EXHIBIT 10
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$250,000,000 (EXPANDABLE TO $300,000,000)
CREDIT AGREEMENT
dated as of
October 12, 1999
among
AMLI RESIDENTIAL PROPERTIES, L.P.
The Banks Listed Herein,
WACHOVIA BANK, N.A.,
as Administrative Agent
BANK ONE, NA,
as Syndication Agent
PNC BANK, NATIONAL ASSOCIATION
as Documentation Agent
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Senior Managing Agent
COMMERZBANK AG, NEW YORK BRANCH,
as Managing Agent
and
WACHOVIA SECURITIES, INC. and BANC ONE CAPITAL MARKETS, INC.,
as Co-Lead Arrangers and Joint Book Managers
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of October 12, 1999 among AMLI
RESIDENTIAL PROPERTIES, L.P., the BANKS listed on the signature pages
hereof, WACHOVIA BANK, N.A., as Administrative Agent, BANK ONE, NA, as
Syndication Agent and PNC Bank, N.A., as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS.
The terms as defined in this Section 1.01 shall, for all
purposes of this Agreement and any amendment hereto (except as herein
otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.06(c).
"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.
"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.
"Agents' Letter Agreement" means that certain letter agreement,
dated as of August 4, 1999, among the Borrower, the Administrative Agent,
the Syndication Agent, and Wachovia Securities, Inc. and Banc One Capital
Markets, Inc., relating to the structure of the Loans, and certain fees
from time to time payable by the Borrower to such Agents, together with all
amendments and supplements thereto.
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Applicable Margin" has the meaning set forth in
Section 2.06(a).
"Approved Collateral Value" means the total value of any
Qualified Letters of Credit or any other asset delivered to the Borrower as
collateral in connection with the acquisition or development of multi-
family properties reasonably anticipated by the Borrower to become
Properties; provided, however, the Approved Collateral Value of (i) any
Qualified Letter(s) of Credit that individually or together with other
Qualified Letters of Credit exceed $20,000,000, and (ii) any asset that is
not a Qualified Letter of Credit, shall be $0 until such asset or Qualified
Letter of Credit is approved by the Required Banks, in their sole
discretion.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof, or
in a Bank Joinder Agreement executed and delivered to the Administrative
Agent pursuant to Section 2.14, as having a Commitment, and its successors
and assigns and the Designated Banks, if any; provided, however, that the
term "Bank" shall exclude each Designated Bank when used in reference to a
Syndicated Loan, the Commitments or terms relating to the Syndicated Loans
(except as noted above) and the Commitments.
"Bank Joinder Agreement" means an agreement in substantially
the form of Exhibit P, pursuant to which a new Bank becomes a Bank
hereunder in accordance with the provisions of Section 2.14.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, or
(ii) one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the
Federal Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" means a Borrowing consisting of Base Rate
Loans.
"Base Rate Loan" means a Syndicated Loan which bears or is to
bear interest at a rate based upon the Base Rate, and is to be made as a
Base Rate Loan pursuant to the applicable Notice of Borrowing,
Section 2.02(f), or Article VIII, as applicable.
"Borrower" means AMLI Residential Properties, L.P., a Delaware
limited partnership, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of
(i) Syndicated Loans made to the Borrower at the same time by all of the
Banks, in the case of a Syndicated Borrowing, (ii) Money Market Loans made
separately by one or more Banks, in the case of a Money Market Borrowing,
or (iii) a Swing Loan made by Wachovia, in each case pursuant to Article
II. A Borrowing is a "Euro-Dollar Borrowing" if such Borrowing consists of
Euro-Dollar Loans. A Borrowing is a "Base Rate Borrowing" if such
Borrowing consists of Base Rate Loans. A Borrowing is a "Transaction Rate
Borrowing" if such Borrowing consists of Transaction Rate Loans. A
Borrowing is a "Syndicated Loan Borrowing" if such Borrowing consists of
Syndicated Loans. A Borrowing is a "Swing Loan Borrowing" if such
Borrowing consists of Swing Loans. A Borrowing is a "Money Market
Borrowing" if such Borrowing consists of Money Market Loans. A Borrowing
is a "Fixed Rate Borrowing" if such Borrowing consists of Fixed Rate Loans.
"Borrowing Base" means the sum of each of the following, as
determined by reference to the most recent Borrowing Base Certificate
furnished pursuant to Section 3.01(h) or Section 5.01(h), as applicable
(and with respect to any Eligible Property which consists of phases, each
phase thereof shall be separately categorized into clause (i), (ii) or
(iii) below, as appropriate, so long as such phase could be separately
financed on a stand-alone basis):
(i) an amount equal to the product of: (x) the quotient
of (1) the Net Operating Income for the 3 month period ending on the last
day of the Fiscal Quarter just ended prior to the date of determination,
from each Eligible Unencumbered Stabilized Property, divided by (2) 0.09
(which is the capitalization rate); times (y) 4 (which is the annualization
factor); times (z) 0.60 (which is the advance rate); plus
(ii) an amount equal to the lesser of: (A) the product
of (x) 0.50 (which is the advance rate), times (y) the book value of
Construction in Progress on the last day of the Fiscal Quarter just ended
on all Eligible Properties not subject to a Mortgage and (B) $50,000,000;
plus
(iii) an amount equal to the lesser of: (A) the product
of (x) 0.40 (which is the advance rate), times (y) the cost of land
acquired for the purpose of apartment community development and
(B) $15,000,000.
