, which notice shall set forth the amount of the reduction and the
date such reduction is to be effective. In no event shall Borrowers, as a
result of any such election, be entitled to a refund of any fees paid to Banks'
Agent or any Bank hereunder. Upon receipt of any such written notice, Banks'
Agent shall deliver a copy of the same to each Bank and Swing Lender.
2.04 Expiration; Extension. The Revolving Credit Facility shall have a term
---------------------
expiring on the Expiration Date, at which time the principal amount of all Loans
then outstanding (regardless of whether the Interest Period of any such Loan may
extend beyond said date) and all accrued but unpaid interest thereon shall be
due and payable in full. Upon the written request of Borrowers, which request
shall be delivered to Banks' Agent at least sixty (60) days prior to each
Extension Date (as such term is hereinafter defined), Banks shall have the
option (without any obligation whatsoever to do so) of extending the then
current Expiration Date for additional one-year periods from the then current
Expiration Date, such extension to be effective on but not before each of
December 31, 1997, December 31, 1998, and December 31, 1999 (each an "Extension
---------
Date"), but in no event shall the Commitment of any Bank or any Loan hereunder,
----
after December 31, 1996, be outstanding for a remaining period greater than
three (3) years. Notwithstanding any request by Borrowers as described in the
foregoing sentence, in the event that a Bank chooses, in its sole and absolute
discretion, not to extend the Expiration Date for such an additional one-year
period, such Bank (a "Terminating Bank") shall give notice to Borrowers' Agent
----------------
and Banks' Agent not more than sixty (60) days but not less than forty-five (45)
days prior to the relevant Extension Date; provided that upon failure by any
--------
Bank to respond to a request of Borrowers to extend the Expiration Date within
the period provided for such notice, such Bank shall be deemed to have exercised
its discretion not to extend the Expiration Date; provided further that the
-------- -------
Expiration Date shall not be extended with respect to any Banks unless the
Required Banks are willing to extend the Expiration Date and one or more of the
actions described in the following clauses (a), (b) and (c) shall be taken:
(a) the remaining Banks shall elect to purchase ratable assignments
(without any obligation to do so) from all Terminating Banks (in the form of an
Assignment and Acceptance) in accordance with their respective percentages of
the remaining aggregate Commitments; provided further that such Banks shall be
-------- -------
provided such opportunity (which opportunity shall allow such Banks at least
five (5) Domestic Business Days in which to make a decision) prior to Borrowers'
finding another lender pursuant to the immediately succeeding clause (b); and,
provided further that should any of the remaining Banks elect not to purchase
-------- -------
such an
23
assignment, then such other remaining Banks shall be entitled to purchase an
assignment from any Terminating Bank which includes the ratable interest that
was otherwise available to such non-purchasing remaining Bank or Banks, as the
case may be;
(b) Borrowers shall find another lender, approved by Banks' Agent (such
approval not to be unreasonably withheld or delayed), willing to accept an
assignment from such Terminating Banks (in the form of an Assignment and
Acceptance); and/or
(c) Borrowers shall reduce the Facility Amount, in accordance with the
provisions of Section 2.03, in an amount equal to the aggregate Commitments of
any such Terminating Banks. In the event that Borrowers elect to reduce the
Facility Amount pursuant to the provisions of this clause (c), notwithstanding
any other provision of this Agreement to the contrary, upon compliance by
Borrowers with the provisions of Section 2.17, all Banks that are not
Terminating Banks shall purchase ratable assignments from each Terminating Bank
of its interest in the Loans, Notes and this Agreement (in the form of an
Assignment and Acceptance) in accordance with their respective percentages of
the remaining aggregate Commitments. Each Terminating Bank shall be obligated
to sell its interest in the Commitment, Loans, Notes, and this Agreement by an
Assignment and Acceptance in accordance with Section 18.03(c) to any such
Assignee or Assignees pursuant to this Section 2.04 for an amount equal to the
sum of the outstanding unpaid principal of and accrued interest on such Loans
and Notes, plus all other fees and amounts due such Terminating Bank hereunder,
calculated, in each case, to the date such interest is purchased. Upon such
assignment and assumption by the Assignee or Assignees of the Terminating Bank's
interest in the Loans, Notes and this Agreement, the Terminating Bank shall have
no further Commitment or other obligation to Borrowers hereunder, except as
provided in Section 2.18(c).
Notwithstanding the foregoing, if the Expiration Date is not extended for an
additional one year period on each Extension Date, there shall be no further
Extension Dates or extensions of the Expiration Date. Only one such request for
an extension may be made in any one calendar year, and IN NO EVENT SHALL THE
EXPIRATION DATE BE EXTENDED BEYOND DECEMBER 31, 2002.
2.05 Rate of Interest on Syndicated Loans. Interest shall accrue on the
------------------------------------
unpaid principal amount of each Syndicated Loan, at the election of Borrowers'
Agent as set forth in notices given in accordance with Section 2.07, at the
Floating Rate or the LIBOR Rate, provided that no more than ten (10) LIBOR Rate
--------
Loans shall be outstanding at any one time.
2.06 Rate of Interest on Swing Loans. Interest shall accrue on the unpaid
-------------------------------
principal amount of the Swing Loans, at the option of Borrowers, either at the
Floating Rate or at the Swing Loan LIBOR
24
Rate. Borrowers shall make their initial election of the Floating Rate or Swing
Loan LIBOR Rate option by giving Banks' Agent written notice of such election
not later than the time when Borrowers give Banks' Agent their initial Advance
Request pursuant to Section 2.07. Thereafter Borrowers may from time to time,
but no more frequently than monthly, change their election to the alternate
option by giving Banks' Agent written notice of such election no later than
three (3) Domestic Business Days immediately preceding the first day of any
calendar month, whereupon interest shall, effective on and after the first day
of such calendar month, accrue on the unpaid principal amount of the Swing Loans
at the Floating Rate or the Swing Loan LIBOR Rate, as elected by Borrowers,
until such time, if any, as Borrowers change their election as provided for
herein. Notwithstanding any provision of this Agreement to the contrary, if,
after Banks' Agent's receipt of notice of Borrowers' election of the Swing Loan
LIBOR Rate option, Banks' Agent determines in good faith that it is not possible
to determine the applicable Swing Loan LIBOR Rate or the Swing Loan LIBOR Rate
shall not cover the actual cost to Swing Lender of obtaining United States
dollar deposits in the Interbank Eurodollar Market plus the LIBOR Margin, then
Banks' Agent shall promptly notify Borrowers' Agent, and the principal amount of
the Swing Loans shall thereafter accrue interest at the Floating Rate.
2.07 Notice and Manner of Borrowing.
------------------------------
(a) Borrowers' Agent shall give Banks' Agent an Advance Request prior to
10:00 a.m. (Atlanta, Georgia time) on the same Domestic Business Day for each
Base Rate Loan and at least three (3) Euro-Dollar Business Days before each
LIBOR Rate Loan.
(b) Upon receipt of an Advance Request, (i) if the Advance Request is
for a Syndicated Loan, Banks' Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of the Syndicated Loan, and
(ii) if the Advance Request is for a Swing Loan, Banks' Agent shall promptly
notify Swing Lender of the contents thereof. Such Advance Request, once
received by Banks' Agent, shall not thereafter be revocable.
(c) Not later than 2:00 p.m. (Atlanta, Georgia time) on the date of each
Loan (or, if the notice required to be given by Banks' Agent pursuant to
paragraph (b) of this Section 2.07 shall be given later than 12:00 noon
(Atlanta, Georgia time) on the date of any Loan, not later than two (2) hours
following the time such notice is given on the date of the Loan), (i) in the
case of a Syndicated Loan each Bank shall (except as provided in paragraph (d)
of this Section 2.07) make available its ratable share of such Syndicated Loan,
in federal or other funds immediately available in Atlanta, Georgia, to Banks'
Agent at its address determined pursuant to Section 16.10, and (ii) in the case
of a Swing Loan, Swing Lender shall (except as provided in paragraph (d) of this
Section 2.07) make available the amount of such Swing Loan, in federal or
25
other funds immediately available in Atlanta, Georgia, to Banks' Agent at its
address determined pursuant to Section 16.10. Unless Banks' Agent determines
that, with respect to a Syndicated Loan, any applicable condition specified in
Article VI has not been satisfied, or with respect to any Swing Loan, any
applicable condition specified in Article VII has not been satisfied, Banks'
Agent will make the funds so received from Banks or Swing Lender, as the case
may be, available to Borrowers by crediting a checking account maintained by
Operating Partnership on behalf of Borrowers with Banks' Agent. Unless Banks'
Agent receives notice from a Bank or Swing Lender, as the case may be, at Banks'
Agent's address specified pursuant to Section 16.10, no later than 4:00 p.m.
(Atlanta, Georgia time) on the Domestic Business Day of a Loan stating that such
Bank or Swing Lender, respectively, will not make available its ratable share of
a Syndicated Loan or the amount of a Swing Loan, respectively, Banks' Agent
shall be entitled to assume that such Bank or Swing Lender, as the case may be,
will make available its ratable share of the Syndicated Loan or the amount of
the Swing Loan, respectively, and, in reliance on such assumption, Banks' Agent
may (but shall not be obligated to) make such Bank's ratable share of the
Syndicated Loan or such amount of the Swing Loan, as the case may be, available
to Borrowers for the account of such Bank or Swing Lender, respectively. If
Bank's Agent makes such Bank's ratable share of the Syndicated Loan available or
the amount of the Swing Loan available, as the case may be, to Borrowers as
provided above, and if such Bank or Swing Lender, as the case may be, does not
in fact make its ratable share of such Syndicated Loan available or the amount
of such Swing Loan available, respectively, on such day, Banks' Agent shall be
entitled to recover such Bank's ratable share of the Syndicated Loan from such
Bank or Borrowers (and for such purpose shall be entitled to charge such amount
to any account of any Borrower maintained with Banks' Agent) or the amount of
the Swing Loan from Swing Lender or Borrower (and for such purpose shall be
entitled to charge such amounts to any account of any Borrower maintained with
Banks' Agent), together with interest thereon for each day during the period
from the date of such Loan until such sum shall be paid in full at a rate per
annum equal to the rate at which Banks' Agent determines that it obtained (or
could have obtained) overnight federal funds to cover such amount for each such
day during such period, provided that (i) any such payment by Borrowers of such
--------
Bank's ratable share of a Syndicated Loan or the amount of a Swing Loan and
interest thereon shall be without prejudice to any rights that Borrowers may
have against such Bank or Swing Lender, and (ii) until such Bank or Swing
Lender, as the case may be, has paid its ratable share of such Syndicated Loan
or the amount of such Swing Loan, respectively, together with interest pursuant
to the foregoing, it will have no interest in or rights with respect to such
Loan for any purpose hereunder. If Banks' Agent determines not to exercise its
option to advance funds for the account of such Bank or Swing Lender, as the
case may be, it shall forthwith notify Borrowers' Agent of such determination.
26
(d) If any Bank makes a new Syndicated Loan hereunder on a day on which
Borrowers are to repay all or any part of an outstanding Syndicated Loan from
such Bank, such Bank shall apply the proceeds of its new Syndicated Loan to make
such repayment as a Refunding Loan, and only an amount equal to the difference
(if any) between the amount being borrowed and the amount of such Refunding Loan
shall be made available by such Bank to Banks' Agent as provided in paragraph
(c) of this Section 2.07, or remitted by Borrowers to Banks' Agent as provided
in Section 2.18, as the case may be.
(e) All Advance Requests shall specify (i) the date, (ii) the amount,
(iii) whether the Advance Request is for a Syndicated Loan or a Swing Loan, (iv)
in the case of a Syndicated Loan, the interest rate election, (v) such other
information called for in the form of the Advance Request, (vi) in the case of
the election of a LIBOR Rate Loan, the Interest Period for such Loan, and (vii)
the identity of the Borrower or Borrowers intending to use the proceeds of the
Loan. Any such notice which Banks' Agent believes in good faith to have been
given by a duly authorized agent of Borrower's Agent or any Borrower shall be
deemed given by Borrowers. Notwithstanding any provision of this Agreement to
the contrary, if, after Banks' Agent's receipt of Borrowers' Advance Request for
a LIBOR Rate Loan, Banks' Agent determines in good faith that it is not possible
to determine the applicable LIBOR Rate or the LIBOR Rate shall not cover the
actual cost to Banks of obtaining United States dollar deposits in the Interbank
Eurodollar Market plus the LIBOR Margin, then Agent shall promptly notify
Borrowers' Agent and Banks of such determination, and the Loan subject to the
notice shall be a Base Rate Loan.
2.08 Automatic Conversion. All LIBOR Rate Loans not paid in full on or
--------------------
before the last day of the Interest Period therefor shall automatically convert
to Base Rate Loans upon the expiration of the Interest Period.
2.09 Interest Payments on Syndicated Loans. Accrued and unpaid interest on
-------------------------------------
the unpaid principal amount of each Syndicated Loan shall be due and payable on
the last day of the Interest Period applicable thereto and, if earlier, on the
date three (3) months after the date the Syndicated Loan was made. Interest
payable on the Syndicated Loans shall be computed on the basis of a hypothetical
year of 360 days for the actual number of days elapsed.
2.10 Interest Payments on Swing Loans. Beginning on the first (1st) day of
--------------------------------
the first (1st) month after the date of this Agreement and continuing on the
first (1st) day of each month thereafter so long as there is any principal
amount or accrued and unpaid interest outstanding under any Swing Loan, accrued
and unpaid interest on the unpaid principal amount of the Swing Loans
27
shall be due and payable. Interest payable on the Swing Loans shall be computed
on the basis of a hypothetical year of 360 days for the actual number of days
elapsed.
2.11 Maturity. The entire unpaid principal amount of the Syndicated Master
--------
Notes, together with all accrued and unpaid interest thereon, and the entire
unpaid principal amount of the Swing Loan Note, together with accrued and unpaid
interest thereon, shall be due and payable on the Expiration Date.
2.12 Participation in Swing Loans. At any time, upon the request of Swing
----------------------------
Lender, each Bank other than Swing Lender shall, on the third Domestic Business
Day after such request is made, purchase a participating interest in the Swing
Loans outstanding in an amount equal to its ratable share (based upon its
respective Commitment) of such Swing Loans, and Swing Lender shall furnish each
such Bank with a certificate evidencing such participating interest. On such
third Domestic Business Day, each such Bank will immediately transfer to Swing
Lender, in immediately available funds, the amount of its participation.
Whenever, at any time after Swing Lender has received from any such Bank its
participating interest in a Swing Loan, Banks' Agent receives any payment on
account thereof, Banks' Agent will distribute to such Bank its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Bank's participating
interest was outstanding and funded); provided that in the event that such
--------
payment received by Banks' Agent is required to be returned, such Bank will
return to Banks' Agent any portion thereof previously distributed by Banks'
Agent to it. Each Bank's obligation to purchase such participating interests
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation: (a) any set-off, counterclaim,
recoupment, defense or other right which such Bank or any other person may have
against Swing Lender or any other person for any reason whatsoever; (b) the
occurrence or continuance of a Default or the termination of the Commitments;
(c) any adverse change in the condition (financial or otherwise) of Borrowers or
Weeks Corporation or any Consolidated Entity; (d) any breach of this Agreement
by Borrowers or any other Bank; or (e) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
2.13 Notes. (a) The Syndicated Loans made by each Bank shall be evidenced
-----
by a single Syndicated Master Note made by Borrowers payable to the order of
such Bank in an amount equal to the original principal amount of such Bank's
Commitment.
(b) The Swing Loan shall be evidenced by a single Swing Loan Note made
by Borrowers payable to the order of Swing Lender in an amount equal to
$5,000,000.
28
(c) Upon receipt of each Bank's Syndicated Master Note pursuant to
Section 5.11, Banks' Agent shall deliver such Note to such Bank. Each Bank
shall record, and prior to any transfer of its Note shall endorse, on the
schedules forming a part thereof, appropriate notations to evidence the date,
amount and maturity of, and effective interest rate for, each Loan made by the
Bank with respect thereto, and such schedules of each such Bank's Note shall
constitute rebuttable presumptive evidence of the respective principal amounts
owing and unpaid on such Bank's Note; provided that the failure of any Bank to
--------
make, or any error in making, any such recordation or endorsement shall not
affect the obligation of Borrowers hereunder or under the Notes or the ability
of any Bank to assign its Note. Each Bank is hereby irrevocably authorized by
Borrowers so to endorse its Note and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
(d) Swing Lender shall record, and prior to any transfer of the Swing
Loan Note shall endorse, on the schedules forming a part thereof, appropriate
notations to evidence the date, amount and maturity of, and effective interest
rate for, each Swing Loan made by Swing Lender with respect thereto, and such
schedule shall constitute rebuttable presumptive evidence of the principal
amount owing and unpaid on the Swing Loan Note; provided that the failure of
--------
Swing Lender to make, or any error in making, any such recordation or
endorsement shall not affect the obligation of Borrowers hereunder or under the
Swing Loan Note or the ability of Swing Lender to assign the Swing Loan Note.
Swing Lender is hereby irrevocably authorized by Borrowers so to endorse the
Swing Loan Note and to attach to and make a part of the Swing Loan Note a
continuation of any such schedule as and when required.
(e) In the event of loss, theft, destruction, total or partial
obliteration, mutilation or inappropriate cancellation of a Note, Borrowers will
execute and deliver, in lieu thereof, a replacement Note identical in form and
substance to such Note and dated as of the date of such Note.
