EXHIBIT 10.7
------------
$200,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
July 27, 1998
among
AMLI RESIDENTIAL PROPERTIES, L.P.
The Banks Listed Herein,
WACHOVIA BANK, N.A.,
as Agent
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
and
DRESDNER BANK AG, NEW
YORK AND GRAND CAYMAN BRANCHES,
as Co-Agent
TABLE OF CONTENTS
CREDIT AGREEMENT
----------------
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . 1
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. . . . . . . . . . 16
SECTION 1.03. REFERENCES . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.04. USE OF DEFINED TERMS . . . . . . . . . . . . . . . . . 16
SECTION 1.05. TERMINOLOGY. . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE II
THE CREDITS. . . . . . . . . . . . . . . 16
SECTION 2.01. COMMITMENTS TO LEND SYNDICATED LOANS . . . . . . . . . 16
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS . . . . . . . . . 18
SECTION 2.03. MONEY MARKET LOANS . . . . . . . . . . . . . . . . . . 19
SECTION 2.04. NOTES. . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.05. MATURITY OF LOANS. . . . . . . . . . . . . . . . . . . 23
SECTION 2.06. INTEREST RATES . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.07. FEES . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS . . . 26
SECTION 2.09. MANDATORY REDUCTION AND TERMINATION OF COMMITMENTS . . 26
SECTION 2.10. OPTIONAL PREPAYMENTS . . . . . . . . . . . . . . . . . 26
SECTION 2.11. MANDATORY PREPAYMENTS. . . . . . . . . . . . . . . . . 26
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. . . . . . . . . . . 27
SECTION 2.13. COMPUTATION OF INTEREST AND FEES . . . . . . . . . . . 28
ARTICLE III
CONDITIONS TO BORROWINGS. . . . . . . . . . . . 28
SECTION 3.01. CLOSING CONDITIONS . . . . . . . . . . . . . . . . . . 28
SECTION 3.02. CONDITIONS TO ALL BORROWINGS . . . . . . . . . . . . . 30
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 30
SECTION 4.01. PARTNERSHIP, TRUST AND CORPORATE EXISTENCE AND
POWER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.03. BINDING EFFECT . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.04. FINANCIAL INFORMATION. . . . . . . . . . . . . . . . . 31
SECTION 4.05. NO LITIGATION. . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.06. COMPLIANCE WITH ERISA. . . . . . . . . . . . . . . . . 31
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES . . . . . . . . 32
SECTION 4.08. SUBSIDIARIES, CO-INVESTMENT PARTNERSHIPS AND
SERVICE COMPANIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.09. INVESTMENT COMPANY ACT . . . . . . . . . . . . . . . . 32
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT . . . . . . . . . . 32
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS . . . . . . . . . . . . . 32
SECTION 4.12. NO DEFAULT . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.13. FULL DISCLOSURE. . . . . . . . . . . . . . . . . . . . 33
SECTION 4.14. ENVIRONMENTAL MATTERS. . . . . . . . . . . . . . . . . 33
SECTION 4.15. CAPITAL STOCK. . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.16. MARGIN STOCK . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.17. INSOLVENCY . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.18. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.19. REAL ESTATE INVESTMENT TRUST; SOLE GENERAL PARTNER . . 34
SECTION 4.20. YEAR 2000 COMPLIANCE . . . . . . . . . . . . . . . . . 34
ARTICLE V
COVENANTS . . . . . . . . . . . . . . . 34
SECTION 5.01. INFORMATION. . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS. . . . . . . 36
SECTION 5.03. MAINTENANCE OF EXISTENCE . . . . . . . . . . . . . . . 36
SECTION 5.04. DISSOLUTION. . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. . . . . . 36
SECTION 5.06. USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . 37
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES . . . . . . . . 37
SECTION 5.08. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.09. CHANGE IN FISCAL YEAR. . . . . . . . . . . . . . . . . 37
SECTION 5.10. MAINTENANCE OF PROPERTY. . . . . . . . . . . . . . . . 38
SECTION 5.11. ENVIRONMENTAL NOTICES. . . . . . . . . . . . . . . . . 38
SECTION 5.12. ENVIRONMENTAL MATTERS. . . . . . . . . . . . . . . . . 38
SECTION 5.13. ENVIRONMENTAL RELEASE. . . . . . . . . . . . . . . . . 38
SECTION 5.14. TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . 38
SECTION 5.15. RESTRICTED PAYMENTS. . . . . . . . . . . . . . . . . . 38
SECTION 5.16. LOANS OR ADVANCES. . . . . . . . . . . . . . . . . . . 39
SECTION 5.17. INVESTMENTS. . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.18. LIENS ON ELIGIBLE PROPERTY . . . . . . . . . . . . . . 40
SECTION 5.19. RESTRICTIONS ON ABILITY OF GUARANTORS TO PAY
DIVIDENDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.20. RATIO OF TOTAL CONSOLIDATED LIABILITIES TO
UNDEPRECIATED BOOK ASSET VALUE . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.21. RATIO OF TOTAL SECURED DEBT TO GROSS ASSET VALUE. . . 40
SECTION 5.22. RATIO OF EBITDA TO CONSOLIDATED INTEREST EXPENSE . . . 40
SECTION 5.23. RATIO OF UNENCUMBERED ASSETS TO UNSECURED FUNDED
DEBT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.24. RATIO OF UNSECURED NET OPERATING INCOME TO
UNSECURED INTEREST EXPENSE . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.25. ADDITIONAL DEBT. . . . . . . . . . . . . . . . . . . . 41
SECTION 5.26. CO-INVESTMENT PARTNERSHIPS DEPRECIATED BOOK VALUE.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.27. STATUS AS A REIT . . . . . . . . . . . . . . . . . . . 41
SECTION 5.28. NEW SUBSIDIARIES TO BECOME GUARANTORS. . . . . . . . . 41
SECTION 5.29. SERVICE COMPANY DISTRIBUTIONS. . . . . . . . . . . . . 41
SECTION 6.01. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . 41
SECTION 6.02. NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . . 44
ARTICLE VII
THE AGENT . . . . . . . . . . . . . . . 44
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES . . . . . . . . . . 44
SECTION 7.02. RELIANCE BY AGENT. . . . . . . . . . . . . . . . . . . 44
SECTION 7.03. DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.04. RIGHTS OF AGENT AND ITS AFFILIATES AS A BANK . . . . . 45
SECTION 7.05. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . 45
SECTION 7.06 CONSEQUENTIAL DAMAGES. . . . . . . . . . . . . . . . . . . 45
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER . . . . . . . . . . . . 46
SECTION 7.08. NONRELIANCE ON AGENT AND OTHER BANKS . . . . . . . . . 46
SECTION 7.09. FAILURE TO ACT . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.10. RESIGNATION OR REMOVAL OF AGENT. . . . . . . . . . . . 46
SECTION 7.11. DOCUMENTATION AGENT. . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION . . . . . . . . 47
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.02. ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.03. INCREASED COST AND REDUCED RETURN. . . . . . . . . . . 47
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR EURO-DOLLAR LOANS. . . 48
SECTION 8.05. COMPENSATION . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . 49
SECTION 9.01. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.02. NO WAIVERS . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES. . . . . . . . . . . . . . 50
SECTION 9.04. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . 50
SECTION 9.05. SETOFF; SHARING OF SETOFFS . . . . . . . . . . . . . . 50
SECTION 9.06. AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . 51
SECTION 9.07. NO MARGIN STOCK COLLATERAL . . . . . . . . . . . . . . 52
SECTION 9.08. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . 52
SECTION 9.09. CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . 53
SECTION 9.10. REPRESENTATION BY BANKS. . . . . . . . . . . . . . . . 54
SECTION 9.11. OBLIGATIONS SEVERAL. . . . . . . . . . . . . . . . . . 54
SECTION 9.12. GEORGIA LAW. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.13. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.14. INTEREST . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.15. INTERPRETATION . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. . . . . 55
SECTION 9.17. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.18. SOURCE OF FUNDS -- ERISA . . . . . . . . . . . . . . . 55
SECTION 9.19. EXCULPATION. . . . . . . . . . . . . . . . . . . . . . 55
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Swing Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate and Agreement for the
General Partner of the Borrower
EXHIBIT I Form of Borrowing Base Certificate
EXHIBIT J List of Eligible Properties
EXHIBIT K Form of Guaranty
EXHIBIT L Form of Contribution Agreement
Schedule 4.08 Subsidiaries and Co-Investment Partnerships
Schedule 4.14 Environmental Matters
Schedule 5.17 Existing Investments
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 27, 1998
among AMLI RESIDENTIAL PROPERTIES, L.P., the BANKS listed on the signature
pages hereof, WACHOVIA BANK, N.A., as Agent, and THE FIRST NATIONAL BANK OF
CHICAGO, as Documentation Agent.
WHEREAS, the Borrower, the Banks, the Agent and the
Documentation Agent are party to the Existing Credit Agreement and desire
to provide an additional facility for Money Market Loans and increase to
Commitments to $180,000,000 as of the date hereof, and, upon the addition
of an additional Bank, to $200,000,000.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms as defined in this
Section 1.01 shall, for all purposes of this Agreement and any amendment
hereto (except as herein otherwise expressly provided or unless the context
otherwise requires), have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.06(c).
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled
by or is under common control with a Controlling Person, or (iii) any
Person (other than a Subsidiary of the relevant Person) of which the
relevant Person owns, directly or indirectly, 20% or more of the common
stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in
its capacity as agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Agent's Letter Agreement" means that certain letter agreement,
dated as of April 23, 1997 between the Borrower and the Agent relating to
the structure of the Loans, and certain fees from time to time payable by
the Borrower to the Agent, together with all amendments and supplements
thereto.
"Agreement" means this Amended and Restated Credit Agreement,
together with all amendments and supplements hereto.
"Applicable Margin" has the meaning set forth in Section
2.06(a).
"Approved Collateral Value" means the total value of any
Qualified Letters of Credit or any other asset delivered to the Borrower as
collateral in connection with the acquisition or development of multi-
family properties reasonably anticipated by the Borrower to become
Properties; provided, however, the Approved Collateral Value of (i) any
Qualified Letter(s) of Credit that individually or together with other
Qualified Letters of Credit exceed $20,000,000, and (ii) any asset that is
not a Qualified Letter of Credit, shall be $0 until such asset or Qualified
Letter of Credit is approved by the Required Banks, in their sole
discretion.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
EXHIBIT D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, or (ii)
one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the
Federal Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" means a Borrowing consisting of Base Rate
Loans.
"Base Rate Loan" means a Syndicated Loan which bears or is to
bear interest at a rate based upon the Base Rate, and is to be made as a
Base Rate Loan pursuant to the applicable Notice of Borrowing, Section
2.02(f), or Article VIII, as applicable.
"Borrower" means AMLI Residential Properties, L.P., a Delaware
limited partnership, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of (i)
Syndicated Loans made to the Borrower at the same time by all of the Banks,
in the case of a Syndicated Borrowing, (ii) Money Market Loans made
separately by one or more Banks, in the case of a Money Market Borrowing,
or (iii) a Swing Loan made by Wachovia, in each case pursuant to Article
II. A Borrowing is a "Euro-Dollar Borrowing" if such Borrowing consists of
Euro-Dollar Loans. A Borrowing is a "Base Rate Borrowing" if such
Borrowing consists of Base Rate Loans. A Borrowing is a "Transaction Rate
Borrowing" if such Borrowing consists of Transaction Rate Loans. A
Borrowing is a "Syndicated Loan Borrowing" if such Borrowing consists of
Syndicated Loans. A Borrowing is a "Swing Loan Borrowing" if such
Borrowing consists of Swing Loans. A Borrowing is a "Money Market
Borrowing" if such Borrowing consists of Money Market Loans. A Borrowing
is a "Fixed Rate Borrowing" if such Borrowing consists of Fixed Rate Loans.
"Borrowing Base" means the sum of each of the following, as
determined by reference to the most recent Borrowing Base Certificate
furnished pursuant to Section 3.01(h) or Section 5.01(h), as applicable
(and with respect to any Eligible Property which consists of phases, each
phase thereof shall be separately categorized into clause (i), (ii) or
(iii) below, as appropriate, so long as such phase could be separately
financed on a stand-alone basis):
(i) an amount equal to the product of: (x) the quotient of (1)
the Net Operating Income for the 3 month period ending on the last day of
the Fiscal Quarter just ended prior to the date of determination, from each
Eligible Unencumbered Stabilized Property, divided by (2) 0.09 (which is
the capitalization rate); times (y) 4 (which is the annualization factor);
times (z) 0.60 (which is the advance rate); plus
(ii) an amount equal to the lesser of: (A) the product of (x)
0.50 (which is the advance rate), times (y) the book value of Construction
in Progress on the last day of the Fiscal Quarter just ended on all
Eligible Properties not subject to a Mortgage and (B) $50,000,000; plus
(iii) an amount equal to the lesser of: (A) the product of (x)
0.40 (which is the advance rate), times (y) the cost of land acquired for
the purpose of apartment community development and (B) $15,000,000.
"Borrowing Base Certificate" means a certificate substantially
in the form of EXHIBIT I, duly executed by an Executive Officer of the
General Partner, setting forth in reasonable detail the calculations for
each component of the Borrowing Base.
"Capital Stock" means the Partnership Interests in the Borrower
and any nonredeemable capital stock, whether common or preferred, or
partner interests, whether general or limited, in any Consolidated Entity
(to the extent issued to a Person other than the Borrower).
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change in Control" means: (i) any Person or two or more
Persons other than the General Partner acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of 20% or more of the outstanding Partnership Interests; or (ii) as
of any date a majority of the Board of Directors of the Borrower consists
of individuals who were not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or nominated to
become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A), or (C) selected
or nominated to become directors by the Board of Directors of the Borrower
of which a majority consisted of individuals described in clause (A) and
individuals described in clause (B)
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means July 27, 1998.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Co-Investment Partnerships" means any Person which is not a
Consolidated Entity and which is owned (i) in part by the Borrower or any
Consolidated Entity and (ii) in part by another Person which is not an
Affiliate of the Borrower or any Consolidated Entity.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, and
(ii) as to any Bank which enters into any Assignment and Acceptance
(whether as transferor Bank or as Assignee thereunder), the amount of such
Bank's Commitment after giving effect to such Assignment and Acceptance, in
each case as such amount may be reduced from time to time pursuant to
Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Entity" means at any date any Subsidiary or
Service Company the accounts of which, in accordance with GAAP, are
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Consolidated Interest Expense" for any period means interest
currently expensed under GAAP in respect of Debt of the Borrower or any of
the Consolidated Entities.
"Consolidated Liabilities" means the sum of (i) all liabilities
that, in accordance with GAAP, should be classified as liabilities on a
consolidated balance sheet of Borrower and the Consolidated Entities, and
(ii) to the extent not included in clause (i) of this definition, all
Redeemable Preferred Stock.
"Consolidated Net Income" means, for any period, the Net Income
of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary income or expense items
and (ii) any equity interests of the Borrower or any Subsidiary in the
unremitted earnings of any Person that is not a Subsidiary.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, prepared in accordance with GAAP.
"Construction in Progress" means, any Property in the process
of being developed as an apartment community but is not a Stabilized
Property, calculated on a consolidated basis for the Borrower and the
Guarantors, the construction-in-progress as shown from time to time on the
books and records of the Borrower and the Guarantors, maintained in
accordance with GAAP.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of EXHIBIT L to be executed by
the Borrower and each of the Guarantors pursuant to Section 5.28.
"Control" means, with respect to any Person, the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or otherwise.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower, are treated as a
single employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of such
Person as lessee under capital leases, (v) all obligations of such Person
to reimburse any bank or other Person in respect of amounts payable under
a banker's acceptance, (vi) all Redeemable Preferred Stock of such Person
(in the event such Person is a corporation), (vii) all obligations of such
Person to reimburse any bank or other Person in respect of amounts paid or
to be paid or to be paid under a letter of credit or similar instrument,
(viii) all Debt of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person, and (ix) all Debt of
others Guaranteed by such Person.
"Debt Rating" means at any time the published rating of a
Person's senior unsecured, unenhanced debt (or, if no such debt exists, its
issuer credit rating for debt of such type) by ▇▇▇▇▇'▇, S&P or Duff &
▇▇▇▇▇▇ (PROVIDED, (i) that in the event of a double or greater split
rating, the rating immediately below the highest rating shall apply), and
(ii) if only one of them rates the Person's senior unsecured, unenhanced
debt, such rating must be issued by ▇▇▇▇▇'▇ or S&P.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or
both would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the
sum of 2% plus the highest interest rate (including the Applicable Margin)
which may be applicable to any Loans hereunder (irrespective of whether any
such type of Loans are actually outstanding hereunder).
"Dividends" means for any period the sum of all dividends and
other distributions paid or declared during such period in respect of any
Capital Stock and Redeemable Preferred Stock (other than dividends paid or
payable in the form of additional Capital Stock).
"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.
"EBITDA" means at any time the sum of the following,
determined on a consolidated basis for the Borrower and each Consolidated
Entity, at the end of each Fiscal Quarter, for the applicable measuring
period: (i) Consolidated Net Income; PLUS (ii) Consolidated Interest
Expense; PLUS (iii) taxes on income; PLUS (iv) depreciation; PLUS (v)
amortization; PLUS (vi) other non-cash charges.
"Economic Percentage" means the Borrower's percentage of
ownership of all preferred and common stock of any of the Service Companies
at any time.
"Eligible Property" means any Property which is either (i)
listed on EXHIBIT J or (ii) which has been approved as an Eligible Property
by the Required Banks at the request of the Borrower, taking into account
the following information concerning the Property provided to the Agent and
the Banks by the Borrower: a physical description, applicable environmental
reports, information regarding its age, location and occupancy, an
operating statement and rent roll for the most recent Fiscal Quarter, and
an operating budget for the current Fiscal Year; PROVIDED, HOWEVER, that
any Eligible Property shall be released in writing by the Agent as an
Eligible Property upon the written request of the Borrower, to enable the
Borrower to sell or obtain financing on such Eligible Property, so long as
no Default or Event of Default is in existence or would be caused thereby,
and upon such release, such Property shall no longer constitute Eligible
Property.
"Eligible Unencumbered Stabilized Property" means any Eligible
Property which (i) is not subject to a Mortgage, and (ii) is a Stabilized
Property.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any
Environmental Requirements, whether or not entered upon consent, or written
agreements with an Environmental Authority or other entity arising from or
in any way associated with any Environmental Requirement, whether or not
incorporated in a judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated
with any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged
noncompliance with or liability under any Environmental Requirement,
including without limitation any complaints, citations, demands or requests
from any Environmental Authority or from any other person or entity for
correction of any violation of any Environmental Requirement or any
investigations concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA or
under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the
Borrower, any Subsidiary or the Properties, including but not limited to
any such requirement under CERCLA or similar state legislation and all
federal, state and local laws, ordinances, regulations, orders, writs,
decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to
any provision of ERISA shall also be deemed to be a reference to any
successor provision or provisions thereof.
"Euro-Dollar Borrowing" means a Borrowing consisting of Euro-
Dollar Loans.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Syndicated Loan which bears or is to
bear interest at a rate based upon the Euro-Dollar Rate, and to be made as
a Euro-Dollar Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Executive Officer" refers to an executive officer of the
General Partner, and means the Chairman, the Vice Chairman, the President,
the Chief Financial Officer or the Treasurer of the General Partner.
"Existing Credit Agreement" means that certain Credit Agreement
by and between the Borrower, the Agent, the Documentation Agent, and the
Banks listed therein, dated as of June 27, 1997, as amended by the First
Amendment to Credit Agreement dated as of November 21, 1997.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th 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 (i) 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 (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the
average rate charged to the Agent on such day on such transactions, as
determined by the Agent.
"Fiscal Month" means any fiscal month of the Borrower.
"Fiscal Quarter" means any fiscal quarter of the Borrower or
the General Partner.
"Fiscal Year" means any fiscal year of the Borrower or the
General Partner.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing or a
Transaction Rate Borrowing, or either of them, as the context requires.
"Fixed Rate Loan" means any Euro-Dollar Loan, Transaction Rate
Loan or Money Market Loan, or any or all of them, as the context shall
require.
"Funds From Operations" has the meaning ascribed to such term
in preparation of financial statements for real estate investment trusts as
required by NAREIT from time to time, subject to Section 1.02.
"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.
"General Partner" means AMLI Residential Properties Trust, a
Maryland real estate investment trust, the sole general partner of the
Borrower.
"Gross Asset Value" means, on a consolidated basis for the
Borrower and the Consolidated Entities, the sum of:
(i) an amount equal to the product of: (x) the quotient of (1)
the Net Operating Income for the 3 month period ending on the last day of
the Fiscal Quarter just ended prior to the date of determination, from each
Property (other than Property owned by Borrower for less than
three months) less, divided by (2) 0.09 (which is the
capitalization rate); times (y) 4 (which is the annualization
factor); plus
(ii) an amount equal to the book value of (A) Construction in
Progress plus (B) Properties consisting of unimproved land, as determined
on the last day of the Fiscal Quarter just ended; plus
(iii) an amount equal to the acquisition cost of improved
Properties owned by Borrower less than three months, as determined on the
last day of the Fiscal Quarter just ended; plus
(iv) an amount equal to the sum of all unrestricted balances on
deposit with banks or other financial institutions, plus the market value
of Investments permitted under Section 5.17(i), (ii), (iii) and (iv); plus
(v) an amount equal to the quotient of (x) the sum of the
Economic Percentage of all earnings before interest and taxes of all
Service Companies for the 3 month period ending on the last day of the
month just ended prior to the date of determination, divided by (y) 0.15
(which is the capitalization rate) times (z) 4 (which is the annualization
rate).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to secure, purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to provide
collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring
in any other manner the obligee of such Debt or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part), PROVIDED that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means any one, or more or all, as the context
shall require, of each Subsidiary which becomes a Guarantor pursuant to
Section 5.28, subject to the provisions of the last sentence of Section
5.05.
"Guaranty" means the Guaranty Agreement in substantially the
form of EXHIBIT K to be executed by each of the Guarantors pursuant to
Section 5.28, unconditionally and jointly and severally Guaranteeing
payment of the Loans, the Notes and all other obligations of the Borrower
to the Agent and the Banks hereunder, including without limitation all
principal, interest, fees, costs, and compensation and indemnification
amounts.
"▇▇▇▇▇▇ Trust Facility" means the Secured Revolving Credit
Facility Agreement dated as of September 16, 1994, as amended between the
Borrower and ▇▇▇▇▇▇ Trust & Savings Bank, providing for a line of
credit/letter of credit facility in the aggregate amount of $8,000,000.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery
Act of 1980, 42 U.S.C. Section 6901 et seq. and its implementing
regulations and amendments, or in any applicable state or local law or
regulation, (b) "hazardous substance", "pollutant", or "contaminant" as
defined in CERCLA, or in any applicable state or local law or regulation,
(c) gasoline, or any other petroleum product or by-product, including,
crude oil or any fraction thereof, (d) toxic substances, as defined in the
Toxic Substances Control Act of 1976, or in any applicable state or local
law or regulation and (e) insecticides, fungicides, or rodenticides, as
defined in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975,
or in any applicable state or local law or regulation, as each such Act,
statute or regulation may be amended from time to time.
"Hedging Agreement" means any agreement to which the Borrower
or any Guarantor is a party consisting of interest rate protection
agreements, foreign currency exchange agreements or other hedging
arrangements.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending
on the numerically corresponding day in the first, second, third or sixth
month thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; PROVIDED that:
(a) any Interest Period (subject to paragraph (c) 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;
(b) 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 paragraph (c) below, end on the last Euro-Dollar Business
Day of the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date; and
(2) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; PROVIDED that:
(a) any Interest Period (subject to paragraph (b) 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
(b) no Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date may be selected;
and
(3) with respect to each Transaction Rate Borrowing, any period up to 14
days mutually agreeable to the Borrower and Wachovia which ends on or prior
to the Termination Date.