"Borrowing Base Certificate" means a certificate substantially
in the form of Exhibit I, duly executed by an Executive Officer of the
General Partner, setting forth in reasonable detail the calculations for
each component of the Borrowing Base.
"Capital Stock" means the Partnership Interests in the Borrower
and any nonredeemable capital stock, whether common or preferred, or
partner interests, whether general or limited, in any Consolidated Entity
(to the extent issued to a Person other than the Borrower).
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change in Control" means: (i) any Person or two or more
Persons other than the General Partner acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of 20% or more of the outstanding Partnership Interests; or (ii) as
of any date a majority of the Board of Directors of the Borrower consists
of individuals who were not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or nominated to
become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A), or (C) selected
or nominated to become directors by the Board of Directors of the Borrower
of which a majority consisted of individuals described in clause (A) and
individuals described in clause (B)
"Change of Law" shall have the meaning set forth in
Section 8.02.
"Closing Certificate" has the meaning set forth in
Section 3.01(e).
"Closing Date" means October 12, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Co-Investment Partnerships" means any Person which is not a
Consolidated Entity and which is owned (i) in part by the Borrower or any
Consolidated Entity and (ii) in part by another Person which is not an
Affiliate of the Borrower or any Consolidated Entity.
"Co-Lead Arrangers" means Wachovia Securities, Inc. and Banc
One Capital Markets, Inc.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof or
in a Bank Joinder Agreement executed and delivered to the Administrative
Agent pursuant to Section 2.14, and (ii) as to any Bank which enters into
any Assignment and Acceptance (whether as transferor Bank or as Assignee
thereunder), the amount of such Bank's Commitment after giving effect to
such Assignment and Acceptance, in each case as such amount may be reduced
from time to time pursuant to Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in
Section 5.01(c).
"Consolidated Entity" means at any date any Subsidiary or
Service Company the accounts of which, in accordance with GAAP, are
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Consolidated Fixed Charges" means at any time the sum of the
following, determined on a consolidated basis for the Borrower and each
Consolidated Entity, at the end of each Fiscal Quarter, for the Fiscal
Quarter just ended and the 3 immediately preceding Fiscal Quarters: (i)
Consolidated Interest Expense; plus (ii) all dividends paid, or declared
but not yet paid, by the Borrower on preferred stock; plus (iii) the
aggregate amount of scheduled principal amortization paid, as reflected on
the Borrower's most recent quarterly financial statement submitted to the
Banks, but excluding any principal payments under this Agreement and any
balloon payments on other Debt.
"Consolidated Interest Expense" for any period means interest
currently expensed under GAAP in respect of Debt of the Borrower or any of
the Consolidated Entities.
"Consolidated Liabilities" means the sum of (i) all liabilities
that, in accordance with GAAP, should be classified as liabilities on a
consolidated balance sheet of Borrower and the Consolidated Entities, and
(ii) to the extent not included in clause (i) of this definition, all
Redeemable Preferred Stock.
"Consolidated Net Income" means, for any period, the Net Income
of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary income or expense items
and (ii) any equity interests of the Borrower or any Subsidiary in the
unremitted earnings of any Person that is not a Subsidiary.
"Construction in Progress" means, any Property in the process
of being developed as an apartment community but is not a Stabilized
Property, calculated on a consolidated basis for the Borrower and the
Guarantors, the construction-in-progress as shown from time to time on the
books and records of the Borrower and the Guarantors, maintained in
accordance with GAAP.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit L to be executed by
the Borrower and each of the Guarantors pursuant to Section 5.28.
"Control" means, with respect to any Person, the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or otherwise.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of such
Person as lessee under capital leases, (v) all obligations of such Person
to reimburse any bank or other Person in respect of amounts payable under
a banker's acceptance, (vi) all Redeemable Preferred Stock of such Person
(in the event such Person is a corporation), (vii) all obligations of such
Person to reimburse any bank or other Person in respect of amounts paid or
to be paid or to be paid under a letter of credit or similar instrument,
(viii) all Debt of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person, and (ix) all Debt of
others Guaranteed by such Person.
"Debt Rating" means at any time the published rating of a
Person's senior unsecured, unenhanced debt (or, if no such debt exists, its
issuer credit rating for debt of such type) by ▇▇▇▇▇'▇, S&P or Duff &
▇▇▇▇▇▇ (provided, (i) that in the event of a double or greater split
rating, the rating immediately below the highest rating shall apply), and
(ii) if only one of them rates the Person's senior unsecured, unenhanced
debt, such rating must be issued by ▇▇▇▇▇'▇ or S&P.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or
both would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the
sum of 2% plus the highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of
whether any such type of Loans are actually outstanding hereunder).
"Designated Bank" means a special purpose corporation owned and
controlled by its Designating Bank that is identified as such on the
signature pages hereto next to the caption "Designated Bank" as well as
each special purpose corporation owned and controlled or sponsored by its
Designating Bank that (i) shall have become a party to this Agreement
pursuant to Section 9.08(g), and (ii) is not otherwise a Bank.
"Designated Bank Note" means a Money Market Loan Note,
evidencing the obligation of the Borrower to repay Money Market Loans made
by a Designated Bank, and "Designated Bank Notes" means any all such Money
Market Loan Notes to Designated Banks issued hereunder.
"Designating Bank" shall mean each Bank that is identified as
such on the signature pages hereto next to the caption "Designating Bank"
and immediately below the signature of its Designated Bank as well as each
Bank that shall designate a Designated Bank pursuant to Section 9.08(g).