2.14 Use of Loan Proceeds. The proceeds of the Loans will be used by
--------------------
Borrowers and, through advances made by Borrowers to or investments made by
Borrowers in any other Consolidated Entity or Non-Consolidated Subsidiary which
shall have become a party to this Agreement as a Borrower in accordance with the
provisions of Section 16.16, such other Consolidated Entity or Non-Consolidated
Subsidiary, to refinance the Prior Indebtedness to Wachovia and otherwise solely
to finance their general corporate needs, including, without limitation, their
operating and administrative expenses, interest and principal payments on loans,
the acquisition, development and maintenance of their properties, the payment of
taxes, insurance and commissions relating to their properties and business
operations, the payment of distributions by Operating Partnership to its
partners and of dividends by Weeks
29
Corporation to its shareholders, to make advances to or investments in any such
Consolidated Entity or Non-Consolidated Subsidiary, to make advances to or
investments in Weeks Ventures formed for funding activities approved for real
estate investment trusts, and to make loans to unrelated entities for the
purpose of constructing buildings and related improvements upon real property
owned by such unrelated entities, provided that the Person making such loan
--------
shall have obtained a recorded first mortgage security interest in the real
property under development and, further, that the Person shall manage the
construction of the building and related improvements and that Weeks Corporation
or any such Consolidated Entity or Non-Consolidated Subsidiary shall have a
contractual right to acquire the improved real property prior to the making of
the loan.
2.15 Prepayment of Syndicated Loans. (a) Borrowers may, upon at least five
------------------------------
(5) Euro-Dollar Business Days' notice to Banks' Agent, prepay any LIBOR Rate
Loan in whole at any time, or from time to time in part in amounts aggregating
at least $5,000,000 or any larger integral multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment, plus, if such prepayment is not made on the last day of the
applicable Interest Period, the amount of compensation, if any, determined to be
due pursuant to paragraph (d) of this Section 2.15, and the fee due pursuant to
Section 15.03. Each such optional prepayment shall be applied to prepay ratably
the LIBOR Rate Loans made by Banks.
(b) Borrowers may, upon at least one (1) Domestic Business Day's notice
to Banks' Agent, prepay any Base Rate Borrowing in whole at any time, or from
time to time in part in amounts aggregating at least $1,000,000 or any larger
integral multiple of $500,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Base Rate Loans made
by Banks.
(c) Upon receipt of a notice of prepayment pursuant to this Section
2.15, Banks' Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment. Such notice, once received by
Banks' Agent, shall not thereafter be revocable by Borrowers.
(d) Upon prepayment of all or part of the outstanding principal amount
of any LIBOR Rate Loan prior to the last day of the Interest Period therefor,
including any such prepayment made as a result of an acceleration of the
maturity of the Loans upon a Default, Borrower shall pay to Banks compensation
with respect to such prepayment equal to Bank's Breakage Costs.
2.16 Prepayment of Swing Loans. Borrowers may, at any time, prepay any Swing
-------------------------
Loan in whole, or from time to time in part in amounts aggregating $100,000 or
any larger integral multiple of
30
$25,000, by paying the principal amount to be prepaid together with interest
thereon to the date of prepayment.
2.17 Mandatory Prepayments. On each day on which the Commitments are reduced
---------------------
pursuant to Section 2.03, Borrowers shall pay or prepay such principal amount of
the outstanding Loans, if any (together with interest accrued thereon and any
amount required to be paid pursuant to Section 2.15(d)), as may be necessary so
that after such payment or prepayment the aggregate unpaid principal amount of
the Loans does not exceed the aggregate amount of the Commitments as then
reduced. Each such payment or prepayment shall be applied ratably to the Loans
outstanding on the date of payment or prepayment in the following order of
priority: (a) first, to Swing Loans, (b) second, to Base Rate Loans, and (c)
third, to LIBOR Rate Loans.
2.18 General Provisions as to Payments. (a) Borrowers shall make each
---------------------------------
payment of principal of, and interest on, the Loans and of fees hereunder, not
later than 1:00 P.M. (Atlanta, Georgia time) on the date when due, in federal or
other funds immediately available in Atlanta, Georgia, to Banks' Agent at its
address referred to in Section 16.10. Banks' Agent will promptly distribute to
Swing Lender each such payment received by Banks' Agent on account of the Swing
Loans, and to each Bank its ratable share of each such payment received by
Banks' Agent for the account of Banks.
(b) Whenever any payment of principal of, or interest on, Base Rate
Loans or Swing Loans or fees hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of or
interest on, LIBOR Rate Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day, unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all other amounts
to be made by any Borrower pursuant to this Agreement with respect to any Loan
or fee relating thereto shall be paid without deduction for, and free from, any
taxes, imposts, levies, deductions, or withholdings now or hereafter imposed by
any governmental authority or by any taxing authority thereof or therein,
excluding in the case of each Bank or Swing Lender or Banks' Agent (i) any taxes
imposed by the United States or any political subdivision thereof on the
effectively connected net income of it or its Lending Office or any franchise
taxes imposed by such jurisdiction, (ii) taxes imposed on the net income of, or
franchise taxes imposed upon, it by the jurisdiction under the laws of which it
is organized or by any political subdivision thereof, (iii) taxes imposed on the
net income of its Lending Office, and
31
franchise taxes imposed on it, by the jurisdiction of its Lending Office, or any
political subdivision thereof, (iv) any taxes imposed on it by Section 884(a) of
the Internal Revenue Code of 1986, as amended (and any successor statute to
Section 884(a)), and (v) any United States withholding tax payable with respect
to any payments to it under the laws (including, without limitation, any treaty,
ruling, judicial or administrative determination or regulation) in effect on the
Initial Date (as hereinafter defined), but not excluding any United States
-----------------
withholding tax payable or increased as a result of any change in any law,
treaty, ruling, judicial or administrative determination or regulation, or
interpretation thereof occurring after said Initial Date (all such non-excluded
taxes, levies, imposts, deductions and withholdings hereinafter referred to as
"Taxes"). For purposes hereof, the term "Initial Date" shall mean, in the case
------ ------------
of each Bank or Swing Lender or Banks' Agent party hereto on the date hereof,
the date of this Agreement, and in the case of each other Bank, Swing Lender or
Banks' Agent, the effective date of the Assignment and Acceptance, or other
instrument pursuant to which it became a Bank or other party hereunder.
In the event that any Borrower is required by applicable law to make any such
withholding or deduction of Taxes with respect to any Loan or fee or other
amount, such Borrower shall pay such deduction or withholding to the applicable
taxing authority, shall promptly furnish to the Affected Bank in respect of
which such deduction or withholding is made all receipts and other documents
evidencing such payment, and shall pay to the Affected Bank additional amounts
as may be necessary in order that the amount received by the Affected Bank after
the required withholding or other payment shall equal the amount it would have
received had no such withholding or other payment been made. If in such event
no withholding or deduction of Taxes are payable in respect to any Loan or fee
relating thereto, such Borrower shall furnish the Affected Bank, at its written
request, a certificate from each applicable taxing authority or an opinion of
counsel reasonably acceptable to it, in either case stating that such payments
are exempt from or not subject to withholding or deduction of Taxes. If such
Borrower fails to provide such original or certified copy of a receipt
evidencing payment of Taxes or certificate(s) or opinion of counsel described in
the preceding sentence, Borrowers hereby agree to compensate the Affected Bank
for, and indemnify it with respect to, the tax consequences of the Borrower's
failure to provide evidence of tax payments or tax exemption; provided, however,
-------- -------
that Borrowers shall not be obligated to indemnify any party for penalties,
additions to tax, interest or expenses associated with the payment of Taxes if
the Affected Bank's liability for such Taxes has arisen as a result of the
violation by it of the terms of this Agreement. Such compensation or
indemnification payment shall be made within 30 days from the date such Affected
Bank makes written request therefor. Any such request shall be made within 90
days after the date on which such
32
payment of Taxes was made. Each such request shall be accompanied by a copy of
the statement from the taxing authority demanding payment by the Affected Bank
of such Taxes or by a certificate from the Affected Bank which certificate shall
set forth in reasonable detail the basis for any additional amount payable to
such party under this Section 2.18(c) (together with reasonable evidence of
payment of such Taxes).
Each Bank, Swing Lender or Banks' Agent which is not organized under the laws
of the United States or any state thereof agrees, as soon as practicable after
receipt by it of a request by Borrowers to do so, to file all appropriate forms
and take other appropriate action to obtain a certificate or other appropriate
document from the appropriate governmental authority in the jurisdiction
imposing the relevant Taxes, establishing that it is entitled to receive
payments of principal and interest under this Agreement and the Notes without
deduction and free from withholding of any Taxes imposed by such jurisdiction;
provided that if it is unable, for any reason, to establish such exemption, or
--------
to file such forms and, in any event, during such period of time as such request
for exemption is pending, Borrowers shall nonetheless remain obligated under the
terms of the immediately preceding paragraph.
In the event any Affected Bank receives a refund of any Taxes paid by
Borrowers pursuant to this Section 2.18(c), it will pay to Borrowers the amount
of such refund promptly upon receipt thereof; provided that if at any time
--------
thereafter it is required to return such refund, Borrowers shall promptly repay
to it the amount of such refund.
Without prejudice to the survival of any other agreement of Borrowers
hereunder, the agreements and obligations of Borrowers, Banks, Swing Lender, and
Banks' Agent contained in this Section 2.18(c) shall be applicable with respect
to any Transferee, and any calculations required by such provisions (i) shall be
made based upon the circumstances of such Transferee, and (ii) constitute a
continuing agreement and shall survive the termination of this Agreement and the
payment in full or cancellation of the Notes.
2.19 Default Rate of Interest. If a Default shall occur under this
------------------------
Agreement, interest shall accrue on the unpaid principal amount of the Loans
from and after the date of such occurrence through and including the date on
which such Default shall have been cured at a rate of interest equal to the
highest rate otherwise applicable to any such Loan plus an additional two
percent (2.00%) per annum (200 basis points).
2.20 Fees. In consideration of Banks' and Swing Lender's establishing the
----
Revolving Credit Facility, Borrowers shall pay Banks' Agent, for the ratable
benefit of Banks, the following fees:
33
(a) Origination Fee. An initial origination fee equal to 0.25% of the
---------------
original Facility Amount of $175,000,000, which shall be due and payable on the
date of this Agreement.
(b) Extension Fees. An extension fee equal to a percentage of the
--------------
Facility Amount in effect as of each Extension Date, if any, on which an
extension becomes effective pursuant to the provisions of Section 2.04, which
percentage shall be determined by reference to the Debt Rating Table and based
on the Debt Rating, if any, as determined by Banks' Agent, in effect as of such
day if such day is a Performance Pricing Determination Date, or otherwise as of
the Performance Pricing Determination Date immediately preceding such day;
provided that if there is no Debt Rating in effect on the applicable Performance
--------
Pricing Determination Date, the annual extension fee shall be the same as that
set forth in the applicable Level V of the Debt Rating Table, which fee shall be
due and payable on such Extension Date.
(c) Unused Commitment Fee. An unused commitment fee equal to a
---------------------
percentage (as determined below) of the average daily amount, if any, by which
the Facility Amount exceeds the aggregate of the unpaid principal amounts
outstanding under the Syndicated Loans and Swing Loans, which shall be accrued
quarterly for each calendar quarter ending on or before the Expiration Date and
shall be due and payable on the tenth (10th) day after the end of each such
calendar quarter. The unused commitment fee shall be computed on the basis of a
hypothetical year of 360 days for the actual number of days elapsed during such
calendar quarter. For purposes of the foregoing, the percentage shall be
determined by reference to the Debt Rating Table and based on the Debt Rating,
if any, as determined by Banks' Agent, in effect as of the first (1st) day of
each such calendar quarter if such day is a Performance Pricing Determination
Date, or otherwise as of the Performance Pricing Determination Date immediately
preceding such day; provided that if there is no Debt Rating in effect on such
--------
Performance Pricing Determination Date, the unused commitment fee shall be the
same as that set forth in the applicable Performance Pricing Level V of the Debt
Rating Table.
2.21 Limitation of Liability. The liability of each Borrower (other than
-----------------------
Operating Partnership) under the Syndicated Master Notes and the Swing Loan
Note, as limited by this Section 2.21, shall be joint and several with Operating
Partnership. No Borrower (other than Operating Partnership) shall be jointly
liable under the Syndicated Master Notes or the Swing Loan Note with any other
Borrower (other than Operating Partnership). The liability of each Borrower
(other than Operating Partnership) shall not exceed the aggregate unpaid
principal amount of those Loans with respect to which such Borrower shall have
been identified by Borrowers' Agent in the applicable Advance Request, pursuant
to the provisions of Section 2.07, as the Borrower intending to use the proceeds
thereof, plus interest thereon and costs of collection
34
thereof, including reasonable attorneys' fees, if collected by or through an
attorney. Operating Partnership shall be jointly and severally obligated with
each other Borrower for all obligations of such Borrower under the Syndicated
Master Notes and the Swing Loan Note and shall be fully obligated for all
indebtedness and obligations evidenced by or arising under the Syndicated Master
Notes and the Swing Loan Note, including principal, interest and costs of
collection, including reasonable attorneys' fees, if collected by or through an
attorney.
2.22 Increased Costs; Illegality; Capital Adequacy. (a) If any Bank or Swing
---------------------------------------------
Lender should suffer any increased cost in connection with any Syndicated Loan,
as a result of any change subsequent to the date hereof causing the imposition
or increase of any reserve, insurance, tax or assessment requirement (other than
a tax assessable on Bank's or Swing Lender's overall net income or gross
receipts) or the compliance with any guidelines or requests from any
governmental authority issued subsequent to the date hereof (whether or not
having the force of law), such Bank or Swing Lender, as the case may be, shall,
upon becoming aware of such increased costs, certify to Borrowers the amount
thereof (and such certification shall be deemed prima facie correct), whereupon
----- -----
Borrowers shall have the option either to: (i) repay in full the Notes and
request Banks and Swing Lender to terminate this Agreement; or (ii) continue to
borrow from Banks and Swing Lender under the terms of this Agreement and pay
such Bank or Swing Lender or both, as the case may be, on subsequent interest
payment dates such additional amounts as will compensate such Bank or Swing
Lender or both, from the date of receipt of certification, for such increased
costs.
(b) In the event that the introduction of or any change subsequent to
the date hereof in any applicable law, rule or regulation or in the
interpretation or administration thereof or compliance by any Bank or Swing
Lender with any request or directive (whether or not having the force of law) of
any governmental authority shall, in the determination of such Bank or Swing
Lender (which determination shall be made in good faith and shall be deemed
prima facie correct) make it unlawful or impractical for such Bank or Swing
----- -----
Lender to make, fund or maintain any Syndicated Loan, such Bank or Swing Lender,
as the case may be, shall promptly, upon becoming aware of such event, notify
Borrowers thereof, whereupon Borrowers shall, upon receipt of such notice, pay
in full such amounts as will compensate such Bank or Swing Lender for any losses
(not including lost profits) or expenses which such Bank or Swing Lender shall
have sustained or incurred as a result of such event (and the determination of
which by such Bank or Swing Lender shall be deemed prima facie correct, as
----- -----
certified by such Bank or Swing Lender).
(c) If, after the date hereof, the adoption of any applicable law, rule
or regulation regarding capital adequacy, or
35
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the administration
thereof, or compliance by any Bank or Swing Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, affects the amount of capital
required or expected to be maintained by such Bank or Swing Lender or any person
or entity in Control of such Bank or Swing Lender and such Bank or Swing Lender
determines that the amount of said capital is increased by or based upon such
Bank's or Swing Lender's obligations hereunder, then such Bank or Swing Lender,
as the case may be, will promptly notify Borrowers' Agent thereof, and from
time to time, upon demand by such Bank or Swing Lender, Borrowers shall pay to
such Bank or Swing Lender such additional amount or amounts as will compensate
such Bank or Swing Lender in light of such circumstances, to the extent that
such Bank or Swing Lender reasonably determines such increase in capital is
allocable to its obligations hereunder.
2.23 Calculation of Compensation to Banks; Required Transfer by Banks.
----------------------------------------------------------------
(a) Any Bank, Swing Lender or Banks' Agent requiring compensation
pursuant to Section 2.18(c) or subparagraphs (a), (b) and (c) of Section 2.22
shall deliver to Borrowers' Agent a certificate setting forth in reasonable
detail the calculations of any additional amounts required in order to
compensate such Bank, Swing Lender or Banks' Agent under Section 2.18(c) or
subparagraphs (a), (b) and (c) of Section 2.22. In determining any such
amounts, the Affected Bank may use any reasonable averaging and attribution
method, provided such Affected Bank shall use such methods in good faith, and
--------
such methods shall be in accordance with those generally used by such Bank or
Swing Lender, respectively, for this purpose for other comparable credit
facilities.
(b) Any Bank or other Person entitled to claim any additional amounts
payable pursuant to Section 2.18 or Section 2.22 shall endeavor in good faith
(consistent with its internal policy and legal and regulatory restrictions) to
retain the jurisdiction of its Lending Office or change the jurisdiction of its
Lending Office, as the case may be, if such retention or change would avoid the
need for, or reduce the amount of, any such additional amounts which may
thereafter accrue and such retention or change would not, in its reasonable
judgment, be otherwise materially disadvantageous to it, provided that nothing
--------
contained in this Section 2.23(b) shall be deemed to require any Bank or other
Person to retain, maintain or establish an office in any jurisdiction for the
sole purpose of avoiding the need for, or reducing the amount of, any such
additional amounts which may thereafter accrue.
(c) Notwithstanding the foregoing, in the event Borrowers are required
to pay any Bank, Swing Lender or Banks' Agent
36
amounts pursuant to Section 2.18 or Section 2.21 and the designation of a
different Lending Office pursuant to Section 2.23(b) will not avoid the need for
compensation to such Bank, Banks' Agent or Swing Lender, as the case may be (an
"Affected Bank"), Borrowers may give notice to such Affected Bank (with copies
-------------
to Banks' Agent) that they wish to seek one or more assignees (which may be one
or more of the Banks) to assume the Commitment of such Affected Bank and to
purchase its outstanding Loans and Notes; provided, that if there is more than
--------
one Affected Bank that has requested substantially and proportionally equal
compensation hereunder, Borrowers shall elect to seek an assignee to assume the
Commitments of all such Affected Banks. Each Affected Bank agrees to sell its
Commitment, Loans, Notes and interest in this Agreement in accordance with
Section 16.03(c) to any such assignee for an amount equal to the sum of the
outstanding unpaid principal of and accrued interest on such Loans and Notes,
plus all other fees and amounts (including, without limitation, any compensation
due to such Affected Banks under Section 2.18 or Section 2.22 calculated, in
each case, to the date such Loans, Notes and interest are purchased. Upon such
sale or prepayment, each such Affected Bank shall have no further commitment or
other obligation to Borrowers hereunder or under any Note, except as provided in
Section 2.18(c).
