GABLES REALTY LIMITED PARTNERSHIP
The Banks Listed Herein
WACHOVIA BANK, N.A.,
as Administrative Agent,
FIRST UNION NATIONAL BANK,
as Syndication Agent,
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Documentation Agent
TABLE OF CONTENTS
AMENDED AND RESTATED CREDIT AGREEMENT
Page
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ARTICLE I
---------
DEFINITIONS..................................................................1
SECTION 1.01. Definitions....................................................1
SECTION 1.02. Accounting Terms and Determinations............................18
SECTION 1.03. References.....................................................18
SECTION 1.04. Use of Defined Terms...........................................19
SECTION 1.05. Terminology....................................................19
ARTICLE II
----------
THE CREDITS..................................................................19
SECTION 2.01. Commitments to Lend............................................19
SECTION 2.02. Method of Borrowing............................................19
SECTION 2.02A. Money Market Loans............................................22
SECTION 2.03. Notes..........................................................25
SECTION 2.04. Maturity of Loans..............................................26
SECTION 2.05. Interest Rates.................................................27
SECTION 2.06. Fees...........................................................30
SECTION 2.07. Optional Termination or Reduction of Commitments...............30
SECTION 2.08. Mandatory Reduction and Termination of Commitments.............31
SECTION 2.09. Optional Prepayments...........................................31
SECTION 2.10. Mandatory Prepayments..........................................31
SECTION 2.11. General Provisions as to Payments..............................32
SECTION 2.12. Computation of Interest and Fees...............................33
ARTICLE III
CONDITIONS TO BORROWINGS.....................................................34
SECTION 3.01. Conditions to First Borrowing..................................34
SECTION 3.02. Conditions to All Borrowings...................................36
ARTICLE IV
REPRESENTATIONS AND WARRANTIES...............................................37
SECTION 4.01. Partnership or Corporate Existence and Power...................37
SECTION 4.02. Partnership or Corporate and Governmental
Authorization; No Contravention.........................37
SECTION 4.03. Binding Effect.................................................37
SECTION 4.04. Financial and Property Information.............................38
SECTION 4.05. No Litigation..................................................38
SECTION 4.06. Compliance with ERISA..........................................38
SECTION 4.07. Compliance with Laws; Payment of Taxes.........................38
SECTION 4.08. Subsidiaries...................................................39
SECTION 4.09. Investment Company Act.........................................39
SECTION 4.10. Public Utility Holding Company Act.............................39
SECTION 4.11. Ownership of Property..........................................39
SECTION 4.12. No Default.....................................................39
SECTION 4.13. Full Disclosure................................................40
SECTION 4.14. Environmental Matters..........................................40
SECTION 4.15. Partner Interests and Capital Stock............................40
SECTION 4.16. Margin Stock...................................................41
SECTION 4.17. Insolvency.....................................................41
SECTION 4.18. Insurance......................................................41
SECTION 4.19. Real Estate Investment Trust...................................42
SECTION 4.20. Millennium Compliance..........................................42
ARTICLE V
COVENANTS....................................................................42
SECTION 5.01. Information....................................................42
SECTION 5.02. Inspection of Property, Books and Records......................44
SECTION 5.03. Total Secured Debt.............................................45
SECTION 5.04. Ratio of Total Debt to Total Assets Value......................45
SECTION 5.05. Interest Coverage..............................................45
SECTION 5.06. Restricted Payments............................................45
SECTION 5.07. Loans or Advances..............................................45
SECTION 5.09. Investments....................................................46
SECTION 5.10. Dissolution....................................................47
SECTION 5.11. Consolidations, Mergers and Sales of Assets....................47
SECTION 5.12. Use of Proceeds................................................48
SECTION 5.13. Compliance with Laws; Payment of Taxes.........................48
SECTION 5.14. Insurance......................................................48
SECTION 5.15. Change in Fiscal Year..........................................49
SECTION 5.16. Maintenance of Property; Principal Business....................49
SECTION 5.17. Environmental Notices..........................................49
SECTION 5.18. Environmental Matters..........................................49
SECTION 5.19. Environmental Release..........................................49
SECTION 5.20. Transactions with Affiliates...................................49
SECTION 5.21. Amendment of Other Agreements..................................50
SECTION 5.22. Qualification as a Real Estate Investment Trust;
General Partner...........................................50
SECTION 5.24. Certain Provisions Regarding Eligible Properties...............50
SECTION 5.25 Restrictions of Certain Additional Guarantees..................51
SECTION 5.26 Maintenance of Existence.......................................51
SECTION 5.27 Ratio of Total Unencumbered Assets Value to
Unsecured Funded Debt......................................51
ARTICLE VI
DEFAULTS.....................................................................51
SECTION 6.01. Events of Default..............................................51
SECTION 6.02. Notice of Default..............................................54
ARTICLE VII
THE ADMINISTRATIVE AGENT.....................................................54
SECTION 7.01. Appointment; Powers and Immunities.............................54
SECTION 7.02. Reliance by Administrative Agent...............................55
SECTION 7.03. Defaults.......................................................55
SECTION 7.04. Rights of Administrative Agent and its Affiliates
as a Bank................................................56
SECTION 7.05. Indemnification................................................56
SECTION 7.06 Consequential Damages..........................................57
SECTION 7.07. Payee of Note Treated as Owner.................................57
SECTION 7.08. Nonreliance on Administrative Agent and Other Banks............57
SECTION 7.09. Failure to Act.................................................58
SECTION 7.10. Resignation or Removal of Administrative Agent.................58
SECTION 7.11 Administrative Agent's Right to Replace Non-Qualifying Bank....59
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION........................................60
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.......60
SECTION 8.02. Illegality.....................................................60
SECTION 8.03. Increased Cost and Reduced Return..............................61
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans.....62
SECTION 8.05. Compensation...................................................62
ARTICLE IX
MISCELLANEOUS................................................................63
SECTION 9.01. Notices........................................................63
SECTION 9.02. No Waivers.....................................................63
SECTION 9.03. Expenses; Documentary Taxes....................................64
SECTION 9.04. Indemnification................................................64
SECTION 9.05. Sharing of Setoffs.............................................65
SECTION 9.06. Amendments and Waivers.........................................65
SECTION 9.07. No Margin Stock Collateral.....................................66
SECTION 9.08. Successors and Assigns.........................................66
SECTION 9.09. Confidentiality................................................68
SECTION 9.10. Representation by Banks........................................69
SECTION 9.11. Obligations Several............................................69
SECTION 9.12. Georgia Law....................................................69
SECTION 9.13. Severability...................................................70
SECTION 9.14. Interest.......................................................70
SECTION 9.15. Interpretation.................................................71
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction..................71
SECTION 9.17. Counterparts...................................................71
SECTION 9.18. Source of Funds -- ERISA.......................................71
SECTION 9.19. Entire Agreement...............................................71
SECTION 9.20. More Restrictive Agreements....................................72
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Administrative 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 Borrowing Base Certificate
EXHIBIT I * Form of Guaranty
EXHIBIT J * Form of Contribution Agreement
EXHIBIT K Form of Money Market Quote Request
EXHIBIT L Form of Money Market Quote
Schedule 4.08 Subsidiaries
* Enclosed herewith
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 13, 1998 among GABLES
REALTY LIMITED PARTNERSHIP, the BANKS listed on the signature pages hereof,
WACHOVIA BANK, N.A., as Administrative Agent, FIRST UNION NATIONAL BANK, as
Syndication Agent, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as
Documentation Agent.
The parties hereto agree as follows:
This Amended and Restated Credit Agreement is an amendment and restatement
of the $175,000,000 Credit Agreement by and among the Borrower, Wachovia Bank,
N.A. (successor by merger to Wachovia Bank of Georgia, N.A.), First Union
National Bank (successor by merger to First Union National Bank of Georgia),
Guaranty Federal Bank, F.S.B., AmSouth Bank and Commerzbank AG, Atlanta Agency,
and Wachovia Bank, N.A. (successor by merger to Wachovia Bank of Georgia, N.A.),
as the Agent, dated as of March 28, 1996, as amended prior to the date hereof by
First Amendment to Credit Agreement dated as of November 22, 1996, Second
Amendment to Credit Agreement dated as of March 19, 1997 and Amended and
Restated Credit Agreement dated as of August 5, 1997 (as so amended and amended
and restated, the "Original Agreement"), which is superseded hereby.
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 2.05(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.
"Administrative Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as administrative agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Administrative Agent's Letter Agreement" means that certain letter
agreement, dated as of June 24, 1997 between the Borrower and the Administrative
Agent, but only as it relates to certain fees from time to time payable by the
Borrower to the Administrative Agent.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
"Applicable Margin" has the meaning set forth in Section 2.05(a).
"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) three quarters
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 Loan" means a 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 Gables Realty Limited Partnership, a Delaware limited
partnership, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Syndicated Loans or
Money Market Loans. A Borrowing is a "Syndicated Borrowing" if such Loans are
Syndicated Loans, a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans,
a "Money Market Borrowing" if such Loans are Money Market Loans and a "Fixed
Rate Borrowing" if such Loans are 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:
(i) an amount equal to the product of: (x) 7.22222; times (y) the Net
Operating Income for the 12 month period ending on the last day of the
month just ended prior to the date of determination, from each Eligible
Property which either was on average at least 90% Economically Occupied
during, or with respect to which the Construction Period Termination Date
occurred prior to the commencement of, such 12 month period; provided, that
if an Eligible Property satisfies the criteria set forth in both this
clause (i) and in clause (ii) below, it shall be included in the
calculations only in this clause (i); plus
(ii) an amount equal to the product of: (▇) ▇▇.▇▇▇▇▇; times (y) the
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 Eligible
Property with respect to which the Construction Period Termination Date did
not occur prior to the commencement of the 12 month period ending on the
last day of the month just ended prior to the date of determination; plus
(iii) an amount equal to the lesser of: (x) 50% of the aggregate
amount of cash expenditures (including indirect costs internally allocated
in accordance with GAAP) as of the last day of the month just ended prior
to the date of determination on all Eligible Properties which consist of
Properties as to which the Construction Period Termination Date has not
occurred as of such last day of the month just ended (provided, that no
more than an aggregate of $5,000,000 for all Eligible Properties shall be
included for land on which construction has not commenced); and (y)
$50,000,000; less
(iv) the aggregate amount of all outstanding unsecured Consolidated
Debt including standby letters of credit, but excluding the outstanding
balance under this Agreement.
"Borrowing Base Certificate" means a certificate substantially in the form
of EXHIBIT H, duly executed by the chief financial officer of the General
Partner, setting forth in reasonable detail the calculations for each component
of the Borrowing Base, and certifying availability of funds sufficient to
complete all Eligible Properties then under construction.
"Capital Stock" means any nonredeemable capital stock or shares of
beneficial ownership of GBP or any Consolidated Subsidiary (to the extent issued
to a Person other than GBP), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. 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" shall mean the occurrence of any of the following:
(i) more than 50% of the outstanding voting common stock of GBP is owned,
directly or indirectly, by less than 6 "individuals" (as provided in Section
542(a)(2) of the Code); or (ii) a majority of the Persons comprising the Board
of Directors of GBP shall during any 12 month period cease to serve on the Board
of Directors of GBP for any reason other than disability or death; or (iii) the
Borrower or any Guarantor shall fail to maintain their current partnership or
corporate status; or (iv) GBP shall fail to own at least 65% of the partnership
interests in the Borrower; or (v) the Borrower shall fail to own at least 99% of
the partnership interests in ▇▇▇▇▇-Tennessee Properties and Candlewood-Indian
Creek, L.P.