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit Q attached hereto, entered into by a Bank
and a Designated Bank and acknowledged by the Borrower and the
Administrative Agent.
"Dividends" means for any period the sum of all dividends and
other distributions paid or declared during such period in respect of any
Capital Stock and Redeemable Preferred Stock (other than dividends paid or
payable in the form of additional Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the United
States of America.
"Domestic Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in Georgia are authorized by law to
close.
"EBITDA" means at any time the sum of the following,
determined on a consolidated basis for the Borrower and each Consolidated
Entity, at the end of each Fiscal Quarter, for the applicable measuring
period: (i) Consolidated Net Income; plus (ii) Consolidated Interest
Expense; plus (iii) taxes on income; plus (iv) depreciation; plus
(v) amortization; plus (vi) other non-cash charges.
"Economic Percentage" means the Borrower's percentage of
ownership of all preferred and common stock of any of the Service Companies
at any time.
"Eligible Property" means any Property which is either
(i) listed on Exhibit J or (ii) which has been approved as an Eligible
Property by the Required Banks at the request of the Borrower, taking into
account the following information concerning the Property provided to the
Administrative Agent and the Banks by the Borrower: a physical description,
applicable environmental reports, information regarding its age, location
and occupancy, an operating statement and rent roll for the most recent
Fiscal Quarter, and an operating budget for the current Fiscal Year;
provided, however, that any Eligible Property shall be released in writing
by the Administrative Agent as an Eligible Property upon the written
request of the Borrower, to enable the Borrower to sell or obtain financing
on such Eligible Property, so long as no Default or Event of Default is in
existence or would be caused thereby, and upon such release, such Property
shall no longer constitute Eligible Property.
"Eligible Unencumbered Stabilized Property" means any Eligible
Property which (i) is not subject to a Mortgage, and (ii) is a Stabilized
Property.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any
Environmental Requirements, whether or not entered upon consent, or written
agreements with an Environmental Authority or other entity arising from or
in any way associated with any Environmental Requirement, whether or not
incorporated in a judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated
with any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged
noncompliance with or liability under any Environmental Requirement,
including without limitation any complaints, citations, demands or requests
from any Environmental Authority or from any other person or entity for
correction of any violation of any Environmental Requirement or any
investigations concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA or
under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the
Borrower, any Subsidiary or the Properties, including but not limited to
any such requirement under CERCLA or similar state legislation and all
federal, state and local laws, ordinances, regulations, orders, writs,
decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to
any provision of ERISA shall also be deemed to be a reference to any
successor provision or provisions thereof.
"Euro-Dollar Borrowing" means a Borrowing consisting of Euro-
Dollar Loans.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Syndicated Loan which bears or is to
bear interest at a rate based upon the Euro-Dollar Rate, and to be made as
a Euro-Dollar Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Executive Officer" refers to an executive officer of the
General Partner, and means the Chairman, the Vice Chairman, the President,
the Chief Financial Officer or the Treasurer of the General Partner.
"Existing Credit Agreement" means the Amended and Restated
Credit Agreement dated as of July 27, 1998 among the Borrower, the Banks
party thereto, Wachovia Bank, N.A., as Agent, The First National Bank of
Chicago, as Documentation Agent, Dresdner Bank AG, New York and Grand
Cayman Branches, as Co-Agent.
"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 Month" means any fiscal month of the Borrower.
"Fiscal Quarter" means any fiscal quarter of the Borrower or
the General Partner.
"Fiscal Year" means any fiscal year of the Borrower or the
General Partner.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing or a
Transaction Rate Borrowing, or either of them, as the context requires.
"Fixed Rate Loan" means any Euro-Dollar Loan, Transaction Rate
Loan or Money Market Loan, or any or all of them, as the context shall
require.
"Funds From Operations" has the meaning ascribed to such term
in preparation of financial statements for real estate investment trusts as
required by NAREIT from time to time, subject to Section 1.02.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02,
are to be used in making the calculations for purposes of determining
compliance with the terms of this Agreement.
"General Partner" means AMLI Residential Properties Trust, a
Maryland real estate investment trust, the sole general partner of the
Borrower.
"Gross Asset Value" means, on a consolidated basis for the
Borrower and the Consolidated Entities, the sum of:
(i) an amount equal to the product of: (x) the quotient
of (1) the Net Operating Income for the 3 month period ending on the last
day of the Fiscal Quarter just ended prior to the date of determination,
from each Property (other than Property owned by a Co-Investment
Partnership and Property owned by Borrower for less than three months),
divided by (2) 0.09 (which is the capitalization rate); times (y) 4 (which
is the annualization factor); plus
(ii) an amount equal to the book value of
(A) Construction in Progress plus (B) Properties (other than Properties
owned by a Co-Investment Partnership) consisting of unimproved land, as
determined on the last day of the Fiscal Quarter just ended; plus
(iii) an amount equal to the acquisition cost of improved
Properties (other than Properties owned by a Co-Investment Partnership)
owned by Borrower less than three months, as determined on the last day of
the Fiscal Quarter just ended; plus
(iv) an amount equal to the sum of all unrestricted
balances on deposit with banks or other financial institutions, plus the
market value of Investments permitted under Section 5.17(i), (ii),
(iii) and (iv); plus
(v) an amount equal to the quotient of (x) the sum of
the Economic Percentage of all earnings before interest and taxes of all
Service Companies for the 3 month period ending on the last day of the
month just ended prior to the date of determination, divided by (y) 0.15
(which is the capitalization rate) times (z) 4 (which is the annualization
rate).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to secure, purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to provide
collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring
in any other manner the obligee of such Debt or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means any one, or more or all, as the context
shall require, of each Subsidiary which becomes a Guarantor pursuant to
Section 5.28, subject to the provisions of the last sentence of
Section 5.05.