ARTICLE III
-----------
BORROWERS' AGENT
----------------
3.01 Appointment of Borrowers' Agent. Borrowers hereby collectively and
-------------------------------
individually appoint Operating Partnership (hereinafter, in its capacity as
Borrowers' Agent appointed pursuant to the provisions of this Article III,
referred to as "Borrowers' Agent"), as their agent and attorney-in-fact to
----------------
perform on behalf of Borrowers, or any of them, any and all duties or
obligations that arise or that may arise under this Agreement or any of the Loan
Documents, whether such duties and obligations require performance or payment or
otherwise, and to exercise on behalf of Borrowers, or any of them, any and all
rights or options of any nature whatsoever that arise or that may arise under
this Agreement or any of the Loan Documents. Borrowers and Weeks Corporation
acknowledge and agree that any actions, representations, warranties, orders,
notices, elections, directions, or otherwise made or carried out by Borrowers'
Agent in order to perform the duties or obligations or exercise the rights, of
Borrowers, or any of them, under this Agreement or any of the Loan Documents are
the duly authorized actions, representations, warranties, orders, notices,
elections, directions, or otherwise of Borrowers, or any of them as applicable,
that Banks' Agent, Banks and Swing Lenders shall be entitled to rely upon such
actions, representations, warranties, orders, notices, elections, directions, or
otherwise until cancellation and revocation of this power of attorney, as
hereinafter provided, and that Banks' Agent, Banks and Swing Lenders and any and
all other parties shall be under no obligation to
37
investigate or to confirm that any actions, representations, warranties, orders,
notices, elections, directions, or otherwise made or carried out by Borrowers'
Agent are the duly authorized actions, representations, warranties, orders,
notices, elections, directions, or otherwise of Borrowers, or any of them, as
applicable. In the event Banks' Agent, Banks or Swing Lenders receive any
conflicting requests, instructions, demands or notices from Borrowers' Agent and
any of Borrowers, Banks' Agent, Banks, or Swing Lenders, as the case may be,
shall be entitled to rely on such requests, instructions, demands or notices
received from Borrowers' Agent.
3.02 Performance of Duties on Behalf of Borrowers. Banks' Agent, Banks,
--------------------------------------------
Swing Lender, Borrowers and Weeks Corporation acknowledge and agree that any
notices of requests for Loans, any notices of interest rate elections, and any
and all other notices to be given by Borrowers or any of them hereunder, and any
payments of money or performances of duties or obligations owed to Banks' Agent,
Banks or Swing Lender by Borrowers, or any of them, pursuant to the terms of the
Loan Documents, may be made or performed directly to Banks' Agent, Banks or
Swing Lender, as applicable, by Borrowers' Agent, rather than by Borrowers, or
any of them, and any such payments made or duties or obligations performed to
Banks' Agent, Banks or Swing Lender by Borrowers' Agent on behalf of Borrowers,
or any of them, shall satisfy and fulfill any duty of Borrowers, or any of them,
to make such payments or perform such duties or obligations to Banks' Agent,
Banks, or Swing Lender, respectively. Borrowers and Weeks Corporation
specifically acknowledge and agree that Banks' Agent, Banks and Swing Lenders
shall be under no liability to Borrowers, or any of them, or to any other party
as a result of complying with any instruction of Borrowers' Agent with respect
to the Loan Documents. Notwithstanding anything to the contrary herein, any
actions, representations, warranties, orders, notices, elections, directions, or
otherwise may be made or carried out by any Borrower, rather than by Borrowers'
---
Agent. In addition, notwithstanding anything to the contrary herein, any
actions, representations, warranties, orders, notices, elections, directions, or
otherwise shall be made or carried out by any Borrower to whom Banks' Agent, any
-----
Bank or Swing Lender makes demand for the same, rather than by Borrowers' Agent,
in the event that Borrowers' Agent shall refuse or shall be unable to make or
carry out such actions, representations, warranties, orders, notices, elections,
directions, or otherwise, the determination of such refusal or inability of
Borrowers' Agent to be made by Banks' Agent, Bank or Swing Lender in its sole
discretion. Nothing contained in this Section 3.02 shall in any way adversely
affect the liability of each of Borrowers for their respective obligations under
this Agreement and the Notes, as provided elsewhere in this Agreement.
3.03 Termination of Agency. Borrowers, Banks' Agent, Banks and Swing Lender
---------------------
acknowledge and agree that the power of attorney
38
granted to Borrowers' Agent hereunder shall remain valid and binding upon all
Borrowers until such time as the power of attorney granted to Borrowers' Agent
hereunder is canceled or revoked, as hereinafter provided. Borrowers' Agent,
Borrowers, Banks' Agent, Banks and Swing Lender specifically acknowledge and
agree that the power of attorney granted herein is an irrevocable power of
attorney coupled with an interest. Notwithstanding anything to the contrary
herein, Borrowers' Agent, Borrowers, Banks' Agent, Banks and Swing Lender
specifically acknowledge and agree that the power of attorney granted herein to
Borrowers' Agent shall be revoked, rescinded and canceled automatically upon the
occurrence of (a) Borrowers' Agent's ceasing to exist as a limited partnership
in good standing under the laws of the State of Georgia; or (b) Borrowers'
Agent's changing its business form to a form other than a Georgia limited
partnership; or (c) the revocation by operation of law of the power of attorney
granted herein.
3.04 Disbursements of Loan Proceeds. Borrowers acknowledge and agree that
------------------------------
any disbursements of money, including without limitation any Loans, to be made
to Borrowers, or any of them, by Banks' Agent, Banks or Swing Lender pursuant to
the terms of this Agreement or the Loan Documents, shall be made by Banks'
Agent, Banks or Swing Lenders, as the case may be, directly to Borrowers' Agent,
rather than to Borrowers, or any of them, and any such disbursement made by
Banks' Agent, Banks or Swing Lender, as the case may be, to Borrowers' Agent on
behalf of Borrowers, or any of them, shall satisfy and fulfill any duty of such
Banks' Agent, Banks or Swing Lender to make such disbursement to Borrowers, or
any of them.
3.05 Recordkeeping. Borrowers' Agent shall keep all of Borrowers' financial
-------------
records with respect to the Loans and payments made thereon, including, without
limitation, records of the amount of each Loan, the identity of the Borrower for
whose use or benefit the Loan was intended, and the identity of the source of
all payments of principal and interest thereon. Neither Banks' Agent nor any
Bank nor Swing Lender shall be under an obligation to keep separate records for
each Borrower's activity under the Revolving Credit Facility, it being
understood that all Loans and repayments thereof under the Syndicated Master
Notes and the Swing Loan Note shall be accounted for by Banks' Agent, Banks and
Swing Lender, as the case may be, under borrowing accounts maintained in the
name of Borrowers' Agent. In the event that Borrowers' Agent is unable to
establish by authentic, contemporaneously created business records kept in the
ordinary course of business by Borrowers' Agent, the identity of the source of
any payment of principal or interest on any Loan, then for purposes of this
Agreement such identity shall be conclusively presumed to be that of Operating
Partnership.
3.06 Covenant Not to ▇▇▇. To induce Banks' Agent, Banks and Swing Lender to
-------------------
enter into this Agreement, Borrowers and Weeks Corporation hereby jointly and
severally agree not to institute any
39
action or make any claim against Banks' Agent, Banks or Swing Lenders, their
officers, directors, employees or agents arising out of or resulting from any
action taken or omitted to be taken by Banks' Agent, Banks or Swing Lender that
has been represented by Borrowers' Agent as being taken, or omitted, on behalf
of any or all Borrowers, whether such representation be express or implied, and
regardless of whether such representation is revoked later or rescinded later by
Borrowers' Agent, including without limitation any fraud or breach of implied
representations to third parties. This agreement of Borrowers and Weeks
Corporation not to institute any action or make any claim against Banks' Agent,
Banks and Swing Lender shall continue to be effective after the termination or
expiration of this Agreement as to any action taken or omitted to be taken by
Banks' Agent, Banks and Swing Lender during the term of this Agreement.
Borrowers agree that, upon termination of this Agreement for any reason, the
rights of Banks' Agent, Banks and Swing Lender under this Section 3.05 of this
Agreement shall survive any such termination, whether or not such rights arise
before or after such termination.
ARTICLE IV
----------
BANKS' AGENT
------------
4.01 Appointment; Powers and Immunities. Each Bank and Swing Lender hereby
----------------------------------
irrevocably appoint and authorize Banks' Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
Banks' Agent by the terms hereof and thereof, together with such other powers as
are reasonably incidental thereto. Banks' Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Bank or Swing Lender; (b) shall not be responsible
to Banks or Swing Lender for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Bank or Swing Lender under, this Agreement or any other Loan Document, or for
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by Borrower to perform any of
its obligations hereunder or thereunder; (c) shall not be required to initiate
or conduct any litigation or collection proceedings hereunder or under any other
Loan Document except to the extent requested by the Required Banks, and then
only on terms and conditions satisfactory to Banks' Agent, and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or under
any other Loan Document or any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith, except
for its own gross negligence or wilful misconduct. Banks' Agent may employ
agents and
40
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
The provisions of this Article IV are solely for the benefit of Banks' Agent,
Banks and Swing Lender, and Borrowers shall not have any rights as a third party
beneficiary of any of the provisions hereof. In performing its functions and
duties under this Agreement and under the other Loan Documents, Banks' Agent
shall act solely as agent of Banks and Swing Lender and does not assume and
shall not be deemed to have assumed any obligation towards or relationship of
agency or trust with or for Borrowers. The duties of Banks' Agent shall be
ministerial and administrative in nature, and Banks' Agent shall not have by
reason of this Agreement or any other Loan Document a fiduciary relationship in
respect of any Bank or Swing Lender. Banks' Agent shall administer the Loans
and the Loan Documents with the same degree of care as that customarily employed
by Banks' Agent in the administration of similar credit facilities for its own
account.
4.02 Reliance by Banks' Agent. Banks' Agent shall be entitled to rely upon
------------------------
any certification, notice or other communication (including any thereof by
telephone, telecopier, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper person or
persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by Banks' Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, Banks'
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and thereunder in accordance with instructions signed by the
Required Banks, and such instructions of the Required Banks in any action taken
or failure to act pursuant thereto shall be binding on all Banks and on Swing
Lender.
4.03 Defaults. Banks' Agent shall not be deemed to have knowledge of the
--------
occurrence of a Default (other than the nonpayment of principal of or interest
on the Loans) unless Banks' Agent has received notice from a Bank, Swing Lender
or Borrower specifying such Default and stating that such notice is a "Notice of
Default." In the event that Banks' Agent receives such a notice of the
occurrence of a Default, Banks' Agent shall give prompt notice thereof to Banks
and Swing Lender. Banks' Agent shall give each Bank and Swing Lender prompt
notice of each nonpayment of principal of or interest on the Loans whether or
not it has received any notice of the occurrence of such nonpayment. Banks'
Agent shall (subject to Article XIV) take such action hereunder with respect to
such Default as shall be directed by the Required Banks, provided that, unless
--------
and until Banks' Agent shall have received such directions, Banks' Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable in the best
interests of the Banks and Swing Lender.
41
4.04 Rights of Banks' Agent as a Bank and as Swing Lender. With respect to
----------------------------------------------------
the Loans made by Wachovia in its capacity as a Bank or Swing Lender hereunder,
Wachovia in its capacity as a Bank or Swing Lender hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though Wachovia were not acting as Banks' Agent, and the term "Bank" or "Banks"
---- -----
or "Swing Lender" shall, unless the context otherwise indicates, include
------------
Wachovia in its individual capacity. Wachovia may (without having to account
therefor to any Bank) accept deposits from, lend money to, and generally engage
in any kind of banking, trust or other business with Borrowers (and any of
Borrowers' Affiliates) as if Wachovia were not acting as Banks' Agent, and
Wachovia and any Affiliate of Wachovia may accept fees and other consideration
from Borrower (in addition to any agency fees and arrangement fees heretofore
agreed to between Borrower and Banks' Agent) for services in connection with
this Agreement or any other Loan Document or otherwise without having to account
for the same to Banks and Swing Lender.
4.05 Indemnification. Each Bank severally agrees to indemnify Banks' Agent,
---------------
to the extent Banks' Agent shall not have been reimbursed by Borrowers, ratably
in accordance with its Commitment, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements) or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against Banks' Agent in any way relating to or arising out of this
Agreement or any other Loan Document or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(excluding, unless a Default has occurred and is continuing, the normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or
any such other documents; provided that no Bank shall be liable for any of the
--------
foregoing to the extent they arise from the gross negligence or wilful
misconduct of Banks' Agent. If any indemnity furnished to Banks' Agent for any
purpose shall, in the opinion of Banks' Agent, be insufficient or become
impaired, Banks' Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
4.06 Consequential Damages. Banks' Agent SHALL NOT BE RESPONSIBLE OR LIABLE
---------------------
TO ANY Bank OR TO Swing Lender, BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
4.07 Payee of Note Treated as Owner. Banks' Agent may deem and treat the
------------------------------
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment
42
or transfer thereof shall have been filed with Banks' Agent and the provisions
of Section 16.03(c) have been satisfied. Any requests, authority or consent of
any person who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, Transferee or Assignee of that or of any Note or Notes issued
in exchange therefor or replacement thereof.
4.08 Nonreliance on Banks' Agent and Other Banks or Swing Lender. Each Bank
-----------------------------------------------------------
and Swing Lender agree that they have, independently and without reliance on
Banks' Agent or any other Bank and, in the case of a Bank, the Swing Lender, and
based on such documents and information as it has deemed appropriate, made their
own credit analysis of Borrowers and decision to enter into this Agreement and
that it will, independently and without reliance upon Banks' Agent or any other
Bank, and in the case of a Bank, the Swing Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under this Agreement
or any of the other Loan Documents. Banks' Agent shall not be required to keep
itself (or any Bank or Swing Lender) informed as to the performance or
observance by Borrowers of this Agreement or any of the other Loan Documents or
any other document referred to or provided for herein or therein or to inspect
the properties or books of Borrowers or any other Person. Except for notices,
reports and other documents and information expressly required to be furnished
to Banks and Swing Lender by Bank's Agent hereunder or under the other Loan
Documents, Banks' Agent shall not have any duty or responsibility to provide any
Bank or Swing Lender with any credit or other information concerning the
affairs, financial condition or business of Borrowers or any other Person (or
any of their Affiliates) which may come into the possession of Banks' Agent;
provided that Banks' Agent shall make available to any Bank and Swing Lender,
--------
upon such Bank's or Swing Lender's request, (a) copies of Banks' Agent's records
with respect to all sums received or expended by Banks' Agent in connection with
the Loans and the Loan Documents, and (b) information as to the amount of the
then outstanding Loans.
4.09 Failure to Act. Except for action expressly required of Banks' Agent
--------------
hereunder or under the other Loan Documents, Banks' Agent shall in all cases be
fully justified in failing or refusing to act hereunder and thereunder unless it
shall receive further assurances to its satisfaction by Banks and Swing Lender
of their indemnification obligations under Section 4.05 against any and all
liability and expense which may be incurred by Banks' Agent by reason of taking,
continuing to take, or failing to take any such action.
4.10 Resignation or Removal of Banks' Agent. Subject to the appointment and
--------------------------------------
acceptance of a successor Banks' Agent as provided below, Banks' Agent may
resign at any time by giving notice thereof
43
to Banks and Swing Lender, and Borrower, and Banks' Agent may be removed at any
time with or without cause by the Required Banks. Upon any such resignation or
removal, Required Banks shall have the right to appoint a successor Banks'
Agent, subject to the approval of Borrower, which approval shall not be
unreasonably withheld or delayed; provided, however, that no such approval of
--------
Borrower shall be required if a Default is in existence. If no successor Banks'
Agent shall have been so appointed by the Required Banks and shall have accepted
such appointment within thirty (30) days after the retiring Banks' Agent's
notice of resignation or the Required Banks' removal of the retiring Banks'
Agent, then the retiring Banks' Agent may, on behalf of Banks and Swing Lender,
appoint a successor Banks' Agent, subject to the approval of Borrower, which
approval shall not be unreasonably withheld or delayed; provided, however, that
--------
no such approval of Borrower shall be required if a Default is in existence.
Any successor Banks' Agent shall be a bank which has a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Banks' Agent hereunder by a successor Banks' Agent, such successor Banks' Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Banks' Agent, and the retiring Banks'
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Banks' Agent's resignation or removal hereunder as Banks' Agent, the
provisions of this Article IV shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Banks' Agent hereunder.
4.11 Directions to Banks' Agent. Whenever a provision of this Agreement
--------------------------
provides that the giving, making or taking, as the case may be, of a consent,
approval, instruction, direction, acceptance, request or other action by the
Required Banks is required as a condition to the right or duty of Weeks
Corporation or Borrowers or Banks' Agent to take or refrain from taking any
action or to the existence of any status or condition, and Banks' Agent shall
have notified all Banks of the action, status or condition for which such
consent, approval, instruction, direction, acceptance, request or other action
is required, such consent, approval, instruction, direction, acceptance, request
or other action may be, at the option of Banks' Agent, deemed given, made or
taken, as the case may be, by each Bank, unless such Bank shall have given
Banks' Agent contrary instructions within seven (7) Domestic Business Days after
its receipt of such notice from Banks' Agent. Notwithstanding the foregoing,
Banks' Agent reserves the right to refrain from acting on any matter which
requires the consent, approval, direction, instruction, acceptance, request or
other action of one or more Banks unless and until Banks' Agent shall have
actually received the same from such party or parties as provided for herein.
44
ARTICLE V
---------
CONDITIONS TO REVOLVING CREDIT FACILITY
---------------------------------------
The obligation of Banks and Swing Lender to extend the Revolving Credit
Facility and to make the initial Loan thereunder is subject to the satisfaction
of the following conditions:
5.01 Operating Partnership's Authority. Banks' Agent shall have received a
---------------------------------
Certificate of Partners of Operating Partnership, in form and substance
acceptable to Banks' Agent, authorizing the execution, delivery and performance
of this Agreement and the borrowing by it hereunder and the Weeks Guaranty
executed by Operating Partnership, together with such other papers,
certifications or partnership documents as Banks' Agent may require to evidence
that Operating Partnership has the legal power and authority to enter into this
Agreement, the Weeks Guaranty, and the other Loan Documents, and the
transactions contemplated hereby.