(4) with respect to each Money Market Borrowing, the period commencing on
the date of such Borrowing and ending on the Stated Maturity Date or such
other date or dates as may be specified in the applicable Money Market
Quote; provided that:
(a) any Interest Period (subject to clause (b) 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
(b) no Interest Period may be selected which would end after
the Termination Date.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such
Person, capital contribution to such Person, loan or advance to such
Person, making of a time deposit with such Person, or assumption of any
obligation of such Person or otherwise.
"Investment Grade Debt Rating" means, a Debt Rating equal or
higher than Baa3 if such Debt Rating is issued by ▇▇▇▇▇'▇, BBB- if such
Debt Rating is issued by S&P, and BBB- if such Debt Rating is issued by
Duff & ▇▇▇▇▇▇.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such
Bank may hereafter designate as its Lending Office by notice to the
Borrower and the Agent.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest,
security title, preferential arrangement which has the practical effect of
constituting a security interest, encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or
by any agreement, contingent or otherwise, to provide any of the foregoing.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to
such asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Syndicated
Loan, Transaction Rate Loan or Money Market Loan, and "Loans" means Base
Rate Loans, Euro-Dollar Loans, Syndicated Loans, Money Market Loans,
Transaction Rate Loans, or any or all of them, as the context shall
require.
"Loan Documents" means this Agreement, the Notes, the Guaranty,
the Contribution Agreement, any other document evidencing, relating to or
securing the Loans, and any other document or instrument delivered to the
Agent or the Banks from time to time in connection with this Agreement, the
Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation
or proceeding), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences,
whether or not related, a material adverse change in, or a material adverse
effect upon, any of (a) the financial condition, operations, business,
properties or prospects of the General Partner, or of the Borrower and the
Consolidated Entities taken as a whole, (b) the rights and remedies of the
Agent or the Banks under the Loan Documents, or the ability of the Borrower
or the Consolidated Entities to perform its obligations under the Loan
Documents to which it is a party, as applicable, or (c) the legality,
validity or enforceability of any Loan Document.
"Money Market Borrowing Date" has the meaning specified in
Section 2.03.
"Money Market Facility Limit" means an amount equal to fifty
percent (50%) of the aggregate Commitments, as such Commitments may be
increased or reduced from time to time.
"Money Market Loan" means a Loan made by a Bank pursuant to
Section 2.03 which bears interest at the Money Market Rate.
"Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of EXHIBIT A-3, evidencing the
obligation of the Borrower to repay the Money Market Loans, together with
all amendments, consolidations, modifications, renewals and supplements
thereto.
"Money Market Quote" has the meaning specified in Section
2.03(c)(i).
"Money Market Quote Request" has the meaning specified in
Section 2.03(b).
"Money Market Rate" has the meaning specified in Section
2.03(c)(ii)(C).
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"Mortgage" means, with respect to any referenced Property, a
mortgage, deed to secure debt, deed of trust or similar instrument
encumbering such Property.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NAREIT" means the National Association of Real Estate
Investment Trusts.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person for such period, as
determined in accordance with GAAP.
"Net Operating Income" means, (A) for any Property, calculated
on a consolidated basis for the Borrower and the Consolidated Entities, the
sum of the following derived from such Property: (i) Property revenues,
less (ii) Property expenses (excluding depreciation, amortization and debt
service), less (iii) an assumed management fee equal to 4% of gross rental
income (less any management fees included in Property expenses under clause
(ii)) and less (iv) an annual capital reserve equal to $150 for each Unit.
"New Bank" has the meaning set forth in Section 2.14.
"Non-Recourse Mortgage Debt" means Debt secured by a Mortgage
on Property, which the Agent has determined in good faith contains
satisfactory exculpation provisions, except for customary exclusions for
environmental liability, misapplication or fraudulent application of rent
after default, insurance proceeds and condemnation awards and other
customary exclusions.
"Notes" means the Syndicated Loan Notes, the Swing Loan Note,
or Money Market Loan Notes, or any one, or more, or all of them, as the
context shall require.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Officer's Certificate and Agreement" has the meaning set forth
in Section 3.01(f).
"Participant" has the meaning set forth in Section 9.08(b).
"Partner" means the owner of a Partnership Interest.
"Partner Conversions" means the exchange by any limited partner
of the Borrower of any of its limited partner interests in the Borrower to
shares in the General Partner, on 1 for 1 ratio, pursuant to the provisions
of the Limited Partnership Agreement.
"Partnership Interests" means any partner interests in the
Borrower, whether general or limited.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.06(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a limited liability company, a limited
liability partnership, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and is either (i) maintained by a member of
the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding 5 plan years
made contributions.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings.
The Prime Rate is but one of several interest rate bases used by Wachovia.
Wachovia lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or otherwise
used or occupied by the General Partner, the Borrower or any Guarantor,
wherever located.
"Qualified Letter of Credit" means a Letter of Credit (i)
issued by a bank or financial institution with a Debt Rating of "A" or
higher (or the equivalent), (ii) issued for the benefit of Borrower, and
(iii) that is irrevocable, unconditional (other than the presentment of
required documents), and drawn on site.
"Quarterly Period" means a 3 month period (or portion thereof)
ending on each March 31, June 30, September 30 and December 31 after June
27, 1997, and prior to the Termination Date.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination
Date either (i) mandatorily redeemable (by sinking fund or similar payments
or otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day on
which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing
is being converted to a Euro-Dollar Borrowing, 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 Syndicated Loan or Syndicated Loan being converted
and any greater amount being borrowed on such day and actually either being
made available to the Borrower pursuant to Section 2.02(c) or remitted to
the Agent as provided in Section 2.12, in each case as contemplated in
Section 2.02(d).
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are
no longer in effect, Banks holding at least 66 2/3% of the aggregate
outstanding principal amount of the sum of the (i) Syndicated Loans and
(ii) Money Market Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock (except
dividends payable solely in shares of its Capital Stock) or (ii) any
payment on account of the purchase, redemption, retirement or acquisition
of (a) any shares of the Borrower's Capital Stock (except shares acquired
upon the conversion thereof into other shares of its Capital Stock) or (b)
any option, warrant or other right to acquire shares of the Borrower's
Capital Stock.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
"Service Companies" means Amli Institutional Advisors, Inc., a
Delaware corporation, Amli Management Company, a Delaware corporation, and
Amli Residential Construction, Inc., a Delaware corporation.
"Sope Creek Properties" means Phases I, II and III of the
apartment community known as "AMLI at Sope Creek" and located in Marietta,
▇▇▇▇ County, Georgia.
"Stabilized Property" means at any time any apartment community
Property owned by the Borrower (i) which is at least 90% leased and
economically occupied (pursuant to written leases which have been signed by
both landlord and tenant, but including any month to month occupancy by any
such tenant after the expiration of such written lease) or (ii) with
respect to which a permanent certificate of occupancy was issued at least 3
months prior to the date of measurement.
"Stated Maturity Date" means, with respect to any Money Market
Loan, the Stated Maturity Date therefor specified by the Bank in the
applicable Money Market Quote.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the
Borrower or the General Partner; EXCLUDING, however, the Co-Investment
Partnerships. The Service Companies are not Subsidiaries.
"Swing Loan" means a Loan made by Wachovia pursuant to Section
2.01(b), which must be a Base Rate Loan or a Transaction Rate Loan.
"Swing Loan Note" means the promissory note of the Borrower,
substantially in the form of EXHIBIT A-2, evidencing the obligation of the
Borrower to repay the Swing Loans, together with all amendments,
consolidations, modifications, renewals, and supplements thereto.
"Syndicated Loans" means Base Rate Loans or Euro-Dollar Loans
made pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the
Borrower, substantially in the form of EXHIBIT A-1, evidencing the
obligation of the Borrower to repay Syndicated Loans, together with all
amendments, consolidations, modifications, renewals and supplements
thereto.
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means whichever is applicable of (i) June
26, 2001, (ii) such later date to which it is extended by the Banks
pursuant to Section 2.05(b), in their sole and absolute discretion, (iii)
the date the Commitments are terminated pursuant to Section 6.01 following
the occurrence of an Event of Default, or (iv) the date the Borrower
terminates the Commitments entirely pursuant to Section 2.07.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in
the ordinary course of the Borrower's business and on a temporary basis.
"Total Consolidated Liabilities" means at any time, for the
Borrower and the Consolidated Entities, determined on a consolidated basis,
but without duplication, the sum of (i) Consolidated Liabilities, plus (ii)
all Debt Guaranteed by the Borrower or any Consolidated Entity, plus (iii)
the face amount of all letters of credit issued for the account of the
Borrower or any Consolidated Entity, minus (iv) Approved Collateral Value.
"Total Secured Debt" means at any time, for the Borrower and
the Consolidated Entities, determined on a consolidated basis, but without
duplication, the sum of the following, but only if any Property, or
ownership interest of the owner thereof, is subject to a Mortgage with
respect thereto: (i) all indebtedness for borrowed money; (ii) the deferred
purchase price of Property; (iii) all capital leases; (iv) all obligations
to reimburse any bank or other Person in respect of amounts paid or to be
paid under a letter of credit or similar instrument; and (v) all Guarantees
of Debt of Persons other than the Borrower and the Consolidated Entities.
"▇▇▇▇▇▇▇▇ ▇▇▇▇ Residential Midwest Acquisitions" means,
collectively:
(i) the acquisition of the following apartment
communities: (a) Vinings at River ▇▇▇▇, Indianapolis, Indiana; (b) Vinings
Ridge, Kansas City, Kansas; (c) Vinings at Centennial Park, Kansas City,
Kansas; (d) Vinings Square, Kansas City, Kansas; (e) Vinings at Eagle
Creek, Indianapolis, Indiana; and (f) Vinings Trace, Kansas City, Kansas;
and
(ii) those transactions resulting in the creation of two
Co-Investment Partnerships by which the Borrower will acquire (a) a 50%
limited partnership interest in a partnership to be formed to acquire the
Pinnacle Square apartment community, Indianapolis, Indiana and (b) a 1%
general partnership interest in a partnership to be formed to acquire the
Landmark on Spring apartment community, Indianapolis, Indiana.
"Transaction Rate" has the meaning set forth in Section
2.01(b)(ii).
"Transaction Rate Loan" means a Swing Loan to be made as a
Transaction Rate Loan pursuant to Section 2.01(b).
"Transaction Rate Request" has the meaning set forth in Section
2.01(b)(ii).
"Transferee" has the meaning set forth in Section 9.08(d).
"Undepreciated Book Asset Value" means at any time, for the
Borrower and its Subsidiaries, the sum of (x) the original cost of all real
estate assets plus the cost of capital improvements thereon, without
deduction for accumulated depreciation and amortization incurred in
connection therewith, plus (y) the book value of all other tangible assets
determined in accordance with GAAP, minus (z) Approved Collateral Value.
"Unencumbered Assets" means at any time, for the Borrower and
the Guarantors, determined on a consolidated basis, the sum of the
following: (i) an amount equal to (x) the Net Operating Income for the 3
month period ending on the last day of the Fiscal Quarter just ended prior
to the date of determination, from each Property not subject to a Mortgage,
divided by (y) 0.09 (which is the capitalization factor), times (z) 4
(which is the annualization factor); plus (ii) the book value of
Construction in Progress on all Property not subject to a Mortgage plus
Properties consisting of unimproved land not subject to a Mortgage.
"Unencumbered Stabilized Properties" means at any time, all
Stabilized Properties not subject to a Mortgage.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all
vested nonforfeitable benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits, all determined as of
the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the
Controlled Group to the PBGC or the Plan under Title IV of ERISA.
"Unit" means an individual apartment unit located in a
Property.
"Unsecured Net Operating Income" means at any time all Net
Operating Income (but without giving effect to clauses (iii) and (iv) of
the definition thereof) attributable to Unencumbered Stabilized Properties.
"Unsecured Funded Debt" means at any time, for the Borrower and
the Consolidated Entities, determined on a consolidated basis, the sum of
the following, but only if any Property, or ownership interest of the owner
thereof, is not subject to a Mortgage with respect thereto: (i) all
indebtedness for borrowed money; (ii) the deferred purchase price of
Property; (iii) all capital leases; (iv) all obligations to reimburse any
bank or other Person in respect of amounts paid or to be paid under a
letter of credit or similar instrument; and (v) all Guarantees of Debt of
Persons other than the Borrower and the Consolidated Entities, and (vi)
Debt not exceeding $7,500,000 in the aggregate principal amount with
respect to the Sope Creek Properties.
"Unsecured Interest Expense" means at any time that portion of
Consolidated Interest Expense attributable to Unsecured Funded Debt.
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding
principal amount of its Syndicated Loans (but not its Money Market Loans,
or, with respect to Wachovia, its Swing Loans).
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned
by the Borrower or the General Partner.
"Year 2000 Compliant" has the meaning set forth in Section
4.20.
SECTION 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, or with respect to the
calculation of Funds From Operations, as required by NAREIT, applied on a
basis consistent (except for changes concurred in by the General Partner's
independent public accountants or otherwise required by a change in GAAP)
with the most recent audited consolidated financial statements of the
General Partner or the Borrower and its Consolidated Subsidiaries delivered
to the Banks unless with respect to any such change concurred in by the
General Partner's independent public accountants or required by GAAP or,
with respect to the calculation of Funds From Operations, as required by
NAREIT, in determining compliance with any of the provisions of this
Agreement or any of the other Loan Documents: (i) the Borrower shall have
objected to determining such compliance on such basis at the time of
delivery of such financial statements, or (ii) the Required Banks shall so
object in writing within 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 of the first financial statements delivered
under Section 5.01 hereof, shall mean the financial statements referred to
in Section 4.04).
SECTION 1.03. REFERENCES. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules",
"Sections" and other Subdivisions are references to articles, exhibits,
schedules, sections and other subdivisions hereof.
SECTION 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.
SECTION 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
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND SYNDICATED LOANS.
(a) SYNDICATED LOANS. Each Bank severally agrees, on the terms and
conditions set forth herein, to make Syndicated Loans to the Borrower from
time to time before the Termination Date; PROVIDED that,
(i) immediately after each such Syndicated Loan is made, the
aggregate outstanding principal amount of Syndicated Loans by such Bank
shall not exceed the amount of its Commitment, and
(ii) the aggregate outstanding amount of all Syndicated Loans,
Money Market Loans and Swing Loans shall not exceed the lesser of (A) the
aggregate amount of the Commitments and (B) the Borrowing Base.
Each Syndicated Borrowing under this Section shall be in an aggregate
principal amount of (x) for Base Rate Loans, $1,000,000 or any larger
integral multiple of $500,000, and (y) for Euro-Dollar Loans, $1,000,000 or
any larger integral multiple of $500,000 (except that in each case any such
Borrowing may be in the aggregate amount of the Unused Commitments) and
shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may
borrow under this Section, repay or, to the extent permitted by Section
2.09, prepay Syndicated Loans and reborrow under this Section at any time
before the Termination Date.
(b) SWING LOANS. (i) In addition to the foregoing, Wachovia shall
from time to time, upon the request of the Borrower, if the applicable
conditions precedent in Article III have been satisfied, make Swing Loans
to the Borrower in an aggregate principal amount at any time outstanding
not exceeding $5,000,000; PROVIDED that, immediately after such Swing Loan
is made, the outstanding amount of the Syndicated Loans, Money Market
Loans, and Swing Loans shall not exceed the lesser of (A) the aggregate
amount of the Commitments and (B) the Borrowing Base. Within the foregoing
limits, the Borrower may borrow under this Section 2.01(b), prepay and
reborrow under this Section 2.01(b) at any time before the Termination
Date. All Swing Loans shall be made as either Base Rate Loans or, subject
to the provisions of clause (ii) below, Transaction Rate Loans.
(ii) Swing Loans may be Transaction Rate Loans, if the Agent shall
have determined that such Transaction Rate Loan, including the principal
amount thereof, the Interest Period and the Transaction Rate applicable
thereto, has been expressly agreed to by the Borrower and Wachovia (such
agreement may be obtained by telephone, confirmed promptly to the Agent in
writing) pursuant to the following procedures. If the Borrower desires a
Transaction Rate Loan, (a) the Borrower shall provide Wachovia, with a copy
to the Agent, with notice of a request (a "Transaction Rate Request") for a
quote for a Transaction Rate Borrowing prior to 1:00 p.m. (Atlanta, Georgia
time) on the date (which shall be a Domestic Business Day) of the proposed
Transaction Rate Borrowing, which Transaction Rate Request shall include
the principal amount and proposed Interest Period of the relevant
Transaction Rate Borrowing, (b) prior to 1:30 p.m. (Atlanta, Georgia time)
on such date, Wachovia shall furnish the Borrower, with a copy to the
Agent, with its rate quote (a "Transaction Rate Quote") via facsimile
transmission, (c) the Borrower shall immediately inform Wachovia and the
Agent of its decision as to whether to request a Transaction Rate Borrowing
at the Transaction Rate specified in such Transaction Rate Quote (a
"Transaction Rate") (which may be done by telephone and promptly confirmed
in writing, and which decision shall be irrevocable), and (d) if the
Borrower has so informed Wachovia and the Agent that it does desire a
Transaction Rate Borrowing at the Transaction Rate specified in such
Transaction Rate Quote, then by 2:00 p.m. (Atlanta, Georgia time) on the
date of such decision, Wachovia shall make such Transaction Rate Borrowing,
with interest accruing thereon at such Transaction Rate, available to the
Agent in accordance with the procedures set forth herein. The Agent shall
notify the Banks of any Transaction Rate Borrowing pursuant hereto.
(iii) At any time on or after the occurrence of an Event of Default,
upon the request of Wachovia, each Bank other than Wachovia shall, on the
third Domestic Business Day after such request is made, purchase a
participating interest in Swing Loans in an amount equal to its ratable
share (based upon its respective Commitment) of such Swing Loans, and
Wachovia shall furnish each Bank with a certificate evidencing such
participating interest. On such third Domestic Business Day, each Bank
will immediately transfer to Wachovia, in immediately available funds, the
amount of its participation. Whenever, at any time after Wachovia has
received from any such Bank its participating interest in a Swing Loan, the
Agent receives any payment on account thereof, the 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, HOWEVER, that in the event that such payment received by
the Agent is required to be returned, such Bank will return to the Agent
any portion thereof previously distributed by the 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: (1) any set-off, counterclaim, recoupment, defense or
other right which such Bank or any other Person may have against Wachovia
requesting such purchase or any other Person for any reason whatsoever; (2)
the occurrence or continuance of a Default or an Event of Default or the
termination of the Commitments; (3) any adverse change in the condition
(financial or otherwise) of the Borrower or Guarantor; (4) any breach of
this Agreement by the Borrower or any other Bank; or (5) any other
circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS. For
all Loans other than Transaction Rate Loans or Money Market Loans (which
shall be governed by the provisions of Sections 2.01(b)(ii) and 2.03,
respectively):
(a) The Borrower shall give the Agent notice (a "Notice of
Borrowing"), which shall be substantially in the form of EXHIBIT E, prior
to 11:00 A.M. (Atlanta, Georgia time) on the same Domestic Business Day as
each Base Rate Borrowing and at least 3 Euro-Dollar Business Days before
each Euro-Dollar Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such Borrowing
are to be Syndicated Loans or Swing Loans, and whether they are to be Base
Rate Loans or Euro-Dollar Loans;
(iv) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly and in any event on the same business day notify each Bank of the
contents thereof and of such Bank's ratable share of such Syndicated
Borrowing and such Notice of Borrowing, once received by the Agent, shall
not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time) for
Euro-Dollar Loans, and 2:00 P.M. (Atlanta, Georgia time) for Base Rate
Loans, on the date of each Syndicated Borrowing, each Bank (or Wachovia,
with respect to Swing Loans) shall (except as provided in paragraph (d) of
this Section) make available its ratable share of such Syndicated
Borrowing, in Federal or other funds immediately available in Atlanta,
Georgia, to the Agent at its address determined pursuant to Section 9.01.
Unless the Agent determines that any applicable condition specified in
Article III has not been satisfied, the Agent will make the funds so
received from the Banks available to the Borrower at the Agent's aforesaid
address. Unless the Agent receives notice from a Bank, at the Agent's
address referred to in or specified pursuant to Section 9.01, no later than
4:00 P.M. (local time at such address) on the Domestic Business Day before
the date of a Syndicated Borrowing stating that such Bank will not make a
Syndicated Loan in connection with such Syndicated Borrowing, the Agent
shall be entitled to assume that such Bank will make a Syndicated Loan in
connection with such Syndicated Borrowing and, in reliance on such
assumption, the Agent may (but shall not be obligated to) make available
such Bank's ratable share of such Syndicated Borrowing to the Borrower for
the account of such Bank. If the Agent makes such Bank's ratable share
available to the Borrower and such Bank does not in fact make its ratable
share of such Syndicated Borrowing available on such date, the Agent shall
be entitled to recover such Bank's ratable share from such Bank or the
Borrower (and for such purpose shall be entitled to charge such amount to
any account of the Borrower maintained with the Agent), together with
interest thereon for each day during the period from the date of such
Syndicated Borrowing until such sum shall be paid in full at a rate per
annum equal to the rate at which the 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 the
Borrower of such Bank's ratable share and interest thereon shall be without
prejudice to any rights that the Borrower may have against such Bank and
(ii) until such Bank has paid its ratable share of such Syndicated
Borrowing, together with interest pursuant to the foregoing, it will have
no interest in or rights with respect to such Syndicated Borrowing for any
purpose hereunder. If the Agent does not exercise its option to advance
funds for the account of such Bank, it shall forthwith notify the Borrower
of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on a
day on which the Borrower is 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 the Agent as provided in paragraph (c) of this Section, or remitted by
the Borrower to the Agent as provided in Section 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in
this Agreement, no Fixed Rate Borrowing may be made if there shall have
occurred a Default or an Event of Default, which Default or Event of
Default shall not have been cured or waived, and all Refunding Loans shall
be made as Base Rate Loans (but shall bear interest at the Default Rate, if
applicable).
(f) In the event that a Notice of Borrowing fails to specify
whether the Syndicated Loans comprising such Syndicated Borrowing are to be
Base Rate Loans or Euro-Dollar Loans, such Syndicated Loans shall be made
as Base Rate Loans. If the Borrower is otherwise entitled under this
Agreement to repay any Syndicated Loans maturing at the end of an Interest
Period applicable thereto with the proceeds of a new Borrowing, and the
Borrower fails to repay such Syndicated Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new Syndicated
Borrowing, a new Syndicated Borrowing shall be deemed to be made on the
date such Syndicated Loans mature in an amount equal to the principal
amount of the Syndicated Loans so maturing, and the Syndicated Loans
comprising such new Syndicated Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained
herein, there shall not be a total of more than 8 Euro-Dollar Borrowings
and Money Market Loans outstanding at any given time.
SECTION 2.03. MONEY MARKET LOANS. (a) In addition to
making Syndicated Borrowings, the Borrower may, as set forth in this
Section 2.03, request the Banks to make offers to make Money Market
Borrowings available to the Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this
Section 2.03, PROVIDED that:
(i) the number of Money Market Loans which may be
outstanding at any given time is subject to the provisions of Section
2.02(g);
(ii) the aggregate principal amount of all Money Market
Loans, (A) do not exceed the Money Market Facility Limit, and (B) together
with the aggregate principal amount of all Syndicated Loans and all Swing
Loans, at any one time outstanding shall not exceed the aggregate amount of
the Commitments of all of the Banks at such time;
(iii) the Money Market Loans of any Bank will be deemed to be
usage of the Commitments for the purpose of calculating availability
pursuant to Sections 2.01(a)(ii), 2.01(b)(i) and 2.03(a)(ii) and fees
pursuant to Section 2.07, but will not reduce such Bank's obligation to
lend its pro rata share of the remaining Unused Commitment; and
(iv) Borrower's Debt Rating is Investment Grade or higher.
(b) When the Borrower wishes to request offers to make Money
Market Loans, it shall give the Agent (which shall promptly notify the
Banks) notice substantially in the form of EXHIBIT M hereto (a "Money
Market Quote Request") so as to be received no later than 11:00 A.M.