"Guaranty" means the Guaranty Agreement in substantially the
form of Exhibit K to be executed by each of the Guarantors pursuant to
Section 5.28, unconditionally and jointly and severally Guaranteeing
payment of the Loans, the Notes and all other obligations of the Borrower
to the Administrative Agent and the Banks hereunder, including without
limitation all principal, interest, fees, costs, and compensation and
indemnification amounts.
"▇▇▇▇▇▇ Trust Facility" means the Secured Revolving Credit
Facility Agreement dated as of September 16, 1994, as amended between the
Borrower and ▇▇▇▇▇▇ Trust & Savings Bank, providing for a line of
credit/letter of credit facility in the aggregate amount of $7,000,000.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery
Act of 1980, 42 U.S.C. Section 6901 et seq. and its implementing
regulations and amendments, or in any applicable state or local law or
regulation, (b) "hazardous substance", "pollutant", or "contaminant" as
defined in CERCLA, or in any applicable state or local law or regulation,
(c) gasoline, or any other petroleum product or by-product, including,
crude oil or any fraction thereof, (d) toxic substances, as defined in the
Toxic Substances Control Act of 1976, or in any applicable state or local
law or regulation and (e) insecticides, fungicides, or rodenticides, as
defined in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975,
or in any applicable state or local law or regulation, as each such Act,
statute or regulation may be amended from time to time.
"Hedging Agreement" means any agreement to which the Borrower
or any Guarantor is a party consisting of interest rate protection
agreements, foreign currency exchange agreements or other hedging
arrangements.
"Interest Period" means:
(1) with respect to each Euro-Dollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the first, second, third or sixth month thereafter, as
the Borrower may elect in the applicable Notice of Borrowing; provided
that:
(a) any Interest Period (subject to paragraph
(c) below) which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding Euro-
Dollar Business Day;
(b) any Interest Period which begins on the last Euro-
Dollar Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to paragraph (c) below, end on the last Euro-Dollar
Business Day of the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins
before the Termination Date and would otherwise end after the Termination
Date; and
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days thereafter;
provided that:
(a) any Interest Period (subject to paragraph
(b) below) which would otherwise end on a day which is not a Domestic
Business Day shall be extended to the next succeeding Domestic Business
Day; and
(b) no Interest Period which begins before the
Termination Date and would otherwise end after the Termination Date may be
selected; and
(3) with respect to each Transaction Rate Borrowing, any
period up to 14 days mutually agreeable to the Borrower and Wachovia which
ends on or prior to the Termination Date.
(4) with respect to each Money Market Borrowing, the period
commencing on the date of such Borrowing and ending on the Stated Maturity
Date or such other date or dates as may be specified in the applicable
Money Market Quote; provided that:
(a) any Interest Period (subject to clause
(b) below) which would otherwise end on a day which is not a Domestic
Business Day shall be extended to the next succeeding Domestic Business
Day; and
(b) no Interest Period may be selected which would end
after the Termination Date.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such
Person, capital contribution to such Person, loan or advance to such
Person, making of a time deposit with such Person, or assumption of any
obligation of such Person or otherwise.
"Investment Grade Debt Rating" means, a Debt Rating equal or
higher than Baa3 if such Debt Rating is issued by Moody's, BBB- if such
Debt Rating is issued by S&P, and BBB- if such Debt Rating is issued by
Duff & ▇▇▇▇▇▇.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such
Bank may hereafter designate as its Lending Office by notice to the
Borrower and the 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, 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.
"Liquidity Bank" means for any Designated Bank, at any date of
determination, the collective reference to the financial institutions which
at such date are providing liquidity or credit support facilities to or for
the account of such Designated Bank to fund such Designated Bank's
obligations hereunder or to support the securities, if any, issued by such
Designated Bank to fund such obligations.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Syndicated
Loan, Transaction Rate Loan or Money Market Loan, and "Loans" means Base
Rate Loans, Euro-Dollar Loans, Syndicated Loans, Money Market Loans,
Transaction Rate Loans, or any or all of them, as the context shall
require.
"Loan Documents" means this Agreement, the Notes, the Guaranty,
the Contribution Agreement, any other document evidencing, relating to or
securing the Loans, and any other document or instrument delivered to the
Administrative Agent or the Banks from time to time in connection with this
Agreement, the Notes or the Loans, as such documents and instruments may be
amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation
or proceeding), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences,
whether or not related, a material adverse change in, or a material adverse
effect upon, any of (a) the financial condition, operations, business,
properties or prospects of the General Partner, or of the Borrower and the
Consolidated Entities taken as a whole, (b) the rights and remedies of the
Administrative Agent or the Banks under the Loan Documents, or the ability
of the Borrower or the Consolidated Entities to perform its obligations
under the Loan Documents to which it is a party, as applicable, or (c) the
legality, validity or enforceability of any Loan Document.
"Money Market Borrowing Date" has the meaning specified in
Section 2.03.