"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 May 13, 1998.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"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 2.07 and 2.08.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Debt" means at any date the Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Income Available for Debt Service" shall mean, calculated on
a consolidated basis, the sum of the Borrower's and its Subsidiaries': (i) net
income before minority interests and extraordinary items in accordance with
GAAP, plus (ii) depreciation and amortization, plus (iii) losses from sales or
joint ventures, plus (iv) increases in deferred taxes and other non-cash items,
minus (v) gains from sales or joint ventures, minus (vi) decreases in deferred
taxes and other non-cash items, plus (vii) interest expense and letter of credit
fees on tax exempt bonds and plus (viii) taxes (excluding ad valorem taxes).
"Consolidated Income Available for Distribution" means, in any calendar
year, the sum of the following for such calendar year, calculated on a
consolidated basis for the Borrower and its Subsidiaries: (i) Consolidated
Income Available for Debt Service, less (ii) interest expense and letter of
credit fees on tax exempt bonds, and less (iii) taxes (excluding ad valorem
taxes and taxes on gains described in clause (v) of the definition of
Consolidated Income Available for Debt Service).
"Consolidated Interest Expense" for any period means interest in respect of
Debt (excluding capitalized interest) of the Borrower or any of its Consolidated
Subsidiaries outstanding during such period.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be consolidated with those
of the Borrower in its consolidated financial statements as of such date.
"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.
"Contribution Agreement" means the Contribution Agreement of even date
herewith in substantially the form of Exhibit J to be executed by the Borrower
and the Guarantors.
"Construction Period Termination Date" means, with respect to construction
of Multi-Family Properties for Eligible Properties, the date which is 3 months
after the issuance of a permanent certificate of occupancy for the last unit of
such Multi-Family Property which is an Eligible Property.
"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.
"Current Maturities of Long Term Debt" means all payments in respect of
Long Term Debt (other than Debt under this Agreement) that are required to be
made within one year from the date of determination, whether or not the
obligation to make such payments would constitute a current liability of the
obligor under GAAP, excluding, however, any such payment required to be made on
the ultimate maturity date of such Debt.
"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 obligations of others secured by a Lien on any
asset of such Person, whether or not such obligations are assumed by such
Person, and (ix) all obligations of others Guaranteed by such Person.
"Debt Rating" means at any time whichever is the higher of the rating of
the Borrower's senior unsecured, unenhanced debt (or, if no such debt exists,
its issuer credit rating for debt of such type) by ▇▇▇▇▇'▇ Investor Service or
Standard and Poor's (as such rating may change from time to time, either
pursuant to Section 2.05(f) or otherwise) (provided, that in the event of a
double or greater split rating, the rating immediately above the lower rating
shall apply), or if only one of them rates the Borrower's senior unsecured,
unenhanced debt, such rating.
"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 interest rate (including the Applicable Margin) which is applicable to
such Loan hereunder.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in Georgia are authorized by law to close
(including, without limitation, any day which is a federal banking holiday in
the United States of America).
"Economically Occupied" means, with respect to any Eligible Property or
Multi-Family Property and in reference to a specified percentage, that tenants
paying rental obligations are occupying at least the specified percentage of the
total number of units at such Eligible Property or Multi-Family Property, as the
case may be.
"Eligible Property" means (i) a Multi-Family Property of the Borrower or
any of the Guarantors consisting of real estate as to which there is no Mortgage
in existence encumbering such Property and (ii) the Wachovia LC Properties, and
such Multi-Family Property or Wachovia LC Property is subject to no other Liens
or encumbrances, other than Permitted Encumbrances.
"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 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 Loan which bears or is to bear interest at a
rate based upon the Adjusted London Interbank Offered 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
2.05(d).
"Event of Default" has the meaning set forth in Section 6.01.
"Executive Officer" means any of the following officers of the General
Partner: the chairman, the president, the chief financial officer, the chief
accounting officer, any senior vice president and the secretary.
"Facility Fee" has the meaning set forth in Section 2.06(a).
"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 Administrative Agent on such
day on such transactions, as determined by the Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Rate Loan" means any Euro-Dollar Loan or Money Market Loan.
"Funded Debt" means, without duplication, Long-Term Debt plus Current
Maturities of Long-Term Debt.
"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.
"GBP" means Gables Residential Trust, a Maryland trust.
"General Partner" means the sole general partner of the Borrower (which, on
the Closing Date, is Gables GP, Inc.) or, if there is more than one such general
partner, the managing general partner of the Borrower.
"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.
"Guaranty" means the Guaranty Agreement of even date herewith in
substantially the form of Exhibit I to be executed by the Guarantors,
unconditionally and jointly and severally Guaranteeing payment of the Loans, the
Notes and all other obligations of the Borrower to the Administrative Agent and
the Banks hereunder, including without limitation all principal, interest, fees,
costs, and compensation and indemnification amounts.
"Guarantors" means any one or more or all of the following, as the context
shall require: (i) GBP, Gables GP, Inc., a Texas corporation, and
Gables-Tennessee Properties, a Tennessee general partnership; and (ii) any
Significant Subsidiary which becomes a Guarantor pursuant to Section 5.23; and
(iii) any other Subsidiary which elects to become a Guarantor pursuant to
Section 5.23; in each case subject to the provisions of the last sentence of
Section 5.11.
"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. 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.
"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.
(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.
(3) 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 begins before the
Termination Date and would otherwise 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, Guarantee or assumption of any obligation of such
Person or otherwise.
"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 Administrative
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 or encumbrance, or 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, Money Market Loan or
Syndicated Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans, Money
Market Loans or Syndicated 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 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
2.05(d).
"Long-Term Debt" means at any date any Consolidated Debt which matures (or
the maturity of which may at the option of the Borrower or any Consolidated
Subsidiary be extended such that it matures) more than one year after such date.
"Margin Stock" means "margin stock" as defined in Regulations G, 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 or properties of GBP, the General Partner, the
Borrower and its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Administrative Agent or the Banks under the Loan Documents, or
the ability of the Borrower 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 2.02A.
"Money Market Loan" means any Loan made by one or more of the Banks
pursuant to Section 2.02(A).
"Money Market Loan Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit A-2, 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 2.02A.
"Money Market Quote Request" has the meaning specified in Section 2.02A(b).
"Money Market Rate" has the meaning specified in Section 2.02A(c)(ii)(C).
"Mortgage" means a mortgage, deed to secure debt, deed of trust or similar
instrument.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"Multi-Family Property" means residential apartment communities and
undeveloped land acquired for development thereof.
"Net Operating Income" means, for any Multi-Family Property, the portion of
Consolidated Income Available for Debt Service derived from such Multi-Family
Property (which calculation includes an assumed 4% for management services).
"Notes" means each of the Syndicated Loan Notes or Money Market Loan Notes,
or any or all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Officer's Certificate" has the meaning set forth in Section 3.01(f).
"Original Agreement" has the meaning set forth in the preamble hereto.
"Original Notes" means the Notes executed and delivered pursuant to the
Original Agreement.
"Participant" has the meaning set forth in Section 9.08(b).
"Partner Interests" means any partner interests in the Borrower, whether
limited or general.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means, with respect to any Eligible Property
included in the Borrowing Base, (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, (ii) any
Mortgage in favor of the relevant institutional trustee only (but not in favor
of Wachovia, as letter of credit issuer), with respect to the Wachovia LC
Properties, and (iii) any other Liens and encumbrances expressly consented to by
the Administrative Agent.
"Performance Pricing Determination Date" has the meaning set forth in
Section 2.05(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"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 Borrower or any Subsidiary, wherever located.
"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 for cash (by sinking fund or similar payments or
otherwise) or (ii) redeemable for cash 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 Rate 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 Loan or 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 Administrative Agent as provided in Section
2.11, in each case as contemplated in Section 2.02(d).
"Regulation G" means Regulation G 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 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 distribution on any Partner Interests
(other than distributions consisting solely of additional Partner Interests) or
(ii) any payment on account of the purchase, redemption, retirement or
acquisition of (a) any Partner Interests or (b) any option, warrant or other
right to acquire Partner Interests.
"Significant Subsidiary" means any Subsidiary which either (x) has assets
which constitute more than 5% of Consolidated Total Assets at the end of the
most recent Fiscal Quarter, or (y) contributed more than 5% of Consolidated
Income Available for Debt Service during the most recent Fiscal Quarter and the
3 Fiscal Quarters immediately preceding such Fiscal Quarter (or, with respect to
any Subsidiary which existed during the entire 4 Fiscal Quarter period but was
acquired by the Borrower during such period, which would have contributed more
than 5% of Consolidated Income Available for Debt Service during such period had
it been a Subsidiary for the entire period).
"South Florida Acquisition" means the Borrower's acquisition of the
properties and operations of ▇▇▇▇▇▇▇▇ ▇▇▇▇ Residential South Florida ("TCR/SF"),
which consists of up to 15 multifamily apartment communities containing a total
of 4,197 apartment homes and all of TCR/SF's residential construction and
development and third party management activities in South Florida, pursuant to
a definitive purchase agreement containing terms which include total
consideration of $368,250,000, consisting of $77,375,000 in common stock or
operating apartment units, $155,000,000 in cash and the assumption of
$135,875,000 in tax-exempt debt.
"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 (i) any corporation or other entity the majority of the
shares of the non-voting capital stock or other equivalent ownership interests
of which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower and/or GBP, and the majority of the shares of
the voting capital stock or other equivalent ownership interests of which
(except directors' qualifying shares) are at the time directly or indirectly
owned by the Borrower, GBP, the General Partner, another Subsidiary, and/or one
or more of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and C. ▇▇▇▇▇▇
▇▇▇▇▇ (or, in the event of death or disability of any of the foregoing
individuals, his respective legal representative(s)), or such individuals'
successors in office as an officer of such Subsidiary or the Secretary of such
Subsidiary, and (ii) any other entity (other than GBP or the Borrower) the
accounts of which are consolidated with the accounts of the Borrower.
"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 2.11(c).
"Termination Date" means May 13, 2001, provided, that if any of the
following events occur, the Termination Date shall be such earlier date or later
date as is applicable pursuant to the following: (i) such later date to which it
is extended by the Banks pursuant to Section 2.04(b), in their sole and absolute
discretion; (ii) such earlier date on which the Commitments are terminated
pursuant to Section 2.08 following the occurrence of a Change in Control; (iii)
such earlier date on which the Commitments are terminated pursuant to Section
6.01 following the occurrence of an Event of Default; or (iv) such earlier date
on which 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 Assets Value" means the sum of:
(i) the quotient of (x) the Net Operating Income for the 12 month
period ending on the last day of the month just ended prior to the date of
determination, from each Multi-Family Property which either was on average
at least 90% Economically Occupied during, or with respect to which the
Construction Period Termination Date occurred prior to the commencement of,
such 12 month period, divided by (y) 0.09; provided, that if an Eligible
Property satisfies the criteria set forth in both this clause(i) and in
clause (ii) below, it shall be included in the calculations only in clause
(ii) below; plus
(ii) an amount equal to the quotient of (x) 400% of the 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 Multi-Family Property
with respect to which the Construction Period Termination Date did not
occur prior to the commencement of the 12 month period ending on the last
day of the month just ended prior to the date of determination, divided by
(y) 0.09; plus
(iii) an amount equal to 50% of the aggregate amount of cash
expenditures (including indirect costs internally allocated in accordance
with GAAP) as of the last day of the month just ended prior to the date of
determination on all Multi-Family Properties as to which the Construction
Period Termination Date has not occurred as of such last day of the month
just ended.