(Atlanta, Georgia time) at least 3 Domestic Business Days prior to the date
of the Money Market Borrowing proposed therein (or such other time and date
as the Borrower and the Agent, with the consent of the Required Banks, may
agree), specifying:
(i) the proposed date of such Money Market Borrowing,
which shall be a Euro-Dollar Business Day (the "Money Market Borrowing
Date");
(ii) the maturity date (or dates) (each a "Stated Maturity
Date") for repayment of each Money Market Loan to be made as part of such
Money Market Borrowing (which Stated Maturity Date shall be that date
occurring not less than 7 days but not more than 180 days from the date of
such Money Market Borrowing); PROVIDED that the Stated Maturity Date for
any Money Market Loan may not extend beyond the Termination Date (as in
effect on the date of such Money Market Quote Request); and
(iii) the aggregate amount of principal to be requested by
the Borrower as a result of such Money Market Borrowing, which shall be at
least $5,000,000 (and in larger integral multiples of $1,000,000) but shall
not cause the limits specified in Section 2.03(a) to be violated.
The Borrower may request offers to make Money Market Loans having up to 2
different Stated Maturity Dates in a single Money Market Quote Request;
PROVIDED that the request for each separate Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request for a separate Money
Market Borrowing. Except as otherwise provided in the immediately
preceding sentence, after the first Money Market Quote Request has been
given hereunder, no Money Market Quote Request shall be given until at
least 5 Domestic Business Days after all prior Money Market Quote Requests
have been fully processed by the Agent, the Banks and the Borrower pursuant
to this Section 2.03.
(c) (i) Each Bank may, but shall have no obligation to,
submit a response containing an offer to make a Money Market Loan
substantially in the form of EXHIBIT N hereto (a "Money Market Quote") in
response to any Money Market Quote Request; PROVIDED that, if the
Borrower's request under Section 2.03(b) specified more than 1 Stated
Maturity Date, such Bank may, but shall have no obligation to, make a
single submission containing a separate offer for each such Stated Maturity
Date and each such separate offer shall be deemed to be a separate Money
Market Quote. Each Money Market Quote must be submitted to the Agent not
later than 10:00 A.M. (Atlanta, Georgia time) on the Money Market Borrowing
Date; PROVIDED that any Money Market Quote submitted by Wachovia may be
submitted, and may only be submitted, if Wachovia notifies the Borrower of
the terms of the offer contained therein not later than 9:45 A.M. (Atlanta,
Georgia time) on the Money Market Borrowing Date (or 15 minutes prior to
the time that the other Banks are required to have submitted their
respective Money Market Quotes). Subject to Section 6.01, any Money Market
Quote so made shall be irrevocable except with the written consent of the
Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing Date and
the Stated Maturity Date therefor;
(B) the principal amounts of the Money Market
Loan which the quoting Bank is willing to make for the applicable Money
Market Quote, which principal amounts (x) may be greater than or less than
the Commitment of the quoting Bank, (y) shall be at least $5,000,000 or a
larger integral multiple of $500,000, and (z) may not exceed the principal
amount of the Money Market Borrowing for which offers were requested;
(C) the rate of interest per annum (rounded
upwards, if necessary, to the nearest 1/100th of 1%) offered for each such
Money Market Loan (such amounts being hereinafter referred to as the "Money
Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money
Market Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Money Market Quote Request (other than setting forth the
principal amounts of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period) and, in particular, no
Money Market Quote may be conditioned upon acceptance by the Borrower of
all (or some specified minimum) of the principal amount of the Money Market
Loan for which such Money Market Quote is being made.
(d) The Agent shall as promptly as practicable after the
Money Market Quote is submitted (but in any event not later than 10:30 A.M.
(Atlanta, Georgia time)) on the Money Market Borrowing Date, notify the
Borrower of the terms (i) of any Money Market Quote submitted by a Bank
that is in accordance with Section 2.03(c) and (ii) of any Money Market
Quote that amends, modifies or is otherwise inconsistent with a previous
Money Market Quote submitted by such Bank with respect to the same Money
Market Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money Market
Quote. The Agent's notice to the Borrower shall specify (A) the principal
amounts of the Money Market Borrowing for which offers have been received
and (B) the respective principal amounts and Money Market Rates so offered
by each Bank (identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date, the Borrower shall notify the Agent of its
acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.03(d) and the Agent shall promptly notify each Bank which
submitted an offer. In the case of acceptance, such notice shall specify
the aggregate principal amount of offers (for each Stated Maturity Date)
that are accepted. The Borrower may accept any Money Market Quote in whole
or in part; PROVIDED that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Loan comprising a Money Market Borrowing shall be at least $5,000,000 (and
in larger integral multiples of $500,000) but shall not cause the limits
specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending
order of Money Market Rates; and
(iv) the Borrower may not accept any offer where the Agent
has advised the Borrower that such offer fails to comply with Section
2.03(c)(ii) or otherwise fails to comply with the requirements of this
Agreement (including without limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for
a greater aggregate principal amount than the amount in respect of which
offers are accepted for the related Stated Maturity Date, the principal
amount of Money Market Loans in respect of which such offers are accepted
shall be allocated by the Borrower among such Banks as nearly as possible
in proportion to the aggregate principal amount of such offers.
Determinations by the Borrower of the amounts of Money Market Loans shall
be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 2:00 P.M. (Atlanta, Georgia time) on
the Money Market Borrowing Date, make the amount of such Money Market Loan
allocated to it available to the Agent at its address referred to in
Section 9.01 in immediately available funds. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower on such date by depositing the same, in
immediately available funds, not later than 4:00 P.M. (Atlanta, Georgia
time), in an account of such Borrower maintained with Wachovia.
(g) After any Money Market Loan has been funded, the Agent
shall notify the Banks of the aggregate principal amount of the Money
Market Quotes received and the highest and lowest rates included in such
Money Market Quotes.
SECTION 2.04. NOTES. (a) The Syndicated Loans of each Bank
shall be evidenced by a single Syndicated Loan Note payable to the order of
such Bank for the account of its Lending Office in an amount equal to the
original principal amount of such Bank's Commitment. The Swing Loans shall
be evidenced by a single Swing Loan Note payable to the order of Wachovia
in the original principal amount of $5,000,000. The Money Market Loans
made by any Bank to the Borrower shall be evidenced by a single Money
Market Loan Note payable to the order of such Bank for the account of its
Lending Office in an amount equal to the Money Market Facility Limit.
(b) Upon receipt of each Bank's Syndicated Loan Notes, Money
Market Loan Notes, and Wachovia's Swing Loan Note pursuant to Section 3.01,
the Agent shall deliver such Syndicated Loan Notes and Money Market Loan
Notes to such Bank and the Swing Loan Note to Wachovia. Each Bank, as to
the Syndicated Loans and Money Market Loan Notes (or Wachovia, as to the
Swing Loans), shall record, and prior to any transfer of its Syndicated
Loan Notes or Money Market Loan Notes (or 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
Syndicated Loan or Money Market Loan Notes (or Swing Loan) made by it, the
date and amount of each payment of principal made by the Borrower with
respect thereto, and such schedules of each such Bank's Syndicated Loan
Notes or Money Market Loan Notes (or Wachovia's Swing Loan Note) shall
constitute rebuttable presumptive evidence of the respective principal
amounts owing and unpaid on such Bank's Syndicated Loan Notes or Money
Market Loan Notes (or Wachovia's Swing Loan Note); PROVIDED that the
failure of any Bank (or Wachovia) to make, or error in making, any such
recordation or endorsement shall not affect the obligation of the Borrower
hereunder or under the Syndicated Loan Notes or Money Market Loan Notes (or
Swing Loan Note) or the ability of any Bank to assign its Syndicated Loan
Notes or Money Market Loan Notes or Wachovia to assign its Swing Loan Note.
Each Bank (and Wachovia, with respect to the Swing Loan) is hereby
irrevocably authorized by the Borrower so to endorse its Syndicated Loan
Notes or Money Market Loan Notes (or Swing Loan Note) and to attach to and
make a part of any Syndicated Loan Note or Money Market Loan Notes (or
Swing Loan Note) a continuation of any such schedule as and when required.
SECTION 2.05. MATURITY OF LOANS. (a) Each Loan included in
any Borrowing shall mature, and the principal amount thereof shall be due
and payable, on the last day of the Interest Period applicable to such
Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal
amount of the Loans, if any, together with all accrued but unpaid interest
thereon, if any, shall be due and payable on June 26, 2001, unless the
Termination Date is otherwise extended by the Banks, in their sole and
absolute discretion. Upon the written request of the Borrower, which
request shall be delivered to the Agent at least 60 days prior to each
Extension Date (as such term is hereinafter defined), the Banks shall have
the option (without any obligation whatsoever so to do) of extending the
Termination Date for an additional one-year period on June 21, 1999 (the
"Extension Date"). In the event that a Bank chooses to extend the
Termination Date for such an additional one-year period, notice shall be
given by such Bank to the Borrower and the Agent at least 30 days prior to
the Extension Date; provided, that the Termination Date shall not be
extended with respect to any of the Banks unless the Required Banks are
willing to extend the Termination Date and (x) the remaining Banks shall
purchase ratable assignments (without any obligation so to do) from any
terminating Bank (in the form of an Assignment and Acceptance) in
accordance with their respective percentage of the remaining Aggregate
Commitments; PROVIDED, THAT, such Banks shall be provided such opportunity
(which opportunity shall allow such Banks at least 5 Domestic Business Days
in which to make a decision) prior to the Borrower finding another bank
pursuant to the immediately succeeding clause (y); and, PROVIDED, FURTHER,
THAT, should any of the remaining Banks elect not to purchase such an
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, (y) the Borrower shall find another bank,
acceptable to the Agent, willing to accept an assignment from such
terminating Bank (in the form of an Assignment and Acceptance) and/or (z)
the Borrower shall reduce the aggregate Commitments in an amount equal to
the Commitment of any such terminating Bank which is not purchased pursuant
to clause (x) or (y). In the event of any extension pursuant to the
foregoing, on the Extension Date, the Borrower shall pay to the Agent, for
the ratable account of the Banks, an extension fee equal to 0.10% of the
aggregate amount of the Commitments in effect on such Extension Date.
SECTION 2.06. INTEREST RATES. (a) "Applicable Margin"
means: (i) until the Borrower receives a Debt Rating, (x) for any Base Rate
Loan, 0.00%, and (y) for each Euro-Dollar Loan 1.30%; and (ii) from and
after the date Borrower receives a Debt Rating, (x) for any Base Rate Loan,
0.00% and (y) for each Euro-Dollar Loan, the percentage determined on each
Performance Pricing Determination Date by reference to the table set forth
below and the Borrower's Debt Rating on such Performance Pricing
Determination Date; PROVIDED, that if Borrower has no Debt Rating, the
Applicable Margin for Euro-Dollar Loans shall be based upon Level IV of the
table below.
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
------- -------- --------- --------
Debt Rating greater BBB BBB- less than
than or or or BBB- or
equal to ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
BBB+
or Baa1
LIBOR + .60% .75% .90% 1.30%
In determining the amounts to be paid by the Borrower pursuant to
Sections 2.06(b) and 2.07(b), the Borrower and the Banks shall refer to the
Borrower's Debt Rating from time to time. For purposes hereof,
"Performance Pricing Determination Date" shall mean each date on which the
Borrower's Debt Rating changes. Each change in interest and fees as a
result of a change in Borrower's Debt Rating shall be effective only for
Loans (including Refunding Loans) which are made on or after the relevant
Performance Pricing Determination Date. All determinations hereunder shall
be made by the Agent unless the Required Banks shall object to any such
determination. The Borrower shall promptly notify the Agent of any change
in the Borrower's Debt Rating.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Base Rate for such
day plus the Applicable Margin. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue principal of and, to
the extent permitted by applicable law, overdue interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus
the applicable Adjusted London Interbank Offered Rate for such Interest
Period. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than 3 months, at
intervals of 3 months after the first day thereof. Any overdue principal
of and, to the extent permitted by law, overdue interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained
(rounded upwards, if necessary, to the next higher 1/100th of 1%) by
dividing (i) the applicable London Interbank Offered Rate for such Interest
Period by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan,
the rate per annum determined on the basis of the offered rate for deposits
in Dollars of amounts equal or comparable to the principal amount of such
Euro-Dollar Loan offered for a term comparable to such Interest Period,
which rates appear on the Dow ▇▇▇▇▇ Markets, Inc. Page 3750 effective as of
11:00 A.M., London time, 2 Euro-Dollar Business Days prior to the first day
of such Interest Period, PROVIDED that if no such offered rates appear on
such page, the "London Interbank Offered Rate" for such Interest Period
will be the arithmetic average (rounded upward, if necessary, to the next
higher 1/100th of 1%) of rates quoted by not less than 2 major banks in New
York City, selected by the Agent, at approximately 10:00 A.M., New York
City time, 2 Euro-Dollar Business Days prior to the first day of such
Interest Period, for deposits in Dollars offered by leading European banks
for a period comparable to such Interest Period in an amount comparable to
the principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member
bank of the Federal Reserve System in respect of "Eurocurrency liabilities"
(or in respect of any other category of liabilities which includes deposits
by reference to which the interest rate on Euro-Dollar Loans is determined
or any category of extensions of credit or other assets which includes
loans by a non-United States office of any Bank to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
(d) Each Money Market Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Money
Market Loan is made until it becomes due, at a rate per annum equal to the
applicable Money Market Rate set forth in the relevant Money Market Quote.
Such interest shall be payable on the Stated Maturity Date thereof, and, if
the Stated Maturity Date occurs more than 90 days after the date of the
relevant Money Market Loan, at intervals of 90 days after the first day
thereof. Any overdue principal of and, to the extent permitted by law,
overdue interest on any Money Market Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default
Rate.
(e) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower
and the Banks by telecopier of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(f) After the occurrence and during the continuance of an
Event of Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon) may, at the
election of the Required Banks, bear interest at the Default Rate.
SECTION 2.07. FEES. (a) On the Closing Date, the Borrower
shall pay to the Agent, for the account of each Bank, a fully earned and
nonrefundable upfront fee equal to 0.20% of the amount such Bank's
Commitment hereunder exceeds its previous "Commitment" under the Existing
Credit Agreement.
(b) Commencing on the Closing Date, the Borrower shall pay to
the Agent, for the ratable account of each Bank (i) for any period Borrower
lacks an Investment Grade Debt Rating, a commitment fee on the sum of the
average daily amount of such Bank's Unused Commitment at a rate per annum
equal to 0.15%, and (ii) for any period Borrower has an Investment Grade
Debt Rating, a facility fee, calculated on the aggregate amount of such
Bank's Commitment (without taking into account the amount of the
outstanding Loans made by such Bank), at the rate of 0.20% per annum. Such
fees shall be payable in arrears on each March 31, June 30, September 30
and December 31 and on the Termination Date.
(c) The Borrower shall pay to the Agent, for the account and
sole benefit of the Agent, such fees and other amounts at such times as set
forth in the Agent's Letter Agreement.
SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF
COMMITMENTS. The Borrower may, upon at least 3 Domestic Business Days'
notice (or same Domestic Business Days' notice as to Swing Loans) to the
Agent, terminate at any time, or proportionately reduce the Unused
Commitments from time to time by an aggregate amount of at least
$10,000,000 or any larger integral multiple of $500,000. If the
Commitments are terminated in their entirety, all accrued fees (as provided
under Section 2.07) shall be due and payable on the effective date of such
termination.
SECTION 2.09. MANDATORY REDUCTION AND TERMINATION OF
COMMITMENTS. The Commitments shall terminate on the Termination Date, or
on any earlier date pursuant to the provisions of and under the
circumstances provided in Section 2.11(d), and in either case any Loans
then outstanding (together with accrued interest thereon and, in the case
of a termination pursuant to Section 2.11(d), any other amounts payable
pursuant to such Section 2.11(d)) shall be due and payable on such date.
SECTION 2.10. OPTIONAL PREPAYMENTS. (a) The Borrower may,
upon at least 1 Domestic Business Days' notice to the 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 for Syndicated Borrowings (with no minimum payment as to Swing
Loan Borrowings), 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
of the several Banks (or of Wachovia, as to Swing Loans) included in such
Base Rate Borrowing.
(b) Subject to any payments required pursuant to the terms of
Article VIII for such Fixed Rate Loan, upon 3 Domestic Business Day's prior
written notice (or same Domestic Business Days' notice as to Swing Loans)
to the Agent, the Borrower may prepay in minimum amounts of $1,000,000 or
any larger integral multiple of $500,000 as to Euro-Dollar Borrowings (with
no minimum payment as to Swing Loan Borrowings) all or any portion of the
principal amount of any Fixed Rate Loan prior to the maturity thereof. Each
such optional prepayment shall be applied to prepay ratably the Fixed Rate
Loans of the several Banks (or of Wachovia, as to Swing Loans) included in
such Fixed Rate Borrowing.
(c) Each such payment or prepayment shall be applied to the
Swing Loans or ratably to the Loans of the Banks outstanding on the date of
payment or prepayment in the following order of priority: (i) first, to
Swing Loans which are Base Rate Loans; (ii) second, to Transaction Rate
Loans; (iii) third, to Syndicated Loans which are Base Rate Loans; (iv)
fourth, to Euro-Dollar Loans; and (v) last, to Money Market Loans.
(d) Upon receipt of a notice of prepayment pursuant to this
Section 2.10, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such prepayment and such
notice, once received by the Agent, shall not thereafter be revocable by
the Borrower.
SECTION 2.11. MANDATORY PREPAYMENTS. (a) On each date on
which the Commitments are reduced pursuant to Section 2.08 or Section 2.09,
the Borrower shall repay or prepay such principal amount of the outstanding
Loans, if any (together with interest accrued thereon and any amount due
under Section 8.05(a)), as may be necessary so that after such payment the
aggregate unpaid principal amount of the Loans does not exceed the
aggregate amount of the Commitments as then reduced.
(b) On each date on which the aggregate principal amount of the Loans
outstanding exceeds the Borrowing Base on such date, the Borrower shall
repay or prepay such principal amount of the outstanding Loans (together
with interest thereon and any amount due under Section 8.05(a)) as may be
necessary so that after such payment the aggregate unpaid principal amount
of the Loans does not exceed the Borrowing Base on such date.
(c) Each such payment or prepayment pursuant to paragraph (a), (b) or
(d) shall be applied ratably to the Loans of the Banks outstanding on the
date of payment or prepayment in the following order of priority: (i)
first, to Swing Loans, (ii) secondly to Syndicated Loans which are Base
Rate Loans; (iii) thirdly, to Euro-Dollar Loans; and (iv) lastly, to Money
Market Loans.
(d) In the event of a Change in Control, the Borrower shall notify
the Agent and the Banks thereof within 3 Business Days of the occurrence
thereof, and shall include in such notification relevant information
pertaining thereto. Within 14 Business Days after demand by the Agent,
made in writing at the request of the Required Banks within 60 days of the
Agent's receipt of the aforesaid notice from the Borrower, the Borrower
shall prepay in full the aggregate unpaid principal amount of the Loans,
all accrued and unpaid interest thereon, any amounts due under Section
8.05(a), and all other accrued and unpaid amount hereunder, and the
Commitments thereupon shall terminate pursuant to Section 2.08.
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) The
Borrower shall make each payment of principal of, and interest on, the
Loans and of fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia
time) on the date when due, in Federal or other funds immediately
available in Atlanta, Georgia, to the Agent at its address referred to in
Section 9.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the
Banks, and to Wachovia such payment received by the Agent on account of the
Swing Loans.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans, Money Market Loans or of 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, the Euro-Dollar 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 the Borrower pursuant to this Agreement with
respect to any Loan or fee relating thereto shall be paid without deduction
for, and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein
excluding in the case of each Bank, taxes imposed on or measured by its net
income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Bank's applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
imposts, levies, duties, deductions or withholdings of any nature being
"Taxes"). In the event that the 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, the Borrower shall pay such deduction or withholding
to the applicable taxing authority, shall promptly furnish to any Bank in
respect of which such deduction or withholding is made all receipts and
other documents evidencing such payment and shall pay to such Bank
additional amounts as may be necessary in order that the amount received by
such Bank after the required withholding or other payment shall equal the
amount such Bank would have received had no such withholding or other
payment been made.
No Bank will charge Borrower for taxes or other fees pursuant
to this Section 2.12 or, if such taxes or fees are charged, at a higher
rate, than such Bank, charges its other similarly situated borrowers or
customers.
Each Bank 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 the Borrower 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, the Borrower shall
nonetheless remain obligated under the terms of the immediately preceding
paragraph.
In the event any Bank receives a refund of any Taxes paid by
the Borrower pursuant to this Section 2.12(c), it will pay to the Borrower
the amount of such refund promptly upon receipt thereof; PROVIDED that if
at any time thereafter it is required to return such refund, the Borrower
shall promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.12(c) shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations
required by such provisions (i) shall be made based upon the circumstances
of such Participant, Assignee or other 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.
SECTION 2.13. COMPUTATION OF INTEREST AND FEES. Interest
on Base Rate Loans shall be computed on the basis of a year of 365 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day). Interest on Euro-Dollar Loans, Money Market Loans
and Transaction Rate Loans shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed, calculated as to each
Interest Period from and including the first day thereof to but excluding
the last day thereof. Commitment fees and any other fees payable hereunder
shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the
last day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. CLOSING CONDITIONS. The effectiveness of
this Agreement and the obligation of each Bank to make a Loan on the
occasion of the first Borrowing hereunder is subject to the satisfaction of
the conditions set forth in Section 3.02 and receipt by the Agent of the
following (as to the documents described in paragraphs (a),(c), (d) and (e)
below, in sufficient number of counterparts for delivery of a counterpart
to each Bank and retention of one counterpart by the Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission of such executed counterpart (with the original to
be sent to the Agent by overnight courier);
(b) a duly executed Syndicated Loan Note and a duly executed
Money Market Loan Note for the account of each Bank and a duly executed
Swing Loan Note for the account of Wachovia complying with the provisions
of Section 2.03;
(c) an opinion letter of Pircher, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, counsel
for the Borrower and the Guarantors, dated as of the Closing Date,
substantially in the form of EXHIBIT B and covering such additional matters
relating to the transactions contemplated hereby as the Agent or any Bank
may reasonably request;
(d) an opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel
for the Agent, dated as of the Closing Date, substantially in the form of
EXHIBIT C and covering such additional matters relating to the transactions
contemplated hereby as the Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially
in the form of EXHIBIT G), dated as of the Closing Date, signed by an
Executive Officer of the General Partner, to the effect that, (i) no
Default has occurred and is continuing on the date of the first Borrowing
and (ii) the representations and warranties of the Borrower and each
Guarantor contained in Article IV are true on and as of the date of the
first Borrowing hereunder;
(f) all documents which the Agent or any Bank may reasonably
request relating to the existence of the Borrower the partnership authority
for and the validity of this Agreement, the Notes and any other matters
relevant hereto, all in form and substance satisfactory to the Agent,
including, without limitation, a certificate and agreement of the General
Partner as of the Closing Date substantially in the form of EXHIBIT H (the
"Officer's Certificate and Agreement"), signed by an Executive Officer of
the General Partner, and certified copies of the following respective items
for the Borrower and the General Partner: (i) its Certificate of
Declaration of Trust, or Certificate of Limited Partnership, (ii) its
Declaration of Trust, Partnership Agreement, (iii) a certificate of the
Secretary of State of the State of its incorporation or creation as to its
good standing as a real estate investment trust or partnership created
therein, and (iv) the action taken by its Board of Trustees of the General
Partner authorizing the execution, delivery and performance of the Loan
Documents to which it is a party;
(g) a Notice of Borrowing or notification pursuant to Section
2.03(e) of acceptance of one or more Money Market Quotes, as applicable;
(h) receipt of the initial Borrowing Base Certificate,
showing the Borrowing Base as of last day of the Fiscal Quarter ending
prior to the Closing Date;
(i) receipt of the upfront fee payable to the Banks pursuant
to Section 2.06(a).