"Money Market Facility Limit" means an amount equal to fifty
percent (50%) of the aggregate Commitments, as such Commitments may be
increased or reduced from time to time.
"Money Market Loan" means a Loan made by a Bank pursuant to
Section 2.03 which bears interest at the Money Market Rate.
"Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-3, evidencing the
obligation of the Borrower to repay the Money Market Loans, together with
all amendments, consolidations, modifications, renewals and supplements
thereto.
"Money Market Quote" has the meaning specified in
Section 2.03(c)(i).
"Money Market Quote Request" has the meaning specified in
Section 2.03(b).
"Money Market Rate" has the meaning specified in
Section 2.03(c)(ii)(C).
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"Mortgage" means, with respect to any referenced Property, a
mortgage, deed to secure debt, deed of trust or similar instrument
encumbering such Property.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NAREIT" means the National Association of Real Estate
Investment Trusts.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person for such period, as
determined in accordance with GAAP.
"Net Operating Income" means, for any Property, calculated on
a consolidated basis for the Borrower and the Consolidated Entities, the
sum of the following derived from such Property: (i) Property revenues,
less (ii) Property expenses (excluding depreciation, amortization and debt
service), less (iii) an assumed management fee equal to 4% of gross rental
income (less any management fees included in Property expenses under clause
(ii)) and less (iv) an annual capital reserve equal to $150 for each Unit.
"New Bank" has the meaning set forth in Section 2.14.
"Non-Recourse Mortgage Debt" means Debt secured by a Mortgage
on Property, which the Administrative Agent has determined in good faith
contains satisfactory exculpation provisions, except for customary
exclusions for environmental liability, misapplication or fraudulent
application of rent after default, insurance proceeds and condemnation
awards and other customary exclusions.
"Notes" means the Syndicated Loan Notes, the Swing Loan Note,
or Money Market Loan Notes, or any one, or more, or all of them, as the
context shall require.
"Notice of Borrowing" has the meaning set forth in
Section 2.02.
"Officer's Certificate and Agreement" has the meaning set forth
in Section 3.01(f).
"Participant" has the meaning set forth in Section 9.08(b).
"Partner" means the owner of a Partnership Interest.
"Partner Conversions" means the exchange by any limited partner
of the Borrower of any of its limited partner interests in the Borrower to
shares in the General Partner, on 1 for 1 ratio, pursuant to the provisions
of the Limited Partnership Agreement.
"Partnership Interests" means any partner interests in the
Borrower, whether general or limited.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.06(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a limited liability company, a limited
liability partnership, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and is either (i) maintained by a member of
the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding 5 plan years
made contributions.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings.
The Prime Rate is but one of several interest rate bases used by Wachovia.
Wachovia lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or otherwise
used or occupied by the General Partner, the Borrower or any Guarantor,
wherever located.
"Qualified Letter of Credit" means a Letter of Credit
(i) issued by a bank or financial institution with a Debt Rating of "A" or
higher (or the equivalent), (ii) issued for the benefit of Borrower, and
(iii) that is irrevocable, unconditional (other than the presentment of
required documents), and drawn on site.
"Quarterly Period" means a 3 month period (or portion
thereof) ending on each March 31, June 30, September 30 and December 31
after The Closing Date, and prior to the Termination Date.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination
Date either (i) mandatorily redeemable (by sinking fund or similar payments
or otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day on
which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing
is being converted to a Euro-Dollar Borrowing, if and to the extent that
the proceeds thereof are used entirely for the purpose of paying such
maturing Loan or Loan being converted, excluding any difference between the
amount of such maturing Syndicated Loan or Syndicated Loan being converted
and any greater amount being borrowed on such day and actually either being
made available to the Borrower pursuant to Section 2.02(c) or remitted to
the Administrative Agent as provided in Section 2.12, in each case as
contemplated in Section 2.02(d).
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Related Fund" means, with respect to any Bank that is a fund
that invests in bank loans, any other fund that invests in bank loans and
is advised or managed by the same investment advisor as such Bank.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are
no longer in effect, Banks holding at least 66 2/3% of the aggregate
outstanding principal amount of the sum of the (i) Syndicated Loans and
(ii) Money Market Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock (except
dividends payable solely in shares of its Capital Stock) or (ii) any
payment on account of the purchase, redemption, retirement or acquisition
of (a) any shares of the Borrower's Capital Stock (except shares acquired
upon the conversion thereof into other shares of its Capital Stock) or
(b) any option, warrant or other right to acquire shares of the Borrower's
Capital Stock.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
"Service Companies" means AMLI Institutional Advisors, Inc., a
Delaware corporation, AMLI Management Company, a Delaware corporation, and
AMLI Residential Construction, Inc., a Delaware corporation.
"Sope Creek Properties" means Phases I, II and III of the
apartment community known as "AMLI at Sope Creek" and located in Marietta,
▇▇▇▇ County, Georgia.
"Stabilized Property" means at any time any apartment community
Property owned by the Borrower (i) which is at least 90% leased and
economically occupied (pursuant to written leases which have been signed by
both landlord and tenant, but including any month to month occupancy by any
such tenant after the expiration of such written lease) or (ii) with
respect to which a permanent certificate of occupancy was issued at least 3
months prior to the date of measurement.
"Stated Maturity Date" means, with respect to any Money Market
Loan, the Stated Maturity Date therefor specified by the Bank in the
applicable Money Market Quote.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the
Borrower or the General Partner; excluding, however, the Co-Investment
Partnerships. The Service Companies are not Subsidiaries.