5.02 Weeks Corporation's Authority. Banks' Agent shall have received
-----------------------------
certified copies of resolutions of Weeks Corporation's Board of Directors
authorizing the execution, delivery and performance of this Agreement and the
Weeks Guaranty executed by Weeks Corporation, together with such other papers,
certifications or corporate documents as Banks' Agent may require to evidence
that Weeks Corporation has the corporate power and authority to enter into this
Agreement, the Weeks Guaranty, and the transactions contemplated hereby.
5.03 Construction's Authority. Banks' Agent shall have received certified
------------------------
copies of resolutions of Construction's Board of Directors authorizing the
execution, delivery and performance of this Agreement and the borrowing by it
hereunder, and such other papers, certifications or corporate documents as
Banks' Agent may require to evidence that Construction has the corporate power
and authority to enter into this Agreement, the other Loan Documents, and the
transactions contemplated hereby.
5.04 Realty's Authority. Banks' Agent shall have received certified copies
------------------
of resolutions of Realty's Board of Directors authorizing the execution,
delivery and performance of this Agreement and the borrowing by it hereunder,
and such other papers, certifications or corporate documents as Banks' Agent may
require to evidence that Realty has the corporate power and authority to enter
into this Agreement, the other Loan Documents, and the transactions contemplated
hereby.
5.05 Development's Authority. Banks' Agent shall have received a Certificate
-----------------------
of Partners of Development, in form and substance acceptable to Banks' Agent,
authorizing the execution, delivery and performance of this Agreement and the
borrowing by it hereunder, and such other papers, certifications or partnership
45
documents as Banks' Agent may require to evidence that Development has the legal
power and authority to enter into this Agreement, the other Loan Documents, and
the transactions contemplated hereby.
5.06 Financing's Authority. Banks' Agent shall have received a Certificate
---------------------
of Partners of Financing, in form and substance acceptable to Banks' Agent,
authorizing the execution, delivery and performance of this Agreement and the
borrowing by it hereunder, and such other papers, certifications or partnership
documents as Banks' Agent may require to evidence that Financing has the legal
power and authority to enter into this Agreement, the other Loan Documents, and
the transactions contemplated hereby.
5.07 Satisfactory Financial Condition. There shall not have occurred any
--------------------------------
material adverse change in the financial condition, properties, or operations of
Weeks Corporation, the Consolidated Entities and Non-Consolidated Subsidiaries
(all of the foregoing taken as a whole) or Operating Partnership (standing
alone) since June 30, 1996.
5.08 Representations and Warranties. The representations and warranties of
------------------------------
Borrowers and Weeks Corporation set forth in Article IX, and in all agreements,
documents and instruments executed and delivered pursuant hereto shall be true
and correct in all material respects when made or deemed made hereunder or
thereunder.
5.09 Payment of Fees. Banks' Agent shall have received payment in full of
---------------
all fees, charges, and expenses as required by or otherwise due in connection
with this Agreement, including attorneys' fees and expenses of Banks' Agent's
counsel and the initial origination fee due pursuant to Section 2.20.
5.10 Syndicated Master Notes. Banks' Agent shall have received the original
-----------------------
Syndicated Master Notes, duly executed and delivered by Borrowers.
5.11 Swing Loan Note. Swing Lender shall have received the original Swing
---------------
Loan Note, duly executed and delivered by Borrowers.
5.12 Weeks Guaranties. Banks' Agent shall have received the original Weeks
----------------
Guaranties, duly executed and delivered by Guarantors.
5.13 Certificates of Incumbency. Banks' Agent shall have received an
--------------------------
original Certificate of Incumbency from Weeks Corporation and each Borrower with
respect to the Authorized Signatory of each such party.
5.14 Other Documentation. Banks' Agent shall have received such other loan
-------------------
documentation as deemed reasonably necessary or
46
desirable by Banks' Agent or its counsel, satisfactory in form and substance to
Banks' Agent, providing for the Loans to be made.
5.15 REIT Status. Weeks Corporation shall be qualified as a real estate
-----------
investment trust under the Code.
5.16 Opinion of Counsel. Banks' Agent shall have received a favorable
------------------
opinion letter from King & Spalding, counsel to Borrowers and Weeks Corporation,
in form and substance satisfactory to Banks' Agent and its counsel.
5.17 Key Executives. The Key Executives shall be A. R. Weeks, Jr., ▇▇▇▇▇▇ ▇.
--------------
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
5.18 Repayment of Debt. The initial Loan shall be sufficient to pay the
-----------------
principal amount of all Prior Indebtedness to Wachovia, in full, and Borrowers'
Agent shall have made arrangements satisfactory to Wachovia (a) for the proceeds
of such Loan to be applied, to the extent required, to pay such principal amount
to Wachovia, and (b) for Borrowers to pay to Wachovia immediately all accrued
and unpaid interest and unused commitment fees owing on account of the Prior
Indebtedness upon receipt by Borrowers' Agent of an invoice from Wachovia
reflecting the same.
5.19 General Conditions. Each of the conditions set forth in Article VI or
------------------
Article VII, as applicable, shall have been satisfied.
ARTICLE VI
-----------
CONDITIONS TO SYNDICATED LOANS
------------------------------
The obligation of Banks to make any Syndicated Loan is subject to the
satisfaction of the following conditions at the time of the request for the
Syndicated Loan:
6.01 Representations and Warranties. The representations and warranties
------------------------------
contained in this Agreement shall have been true and correct in all material
respects when made, and such representations and warranties and those made by or
on behalf of Borrowers in connection with the Syndicated Loan shall remain true
and correct in all material respects, except as otherwise disclosed in writing
pursuant to this Agreement to each Bank and Swing Lender.
6.02 Available Credit. The amount of the Syndicated Loan does not exceed the
----------------
Available Credit.
6.03 No Material Adverse Change. The financial condition of Weeks
--------------------------
Corporation, the Consolidated Entities and the Non-Consolidated Subsidiaries
(all of the foregoing taken as a whole), and of Operating Partnership (standing
alone) shall not have
47
materially adversely changed from its or their financial conditions,
respectively, as of the date of this Agreement.
6.04 Full Compliance. Borrowers and Weeks Corporation shall be in full
---------------
compliance with all the terms and conditions of this Agreement.
6.05 No Default; No Claims. No Default or an event that upon notice or lapse
---------------------
of time or both, would constitute a Default shall have occurred, and there will
be no claim, action, suit or proceeding pending or threatened against Weeks
Corporation or any Consolidated Entity or Non-Consolidated Subsidiary that would
result in a material adverse change in the financial condition, assets, or
operations of Weeks Corporation, the Consolidated Entities and the Non-
Consolidated Subsidiaries (all of the foregoing taken as a whole) or of
Operating Partnership (standing alone).
6.06 Incumbency. The Authorized Signatories of each party executing and
----------
delivering any document to Banks' Agent in connection with the Syndicated Loan
shall be as set forth in the applicable certificate of incumbency delivered to
Banks' Agent pursuant to Section 5.14 or as subsequently modified and reflected
in an updated certificate of incumbency delivered to Banks' Agent.
6.07 Advance Request. Banks' Agent shall have received an Advance Request,
---------------
executed by an Authorized Signatory of Borrowers' Agent, in accordance with the
provisions of Section 2.07.
ARTICLE VII
-----------
CONDITIONS TO SWING LOANS
-------------------------
The obligation of Swing Lender to make any Swing Loan is subject to the
satisfaction of the following conditions at the time of the request for the
Swing Loan:
7.01 Representations and Warranties. The representations and warranties
------------------------------
contained in this Agreement shall have been true and correct in all material
respects when made and such representations and warranties and those made by or
on behalf of Borrowers in connection with the Swing Loan shall remain true and
correct in all material respects, except as otherwise disclosed in writing
pursuant to this Agreement to each Bank and Swing Lender.
7.02 Available Swing Credit. The amount of the Swing Loan does not exceed
----------------------
the Available Swing Credit.
7.03 General Conditions. Each of the conditions set forth in Sections 6.03,
------------------
6.04, 6.05, 6.06 and 6.07.
48
ARTICLE VIII
------------
ENVIRONMENTAL MATTERS
---------------------
8.01 Representations, Warranties. Weeks Corporation and Borrowers represent
---- ---------------------------
and warrant to Banks' Agent, Banks and Swing Lender that, except as otherwise
disclosed in writing by Borrowers' Agent to Banks' Agent, (a) no Property is now
being used by it in violation of any Environmental Laws, except such use as
would not have a material adverse effect on the financial condition, operations,
or properties of Weeks Corporation, the Consolidated Entities and Non-
Consolidated Subsidiaries (all of the foregoing taken as a whole) or Operating
Partnership (standing alone) or would constitute a breach of the provisions of
Section 11.08; (b) that no proceedings have been commenced against Weeks
Corporation or any Consolidated Entity or Non-Consolidated Subsidiary concerning
any alleged material violations of any Environmental Laws on or related to the
Property; (c) neither Weeks Corporation nor any Borrower has any reason to know
of any such alleged violations, except such alleged violations as would not have
a material adverse effect on the financial condition, operations, or properties
of Weeks Corporation, the Consolidated Entities and Non-Consolidated
Subsidiaries (all of the foregoing taken as a whole) or Operating Partnership
(standing alone) or would constitute a breach of the provisions of Section
11.08; (d) the Property is free of any Substances and is not being used for the
storage, treatment or disposal of any Substances, or if there are any Substances
on any Property, Weeks Corporation, the Consolidated Entities or Non-
Consolidated Subsidiaries, as the case may be, are maintaining them in
accordance with all applicable laws, except to the extent such failure so to
maintain such Substances would not have a material adverse effect on the
financial condition, operations, or properties of Weeks Corporation, the
Consolidated Entities and Non-Consolidated Subsidiaries (all of the foregoing
taken as a whole) or Operating Partnership (standing alone) or would constitute
a breach of the provisions of Section 11.08; (e) if Weeks Corporation, the
Consolidated Entities or Non-Consolidated Subsidiaries, as the case may be, are
transporting any Substances, such transportation is being conducted in
compliance with all applicable laws, except to the extent such failure so to
conduct such transportation would not have a material adverse effect on the
financial condition, operations, or properties of Weeks Corporation, the
Consolidated Entities and Non-Consolidated Subsidiaries (all of the foregoing
taken as a whole) or Operating Partnership (standing alone) or would constitute
a breach of the provisions of Section 11.08; (f) Weeks Corporation, the
Consolidated Entities or Non-Consolidated Subsidiaries, as the case may be, have
all required permits for the use and discharge of any Substances on the Property
and all uses and discharges on the Property are being made in compliance with
such permits, except to the extent that the failure to have a required permit or
failure to make such uses and discharges in compliance with such permits would
49
not have a material adverse effect on the financial condition, operations, or
properties of Weeks Corporation, the Consolidated Entities and Non-Consolidated
Subsidiaries (all of the foregoing taken as a whole) or Operating Partnership
(standing alone) or would constitute a breach of the provisions of Section
11.08; and (g) Weeks Corporation and Borrowers have made a complete disclosure
to Banks' Agent, Banks and Swing Lender of all facts which might indicate a
material environmental risk or the material violation of any Environmental Laws
on or related to the Property.
8.02 Continued Compliance. Weeks Corporation and Borrowers covenant that
--------------------
Borrowers will promptly inform Banks' Agent in writing of any material
environmental risk or material violation of any Environmental Laws on or related
to any Property or the commencement of any proceedings against Weeks
Corporation, any Consolidated Entity or Non-Consolidated Subsidiary or receipt
of any notices by any such Person concerning any alleged material violation of
Environmental Laws on or related to any Property. Should Banks' Agent, any Bank
or Swing Lender be reasonably concerned that any Property may be at risk of
suffering a material impairment in value owing to environmental contamination or
other environmental matters, at such Person's request, Borrowers shall obtain
and deliver to Banks' Agent and such Person (if not Banks' Agent) an
environmental audit covering such Property from experts reasonably acceptable to
Banks' Agent, such Bank or Swing Lender, as the case may be, at Borrowers' sole
expense.
ARTICLE IX
-----------
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce Banks' Agent, Banks and Swing Lender to enter into the Loan
Documents and to make Loans as contemplated hereby, Borrowers and Weeks
Corporation represent and warrant to Banks' Agent, Banks and Swing Lender, each
of which representations and warranties is deemed to be material, that:
9.01 Consolidated Entities and Non-Consolidated Subsidiaries. As of the date
-------------------------------------------------------
hereof, Operating Partnership and Financing are the only Consolidated Entities
in existence, and Construction, Realty and Development are the only Non-
Consolidated Subsidiaries in existence.
9.02 Corporate Organization. Weeks Corporation, Construction and Realty each
----------------------
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Georgia and has full right, power and authority to conduct
its business as currently conducted; each maintains its principal place of
business and its chief executive office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
50
9.03 Limited Partnership Organization. Operating Partnership and Financing
--------------------------------
each is a limited partnership duly organized and validly existing and in good
standing under the laws of the State of Georgia and has full right, power and
authority to conduct its business as currently conducted; each maintains its
principal place of business and its chief executive office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
9.04 Development Organization. Development is a general partnership duly
------------------------
organized and validly existing under the laws of the State of Georgia and has
full right, power and authority to conduct its business as currently conducted;
its principal place of business and its chief executive office are located at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
9.05 Power and Authority. Each Borrower and Weeks Corporation has full
-------------------
right, power and authority to enter into the Loan Documents and to consummate
the transactions contemplated hereby and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement and the
documents contemplated to be executed and delivered hereby.
9.06 Enforceability. The Loan Documents constitute valid obligations of the
--------------
parties executing the same, legally binding upon Borrowers and Weeks
Corporation, as the case may be, and enforceable in accordance with their terms,
except as enforcement may be affected by bankruptcy, insolvency and other laws
and equitable principals affecting the rights and remedies of creditors
generally and except as may be limited by general principals of equity. No
consent, license, or approval of any governmental authority, bureau or agency is
required in connection with the execution, delivery, performance, validity or
enforceability of the Loan Documents.
9.07 Violation of Organizational Documents. The execution, delivery and
-------------------------------------
performance of the Loan Documents will not violate the provisions of the
Articles of Incorporation or By-Laws of Weeks Corporation, Construction or
Realty or the partnership agreements or certificates of Operating Partnership,
Development or Financing.
9.08 Conflicts. The execution, delivery and performance of the Loan
---------
Documents will not violate the provisions of any Mortgage, indenture, security
agreement, contract, undertaking or other agreement to which any Borrower or
Weeks Corporation, or any of them, is a party, or which purports to be binding
upon any Borrower or Weeks Corporation, or any of them, or any of their
respective properties or assets. No consent, approval, authorization, waiver or
notice to any other person or entity is required for the execution, delivery and
performance of the Loan Documents by Borrowers and Weeks Corporation, except for
such consents, approvals, authorizations, and waivers which have been obtained,
51
are unconditional and are in full force and effect, and such notices which have
been given.
9.09 Title. Weeks Corporation, the Consolidated Entities and Non-
-----
Consolidated Subsidiaries each has good and marketable title to all of its
respective properties, subject to the Permitted Encumbrances and the Liens
permitted pursuant to Section 11.11.
9.10 Existence of Liens. No Mortgage, financing statement, notice of lien,
------------------
security agreement, or any other agreement or instrument creating or giving
notice of a security interest in or an encumbrance, Lien, or charge against any
property of Weeks Corporation or any Consolidated Entity or Non-Consolidated
Subsidiary is in existence or on file in any public office, except as permitted
by Section 11.11.
9.11 Financial Condition. All financial statements and all other financial
-------------------
information of Borrowers and Weeks Corporation furnished to Banks' Agent, Banks
and Swing Lender are complete and correct in all material respects and
accurately reflect their respective financial conditions and the results of
operations for the respective periods to which such statements relate. There
are no material liabilities, direct or indirect, fixed or contingent, of any
Borrower or Weeks Corporation required to be reflected or disclosed therein that
are not so reflected or disclosed therein or in the Notes thereto.
9.12 Litigation. There is no litigation, proceeding, or investigation
----------
pending or, to the knowledge of any Borrower or Weeks Corporation, threatened,
that is reasonably expected to result in any materially adverse change in the
operations, properties or financial conditions of Weeks Corporation, the
Consolidated Entities and Non-Consolidated Subsidiaries (all of the foregoing
taken as a whole) or Operating Partnership (standing alone) or that question the
validity of any action taken or to be taken by Borrowers or Weeks Corporation
pursuant to or in connection with the transactions contemplated by the Loan
Documents, nor does any Borrower or Weeks Corporation know or have any
reasonable grounds to know the basis for the institution of any such litigation,
proceeding or investigation.
9.13 Foreign Qualifications. Operating Partnership, Construction, Realty,
----------------------
Financing and Weeks Corporation are qualified to do business in all states where
required by applicable law, except where the failure to be so qualified would
not have a material adverse effect on Weeks Corporation, the Consolidated
Entities and the Non-Consolidated Subsidiaries (all of the foregoing taken as a
whole) or Operating Partnership (standing alone).
9.14 Tax Obligations. Neither Borrowers nor Weeks Corporation have knowledge
---------------
of any tax return required to be filed
52
by them that has not been filed with the appropriate governmental agency or for
which they have not received an extension beyond the date hereof; neither
Borrowers nor Weeks Corporation will be, as of the date of this Agreement, in
default with respect to such filings. Borrowers and Weeks Corporation have paid
or will have paid as of the date of this Agreement all taxes now or then claimed
to be due by any federal, state or local taxing authority. Except as otherwise
disclosed to Banks' Agent pursuant to this Agreement, neither the Internal
Revenue Service nor any other taxing authority is now asserting, or to the
knowledge of Borrowers or Weeks Corporation, has threatened to assert, any
deficiency claim for additional taxes against them in any material amount, and
no waivers of the Statute of Limitations have been granted to the Commissioner
of Internal Revenue or any other taxing authority by Borrowers or Weeks
Corporation.