In addition, if the Borrower desires funding of a Fixed Rate Loan on the
Closing Date, the Agent shall have received, the requisite number of days
prior to the Closing Date, a funding indemnification letter satisfactory to
it, pursuant to which (i) the Agent and the Borrower shall have agreed upon
the interest rate, amount of Borrowing and Interest Period for such Fixed
Rate Loan, and (ii) the Borrower shall indemnify the Banks from any loss or
expense arising from the failure to close on the anticipated Closing Date
identified in such letter or the failure to borrow such Fixed Rate Loan on
such date.
SECTION 3.02. CONDITIONS TO ALL BORROWINGS. The obligation
of each Bank to make a Loan on the occasion of each Borrowing is subject to
the satisfaction of the following conditions except as expressly provided
in the last sentence of this Section 3.02:
(a) receipt by the Agent of a Notice of Borrowing or
acceptance of a Transaction Rate Quote or notification pursuant to Section
2.03(e) of acceptance of one or more Money Market Quotes, as applicable;
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower and each Guarantor contained in Article IV of this Agreement shall
be true on and as of the date of such Borrowing; and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i) and (ii) of Section 2.01(a) shall have
been satisfied.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the truth and
accuracy of the facts specified in paragraphs (b), (c) and (d) of this
Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower and (by incorporation by reference in the
Guaranty) the Guarantors, as expressly stated, each represents and warrants
that:
SECTION 4.01. PARTNERSHIP, TRUST AND CORPORATE EXISTENCE
AND POWER. (a) The Borrower is a limited partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its creation, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and
has all partnership powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except where any failure does not have and would not reasonably be expected
to cause a Material Adverse Effect.
(b) The General Partner is a real estate investment trust duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its creation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all trust powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted, except where any failure does not have and would not
reasonably be expected to cause a Material Adverse Effect. The only
general partner of borrower is and shall be AMLI Residential Properties
Trust. The only assets of the General Partner (other than cash held for
distribution to its shareholders) are and shall be its interest in the
Borrower and its interest in various partnerships in which it owns,
directly or indirectly, not more than 1% of the partnership interests and
in which Borrower owns, directly or indirectly, all of the remaining
partnership interests.
(c) Each Guarantor is a corporation or partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its creation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted, except where any failure does not have and would not
reasonably be expected to cause a Material Adverse Effect.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Borrower of
this Agreement, the Notes and the other Loan Documents and by the
Guarantors of the Guaranty and the Contribution Agreement (i) are within
the Borrower's or such Guarantor's partnership or corporate powers, (ii)
have been duly authorized by all necessary partnership or corporate action,
(iii) require no action by or in respect of or filing with, any
governmental body, agency or official, (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation
or of the certificate of incorporation, certificate of limited partnership,
partnership agreement, or by-laws of the Borrower or any Guarantor or of
any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or any Guarantor except where such contravention
or default does not have and would not reasonably be expected to cause a
Material Adverse Effect, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of Guarantor.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with
its terms, and the Notes, the Guaranty and the other Loan Documents, when
executed and delivered in accordance with this Agreement, will constitute
valid and binding obligations of the Borrower and the Guarantor parties
thereto, enforceable in accordance with their respective terms, PROVIDED
that the enforceability hereof and thereof is subject in each case to
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally.
SECTION 4.04. FINANCIAL INFORMATION. (a) The balance sheet
of the General Partner and the consolidated balance sheet of the Borrower
as of December 31, 1997 and the related consolidated statements of income,
shareholders' equity and cash flows for the Fiscal Year then ended,
reported on by KPMG Peat Marwick LLP, copies of which have been delivered
to each of the Banks, fairly present, in conformity with GAAP, the
financial position of the General Partner and the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such dates
and the (with respect to the Borrower, its consolidated) results of
operations and cash flows for such periods stated.
(b) Since December 31, 1997 there has been no event, act,
condition or occurrence having a Material Adverse Effect.
SECTION 4.05. NO LITIGATION. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower threatened, against
or affecting the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which could have a
Material Adverse Effect or which in any manner draws into question the
validity of or could impair the ability of the Borrower to perform its
obligations under, this Agreement, the Notes or any of the other Loan
Documents.
SECTION 4.06. COMPLIANCE WITH ERISA. (a) The Borrower and
each member of the Controlled Group have fulfilled their obligations under
the minimum funding standards of ERISA and the Code with respect to each
Plan and are in compliance in all material respects with the presently
applicable provisions of ERISA and the Code, and have not incurred any
liability to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled
Group is or ever has been obligated to contribute to any Multiemployer
Plan.
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. To
the best of the Borrower's knowledge, the Borrower and its Subsidiaries are
in compliance with all applicable laws, regulations and similar
requirements of governmental authorities, except where such compliance is
being contested in good faith through appropriate proceedings, except where
(i) such compliance is being contested in good faith through appropriate
proceedings or (ii) any failure does not have and would not reasonably be
expected to cause a Material Adverse Effect. There have been filed on
behalf of the Borrower and its Subsidiaries all material Federal, state and
local income, excise, property and other tax returns which are required to
be filed by them and all taxes due pursuant to such returns or pursuant to
any assessment received by or on behalf of the Borrower or any Subsidiary
have been paid, except: (A) ad valorem taxes not due and payable; and (B)
other liabilities, if (1) they are being contested in good faith and
against which the Borrower, Guarantor or Subsidiary has set up reserves in
accordance with GAAP, or (2) the aggregate amount involved is not in excess
of $5,000,000. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate. United States
income tax returns of the General Partner, the Borrower and its
Subsidiaries have not been examined.
SECTION 4.08. SUBSIDIARIES, CO-INVESTMENT PARTNERSHIPS AND
SERVICE COMPANIES. Each of the Borrower's Subsidiaries, Co-Investment
Partnerships and Service Companies is a corporation, partnership or limited
liability corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of creation, is duly qualified to
transact business in every jurisdiction where, by the nature of its
business, such qualification is necessary, and has all corporate or
partnership powers and all governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted, except
where any failure does not have and would not reasonably be expected to
cause a Material Adverse Effect. As of the Closing Date, the Borrower has
no Subsidiaries or Co-Investment Partnerships except for those Subsidiaries
and Co-Investment Partnerships listed on Schedule 4.08, which accurately
sets forth each such Subsidiary's and Co-Investment Partnership's complete
name and jurisdiction of creation. The Borrower will promptly notify the
Agent of the creation of any new Subsidiary, and each such new Subsidiary
shall be subject to the provisions of Section 5.28.
SECTION 4.09. INVESTMENT COMPANY ACT. Neither the Borrower
nor any of its Subsidiaries is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT. Neither
the General Partner, the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS. Each of the
General Partner, the Borrower and its Consolidated Subsidiaries has title
to its properties sufficient for the conduct of its business, and none of
such property which constitutes Eligible Property is subject to any Lien
except as permitted in Section 5.18.
SECTION 4.12. NO DEFAULT. Neither the General Partner, the
Borrower nor any of its Consolidated Subsidiaries is in default under or
with respect to any agreement, instrument or undertaking to which it is a
party or by which it or any of its property is bound which could have or
cause a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
SECTION 4.13. FULL DISCLOSURE. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is,
and all such information hereafter furnished by the Borrower to the Agent
or any Bank will be, true, accurate and complete in every material respect
or based on reasonable estimates on the date as of which such information
is stated or certified. The Borrower has disclosed to the Banks in writing
any and all facts which could have or cause a Material Adverse Effect.
SECTION 4.14. ENVIRONMENTAL MATTERS. (a) Except as set
forth in Schedule 4.14 (and, as approved by the Agent and the Banks in
writing, as such Schedule 4.14 is amended or supplemented from time to time
by the Borrower), to the best of the Borrower's knowledge, neither the
Borrower nor any Subsidiary is subject to any Environmental Liability which
could have or cause a Material Adverse Effect and neither the Borrower nor
any Subsidiary has been designated as a potentially responsible party under
CERCLA or under any state statute similar to CERCLA, which designation or
all such designations in effect at any time, taken as a whole, could have
or would cause a Material Adverse Effect. None of the Properties has been
identified on any current or proposed (i) National Priorities List under 40
C.F.R. Section 300, (ii) CERCLIS list or (iii) any list arising from a
state statute similar to CERCLA.
(b) Except as set forth in Schedule 4.14 (and, as approved by
the Agent and the Banks in writing, as such Schedule 4.14 is amended or
supplemented from time to time by the Borrower), to the best of the
Borrower's knowledge, no Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to
or from the Properties or are otherwise present at, on, in or under the
Properties, or, to the best of the knowledge of the Borrower, at or from
any adjacent site or facility, except for Hazardous Materials, such as
cleaning solvents, pesticides, petroleum product and other materials used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed, or otherwise handled in the ordinary course of
business in material compliance with all applicable Environmental
Requirements.
(c) The Borrower, and each of its Subsidiaries and
Affiliates, has procured all Environmental Authorizations necessary for the
conduct of its business, and is in compliance with all Environmental
Requirements in connection with the operation of the Properties and the
Borrower's, and each of its Subsidiary's and Affiliate's, respective
businesses, except where any such non-compliance would not have a Material
Adverse Effect.
SECTION 4.15. CAPITAL STOCK. All Capital Stock, beneficial
interests, debentures, bonds, notes and all other securities of the General
Partner, the Borrower and its Subsidiaries presently issued and outstanding
are validly and properly issued in all material respects in accordance with
all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares
of Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned by
the Borrower free and clear of any Lien or adverse claim. At least a
majority of the issued shares of Capital Stock of each of the Borrower's
other Subsidiaries (other than Wholly Owned Subsidiaries) is owned by the
Borrower, and all such shares which are owned by the Borrower are owned by
it free and clear of any Lien or adverse claim.
SECTION 4.16. MARGIN STOCK. Neither the Borrower nor any
of its Subsidiaries is engaged principally, or as a significant part of its
business, in the business of purchasing or carrying any Margin Stock, and
no part of the proceeds of any Loan 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 T, U or X.
SECTION 4.17. INSOLVENCY. After giving effect to the
execution and delivery of the Loan Documents and the making of the Loans
under this Agreement: (i) the Borrower will not (x) be "insolvent," within
the meaning of such term as used in O.C.G.A. Section 18-2-22 or as defined
in Section 101 of the "Bankruptcy Code", or Section 2 of either the "UFTA"
or the "UFCA", or as defined or used in any "Other Applicable Law" (as
those terms are defined below), or (y) be unable to pay its debts generally
as such debts become due within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA, or (z)
have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated, within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA;
and (ii) the obligations of the Borrower under the Loan Documents and with
respect to the Loans will not be rendered avoidable under any Other
Applicable Law. For purposes of this Section 4.17, "Bankruptcy Code" means
Title 11 of the United States Code, "UFTA" means the Uniform Fraudulent
Transfer Act, "UFCA" means the Uniform Fraudulent Conveyance Act, and
"Other Applicable Law" means any other applicable law pertaining to
fraudulent transfers or acts voidable by creditors, in each case as such
law may be amended from time to time.
SECTION 4.18. INSURANCE. The Borrower and each of its
Subsidiaries has (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance
companies, all-risk insurance in at least such amounts as are usually
obtained in the same general area by companies of established repute
engaged in the same or similar business.
SECTION 4.19. REAL ESTATE INVESTMENT TRUST; SOLE GENERAL
PARTNER. The General Partner is qualified under the Code as a real estate
investment trust and is the sole general partner of the Borrower.
SECTION 4.20. YEAR 2000 COMPLIANCE. The Borrower (i) has
developed, or is developing, a program to evaluate the ability of its
computer hardware and software systems and programs to handle effectively
data that includes dates after December 31, 1999 ("Year 2000 Compliant"),
and (ii) has taken, or is in the process of taking, reasonable corrective
action as necessary to make its computer hardware and software systems Year
2000 Compliant by December 31, 1999. Based on the foregoing, the Borrower
does not expect that any Material Adverse Effect will exist or occur on or
after January 1, 2000 as a result of any of its computer hardware or
software systems or programs failing to be Year 2000 Compliant.
ARTICLE V
COVENANTS
The Borrower and (by incorporation by reference in the
Guaranty) the Guarantors agree that, so long as any Bank has any Commitment
hereunder or any amount payable hereunder or under any Note remains unpaid:
SECTION 5.01. INFORMATION. The Borrower will deliver to
each of the Banks:
(a) as soon as available and in any event within 90 days
after the end of each Fiscal Year, a consolidated balance sheet of the
General Partner and a consolidated balance sheet of the Borrower and the
Guarantors as of the end of such Fiscal Year and the related (with respect
to the Borrower, its consolidated) statements of income, shareholders'
equity and cash flows for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous fiscal year, in either case
audited by KPMG Peat Marwick LLP or other independent public accountants of
nationally recognized standing, with such audit opinion to be free of
material exceptions and qualifications not acceptable to the Required
Banks;
(b) as soon as available and in any event within 45 days
after the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
(with respect to the Borrower, its consolidated) balance sheet of the
Borrower and the Guarantors as of the end of such Fiscal Quarter and the
related statement of income and statement of cash flows for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such
Fiscal Quarter, setting forth in each case in comparative form the figures
for the corresponding Fiscal Quarter and the corresponding portion of the
previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by an
Executive Officer of the General Partner;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of EXHIBIT F (a "Compliance Certificate"), of an
Executive Officer of the General Partner (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 5.05, 5.15, 5.16, 5.17, 5.20
through 5.24, inclusive, and 5.26 on the date of such financial statements
and (ii) stating whether any Default exists on the date of such certificate
and, if any Default then exists, setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(d) within 5 Domestic Business Days after the Borrower
becomes aware of the occurrence of any Default, a certificate of the chief
financial officer or the chief accounting officer of the Borrower setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA; (iii)
receives notice from the PBGC under Title IV of ERISA of an intent to
terminate or appoint a trustee to administer any Plan; or (iv) contributes
to or becomes obligated to contribute to a Multiemployer Plan, or incurs
any withdrawal liability with respect to a Multiemployer Plan; THEN a copy
of any such notice referred to in clauses (i) through (iii) of this
paragraph, and a detailed description of the amount and the circumstances
of such contribution or withdrawal liability obligation referred to in
clause (iv) of this paragraph;
(h) within 60 days after the end of each Fiscal Quarter, and
more frequently, at the election of the Borrower, a Borrowing Base
Certificate as of the last day of the Fiscal Quarter just ended;
(i) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, operating
statements for each Eligible Property for the period covered by such
financial statements; and
(j) from time to time such additional information regarding
the financial position or business of the Borrower and the Guarantors as
the Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS.
The Borrower, the Guarantors and the General Partner will (i) keep proper
books of record and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and transactions in
relation to its business and activities; and (ii) permit representatives of
any Bank at such Bank's expense prior to the occurrence of a Default and at
the Borrower's expense after the occurrence of a Default to visit and
inspect any of their respective properties, to examine and make abstracts
from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower, the General
Partner and the Guarantors agree to cooperate and assist in such visits and
inspections, in each case at such reasonable times and as often as may
reasonably be desired.
SECTION 5.03. MAINTENANCE OF EXISTENCE. The Borrower, the
General Partner and the Guarantors will, subject to Sections 5.04 and 5.05,
each maintain its respective partnership, corporate and trust existence and
carry on its respective business in substantially the same manner and in
substantially the same fields as such business is now carried on and
maintained.
SECTION 5.04. DISSOLUTION. Neither the Borrower nor any of
the Guarantors shall suffer or permit dissolution or liquidation either in
whole or in part or redeem or retire any shares of its own stock or that of
any Guarantor, except for Partner Conversions.
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS.
Neither the Borrower, the General Partner nor any of the Guarantors will
consolidate or merge with or into, or acquire all or substantially all of
the assets or stock of any other Person, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other Person,
PROVIDED that:
(i) the Borrower may merge with another Person if (x) such
Person was organized under the laws of the United States of America or one
of its states, (y) the Borrower is the limited partnership surviving such
merger and (z) immediately after giving effect to such merger, no Default
shall have occurred and be continuing;
(ii) Guarantors may merge with one another, and the Guarantors
may sell, lease or otherwise transfer assets to the Borrower;
(iii) the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not prohibit,
during any Fiscal Quarter, the acquisition of all or substantially all of
the assets or stock of another Person unless the aggregate assets or stock
acquired in a single acquisition or series of related acquisitions of all
or substantially all of the assets or stock of another Person by the
Borrower, the General Partner and the Guarantors during such Fiscal Quarter
constituted more than 20% of Gross Asset Value at the end of the most
recent Fiscal Quarter immediately preceding such Fiscal Quarter; and
(iv) the foregoing limitation on the sale, lease or other
transfer of assets shall not prohibit, during any Fiscal Quarter, a
transfer of assets (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred, when
combined with all other assets transferred, by the Borrower, the General
Partner and the Guarantors during such Fiscal Quarter and the immediately
preceding 3 Fiscal Quarters, constituted more than 20% of Gross Asset Value
at the end of the most recent Fiscal Year immediately preceding such Fiscal
Quarter.
In the case of any Guarantor which transfers substantially all of its
assets pursuant to clause (iv) of the preceding sentence, and in the case
of any Guarantor the stock of which is being sold and with respect to which
clause (iv) would have been satisfied if the transaction had been a sale of
assets of such Guarantor, such Guarantor may dissolve and shall be entitled
to obtain from the Agent a written release from the Guaranty, PROVIDED that
it can demonstrate to the reasonable satisfaction of the Agent that (A) it
has repaid in full all Debt owed to the Borrower or any other Guarantor and
(B) such sale was for cash and in the case of an asset transfer, the net
cash proceeds received in connection therewith are being distributed to the
Borrower as part of such dissolution, and upon obtaining such written
release, it shall no longer be a Guarantor for any purpose hereunder.
SECTION 5.06. USE OF PROCEEDS. The proceeds of the Loans
may be used for payment in full of the existing deed to secure debt in
favor of Wachovia covering the Sope Creek Properties, construction
financing, working capital and general commercial purposes; PROVIDED,
HOWEVER, that no portion of the proceeds of the Loans will be used by the
Borrower or any Subsidiary (i) in connection with, whether directly or
indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other
corporation, unless such tender offer or other acquisition is to be made on
a negotiated basis with the approval of the Board of Directors of the
Person to be acquired, and the provisions of Section 5.17 would not be
violated, (ii) directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any Margin Stock, or
(iii) for any purpose in violation of any applicable law or regulation.
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. The
Borrower, the General Partner and the Guarantors will, and will cause each
member of the Controlled Group to, comply with applicable laws (including
but not limited to ERISA), regulations and similar requirements of
governmental authorities (including but not limited to PBGC), except where
(i) the necessity of such compliance is being contested in good faith
through appropriate proceedings diligently pursued or (ii) any failure does
not have and would not reasonably be expected to cause a Material Adverse
Effect. The Borrower, the General Partner and the Guarantors will pay
promptly when due all taxes, assessments, governmental charges, claims for
labor, supplies, rent and other obligations which, if unpaid, might become
a lien against the Property of the Borrower or any Guarantor, except (i)
liabilities being contested in good faith and against which, if requested
by the Agent, the Borrower will set up reserves in accordance with GAAP, or
(2) the aggregate amount involved is not in excess of $5,000,000.
SECTION 5.08. INSURANCE. The Borrower, the General Partner
and the Guarantors will maintain (either in the name of the Borrower, the
General Partner or in such Guarantor's own name), with financially sound
and reputable insurance companies, all-risk insurance on all its property
in at least such amounts as are usually obtained in the same general area
by companies of established repute engaged in the same or similar business.
SECTION 5.09. CHANGE IN FISCAL YEAR. The Borrower and each
of the Guarantors agrees that it will not change its Fiscal Year without
the consent of the Required Banks.
SECTION 5.10. MAINTENANCE OF PROPERTY. The Borrower, the
General Partner and each Guarantor shall maintain in all material respects
all of its Properties and assets in good condition, repair and working
order, ordinary wear and tear excepted.
SECTION 5.11. ENVIRONMENTAL NOTICES. The Borrower and each
Guarantor shall furnish to the Banks and the Agent prompt written notice of
all Environmental Liabilities, pending, threatened or anticipated
Environmental Proceedings, Environmental Notices, Environmental Judgments
and Orders, and Environmental Releases at, on, in, under or in any way
affecting the Properties or any adjacent property, and all facts, events,
or conditions that could lead to any of the foregoing, which has had or
would reasonably be expected to cause a Material Adverse Effect.
SECTION 5.12. ENVIRONMENTAL MATTERS. The Borrower and the
Guarantors will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage
at, or otherwise handle, or ship or transport to or from the Properties any
Hazardous Materials except for Hazardous Materials such as cleaning
solvents, pesticides and other similar materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed,
managed, or otherwise handled in minimal amounts in the ordinary course of
business in compliance with all applicable Environmental Requirements,
except where any failure does not have and would not reasonably be expected
to cause a Material Adverse Effect.
SECTION 5.13. ENVIRONMENTAL RELEASE. The Borrower and each
Guarantor agrees that upon the occurrence of an Environmental Release at or
on any of the Properties it will act immediately to investigate the extent
of, and to take appropriate remedial action to eliminate, such
Environmental Release, whether or not ordered or otherwise directed to do
so by any Environmental Authority, except where any Environmental Release
does not have and would not reasonably be expected to cause a Material
Adverse Effect.
SECTION 5.14. TRANSACTIONS WITH AFFILIATES. Neither the
General Partner, the Borrower nor any of the Guarantors shall enter into,
or be a party to, any transaction with any Affiliate of the Borrower or
such Guarantor (which Affiliate is not the General Partner, the Borrower or
a Guarantor), except as permitted by law and in the ordinary course of
business and pursuant to reasonable terms and are no less favorable to the
General Partner, Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an
Affiliate.
SECTION 5.15. RESTRICTED PAYMENTS. The Borrower's
Restricted Payments in any calendar year shall not exceed 95% of Funds From
Operations for such period, unless (i) the Borrower must pay out an amount
in excess of 95% of Funds From Operations to permit the General Partner to
preserve its status as a real estate investment trust under the applicable
provision of the Code, or (ii) the Borrower declares one or more capital
gains dividends within such calendar year (in which event the amount of
additional Restricted Payments that may be made as a result of such
declaration as provided in this clause (ii) shall not exceed the greater of
(A) the income tax liability of the Borrower's partners with respect
thereto and (B) $1,500,000). In the event that the Borrower receives an
Investment Grade Debt Rating and so long as that rating (or a better
rating) is affirmed during each year, the Borrower's Restricted Payments in
any calendar year will be limited to 100% of Funds from Operations for such
calendar year with the same exceptions contained in clauses (i) and (ii) of
this Section 5.15.
SECTION 5.16. LOANS OR ADVANCES. Neither the Borrower, the
General Partner nor any of the Guarantors shall make loans or advances to
any Person except as permitted by Section 5.17 and except:
(i) deposits required by government agencies or public
utilities;
(ii) loans or advances from the Borrower to a Guarantor or from
a Guarantor to the Borrower or another Guarantor;
(iii) loans and advances made to (A) Amli Institutional
Advisors, Inc. as part of its initial capital structure in the amount of
$500,000, and (B) Amli Management Company as part of its initial capital
structure in the amount of $3,000,000;
(iv) loans or advances to employees, officers and directors not
exceeding $1,000,000 in the aggregate principal amount outstanding at any
time, in each case made in the ordinary course of business, but excluding
loans and advances described in clause (v);
(v) loans and advances to employees, officers and directors to
enable them to buy partnership units in the Borrower or stock in the
General Partner which are secured by a pledge of such stock, so long as the
aggregate amount of all such loans does not exceed $10,000,000;
(vi) working capital loans and advances to Amli Residential
Construction, Inc. for use in the ordinary course of business and
consistent with past practices, so long as the aggregate principal amount
outstanding at any time for all such loans and advances is not in excess of
$15,000,000;
(vii) loans and advances to Co-Investment Partnerships in an
aggregate amount which, together with Investments in Co-Investment
Partnerships, does not exceed (i) so long as the Borrower has no Investment
Grade Debt Rating, 15% of Gross Asset Value and (ii) while the Borrower has
an Investment Grade Debt Rating, 20% of Gross Asset Value; and/or
(viii) other loans and advances by the Borrower, the General
Partner and the Guarantors to any Person other than a Co-Investment
Partnership which (x) are evidenced by notes (and, if requested by the
Agent, acting at the direction of the Required Banks, with such notes,
together with any related mortgage, have been assigned to and pledged with
the Agent, for the benefit of itself and the Banks, as security for the
payment of all obligations of the Borrower to the Agent and the Banks
hereunder) and (y) are in an amount which, together with Investments
permitted by clause (vii) of Section 5.17, do not exceed 5% of Gross Asset
Value as of the end of the most recent Fiscal Quarter;
PROVIDED that after giving effect to the making of any loans, advances or
deposits permitted by this Section, no Default shall be in existence or be
created thereby.