"Total Debt" shall mean the sum (without duplication) of (i) total
liabilities of the Borrower and the Guarantors, on a consolidated basis, plus
(ii) the aggregate amount of Debt Guaranteed by the Borrower, the Guarantors and
the other Subsidiaries (other than Guarantees which have been fully cash
collateralized), plus the face amount of all letters of credit for which any of
the Borrower or the Guarantors is the account party, determined at the end of
the Borrower's most recent Fiscal Quarter.
"Total Secured Debt" shall mean, without duplication, all Debt of the
Borrower and the Guarantors consisting of: (i) capitalized leases; (ii) money
borrowed or the deferred purchase price of real property which is also secured
by a Mortgage on any real property owned by the Borrower or any Guarantor; or
(iii) reimbursement obligations pertaining to any letter of credit.
"Total Unencumbered Assets Value" means Total Assets Value, but determined
with reference only to (i) Multi-Family Properties which are not subject to a
Mortgage and (ii) the Wachovia LC Properties.
"Transferee" has the meaning set forth in Section 9.08(d).
"Unsecured Funded Debt" means any Funded Debt which is not secured by a
Mortgage on any Property, other than, with respect to the Wachovia LC
Properties, any Permitted Encumbrance.
"Unused Commitment" means at any date, with respect to any Bank, an amount
equal to the sum of (i) its Commitment, less (ii) the aggregate outstanding
principal amount of its Syndicated Loans(but not its Money Market Loans).
"Wachovia" means Wachovia Bank, N.A., a national banking association, and
its successors.
"Wachovia LC Properties" means the following Properties, as to each of
which Wachovia has issued its unsecured letter of credit to an institutional
trustee as a credit enhancement for revenue bonds or similar instruments: the
Arbor Crest project, the Arbor ▇▇▇▇▇ project, the Wood Arbor project and the
Wood Crossing Project.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of the
non-voting capital stock or other equivalent ownership interests of which
(except directors' qualifying shares) are at the time directly or indirectly
owned by the Borrower and/or GBP, and all of the shares of the voting capital
stock or other equivalent ownership interests of which are at the time directly
or indirectly owned by the Borrower, GBP, another Wholly Owned Subsidiary,
and/or one or more of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
and C. ▇▇▇▇▇▇ ▇▇▇▇▇ (or, in the event of death or disability of any of the
foregoing individuals, his respective legal representative(s)), or such
individuals' successors in office as an officer of such Subsidiary or the
Secretary of such Subsidiary.
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, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (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. (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 principal amount of all Syndicated
Loans and Money Market 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 $3,000,000 or any larger integral multiple of $500,000 (except that
any such Syndicated 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.
SECTION 2.02. METHOD OF BORROWING. (a) The Borrower shall give the
Administrative Agent notice (a "Notice of Borrowing"), which shall be
substantially in the form of Exhibit E, prior to 10:00 A.M. (Atlanta, Georgia
time) on the same Domestic Business Day for each Base Rate Borrowing and at
least 3 Euro-Dollar Business Days before each Euro-Dollar Borrowing, specifying:
(i) the date of such 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 Borrowing,
(iii) whether the Borrowing is to be a Base Rate Borrowing or a
Euro-Dollar Borrowing,
(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 Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Borrowing and such Notice of Borrowing, once received by the
Administrative Agent, shall not thereafter be revocable by the Borrower.(c) Not
later than 2:00 P.M. (Atlanta, Georgia time) on the date of each Syndicated
Borrowing (or, if the notice required to be given by the Administrative Agent
pursuant to paragraph (b) of this Section shall be given later than 12:00 Noon,
Atlanta, Georgia time on the date of any Syndicated Borrowing, not later than
two (2) hours following the time such notice is given on the date of each
Syndicated Borrowing), each Bank 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
Administrative Agent at its address determined pursuant to Section 9.01. Unless
the Administrative Agent determines that any applicable condition specified in
Article IV has not been satisfied, the Administrative Agent will make the funds
so received from the Banks available to the Borrower at the Administrative
Agent's aforesaid address. Unless the Administrative Agent receives notice from
a Bank, at the Administrative 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 (or, with
respect to Base Rate Loans, by 2:00 P.M. on the date of such Syndicated
Borrowing) stating that such Bank will not make a Syndicated Loan in connection
with such Syndicated Borrowing, the Administrative 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 Administrative
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 Administrative Agent makes such Bank's ratable share available to the
Borrower as provided above and such Bank does not in fact make its ratable share
of such Syndicated Borrowing available on such date, the Administrative 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 Administrative 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 Administrative 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 Administrative 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 Administrative Agent as provided in
paragraph (c) of this Section, or remitted by the Borrower to the Administrative
Agent as provided in Section 2.11, as the case may be.
(e) Notwithstanding anything to the contrary contained in this Agreement, no
Euro-Dollar Borrowing or Money Market 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 more than 8 Euro-Dollar Borrowings and Money Market Borrowings outstanding at
any given time.
SECTION 2.02 A. MONEY MARKET LOANS. (a) In addition to making Syndicated
Borrowings, so long as the Debt Rating is BBB- or Baa3 or higher, the Borrower
may, as set forth in this Section 2.02A, 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
2.02A, provided that:
(i) the number of interest rates applicable to 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 at any
one time outstanding shall not exceed an amount equal to 50% of the
aggregate amount of the Commitments of all of the Banks at such time;
(iii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans, at
any one time outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time; and
(iv) the Money Market Loans of any Bank will be deemed to be usage of
the Commitments for the purpose of calculating availability pursuant to
Section 2.01(a)(ii) and 2.02A(a)(iii), but will not reduce such Bank's
obligation to lend its pro rata share of the remaining Unused Commitment.
(b) When the Borrower wishes to request offers to make Money Market Loans,
it shall give the Administrative Agent (which shall promptly notify the Banks)
notice substantially in the form of Exhibit K (a "Money Market Quote Request")
so as to be received no later than 10:00 A.M. (Atlanta, Georgia time) at least 2
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 Administrative
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 $3,000,000 (and
in larger integral multiples of $1,000,000) but shall not cause the limits
specified in Section 2.02A(a) to be violated.
The Borrower may request offers to make Money Market Loans having up to 3
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 Administrative
Agent, the Banks and the Borrower pursuant to this Section 2.02A.
(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 L (a "Money Market Quote") in response to any Money Market Quote
Request; provided that, if the Borrower's request under Section 2.02A(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
Administrative 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 5.01, any Money Market Quote so made
shall be irrevocable except with the written consent of the Administrative 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 $3,000,000 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 Administrative 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 Administrative 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 2.02A(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 Administrative
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Administrative 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 Administrative Agent of its
acceptance or nonacceptance of the offers so notified to it pursuant to Section
2.02A(d) and the Administrative 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 $3,000,000 (and in
larger integral multiples of $1,000,000) but shall not cause the limits
specified in Section 2.02A(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 Administrative
Agent has advised the Borrower that such offer fails to comply with Section
2.02A(c)(ii) or otherwise fails to comply with the requirements of this
Agreement (including without limitation, Section 2.02A(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 12:00 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 Administrative Agent at its address referred to in Section 8.01
in immediately available funds. The amount so received by the Administrative
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 2:00 P.M. (Atlanta, Georgia time), in an account
of such Borrower maintained with Wachovia.
(g) After any Money Market Loan has been funded, the Administrative 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 2.03. 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.
(b) 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 50% of the original
principal amount of the aggregate Commitments.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01, the
Administrative Agent shall deliver such Notes to such Bank. Each Bank shall
record, and prior to any transfer of its Notes shall endorse on the schedules
forming a part thereof appropriate notations to evidence, the date, amount and
maturity of, and effective interest rate for, each Loan made by 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 Notes shall constitute rebuttable
presumptive evidence of the respective principal amounts owing and unpaid on
such Bank's Notes; provided that the failure of any Bank to make, or any error
in making, any such recordation or endorsement shall not affect the obligation
of the Borrower hereunder or under the Notes or the ability of any Bank to
assign its Notes. Each Bank is hereby irrevocably authorized by the Borrower so
to endorse its Notes and to attach to and make a part of any Note a continuation
of any such schedule as and when required.
(d) In the event of loss, theft, destruction, total or partial
obliteration, mutilation or inappropriate cancellation of a Note, the Borrower
will execute and deliver, in lieu thereof, a replacement Note identical in form
and substance to such Note and dated as of the date of such Note.
SECTION 2.04. MATURITY OF LOANS. (a) Each Loan included in any Borrowing
shall mature, and the principal amount thereof and interest thereon 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 May 13, 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 90 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 then current Termination Date for additional one-year
periods from the then current Termination Date on but not before each of May 13,
1999 and May 13, 2000 (each, an "Extension Date"), but in no event shall the
Commitment of any Bank or any Loan hereunder be outstanding for a period greater
than three (3) years. Notwithstanding any request by the Borrower as described
in the foregoing sentence, in the event that a Bank chooses, in its sole and
absolute discretion, not 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 not more than 60 days but not less than 45 days prior to the relevant
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 either (x) the remaining Banks shall elect to purchase
ratable assignments (without any obligation so to do) from such 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 30 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, or (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) or (z) the Borrower shall
reduce the aggregate Commitments in an amount equal to the Commitment of any
such terminating Bank and pay to the terminating Bank all principal, interest,
fees and other amounts then payable to it hereunder and under such terminating
Bank's Notes. Notwithstanding the foregoing, if the Termination Date is not
extended for an additional one year period on each Extension Date, there shall
be no further Extension Dates or extensions of the Termination Date. If the
Termination Date is extended for an additional one year period on each Extension
Date, the Borrower shall pay to the Agent, for the ratable account of the
remaining Banks, an extension fee in an amount equal to 0.1% of the aggregate
Commitments in effect on the relevant Extension Date, which fee shall be payable
on such Extension Date.
SECTION 2.05. INTEREST RATES. (a) "Applicable Margin" means (i) for the
period commencing on the Closing Date to and including the first Performance
Pricing Determination Date, (x) for any Base Rate Loan, (0.25)%, and (y) for any
Euro-Dollar Loan, 0.80%; and (ii) from and after the first Performance Pricing
Determination Date, (x) for any Base Rate Loan, (0.25)% and (y) for each
Euro-Dollar Loan, the percentage determined on each Performance Pricing
Determination Date by reference to the table set forth below as to such type of
Loan and the Debt Rating for the quarterly or annual period ending immediately
prior to such Performance Pricing Determination Date; provided, that (i) if
there is no Debt Rating, the Applicable Margin for Euro-Dollar Loans shall be
based upon Level IV of the table below, and (ii) for Euro-Dollar Loans in effect
under the Original Agreement on the Closing Date, the Applicable Margin in
effect under the Original Agreement shall continue to apply thereto for the
remainder of the Interest Period with respect thereto.
================= =================== ============ ============ ==============
Level I Level II Level III Level IV
----------------- ------------------- ------------ ------------ --------------
Debt Rating Equal to or greater BBB BBB- Less than BBB-
than BBB+
or or or or
Equal to or greater
than ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Less than Baa3
----------------- ------------------- ------------ ------------ --------------
Applicable Margin 0.675 0.80 0.95 1.15
================= =================== ============ ============ ==============
In determining the amounts to be paid by the Borrower pursuant to Sections
2.05(b), and 2.06(a), 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 Debt Rating changes. Each
change in interest and fees as a result of a change in 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 Administrative Agent unless the Required Banks or
the Borrower shall object to any such determination. The Borrower shall promptly
notify the Administrative Agent of any change in the 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 less 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 1 month, at intervals of 1 month 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 Telerate 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 Administrative 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 equal or 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) The Administrative 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.