"Swing Loan" means a Loan made by Wachovia pursuant to
Section 2.01(b), which must be a Base Rate Loan or a Transaction Rate Loan.
"Swing Loan Note" means the promissory note of the Borrower,
substantially in the form of Exhibit A-2, evidencing the obligation of the
Borrower to repay the Swing Loans, together with all amendments,
consolidations, modifications, renewals, and supplements thereto.
"Syndicated Loans" means Base Rate Loans or Euro-Dollar Loans
made pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-1, evidencing the
obligation of the Borrower to repay Syndicated Loans, together with all
amendments, consolidations, modifications, renewals and supplements
thereto.
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means whichever is applicable of
(i) October 11, 2002, (ii) such later date to which it is extended by the
Banks pursuant to Section 2.05(b), in their sole and absolute discretion,
(iii) the date the Commitments are terminated pursuant to Section 6.01
following the occurrence of an Event of Default, or (iv) the date the
Borrower terminates the Commitments entirely pursuant to Section 2.07.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in
the ordinary course of the Borrower's business and on a temporary basis.
"Total Consolidated Liabilities" means at any time, for the
Borrower and the Consolidated Entities, determined on a consolidated basis,
but without duplication, the sum of (i) Consolidated Liabilities, plus
(ii) all Debt Guaranteed by the Borrower or any Consolidated Entity, plus
(iii) the face amount of all letters of credit issued for the account of
the Borrower or any Consolidated Entity, minus (iv) Approved Collateral
Value.
"Total Secured Debt" means at any time, for the Borrower and
the Consolidated Entities, determined on a consolidated basis, but without
duplication, the sum of the following, but only if any Property, or
ownership interest of the owner thereof, is subject to a Mortgage with
respect thereto: (i) all indebtedness for borrowed money; (ii) the deferred
purchase price of Property; (iii) all capital leases; (iv) all obligations
to reimburse any bank or other Person in respect of amounts paid or to be
paid under a letter of credit or similar instrument; and (v) all Guarantees
of Debt of Persons other than the Borrower and the Consolidated Entities.
"Transaction Rate" has the meaning set forth in
Section 2.01(b)(ii).
"Transaction Rate Loan" means a Swing Loan to be made as a
Transaction Rate Loan pursuant to Section 2.01(b).
"Transaction Rate Request" has the meaning set forth in
Section 2.01(b)(ii).
"Transferee" has the meaning set forth in Section 9.08(d).
"Undepreciated Book Asset Value" means at any time, for the
Borrower and its Subsidiaries, the sum of (x) the original cost of all real
estate assets plus the cost of capital improvements thereon, without
deduction for accumulated depreciation and amortization incurred in
connection therewith, plus (y) the book value of all other tangible assets
determined in accordance with GAAP, minus (z) Approved Collateral Value.
"Unencumbered Assets" means at any time, for the Borrower and
the Guarantors, determined on a consolidated basis, the sum of the
following: (i) an amount equal to (x) the Net Operating Income for the 3
month period ending on the last day of the Fiscal Quarter just ended prior
to the date of determination, from each Property (other than Properties
owned by a Co-Investment Partnership) not subject to a Mortgage, divided by
(y) 0.09 (which is the capitalization factor), times (z) 4 (which is the
annualization factor); plus (ii) the book value of Construction in Progress
on all Property (other than Properties owned by a Co-Investment
Partnership) not subject to a Mortgage plus Properties (other than
Properties owned by a Co-Investment Partnership) consisting of unimproved
land not subject to a Mortgage.
"Unencumbered Stabilized Properties" means at any time, all
Stabilized Properties not subject to a Mortgage.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all
vested nonforfeitable benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits, all determined as of
the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the
Controlled Group to the PBGC or the Plan under Title IV of ERISA.
"Unit" means an individual apartment unit located in a
Property.
"Unsecured Net Operating Income" means at any time all Net
Operating Income (but without giving effect to clauses (iii) and (iv) of
the definition thereof) attributable to Unencumbered Stabilized Properties.
"Unsecured Funded Debt" means at any time, for the Borrower and
the Consolidated Entities, determined on a consolidated basis, the sum of
the following, but only if any Property, or ownership interest of the owner
thereof, is not subject to a Mortgage with respect thereto: (i) all
indebtedness for borrowed money; (ii) the deferred purchase price of
Property; (iii) all capital leases; (iv) all obligations to reimburse any
bank or other Person in respect of amounts paid or to be paid under a
letter of credit or similar instrument; and (v) all Guarantees of Debt of
Persons other than the Borrower and the Consolidated Entities, and
(vi) Debt not exceeding $7,500,000 in the aggregate principal amount with
respect to the Sope Creek Properties.
"Unsecured Interest Expense" means at any time that portion of
Consolidated Interest Expense attributable to Unsecured Funded Debt.
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding
principal amount of its Syndicated Loans (but not its Money Market Loans,
or, with respect to Wachovia, its Swing Loans).
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned
by the Borrower or the General Partner.
"Year 2000 Compliant" has the meaning set forth in
Section 4.20.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.