SECTION 5.17. INVESTMENTS. Investments of the Borrower as
of the Closing Date (other than in Subsidiaries and Co-Investment
Partnerships, which are set forth in Schedule 4.08), are set forth on
Schedule 5.17. Neither the Borrower, the General Partner nor any of the
Guarantors shall make Investments after the Closing Date in any Person
except as permitted by Section 5.16 and except Investments in:
(i) direct obligations of the United States Government maturing
within one year;
(ii) certificates of deposit issued by a commercial bank whose
credit is satisfactory to the Agent;
(iii) commercial paper rated A1 or the equivalent thereof by
S&P or P1 or the equivalent thereof by ▇▇▇▇▇'▇ and in either case maturing
within 6 months after the date of acquisition;
(iv) tender bonds the payment of the principal of and interest
on which is fully supported by a letter of credit issued by a United States
bank whose long-term certificates of deposit are rated at least A or the
equivalent thereof by S&P and A or the equivalent thereof by ▇▇▇▇▇'▇;
(v) Investments consisting of the acquisition of all or
substantially all of the assets or stock of another Person permitted by
Section 5.05(iii);
(vi) Investments in Co-Investment Partnerships permitted by
Section 5.26; and/or
(vii) other Investments by the Borrower, the General Partner
and the Guarantors, other than in Co-Investment Partnerships, in an amount
which, together with loans and advances permitted by clause (viii) of
Section 5.16, do not exceed 5% of Gross Asset Value as of the end of the
most recent Fiscal Quarter;
PROVIDED, HOWEVER, immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
SECTION 5.18. LIENS ON ELIGIBLE PROPERTY. Neither the
Borrower nor any Guarantor will create, assume or suffer to exist any Lien
on any Eligible Property now owned or hereafter acquired by it, except: (i)
Liens incidental to the conduct of its business or the ownership of its
assets which (x) do not secure Debt and (y) do not in the aggregate
materially detract from the value of its assets or materially impair the
use thereof in the operation of its business; and (ii) as permitted by the
proviso contained in the definition of Eligible Property.
SECTION 5.19. RESTRICTIONS ON ABILITY OF GUARANTORS TO PAY
DIVIDENDS. The Borrower shall not permit any Guarantor to, directly or
indirectly, create or otherwise cause or suffer to exist or become
effective any contractual encumbrance or restriction on the ability of any
such Guarantor to (i) pay any dividends or make any other distributions on
its Capital Stock or any other interest or (ii) make or repay any loans or
advances to the Borrower or the parent of such Guarantor.
SECTION 5.20. RATIO OF TOTAL CONSOLIDATED LIABILITIES TO
UNDEPRECIATED BOOK ASSET VALUE. The ratio of Total Consolidated Liabilities
to Undepreciated Book Asset Value shall at all times be equal to or less
than 0.60 to 1.0.
SECTION 5.21. RATIO OF TOTAL SECURED DEBT TO GROSS ASSET
VALUE. The ratio of Total Secured Debt to Gross Asset Value shall at all
times be equal to or less than 0.45 to 1.0.
SECTION 5.22. RATIO OF EBITDA TO CONSOLIDATED INTEREST
EXPENSE. The ratio of EBITDA to Consolidated Interest Expense for the
Fiscal Quarter just ended will not be less than 2.0 to 1.0, calculated at
the end of each Fiscal Quarter.
SECTION 5.23. RATIO OF UNENCUMBERED ASSETS TO UNSECURED
FUNDED DEBT. The ratio of Unencumbered Assets to Unsecured Funded Debt
shall at all times be equal to or greater than 1.75 to 1.00.
SECTION 5.24. RATIO OF UNSECURED NET OPERATING INCOME TO
UNSECURED INTEREST EXPENSE. The ratio of Unsecured Net Operating Income to
Unsecured Interest Expense shall at all times be equal to or greater than
2.0 to 1.0.
SECTION 5.25. ADDITIONAL DEBT. Neither the Borrower, the
General Partner nor any Guarantor will create, incur, assume or suffer to
exist any Debt except (i) Debt in existence on June 27, 1997,; (ii) Debt of
any Guarantor to the Borrower, (iii) publicly held debt having a maturity
later than the Termination Date, and (iv) other Debt which is privately
held and which does not constitute revolving credit.
SECTION 5.26. CO-INVESTMENT PARTNERSHIPS DEPRECIATED BOOK
VALUE. The amount of the depreciated book value set forth on the line item
designated as "Investments in Partnerships" on the Borrower's consolidated
balance sheet, together with the aggregate amount of loans and advances to
Co-Investment Partnerships permitted by clause (vii) of Section 5.16, shall
not at any time exceed (i) so long as the Borrower does not have an
Investment Grade Debt Rating, 15% of Gross Asset Value and (ii) while the
Borrower has an Investment Grade Debt Rating, 20% of Gross Asset Value.
SECTION 5.27. STATUS AS A REIT. The General Partner shall
at all times maintain its status as a real estate investment trust under
the Code and remain sole general partner of the Borrower. Neither the
Borrower nor the General Partner will agree to amend or otherwise modify
the provisions of Section 3.2 of the limited partnership agreement of the
Borrower, as in effect on the date of this Agreement, without the prior
written consent of the Required Banks (which consent the Banks hereby agree
not to unreasonably withhold or delay).
SECTION 5.28. NEW SUBSIDIARIES TO BECOME GUARANTORS. Any
Subsidiary acquired or created after June 27, 1997, (other than Co-
Investment Partnerships), must become a Guarantor promptly upon its
acquisition or creation, in each case by (x) executing and delivering to
the Agent a counterpart of the Guaranty and a counterpart of the
Contribution Agreement, thereby becoming a party to each of them, (y)
delivering to the Agent an opinion of counsel to such Subsidiary, in
substantially the form and substance of EXHIBIT B, but limited to such
Subsidiary and the Guaranty and Contribution Agreement, and excluding
paragraph 2 thereof, and (z) delivering to the Agent documents pertaining
to the Subsidiary reasonably requested by the Agent of the types described
in paragraph (f) of Section 3.01, but relating to the Guaranty and the
Contribution Agreement.
SECTION 5.29. SERVICE COMPANY DISTRIBUTIONS. The Borrower
agrees that (i) it shall not amend or otherwise modify any corporate
charter of or similar agreement relating to any Service Company which would
decrease the amount of preferred stock dividends or yield with respect
thereto which would be received by the Borrower, and (ii) shall hold at all
times an Economic Percentage in each Service Company equal to at least 75%.
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within 5 Domestic
Business Days after such interest shall become due, or shall fail to pay
any fee or other amount payable hereunder within 5 Domestic Business Days
after such fee or other amount becomes due; or
(b) the Borrower or the General Partner shall fail to observe
or perform any covenant contained in Sections 5.01(d), 5.01(h), 5.02(ii),
5.03 through 5.06, inclusive, Sections 5.16 through 5.24, inclusive, or
Sections 5.26 through 5.28, inclusive; or
(c) the Borrower, the General Partner or any Guarantor shall
fail to observe or perform any covenant or agreement contained or
incorporated by reference in this Agreement (other than those covered by
paragraph (a) or (b) above) or the Guaranty and such failure shall not have
been cured within 30 days after the earlier to occur of (i) written notice
thereof has been given to the Borrower, the General Partner or such
Guarantor by the Agent at the request of any Bank or (ii) the Borrower, the
General Partner or such Guarantor otherwise becomes aware of any such
failure; or
(d) any representation, warranty, certification or statement
made by the Borrower, the General Partner or any Guarantor in Article IV of
this Agreement or the Guaranty or in any certificate, financial statement
or other document delivered pursuant to this Agreement or the Guaranty
shall prove to have been incorrect or misleading in any material respect
when made (or deemed made); or
(e) the Borrower, the General Partner or any Guarantor shall
fail to make any payment in respect of the ▇▇▇▇▇▇ Trust Facility or Debt in
an aggregate principal amount outstanding in excess of $10,000,000 (other
than the Notes), or under any Hedging Agreement with a termination value in
excess of $10,000,000 (computed in accordance with a method approved by the
International Swap Dealers Association and agreed to by such Person in the
applicable Hedging Agreement) when due or within any applicable grace
period; PROVIDED, HOWEVER, that there shall be excluded from the foregoing
any Non-Recourse Mortgage Debt which, on a cumulative basis since June 27,
1997, does not exceed $25,000,000 in aggregate principal amount; or
(f) any event or condition (other than the voluntary
termination of the ▇▇▇▇▇▇ Trust Facility, by the Borrower or ▇▇▇▇▇▇ Trust
and Savings Bank, while no uncured "default" or "event of default" (as
defined therein) has occurred and then exists) shall occur which results in
the acceleration of the maturity or termination of the ▇▇▇▇▇▇ Trust
Facility or the acceleration of the maturity of Debt (other than the
voluntary termination of a credit facility, by the Borrower or the creditor
thereunder, while no uncured "default" or "event of default" (as defined
therein) has occurred and then exists) in an aggregate principal amount
outstanding in excess of $10,000,000 of the Borrower, the General Partner
or any Guarantor (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower, the General Partner or
any Guarantor) or enables (or, with the giving of notice or lapse of time
or both, would enable) the holders of such Debt or commitment or any Person
acting on such holders' behalf to accelerate the maturity thereof or
terminate any such commitment (including, without limitation, any required
mandatory prepayment or "put" of such Debt to the Borrower, the General
Partner or any Guarantor); PROVIDED, HOWEVER, that there shall be excluded
from the foregoing any Non-Recourse Mortgage Debt which does not exceed
$25,000,000 in aggregate principal amount; or
(g) the Borrower, the General Partner or any Guarantor shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability or failure generally, to
pay its debts as they become due, or shall take any action to authorize any
of the foregoing; or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower, the General Partner or any Guarantor
seeking liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower, the General Partner or any
Guarantor under the federal bankruptcy laws as now or hereafter in effect;
or
(i) the Borrower, the General Partner, any Guarantor or any
member of the Controlled Group shall fail to pay when due any material
amount which it shall have become liable to pay to the PBGC or to a Plan
under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
shall be filed under Title IV of ERISA by the Borrower, the General
Partner, any Guarantor or any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Subsection (c) of section 4041 of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan
or Plans or a proceeding shall be instituted by a fiduciary of any such
Plan or Plans to enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within 30 days thereafter; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(j) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $10,000,000 shall be rendered against
the Borrower, the General Partner or any Guarantor and such judgment or
order shall continue unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower,
the General Partner or any Guarantor under Section 6323 of the Code or a
lien of the PBGC shall be filed against the Borrower, the General Partner
or any Guarantor under Section 4068 of ERISA and in either case such lien
shall remain undischarged for a period of 25 days after the date of filing;
or
(l) the occurrence of any event, act, occurrence, or
condition which the Required Banks determine either does or has a
reasonable probability of causing a Material Adverse Effect.
then, and in every such event, (i) the Agent shall, if requested by the
Required Banks, by notice to the Borrower terminate the Commitments and the
obligation to make Swing Loans and they shall thereupon terminate, (ii) any
Bank may terminate its obligation to fund a Money Market Loan in connection
with any relevant Money Market Quote, and (iii) the Agent shall, if
requested by the Required Banks, by notice to the Borrower declare the
Notes (together with accrued interest thereon), and all other amounts
payable hereunder and under the other Loan Documents, to be, and the Notes
(together with accrued interest thereon), and all other amounts payable
hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower together
with interest at the Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default; PROVIDED that if any
Event of Default specified in paragraph (g) or (h) above occurs with
respect to the Borrower, without any notice to the Borrower or any other
act by the Agent or the Banks, the Commitments and the obligations to make
Swing Loans shall thereupon terminate and the Notes (together with accrued
interest thereon) and all other amounts payable hereunder and under the
other Loan Documents shall automatically and without notice become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower together
with interest thereon at the Default Rate accruing on the principal amount
thereof from and after the date of such Event of Default. Notwithstanding
the foregoing, the Agent shall have available to it all other remedies at
law or equity, and shall exercise any one or all of them at the request of
the Required Banks.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give
notice to the Borrower of any Default under Section 6.01(c) promptly upon
being requested to do so by any Bank and shall thereupon notify all the
Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES. Each
Bank hereby irrevocably appoints and authorizes the Agent to act as its
agent hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof,
together with such other powers as are reasonably incidental thereto. The
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; (b) shall not be responsible to the Banks 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 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 the 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 the 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. The Agent may employ agents
and 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 VII are solely for the
benefit of the Agent and the Banks, and the Borrower 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, the Agent shall act solely as agent of the Banks and
does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Borrower. The
duties of the Agent shall be ministerial and administrative in nature, and
the Agent shall not have by reason of this Agreement or any other Loan
Document a fiduciary relationship in respect of any Bank.
SECTION 7.02. RELIANCE BY AGENT. The 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 the Agent. As to any matters not expressly provided for by
this Agreement or any other Loan Document, the 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 of the Banks.
SECTION 7.03. DEFAULTS. The Agent shall not be deemed to
have knowledge of the occurrence of a Default or an Event of Default (other
than the nonpayment of principal of or interest on the Loans) unless the
Agent has received notice from a Bank or the Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice of the
occurrence of a Default or an Event of Default, the Agent shall give prompt
notice thereof to the Banks. The Agent shall give each Bank 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. The Agent
shall (subject to Section 9.06) take such action hereunder with respect to
such Default or Event of Default as shall be directed by the Required
Banks, PROVIDED that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests of the Banks.
SECTION 7.04. RIGHTS OF AGENT AND ITS AFFILIATES AS A BANK.
With respect to the Loans made by the Agent and any Affiliate of the Agent,
Wachovia in its capacity as a Bank hereunder and any Affiliate of the Agent
or such Affiliate in its capacity as a Bank 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 the Agent, and the term "Bank" or
"Banks" shall, unless the context otherwise indicates, include Wachovia in
its individual capacity and any Affiliate of the Agent in its individual
capacity. The Agent and any Affiliate of the Agent 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 the
General Partner or the Borrower (and any of the Borrower's Affiliates) as
if Wachovia were not acting as the Agent, and the Agent and any Affiliate
of the Agent may accept fees and other consideration from the Borrower (in
addition to any agency fees and arrangement fees heretofore agreed to
between the Borrower and the Agent) for services in connection with this
Agreement or any other Loan Document or otherwise without having to account
for the same to the Banks.
SECTION 7.05. INDEMNIFICATION. Each Bank severally agrees
to indemnify the Agent and the Documentation Agent, to the extent the Agent
and the Documentation Agent shall not have been reimbursed by the Borrower,
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 the Agent or the Documentation 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 an Event
of 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
the Agent or the Documentation Agent. If any indemnity furnished to the
Agent or the Documentation Agent for any purpose shall, in the opinion of
the Agent or the Documentation Agent, be insufficient or become impaired,
the Agent or the Documentation Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
SECTION 7.06 CONSEQUENTIAL DAMAGES. NEITHER THE AGENT NOR ANY
BANK SHALL BE RESPONSIBLE OR LIABLE TO ANY BANK, THE 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.
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER. The 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 or
transfer thereof shall have been filed with the Agent and the provisions of
Section 9.08(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 Note or of any Note
or Notes issued in exchange therefor or replacement thereof.
SECTION 7.08. NONRELIANCE ON AGENT AND OTHER BANKS. Each
Bank agrees that it has, independently and without reliance on the Agent or
any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Borrower and
decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Bank, 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. The Agent
shall not be required to keep itself (or any Bank) informed as to the
performance or observance by the Borrower 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 the Borrower or
any other Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Borrower or any other Person (or any of their Affiliates) which may come
into the possession of the Agent.
SECTION 7.09. FAILURE TO ACT. Except for action expressly
required of the Agent hereunder or under the other Loan Documents, the
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 the Banks of their indemnification obligations under
Section 7.05 against any and all liability and expense which may be
incurred by the Agent by reason of taking, continuing to take, or failing
to take any such action.
SECTION 7.10. RESIGNATION OR REMOVAL OF AGENT. Subject to
the appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by giving notice thereof to the Banks and the
Borrower and the Agent may be removed at any time with or without cause by
the Required Banks. Upon any such resignation or removal, the Required
Banks shall have the right to appoint a successor Agent, subject to the
consent of the Borrower (which shall not be unreasonably withheld or
delayed), except that no such consent shall be required during the
continuance of a Default. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Agent's notice of resignation or the
Required Banks' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Banks, appoint a successor Agent, subject to the consent
of the Borrower (which shall not be unreasonably withheld or delayed),
except during the continuance of a Default. Any successor 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 Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VII 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 Agent hereunder.
SECTION 7.11. DOCUMENTATION AGENT. The Documentation
Agent, it its capacity as such, shall have no duties or responsibilities
under this Agreement or any of the other Loan Documents.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE
INADEQUATE OR UNFAIR. If on or prior to the first day of any Interest
Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately and
fairly reflect the cost to such Banks of funding the Euro-Dollar Loans for
such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make Euro-Dollar Loans specified in such notice
shall be suspended. Unless the Borrower notifies the Agent at least 2
Domestic Business Days before the date of any Borrowing of such Euro-Dollar
Loans for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, such Borrowing shall instead be made as
a Base Rate Borrowing.
SECTION 8.02. ILLEGALITY. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein
or any existing or future law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof (any such agency being referred to as an "Authority"
and any such event being referred to as a "Change of Law"), or compliance
by any Bank (or its Lending Office) with any request or directive (whether
or not having the force of law) of any Authority shall make it unlawful or
impossible for any Bank (or its Lending Office) to make, maintain or fund
its Euro-Dollar Loans and such Bank shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended.
Before giving any notice to the Agent pursuant to this Section, such Bank
shall designate a different Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank,
be otherwise disadvantageous to such Bank. If such Bank shall determine
that it may not lawfully continue to maintain and fund any of its
outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Bank, together with
accrued interest thereon and any amount due such Bank pursuant to Section
8.05(a). Concurrently with prepaying each such Euro-Dollar Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal amount from
such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks),
and such Bank shall make such a Base Rate Loan.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If
after the date hereof, a Change of Law or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the
force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation, any
such requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on the
United States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Notes or its
obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of making or maintaining any Loan, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after
demand by such Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such
Bank could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time
to time, within 15 days after demand by such Bank, the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank
for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent
of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and
will designate a different Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
(e) No Bank, Assignee or other Transferee will charge
Borrower for increased costs or reduced returns pursuant to Sections
8.03(a) or (b) at a higher rate than such Bank, Assignee or other
Transferee charges its other similarly situated borrowers or customers.
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR EURO-DOLLAR
LOANS. If (i) the obligation of any Bank to make or maintain any Euro-
Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03, and the Borrower shall, by at
least 5 Euro-Dollar Business Days' prior notice to such Bank through the
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (in all cases
interest and principal on such Loans shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-
Dollar Loans shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. COMPENSATION. Upon the request of any Bank,
delivered to the Borrower and the Agent, the Borrower shall pay to such
Bank such amount or amounts as shall compensate such Bank for any loss,
cost or expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10,
2.11, 6.01, 8.02 or otherwise) of a Fixed Rate Loan on a date other than
the last day of an Interest Period for such Loan; or
(b) any failure by the Borrower to prepay a Fixed Rate Loan
on the date for such prepayment specified in the relevant notice of
prepayment hereunder; or
(c) any failure by the Borrower to borrow a Fixed Rate Loan
on the date for the Fixed Rate Borrowing of which such Fixed Rate Loan is a
part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02 or notification of acceptance of Money Market Quotes pursuant
to Section 2.03(e);
such compensation to include, without limitation, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on
the amount so paid or prepaid or not prepaid or borrowed for the period
from the date of such payment, prepayment or failure to prepay or borrow to
the last day of the then current Interest Period for such Fixed Rate Loan
(or, in the case of a failure to prepay or borrow, the Interest Period for
such Fixed Rate Loan which would have commenced on the date of such failure
to prepay or borrow) at the applicable rate of interest for such Fixed Rate
Loan provided for herein over (y) the amount of interest (as reasonably
determined by such Bank) such Bank would have paid on deposits in Dollars
of comparable amounts having terms comparable to such period placed with it
by leading banks in the London interbank market (if such Fixed Rate Loan is
a Euro-Dollar Loan).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including
telecopier or similar writing, except as hereafter expressly provided) and
shall be given to such party at its address or telecopier number set forth
on the signature pages hereof or such other address or telecopier number as
such party may hereafter specify for the purpose by notice to each other
party. Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section and the confirmation is
received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as
aforesaid or (iii) if given by any other means, when delivered at the
address specified in this Section; PROVIDED that notices to the Agent under
Article II or Article VIII shall not be effective until received.
Notwithstanding the foregoing, notices pursuant to Section 6.01 and service
of process pursuant to Section 9.16(d) shall not be given by telecopier.
SECTION 9.02. NO WAIVERS. No failure or delay by the Agent
or any Bank in exercising any right, power or privilege hereunder or under
any Note or other Loan Document shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES. The Borrower
shall pay (i) all out-of-pocket expenses of the Agent, including fees and
disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default
occurs, all out-of-pocket expenses incurred by the Agent and the Banks,
including fees and disbursements of counsel, in connection with such
Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing this
Agreement and the other Loan Documents. The Borrower shall indemnify the
Agent and each Bank against any transfer taxes, documentary taxes,
assessments or charges made by any Authority by reason of the execution and
delivery of this Agreement or the other Loan Documents.
SECTION 9.04. INDEMNIFICATION. The Borrower shall
indemnify the Agent, the Documentation Agent, the Banks and each Affiliate
thereof and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject,
insofar as such losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by the Borrower of the proceeds of
any extension of credit by any Bank hereunder or breach by the Borrower of
this Agreement or any other Loan Document or from any investigation,
litigation (including, without limitation, any actions taken by the Agent
or any of the Banks to enforce this Agreement or any of the other Loan
Documents) or other proceeding (including, without limitation, any
threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse the Agent the Documentation Agent and each Bank,
and each Affiliate thereof and their respective directors, officers,
employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation
or proceeding; but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the gross negligence or wilful misconduct
of the Person to be indemnified.
SECTION 9.05. SETOFF; SHARING OF SETOFFS. (a) The Borrower
hereby grants to the Agent and each Bank (and Wachovia, as to the Swing
Loans) a lien for all indebtedness and obligations owing to them from the
Borrower upon all deposits or deposit accounts, of any kind, or any
interest in any deposits or deposit accounts thereof, now or hereafter
pledged, mortgaged, transferred or assigned to the Agent or any such Bank
or otherwise in the possession or control of the Agent or any such Bank for
any purpose for the account or benefit of the Borrower and including any
balance of any deposit account or of any credit of the Borrower with the
Agent or any such Bank, whether now existing or hereafter established
hereby authorizing the Agent and each Bank at any time or times with or
without prior notice to apply such balances or any part thereof to such of
the indebtedness and obligations owing by the Borrower to the Banks and/or
the Agent then past due and in such amounts as they may elect, and whether
or not the collateral, if any, or the responsibility of other Persons
primarily, secondarily or otherwise liable may be deemed adequate. For the
purposes of this paragraph, all remittances and property shall be deemed to
be in the possession of the Agent or any such Bank as soon as the same may
be put in transit to it by mail or carrier or by other bailee.