9.15 Capital Stock. All capital stock, debentures, bonds, Notes and all
-------------
other securities of Weeks Corporation, each Consolidated Entity and each Non-
Consolidated Subsidiary presently issued and outstanding are validly and
properly issued in accordance with all applicable laws, including, but not
limited to, the "Blue Sky" laws of all applicable states and the federal
securities laws.
9.16 Insolvency. After giving effect to the execution and delivery of the
----------
Loan Documents and the making of any Syndicated Loans and Swing Loans under the
Revolving Credit Facility, neither any Borrower nor Weeks Corporation will be
"insolvent," within the meaning of such term as used in O.C.G.A. (S) 18-2-22 or
as defined in Section 101 of the United States Bankruptcy Code, as amended, or
will be unable to pay its debts generally as such debts become due, or have an
unreasonably small capital.
9.17 Margin Stock. Neither any Borrower nor Weeks Corporation is engaged
------------
principally or as one of its important activities, in the business of purchasing
or carrying Margin Stock, and no part of the proceeds of any Loan made pursuant
to this Agreement will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulation X of the Board of Governors of the Federal Reserve
System.
9.18 Franchises, Licenses, Etc. Weeks Corporation and the Consolidated
-------------------------
Entities and Non-Consolidated Subsidiaries each possesses all franchises,
certificates, licenses, permits and other authorizations from governmental or
political authorities or subdivisions or regulatory authorities, and all
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights, free from burdensome restrictions, that are necessary for the ownership,
maintenance and operation of any of its property and assets, and the absence of
which would have a material adverse
53
effect on the financial condition, operations, or properties of Weeks
Corporation, the Consolidated Entities and the Non-Consolidated Subsidiaries
(all of the foregoing taken as a whole) or Operating Partnership (standing
alone). Neither Weeks Corporation nor any Consolidated Entity nor any Non-
Consolidated Subsidiary is in violation of any thereof which is reasonably
expected to have a material adverse effect on the financial condition,
operations, or properties of Weeks Corporation, the Consolidated Entities and
the Non-Consolidated Subsidiaries (all of the foregoing taken as a whole) or
Operating Partnership (standing alone).
9.19 ERISA. If Weeks Corporation or any Consolidated Entity or any Non-
-----
Consolidated Subsidiary is subject to any provision of ERISA as of the date
hereof or at any time during the term of this Agreement, then (a) each such
member is in compliance with the requirements of ERISA with respect to each
Employee Benefit Plan, where the failure so to comply would have a material
adverse effect on the financial condition, operations, or properties of Weeks
Corporation, the Consolidated Entities and the Non-Consolidated Subsidiaries
(all of the foregoing taken as a whole) or Operating Partnership (standing
alone), (b) no fact, including, but not limited to, any Reportable Event exists
in connection with any Employee Benefit Plan which, more likely than not, would
constitute grounds for the termination of any such Plan by the PBGC or for the
appointment by the appropriate United States District Court of a Trustee to
administer any such Plan, where such termination would result in a material
adverse change in the financial condition, operations, or properties of Weeks
Corporation, the Consolidated Entities and the Non-Consolidated Subsidiaries
(all of the foregoing taken as a whole) or Operating Partnership (standing
alone), (c) no such member either maintains or contributes to any Employee
Benefit Plan that has an "accumulated funding deficiency" (as defined in Section
412 of the Code) in an amount greater than $500,000, (d) no such member either
maintains or contributes to any Employee Benefit Plan which has incurred any
material liability to the PBGC (other than for premium payments due in the
ordinary course of business, which premiums will be paid when due and payable),
(e) no such member either maintains or contributes to any Employee Benefit Plan
which has insufficient assets to qualify for a standard termination pursuant to
Section 4041 of ERISA, (f) except as otherwise disclosed to Banks' Agent in
writing, no such member is required pursuant to the terms of any applicable
collective bargaining agreement to pay or accrue any contributions with respect
to any Employee Benefit Plan that is a Multiemployer Plan and there has been no
complete or partial withdrawal by any such member from any such Multiemployer
Plan within the contemplation of MPPAA, (g) except as otherwise disclosed to
Banks' Agent in writing, no such member either maintains or contributes to any
Employee Benefit Plan that provides medical benefits, life insurance benefits or
other welfare benefits as defined in Section 3(1) of ERISA (excluding health
continuation coverage required
54
under Section 601 of ERISA) for former employees of such member, (h) except as
otherwise disclosed to Banks' Agent in writing, no such member either maintains
or contributes to any non-qualified, unfunded deferred compensation plan, and
(i) no such member or any fiduciary with respect to any Employee Benefit Plan
has engaged in a "prohibited transaction" within the meaning of Section 4975 of
the Code or Section 406 of ERISA with respect to any Employee Benefit Plan which
is reasonably expected to have a material adverse effect on the financial
condition, operations or properties of Weeks Corporation, the Consolidated
Entities and the Non-Consolidated Subsidiaries (all of the foregoing taken as a
whole) or Operating Partnership (standing alone).
9.20 Financial Statements. None of the financial statements delivered by
--------------------
Borrowers' Agent or any of Borrowers or Weeks Corporation to Banks' Agent, Banks
and Swing Lender pursuant to this Agreement contains, as of the date of delivery
thereof, any untrue statement of material fact nor do such financial statements
and such written statements, taken as a whole, omit to state a material fact or
any fact necessary to make the statements contained therein not misleading.
9.21 Misrepresentations. No representation or warranty by Borrowers or Weeks
------------------
Corporation made herein and no statement or certificate to be furnished to
Banks' Agent, Banks or Swing Lender pursuant hereto in connection with the
transactions contemplated hereby contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact necessary to
make the statements contained therein not misleading.
ARTICLE X
---------
AFFIRMATIVE COVENANTS
---------------------
In order to induce Banks' Agent, Banks and Swing Lender to enter into the Loan
Documents and to make Loans as contemplated hereby, Borrowers and Weeks
Corporation covenant and agree with Banks' Agent, Banks and Swing Lender that
from and after the date hereof, and so long as any Obligations remain
outstanding or this Agreement remains in effect, that:
10.01 Location of Records. Borrowers and Weeks Corporation shall maintain all
-------------------
their books and records at Operating Partnership's chief executive office as set
forth in this Agreement or at such other location in the State of Georgia
disclosed in a written notice given by Borrowers to Banks' Agent prior to moving
said books and records to such other location.
10.02 Inspection. Borrowers and Weeks Corporation shall permit each of Banks'
----------
Agent, any Bank and Swing Lender, or any persons duly designated by it to call
at their respective places of business at any reasonable time, and without
hindrance or delay, to
55
inspect, audit, check and make extracts from their respective books, records,
journals, orders, receipts and any correspondence or other data relating to its
business or any other transactions between or among the parties hereto.
10.03 Financial and Other Information. Borrowers and Weeks Corporation shall
-------------------------------
furnish to Banks' Agent, each Bank and Swing Lender the following financial
information:
(a) Quarterly, not later than forty-five (45) days after the end of each
of the first three (3) fiscal quarters of each fiscal year of Weeks Corporation,
unaudited financial statements of Weeks Corporation, including the accounts of
Weeks Corporation and all Consolidated Entities reported on a consolidated basis
in accordance with GAAP (subject to customary adjustments and the absence of
notes thereto), as of the end of such quarter, including a balance sheet and
detailed statement of profit and loss, in the form included by Weeks Corporation
in its Quarterly Report on Form 10-Q filed in respect of such quarterly period
with the SEC or otherwise in form reasonably acceptable to Banks' Agent and the
Required Banks, all certified by Weeks Corporation's chief financial officer.
Weeks Corporation's chief financial officer shall certify with respect to all
such financial statements that the financial statements submitted (i) are in
accordance with Weeks Corporation's and the Consolidated Entities' or Non-
Consolidated Subsidiaries' books and records; (ii) present fairly in all
material respects the financial position and results of operations as of and for
the periods specified; (iii) set forth all material claims and liabilities,
contingent or otherwise, required by GAAP to be disclosed therein; and (iv)
fully disclose the existence of any Default hereunder, including the nature and
period of existence thereof.
(b) Quarterly, not later than forty-five (45) days after the end of each
fiscal quarter of Weeks Corporation, a certificate of Weeks Corporation's chief
financial officer, in the form of Exhibit H, which is attached hereto and
---------
incorporated herein by reference, certifying compliance by Borrowers and Weeks
Corporation with this Agreement, including the financial covenants set forth in
Article XII as of the end of such quarter and containing a computation
evidencing compliance with such financial covenants as of such quarter and in
accordance with GAAP. Said certificates shall also include a statement by such
officer as to the outstanding principal balance of all Loans and the identity of
the Borrower for whose benefit each such Loan was intended.
(c) Annually, not later than one hundred twenty (120) days after the end
of Weeks Corporation's fiscal year end, financial statements of Weeks
Corporation, including the accounts of Weeks Corporation and all Consolidated
Entities reported on a consolidated basis in accordance with GAAP, as of and for
the period ending at such fiscal year end, including a balance sheet
56
and detailed statement of profit and loss, in the form included by Weeks
Corporation in its Annual Report on Form 10-K filed in respect of such annual
period with the SEC or otherwise in form reasonably acceptable to Banks' Agent
and the Required Banks, audited by an independent practicing certified public
accountant of recognized national standing or otherwise reasonably acceptable to
Banks' Agent and the Required Banks, together with an auditor's opinion of such
accountant without material qualification.
(d) On the due date therefor (taking into account any extensions granted
by the SEC), or upon the filing thereof with the SEC, if sooner, all notices and
reports filed by Weeks Corporation or any Consolidated Entity or Non-
Consolidated Subsidiary with the SEC.
(e) From time to time (but not more frequently than quarterly) at Banks'
Agent's request, summary reports on the net operating income of Income
Properties, rent rolls and property level reports supporting the calculation of
Annualized NOI, in form and content reasonably satisfactory to Banks' Agent.
(f) Quarterly, not later than forty-five (45) days after the end of each
fiscal quarter of each Non-Consolidated Subsidiary which is or becomes a
Borrower under this Agreement, unaudited financial statements of each such Non-
Consolidated Subsidiary, reported in accordance with GAAP (subject to customary
adjustments and the absence of notes thereto), as of the end of such quarter,
including a balance sheet and detailed statement of profit and loss, in form
reasonably acceptable to Banks' Agent and the Required Banks, each certified by
the chief financial officer of such applicable Non-Consolidated Subsidiary.
Such chief financial officer shall certify with respect to such financial
statements that the financial statements submitted (i) are in accordance with
such applicable Non-Consolidated Subsidiary's books and records; (ii) present
fairly in all material respects the financial position and results of operations
as of and for the periods specified; and (iii) set forth all material claims and
liabilities, contingent or otherwise, required by GAAP to be disclosed therein.
(g) Such other or more frequent data, information, and reports with
respect to Weeks Corporation or any Consolidated Entity or Non-Consolidated
Subsidiary as Banks' Agent, Banks or Swing Lender may reasonably request from
time to time.
10.04 Governmental Obligations. Borrowers and Weeks Corporation will pay and
------------------------
discharge promptly or cause to be paid and discharged promptly all taxes,
assessments, and governmental charges or levies imposed upon them or upon their
income or property, real, personal, or mixed, or upon any part thereof, as well
as all claims of any kind (including claims for labor, materials and supplies),
which, if unpaid, might by law become a
57
lien or charge against said property; provided, however, that neither Borrowers
nor Weeks Corporation shall be required to pay any such tax, assessment, charge,
levy, or claim if (a) the amount, applicability or validity thereof shall
currently be contested in good faith by appropriate proceedings, and if they
shall have set aside on their books reserves (segregated to the extent required
by sound accounting practice) deemed by Banks' Agent, Banks or Swing Lender
adequate with respect thereto, and by reason of such nonpayment no material
property of any Borrower or Weeks Corporation is subject to a material risk of
loss or forfeiture, or (b) the amount of such unpaid taxes, assessments,
governmental charges or levies, or other such claims not so paid or discharged
does not exceed $250,000 in the aggregate and with respect to which they shall
not have set aside reserves pursuant to the foregoing clause (a).
10.05 Insurance. Weeks Corporation, the Consolidated Entities and the Non-
---------
Consolidated Subsidiaries each shall maintain or cause to be maintained adequate
and customary insurance with respect to its or their general operations and
their real properties, including coverage for public liability, director's
liability, casualty, business interruption, loss of rents and workers'
compensation with financially sound and reputable insurers in such amounts as
are customary in the case of firms of established reputations engaged in the
same or a similar business and similarly situated.
10.06 Operation of Properties, Inspection. Borrowers and Weeks Corporation
-----------------------------------
shall operate and maintain their material properties in good condition and
repair (normal wear and tear, casualty and obsolescence excepted), shall not
commit or suffer any waste to any of such properties or do or suffer to be done
anything which would increase the risk of casualty to any of such properties or
any part thereof or which would result in the cancellation of any insurance
policy carried with respect to any of such properties. Borrowers and Weeks
Corporation shall comply promptly with all applicable laws, rules, ordinances,
regulations, judgments, governmental determinations, restrictive covenants and
easements affecting any of such properties or any part thereof (the
"Requirements") and shall cause such properties to comply at all times and in
-------------
all respects with all Requirements, and shall at all times operate such
properties, and perform any construction of any portion thereof, in all respects
in accordance with all Requirements, except in each case where failure to do so
would not have a material adverse effect on the financial condition, operations
or properties of Weeks Corporation, the Consolidated Entities and the Non-
Consolidated Subsidiaries (all of the foregoing taken as a whole) or Operating
Partnership (standing alone). Borrowers and Weeks Corporation shall promptly
repair, restore or replace any part of such properties which may be damaged by
fire or other casualty or which may be affected by any condemnation proceeding,
except where such repair, restoration, or
58
replacement is not, in the judgment of the Key Executives of Weeks Corporation,
required for the operation of the business of Borrowers or Weeks Corporation, as
the case may be. Banks' Agent, Banks and Swing Lender and any persons
authorized by Banks' Agent, Banks and Swing Lender shall have the right at all
reasonable times and upon reasonable prior notice to inspect such properties,
any improvements existing or being constructed thereon and all materials used or
to be used in such improvements; provided, however, that nothing contained
herein shall be deemed to impose upon Banks' Agent, Bank and Swing Lender any
obligation to undertake such inspections or any liability for the failure to
detect or failure to act with respect to any defect which was or might have been
disclosed by such inspections.
10.07 Preservation of Business. Borrowers and Weeks Corporation shall take
------------------------
all appropriate action necessary to protect their businesses and assets
consistent with normal practices and conduct their respective businesses in a
sound and businesslike manner; Weeks Corporation, Construction and Realty each
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and all its material rights; and
Operating Partnership, Development and Financing each shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
partnership existence and its material rights.
10.08 Maintenance of Records. Borrowers and Weeks Corporation shall keep
----------------------
adequate records and books of accounts, in which complete entries will be made,
reflecting all their respective financial transactions.
10.09 Notice of Adverse Changes. Borrowers and Weeks Corporation shall, as
-------------------------
soon as possible, and in any event within five (5) Domestic Business Days after
they become aware of the occurrence of a material adverse change in their
businesses, properties, operations, or conditions (financial or other),
including notice of (a) any default occurring with respect to any of their
obligations owed to any other creditor where the total liability of any Borrower
or Weeks Corporation with respect thereto is in excess of $500,000, (b)
acceleration of any part or demand for payment in full of any of their
respective outstanding obligations in an amount in excess of $500,000 earlier
than the scheduled date, or (c) Borrowers' or Weeks Corporation's receiving
notice of intent by any person, firm, corporation or any other entity to whom
any Borrower or Weeks Corporation is indebted in an amount in excess of $500,000
to declare any debt due, or determine that any provision of any agreement
between such party and such Borrower or Weeks Corporation has been violated,
furnish to Banks' Agent, Banks and Swing Lender a statement setting forth
details of such material adverse change and the action that it proposes to take
with respect thereto.
59
10.10 Notice of Litigation. Borrowers and Weeks Corporation shall promptly
--------------------
notify Banks' Agent, Banks and Swing Lender in the event of any legal action
filed against Weeks Corporation, any Consolidated Entity or Non-Consolidated
Subsidiary which, if adversely determined, would have a material adverse effect
on the financial condition or operations of Weeks Corporation, the Consolidated
Entities and Non-Consolidated Subsidiaries (all of the foregoing taken as a
whole) or Operating Partnership (standing alone).
10.11 Payment of Obligations. Borrowers and Weeks Corporation shall pay or
----------------------
cause to be paid the principal of, and, if any, the interest and premium on all
indebtedness heretofore or hereafter incurred or assumed by them when and as the
same shall become due and payable, unless such indebtedness be renewed or
extended; and faithfully observe, perform and discharge all the covenants,
conditions and obligations that are imposed upon them by any and all indentures
and other agreements securing or evidencing such indebtedness or pursuant to
which such indebtedness is issued, and not permit the continuance of any act or
omission that is, or the provisions thereof may be declared to be, a default in
the payment of principal and interest, unless waived, pursuant to the provisions
thereof; provided, however, that Borrowers and Weeks Corporation shall not be
--------
required to make any payment or to take any other action pursuant to this
Section 10.11 at any time while they shall be currently contesting in good faith
by appropriate proceedings their obligations to make such a payment or to take
such action, if they shall have set aside on their books, reserves (segregated
to the extent required by sound accounting practices) deemed adequate with
respect thereto; and provided further that this Section 10.11 shall not be
----------------
applicable to (a) real property mortgage debt (held by parties other than Banks
and Swing Lender) on properties owned by entities which neither Weeks
Corporation nor any of Borrowers Control and in which all Borrowers and Weeks
Corporation, in the aggregate, own less than a 50% beneficial interest, or (b)
indebtedness outstanding in principal amounts aggregating less than $500,000.
10.12 REIT Status. Weeks Corporation shall at all times be and remain
-----------
qualified as a real estate investment trust under the Code.