Unless otherwise specified herein, all terms of an accounting
character used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared, in accordance with GAAP, or with
respect to the calculation of Funds From Operations, as required by NAREIT,
applied on a basis consistent (except for changes concurred in by the
General Partner's independent public accountants or otherwise required by a
change in GAAP) with the most recent audited consolidated financial
statements of the General Partner or the Borrower and its Consolidated
Subsidiaries delivered to the Banks unless with respect to any such change
concurred in by the General Partner's independent public accountants or
required by GAAP or, with respect to the calculation of Funds From
Operations, as required by NAREIT, in determining compliance with any of
the provisions of this Agreement or any of the other Loan Documents:
(i) the Borrower shall have objected to determining such compliance on such
basis at the time of delivery of such financial statements, or (ii) the
Required Banks shall so object in writing within 30 days after the delivery
of such financial statements, in either of which events such calculations
shall be made on a basis consistent with those used in the preparation of
the latest financial statements as to which such objection shall not have
been made (which, if objection is made in respect of the first financial
statements delivered under Section 5.01 hereof, shall mean the financial
statements referred to in Section 4.04).
SECTION 1.03. REFERENCES.
Unless otherwise indicated, references in this Agreement to
"Articles", "Exhibits", "Schedules", "Sections" and other Subdivisions are
references to articles, exhibits, schedules, sections and other
subdivisions hereof.
SECTION 1.04. USE OF DEFINED TERMS.
All terms defined in this Agreement shall have the same defined
meanings when used in any of the other Loan Documents, unless otherwise
defined therein or unless the context shall require otherwise.
SECTION 1.05. TERMINOLOGY.
All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural, and the plural shall include the
singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND SYNDICATED LOANS.
(a) Syndicated Loans. Each Bank severally agrees, on the
terms and conditions set forth herein, to make Syndicated Loans to the
Borrower from time to time before the Termination Date; provided that,
(i) immediately after each such Syndicated Loan is
made, the aggregate outstanding principal amount of Syndicated Loans by
such Bank shall not exceed the amount of its Commitment, and
(ii) the aggregate outstanding amount of all Syndicated
Loans, Money Market Loans and Swing Loans shall not exceed the lesser of
(A) the aggregate amount of the Commitments and (B) the Borrowing Base.
Each Syndicated Borrowing under this Section shall be in an aggregate
principal amount of (x) for Base Rate Loans, $1,000,000 or any larger
integral multiple of $500,000, and (y) for Euro-Dollar Loans, $1,000,000 or
any larger integral multiple of $500,000 (except that in each case any such
Borrowing may be in the aggregate amount of the Unused Commitments) and
shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may
borrow under this Section, repay or, to the extent permitted by
Section 2.09, prepay Syndicated Loans and reborrow under this Section at
any time before the Termination Date.
(b) Swing Loans.
(i) In addition to the foregoing, Wachovia shall from
time to time, upon the request of the Borrower, if the applicable
conditions precedent in Article III have been satisfied, make Swing Loans
to the Borrower in an aggregate principal amount at any time outstanding
not exceeding $15,000,000; provided that, immediately after such Swing Loan
is made, the outstanding amount of the Syndicated Loans, Money Market
Loans, and Swing Loans shall not exceed the lesser of (A) the aggregate
amount of the Commitments and (B) the Borrowing Base. Within the foregoing
limits, the Borrower may borrow under this Section 2.01(b), prepay and
reborrow under this Section 2.01(b) at any time before the Termination
Date. All Swing Loans shall be made as either Base Rate Loans or, subject
to the provisions of clause (ii) below, Transaction Rate Loans.
(ii) Swing Loans may be Transaction Rate Loans, if the
Administrative Agent shall have determined that such Transaction Rate Loan,
including the principal amount thereof, the Interest Period and the
Transaction Rate applicable thereto, has been expressly agreed to by the
Borrower and Wachovia (such agreement may be obtained by telephone,
confirmed promptly to the Administrative Agent in writing) pursuant to the
following procedures. If the Borrower desires a Transaction Rate Loan,
(a) the Borrower shall provide Wachovia, with a copy to the Administrative
Agent, with notice of a request (a "Transaction Rate Request") for a quote
for a Transaction Rate Borrowing prior to 1:00 p.m. (Atlanta, Georgia
time) on the date (which shall be a Domestic Business Day) of the proposed
Transaction Rate Borrowing, which Transaction Rate Request shall include
the principal amount and proposed Interest Period of the relevant
Transaction Rate Borrowing, (b) prior to 1:30 p.m. (Atlanta, Georgia
time) on such date, Wachovia shall furnish the Borrower, with a copy to the
Administrative Agent, with its rate quote (a "Transaction Rate Quote") via
facsimile transmission, (c) the Borrower shall immediately inform Wachovia
and the Administrative Agent of its decision as to whether to request a
Transaction Rate Borrowing at the Transaction Rate specified in such
Transaction Rate Quote (a "Transaction Rate") (which may be done by
telephone and promptly confirmed in writing, and which decision shall be
irrevocable), and (d) if the Borrower has so informed Wachovia and the
Administrative Agent that it does desire a Transaction Rate Borrowing at
the Transaction Rate specified in such Transaction Rate Quote, then by 2:00
p.m. (Atlanta, Georgia time) on the date of such decision, Wachovia shall
make such Transaction Rate Borrowing, with interest accruing thereon at
such Transaction Rate, available to the Administrative Agent in accordance
with the procedures set forth herein. The Administrative Agent shall notify
the Banks of any Transaction Rate Borrowing pursuant hereto.