(b) Each Bank 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 in respect of the
aggregate amount of all principal and interest owing with respect to the
Note held by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Notes held by the
other Banks owing to such other Banks, 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 owing to such other
Banks shall be shared by the Banks pro rata; PROVIDED that (i) nothing in
this Section shall impair the right of any Bank to exercise any right of
setoff or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such
payment received by the purchasing Bank is thereafter recovered from such
purchasing Bank, such purchase from each other Bank shall be rescinded and
such other Bank shall repay to the purchasing Bank the purchase price of
such participation to the extent of such recovery together with an amount
equal to such other Bank's ratable share (according to the proportion of
(x) the amount of such other Bank's required repayment to (y) the total
amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Borrower agrees, to the fullest extent it 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 the Borrower in the amount of such participation.
SECTION 9.06. 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 by the Borrower and the Required Banks (and, if the rights or duties
of the Agent are affected thereby, by the Agent); PROVIDED that, no such
amendment or waiver shall, unless signed by all Banks, (i) change the
Commitment of any Bank or subject any Bank to any additional obligation,
(ii) change the principal of or rate of interest on any Loan or any fees
(other than fees payable to the 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 or of the aggregate unpaid principal amount of the Notes, or
the percentage of Banks, which shall be required for the Banks or any of
them to take any action under this Section 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 or substitute all or any
substantial part of the collateral (if any) held as security for the Loans,
or (viii) release any Guarantee given to support payment of the Loans, or
(ix) change the definition of "Borrowing Base".
(b) The Borrower will not solicit, request or negotiate for
or with respect to any proposed waiver or amendment of any of the
provisions of this Agreement except through the Agent, unless each Bank
shall be informed thereof by the Borrower and shall be afforded an
opportunity of considering the same and shall be supplied by the Borrower
with sufficient information to enable it 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 the Borrower to each Bank forthwith following the date on
which the same shall have been executed and delivered by the requisite
percentage of Banks. The 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 such Banks.
SECTION 9.07. NO MARGIN STOCK COLLATERAL. Each of the
Banks represents to the Agent and each of the other Banks that it in good
faith is not, directly or indirectly (by negative pledge or otherwise),
relying upon any Margin Stock as collateral in the extension or maintenance
of the credit provided for in this Agreement.
SECTION 9.08. 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
the Borrower may not assign or otherwise transfer any of its rights under
this Agreement.
(b) Any Bank may at any time sell to one or more Persons
(each a "Participant") participating interests in any Loan owing to such
Bank, any Note held by such Bank, any Commitment hereunder or any other
interest of such Bank hereunder. In the event of any such sale by a Bank
of a participating interest to a Participant, such Bank's obligations under
this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the holder
of any such Note for all purposes under this Agreement, and the Borrower
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement.
In no event shall a Bank that sells a participation be obligated to the
Participant to take or refrain from taking any action hereunder except that
such Bank 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 Guarantee given
to support payment of the Loans. Each Bank selling a participating
interest in any Loan, Note, Commitment or other interest under this
Agreement, other than a Money Market Loan or Money Market Note or
participating interest therein, shall, within 10 Domestic Business Days of
such sale, provide the Borrower and the Agent with written notification
stating that such sale has occurred and identifying the Participant and the
interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article VIII with respect
to its participation in Loans outstanding from time to time.
(c) Any Bank 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 the Agent (and, in the case of an
Assignee that is not then a Bank, subject to clause (iii) below, by the
Borrower); 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) 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, (iii) 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 consent of the Borrower and the Agent,
which consent shall not be unreasonably withheld, and (iv) a Bank may not
have more than 3 Assignees that are not then Banks at any one time. Upon
(A) execution of the Assignment and Acceptance by such transferor Bank,
such Assignee, the Agent and (if applicable) the Borrower, (B) delivery of
an executed copy of the Assignment and Acceptance to the Borrower and the
Agent, (C) payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, and (D) payment of a processing and recordation fee of $2,500 to
the Agent, 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 the Borrower, the
Banks or the Agent shall be required. Upon the consummation of any
transfer to an Assignee pursuant to this paragraph (c), the transferor
Bank, the Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to each of such Assignee and such
transferor Bank.
(d) Subject to the provisions of Section 9.09, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower
which has been delivered to such Bank by the Borrower pursuant to this
Agreement or which has been delivered to such Bank by the Borrower in
connection with such Bank's credit evaluation prior to entering into this
Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been
entitled to receive with respect to the rights transferred, unless such
transfer is made with the Borrower's prior written consent or by reason of
the provisions of Section 8.02 or 8.03 requiring such Bank to designate a
different Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary
notwithstanding, any Bank 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 Borrower to
the assigning and/or pledging Bank in accordance with the terms of this
Agreement shall satisfy the Borrower's 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 from its
obligations hereunder.
SECTION 9.09. CONFIDENTIALITY. Each Bank agrees to
exercise commercially reasonable efforts to keep any information delivered
or made available by the Borrower to it which is clearly indicated to be
confidential information, confidential from anyone other than persons
employed or retained by such Bank who are or are expected to become engaged
in evaluating, approving, structuring or administering the Loans; PROVIDED
that nothing herein shall prevent any Bank from disclosing such information
(i) to any other Bank, (ii) upon the order of any court or administrative
agency, (iii) upon the request or demand of any regulatory agency or
authority having jurisdiction over such Bank, (iv) which has been publicly
disclosed, (v) to the extent reasonably required in connection with any
litigation to which the Agent, any Bank or their respective Affiliates may
be a party, (vi) to the extent reasonably required in connection with the
exercise of any remedy hereunder, (vii) to such Bank's legal counsel and
independent auditors and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights hereunder which
has agreed in writing to be bound by the provisions of this Section 9.09;
PROVIDED that should disclosure of any such confidential information be
required by virtue of clause (ii) of the immediately preceding sentence, to
the extent permitted by law, any relevant Bank shall promptly notify the
Borrower of same so as to allow the Borrower to seek a protective order or
to take any other appropriate action; PROVIDED, FURTHER, THAT, no Bank
shall be required to delay compliance with any directive to disclose any
such information so as to allow the Borrower to effect any such action.
SECTION 9.10. REPRESENTATION BY BANKS. Each Bank hereby
represents that it is a commercial lender or financial institution which
makes loans in the ordinary course of its business and that it will make
its Loans hereunder for its own account in the ordinary course of such
business; PROVIDED that, subject to Section 9.08, the disposition of the
Note or Notes held by that Bank shall at all times be within its exclusive
control.
SECTION 9.11. OBLIGATIONS SEVERAL. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the
obligations or commitment of any other Bank hereunder. Nothing contained
in this Agreement and no action taken by the Banks pursuant hereto shall be
deemed to constitute the Banks to be a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any time
hereunder to each Bank shall be a separate and independent debt, and each
Bank shall be entitled to protect and enforce its rights arising out of
this Agreement or any other Loan Document and it shall not be necessary for
any other Bank to be joined as an additional party in any proceeding for
such purpose.
SECTION 9.12. GEORGIA LAW. This Agreement and each Note
shall be construed in accordance with and governed by the law of the State
of Georgia.
SECTION 9.13. SEVERABILITY. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. INTEREST. In no event shall the amount of
interest, and all charges, amounts or fees contracted for, charged or
collected pursuant to this Agreement, the Notes or the other Loan Documents
and deemed to be interest under applicable law (collectively, "Interest")
exceed the highest rate of interest allowed by applicable law (the "Maximum
Rate"), and in the event any such payment is inadvertently received by any
Bank, then the excess sum (the "Excess") shall be credited as a payment of
principal, unless the Borrower shall notify such Bank in writing that it
elects to have the Excess returned forthwith. It is the express intent
hereof that the Borrower not pay and the Banks not receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may
legally be paid by the Borrower under applicable law. The right to
accelerate maturity of any of the Loans does not include the right to
accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Agent and the Banks do not intend to collect any
unearned interest in the event of any such acceleration. All monies paid
to the Agent or the Banks hereunder or under any of the Notes or the other
Loan Documents, whether at maturity or by prepayment, shall be subject to
rebate of unearned interest as and to the extent required by applicable
law. By the execution of this Agreement, the Borrower covenants, to the
fullest extent permitted by law, that (i) the credit or return of any
Excess shall constitute the acceptance by the Borrower of such Excess, and
(ii) the Borrower shall not seek or pursue any other remedy, legal or
equitable, against the Agent or any Bank, based in whole or in part upon
contracting for charging or receiving any Interest in excess of the Maximum
Rate. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by the Agent or any Bank, all interest
at any time contracted for, charged or received from the Borrower in
connection with this Agreement, the Notes or any of the other Loan
Documents shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread in equal parts throughout the full term of
the Commitments. The Borrower, the Agent and each Bank shall, to the
maximum extent permitted under applicable law, (i) characterize any non-
principal payment as an expense, fee or premium rather than as Interest and
(ii) exclude voluntary prepayments and the effects thereof. The provisions
of this Section shall be deemed to be incorporated into each Note and each
of the other Loan Documents (whether or not any provision of this Section
is referred to therein). All such Loan Documents and communications
relating to any Interest owed by the Borrower and all figures set forth
therein shall, for the sole purpose of computing the extent of obligations
hereunder and under the Notes and the other Loan Documents be automatically
recomputed by the Borrower, and by any court considering the same, to give
effect to the adjustments or credits required by this Section.
SECTION 9.15. INTERPRETATION. No provision of this
Agreement or any of the other Loan Documents shall be construed against or
interpreted to the disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
SECTION 9.16. WAIVER OF JURY TRIAL; CONSENT TO
JURISDICTION. The Borrower (a) and each of the Banks and the Agent
irrevocably waives, to the fullest extent permitted by law, any and all
right to trial by jury in any legal proceeding arising out of this
Agreement, any of the other Loan Documents, or any of the transactions
contemplated hereby or thereby, (b) submits to the nonexclusive personal
jurisdiction in the State of Georgia, the courts thereof and the United
States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (c) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or
venue within the State of Georgia for the purpose of litigation to enforce
this Agreement, the Notes or the other Loan Documents, and (d) agrees that
service of process may be made upon it in the manner prescribed in Section
9.01 for the giving of notice to the Borrower. Nothing herein contained,
however, shall prevent the Agent from bringing any action or exercising any
rights against any security and against the Borrower personally, and
against any assets of the Borrower, within any other state or jurisdiction.
SECTION 9.17. COUNTERPARTS. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION 9.18. SOURCE OF FUNDS -- ERISA. Each of the Banks
hereby severally (and not jointly) represents to the Borrower that no part
of the funds to be used by such Bank to fund the Loans hereunder from time
to time constitutes (i) assets allocated to any separate account maintained
by such Bank 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.
SECTION 9.19. EXCULPATION. Neither the General Partner nor
any other partner of the Borrower, nor any officer or trustee of any of
them, shall have any obligation or liability for payment of the Loans, and
holders of the Notes will have no claims or other recourse against the
General Partner or any other partner of the Borrower or any officer or
trustee of any of them, or against any assets of the General Partner or any
other partner of the Borrower or any officer or trustee of any of them, in
respect of the Loans; and the holders of the Notes shall not have any right
to enforce any obligations of a partner to make a contribution to the
Borrower under any provision of the Agreement of Limited Partnership of the
Borrower. Neither the General Partner nor any other partner of the
Borrower nor any officer or trustee of any of them nor any of their
respective assets shall be subject to any lien, levy, execution or any
other enforcement procedure relating directly or indirectly to the Loans or
any obligations thereunder; PROVIDED, HOWEVER, that in the event of a
dissolution of the Borrower, any assets of the Borrower that are received
by the General Partner in such dissolution shall be subject to the claims
of the holders of the Notes for the enforcement of payment thereof.
[Signatures are contained on the following pages.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware Limited Partnership
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust, its General
Partner
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
AMLI Residential Properties, L.P.
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Attention: President
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENTS
$60,000,000 WACHOVIA BANK, N.A.,
as Agent and as a Bank (SEAL)
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President
LENDING OFFICE
Wachovia Bank, N.A.
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Attention: Syndications Group
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Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$35,000,000 THE FIRST NATIONAL BANK OF CHICAGO
as Documentation Agent and as a Bank
(SEAL)
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Lending Office
The First National Bank of Chicago
Suite 0151, 14th Floor
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$35,000,000 DRESDNER BANK AG, NEW
YORK AND GRAND CAYMAN BRANCHES
as Co-Agent and a Bank (SEAL)
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LENDING OFFICE
Dresdner Bank, AG,
New York and Grand Cayman Branches
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$25,000,000 ▇▇▇▇▇▇ TRUST AND SAVINGS BANK (SEAL)
By: /S/ ▇▇▇▇▇▇▇ ▇. BINS
------------------------------
▇▇▇▇▇▇▇ ▇. Bins
Title: Vice President
Lending Office
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Bins
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$25,000,000 LASALLE NATIONAL BANK (SEAL)
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
Lending Office
LaSalle National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$20,000,000 PNC BANK, N.A. (SEAL)
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Lending Office
PNC Bank, N.A.
1-PNC Plaza
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
--------------------
TOTAL COMMITMENTS:
$200,000,000
EXHIBIT A-1
----------
SYNDICATED LOAN NOTE
Atlanta, Georgia
July __, 1998
For value received, AMLI RESIDENTIAL PROPERTIES, L.P., a
Delaware limited partnership (the "Borrower"), promises to pay to the order
of __________________________________________________, a
____________________ (the "Bank"), for the account of its Lending Office,
the principal sum of ___________________________________ AND NO/100 DOLLARS
($__________), or such lesser amount as shall equal the unpaid principal
amount of each Syndicated Loan made by the Bank to the Borrower pursuant to
the Credit Agreement referred to below, on the dates and in the amounts
provided in the Credit Agreement. The Borrower promises to pay interest on
the unpaid principal amount of this Note on the dates and at the rate or
rates provided for in the Credit Agreement. Interest on any overdue
principal of and, to the extent permitted by law, overdue interest on the
principal amount hereof shall bear interest at the Default Rate, as
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of Wachovia Bank, N.A., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address
as may be specified from time to time pursuant to the Credit Agreement.
All Syndicated Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable
thereto, and all repayments of the principal thereof shall be recorded by
the Bank and, prior to any transfer hereof, endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; PROVIDED that the failure of the Bank to make any
such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Note is one of the Syndicated Loan Notes referred to in
the Amended and Restated Credit Agreement dated as of July __, 1998 among
the Borrower, the Banks listed on the signature pages thereof, Wachovia
Bank, N.A., as Agent and The First National Bank of Chicago, as
Documentation Agent (as the same may be amended and modified from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit
Agreement for provisions for the optional and mandatory prepayment and the
repayment hereof and the acceleration of the maturity hereof, as well as
the obligation of the Borrower to pay all costs of collection, including
reasonable attorneys fees, in the event this Note is collected by law or
through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice
of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly
provided for in the Credit Agreement.
This Note and the rights and claims of the Bank hereunder are
subject in all respects to the provisions of Section 9.19 of the Credit
Agreement, which contains exculpation provisions with respect to the
liability of the general and limited partners of Borrower with respect to
the liabilities of the Borrower hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed, under seal, by its duly authorized officer as of the day and
year first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
(SEAL)
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust,
its General Partner
By:
------------------------------
Title:
SYNDICATED LOAN NOTE (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
EXHIBIT A-2
-----------
SWING LOAN NOTE
Atlanta, Georgia
July __, 1998
For value received, AMLI RESIDENTIAL PROPERTIES, L.P., a
Delaware limited partnership (the "Borrower"), promises to pay to the order
of WACHOVIA BANK, N.A. (the "Bank"), for the account of its Lending Office,
the principal sum of FIVE MILLION AND NO/100 DOLLARS ($5,000,000), or such
lesser amount as shall equal the unpaid principal amount of each Swing Loan
made by the Bank to the Borrower pursuant to the Credit Agreement referred
to below, on the dates and in the amounts provided in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
this Swing Loan Note at the rate provided for Base Rate Loans or
Transaction Rate Loans, as the case may be, on the dates provided for in
the Credit Agreement. Interest on any overdue principal of and, to the
extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Wachovia Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be specified from
time to time pursuant to the Credit Agreement.
All Swing Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto, and all
repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; PROVIDED that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder
or under the Credit Agreement.
This Note is one of the Swing Loan Notes referred to in the
Amended and Restated Credit Agreement dated as of July __, 1998 among the
Borrower, the Banks listed on the signature pages thereof, Wachovia Bank,
N.A., as Agent and The First National Bank of Chicago, as Documentation
Agent (as the same may be amended and modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for
provisions for the optional and mandatory prepayment and the repayment
hereof and the acceleration of the maturity hereof, as well as the
obligation of the Borrower to pay all costs of collection, including
reasonable attorneys fees, in the event this Note is collected by law or
through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice
of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly
provided for in the Credit Agreement.
This Note and the rights and claims of the Bank hereunder are
subject in all respects to the provisions of Section 9.19 of the Credit
Agreement, which contains exculpation provisions with respect to the
liability of the general and limited partners of Borrower with respect to
the liabilities of the Borrower hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed, under seal, by its duly authorized officer as of the day and
year first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
(SEAL)
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust,
its General Partner
By:
------------------------------
Title:
SWING LOAN NOTE (cont'd)
SWING LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Trans- of Principal Maturity Notation
Date action Rate Loan Repaid Date Made By
Loan
EXHIBIT A-3
-----------
MONEY MARKET LOAN NOTE
As of July ___, 1998
For value received, AMLI RESIDENTIAL PROPERTIES, L.P., a
Delaware Limited Partnership (the "Borrower"), promises to pay to the order
of ______________________________, a _______________ (the "Bank"), for the
account of its Lending Office, the principal sum of ONE HUNDRED MILLION AND
NO/100 DOLLARS ($100,000,000), or such lesser amount as shall equal the
unpaid principal amount of each Money Market Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below, on the dates
and in the amounts provided in the Credit Agreement. The Borrower promises
to pay interest on the unpaid principal amount of this Money Market Loan
Note on the dates and at the rate or rates provided for in the Credit
Agreement referred to below. Interest on any overdue principal of and, to
the extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for in the
Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of Wachovia Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable
thereto, and all repayments of the principal thereof shall be recorded by
the Bank and, prior to any transfer hereof, endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; PROVIDED that the failure of the Bank to make any
such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Money Market Loan Note is one of the Money Market Loan
Notes referred to in the Amended and Restated Credit Agreement dated as of
July ___, 1998 among the Borrower, the Banks listed on the signature pages
thereof, Wachovia Bank, N.A., as Agent (as the same may be amended and
modified from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made
to the Credit Agreement for provisions for the optional and mandatory
prepayment and the repayment hereof and the acceleration of the maturity
hereof, as well as the obligation of the Borrower to pay all costs of
collection, including reasonable attorneys fees, in the event this Money
Market Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice
of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly
provided for in the Credit Agreement.
This Note and the rights and claims of the Bank hereunder are
subject in all respects to the provisions of Section 9.19 of the Credit
Agreement, which contains exculpation provisions with respect to the
liability of the general and limited partners of Borrower with respect to
the liabilities of the Borrower hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Money Market
Loan Note to be duly executed, under seal, by its duly authorized officer
as of the day and year first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware Limited Partnership
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust, its General
Partner
By:
------------------------------
Title:
Money Market Loan Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
EXHIBIT B
---------
OPINION OF
COUNSEL FOR THE BORROWER
------------------------
[Dated as provided in
Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndications Group
Dear Sirs:
We have acted as counsel for AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership (the "Borrower") in connection with the
Amended and Restated Credit Agreement (the "Credit Agreement") dated as of
July __, 1998, among the Borrower, the banks listed on the signature pages
thereof, Wachovia Bank, N.A., as Agent and The First National Bank of
Chicago, as Documentation Agent. Terms defined in the Credit Agreement are
used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records, trust
records, partnership records, certificates of public officials and other
instruments and have conducted such other investigations of fact and law as
we have deemed necessary or advisable for purposes of this opinion. We
have assumed for purposes of our opinions set forth below that the
execution and delivery of the Credit Agreement by each Bank and by the
Agent have been duly authorized by each Bank and by the Agent.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower is a limited partnership duly created,
validly existing and in good standing under the laws of Delaware and has
all partnership powers required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower
of the Credit Agreement the Notes (i) are within its partnership powers,
(ii) have been duly authorized by all necessary partnership action, (iii)
require no action by or in respect of, or filing with, any governmental
body, agency or official, (iv) do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate
of limited partnership or partnership agreement of the Borrower or of the
declaration of trust of the General Partner, or of any agreement, judgment,
injunction, order, decree or other instrument which to our knowledge is
binding upon the Borrower and (v) to our knowledge, except as provided in
the Credit Agreement, do not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding
agreement of the Borrower, enforceable against it in accordance with its
terms, and the Notes constitute valid and binding obligations of the
Borrower, enforceable in accordance with its terms, except as such
enforceability may be limited by: (i) bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity.
4. To our knowledge, there is no action, suit or proceeding
pending, or threatened, against or affecting the Borrower before any court
or arbitrator or any governmental body, agency or official in which there
is a reasonable possibility of an adverse decision which could materially
adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower or which in any manner
questions the validity or enforceability of the Credit Agreement or any
Note.
5. The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
6. The Borrower is not a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
We are qualified to practice in the State of Illinois and do not
purport to be experts on any laws other than the laws of the United States,
the State of Illinois and the revised Uniform Limited Partnership Act as in
effect in the State of Delaware, and this opinion is rendered only with
respect to such laws. For purposes of the opinion contained in Paragraph 3
above, we have assumed that the laws of the State of Georgia are the same
as those of the State of Illinois. We have made no independent
investigation of the laws of any other jurisdiction.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you, any Assignee,
Participant or other Transferee under the Credit Agreement, and ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇ without our prior written consent.
Very truly yours,
EXHIBIT C
---------
OPINION OF
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇, SPECIAL COUNSEL
FOR THE AGENT
-------------------------------------------
[Dated as provided in
Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
Attention: Syndications Group
Dear Sirs:
We have participated in the preparation of the Amended and
Restated Credit Agreement (the "Credit Agreement") dated as of July __,
1998, among Amli Residential Properties, L.P., a Delaware limited
partnership (the "Borrower"), the banks listed on the signature pages
thereof (the "Banks"), Wachovia Bank, N.A., as Agent (the "Agent") and The
First National Bank of Chicago, as Documentation Agent, and have acted as
special counsel for the Agent for the purpose of rendering this opinion
pursuant to Section 3.01(d) of the Credit Agreement. Terms defined in the
Credit Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to
Legal Opinions to Third Parties in Corporate Transactions adopted by the
Legal Opinion Committee of the Corporate and Banking Law Section of the
State Bar of Georgia which Interpretive Standards are incorporated herein
by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement and each of
the Notes by or on behalf of the Borrower, we are of the opinion that the
Credit Agreement constitutes a valid and binding agreement of the Borrower,
each Note constitutes valid and binding obligations of the Borrower,
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization,
fraudulent conveyance, voidable preference, moratorium or similar laws
applicable to creditors' rights or the collection of debtors' obligations
generally; (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
and (iii) the enforceability of certain of the remedial, waiver and other
provisions of the Credit Agreement and the Notes may be further limited by
the laws of the State of Georgia; PROVIDED that such additional laws do
not, in our opinion, substantially interfere with the practical realization
of the benefits expressed in the Credit Agreement or the Notes, except for
the economic consequences of any procedural delay which may result from
such laws.
In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction except the State of Georgia.
We express no opinion as to the effect of the compliance or noncompliance
of the Agent or any of the Banks with any state or federal laws or
regulations applicable to the Agent or any of the Banks by reason of the
legal or regulatory status or the nature of the business of the Agent or
any of the Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our
prior written consent.
Very truly yours,
EXHIBIT D
---------
ASSIGNMENT AND ACCEPTANCE
-------------------------
Dated __________, __________
Reference is made to the Amended and Restated Credit Agreement
dated as of July __, 1998 (together with all amendments and modifications
thereto, the "Credit Agreement") among Amli Residential Properties, L.P., a
Delaware limited partnership (the "Borrower"), the Banks (as defined in the
Credit Agreement), Wachovia Bank, N.A., as Agent and The First National
Bank of Chicago, as Documentation Agent. Terms defined in the Credit
Agreement are used herein with the same meaning.