(e) 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.
(f) 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.
SECTION 2.06. FEES. (a) The Borrower shall pay to the Administrative Agent,
for the ratable account of each Bank, a facility fee (the "Facility Fee") on the
maximum amount of the aggregate Commitments in effect for any relevant period,
irrespective of usage, calculated in the manner provided in Section 2.06(a)(ii),
at a rate per annum equal to (i) for the period commencing on the Closing Date
to and including the first Performance Pricing Determination Date, 0.15%, and
(ii) from and after the first Performance Pricing Determination Date, the
percentage determined on each Performance Pricing Determination Date by
reference to the table set forth below and the Debt Rating for the quarterly or
annual period ending immediately prior to such Performance Pricing Determination
Date; provided, that if there is no Debt Rating, the Facility Fee shall be based
upon Level IV of the table below. The Facility Fee shall accrue at all times
from and including the Closing Date to but excluding the Termination Date and
shall be payable, in arrears, on each March 31, June 30, September 30 and
December 31 and on the Termination Date.
================= ================== ============= ============ ==============
Level I Level II Level III Level IV
----------------- ------------------ ------------- ------------ --------------
Debt Rating Equal to or greater BBB BBB- Less than BBB-
than BBB+
or or or or
Equal to or greater
than ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Less than Baa3
----------------- ------------------- ------------ ------------ --------------
Facility Fee 0.125 0.15 0.15 0.15
================= =================== ============ ============ ==============
(b) The Borrower shall pay to the Administrative Agent, for the account and
sole benefit of the Administrative Agent, such fees and other amounts at such
times as set forth in the Administrative Agent's Letter Agreement.
SECTION 2.07. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The
Borrower may, upon at least 3 Domestic Business Days' notice to the
Administrative Agent, terminate at any time, or proportionately reduce the
Unused Commitments from time to time by an aggregate amount of at least
$5,000,000 or any larger integral multiple of $1,000,000. If the Commitments are
terminated in their entirety, all accrued fees (as provided under Section 2.06)
shall be due and payable on the effective date of such termination.
SECTION 2.08. MANDATORY REDUCTION AND TERMINATION OF COMMITMENTS. The
Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
such date. In the event of a Change in Control, the Administrative Agent (acting
at the direction of the Required Banks) may terminate the Commitments on a date
specified in a notice to the Borrower, which date (i) must be at least 3
Domestic Business Days following the date of such notice, and (ii) shall
constitute the Termination Date for all purposes hereunder.
SECTION 2.09. OPTIONAL PREPAYMENTS. (a) The Borrower may, upon at least 2
Domestic Business Days' notice to the Administrative Agent, prepay any Fixed
Rate Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least $3,000,000 or any larger integral multiple of $500,000, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment, plus the amount of compensation determined to be due
pursuant to Section 8.05, if such prepayment is not made on the last of an
Interest Period. Each such optional prepayment shall be applied to prepay
ratably the Fixed Rate Loans of the several Banks included in such Fixed Rate
Borrowing.
(b) The Borrower may, upon at least 1 Domestic Business Days' notice to the
Administrative Agent, prepay any Base Rate Borrowing in whole at any time, or
from time to time in part in amounts aggregating at least $ 3,000,000 or any
larger integral multiple of $500,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the Base Rate Loans
of the several Banks included in such Base Rate Borrowing.
(c) Upon receipt of a notice of prepayment pursuant to this Section 2.09,
the Administrative 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 Administrative Agent, shall not thereafter be revocable by the
Borrower.
SECTION 2.10. MANDATORY PREPAYMENTS. (a) On each date on which the
Commitments are reduced pursuant to Section 2.07, the Borrower shall repay or
prepay such principal amount of the outstanding Loans, if any (together with
interest accrued thereon and any amount required to be paid pursuant to Section
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. On the Termination Date, the Borrower shall make
the payments required to be made pursuant to Section 2.08.
(b) On each date on which the aggregate outstanding principal amount of all
Syndicated Loans and Money Market Loans exceeds the lesser of (A) the aggregate
amount of the Commitments and (B) the Borrowing Base (the "Excess"), 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)), by the amount of the Excess.
(c) Each such payment or prepayment 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 Base Rate Loans; (ii) secondly, to Euro-Dollar
Loans; and (iii) lastly, to Money Market Loans.
SECTION 2.11. 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 1:00 P.M. (Atlanta, Georgia time) on the date when
due, in Federal or other funds immediately available in Atlanta, Georgia, to the
Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will distribute to each Bank its ratable share of each such
payment received by the Administrative Agent for the account of the Banks, such
payment to be distributed by the Administrative Agent (x) by 2:00 P.M. on the
date of receipt by the Administrative Agent, provided that such payment was
received by the Administrative Agent by 1:00 P.M. (Atlanta, Georgia time), and
(y) by 2:00 P.M. (Atlanta, Georgia time) on the date following the date of
receipt by the Administrative Agent, if such payment was received by the
Administrative Agent after 1:00 P.M. (Atlanta, Georgia time). If the
Administrative Agent shall fail to make such distribution within the time
required by the immediately preceding sentence, such distribution shall be made
together with interest thereon, for each day during the period from the date
such distribution should have been so made until the date such distribution
actually is made, at a rate per annum equal to the Federal Funds Rate.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or 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.
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 2.11(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 2.11(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 2.12. COMPUTATION OF INTEREST AND FEES. Interest on Base Rate Loans
and Money Market Loans 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). Interest on Euro-Dollar 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. CONDITIONS TO FIRST BORROWING. The obligation of each Bank to
make a Syndicated Loan on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in Section 3.02 and receipt by the
Administrative 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
Administrative 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
Administrative Agent by overnight courier);
(b) a duly executed Syndicated Loan Note and Money Market Loan Note for the
account of each Bank complying with the provisions of Section 2.03 and a duly
executed Guaranty and Contribution Agreement, and from each Bank which holds any
of the Original Notes, such Original Notes;
(c) an opinion letter (i) (together with any opinions of local counsel
relied on therein) of Liddell, Sapp, Zivley, Hill & ▇▇▇▇▇▇, L.L.P., counsel for
the Borrower, dated as of the Closing Date, in form and substance satisfactory
to the Administrative Agent in its reasonable discretion, the forms attached
hereto as Exhibit B and covering such additional matters relating to the
transactions contemplated hereby as the Administrative Agent or any Bank may
reasonably request;
(d) an opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the
Administrative 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 Administrative 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 (other
than the Secretary), 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 contained in Article IV are true on and as of the
date of the first Borrowing hereunder;
(f) all documents which the Administrative Agent or any Bank may reasonably
request relating to the existence of the Borrower, the corporate authority for
and the validity of this Agreement, the Notes and the Guaranty, and any other
matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent, including, without limitation, certificates of incumbency
of the General Partner and of each Guarantor, signed by the Secretary or an
Assistant Secretary of the General Partner and each Guarantor, in form and
substance satisfactory to the Administrative Agent (the "Officer's
Certificate"), certifying as to the names, true signatures and incumbency of the
officer or officers of the General Partner and Guarantor authorized to execute
and deliver the Loan Documents on behalf of the Borrower or Guarantor, and
certified copies of the following items:
(i) for the Borrower (1) its Certificate of Limited Partnership and
all amendments thereto, issued by the Secretary of State of Delaware; (2)
its Partnership Agreement and all amendments thereto, (3) a certificate of
Existence and Good Standing issued by the Secretary of State of Delaware,
(4) its Application for Registration as a Foreign Limited Partnership and
all amendments thereto, filed in the office of the Secretary of State of
Texas and (5) a Certificate of Existence issued by the Secretary of State
of Texas;
(ii) for the General Partner, (1) its Certificate of Incorporation and
all amendments thereto, issued by the Secretary of State of Texas, (2) its
Bylaws and all amendments thereto, (3) a Certificate of Existence issued by
the Secretary of State of Texas, (4) a Certificate of Account Status issued
by the Comptroller of Public Accounts for the State of Texas, and (5)
resolutions of the Board of Directors pertaining to the execution and
delivery by (x) the Borrower of the Credit Agreement, the Notes, the
Contribution Agreement and the other Loan Documents to which the Borrower
is a party and (y) the General Partner of the Guaranty and the Contribution
Agreement;
(iii) for GBP, (1) its Declaration of Trust and all amendments
thereto, (2) its Bylaws and all amendments thereto, and (3) resolutions of
the Board of Trustees pertaining to the execution and delivery of the
Guaranty and the Contribution Agreement; and
(iv) for Gables-Tennessee Properties (1) its Partnership Agreement and
all amendments thereto, and (2) resolutions of the Board of Directors of
the General Partner (as general partner of Gables-Tennessee Properties, or
as general partner of the Borrower, which is general partner of
Gables-Tennessee Properties) pertaining to the execution and delivery by
Gables-Tennessee Properties of the Guaranty and the Contribution Agreement.
(g) a Notice of Borrowing or notification pursuant to Section 2.02A(e)of
acceptance of one or more Money Market Quotes, as the case may be;
(h) receipt of the initial Borrowing Base Certificate, showing the
Borrowing Base as of the Closing Date; and
(i) receipt of the fees required to be paid on the Closing Date pursuant to
Sections 2.06.
The initial Borrowing hereunder shall include Loans in an amount which is
sufficient to pay in full all existing principal of and accrued and unpaid
interest of all Syndicated Loans outstanding under the Original Agreement on the
Closing Date, and all amounts payable pursuant to Section 7.05 with respect
thereto, and to the extent that any Bank has any Syndicated Loans to be so
repaid, its funding of such initial Loans shall be made pursuant to Section
2.02(d). All Money Market Loans of any Bank which outstanding under the Original
Agreement on the Closing Date shall be deemed to be evidenced by the new Money
Market Loan Note issued to such Bank pursuant to Section 3.01(b).
SECTION 3.02. CONDITIONS TO ALL BORROWINGS. The obligation of each Bank to
make a Syndicated Loan or Money Market Loan, as the case may be, 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 Administrative Agent of a Notice of Borrowing or
notification pursuant to Section 2.02A(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
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 shall have been
satisfied.
Each Syndicated Borrowing and each Money Market 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; provided that if such Borrowing is a Syndicated
Borrowing which consists solely of a Refunding Loan, such Borrowing shall not be
deemed to be such a representation and warranty to the effect set forth in
Section 4.04(b) as to any event, act or condition having a Material Adverse
Effect which has theretofore been disclosed in writing by the Borrower to the
Banks.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower and (by incorporation by reference in the Guaranty) the
Guarantors, as expressly stated, each represent and warrant that:
SECTION 4.01. PARTNERSHIP OR CORPORATE EXISTENCE AND POWER. The Borrower is
a limited partnership duly created and validly existing under the laws of
Delaware, GBP is a trust duly created, validly existing and in good standing
under the laws of Maryland, the General Partner is a corporation duly organized,
validly existing and in good standing under the laws of Texas, and each of the
foregoing 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
such failure does not have and is not reasonably expected to cause a Material
Adverse Effect.