10.13 Compliance With Laws. Borrowers and Weeks Corporation shall conduct and
--------------------
maintain their respective businesses in a regular manner and in compliance with
all laws, regulations and ordinances, including but not limited to any
applicable securities laws, zoning laws, ordinances and regulations affecting
Borrowers' and Weeks Corporation's operations, including but not limited to all
Environmental Laws and ecological laws, ordinances and regulations, except where
the failure to do so would not have a material adverse effect on the financial
condition, operations or properties of Weeks Corporation, the Consolidated
Entities and the Non-Consolidated Subsidiaries (all of the foregoing taken as a
whole) or Operating Partnership (standing alone).
60
10.14 Notice of Exercise of Remedies Under Mortgages. Borrowers and Weeks
----------------------------------------------
Corporation shall give prompt written notice to Banks' Agent, Banks and Swing
Lender of the giving of a notice of any event of default under any Mortgage to
which Weeks Corporation is or any Borrower is a party by the holder thereof, or
upon the holder of any such Mortgage taking any action to enforce its rights and
remedies thereunder, including, without limitation, any self-help or judicial
remedies with respect to collateral or any legal action to collect any
indebtedness.
10.15 Management. Weeks Corporation and Borrowers shall have management
----------
reasonably satisfactory to Banks' Agent and the Required Banks.
10.16 Deposit Accounts. Weeks Corporation and Borrowers shall maintain their
----------------
principal depository accounts with one or more Banks.
10.17 Intercompany Transactions. Any and all transactions, agreements or
-------------------------
undertakings of any nature whatsoever between Weeks Corporation or any
Consolidated Entity or any Non-Consolidated Subsidiary, on the one hand, and any
Affiliate of such Person, on the other hand, shall be arms-length and upon terms
and conditions at least as favorable to Weeks Corporation, such Consolidated
Entity or Non-Consolidated Subsidiary, as the case may be, as could reasonably
be obtained in a similar transaction with a party that is not an Affiliate of
such Person.
10.18 Debt Rating. Borrowers' Agent shall give written notice to Banks' Agent
-----------
promptly of the establishment of a Debt Rating or, once established, any change
in the Debt Rating.
ARTICLE XI
-----------
NEGATIVE COVENANTS
------------------
In order to induce Banks' Agent, Banks and Swing Lender to enter into this
Agreement and to make Loans as contemplated hereby, Borrowers and Weeks
Corporation covenant and agree with Banks' Agent, Banks and Swing Lender that
from and after the date hereof, and so long as any Obligations remain
outstanding or this Agreement remains in effect, without the prior written
consent of the Required Banks:
11.01 Guaranties. Neither Weeks Corporation nor any Borrower shall guarantee,
----------
endorse, become surety with respect to, become obligated under any partnership
or joint venture, or otherwise become directly or contingently liable for, or in
connection with, the obligations of any other person, firm, corporation, or any
61
other entity pursuant to any Guaranties, except for the Permitted Guaranties.
11.02 Merger, Consolidation, etc. Neither Weeks Corporation nor any Borrower
--------------------------
shall enter into any merger, reorganization or consolidation, except with Weeks
Corporation or another Borrower, or acquire in a single transaction a portfolio
of properties (whether through the payment of cash, exchange of property,
assumption of debt or the issuance or exchange of equity or debt securities)
that, upon completion thereof, (a) shall, in the case of a merger,
reorganization or consolidation, not result in Weeks Corporation or a Borrower
being the surviving entity; or (b) shall, in the case of an acquisition or
formation of an entity, not provide for such entity to become a Borrower in
accordance with Section 16.16; or (c) shall increase Total Asset Value by more
than twenty percent (20%) of Total Asset Value prior to such transaction, except
------
for any such increase resulting from Operating Partnership's acquisition of NWI
---
Warehouse Group, L.P. and ▇▇▇▇▇▇▇ & Company Real Estate, Inc., as described in
Weeks Corporation's press release dated July 31, 1996 and that certain Letter of
Intent, dated May 22, 1996, as modified and amended June 30, 1996, between
Operating Partnership and NWI Warehouse Group, L.P. (the "NWI Letter of
Intent"), and ▇▇▇▇▇▇▇ Properties, Inc., as described in Weeks Corporation's
press release dated August 12, 1996, and that certain Letter of Intent, dated
July 3, 1996 (the "▇▇▇▇▇▇▇ Letter of Intent") (the NWI Letter of Intent and the
▇▇▇▇▇▇▇ Letter of Intent, collectively the "Letters of Intent") provided that
--------
(i) such acquisitions shall be concluded on substantially the same terms and
conditions as described in the aforesaid press releases, Letters of Intent and
supplemental information provided by Borrowers to Banks' Agent prior to the date
of this Agreement, allowing for any adjustments in consideration paid by
Operating Partnership that are not material in the context of the acquisition
and consistent with its analysis and due diligence review or other change in
terms favorable to Operating Partnership, (ii) no material adverse change in the
financial condition, properties or operations of either NWI Warehouse Group or
▇▇▇▇▇▇▇ & Company Real Estate or ▇▇▇▇▇▇▇ Properties, Inc., as disclosed in the
aforesaid press releases and Letters of Intent shall have occurred, (iii) no
violation or default of any agreement or debt instrument entered into or assumed
by Operating Partnership in connection with the proposed acquisitions shall have
occurred or be created by such acquisitions, and (iv) all debt assumed by
Operating Partnership or Weeks Corporation or any Consolidated Entity or Non-
Consolidated Subsidiary in connection with such transactions shall have no
recourse to Operating Partnership, Weeks Corporation or any Consolidated Entity
or Non-Consolidated Subsidiary, except to the extent otherwise permitted under
this Agreement and except for Full Recourse Covenants; or (d) shall result in
any violation of this Agreement.
62
11.03 Disposition of Assets. Weeks Corporation and Borrowers shall not in the
---------------------
aggregate sell or dispose of, during any twelve (12) month period, Income
Property having an aggregate book value in excess of $30,000,000 (except for
sales occurring pursuant to the exercise of purchase options under lease
agreements), nor shall Weeks Corporation and Borrowers, on an aggregate basis,
sell all or substantially all of their assets or take any action that would make
it impossible for them to carry out their business as now conducted, nor shall
Weeks Corporation or Borrowers sell, transfer, or otherwise dispose of any
assets other than (a) assets sold or otherwise disposed of in the ordinary
course of business; (b) assets that are not in the judgment of the Board of
Directors of Weeks Corporation required in the operation of the business of
Borrowers and that do not comprise a significant portion of Borrowers' and Weeks
Corporation's consolidated assets; and (c) assets sold or otherwise disposed of
as permitted in this Agreement, provided that nothing in this Section 11.03
--------
shall prohibit the sale of Property to a tenant pursuant to a purchase option
granted to such tenant.
11.04 Judgments. Weeks Corporation and Borrowers shall not allow any number
---------
of judgments for the payment of money in excess of the aggregate sum of
$500,000, excluding such judgments to the extent payment thereof is covered by
insurance, to remain unsatisfied against Weeks Corporation, any Consolidated
Entity or any Non-Consolidated Subsidiary for a period of thirty (30)
consecutive days, unless execution thereof is stayed.
11.05 Indebtedness. Neither Weeks Corporation nor any Borrower shall (a)
------------
incur or assume any unsecured Indebtedness for Money Borrowed, provided that
--------
Weeks Corporation or any Borrower may, so long as such Person is not in default
of any other provision of this Agreement or of any other financing agreement
after the issuance of such Debt, (i) incur unsecured Indebtedness for Money
Borrowed from Banks or Swing Lender under the Revolving Credit Facility, (ii)
incur unsecured Indebtedness for Money Borrowed from another Borrower as
permitted by Section 2.14 or otherwise constituting Intercompany Debt, (iii)
incur or assume unsecured Indebtedness for Money Borrowed in connection with
Debt Securities, provided that no more than $10,000,000 of the aggregate
--------
principal amount of all such Debt Securities outstanding at any one time shall
mature prior to (a) if at the time such notice is given Borrowers shall have
made a request pursuant to Section 2.04 that the then current Expiration Date be
extended (and, as a result of such request, the Expiration Date is subject to
extension), the Expiration Date which would become effective on the next
succeeding Extension Date following such request, if the Expiration Date were to
be so extended pursuant to such request, or (b) in all other cases, the
Expiration Date in effect on the date such notice is given, and (iv) incur other
unsecured Indebtedness for Money Borrowed in an aggregate principal amount not
to exceed $5,000,000 having a payment seniority no greater than that of the
Loans; or
63
(b) incur or assume any secured Indebtedness for Money Borrowed, provided that
--------
Weeks Corporation or any Borrower may, so long as such Person is not in default
of any other provision of this Agreement or of any other financing agreement
after the issuance of such Debt (i) incur or assume Permitted Mortgage Debt,
(ii) incur or assume Permitted Tax-Exempt Financing, and (iii) incur or assume
secured Indebtedness for Money Borrowed in an aggregate principal amount not to
exceed $3,000,000 in connection with purchase money financing (including any
obligations of such Person, as a lessee under a lease, which at the time would
be required to be capitalized on the balance sheet of such Person in accordance
with GAAP) of personal property (including equipment, executive aircraft or
other vehicles); provided that Weeks Corporation or any Borrower may, so long as
--------
such Person is not in default of any other provision of this Agreement or any
other financing agreement after the issuance of such Debt, incur or assume or
permit to remain outstanding secured or unsecured Indebtedness for Money
Borrowed (x) in connection with the financing of an executive aircraft, provided
--------
that the principal amount of such indebtedness does not exceed the sum of (1)
the amount, if any, by which $10,000,000 exceeds the outstanding principal
amount of all debt financings which are within the meaning of clause (c) of the
definition of "Permitted Mortgage Debt" in Article I, (2) the amount, if any, by
which $5,000,000 exceeds the outstanding principal amount of unsecured
Indebtedness for Money Borrowed permitted under clause (a)(iv) of this Section
11.05, and (3) the amount, if any, by which $3,000,000 exceeds the outstanding
principal amount of secured Indebtedness for Money Borrowed permitted under
clause (b)(iii) of this Section 11.05, and (y) in connection with commercial or
standby letters of credit procured in the ordinary course of Weeks Corporation's
or such Borrower's business as a payment vehicle or a credit enhancement for
Debt which Weeks Corporation or such Borrower is otherwise authorized to incur
or assume under the provisions of this Agreement.
11.06 Dividends and Distributions. The aggregate sum of all dividends paid by
---------------------------
Weeks Corporation and all distributions made by Operating Partnership to its
limited partners (excluding any special dividends and distributions representing
the gain from the sale or disposition of Properties) shall not exceed 95% of
Funds from Operations for any fiscal year of Weeks Corporation, unless such
dividends or distributions are necessary in order to maintain the status of
Weeks Corporation as a real estate investment trust under the Code or are
necessary to allow Weeks Corporation or the Operating Partnership to make
distributions so that it will not incur federal income or excise tax.
11.07 Material Adverse Changes. Neither Weeks Corporation, the Consolidated
------------------------
Entities and Non-Consolidated Subsidiaries (all of the foregoing taken as a
whole) nor Operating Partnership (standing alone) shall suffer a material
adverse change in its or their
64
financial conditions or operations, respectively, as reasonably determined by
the Required Banks.
11.08 Environmental Matters. Neither Weeks Corporation nor any Borrower shall
---------------------
suffer an impairment of its assets which exceeds, when aggregated with all other
such impairments of Weeks Corporation's or any Borrower's assets, the sum of
$10,000,000 in book value owing to environmental contamination or other
environmental matters, including, without limitation, the violation of
Environmental Laws or permits and the storage, treatment, transportation or
disposal of Substances.
11.09 Change in Control. No Change in Control of Operating Partnership or
-----------------
Weeks Corporation shall occur, there shall be no transfer of any right, title or
interest of Weeks Corporation's general partner interest in Operating
Partnership, and no general partner shall be admitted to Operating Partnership
other than Weeks Corporation, except for such Change in Control, conversion of
general partnership interest, transfer of general partnership interest and
admission of a general partner as may result from a restructuring consisting of
Weeks Corporation's creation of two (2) wholly-owned Subsidiaries each
constituting a "qualified REIT subsidiary" (as such term is defined in Section
856(i)(2) of the Code), the conversion of a portion of its general partnership
interest in the Operating Partnership to a limited partnership interest, its
transfer to one such Subsidiary of its then remaining general partnership
interest in Operating Partnership, the admission of such Subsidiary as the sole
general partner of Operating Partnership, and the transfer of its limited
partnership interest to the other such Subsidiary, provided that (a) Weeks
--------
Corporation owns 100% of the ownership interests of each such Subsidiary, (b)
each such Subsidiary becomes a party to this Agreement as a Guarantor pursuant
to Section 16.16, and (c) each such Subsidiary enters into a valid and binding
agreement in writing with Bank's Agent, Banks and Swing Lender not to incur or
assume any unsecured or secured Indebtedness for Money Borrowed, so long as
there are any outstanding Obligations or this Agreement is in effect.
11.10 Advances, Loans and Other Restricted Investments. Neither Weeks
------------------------------------------------
Corporation nor any Borrower shall make any Restricted Investments, except (a)
as permitted by Section 2.14, (b) other investments in Consolidated Entities,
Non-Consolidated Subsidiaries and Weeks Ventures, (c) other loans, advances and
extensions of credit constituting Intercompany Debt, (d) loans, advances or
extensions of credit made under any incentive compensation plan approved by the
Board of Directors of Weeks Corporation, (e) other loans, advances or extensions
of credit to any Person, including its stockholders, partners, officers, or
other executives, and other Restricted Investments that do not exceed in the
aggregate the sum of $10,000,000 at any one time
65
outstanding, and (f) deposits required by government agencies or public
utilities.
11.11 Liens. Neither Weeks Corporation nor any Borrower shall create, incur,
-----
assume or suffer to exist any Lien of any nature upon or with respect to any of
its respective Properties, whether now owned or hereafter acquired, except for
(a) Permitted Encumbrances and (b) Mortgages securing Permitted Mortgage Debt.
ARTICLE XII
------------
FINANCIAL COVENANTS
-------------------
To induce Banks' Agent, Banks and Swing Lender to enter into this Agreement
and to make Loans as contemplated hereby, Borrowers, Weeks Corporation and
Operating Partnership covenant and agree with Banks' Agent, Banks and Swing
Lender that from and after the date hereof, and so long as any amount remains
outstanding on the Obligations or this Agreement remains in effect:
12.01 Minimum Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio
-----------------------------------
shall not be less than 2.00:1.00.
12.02 Maximum Leverage. The Leverage Ratio shall not exceed (a) on or before
----------------
June 30, 1997, 0.575:1.00, and (b) on or after July 1, 1997, 0.50:1.00.
12.03 Maximum Unsecured Debt. The Total Unsecured Debt shall not exceed 55% of
----------------------
the Unencumbered Property Value.
12.04 Maximum Secured Debt. The Total Secured Debt shall not exceed (a) on or
--------------------
before June 30, 1997, 40% of Total Asset Value, and (b) on or after July 1,
1997, 35% of Total Asset Value.
12.05 Maximum Debt Yield. At any Measurement Date, Total Annualized NOI shall
------------------
not be less than 13% of Total Interest Bearing Debt.
All accounting terms used but not defined herein shall be used as defined
under GAAP. All references to financial information and results of operations
are intended to apply to Weeks Corporation and the Consolidated Entities on a
consolidated basis.
ARTICLE XIII
------------
DEFAULT
-------
Each of the following shall constitute a Default hereunder:
13.01 Nonpayment of Obligations. Failure of Borrowers to make any payment of
-------------------------
principal or interest on the Obligations when due;
66
13.02 Other Monetary Defaults of Weeks Corporation or Borrowers. Failure of
---------------------------------------------------------
Weeks Corporation or any Borrower to make any payment when due, including
payments of principal or interest (whether by acceleration or otherwise), or
before the expiration of any applicable cure period, on any obligation of Weeks
Corporation or such Borrower (other than the Obligations or any Permitted
Mortgage Debt), the aggregate amount of which obligation (whether or not then
due) exceeds $500,000, or there shall occur any event or condition which results
in the acceleration of the maturity of such obligation (including, without
limitation, any required mandatory prepayment or "put" to Weeks Corporation or
such Borrower) or enables (with any requirement for the giving of notice or
lapse of time or both having been satisfied) the holders of such obligation or
any Person acting on their behalf to accelerate the maturity thereof (including,
without limitation, any such mandatory prepayment or "put");
13.03 Defaults of Weeks Ventures. Failure of any Weeks Venture to make any
--------------------------
payment when due, including payments of principal or interest (whether by
acceleration or otherwise), or before the expiration of any applicable cure
period, on any obligation of such Weeks Venture, the aggregate amount of which
obligation (whether or not then due) exceeds $1,000,000, or there shall occur
any event or condition which results in the acceleration of the maturity of such
obligation (including, without limitation, any required mandatory prepayment or
"put" to such Weeks Venture or to Weeks Corporation or any Borrower) or enables
(with any requirement for the giving of notice or lapse of time or both having
been satisfied) the holders of such obligation or any Person acting on their
behalf to accelerate the maturity thereof (including, without limitation, any
such mandatory prepayment or "put") or there should occur a default by any Weeks
Venture under any Mortgage securing any such obligation which default shall
continue beyond any applicable cure period;
13.04 Breach of Warranty or Representation. Any representation or warranty
------------------------------------
made by any Borrower or Weeks Corporation in the Loan Documents, or any other
statement furnished at any time hereunder or in connection with the Loan
Documents, is untrue in any material respect when made or furnished;
13.05 Breach of Covenants. Default by any Borrower or Weeks Corporation
-------------------
under, or in the observance or performance of any of the covenants contained in,
this Agreement or the other Loan Documents;
13.06 Weeks Realty Partnership Agreement Defaults. There shall occur a
-------------------------------------------
material default by Weeks Corporation in the performance of any of its
obligations under the Weeks Realty, L.P. Partnership Agreement and such default
shall continue beyond any applicable cure period;
67
13.07 Permitted Mortgage Debt Defaults. Default by Weeks Corporation or any
--------------------------------
Borrower under any Permitted Mortgage Debt or any Mortgage securing any
Permitted Mortgage Debt which default shall continue beyond any applicable cure
period and the aggregate amount of which Permitted Mortgage Debt (whether or not
then due) exceeds $2,500,000, or there shall occur any event or condition which
results in the acceleration of the maturity of such Permitted Mortgage Debt
(including, without limitation, any required mandatory prepayment or "put" to
Weeks Corporation or such Borrower) or enables (with any requirement for the
giving of notice or lapse of time or both having been satisfied) the holders of
such Permitted Mortgage Debt or any Person acting on their behalf to accelerate
the maturity thereof (including, without limitation, any such mandatory
prepayment or "put");
13.08 Voluntary Insolvency Proceedings. The filing by Weeks Corporation, any
--------------------------------
Borrower or any Weeks Venture of a petition under any chapter of the Federal
Bankruptcy Code, as amended, or of any proceeding seeking any relief under any
other insolvency or debtor relief act or law, state or federal, now or hereafter
existing;
13.09 Involuntary Insolvency Proceedings. The filing against Weeks
----------------------------------
Corporation, any Borrower or any Weeks Venture of a petition under any chapter
of the Federal Bankruptcy Code, as amended, or of any proceeding seeking any
relief under any other insolvency or debtor relief act or law, state or federal,
now or hereafter existing;
13.10 Voluntary Receivership. The application by Weeks Corporation, any
----------------------
Borrower or any Weeks Venture for or the consent or acquiescence of such Person
in the appointment of a receiver or trustee for all or a substantial part of any
of their respective properties;
13.11 Involuntary Receivership. The involuntary appointment of a receiver or
------------------------
trustee for all or a substantial part of any property or assets of Weeks
Corporation, any Borrower or any Weeks Venture, or the issuance of a warrant,
attachment, execution or similar process against a substantial part of the
property of any such Person;
13.12 Assignment for the Benefit of Creditors. The making by Weeks
---------------------------------------
Corporation, any Borrower, any Consolidated Entity, any Non-Consolidated
Subsidiary or any Weeks Venture of a general assignment for the benefit of
creditors;
13.13 Insolvency. The inability of Weeks Corporation, any Consolidated Entity
----------
or Non-Consolidated Subsidiary or any Weeks Venture, or the admission of any
such Person in writing of its inability to pay such Person's debts generally as
they mature;
68
13.14 Termination of Agency. Termination, revocation or cancellation, for any
---------------------
reason, of the power of attorney and agency granted by Borrowers to Operating
Partnership pursuant to the provisions of Article IV hereof; or
13.15 Interest Rate Agreements. Default by Weeks Corporation or any Borrower
------------------------
under any interest rate agreement or similar agreement between any such Person
and Banks' Agent, Banks or Swing Lender relating to this Agreement shall occur
and such default shall continue beyond any applicable cure period.