________________________________________ (the "Assignor") and
______________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and
assumes from the Assignor, a _____% interest in and to all of the
Assignor's rights and obligations under the Amended and Restated Credit
Agreement as of the Effective Date (as defined below) (including, without
limitation, a _____% interest (which on the Effective Date hereof is $_____
) in the Assignor's Commitment and a _____ interest (which on
the Effective Date hereof is $___________ ) in the Syndicated Loans [and
Swing Loans] [and Money Market Loans] owing to the Assignor and a _____%
interest in the Syndicated Loan Note [and Swing Loan Note] [and Money
Market Loan Note] held by the Assignor (which on the Effective Date hereof
is $__________) [and $__________, respectively].
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of
the interest being assigned by it hereunder, that such interest is free and
clear of any adverse claim and that as of the date hereof its Commitment
(without giving effect to assignments thereof which have not yet become
effective) is $__________ and the aggregate outstanding principal amount of
Syndicated Loans [and Swing Loans] [and Money Market Loans] owing to it
(without giving effect to assignments thereof which have not yet become
effective) is $__________ [and $__________, respectively]; (ii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iii) attaches
the Note[s] referred to in Paragraph 1 above and requests that the Agent
exchange such Note[s] [for a new Syndicated Loan Note dated _________, ____
in the principal amount of $____________ payable to the order of the
Assignee, a new Swing Loan Note dated ___________, ____ in the principal
amount of $____________ payable to the order of the Assignee, [and for new
Notes as follows: a (i) Syndicated Loan Note dated ___________, ____ in
the principal amount of $___________ payable to the order of the Assignor,
(ii) Swing Loan Note dated ____________, ____ in the principal amount of
$__________ payable to the order of the Assignor], and (iii) Money Market
Loan Note dated ____________, ____ in the principal amount of $__________
payable to the order of the Assignor].
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.04(a) thereof (or any more recent financial
statements of the Borrower delivered pursuant to Section 5.01(a) or (b)
thereof) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is a bank or financial
institution; (iv) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement
as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Bank;
(vi) specifies as its Lending Office (and address for notices) the office
set forth beneath its name on the signature pages hereof, (vii) represents
and warrants that the execution, delivery and performance of this
Assignment and Acceptance are within its powers and have been duly
authorized by all necessary action, (viii) makes the representation and
warranty contained in Section 9.18 of the Credit Agreement, and (ix)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments
to be made to the Assignee under the Credit Agreement and the Notes.
4. The Effective Date for this Assignment and Acceptance
shall be __________, , (the "Effective Date"). Following
the execution of this Assignment and Acceptance, it will be delivered to
the Agent for execution and acceptance by the Agent and to the Borrower for
execution by the Borrower.
5. Upon such execution and acceptance by the Agent, and
execution by the Borrower, if required by the Credit Agreement, from and
after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent rights and obligations have been transferred
to it by this Assignment and Acceptance, have the rights and obligations of
a Bank thereunder and (ii) the Assignor shall, to the extent its rights and
obligations have been transferred to the Assignee by this Assignment and
Acceptance, relinquish its rights (other than under Sections 8.03, 9.03 and
9.04 of the Credit Agreement) and be released from its obligations under
the Credit Agreement, except as expressly provided therein.
6. Upon such execution and acceptance by the Agent, and
execution by the Borrower, if required by the Credit Agreement, from and
after the Effective Date, the Agent shall make all payments in respect of
the interest assigned hereby to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments for periods prior to
such acceptance by the Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
------------------------------
Title:
[NAME OF ASSIGNEE]
By:
------------------------------
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Agent
By:
------------------------------
Title:
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust, its General
Partner
[If required by the Credit Agreement]
By:
------------------------------
Title:
EXHIBIT E
---------
NOTICE OF BORROWING
-------------------
,
Wachovia Bank, N.A., as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Re: Amended and Restated Credit Agreement (as amended and modified
from time to time, the "Credit Agreement") dated as of July __, 1998 by and
among Amli Residential Properties, L.P., the Banks from time to time
parties thereto, Wachovia Bank, N.A., as Agent and The First National Bank
of Chicago, as Documentation Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02
of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Syndicated
Loan Borrowing at a Base Rate] [Swing Loan Borrowing] in the aggregate
principal amount of $ (1) to be made on , ,
and for interest to accrue thereon at the rate established by the Credit
Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration of the
Interest Period with respect thereto shall be [1 month] [2 months] [3
months] [6 months] [30 days].
The amount available to be borrowed under Section 2.01 of the Credit
Agreement, net of amounts to be paid with the proceeds of this Borrowing,
is as follows:
(a) Aggregate amount of Commitments $
(b) Borrowing Base per most recent
Borrowing Base Certificate $
(c) Principal amount outstanding under
Syndicated Loans $
(d) Principal amount outstanding under
Swing Loans $
(e) Principal amount outstanding under
Money Market Loans $
(f) Amount available to be borrowed
(lesser of (a) or (b), less sum
of (c), (d) and (e) $
(1) Not to exceed the amount available to be borrowed as set forth in the
next paragraph.
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this day of ,
.
AMLI RESIDENTIAL PROPERTIES, L.P.
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust, its General
Partner
By:
------------------------------
Title:
EXHIBIT F
---------
COMPLIANCE CERTIFICATE
----------------------
Reference is made to the Amended and Restated Credit Agreement
dated as of July __, 1998 (as modified and supplemented and in effect from
time to time, the "Credit Agreement") by and among Amli Residential
Properties, L.P., the Banks from time to time parties thereto, Wachovia
Bank, N.A., as Agent and The First National Bank of Chicago, as
Documentation Agent. Capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement; all amounts shown herein, unless
expressly set forth to the contrary, shall be without duplication.
Pursuant to Section 5.01(c) of the Amended and Restated Credit
Agreement, , the duly authorized of
the Borrower, hereby (i) certifies to the Agent and the Banks that the
information contained in the Compliance Check List attached hereto is true,
accurate and complete as of , , and that no Default is in
existence on and as of the date hereof and (ii) restates and reaffirms that
the representations and warranties contained in Article IV of the Credit
Agreement are true on and as of the date hereof as though restated on and
as of this date.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust, its General
Partner
By:
------------------------------
Its:
COMPLIANCE CHECK LIST
AMLI RESIDENTIAL PROPERTIES, L.P.
,
1. Consolidations, Mergers and Sales of Assets (Section 5.05)
Neither the Borrower, the General Partner nor any of the Guarantors
will consolidate or merge with or into, or acquire all or substantially all
of the assets or stock of any other Person, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other Person,
PROVIDED that:
(i) the Borrower may merge with another Person if (x) such
Person was organized under the laws of the United States of America or one
of its states, (y) the Borrower is the limited partnership surviving such
merger and (z) immediately after giving effect to such merger, no Default
shall have occurred and be continuing;
(ii) Guarantors may merge with one another, and the
Guarantors may sell, lease or otherwise transfer assets to the Borrower;
(iii) the foregoing limitation on the acquisition of all
or substantially all the assets or stock of another Person shall not
prohibit, during any Fiscal Quarter, the acquisition of all or
substantially all of the assets or stock of another Person unless the
aggregate assets or stock acquired in a single acquisition or series of
related acquisitions of all or substantially all of the assets or stock of
another Person by the Borrower, the General Partner and the Guarantors
during such Fiscal Quarter constituted more than 20% of Gross Asset Value
at the end of the most recent Fiscal Quarter immediately preceding such
Fiscal Quarter; and
(iv) the foregoing limitation on the sale, lease or other
transfer of assets shall not prohibit, during any Fiscal Quarter, a
transfer of assets (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred, when
combined with all other assets transferred, by the Borrower, the General
Partner and the Guarantors during such Fiscal Quarter and the immediately
preceding 3 Fiscal Quarters, constituted more than 20% of Gross Asset Value
at the end of the most recent Fiscal Year immediately preceding such Fiscal
Quarter.
In the case of any Guarantor which transfers substantially all
of its assets pursuant to clause (iv) of the preceding sentence, and in the
case of any Guarantor the stock of which is being sold and with respect to
which clause (iv) would have been satisfied if the transaction had been a
sale of assets of such Guarantor, such Guarantor may dissolve and shall be
entitled to obtain from the Agent a written release from the Guaranty,
PROVIDED that it can demonstrate to the reasonable satisfaction of the
Agent that (A) it has repaid in full all Debt owed to the Borrower or any
other Guarantor and (B) such sale was for cash and in the case of an asset
transfer, the net cash proceeds received in connection therewith are being
distributed to the Borrower as part of such dissolution, and upon obtaining
such written release, it shall no longer be a Guarantor for any purpose
hereunder.
(a) Aggregate amount of assets or stock
acquired in a single acquisition or
series of related acquisitions
during Fiscal Quarter just ended $
(b) Gross Asset Value Schedule 1 $
(c) 20% of (b) $
Limitation: (a) may not exceed (c)
(d) Aggregate amount of assets sold
during Fiscal Quarter just
ended $
(e) Aggregate amount of assets sold
during 3 prior Fiscal Quarters $
(f) Sum of (d) and (e) $
Limitation: (f) may not exceed (c)
2. Restricted Payments (Section 5.15) (2)
The Borrower's Restricted Payments in any calendar year shall not
exceed 95% of Funds From Operations for such period, unless (i) the
Borrower must pay out an amount in excess of 95% of Funds From Operations
to permit the General Partner to preserve its status as a real estate
investment trust under the applicable provision of the Code, or (ii) the
Borrower declares one or more capital gains dividends within such calendar
year (in which event the amount of additional Restricted Payments that may
be made as a result of such declaration as provided in this clause (ii)
shall not exceed the greater of (A) the income tax liability of the
Borrower's partners with respect thereto and (B) $1,500,000). In the event
that the Borrower receives an Investment Grade Debt Rating and so long as
that rating (or a better rating) is affirmed during each year, the
Borrower's Restricted Payments in any calendar year will be limited to 100%
of Funds from Operations for such calendar year with the same exceptions
contained in clauses (i) and (ii) of this Section 5.15.
(a) Restricted Payments for current
calendar year $
(b) Funds From Operations for current
calendar year Schedule 2 $
Maximum Restricted Payments
Generally: [95%] [100%] of (b) $
Additional Restricted Payments permitted
by clause (i) $
Additional Restricted Payments permitted
by clause (ii), not to exceed greater
of partners' income tax liability
and $1,500,000 $
Calendar year distributions to date $
(2) Include this paragraph 2 and Schedule 2 only with the first Complaince
Certificate furnished after the end of each Fiscal Year.
3. Loans or Advances (Section 5.16)
Neither the Borrower, the General Partner nor any of the Guarantors
shall make loans or advances to any Person except as permitted by Section
5.17 and except:
(i) deposits required by government agencies or public
utilities;
(ii) loans or advances from the Borrower to a Guarantor or
from a Guarantor to the Borrower or another Guarantor;
(iii) loans and advances made to (A) Amli Institutional
Advisors, Inc. as part of its initial capital structure in the amount of
$500,000, and (B) Amli Management Company as part of its initial capital
structure in the amount of $3,000,000;
(iv) loans or advances to employees, officers and
directors not exceeding $1,000,000 in the aggregate principal amount
outstanding at any time, in each case made in the ordinary course of
business, but excluding loans and advances described in clause (v);
(v) loans and advances to employees, officers and
directors to enable them to buy partnership units in the Borrower or stock
in the General Partner which are secured by a pledge of such stock, so long
as the aggregate amount of all such loans does not exceed $5,000,000;
(vi) working capital loans and advances to Amli
Residential Construction, Inc. for use in the ordinary course of business
and consistent with past practices, so long as the aggregate principal
amount outstanding at any time for all such loans and advances is not in
excess of $6,000,000;
(vii) loans and advances to Co-Investment Partnerships in
an aggregate amount which, together with Investments in Co-Investment
Partnerships, does not exceed (i) so long as the Borrower has no Investment
Grade Debt Rating, 15% of Gross Asset Value and (ii) while the Borrower has
an Investment Grade Debt Rating, 20% of Gross Asset Value; and/or
(viii) other loans and advances by the Borrower, the
General Partner and the Guarantors to any Person other than a Co-Investment
Partnership which (x) are evidenced by notes (and, if requested by the
Agent, acting at the direction of the Required Banks, with such notes,
together with any related mortgage, have been assigned to and pledged with
the Agent, for the benefit of itself and the Banks, as security for the
payment of all obligations of the Borrower to the Agent and the Banks
hereunder) and (y) are in an amount which, together with Investments
permitted by clause (vii) of Section 5.17, do not exceed 5% of Gross Asset
Value as of the end of the most recent Fiscal Quarter;
PROVIDED that after giving effect to the making of any loans, advances
or deposits permitted by this Section, no Default shall be in existence or
be created thereby.
(a) Loans and advances to employees, officers
and directors, excluding stock
purchase loans $
Limitation $1,000,000
(b) Loans and advances to employees, officers
and directors for the purchase of, and
secured by, stock in the General
Partner $
Limitation $5,000,000
(c) working capital loans to Amli Residential
Construction, Inc. for construction
in progress $
Limitation $6,000,000
(d) loans and advances to Co-Investment
Partnerships $
(e) See line (d) and "Limitation" of paragraph
10 below
(f) other loans and advances evidenced by
notes (and, if required, pledged with
Agent) and not permitted by clauses
(i) through (vii) $
(g) See line (e) and "Limitation" of paragraph 4 below
4. Investments (Section 5.17)
Neither the Borrower, the General Partner nor any of the Guarantors
shall make Investments after the Closing Date in any Person except as
permitted by Section 5.16 and except Investments in:
(i) direct obligations of the United States Government
maturing within one year;
(ii) certificates of deposit issued by a commercial bank
whose credit is satisfactory to the Agent;
(iii) commercial paper rated A1 or the equivalent thereof
by S&P or P1 or the equivalent thereof by ▇▇▇▇▇'▇ and in either case
maturing within 6 months after the date of acquisition;
(iv) tender bonds the payment of the principal of and
interest on which is fully supported by a letter of credit issued by a
United States bank whose long-term certificates of deposit are rated at
least A or the equivalent thereof by S&P and A or the equivalent thereof by
▇▇▇▇▇'▇;
(v) Investments consisting of the acquisition of all or
substantially all of the assets or stock of another Person permitted by
Section 5.05(iii);
(vi) Investments in Co-Investment Partnerships permitted
by Section 5.26; and/or
(vii) other Investments by the Borrower, the General
Partner and the Guarantors, other than in Co-Investment Partnerships, in an
amount which, together with loans and advances permitted by clause (viii)
of Section 5.16, do not exceed 5% of Gross Asset Value as of the end of the
most recent Fiscal Quarter;
PROVIDED, however, immediately after giving effect to the making of
any Investment, no Default shall have occurred and be continuing.
(a) Line (f) of paragraph 3 above $
(b) Other Investments not permitted by
clauses (i) through (vi) $
(c) Sum of (a) and (b) $
(d) Gross Asset Value Schedule 1 $
(e) 5% of (d) $
Limitation: (c) may not exceed (e)
5. Ratio of Consolidated Total Liabilities to Undepreciated Book
Asset Value (Section 5.20)
The ratio of Total Consolidated Liabilities to Undepreciated Book
Asset Value shall at all times be equal to or less than 0.60 to 1.0.
(a) Total Consolidated Liabilities
Schedule 3 $
(b) original cost of all real estate
assets plus the cost of capital
improvements thereon, without deduction
for accumulated depreciation and
amortization incurred in connection
therewith $_________
(c) book value of all other tangible assets
determined in accordance with GAAP $
(d) Approved Collateral Value $_________
(e) Undepreciated Book Asset Value (sum of
(b) plus (c) minus (d)) $_________
(f) Actual ratio of (a) to (e) to 1.0
Maximum ratio 0.60 to 1.0
6. Ratio of Total Secured Debt to Gross Asset Value (Section
5.21)
The ratio of Total Secured Debt to Gross Asset Value shall at all
times be equal to or less than 0.45 to 1.0.
(a) Total Secured Debt Schedule 4 $
(b) Gross Asset Value Schedule 1 $
(c) Actual ratio of (a) to (b) to 1.0
Maximum ratio 0.45 to 1.0
7. Ratio of EBITDA to Consolidated Interest Expense (Section
5.22)
The ratio of EBITDA to Consolidated Interest Expense for the Fiscal
Quarter just ended will not be less than 2.0 to 1.00, calculated at the end
of each Fiscal Quarter.
(a) EBITDA Schedule 5 $
(b) Consolidated Interest Expense $
(c) ratio of (a) to (b) to 1.0
Minimum ratio 2.0 to 1.0
8. Ratio of Unencumbered Assets to Unsecured Funded Debt
(Section 5.23)
The ratio of Unencumbered Assets to Unsecured Funded Debt shall at all
times be equal to or greater than 1.75 to 1.00.
(a) Net Operating Income from each
Property not subject to a Mortgage
Schedule 6 $
(b) (a) divided by 0.09 $
(c) 4 times (b) $
(d) book value of all Construction in
Progress and unimproved land not subject
to a Mortgage $
(e) sum of (c) and (d) $
(f) Unsecured Funded Debt Schedule 7 $
(g) Actual ratio of (e) to (f) to 1.0
Minimum ratio 1.75 to 1.0
9. Ratio of Unsecured Net Operating Income to Unsecured Interest
Expense (Section 5.24)
The ratio of Unsecured Net Operating Income to Unsecured Interest
Expense shall at all times be equal to or greater than 2.0 to 1.0.
(a) Unsecured Net Operating Income Schedule 6 $
(b) Unsecured Interest Expense (3) $
(c) Actual ratio of (a) to (b) to 1.0
Minimum ratio 2.0 to 1.0
(3) Include only Consolidated Interest Expense attributable to Unsecured
Funded Debt.
10. Co-Investment Partnerships Depreciated Book Value (Section
5.26)
The amount of the depreciated book value set forth on the line item
designated as "Investments in Partnerships" on the Borrower's consolidated
balance sheet, together with the aggregate amount of loans and advances to
Co-Investment Partnerships permitted by clause (vii) of Section 5.16, shall
not at any time exceed (i) so long as the Borrower does not have an
Investment Grade Debt Rating, 15% of Gross Asset Value and (ii) while the
Borrower has an Investment Grade Debt Rating, 20% of Gross Asset Value.
(a) depreciated book value of Co-Investment
Partnerships per Borrower's consolidated
balance sheet $
(b) Gross Asset Value Schedule 1 $
Limitation (a) may not exceed [15%] [20%] of (b)
Schedule 1
Gross Asset Value
-----------------
(a) Net Operating Income for the 3 month
period ending on the last day of the
month just ended prior to the date of
determination, from each Property owned
for three months or longer $
(b) (a) divided by 0.09 $
(c) 4 times (b) $
(d) book value of Construction in Progress
and unimproved land $
(e) acquisition cost of improved Property
owned by Borrower for less than three
months $
(f) sum of unrestricted cash on deposit and
market value of Investments permitted
under Section 5.17(i), (ii), (iii)
and (iv) $
(g) sum of all earnings before interest and
taxes of the Service Companies
for the 3 month period ending
on the last day of the month just ended $
(h) 4 times (g) $
(i) (h) divided by 0.15 $
GROSS ASSET VALUE (sum of (c), (d), (e)
(f) and (i)) $
Schedule 2
Funds From Operations
(for Fiscal Year just ended) (4)
Net income $
plus depreciation and amortization
of real estate assets $
plus net loss/(gain) on real estate
sales $
plus loss/(gains) on extraordinary
items $
plus depreciation of real estate
assets held in unconsolidated
entities $
FUNDS FROM OPERATIONS $
(4) The calculation is subject to change as required by NAREIT, subject to
the provisions of Seciton 1.02.
Schedule 3
Total Consolidated Liabilities
(a) Consolidated Liabilities $
(b) Debt Guaranteed by Borrower or any
Guarantor $
(c) face amount of all letters of credit
issued for the account of the Borrower
or any Guarantor $
(d) Approved Collateral Value $
TOTAL CONSOLIDATED LIABILITIES (sum of (a)
through (c) minus (d) $
Schedule 4
Total Secured Debt (5)
INTEREST FINAL
RATE(6) MATURITY TOTAL
Money Borrowed
$
$
$
$
$
Total Money Borrowed $
Deferred Purchase Price (7)
$
$
$
$
Total Deferred Purchase Price $
Capital Leases in which Borrower is the Tenant
$
$
Total Capital Leases $
Letter of Credit Reimbursement
Obligations
$
$
Total Letter of Credit
Reimbursement Obligations $
Guarantees of Debt of Persons other than Borrower and Guarantors
$
$
$
$
$
TOTAL SECURED DEBT $
(5) Include only Debt secured by a Mortage.
(6) If rate is fixed, insert contract rate. If rate is floating, state
that.
(7) Exclude trade accounts payable in the ordinary course of business.
Schedule 5
EBITDA
quarter
consolidated net income $
less extraordinary gains ($ )
plus extraordinary losses $
plus Consolidated Interest Expense $
plus taxes on income $
plus depreciation and amortization $
plus other non-cash charges $
Total $
EBITDA $
Schedule 6
Unsecured Net Operating Income and Net Operating Income (8)
(for Fiscal Quarter just ended)
quarter
(a) Property revenues $
(b) Property expenses
(excluding depreciation, amortization
and debt service and actual management
fees) $
(c) UNSECURED NET OPERATING INCOME (sum of
(a) less (b) $
(d) management fee (4% of gross
rental income, excluding
percentage rents and less any
management fees included in (b)) $
(e) capital reserve ($150 per Unit) $
(f) NET OPERATING INCOME (sum of (c)
less (d) less (e) $
(8) Include only Properties not subject to a Mortgage
Schedule 7
Unsecured Funded Debt (9)
INTEREST FINAL
RATE (10) MATURITY TOTAL
Money Borrowed
$
$
$
$
$
Total Money Borrowed $
Deferred Purchase Price (11)
$
$
$
$
Total Deferred Purchase Price $
Capital Leases in which the Borrower is the tenant
$
$
Total Capital Leases $
Letter of Credit Reimbursement
Obligations
$
$
Total Letter of Credit
Reimbursement Obligations $
Guarantees of Debt of Persons other than Borrower and Guarantors
$
$
$
$
$
(9) Include only Debt not secured by a Mortgage.
(10) If rate is fixed, insert contract rate. If rate is floating, state
that.
(11) Exclude trade accounts payable in the ordinary course of business.
AMLI RESIDENTIAL PROPERTIES, L.P.
CLOSING CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of July __, 1998, among Amli Residential
Properties, L.P., the Banks listed therein, Wachovia Bank, N.A., as Agent
and The First National Bank of Chicago, as Documentation Agent.
Capitalized terms used herein have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
, the duly authorized executive officer of AMLI Residential
Properties Trust, the General Partner of Amli Residential Properties, L.P.,
hereby certifies to the Agent and the Banks that, to the best of my
knowledge, (i) no Default has occurred and is continuing as of the date
hereof, and (ii) the representations and warranties contained in Article IV
of the Credit Agreement are true on and as of the date hereof.
Certified as July __, 1998.
By:
Printed Name:
[Chairman] [Vice Chairman]
[President] [Treasurer]
EXHIBIT H-1
AMLI RESIDENTIAL PROPERTIES TRUST
OFFICER'S CERTIFICATE
The undersigned, , the [Chairman]
[Vice Chairman] [President] [Treasurer] of AMLI RESIDENTIAL PROPERTIES
TRUST, general partner of AMLI RESIDENTIAL PROPERTIES L.P., a Delaware
limited partnership (the "Borrower"), hereby certifies that [s]he has been
duly elected, qualified and is acting in such capacity and that, as such,
[s]he is familiar with the facts herein certified and is duly authorized to
certify the same, and hereby further certifies, in connection with the
Credit Agreement dated as of July __, 1998 (as amended from time to time,
the "Credit Agreement") among the Borrower, Wachovia Bank, N.A. as Agent,
The First National Bank of Chicago, as Documentation Agent, and certain
other Banks listed on the signature pages thereof, that:
1. Attached hereto as Exhibit A is a complete and correct copy of
the Declaration of Trust of Amli Residential Properties Trust (the "Trust")
as in full force and effect on the date hereof.
2. Attached hereto as Exhibit B is a complete and correct copy of
the Certificate of Limited Partnership as certified by the Secretary of
State of the State of Delaware, the Borrower's state of creation.