SECTION 4.02. PARTNERSHIP OR 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 (i) are within the Borrower's partnership powers and the Guarantor's
respective 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, other than filings
required by federal or state securities laws with respect to this Agreement (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 the articles of incorporation or by-laws of any
Guarantor or of any material agreement, judgment, injunction, order, decree or
other instrument binding upon the Borrower, any Guarantor or any other
Subsidiaries, and (v) do not result in the creation or imposition of any Lien on
any asset of the Borrower, any Guarantor or any other Subsidiaries.
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 Guarantors 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 AND PROPERTY INFORMATION. (a) The balance sheet of
GBP and the consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 1997 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended, in
the case of GBP reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, copies of which have been
delivered to each of the Banks, and the unaudited financial statement of GBP and
consolidated financial statements of the Borrower for the interim period ended
September 30, 1997, copies of which have been delivered to each of the Banks,
fairly present, in all material respects, in conformity with GAAP, subject in
the case of quarterly statements to normal year end audit adjustments, the
consolidated financial position of GBP and the Borrower and its Consolidated
Subsidiaries, respectively, as of such dates and their consolidated results of
operations and cash flows for such periods stated.
(b) Since December 31, 1996, there has been no event, act, condition or
occurrence having a Material Adverse Effect.
(c) All material information concerning the Properties which has been
furnished to the Banks by the Borrower is true and correct in all material
respects.
SECTION 4.05. NO LITIGATION. There is no action, suit or proceeding
pending, or to the knowledge of the Executive Officers, threatened, against or
affecting the Borrower, any Guarantor or any other Subsidiaries before any court
or arbitrator or any governmental body, agency or official which has or is
reasonably expected to cause a Material Adverse Effect or which in any manner
draws into question the validity of or is reasonably expected to impair the
ability of the Borrower or any Guarantor to perform its obligations under, this
Agreement, the Notes, the Guaranty 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, except where any such failure does not involve an aggregate amount
in excess of $2,500,000.
(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. The Borrower, the
Guarantors and the other Subsidiaries are in compliance with all applicable
laws, regulations and similar requirements of governmental authorities, except
where (i) such compliance is being contested in good faith through appropriate
proceedings or (ii) any failure to comply does not have and is not reasonably
expected to cause a Material Adverse Effect. There have been filed on behalf of
the Borrower, the Guarantors and the other Subsidiaries all 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, the Guarantors or any other
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 $2,500,000.
The charges, accruals and reserves on the books of the Borrower, the Guarantors
and the other Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower and the Guarantors, adequate. United States
income tax returns of GBP for the 1994 Fiscal Year have been timely filed. GBP
has received no written communication from the Internal Revenue Service
regarding such returns.
SECTION 4.08. SUBSIDIARIES. The Borrower has no Subsidiaries except for
those Subsidiaries listed on Schedule 4.08, as supplemented from time to time,
which accurately sets forth each such Subsidiary's complete name and
jurisdiction of incorporation.
SECTION 4.09. INVESTMENT COMPANY ACT. Neither the Borrower, the Guarantors
nor any other 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 Borrower, any
Guarantor nor any Subsidiary 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. Each of the Borrower, the Guarantors
and the Subsidiaries has title to its properties sufficient for the conduct of
its business, except where any such failure does not have and is not reasonably
expected to cause a Material Adverse Effect.
SECTION 4.12. NO DEFAULT. Neither the Borrower, the Guarantors nor any of
the 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 has or is reasonably expected to 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 or any Guarantor to the Administrative 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
Administrative Agent or any Bank will be, true, accurate and complete in all
material respects or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower and the Guarantors have
disclosed to the Banks in writing any and all facts which have had or are
reasonably expected to cause a Material Adverse Effect.
SECTION 4.14. ENVIRONMENTAL MATTERS. (a) Neither the Borrower, the
Guarantors nor any other Subsidiary is, to the knowledge of the Executive
Officers, subject to any Environmental Liability which has had or is reasonably
expected to cause a Material Adverse Effect and neither the Borrower, the
Guarantors nor any other Subsidiary has been designated as a potentially
responsible party under CERCLA or under any state statute similar to CERCLA,
except as disclosed in writing to the Administrative Agent (and the
Administrative Agent shall promptly furnish a copy of any such disclosure to the
Banks). None of the Properties has been identified on any current or proposed
(i) National Priorities List under 40 C.F.R. 300, (ii) CERCLIS list or (iii)
any list arising from a state statute similar to CERCLA, except as disclosed in
writing to the Administrative Agent, if any such disclosures have been made.
(b) No Hazardous Materials have been permitted or are being permitted to be
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 Executive Officers, at or from any
adjacent site or facility, except for Hazardous Materials, such as cleaning
solvents, pesticides and other materials used, stored, disposed of, managed, or
otherwise handled in all material respects in compliance with all applicable
Environmental Requirements and except as disclosed in writing to the
Administrative Agent.
(c) The Borrower, each Guarantor and each of the Subsidiaries, has procured
all Environmental Authorizations necessary for the conduct of its business, and
is in compliance with all Environmental Requirements (including, to the best
knowledge of the Executive Officers, with respect to any Environmental Releases)
in connection with the operation of the Properties and the Borrower's, each
Guarantor's and each other Subsidiary's respective businesses, except where any
such failure to comply does not have and is not reasonably expected to cause a
Material Adverse Effect.
SECTION 4.15. PARTNER INTERESTS AND CAPITAL STOCK. All Partner Interests
and Capital Stock, debentures, bonds, notes and all other securities of the
Borrower, each Guarantor and each of the other Subsidiaries presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including, but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws, except where any such failure to comply
does not and is not reasonably expected to cause a Material Adverse Effect. 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 non-voting Capital Stock of each of the
Borrower's other Subsidiaries is owned by the Borrower free and clear of any
Lien or adverse claim.
SECTION 4.16. MARGIN STOCK. Neither the Borrower, any Guarantor nor any of
the Subsidiaries is engaged principally, or as one of its important activities,
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 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)
neither the Borrower nor any Guarantor will (x) be "insolvent," within the
meaning of such term as used in O.C.G.A. 18-2-22 or as defined in 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 state 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, each Guarantor and each of the
Subsidiaries has (either in the name of the Borrower, such Guarantor or in such
other Subsidiary's own name), with financially sound and reputable insurance
companies having an A.M. Best rating of B+ or better, insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies of established repute
engaged in the same or similar business.
SECTION 4.19. REAL ESTATE INVESTMENT TRUST. GBP is qualified under the Code
as a real estate investment trust.
SECTION 4.20. MILLENNIUM COMPLIANCE. All computer systems used by the
Borrower and the Subsidiaries are capable of the following, before, during
and/or after January 2000:
(a) handling date information involving all and any dates before,
during and/or after January 1, 2000, including accepting input, providing
output and performing date calculations in whole or in part;
(b) operating, accurately without interruption on and in respect of
any and all dates before, during and/or after January 1, 2000 and without
any change in performance;
(c) responding to and processing two digit year input without creating
any ambiguity as to the century; and
(d) storing and providing date input information without creating any
ambiguity as to the century.
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. GBP and 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 GBP and its Consolidated
Subsidiaries as of the end of its Fiscal Year and the related 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, all certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent public
accountants of nationally recognized standing, with such certification to be
free of exceptions and qualifications as to the scope of the audit or as to the
going concern nature of the business;
(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 consolidated balance
sheet of GBP and its Consolidated Subsidiaries 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;
(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 (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections 5.03
through 5.09, inclusive, and Sections 5.25 and 5.27, 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 any Executive Officer becomes
aware of the occurrence of any Default, a certificate of an Executive Officer
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 holders of beneficial
ownership in GBP generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon the filing thereof, notice of the filing of all
registration statements (other than any registration statements on Form S-3 or
Form S-8 or the equivalent thereof) and annual, quarterly or monthly reports
(excluding Form 4, Statement of Changes in Beneficial Ownership, or its
equivalent, unless they reflect a Change in Control), any filing on Form 8-K,
and any filing pursuant to the ▇▇▇▇▇▇▇▇ Act, which GBP shall have filed with the
Securities and Exchange Commission, and, upon the request of any Bank, copies of
any of the foregoing (other than the exhibits to any registration statements);
(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, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or (iii)
receives notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice;
(h) within 45 Domestic Business Days after the end of each Fiscal Quarter,
a Borrowing Base Certificate as of the last day of the Fiscal Quarter just
ended; provided, however, that at the Borrower's election, Borrower may, and or
at the Administrative Agent's election on not less than 10 Domestic Business
Days notice, Borrower shall, submit a Borrowing Base Certificate to the
Administrative Agent on or before the twentieth Domestic Business Day after the
end of the first or second month in any Fiscal Quarter, as of the last day of
such month;
(i) by April 1 of each year, a report as of the end of such Fiscal Year
containing the following information: (i) a schedule of all outstanding Debt,
showing for each component of Debt, the lender, the total commitment, the total
Debt outstanding, the interest rate, if fixed, or a statement that the interest
rate floats, the term, the required amortization (if any) and the security (if
any); (ii) a schedule of all interest rate protection agreements, showing for
each such agreement, the total dollar amount, the type of agreement (i.e. cap,
collar, swap, etc.) and the term thereof; and (iii) a development schedule of
the announced development pipeline, including for each announced development
project, the project name and location, the number of units, the expected
construction start date, the expected date of delivery of the first units, the
expected stabilization date, and the total anticipated cost.
(j) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as the Administrative
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The Borrower and
the Guarantors will (i) keep, and cause each other Consolidated Subsidiary to
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, and cause each other
Consolidated Subsidiary to permit, representatives of any Bank at such Bank's
expense prior to the occurrence of a Default and at the Borrower's or such
Guarantor's expense after the occurrence and during the continuance 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 and the Guarantors
agree to cooperate and assist in such visits and inspections, in each case at
such reasonable times, upon reasonable prior notice to the Borrower or such
Guarantor and as often as may reasonably be desired.
SECTION 5.03. TOTAL SECURED DEBT. The amount of Total Secured Debt will not
at any time exceed 40% of Total Assets Value.
SECTION 5.04. RATIO OF TOTAL DEBT TO TOTAL ASSETS VALUE. The ratio of Total
Debt to Total Assets Value will not at any time exceed 0.55 to 1.00; provided,
that, solely as a result of the South Florida Acquisition, such ratio for the
Fiscal Quarter ending June 30, 1998 (but not thereafter), may exceed 0.55 to
1.0, so long as for such Fiscal Quarter it does not exceed 0.60 to 1.0.
SECTION 5.05. INTEREST COVERAGE. The ratio of (x) Consolidated Income
Available for Debt Service to (y) Consolidated Interest Expense shall at all
times exceed 2.00 to 1.0, calculated at the end of each Fiscal Quarter, based on
the Fiscal Quarter just ended and the immediately preceding three Fiscal
Quarters.
SECTION 5.06. RESTRICTED PAYMENTS. The Borrower's Restricted Payments in
any calendar year shall not exceed 95% of Consolidated Income Available for
Distribution for such period, unless (i) the Borrower must pay out an amount in
excess of 95% of Consolidated Income Available for Distribution to permit GBP to
preserve its status as a real estate investment trust under the applicable
provision of the Code, or (ii) GBP 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 or GBP receives a public debt rating of BBB- or better from
Standard & Poors or Baa3 or better from Moody's Investor's Service and so long
as that rating is affirmed during each year, the Borrower's Restricted Payments
in any calendar year will be limited to 100% of Consolidated Income Available
for Distribution for such calendar year with the same exceptions contained in
clauses (i) and (ii) of this Section 5.06.