13.16 Weeks Guaranties. The termination or revocation of any Weeks Guaranty,
----------------
the denial or disaffirmation by any Guarantor of its obligations under a Weeks
Guaranty or any provision of a Weeks Guaranty, or if any Weeks Guaranty shall
otherwise cease to be in full force or effect.
ARTICLE XIV
------------
RIGHTS AND REMEDIES
-------------------
14.01 Prior to Default. Before or after the occurrence of a Default: Banks'
----------------
Agent, Banks and Swing Lender may examine, audit or inspect any Borrower's or
Weeks Corporation's books and records at any reasonable time or times and may
enter upon their respective premises for such purposes. Borrowers and Weeks
Corporation shall assist Banks' Agent, Banks and Swing Lender in whatever way
reasonably necessary to make each such examination, audit and inspection.
14.02 Upon Default. Upon the occurrence of any Default and the expiration of
------------
any applicable cure period: Banks' Agent shall, at the request of the Required
Banks (a) terminate this Agreement and declare the Obligations, notwithstanding
any provisions thereof, without demand or notice of any kind, immediately due
and payable, whereupon the Obligations shall become immediately due and payable
and may be collected forthwith; (b) perform any agreement of Borrower or Weeks
Corporation hereunder or under any of the Loan Documents which such party shall
fail to perform, and Borrowers and Weeks Corporation agree to reimburse
forthwith Banks' Agent, Banks and Swing Lender for all expenses of Banks' Agent,
Banks and Swing Lender in connection with the foregoing, together with interest
thereon at the Floating Rate from the date incurred until reimbursed; and (c)
exercise from time to time any other rights and remedies available to it, the
Banks and Swing Lender under the Loan Documents and applicable law.
14.03 Cure of Defaults. Anything herein contained to the contrary
----------------
notwithstanding, the provisions of this Section 14.03 shall not apply to any
Default consisting of a failure to comply with any Sections of Articles XI or
XII, to any Default consisting of a failure to repay the Syndicated Master Notes
or the Swing Loan
69
Note on the maturity date thereof, to any Default consisting of a failure to
make any payment of principal on the Obligations when due, or to any Default
that is specifically excluded from any provision for cure of defaults pursuant
to the terms of any other of the Loan Documents. In the event of the occurrence
of a Default which consists of failure to make a payment of interest on the
Obligations when due, neither Banks' Agent nor any Bank nor Swing Lender will,
on account of said Default, accelerate the maturity of any Obligations, exercise
any other rights or remedies under the Loan Documents, or institute any court
action under this Agreement or any of the Loan Documents if, within three (3)
Domestic Business Days after the date of occurrence of said Default, Borrowers
make such payment to Banks' Agent. In the event of the occurrence of a Default
of a type set forth in Section 13.05 pertaining to covenants set forth in this
Agreement or in the other Loan Documents, other than those covenants set forth
in Articles XI and XII hereof, neither Banks' Agent nor any Bank nor Swing
Lender will, on account of said Default, accelerate the maturity of any
Obligations, exercise any other rights or remedies under the Loan Documents, or
institute any court action under this Agreement or any of the Loan Documents if
(a) within thirty (30) days after the earlier to occur of (i) the date written
notice thereof has been given to Borrowers' Agent by Banks' Agent, or (ii) the
date a Key Executive otherwise has actual knowledge of any such Default, or (b)
in the case of any covenants set forth in the other Loan Documents, within any
applicable grace period provided for therein, Borrowers fully cure said Default.
Except as specifically set forth in this Section 14.03, no default notice or
cure period shall be applicable with respect to the breach by Borrowers,
Operating Partnership, Borrowers' Agent or Weeks Corporation of any of their
respective obligations under this Agreement or under any of the Loan Documents.
This Section 14.03 shall not be applicable during the pendency of any bankruptcy
proceedings affecting any Borrower or Guarantor.
14.04 Costs of Collection. Borrowers agree to pay all costs of Banks' Agent
-------------------
and Banks of collection of the Obligations and enforcement or rights hereunder,
and, if collected by or through an attorney, reasonable attorneys' fees and also
other legal and court expenses.
14.05 Setoff. Borrowers and Weeks Corporation hereby agree that Banks' Agent
------
and any Bank may, upon the occurrence of a Default and during the continuance
thereof, without notice, apply any balances, credits, deposits, accounts, monies
or other indebtedness now or hereafter owing by any Bank or Swing Lender to any
Borrower or Weeks Corporation in satisfaction of any Obligation then due and
payable; provided, however, that nothing herein contained shall authorize or
-------- -------
entitle Banks' Agent or any Bank or Swing Lender to exercise any right of setoff
against any accounts, monies, government securities, or other properties held by
such Person under any escrow, trust, special purpose account, or similar
arrangement established with such Person by Weeks Corporation or
70
any Borrower or Guarantor for the purpose of (a) implementing a defeasance or
"in substance" defeasance of Debt of Weeks Corporation or any Borrower or
Guarantor, or (b) maintaining security deposits of tenants of any of the
Properties.
14.06 Sharing of Collections. Each Bank and Swing Lender agrees that if it
----------------------
shall, by exercising any right of setoff or counterclaim or resort to collateral
security or otherwise, receive payment of a proportion of the aggregate amount
of principal and interest owing with respect to the Note held by it which is
greater than the proportion received by any other Bank and/or by Swing Lender,
as the case may be, in respect of the aggregate amount of all principal and
interest owing with respect to the Note held by such other Bank and/or Swing
Lender, the Bank or Swing Lender receiving such proportionately greater payment
shall purchase such participations in the Notes held by the other Banks or by
Swing Lender, if applicable, owing to such other Banks and/or Swing Lender, and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
and/or Swing Lender owing to such other Banks and/or Swing Lender shall be
shared by the Banks and/or Swing Lender pro rata; provided that if all or any
--------
portion of such payment received by the purchasing Bank or Swing Lender, as the
case may be, is thereafter recovered from such purchasing Bank or Swing Lender,
as the case may be, such purchase from each other Bank and/or Swing Lender shall
be rescinded and such other Bank and/or Swing Lender shall repay to the
purchasing Bank or Swing Lender, as the case may be, the purchase price of such
participation to the extent of such recovery, together with an amount equal to
such other Bank's or Swing Lender's ratable share (according to the proportion
of (a) the amount of such other Bank's or Swing Lender's required repayment to
(b) the total amount so recovered from the purchasing Bank or Swing Lender) of
any interest or other amount paid or payable by the purchasing Bank or Swing
Lender in respect of the total amount so recovered. Borrowers agree, to the
fullest extent they may effectively do so under Applicable Law, that any holder
of a participation in a Note, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of setoff or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of Borrowers in the amount of such participation.
ARTICLE XV
----------
FEES AND EXPENSES; INDEMNIFICATION
----------------------------------
15.01 Fees and Expenses. Borrowers and Weeks Corporation shall provide, at
-----------------
their expense, to Banks' Agent all documents, instruments, assurances, and
certificates as Banks' Agent may reasonably deem necessary to consummate the
transactions contemplated hereby. Borrowers and Weeks Corporation shall be
71
obligated, jointly and severally, to Banks' Agent to pay all reasonable fees,
expenses and costs incurred by Banks' Agent in connection with the preparation,
negotiation, and entering into of this Agreement and the other Loan Documents
and the administration of the Loans, including any amendments or modifications
thereto, whether incurred before, on or after the date of this Agreement,
including, but not limited to, reasonable attorneys' fees and expenses. All the
foregoing costs and expenses may, at the discretion of Banks' Agent and upon
notice to Borrower's Agent, be charged to the Syndicated Master Notes as
advances thereunder. In the event Banks' Agent pays any of the costs or
expenses under this Section 15.01, Borrowers and Weeks Corporation shall
reimburse Banks' Agent promptly upon demand, and all such sums shall bear
interest at the Default Rate set forth in the Syndicated Master Notes.
15.02 Agent's Administration Fee. In addition to the fees and expenses
--------------------------
payable by Borrower pursuant to Section 15.01 and any other provision of this
Agreement or the other Loan Documents, Borrowers agree to pay to Banks' Agent,
for its sole account, in consideration of its structuring the transactions
evidenced by this Agreement and its performance of services hereunder, those
fees provided for and calculated as set forth in the Mandate Letter, including
an annual Banks' Agent's Administration Fee. The Bank's Agent's Administration
Fee shall be due and payable in advance, for each year (or part thereof) during
which any of the Obligations are outstanding, on the date of this Agreement and
on each anniversary date thereof, and shall be fully earned and nonrefundable
when paid.
15.03 Amendment, Waiver and Prepayment Fees. In addition to the fees and
-------------------------------------
expenses payable by Borrower pursuant to Section 15.01 and any other provision
of this Agreement or the other Loan Documents, Borrower agrees to pay to Banks'
Agent, for its sole account, as compensation for administrative and other
services in connection therewith, (a) a fee in the minimum amount of $5,000 (or
such greater reasonable amount as may be charged by Banks' Agent) upon each
request by Weeks Corporation, Borrowers' Agent or any Borrower for any amendment
to, or waiver of, any term or condition set forth in this Agreement or any of
the other Loan Documents, except for such a request, if any, which Banks' Agent
shall determine in good faith shall impose no more than an insignificant
administrative, financial or other burden on Banks' Agent, and (b) a fee in such
reasonable amount as may be charged by Banks' Agent (not to exceed $3,000) upon
any prepayment of a LIBOR Rate Loan made pursuant to the provisions of Section
2.15 which fees shall be due and payable upon the making of any such prepayment
and shall be fully earned and nonrefundable when paid.
15.04 Indemnification. At all times prior to and after the consummation of
---------------
the transactions contemplated by this Agreement, Borrowers and Weeks
Corporation, jointly and severally, agree to
72
hold harmless Banks, Swing Lender, Banks' Agent, their respective directors,
officers, employees, agents, affiliates, successors and assigns from and
indemnify Banks, Swing Lender, Banks' Agent, their respective directors,
officers, employees, agents, affiliates, successors and assigns, against all
demands, loss, damages, judgments, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) actually incurred by any of
the foregoing, whether direct or indirect, as a result of or arising from or
relating to any claim for relief or cause of action made, brought, asserted or
threatened by any entity, asserting a claim for any legal or equitable remedy
against any person under any statute, or regulation or as a matter of law,
including, without limitation, any federal or state securities laws or under any
common law or equitable case or otherwise, arising from or in connection with
this Agreement, the other Loan Documents, any of the transactions contemplated
by this Agreement, or use of any proceeds of the Loans, except to the extent
such losses, damages, costs or expenses are due to the wilful misconduct or
gross negligence of, or breach of this Agreement by Banks' Agent, Banks, Swing
Lender or any such indemnitee. At the request of Banks' Agent, Banks and Swing
Lender, Borrowers and Weeks Corporation, jointly and severally, will indemnify
any assignee to whom Banks or Swing Lender transfers or sells all or any portion
of its interest in the Loans or participations therein on terms substantially
similar to the terms set forth above. Banks' Agent, Banks and Swing Lender
shall not be responsible or liable to any entity for consequential damages which
may be alleged as a result of this Agreement or any of the transactions
contemplated hereby.
ARTICLE XVI
-----------
MISCELLANEOUS
-------------
16.01 Cumulative Rights; Non-waiver. No delay or omission by Banks' Agent,
-----------------------------
Banks or Swing Lender to exercise any right, power or remedy accruing upon any
Default shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such Default, or acquiescence therein, and every
right, power and remedy given by this Agreement to Banks' Agent, Banks or Swing
Lender may be exercised from time to time and as often as may be deemed
expedient by Banks' Agent, Banks or Swing Lender. No consent or waiver,
expressed or implied, by Banks' Agent, Banks or Swing Lender to or of any
Default shall be deemed or construed to be a consent or waiver to or of any
other Default. No delay, indulgence, departure, act or omission by Banks'
Agent, Banks or Swing Lender or any holder of any of the Notes shall release,
discharge, modify, change or otherwise affect the original liability under the
Notes or any other obligation of Borrowers, or any maker, surety or Guarantor,
or preclude Banks' Agent, Banks or Swing Lender from exercising any right,
privilege or power granted herein or alter the security title, security interest
or lien hereof. Banks' Agent, Banks or Swing Lender may at any time,
73
without notice to or further consent from Borrowers, surrender or substitute any
property or other security of any kind or nature whatsoever securing the
Obligations or release any Guarantor, and no such action will release Borrowers'
obligations hereunder or alter the effect hereof. No right, power or remedy
conferred upon or reserved to Banks' Agent, Banks or Swing Lender hereunder is
intended to be exclusive of any other right, power or remedy, but each and every
such right, power and remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy given hereunder or under the other
Loan Documents or now or hereafter existing at law, in equity or by statute.
16.02 No Obligation to Third Parties. The Loan Documents are made solely for
------------------------------
the benefit of Weeks Corporation, Borrowers' Agent, Borrowers, Banks' Agent,
each Bank and Swing Lender, their respective successors and assigns. No other
party whatsoever shall have standing to bring any action as the result of the
Loan Documents, or to assume that Banks' Agent, any Bank or Swing Lender will
exercise any remedies provided herein, and no party other than Banks' Agent,
each Bank and Swing Lender, their respective successors and assigns, shall be
deemed to be a beneficiary of any right or remedy provided by the Loan Documents
in favor of such parties, any and all of which may be freely waived in whole or
in part by Banks' Agent, Banks or Swing Lender, in accordance with the terms and
conditions of this Agreement. Nothing contained in this Section 16.02 is
intended to deprive Borrowers of the benefit of any covenant by Banks' Agent,
each Bank and Swing Lender in favor of Borrowers contained in the Loan
Documents.
16.03 Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns;
provided that Borrowers may not assign or otherwise transfer any of their rights
--------
under this Agreement.
(b) Any Bank or Swing Lender may at any time sell to one or more persons
(each a "Participant") participation interests in any Loan owing to such Bank or
-----------
Swing Lender, as the case may be, any Note held by such Bank or Swing Lender,
any Commitment hereunder or any other interest of such Bank or Swing Lender
hereunder. In the event of any such sale by a Bank or Swing Lender of a
participation interest to a Participant, such Bank's or Swing Lender's
obligations under this Agreement shall remain unchanged, such Bank or Swing
Lender shall remain solely responsible for the performance thereof, such Bank or
Swing Lender shall remain the holder of any such Note for all purposes under
this Agreement, and Borrowers and Banks' Agent shall continue to deal solely and
directly with such Bank or Swing Lender in connection with such Bank's or Swing
Lender's rights and obligations under this Agreement. In no event shall a Bank
or Swing Lender that sells a
74
participation be obligated to the Participant to take or refrain from taking any
action hereunder, except that such Bank or Swing Lender may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related Loan or Loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related Loan or Loans, (iii) the change of the principal of the related Loan
or Loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or fee (as the case may be) in respect of such participation, (v) the release or
substitution of all or any substantial part of the collateral (if any) held as
security for the Loans, or (vi) the release of any Guaranty given to support
payment of the Loans. Each Bank or Swing Lender selling a participation
interest in any Loan, Note, Commitment or other interest under this Agreement
shall, within ten (10) Domestic Business Days of such sale, provide Borrowers'
Agent and Banks' Agent with written notification stating that such sale has
occurred and identifying the Participant and the interest purchased by such
Participant.