3. Attached hereto as Exhibit C is a complete and correct copy of
the Partnership Agreement of the Borrower as in full force and effect on
the date hereof.
4. The General Partner incorporates herein by reference as fully as
if set forth herein all of the representations and warranties pertaining to
the General Partner contained in Article IV of the Credit Agreement (which
representations and warranties shall be deemed to have been renewed by the
General Partner upon each Borrowing under the Credit Agreement, and the
General Partner will fully comply with those covenants set forth in Article
V of the Credit Agreement pertaining to the General Partner, and the
General Partner incorporates herein by reference as fully as if set forth
herein all of such covenants.
5. As [Chairman] [Vice Chairman] [President] [Treasurer] I have
been duly authorized by all proper and necessary action to execute and
deliver the Credit Agreement and the other Loan Documents (defined in the
Credit Agreement) on behalf of the Trust, as general partner of the
Borrower and (with respect to Paragraph 4 hereof) on behalf of the Trust,
and no consent or approval of any beneficiaries or trustors under the Trust
is required as a condition thereto.
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her] hand as
of July __, 1998.
[Chairman] [Vice Chairman]
[President] [Treasurer]
EXHIBIT I
BORROWING BASE CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement dated
as of July __, 1998 (as modified and supplemented and in effect from time
to time, the "Credit Agreement") among AMLI Residential Properties, L.P.,
the Banks from time to time parties thereto, Wachovia Bank, N.A., as Agent
and The First National Bank of Chicago, as Documentation Agent.
Capitalized terms used herein shall have the meanings ascribed thereto in
the Credit Agreement.
Pursuant to Section [3.01(h)][5.01(h)] of the Credit Agreement,
, the duly authorized of the Borrower,
hereby (i) certifies to the Agent and the Banks that the calculation of the
Borrowing Base contained in this Borrowing Base Certificate is true,
accurate and complete in all material respects as of , .
The calculation of the Borrowing Base is as follows:
(a) Net Operating Income for the 3 month
period ending on the last day of the
Fiscal Quarter just ended prior to
the date of determination, from each
Eligible Unencumbered Stabilized
Property $
(b) (a) divided by 0.09 $
(c) 4 times (b) $
(d) 0.60 times (c) $
(e) book value of Construction in Progress
on all Eligible Properties $
(f) 0.50 times (e) $
(g) lesser of (f) and $50,000,000 $
(h) cost of land acquired for
apartment community development $
(i) 0.40 times (h) $
(j) lesser of (i) and $15,000,000 $
BORROWING BASE: sum of (d), plus (g), plus (j) $
AMLI Residential Properties, L.P.,
a Delaware limited partnership
By:
[Chairman] [Vice Chairman]
[President] [Treasurer]
EXHIBIT J
LIST OF ELIGIBLE PROPERTIES
Property Location
Sope Creek Properties Marietta, Georgia
AMLI at ▇▇▇▇▇▇ ▇▇▇▇▇ Carrollton, Texas
AMLI at ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Carrollton, Texas
AMLI at ▇▇▇▇▇▇ ▇▇▇▇▇ III Carrollton, Texas
AMLI at Chase Oaks Plano, Texas
AMLI at Gleneagles II Dallas, Texas
AMLI at Paces Vinings Atlanta, Georgia
AMLI at Paces Vinings-Phase II Atlanta, Georgia
AMLI at Bear Creek Euless, Texas
AMLI at West Paces Atlanta, Georgia
AMLI at Alvamar Lawrence, Kansas
AMLI at Crown Colony Topeka, Kansas
AMLI at Crown Colony II Atlanta, Georgia
AMLI at Spring Creek IV Atlanta, Georgia
AMLI at ▇▇▇▇▇ Branch Austin, Texas
AMLI at Peachtree City Peachtree City, Georgia
AMLI on the Parkway Dallas, Texas
AMLI at Northwinds ▇▇▇▇▇▇ County, Georgia
AMLI at Arboretum
AMLI at Bent Tree
AMLI at Gleneagles
AMLI at Lantana Ridge
AMLI at Martha's Vineyard [to be completed]
AMLI at Town Center
AMLI at Park Creek (CIP)
AMLI at ▇▇▇▇▇▇▇ Creek (CIP)
AMLI at Oakhurst North (CIP)
EXHIBIT K
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of ,
, jointly and severally, by and among , a
corporation (the "Guarantor"; the terms "Guarantor" and "Guarantors" shall
also include any Subsidiary of Amli Residential Properties L.P. which
becomes a Guarantor pursuant to Section 15 hereof and Section 5.28 of the
Credit Agreement referred to below) in favor of the Agent, for the ratable
benefit of the Banks, under the Credit Agreement referred to below;
W I T N E S S E T H
WHEREAS, AMLI Residential Properties, L.P., a Delaware limited
partnership (the "Borrower"), Wachovia Bank, N.A., as Agent (the "Agent"),
The First National Bank of Chicago, as Documentation Agent, and certain
other Banks from time to time party thereto have entered into a certain
Amended and Restated Credit Agreement dated as July __, 1998 (as amended as
of the date hereof and as it may be amended or modified further from time
to time, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Banks to the
Borrower which will the benefit the Guarantors;
WHEREAS, it is required under Section 5.28 of the Credit
Agreement, that the Guarantor execute and deliver this Guaranty whereby it
and, together with the other Guarantors which are or become such as
contemplated in such Section and in Section 15 hereof, shall guarantee the
payment when due of all principal, interest and other amounts that shall be
at any time payable by the Borrower under the Credit Agreement, the Notes
and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support
that the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantors, whether directly or
indirectly, and in order to induce the Banks and the Agent to enter into
and maintain the credit facilities under the Credit Agreement, the
Guarantors are willing to guarantee the obligations of the Borrower under
the Credit Agreement, the Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective
meanings provided for therein.
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors contained in
Article IV of the Credit Agreement (which representations and warranties
shall be deemed to have been renewed by the Guarantors upon each Borrowing
under the Credit Agreement).
SECTION 3. COVENANTS. The Guarantors covenant that, so long
as any Bank has any Commitment outstanding under the Credit Agreement or
any amount payable under the Credit Agreement or any Note shall remain
unpaid, the Guarantors will fully comply with those covenants set forth in
Article V of the Credit Agreement pertaining to the Guarantors, and the
Guarantors incorporate herein by reference as fully as if set forth herein
all of such covenants.
SECTION 4. THE GUARANTY. The Guarantors hereby
unconditionally and jointly and severally guarantee (i) the full and
punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on each Note issued by the
Borrower pursuant to the Credit Agreement, and the full and punctual
payment of all other amounts payable by the Borrower under the Credit
Agreement, including, without limitation, all Syndicated Loans and Swing
Loans and interest thereon, all compensation and indemnification amounts
and fees payable pursuant to the Credit Agreement and the Agent's Letter
Agreement, and (ii) the timely performance of all other obligations of the
Borrower under the Credit Agreement and the other Loan Documents (all of
the foregoing obligations being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Borrower to pay punctually any such
amount or perform such obligations, each of the Guarantors agrees that it
shall forthwith on demand pay the amount not so paid at the place and in
the manner specified in the Credit Agreement, the relevant Note or the
relevant Loan Document, as the case may be, or perform such obligation in
accordance with the terms and conditions therefor specified in the Credit
Agreement or the other Loan Documents, and pay all costs of collection,
including reasonable attorneys fees; PROVIDED that, notwithstanding the
provisions of O.C.G.A. Section 13-1-11(a)(2) to the contrary, the
Guarantors shall not be obligated to pay more than the attorneys fees
actually incurred in connection with such collection.
SECTION 5. GUARANTY UNCONDITIONAL. The obligations of the
Guarantors hereunder shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged
or otherwise affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Borrower under the
Credit Agreement, any Note, or any other Loan Document, by operation of law
or otherwise or any obligation of any other guarantor of any of the
Guaranteed Obligations;
(ii) any modification or amendment of or supplement to
the Credit Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any
direct or indirect security, if any, for any obligation of the Borrower
under the Credit Agreement, any Note, any Loan Document, or any obligations
of any other guarantor of any of the Guaranteed Obligations;
(iv) any change in the partnership structure or ownership
of the Borrower or corporate structure or ownership of any other Guarantor
or any other guarantor of any of the Guaranteed Obligations, or any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower, or any other Guarantor or any other guarantor of
the Guaranteed Obligations, or its assets or any resulting release or
discharge of any obligation of the Borrower, or any other Guarantor or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights
which the Guarantors may have at any time against the Borrower, any other
Guarantor or any other guarantor of any of the Guaranteed Obligations, the
Agent, any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or
against the Borrower, or any other Guarantor or any other guarantor of any
of the Guaranteed Obligations, for any reason related to the Credit
Agreement, any other Loan Document, or any other Guaranty, or any provision
of applicable law or regulation purporting to prohibit the payment by the
Borrower, or any other Guarantor or any other guarantor of the Guaranteed
Obligations, of the principal of or interest on any Note or any other
amount payable by the Borrower under the Credit Agreement, the Notes, or
any other Loan Document; or
(vii) any other act or omission to act or delay of any
kind by the Borrower, any other Guarantor or any other guarantor of the
Guaranteed Obligations, the Agent, any Bank or any other Person or any
other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of any Guarantor's
obligations hereunder.
SECTION 6. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT
IN CERTAIN CIRCUMSTANCES. The Guarantors' obligations hereunder shall
remain in full force and effect until all Guaranteed Obligations shall have
been paid in full and the Commitments under the Credit Agreement shall have
terminated or expired. If at any time any payment of the principal of or
interest on any Note or any other amount payable by the Borrower under the
Credit Agreement or any other Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Guarantors' obligations
hereunder with respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
SECTION 7. WAIVER OF NOTICE BY THE GUARANTORS. The Guarantors
irrevocably waive acceptance hereof, presentment, demand, protest and, to
the fullest extent permitted by law, any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against the Borrower, any other Guarantor or any other guarantor of the
Guaranteed Obligations, or any other Person.
SECTION 8. STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by the Borrower under the Credit
Agreement, any Note or any other Loan Document is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement,
any Note or any other Loan Document shall nonetheless be payable by the
Guarantors hereunder forthwith on demand by the Agent made at the request
of the Required Banks.
SECTION 9. NOTICES. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier
or other writing and telecopied or mailed or delivered to the intended
recipient at its address or telecopier number set forth on the signature
pages hereof or such other address or telecopy number as such party may
hereafter specify for such purpose by notice to the Agent in accordance
with the provisions of Section 9.01 of the Credit Agreement. Except as
otherwise provided in this Guaranty, all such communications shall be
deemed to have been duly given when transmitted by telecopier, or
personally delivered or, in the case of a mailed notice, 3 Domestic
Business Days after such communication is deposited in the mails with first
class postage prepaid, in each case given or addressed as aforesaid.
SECTION 10. NO WAIVERS. No failure or delay by the Agent or
any Banks in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies provided in
this Guaranty, the Credit Agreement, the Notes, and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 11. SUCCESSORS AND ASSIGNS. This Guaranty is for the
benefit of the Agent and the Banks and their respective successors and
assigns and in the event of an assignment of any amounts payable under the
Credit Agreement, the Notes, or the other Loan Documents, the rights
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Guaranty may not be assigned by
the Guarantors without the prior written consent of the Agent and the
Required Banks, and shall be binding upon the Guarantors and their
respective successors and permitted assigns.
SECTION 12. CHANGES IN WRITING. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally,
but only in writing signed by the Guarantors and the Agent, with the
consent of the Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTORS
AND THE AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY
GEORGIA STATE COURT SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY. THE GUARANTORS IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH ANY OF THEM MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE GUARANTORS AND THE
AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14. TAXES, ETC. All payments required to be made by
the Guarantors hereunder shall be made without setoff or counterclaim and
free and clear of and without deduction or withholding for or on account
of, any present or future taxes, levies, imposts, duties or other charges
of whatsoever nature imposed by any government or any political or taxing
authority pursuant and subject to the provisions of Section 2.10(c) of the
Credit Agreement, the terms of which are incorporated herein by reference
as to the Guarantors as fully as if set forth herein, and for such
purposes, the rights and obligations of the Borrower under such Section
shall devolve to the Guarantors as to payments required to be made by the
Guarantors hereunder.
SECTION 15. ADDITIONAL GUARANTORS; RELEASE OF GUARANTORS.
Section 5.28 of the Credit Agreement provides that all new Subsidiaries and
must become Guarantors, by, among other things, executing and delivering to
the Agent a counterpart of this Guaranty. Any Subsidiary which executes
and delivers to the Agent a counterpart of this Guaranty shall be a
Guarantor for all purposes hereunder. Under certain circumstances
described in the last sentence of Section 5.05 of the Credit Agreement,
Guarantors may obtain from the Agent a written release from this Guaranty
pursuant to the provisions of such sentence, and upon obtaining such
written release, any such Subsidiary shall no longer be a Guarantor
hereunder. Each other Guarantor consents and agrees to any such release
and agrees that no such release shall affect its obligations hereunder.
SECTION 16. OTHER WAIVERS BY THE GUARANTORS. The Guarantors
hereby expressly waive, renounce, and agree not to assert, any right, claim
or cause of action, including, without limitation, a claim for
reimbursement, subrogation, indemnification or otherwise, against the
Borrower arising out of or by reason of this Guaranty or the obligations of
the Guarantors hereunder, including, without limitation, the payment or
securing or purchasing of any of the Guaranteed Obligations by the
Guarantors. The waiver, renunciation and agreement contained in the
immediately preceding sentence is for the benefit of the Agent and the
Banks and also for the benefit of the Borrower who may assert the benefits
thereof as a third-party beneficiary, and the Guarantors may be released
from such waiver, renunciation and agreement only by the execution and
delivery, by the Agent, the Required Banks and the Borrower, of an
instrument expressly releasing the Guarantors therefrom.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed, under seal, by its authorized officer as of the date first
above written.
By:
------------------------------
Title:
EXHIBIT L
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into
as of , , jointly and severally, by and among AMLI
Residential Properties, L.P., a Delaware limited partnership (the
"Principal"), and , a corporation (the
"Guarantor"; the terms "Guarantor" and "Guarantors" shall also include any
Subsidiary of the Principal which becomes a Guarantor pursuant to the last
paragraph hereof and Section 5.28 of the Credit Agreement referred to
below). The Principal and each of the Subsidiary Guarantors are sometimes
hereinafter referred to individually as a "Contributing Party" and
collectively as the "Contributing Parties").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement, dated as of July __, 1998 among the Principal, the Banks party
thereto, Wachovia Bank, N.A., as Agent and The First National Bank of
Chicago, as Documentation Agent (such agreement, as amended as of the date
hereof and as the same may from time to time be amended, modified, restated
or extended, being hereinafter referred to as the "Credit Agreement";
capitalized terms used herein shall have the meanings ascribed thereto in
the Credit Agreement), the Banks have agreed to extend financial
accommodations to the Principal;
WHEREAS, Section 5.28 of the Credit Agreement requires that the
Guarantor execute and deliver that certain Guaranty, dated as of even date
herewith (such agreement, as the same may from time to time be amended,
modified, restated or extended, being hereinafter referred to as the
"Guaranty"), pursuant to which, among other things, the Guarantor and,
together with other Guarantors which become such as contemplated in the
last paragraph hereof, have jointly and severally agreed to guarantee the
"Guaranteed Obligations" (as defined in the Guaranty); and
WHEREAS, each Guarantor is a direct or indirect subsidiary of
the Principal and is engaged in businesses related to those of the
Principal and each other Guarantor, and each of the Guarantors will derive
direct or indirect economic benefit from the effectiveness and existence of
the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce each Guarantor to enter into
the Guaranty, it is agreed as follows:
To the extent that any Guarantor shall, under the Guaranty, make
a payment (a "Guarantor Payment") of a portion of the Guaranteed
Obligations, then, without limiting its rights of subrogation against the
principal, such Guarantor shall be entitled to contribution and
indemnification from, and be reimbursed by, each of the other Contributing
Parties in an amount, for each such Contributing Party, equal to a fraction
of such Guarantor Payment, the numerator of which fraction is such
Contributing Party's Allocable Amount and the denominator of which is the
sum of the Allocable Amounts of all of the Contributing Parties.
As of any date of determination, the "Allocable Amount" of each
Contributing Party shall be equal to the maximum amount of liability which
could be asserted against such Contributing Party hereunder with respect to
the applicable Guarantor Payment without (i) rendering such Contributing
Party "insolvent" within the meaning of Section 101(31) of the Federal
Bankruptcy Code (the "Bankruptcy Code") or Section 2 of either the Uniform
Fraudulent Transfer Act (the "UFTA") or the Uniform Fraudulent Conveyance
Act (the "UFCA"), (ii) leaving such Contributing Party with unreasonably
small capital, within the meaning of Section 548 of the Bankruptcy Code or
Section 4 of the UFTA or Section 5 of the UFCA, or (iii) leaving such
Contributing Party unable to pay its debts as they become due within the
meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or
Section 6 of the UFCA.
This Agreement is intended only to define the relative rights of
the Contributing Parties, and nothing set forth in this Agreement is
intended to or shall impair the obligations of the Guarantors, jointly and
severally, to pay any amounts, as and when the same shall become due and
payable in accordance with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets in favor of each
Guarantor to which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by each
of the Contributing Parties and shall continue in full force and effect and
may not be terminated or otherwise revoked by any Contributing Party until
all of the Guaranteed Obligations shall have been indefeasibly paid in full
(in lawful money of the United States of America) and discharged and the
Credit Agreement and financing arrangements evidenced and governed by the
Credit Agreement shall have been terminated. Each Contributing Party
agrees that if, notwithstanding the foregoing, such Contributing Party
shall have any right under applicable law to terminate or revoke this
Agreement, and such Contributing Party shall attempt to exercise such
right, then such termination or revocation shall not be effective until a
written notice of such revocation or termination, specifically referring
hereto and signed by such Contributing Party, is actually received by each
of the other Contributing Parties and by the Agent at its notice address
set forth in the Credit Agreement. Such notice shall not affect the right
or power of any Contributing Party to enforce rights arising prior to
receipt of such written notice by each of the other Contributing Parties
and the Agent. If any Bank grants additional loans to the Principal or
takes other action giving rise to additional Guaranteed Obligations after
any Contributing Party has exercised any right to terminate or revoke this
Agreement but before the Agent receives such written notice, the rights of
each other Contributing Party to contribution and indemnification hereunder
in connection with any Guarantor Payments made with respect to such loans
or Guaranteed Obligations shall be the same as if such termination or
revocation had not occurred.
Section 5.28 of the Credit Agreement provides that new Subsidiaries,
must become Guarantors by, among other things, executing and delivering to
the Agent a counterpart of the Guaranty and of this Contribution Agreement.
Any Subsidiary which executes and delivers to the Agent a counterpart of
the Guaranty and of this Contribution Agreement shall be a Guarantor for
all purposes hereunder. Under certain circumstances described in the last
sentence of Section 5.05 of the Credit Agreement, Guarantors may obtain
from the Agent a written release from the Guaranty pursuant to the
provisions of such sentence, and upon obtaining such written release, any
such Subsidiary shall no longer be a Guarantor or Contributing Party
hereunder, and such release shall automatically and without further action
constitute a release by each other Contributing Party of all obligations of
such Subsidiary hereunder. Each other Guarantor consents and agrees to any
such release and agrees that no such release shall affect its obligations
hereunder, except as to the Subsidiary so released.
IN WITNESS WHEREOF, each Contributing Party has executed and delivered
this Agreement, under seal, as of the date first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.
(SEAL)
By: AMLI RESIDENTIAL PROPERTIES TRUST,
a Maryland real estate
investment trust,
its General Partner
By:
------------------------------
Title:
------------------------------
By:
------------------------------
Title:
EXHIBIT M
MONEY MARKET QUOTE REQUEST
Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Re: MONEY MARKET QUOTE REQUEST
This Money Market Quote Request is given in accordance with
Section 2.03 of the Amended and Restated Credit Agreement (as amended or
modified from time to time, the "Credit Agreement") dated as of July ,
1998, among AMLI RESIDENTIAL PROPERTIES, L.P., the Banks from time to time
parties thereto, and WACHOVIA BANK, N.A., as Agent. Terms defined in the
Credit Agreement are used herein as defined therein.
The Borrower hereby requests that the Agent obtain quotes for a Money
Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
______________, 19_____ (the "Money Market Borrowing Date").1*
2. The aggregate amount of the Money Market Borrowing shall be $
.2
3. The Stated Maturity Date(s) applicable to the Money Market
Borrowing shall be days.3
------------------------------
* All numbered footnotes appear on the last page of this Exhibit M.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware Limited Partnership
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust, its General
Partner
By:
------------------------------
Title:
1 The date must be a Euro-Dollar Business
Day.
2 The amount of the Money Market
Borrowing is subject to Section 2.03(a) and (b).
3 The Stated Maturity Dates are subject
to Section 2.03(b)(iii). The Borrower may request that up to 2 different
Stated Maturity Dates be applicable to any Money Market Borrowing, PROVIDED
that (i) each such Stated Maturity Date shall be deemed to be a separate
Money Market Quote Request and (ii) the Borrower shall specify the amounts
of such Money Market Borrowing to be subject to each such different Stated
Maturity Date.
EXHIBIT N
MONEY MARKET QUOTE
Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Re: Money Market Quote to
This Money Market Quote is given in accordance with Section
2.03(c)(ii) of the Credit Agreement (as amended or modified from time to
time, the "Credit Agreement") dated as of July ___, 1998, among AMLI
RESIDENTIAL PROPERTIES, L.P. (the "Borrower"), the Banks from time to time
parties thereto, and WACHOVIA BANK, N.A., as Agent. Terms defined in the
Credit Agreement are used herein as defined therein.
In response to the Borrower's Money Market Quote Request dated
, 19 , we hereby make the following Money Market Quote on the following
terms:
1. Quoting Bank:
2. Person to contact
at Quoting Bank:
3. Date of Money Market Borrowing:1*
4. We hereby offer to make Money Market Loan(s) in the following maximum
principal amounts for the following Interest Periods and at the following
rates:
Maximum Stated
Principal Maturity
Amount 2 Date 3 Rate Per Annum4
------------------------------
* All numbered footnotes appear on the last page of this Exhibit N.
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Money Market Loan(s) for
which any offer(s) [is] [are] accepted, in whole or in part (subject to the
last sentence of Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:
---------------------------
Authorized Officer
--------------------
1 As specified in the related Money Market Quote Request.
2 The principal amount bid for each Stated Maturity Date may not exceed
the principal amount requested. Money Market Quotes must be made for at
least [$5,000,000] or a larger integral multiple of [$500,000].
3 The Stated Maturity Dates are subject to Section 2.03(b)(ii).
4 Subject to Section 2.03(c)(ii)(C).
Schedule 4.08
Subsidiaries and Co-Investment Partnerships
Name Jurisdiction of Creation
Amli Partners Ltd. ▇▇-▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Amli Foundation Co-Investors, L.P. Delaware
Amli at Champions, L.P. Texas
Pleasant Hill Joint Venture Georgia
Amli at Windbrooke, L.P. Illinois
Amli Foundation Co-Investors-II, L.P. Delaware
▇▇▇▇▇▇▇ Lakes Limited Liability Company Delaware
Amli at Willeo Creek, L.P. Georgia
Amli at Chevy Chase, L.P. Illinois
Amli at Willowbrook, L.P. Illinois
Amli at River Exchange, L.L.C. Delaware
Acquiport/Aurora Crossing, L.P. Delaware
Acquiport/Fossil Creek, L.P. Delaware
Amli at Danada, L.L.C. Illinois
Amli at Verandah, L.P. Delaware
Schedule 4.14
Environmental Matters
None
Schedule 5.17
Existing Investments (12)
Real Estate Tax Escrow Deposits $1,043,708
▇▇▇▇▇▇▇ Money Deposits $ 400,100
Commercial Paper $ 550,000
Restricted Cash $ 538,179
Security Deposits $1,718,549
(12) Exclude Subsidiaries and Co-Investment Partnerships, which are
set forth on Schedule 4.08.