SECTION 5.07. LOANS OR ADVANCES. Neither the Borrower, the Guarantors nor
any other Subsidiary shall make loans or advances to any Person except: (i)
deposits required by government agencies or public utilities; (ii) loans and
advances made by Borrower or any Guarantor to any Guarantor or to Borrower;
(iii) loans or advances to directors, officers and employees in the ordinary
course of business in the aggregate outstanding at any time not exceeding
$1,000,000; (iv) loans or advances to employees in the ordinary course of
business which are secured by stock in GBP in the aggregate outstanding at any
time not exceeding $5,000,000; and (v) other loans or advances made in the
ordinary course of business in the aggregate outstanding at any time not
exceeding 5% of the book value of the total assets of the Borrower and its
Consolidated Subsidiaries, determined in accordance with GAAP minus all amounts
outstanding under clause (iii) of this Section 5.07 and minus Investments made
and permitted pursuant to Section 5.09(D); provided that after giving effect to
the making of any loans, advances or deposits permitted by clauses (i), (ii),
(iii) or (iv), the Borrower will be in full compliance with all the provisions
of this Agreement.
SECTION 5.08. PURCHASES OF STOCK BY GUARANTORS. Except for purchases or
acquisitions of shares of GBP's Capital Stock made for purposes of having such
shares available for purchase by GBP shareholders pursuant to GBP's dividend
reinvestment and share purchase program known as "The Share Builder Plan", as
amended as of the Closing Date and, subject to the approval of the Required
Banks (not to be unreasonably withheld), as it may thereafter be amended, the
Guarantors shall not purchase or acquire any shares of GBP's Capital Stock
during any 12 month period in excess of 10% of all GBP's Capital Stock
outstanding on the first day of such period.
SECTION 5.09. INVESTMENTS. Neither the Borrower nor the Guarantors shall
make Investments in any Person except: (A) Investments in (i) direct obligations
of the United States Government, (ii) certificates of deposit issued by a
commercial bank whose credit is satisfactory to the Administrative Agent, (iii)
commercial paper rated A1 or the equivalent thereof by Standard & Poor's
Corporation or P1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc.
and in either case maturing within 9 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 AA or the equivalent thereof by
Standard & Poor's Corporation and Aa or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc., (v) insured money market Investments and/or (vi)
Investments in debt or equity securities rated at least BBB+ or the equivalent
thereof by Standard & Poor's Corporation or at least Baa1 or the equivalent
thereof by ▇▇▇▇▇'▇ Investors Service not exceeding an aggregate amount
outstanding at any time of $25,000,000; (B) Investments permitted by clauses
(i), (ii) and (iii) of Section 5.07 or by Section 5.08; (C) Investments in
Significant Subsidiaries; (D) the South Florida Acquisition; and (E) other
Investments not exceeding an aggregate amount outstanding at any time 10% of the
book value of the total assets of the Borrower and its Consolidated
Subsidiaries, determined in accordance with GAAP, less loans and advances
outstanding and permitted by clause (iv) of Section 5.07.
SECTION 5.10. DISSOLUTION. Neither the Borrower, the Guarantors nor any of
the other Subsidiaries 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 Subsidiary, except to the extent permitted by Section 5.11 and except for
purchases by GBP of its own Capital Stock to the extent permitted by Section
5.08, and subject to the rights of limited partners of the Borrower to convert
or exchange their Partner Interests in the Borrower to stock in GBP.
SECTION 5.11. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Borrower and
the Guarantors will not, nor will the Borrower permit any other Subsidiary to,
consolidate or merge with or into, or sell, lease or otherwise transfer all or
any substantial part of its assets to, any other Person, or discontinue or
eliminate any business line or segment, provided that
(a) the Borrower, any Guarantor and any other Subsidiary may merge
with another Person if (i) such Person was organized under the laws of the
United States of America or one of its states, (ii) the Borrower or such
Guarantor or other Subsidiary is the corporation surviving such merger and
(iii) immediately after giving effect to such merger, no Default shall have
occurred and be continuing,
(b) any Guarantor may merge with or transfer assets to another
Guarantor or the Borrower (with the Borrower as the survivor of any such
merger) and any other Subsidiary may merge with or transfer assets to a
Guarantor, another Subsidiary, or the Borrower (with the Borrower as the
survivor of any such merger), and
(c) the foregoing limitation on the sale, lease or other transfer of
assets and on the discontinuation or elimination of a business line or
segment shall not prohibit, during any Fiscal Quarter, a transfer of assets
or the discontinuance or elimination of a business line or segment (in a
single transaction or in a series of related transactions) unless the
aggregate assets to be so transferred or utilized in a business line or
segment to be so discontinued, when combined with all other assets
transferred, and all other assets utilized in all other business lines or
segments discontinued, during such Fiscal Quarter and the immediately
preceding 3 Fiscal Quarters, either (x) constituted more than 5% of
Consolidated Total Assets at the end of the Fiscal Quarter immediately
preceding such Fiscal Quarter, or (y) contributed more than 5% of
Consolidated Income Available for Debt Service during the 4 Fiscal Quarters
immediately preceding such Fiscal Quarter.
In the case of any Subsidiary which transfers substantially all of its
assets pursuant to clause (c) of the preceding sentence, and in the case of any
Subsidiary the stock of which is being sold and with respect to which clause (c)
would have been satisfied if the transaction had been a sale of assets of such
Subsidiary, such Subsidiary may dissolve and, if it is a Guarantor, such
Subsidiaries shall be entitled to obtain from the Administrative Agent a written
release from the Guaranty, provided that it can demonstrate to the reasonable
satisfaction of the Administrative Agent that (A) it was not a Significant
Subsidiary immediately prior to such transfer of assets, and (B) it has repaid
in full all Debt owed to the Borrower or any other Guarantor which was incurred
after the Closing Date (or such Debt has been assumed by the Borrower or a
Significant Subsidiary), and upon obtaining such written release, it shall no
longer be a Guarantor for any purpose hereunder.
SECTION 5.12. USE OF PROCEEDS. The proceeds of the Loans may be used to
provide a line of credit for construction and acquisition financing and for
general corporate and partnership purposes of the Borrower and the Guarantors.
No portion of the proceeds of the Loans will be used by the Borrower or any
Guarantor (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 or (ii) for any purpose in violation
of any applicable law or regulation.
SECTION 5.13. COMPLIANCE WITH LAWS; PAYMENT OF TAXES. The Borrower and
Guarantors will, and will cause each of the other Subsidiaries and 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, or (ii) any failure to comply which does not have and is not
reasonably expected to cause a Material Adverse Effect. The Borrower and
Guarantors will, and will cause each of the other Subsidiaries to, 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, any Guarantor or any other Subsidiary,
except (A) liabilities being contested in good faith and against which, if
requested by the Administrative Agent, the Borrower, Guarantor or Subsidiary
will set up reserves in accordance with GAAP, and (B) liabilities in an
aggregate amount for all Properties not in excess of $1,000,000.
SECTION 5.14. INSURANCE. The Borrower and the Guarantors will maintain, and
will cause each of the other Subsidiaries to maintain (either in the name of the
Borrower or such Guarantor's or such other Subsidiary's own name), with
financially sound and reputable insurance companies having an A.M. Best rating
of B+ or better, insurance on all its property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar business.
SECTION 5.15. CHANGE IN FISCAL YEAR. The Borrower and the Guarantors will
not, and will cause the other Subsidiaries to not, change its Fiscal Year
without the consent of the Required Banks.
SECTION 5.16. MAINTENANCE OF PROPERTY; PRINCIPAL BUSINESS. The Borrower and
the Guarantors shall, and shall cause each other Subsidiary to, maintain all of
its properties and assets in good condition, repair and working order, ordinary
wear and tear excepted, and maintain all Multi-Family Property (other than
Property consisting of land acquired with existing improvements which are to be
substantially demolished) in a first class manner. The principal business
operations of the Borrower and the Subsidiaries, taken as a whole, will be
directly or indirectly related to Multi-Family Properties.
SECTION 5.17. ENVIRONMENTAL NOTICES. Promptly upon any Executive Officer's
becoming aware thereof, the Borrower and the Guarantors shall furnish to the
Banks and the Administrative 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, which has had or is reasonably expected to cause a Material
Adverse Effect.
SECTION 5.18. ENVIRONMENTAL MATTERS. The Borrower and the Guarantors will
not, and will cause the other Subsidiaries to 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 materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed, managed, or otherwise
handled in compliance in all material respects with all applicable Environmental
Requirements.
SECTION 5.19. ENVIRONMENTAL RELEASE. The Borrower and the Guarantors agree
that upon any Executive Officer's becoming aware of the occurrence of an
Environmental Release at or on any of the Properties the Borrower will act
promptly to investigate the extent of, and to take appropriate action to
remediate such Environmental Release, whether or not ordered or otherwise
directed to do so by any Environmental Authority.
SECTION 5.20. TRANSACTIONS WITH AFFILIATES. Neither the Borrower, the
Guarantors nor any of the other Subsidiaries shall enter into, or be a party to,
any transaction with any Affiliate of the Borrower, such Guarantor or such other
Subsidiary (which Affiliate is not GBP, the Borrower, a Guarantor or a Wholly
Owned Subsidiary), except as permitted by law and in the ordinary course of
business and pursuant to reasonable terms which are no less favorable to
Borrower or such Subsidiary than would be obtained in a comparable arm's length
transaction with a Person which is not an Affiliate.
SECTION 5.21. AMENDMENT OF OTHER AGREEMENTS. Within 90 days after the
Closing Date, the Borrower shall amend all other agreements pertaining to credit
facilities with any of the Banks so as to conform the financial covenants
contained therein to those contained in this Agreement.
SECTION 5.22. QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST; GENERAL
PARTNER. GBP shall at all times remain qualified under the Code as a real estate
investment trust and Gables GP, Inc. shall at all times be the General Partner.
The Borrower will not agree to amend or waive the requirements of Section 3.2 of
the limited partnership agreement of the Borrower, as in effect on the date of
this Agreement, as such requirements are applicable to the General Partner,
without the prior written consent of the Required Banks (which consent the Banks
hereby agree not to unreasonably withhold or delay).
SECTION 5.23. SIGNIFICANT SUBSIDIARIES TO BE GUARANTORS; ELECTION TO BECOME
GUARANTOR. Any Subsidiary (whether existing on the Closing Date or acquired or
created thereafter) (i) must become a Guarantor promptly upon becoming a
Significant Subsidiary, and (ii) may elect to become a Guarantor at any time if
it is not a Significant Subsidiary, in each case by (x) executing and delivering
to the Administrative 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 Administrative Agent an opinion of counsel to such Subsidiary,
in form and substance satisfactory to the Administrative Agent in its reasonable
discretion, the form attached hereto as EXHIBIT B (being one such satisfactory
form, but limited to such Subsidiary, and making appropriate modifications,
including references to this Agreement and to Wachovia Bank, N.A., as
Administrative Agent, rather than to the Original Agreement and Wachovia Bank of
Georgia, N.A., respectively, and excluding paragraph 2 thereof, and (z)
delivering to the Administrative Agent documents pertaining to the Subsidiary
reasonably requested by the Administrative Agent of the types described in
paragraph (f) of Section 3.01 (but making appropriate modifications, including
references to this Agreement and to Wachovia Bank, N.A., as Administrative
Agent, rather than to the Original Agreement and Wachovia Bank of Georgia, N.A.,
respectively).