(c) Any Bank or Swing Lender may at any time assign to one or more banks
or financial institutions (each an "Assignee") all or a proportionate part of
--------
its rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance, executed by such Assignee, such
transferor Bank and Banks' Agent, provided that (i) no interest may be sold by a
--------
Bank pursuant to this paragraph (c) unless the Assignee shall agree to assume
ratably equivalent portions of the transferor Bank's Commitment, (ii) no
interest may be sold by a Bank pursuant to this paragraph (c) without the
written consent of Banks' Agent, which consent shall not be unreasonably
withheld, (iii) if a Bank is assigning only a portion of its Commitment, then
the amount of the Commitment being assigned (determined as of the effective date
of the assignment) shall be in an amount not less than $5,000,000, (iv) except
during the continuance of a Default, no interest may be sold by a Bank pursuant
to this paragraph (c) to any Assignee that is not then a Bank or an Affiliate of
a Bank without the written consent of Borrowers' Agent, which consent shall not
be unreasonably withheld, and (v) a Bank may not, at any one time, have more
than two (2) Assignees that are not Banks immediately prior to such assignment.
Upon (A) execution of the Assignment and Acceptance by such transferor Bank,
such Assignee, Banks' Agent and Borrowers' Agent, (B) delivery of an executed
copy of the Assignment and Acceptance to Borrowers' Agent and Banks' Agent, (C)
payment by such Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor
75
Bank and such Assignee, and (D) payment by the transferor Bank of a processing
and recordation fee of $2,500 to Banks' Agent, for its sole account, such
Assignee shall for all purposes be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank under this Agreement to the same extent
as if it were an original party hereto with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by Borrower, Banks or Banks' Agent shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this paragraph (c), the
transferor Bank, the Banks' Agent and Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to each of such Assignee
and such transferor Bank.
(d) Borrowers authorize Banks' Agent, each Bank and Swing Lender to
disclose to any Participant or Assignee(each a "Transferee") and any prospective
----------
Transferee any and all financial information in such Banks' Agent's, Bank's or
Swing Lender's possession concerning Borrowers which has been delivered to such
Banks' Agent, Bank or Swing Lender by Borrowers, Borrowers' Agent or Banks'
Agent pursuant to this Agreement or which has been delivered to such Banks'
Agent, Bank or Swing Lender by Borrowers or Borrowers' Agent in connection with
such Banks' Agent's, Bank's or Swing Lender's credit evaluation prior to
entering into this Agreement, provided that such Transferee or prospective
--------
Transferee agrees to take reasonable actions to preserve the confidentiality of
any such confidential financial information disclosed.
(e) Anything in this Section 16.03 to the contrary notwithstanding, any
Bank or Swing Lender may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such assigned
--------
Loans and/or obligations made by the Borrowers to the assigning and/or pledging
Bank or Swing Lender in accordance with the terms of this Agreement shall
satisfy Borrowers' obligations hereunder in respect of such assigned Loans
and/or obligations to the extent of such payment. No such assignment shall
release the assigning and/or pledging Bank or Swing Lender from its obligations
hereunder.
16.04 Governing Law. This Agreement is entered into in the State of Georgia,
-------------
and the rights and obligations of the parties hereunder shall be governed by,
construed and interpreted in accordance with, the laws of the State of Georgia.
16.05 Survival of Obligations. All representations, warranties and covenants
-----------------------
contained herein shall survive the
76
Closings and the execution and delivery of the Notes or any other documents
contemplated hereby.
16.06 Entire Agreement. This Agreement (together with the provisions of the
----------------
Mandate Letter relating to fees payable to Banks' Agent) constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof.
16.07 Invalidity. Any provision of this Agreement that is prohibited or
----------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
16.08 Headings. Article and Section headings used in this Agreement are for
--------
convenience of reference only and are not part of this Agreement for any other
purpose.
16.09 Changes in Forms. Banks Agent reserves the right to make reasonable
----------------
changes in the forms of all certificates and other documents to be executed and
delivered to Bank, Banks' Agent or Swing Lender by Borrowers' Agent, Borrowers
or Weeks Corporation hereunder.
16.10 Notices. Any notice, payment, demand or communication required or
-------
permitted to be given by the provisions of this Agreement shall be deemed to
have been sufficiently given or served for all purposes if delivered personally
to a party or to an officer of the party to whom the same is directed, or if
sent by facsimile transmission or by United States Mail, first class postage and
charges prepaid, addressed or transmitted to such party at the following address
or facsimile number, or to such other address or facsimile number as shall be
furnished in writing by any party to the other, pursuant to the provisions
hereof:
If to Borrowers, to: WEEKS REALTY, L.P.
as Borrowers' Agent
c/o Weeks Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
77
and with a copy to: Weeks Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Corporate Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Weeks Corporation,
to: WEEKS CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Bank, to: The address or facsimile number set forth
opposite its name on the signature pages hereof
If to Banks' Agent,
to: Wachovia Bank of Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Wachovia Corporate Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Corporate Finance Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Suite 3100, Promenade II
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice shall be deemed given as of the date so delivered personally or
sent by facsimile transmission (with confirmation of completed transmission), or
five (5) days after the date on which same was deposited, first class postage
prepaid, in a regularly maintained receptacle for the deposit of United States
Mail, addressed as aforesaid.
78
16.11 Amendments and Waivers. (a) Any provision of this Agreement, the Notes
----------------------
or any other Loan Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed ("signed," as used in this
Section 16.11, shall include, without limitation, signatures received by
facsimile transmission followed by a signed original) by Borrower and the
Required Banks (and, if the rights or duties of Banks' Agent are affected
thereby, by Banks' Agent); provided that no such amendment or waiver shall,
--------
unless signed by all Banks and Swing Lender, (i) change the Commitment of any
Bank or Swing Lender or subject any Bank or Swing Lender to any additional
obligation (except as provided in Section 2.04), (ii) change the principal of or
rate of interest on any Loans or any fees (other than fees payable solely to
Banks' Agent) hereunder, (iii) change the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder, (iv) change the
amount of principal, interest or fees due on any date fixed for the payment
thereof, (v) change the percentage of the Commitments (except as provided in
Section 2.04) or of the aggregate unpaid principal amount of the Notes, or the
percentage of any Bank or Swing Lender which shall be required for Banks or
Swing Lender or any of them to take any action under this Section 16.11 or any
other provision of this Agreement, (vi) change the manner of application of any
payments made under this Agreement or the Notes, (vii) release any Guarantee
given to support payment of the Loans, (viii) change the definition of Required
Banks, or (ix) change this Section 16.11.
(b) Neither Weeks Corporation nor any Borrower will obtain from any Bank
its written agreement to waive or amend any of the provisions of this Agreement
except through Banks' Agent, and Banks' Agent shall be supplied by Weeks
Corporation or such Borrower with sufficient information to enable Banks to make
an informed decision with respect thereto. Executed or true and correct copies
of any waiver or consent effected pursuant to the provisions of this Agreement
shall be delivered by Borrowers to Banks' Agent forthwith following the date of
which the same shall have been executed and delivered by the requisite
percentage of Banks and Swing Lender. Borrower will not, directly or
indirectly, pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, to any Bank (in its
capacity as such) as consideration for or as an inducement to the entering into
by such Bank of any waiver or amendment of any of the terms and provisions of
this Agreement, unless such remuneration is concurrently paid, on the same
terms, ratably to all Banks, provided that the provisions of this Section
--------
16.11(b) shall not impair or in any way affect Borrowers' obligations to pay,
and Banks' Agent's entitlement to collect, the fees provided for in Section
15.03 upon any request by Borrowers for a waiver or amendment.
16.12 Time of the Essence. Time is of the essence of this Agreement.
-------------------
79
16.13 Execution in Counterparts. This Agreement and any amendment hereof or
-------------------------
waiver of any provision hereof may be executed in multiple counterparts, each of
which shall be treated as an original, but all of which shall constitute one and
the same agreement, amendment or waiver, as the case may be.
16.14 Joint and Several Liability. Except as otherwise specifically set forth
---------------------------
in this Agreement, Borrowers shall be jointly and severally liable for all
obligations contained in this Agreement and the other Loan Documents.
16.15 Attorneys' Fees. All references to attorneys' fees or reasonable
---------------
attorneys' fees in this Agreement or in any of the Loan Documents shall mean
actual attorneys' fees incurred by Bank, Banks' Agent or Swing Lender without
reference to any statutory presumption as to the amount thereof.
16.16 Additional Parties. Any Consolidated Entity or Non-Consolidated
------------------
Subsidiary may at any time become a party to this Agreement as a Borrower or a
Guarantor (each such Consolidated Entity or Non-Consolidated Subsidiary an
"Additional Obligor") by assuming the rights and obligations of a Borrower or a
-------------------
Guarantor, respectively, under this Agreement, the Notes, and the other Loan
Documents, pursuant to an Acceptance and Assumption, executed by such Additional
Obligor, Borrowers' Agent and Banks' Agent. Upon (a) execution of the
Acceptance and Assumption by such Additional Obligor, Borrowers' Agent and
Banks' Agent, (b) execution of each Note as a maker, in the case of an
Additional Obligor which is becoming a Borrower, or execution and delivery to
Banks' Agent of a Guaranty, in the form of a Weeks Guaranty, in the case of an
Additional Obligor which is becoming a Guarantor, (c) delivery of an executed
counterpart of the Acceptance and Assumption to Borrowers' Agent and Banks'
Agent, and (d) except in connection with the addition of two (2) Subsidiaries of
Weeks Corporation as parties to this Agreement pursuant to the transactions
contemplated in Section 11.09, payment by Borrowers of a processing and
recordation fee of $5,000 to Banks' Agent, for its sole account, such Additional
Obligor shall for all purposes be a party to this Agreement as a Borrower or a
Guarantor, as the case may be, and shall, if a Guarantor, have the same
obligations as Weeks Corporation under this Agreement to the same extent as if
it were an original party hereto, and, in the case of a Borrower, shall have all
of the rights and obligations of a Borrower under this Agreement to the same
extent as if it were an original party hereto. Upon the addition of any
Additional Obligor as a party to this Agreement as a Borrower pursuant to this
Section 16.16, Banks' Agent, Borrowers' Agent, Banks and Swing Lender shall make
appropriate arrangements so that such Additional Obligor executes each Note as a
maker.
80
16.17 Confidentiality. Each of Banks, Swing Lender, and Banks' Agent agrees
---------------
to exercise commercially reasonable efforts to keep any information delivered or
made available to it by Weeks Corporation or any Borrower confidential from
anyone other than persons employed or retained by it who are or expected to
become engaged in evaluating, approving, structuring or administering the Loans;
provided that nothing herein shall prevent any Bank, Swing Lender or Banks'
--------
Agent from disclosing such information (a) to any other Bank, (b) upon the order
of any court or administrative agency, (c) upon the request or demand of any
regulatory agency or authority having jurisdiction over it, (d) which has been
publicly disclosed without breach of these or any other applicable
confidentiality provisions, (e) to the extent reasonably required in connection
with any litigation to which any Bank, Swing Lender, or Banks may be a party,
(f) to the extent reasonably required in connection with the exercise of any
remedy hereunder, (g) to its legal counsel and independent auditors (each of
whom it agrees to advise as to the confidential nature of such information) and
(h) to any actual or proposed Transferee of all or a part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section 16.16; provided that should disclosure of any such confidential
--------
information be required by virtue of the preceding clause (b) or clause (e), the
relevant Bank, Swing Lender, or Banks' Agent shall promptly notify Borrowers'
Agent of same; provided, further, that no Bank, Swing Lender or Banks' Agent
-------- -------
shall be required to delay compliance with any directive to disclose any such
information so as to allow Weeks Corporation or any Borrower to effect any
action seeking to prevent such disclosure.
16.18 Representations by Banks and Swing Lender. Each of Banks and Swing
-----------------------------------------
Lender hereby represents that (a) it is a commercial lender or financial
institution which makes commercial loans in the ordinary course of its business
and that it will make its Syndicated Loans or Swing Loans, as the case may be,
for its own account in the ordinary course of such business; provided that,
--------
subject to Section 16.03, the disposition of the Note or Notes held by it shall
at all times be within its exclusive control, and (b) no part of the funds to be
used by it to fund the Syndicated Loans or Swing Loans, as the case may be,
constitutes or will constitute (i) assets allocated to any separate account
maintained by it in which any employee benefit plan (or its related trust) has
any interest nor (ii) any other assets of any employee benefit plan. As used in
this Section, the terms "employee benefit plan" and "separate account" shall
have the respective meanings assigned to such terms in Section 3 of ERISA.
16.19 Miscellaneous. The Loan Documents shall inure to the benefit of and be
-------------
binding upon Borrowers, Weeks Corporation and Banks, Banks' Agent and Swing
Lender and their respective heirs, executors, legal representatives, successors,
successors-in-title and assigns, subject to all restrictions on transfer herein
or in the other Loan Documents. Neither the Loan Documents nor the
81
proceeds of the Loans contemplated by the Loan Documents may be assigned by
Borrowers without the prior consent of Banks and Swing Lender, which may be
given or withheld at the discretion of Banks or Swing Lender. The Loan
Documents may be discharged or terminated only by an instrument in writing
signed by the party against whom enforcement of such discharge or termination is
sought. Nothing contained in the Loan Documents shall be construed to create an
agency, partnership or joint venture between Borrowers and Banks and Swing
Lender. All personal pronouns used in the Loan Documents whether used in the
masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and vice versa. If more than one person or
entity constitutes, collectively, Borrowers or Guarantor, all of the provisions
of the Loan Documents referring to Borrowers or Guarantor shall be construed to
refer to each such person or entity individually as well as collectively; and,
if a Borrower or Guarantor is a partnership, all of the provisions of the Loan
Documents referring to Borrowers or Guarantor shall be construed to apply to
each of the general partners of each Borrower or Guarantor and of any and all
further tiers of general partners in the structures of each Borrower or
Guarantor. When anything is described or referred to in the Loan Documents in
general terms and one or more examples or components of what has been described
or referred to generally is associated with that description (whether or not
following the word "including"), the examples or components shall be deemed
illustrative only and shall not be construed as limiting the generality of the
description or reference in any way. Wherever in the Loan Documents it is
indicated that the approval, consent or determination of Banks or Swing Lender
is to be given or made at the option or in the discretion or judgment of Banks,
then such Banks or Swing Lenders, or any of them, may grant or withhold such
approval or consent or make such determination without restriction in its sole
and absolute discretion. The obligations of Borrowers under this Agreement and
the Notes shall be subject to the limitation that payments of interest shall not
be required to the extent that receipt thereof would be contrary to provisions
of law applicable to Banks and Swing Lender limiting rates of interest which may
be charged or collected by Banks or Swing Lender. In the event that any such
payment in excess of the maximum rate of interest allowed by applicable law is
inadvertently paid by any Borrower or inadvertently received by the Banks or
Swing Lender, the amount in excess of the maximum rate of interest allowed by
applicable law shall be credited as a payment of principal, unless the Borrower
whose payment constitutes the amount in excess of the maximum rate of interest
allowed (such Borrower to be determined by Banks and Swing Lender at Banks' and
Swing Lender's sole discretion, based upon any reasonable method of accounting)
shall notify the Banks and Swing Lender in writing that the Borrower elects to
have such excess sum returned to it forthwith. All exhibits referred to in the
Loan Documents are by such reference incorporated into the Loan Documents as if
fully set forth therein.
82
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered in their names and on their behalf, and their seals to be affixed and
attested, all as of the day and year first above written.
BORROWERS:
---------
WEEKS REALTY, L.P.
ATTEST: BY: WEEKS CORPORATION, its sole
General Partner
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary --------------------------
Its: Senior Vice President and
---------------------------
Chief Financial Officer
---------------------------
[CORPORATE SEAL]
ATTEST: WEEKS CONSTRUCTION SERVICES, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary -------------------------------
Its: Treasurer
---------------------------
[CORPORATE SEAL]
ATTEST: WEEKS REALTY SERVICES, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary --------------------------------
Its: Treasurer
[CORPORATE SEAL] ----------------------------
ATTEST: WEEKS DEVELOPMENT PARTNERSHIP
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- By: WEEKS REALTY SERVICES, INC.,
Secretary as its Managing Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Its: Treasurer
------------------------
[CORPORATE SEAL]
WEEKS FINANCING LIMITED PARTNERSHIP
BY: WEEKS CORPORATION, its
sole General Partner
ATTEST: BY: WEEKS CORPORATION, its sole
General Partner
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary -----------------------------
Its: Senior Vice President and
--------------------------
Chief Financial Officer
--------------------------
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
83
GUARANTORS:
----------
ATTEST: WEEKS CORPORATION
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary --------------------------------
Its: Senior Vice President and
---------------------------
Chief Financial Officer
---------------------------
[CORPORATE SEAL]
ATTEST: WEEKS REALTY, L.P.
BY: WEEKS CORPORATION, its sole
General Partner
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary ----------------------------
Its: Senior Vice President and
---------------------------
Chief Financial Officer
---------------------------
[CORPORATE SEAL]
BORROWERS' AGENT:
----------------
ATTEST: WEEKS REALTY, L.P.
BY: WEEKS CORPORATION, its sole
General Partner
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary ------------------------------
Its: Senior Vice President and
--------------------------
Chief Financial Officer
--------------------------
[CORPORATE SEAL]
BANKS' AGENT:
------------
WACHOVIA BANK OF GEORIGA, N.A.,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Its: Vice President
----------------------------
[BANK SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
84
BANKS:
-----
Commitment Share: WACHOVIA BANK OF GEORGIA, N.A.
54.28571%
Address: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. --------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Its: Vice President
----------------------------
Date: 9/25/96
[BANK SEAL]
Commitment Share: FIRST UNION NATIONAL BANK OF GEORGIA
28.57143%
Address: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. --------------------------------
Suite 610 Its: Senior Vice President
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ----------------------------
Date:
[BANK SEAL]
Commitment Share: COMMERZBANK A.G. -
10.00000% ATLANTA AGENCY
Address: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. --------------------------------
Suite 3500 Its: Vice President
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ----------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Its: Assistant Vice President
----------------------------
Date: ▇[▇▇]▇▇
[▇▇▇▇ SEAL]
Commitment Share: MELLON BANK, N.A.
7.14286%
Address: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
1735 Market Street, 4th Floor --------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Its: Vice President
----------------------------
Date: 9-25-96
[BANK SEAL]
85