SECTION 5.24. CERTAIN PROVISIONS REGARDING ELIGIBLE PROPERTIES. Neither the
Borrower nor any Consolidated Subsidiary will create, assume or suffer to exist
any Lien on any Eligible Property included in the Borrowing Base, now owned or
hereafter acquired by it, except Permitted Encumbrances.
SECTION 5.25 RESTRICTIONS OF CERTAIN ADDITIONAL GUARANTEES. Neither the
Borrower nor any of the Guarantors shall incur or permit to exist any Guarantees
of unsecured revolving Debt, other than the Guaranty made hereunder, in an
aggregate principal amount outstanding at any time of $25,000,000 or more.
SECTION 5.26 MAINTENANCE OF EXISTENCE. The Borrower shall, and shall cause
each Subsidiary to, maintain its corporate existence and carry on its business
in substantially the same manner and in substantially the same fields as such
business is now carried on and maintained.
SECTION 5.27 RATIO OF TOTAL UNENCUMBERED ASSETS VALUE TO UNSECURED FUNDED
DEBT. The ratio of Total Unencumbered Assets Value to Unsecured Funded Debt will
not at any time be less than 1.75 to 1.00.
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 any Guarantor shall fail to observe or perform any
covenant contained in Sections 5.01(c), 5.02(ii), 5.03 through 5.12,
inclusive, Sections 5.22 or Sections 5.24 through 5.27; or
(c) the Borrower or any Guarantor shall fail to observe or perform any
covenant or agreement contained in this Agreement or any other Loan
Document (other than those covered by paragraph (a) or (b) above) 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 or such
Guarantor by the Administrative Agent at the request of any Bank or (ii) an
Executive Officer or such Guarantor otherwise becomes aware of any such
failure; or
(d) any representation, warranty, certification or statement made by
the Borrower or any Guarantor in Article IV of this Agreement or in any
other Loan Document or in any certificate, financial statement or other
document delivered pursuant to this Agreement or any other Loan Document
shall prove to have been incorrect or misleading in any material respect
when made (or deemed made); or
(e) the Borrower, GBP or any Subsidiary shall fail to make any payment
in respect of Debt outstanding (other than the Notes) when due or within
any applicable grace period, if the amount of any such Debt of the
Borrower, GBP or any Subsidiary individually is $5,000,000 or more or if
the aggregate amount of all such Debt of the Borrower, GBP and all
Subsidiaries is $10,000,000 or more; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of the Borrower, GBP or
any Subsidiary (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Subsidiary) 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 or any Subsidiary), if the
amount of any such Debt of the Borrower, GBP or any Subsidiary individually
is $5,000,000 or more or if the aggregate amount of all such Debt of the
Borrower, GBP and all Subsidiaries is $10,000,000 or more; or
(g) the Borrower, GBP or any Subsidiary 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 fail
generally, or shall admit in writing its inability, to pay its debts as
they become due, or shall take any corporate action to authorize any of the
foregoing; or
(h) an involuntary case or other proceeding shall be commenced against
the Borrower, GBP or any Subsidiary 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, GBP or any Subsidiary under the federal bankruptcy laws as
now or hereafter in effect; or
(i) the Borrower 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, any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV 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 the Borrower or any other member of the Controlled Group
shall enter into, contribute or be obligated to contribute to, terminate or
incur any withdrawal liability with respect to, a Multiemployer Plan; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the
Borrower or any Subsidiary 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 or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be
filed against the Borrower or any Subsidiary 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.
then, and in every such event, (i) the Administrative Agent shall, if requested
by the Required Banks, by notice to the Borrower terminate the Commitments and
they shall thereupon terminate, (ii) the Administrative 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, and (iii) any Bank may terminate its obligation to fund a Money
Market Loan in connection with any relevant Money Market Quote; 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
Administrative Agent or the Banks, the Commitments 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 Administrative Agent shall have available to it all other
remedies at law or equity, and under any of the other Loan Documents, and shall
exercise any one or all of them at the request of the Required Banks.
SECTION 6.02. NOTICE OF DEFAULT. The Administrative 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 ADMINISTRATIVE AGENT
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES. (a) Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Administrative Agent by the terms hereof and
thereof, together with such other powers as are reasonably incidental thereto.
The Administrative 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 Administrative 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 Administrative 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 Administrative 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 Administrative 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 Administrative Agent shall be
ministerial and administrative in nature, and the Administrative Agent shall not
have by reason of this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank. The Administrative Agent shall administer
the Loans and the Loan Documents with a degree of care at least equal to that
customarily employed by the Administrative Agent in the administration of
similar credit facilities for its own account.
(b) Each Bank hereby designates First Union National Bank as Syndication
Agent and Chase Bank of Texas, National Association as Documentation Agent. The
Syndication Agent and the Documentation Agent, in such capacities, shall have no
duties or obligations whatsoever under this Agreement or any other Loan Document
or any other document or any matter related hereto and thereto, but shall
nevertheless be entitled to all the indemnities and other protection afforded to
the Agent under this Article VII.
SECTION 7.02. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative 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 Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative 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 Administrative 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
Administrative 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 Administrative Agent receives such a notice of
the occurrence of a Default or an Event of Default, the Administrative Agent
shall give prompt notice thereof to the Banks. The Administrative 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 Administrative 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
Administrative Agent shall have received such directions, the Administrative
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 ADMINISTRATIVE AGENT AND ITS AFFILIATES AS A BANK.
With respect to the Loans made by the Administrative Agent and any Affiliate of
the Administrative Agent, Wachovia in its capacity as a Bank hereunder and any
Affiliate of the Administrative 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
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include Wachovia in its individual capacity and any
Affiliate of the Administrative Agent in its individual capacity. The
Administrative Agent and any Affiliate of the Administrative 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
Borrower (and any of the Borrower's Affiliates) as if Wachovia were not acting
as the Administrative Agent, and the Administrative Agent and any Affiliate of
the Administrative 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 Administrative 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
Administrative Agent, to the extent the Administrative 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 Administrative 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 Administrative
Agent. If any indemnity furnished to the Administrative Agent for any purpose
shall, in the opinion of the Administrative Agent, be insufficient or become
impaired, the Administrative 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. The administrative agent shall not 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
results 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 Administrative 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 Administrative 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 ADMINISTRATIVE AGENT AND OTHER BANKS. Each
Bank agrees that it has, independently and without reliance on the
Administrative 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 Administrative 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
Administrative 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 Administrative Agent
hereunder or under the other Loan Documents, the Administrative 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 Administrative Agent; provided, that the Administrative
Agent shall make available to any Bank, upon its request, (i) copies of the
Administrative Agent's records with respect to all sums received or expended by
the Administrative Agent in connection with the Loans and the Loan Documents,
(ii) information as to the amount of the then outstanding Loans, and (iii)
copies of any documents pertaining to an Eligible Property requested by such
Bank and held by the Administrative Agent pursuant to Section 5.24(b).
SECTION 7.09. FAILURE TO ACT. Except for action expressly required of the
Administrative Agent hereunder or under the other Loan Documents, the
Administrative 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 Administrative Agent by reason of taking, continuing to take, or
failing to take any such action.
SECTION 7.10. RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to
the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Banks and the Borrower and the Administrative 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
Administrative Agent, subject to the approval of the Borrower, which approval
shall not be unreasonably withheld or delayed; provided, however, that no such
approval of the Borrower shall be required if (i) the successor is a Bank or
(ii) a Default or Event of Default is in existence. If no successor
Administrative Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent's notice of resignation or the Required Banks' removal of
the retiring Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Banks, appoint a successor Administrative Agent, subject to the
approval of the Borrower, which approval shall not be unreasonably withheld or
delayed; provided, however, that no such approval of the Borrower shall be
required if (i) the successor is a Bank or (ii) a Default or Event of Default is
in existence. Any successor Administrative 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 Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative 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
Administrative Agent hereunder.
SECTION 7.11 ADMINISTRATIVE AGENT'S RIGHT TO REPLACE NON-QUALIFYING BANK.
In the event that any Bank (a "Non-Qualifying Bank") shall at the end of any
quarter not qualify as a "well-capitalized" bank (within the meaning provided
therefor in 12 CFR 6, as amended from time to time) under the regulations or
policies of the Comptroller of the Currency, or the sum of its non-performing
assets and its "Other Real Estate Owned" shall be equal to more than fifty
percent (50%) of its tangible equity, the Administrative Agent, in its sole
discretion, may give notice to such Non-Qualifying Bank and to the other Banks,
with a copy to the Borrower (the "Replacement Notice"), that it wishes to seek
one or more assignees (which may be one or more of the Banks) to assume the
Commitment of such Non-Qualifying Bank and to purchase its outstanding Loans and
Notes and interest in this Agreement, and in such event: (i) the remaining Banks
may elect to purchase ratable assignments (without any obligation so to do) from
the Non-Qualifying Bank (in the form of an Assignment and Acceptance and in
accordance with Section 9.08(c)) in accordance with their respective percentage
of the remaining aggregate Commitments, by giving notice of such election to the
Administrative Agent and the other Banks, with a copy to the Borrower, no later
than the date (the "Initial Option Date") which is 15 days after the date of the
Replacement Notice; (ii) should any of the remaining Banks not elect on or
before the Initial Option Date to purchase such an assignment, then, such other
remaining Banks shall be entitled to purchase an assignment from Non-Qualifying
Bank which includes the ratable interest that was otherwise available to such
non-purchasing remaining Bank or Banks, by giving notice of such election to the
Administrative Agent and the other Banks, with a copy to the Borrower, within 15
days after the Initial Option Date; and (iii) if and to the extent that the
remaining Banks have not elected to purchase such an assignment, the
Administrative Agent may find another assignee to purchase such assignment. Each
Non-Qualifying Bank agrees to sell its Commitment, Loans, Notes and interest in
this Agreement by an Assignment and Acceptance in accordance with Section
9.08(c) to any such assignee or assignees for an amount equal to the sum of the
outstanding unpaid principal of and accrued interest on such Loans and Notes,
plus all other fees and amounts (including, without limitation, any compensation
claimed by such Non-Qualifying Bank under Section 2.11(c) or this Section 7.11)
due such Non-Qualifying Bank hereunder calculated, in each case, to the date
such Loans, Notes and interest are purchased. Upon such sale or prepayment, and
assumption by the assignee or assignees of the Non-Qualifying Banks's
Commitment, such Non-Qualifying Bank shall have no further Commitment or other
obligation to the Borrower hereunder or under any Note.
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 Administrative 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 Administrative Agent that the London
Interbank Offered Rate, as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding the
relevant Euro-Dollar Rate Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative 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 Administrative Agent at
least 2 Domestic Business Days before the date of any Euro-Dollar Borrowing 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 Administrative Agent, the Administrative Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Administrative 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
Administrative 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 Administrative 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 Administrative
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.
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR AFFECTED 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 Administrative
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, and 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 Administrative 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 2.09, 2.10, 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 Euro-Dollar 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 2.02A(e);
such compensation to include, without limitation, if such Fixed Rate Loan is a
Euro-Dollar Loan, 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.
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) 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 Administrative Agent under Article II or Article IX shall not be
effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by the Administrative 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 Administrative Agent, including fees and
disbursements of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Banks and
the Administrative 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, (ii) legal fees up to but not in excess of $10,000, plus expenses,
incurred by each Bank in connection with the preparation of this Agreement and
the other Loan Documents and (iii) if a Default occurs, all out-of-pocket
expenses incurred by the Administrative 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 Administrative 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. The provisions of this Section 9.03 are in addition to and not in
limitation of any expense reimbursement or indemnification provision contained
in any other Loan Documents.
SECTION 9.04. INDEMNIFICATION. The Borrower shall indemnify the
Administrative 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 Administrative 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
Administrative 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. The provisions
of this Section 9.04 are in addition to and not in limitation of any expense
reimbursement or indemnification provision contained in any other Loan
Documents.
SECTION 9.05. SHARING OF SETOFFS. 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 Administrative Agent are
affected thereby, by the Administrative 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
Administrative 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, except as expressly authorized by this Agreement or any of the other Loan
Documents, (viii) release any Guarantee given to support payment of the Loans,
(ix) change the definition of Borrowing Base in a such a way as to make it less
restrictive, (x) change the definition of Required Banks or (xi) change this
Section 9.06.
(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
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 Administrative 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 Administrative 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 solely with
respect to 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 Administrative 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 IX 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 Administrative 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
Administrative Agent, which consent shall not be unreasonably withheld, and (iv)
a Bank may not have more than 2 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 Administrative Agent and (if applicable) the Borrower,
(B) delivery of an executed copy of the Assignment and Acceptance to the
Borrower and the Administrative 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 Administrative 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 Administrative Agent shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this paragraph (c), the
transferor Bank, the Administrative 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 Administrative 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, any relevant
Bank shall, to the extent permitted by law, 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 Administrative Agent and the Banks do not intend to
collect any unearned interest in the event of any such acceleration. All monies
paid to the Administrative 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 Administrative 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 Administrative 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
Administrative 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 Administrative 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 Administrative 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. ENTIRE AGREEMENT. The Loan Documents and, as between the
Borrower and the Administrative Agent, the Administrative Agent's Letter
Agreement, contain the entire agreement between the Borrower, the Administrative
Agent and the Banks relating to the credit transactions contemplated hereby and
supersede entirely any and all prior written or oral agreements with respect
thereto; and the Borrower acknowledges and agrees that there are no
contemporaneous oral agreements with respect to the subject matter hereof.
SECTION 9.20. MORE RESTRICTIVE AGREEMENTS. Should the Borrower or any
Guarantor, while this Agreement is in effect or any Note remains unpaid, enter
into, refinance or modify the relevant documents pertaining to any existing or
future Debt for money borrowed which constitutes revolving credit, in an amount
exceeding $5,000,000 in aggregate amount to any lender or group of lenders
acting in concert with one another, pursuant to a Loan agreement, credit
agreement, note purchase agreement, indenture or other similar instrument, which
instrument includes covenants, warranties, representations, or defaults or
events of default (or any other type of restriction which would have the
practical effect of any of the foregoing, including, without limitation, any
"put" or mandatory prepayment of such debt) other than those set forth herein or
in any of the other Loan Documents, the Borrower shall promptly so notify the
Administrative Agent and, if the Administrative Agent, in the discretion of the
Administrative Agent, shall so request by written notice to the Borrower, the
Borrower, the Administrative Agent and the Required Banks (in their sole
discretion and based on their respective independent credit judgment, and
subject to Section 9.06) shall promptly amend this Agreement to incorporate some
or all of such provisions, into this Agreement and, to the extent necessary and
reasonably desirable to the Administrative Agent and the Required Banks (in
their sole discretion and based on their respective independent credit judgment,
and subject to Section 7.06), into any of the other Loan Documents, all at the
election of the Administrative Agent; provided, however, that any such amendment
shall provide that, upon cancellation or termination of the Loan agreement,
credit agreement, note purchase agreement, indenture or other instrument
pertaining to such other revolving credit (other than by reason of an event of
default thereunder), so long as no Default or Event of Default is in existence,
such amendment also shall terminate and the provisions of the Credit Agreement
affected by such amendment shall revert to the terms thereof as in effect prior
to giving effect to such amendment.
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.
GABLES REALTY LIMITED PARTNERSHIP
By: Gables GP, Inc., its sole
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Vice President
Gables Realty Limited Partnership
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank
Commitment:
$40,000,000 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Vice President
Commitment
Percentage: Lending Office
Wachovia Bank, N.A.
17.7778% ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Real Estate Finance Division
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Bank
Commitment:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
$40,000,000 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director
Commitment Lending Office
Percentage: First Union National Bank
One First Union Center
17.7778% DC-6
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
as Documentation Agent and as a Bank
Commitment:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
$40,000,000 Title: Vice President
----------------------------------
Commitment Lending Office
Percentage: Chase Bank of Texas, National Association
707 ▇▇▇▇▇▇, 6th Fl. North
17.7778% ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
COMMERZBANK AG, ATLANTA AGENCY
Commitment:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
$30,000,000 Title: Vice President
---------------------------------
Commitment
Percentage: By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Assistant Treasurer
---------------------------------
13.3333%
Lending Office
Commerzbank AG, Atlanta Agency
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION.
Commitment:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
$30,000,000 Title: Assistant Vice President
----------------------------------
Commitment Lending Office
Percentage: PNC BANK, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.▇▇▇▇% ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Vice President
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
AMSOUTH BANK OF ALABAMA
Commitment:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
$25,000,000 Title: Vice President
----------------------------------
Commitment Lending Office
Percentage: AmSouth Bank of Alabama
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
11.1111% ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
GUARANTY FEDERAL BANK, F.S.B.
Commitment:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
$20,000,000 Title: Vice President
----------------------------------
Commitment Lending Office
Percentage: Guaranty Federal Bank, F.S.B.
8333 ▇▇▇▇▇▇▇
8.8889% ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
with a copy of all notices to:
Guaranty Federal Bank, F.S.B.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Real Estate
Lending Division
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
TOTAL COMMITMENTS:
$225,000,000
EXHIBIT I
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of May 13, 1998, by GABLES GP,
INC., a Texas corporation, GABLES RESIDENTIAL TRUST, a Maryland Trust and
GABLES-TENNESSEE PROPERTIES, a Tennessee general partnership (each a
"Guarantor", and collectively, the "Guarantors", which terms shall include any
subsidiary of Gables Realty Limited Partnership which becomes a Guarantor
pursuant to Section 15 hereof and Section 5.23 of the Credit Agreement referred
to below) in favor of the Administrative 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, GABLES REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
(the "Borrower"), WACHOVIA BANK, N.A., as Administrative Agent (the
"Administrative Agent"), First Union National Bank, as Syndications Agent, Chase
Bank of Texas, National Association, as Documentation Agent, and certain other
Banks from time to time party thereto have entered into a certain Credit
Agreement dated as of even date herewith (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 by Section 3.01(b) of the Credit Agreement, that
the Guarantors execute and deliver this Guaranty whereby the Guarantors 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 Administrative Agent to enter into 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 V 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 VI 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 Money
Market Loans and interest thereon, all compensation and indemnification amounts
and fees payable pursuant to the Credit Agreement and the Administrative 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.13-1-11(a)(2) to the
contrary, the Guarantor 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 Guarantor
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
Administrative 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 Administrative 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 the 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
Administrative 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 Administrative Agent in accordance with the provisions of Section
8.01 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 Administrative 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
Administrative 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 Administrative 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 Administrative 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 GUARANTOR AND THE Administrative 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 Administrative 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 Guarantor
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 2.11(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 5.23 of
the Credit Agreement provides that Significant Subsidiaries must become
Guarantors, and Subsidiaries which are not Significant Subsidiaries may elect to
become Guarantors, by, among other things, executing and delivering to the
Administrative Agent a counterpart of this Guaranty. Any Subsidiary which
executes and delivers to the Administrative Agent a counterpart of this Guaranty
shall be a Guarantor for all purposes hereunder. Under certain circumstances
described in the last sentence of Section 5.11 of the Credit Agreement,
Subsidiaries which are not Significant Subsidiaries may obtain from the
Administrative 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
Administrative 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 Administrative Agent, the Required Banks and the
Borrower, of an instrument expressly releasing the Guarantors therefrom.
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be duly
executed, under seal, by its authorized officer as of the date first above
written.
GABLES GP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Vice
President
Address:
c/o Gables Realty Limited
Partnership
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
GABLES RESIDENTIAL TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Title: Senior Vice President
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Address:
c/o Gables Realty Limited
Partnership
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Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
GABLES-TENNESSEE PROPERTIES
By: Gables Realty Limited
Partnership, a general partner
By Gables GP, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Vice
President
Address:
Gables Realty Limited Partnership
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
EXHIBIT J
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into as of May
13, 1998 by and between GABLES REALTY LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Principal"), GABLES GP, INC., a Texas corporation, and
GABLES-TENNESSEE PROPERTIES, a Tennessee general partnership (collectively, the
"Subsidiary Guarantors" and, together with any subsidiary of the Principal which
becomes a Guarantor pursuant to the last paragraph hereof, Section 15 of the
Guaranty referred to below and Section 5.23 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 even date herewith among the Principal, the Banks party thereto and
Wachovia Bank, N.A., as Administrative Agent, First Union National Bank, as
Syndication Agent, Chase Bank of Texas, National Association, as Documentation
Agent, and certain other Banks from time to time party thereto (such agreement,
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, as a condition, among others, to the willingness of the
Administrative Agent and the Banks to enter into the Credit Agreement, they have
required that each Subsidiary Guarantor, along with Gables Residential Trust
("GBP"), 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 Subsidiary Guarantors
and GBP have jointly and severally agreed to guarantee the "Guaranteed
Obligations" (as defined in the Guaranty); and
WHEREAS, each Subsidiary Guarantor is a direct or indirect subsidiary of
the Principal and is engaged in businesses related to those of the Principal and
each other Subsidiary Guarantor, and each of the Subsidiary 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 Subsidiary Guarantor to enter into the
Guaranty, it is agreed as follows:
To the extent that any Subsidiary Guarantor shall, under the Guaranty, make
a payment (a "Subsidiary Guarantor Payment") of a portion of the Guaranteed
Obligations, then, without limiting its rights of subrogation against the
principal, such Subsidiary 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 Subsidiary 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 Subsidiary 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 Subsidiary 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 Subsidiary
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 Administrative 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
Administrative 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 Administrative Agent receives such written notice, the rights of
each other Contributing Party to contribution and indemnification hereunder in
connection with any Subsidiary 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 5.23 of the Credit Agreement provides that Significant Subsidiaries
must become Guarantors, and Subsidiaries which are not Significant Subsidiaries
may elect to become Guarantors, by, among other things, executing and delivering
to the Administrative Agent a counterpart of the Guaranty and of this
Contribution Agreement. Any Subsidiary which executes and delivers to the
Administrative Agent a counterpart of the Guaranty and of this Contribution
Agreement shall be a Subsidiary Guarantor for all purposes hereunder. Under
certain circumstances described in the last sentence of Section 5.11 of the
Credit Agreement, Subsidiaries which are not Significant Subsidiaries may obtain
from the Administrative 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 Subsidiary 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 Subsidiary 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.
GABLES REALTY LIMITED PARTNERSHIP
By: Gables GP, Inc., its sole
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Vice
President
Gables Realty Limited Partnership
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
GABLES GP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Vice
President
Address:
Gables Realty Limited Partnership
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
GABLES-TENNESSEE PROPERTIES
By: Gables Realty Limited
Partnership, a general partner
By Gables GP, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Vice
President
Address:
Gables Realty Limited Partnership
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