(iii) At any time on or after the occurrence of an Event
of Default, upon the request of Wachovia, each Bank other than Wachovia
shall, on the third Domestic Business Day after such request is made,
purchase a participating interest in Swing Loans in an amount equal to its
ratable share (based upon its respective Commitment) of such Swing Loans,
and Wachovia shall furnish each Bank with a certificate evidencing such
participating interest. On such third Domestic Business Day, each Bank
will immediately transfer to Wachovia, in immediately available funds, the
amount of its participation. Whenever, at any time after Wachovia has
received from any such Bank its participating interest in a Swing Loan, the
Administrative Agent receives any payment on account thereof, the
Administrative Agent will distribute to such Bank its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Bank's
participating interest was outstanding and funded); provided, however, that
in the event that such payment received by the Administrative Agent is
required to be returned, such Bank will return to the Administrative Agent
any portion thereof previously distributed by the Administrative Agent to
it. Each Bank's obligation to purchase such participating interests shall
be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation: (1) any set-off,
counterclaim, recoupment, defense or other right which such Bank or any
other Person may have against Wachovia requesting such purchase or any
other Person for any reason whatsoever; (2) the occurrence or continuance
of a Default or an Event of Default or the termination of the Commitments;
(3) any adverse change in the condition (financial or otherwise) of the
Borrower or Guarantor; (4) any breach of this Agreement by the Borrower or
any other Bank; or (5) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS.
For all Loans other than Transaction Rate Loans or Money Market
Loans (which shall be governed by the provisions of Sections
2.01(b)(ii) and 2.03, respectively):
(a) The Borrower shall give the Administrative Agent notice
(a "Notice of Borrowing"), which shall be substantially in the form of
Exhibit E, prior to 11:00 A.M. (Atlanta, Georgia time) on the same Domestic
Business Day as each Base Rate Borrowing and at least 3 Euro-Dollar
Business Days before each Euro-Dollar Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which shall
be a Domestic Business Day in the case of a Base Rate Borrowing or a Euro-
Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such
Borrowing are to be Syndicated Loans or Swing Loans, and whether they are
to be Base Rate Loans or Euro-Dollar Loans;
(iv) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly and in any event on the same business day notify each
Bank of the contents thereof and of such Bank's ratable share of such
Syndicated Borrowing and such Notice of Borrowing, once received by the
Administrative Agent, shall not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time) for
Euro-Dollar Loans, and 2:00 P.M. (Atlanta, Georgia time) for Base Rate
Loans, on the date of each Syndicated Borrowing, each Bank (or Wachovia,
with respect to Swing Loans) shall (except as provided in paragraph (d) of
this Section) make available its ratable share of such Syndicated
Borrowing, in Federal or other funds immediately available in Atlanta,
Georgia, to the Administrative Agent at its address determined pursuant to
Section 9.01. Unless the Administrative Agent determines that any
applicable condition specified in Article III 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 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 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 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in
this Agreement, no Fixed Rate Borrowing may be made if there shall have
occurred a Default or an Event of Default, which Default or Event of
Default shall not have been cured or waived, and all Refunding Loans shall
be made as Base Rate Loans (but shall bear interest at the Default Rate, if
applicable).
(f) In the event that a Notice of Borrowing fails to specify
whether the Syndicated Loans comprising such Syndicated Borrowing are to be
Base Rate Loans or Euro-Dollar Loans, such Syndicated Loans shall be made
as Base Rate Loans. If the Borrower is otherwise entitled under this
Agreement to repay any Syndicated Loans maturing at the end of an Interest
Period applicable thereto with the proceeds of a new Borrowing, and the
Borrower fails to repay such Syndicated Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new Syndicated
Borrowing, a new Syndicated Borrowing shall be deemed to be made on the
date such Syndicated Loans mature in an amount equal to the principal
amount of the Syndicated Loans so maturing, and the Syndicated Loans
comprising such new Syndicated Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained
herein, there shall not be a total of more than 8 Euro-Dollar Borrowings
and Money Market Loans outstanding at any given time.
SECTION 2.03. MONEY MARKET LOANS.
(a) In addition to making Syndicated Borrowings, the Borrower
may, as set forth in this Section 2.03, request the Banks to make offers to
make Money Market Borrowings available to the Borrower. The Banks may, but
shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth
in this Section 2.03, provided that:
(i) the number of Money Market Loans which may be
outstanding at any given time is subject to the provisions of
Section 2.02(g);
(ii) the aggregate principal amount of all Money Market
Loans, (A) do not exceed the Money Market Facility Limit, and (B) together
with the aggregate principal amount of all Syndicated Loans and all Swing
Loans, at any one time outstanding shall not exceed the aggregate amount of
the Commitments of all of the Banks at such time;
(iii) the Money Market Loans of any Bank will be deemed
to be usage of the Commitments for the purpose of calculating availability
pursuant to Sections 2.01(a)(ii), 2.01(b)(i) and 2.03(a)(ii) and fees
pursuant to Section 2.07, but will not reduce such Bank's obligation to
lend its pro rata share of the remaining Unused Commitment; and
(iv) Borrower's Debt Rating is Investment Grade or
higher.
(b) When the Borrower wishes to request offers to make Money
Market Loans, it shall give the Administrative Agent (which shall promptly
notify the Banks) notice substantially in the form of Exhibit M hereto (a
"Money Market Quote Request") so as to be received no later than 11:00 A.M.
(Atlanta, Georgia time) at least 3 Domestic Business Days prior to the date
of the Money Market Borrowing proposed therein (or such other time and date
as the Borrower and the 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 $1,000,000 (and in larger integral multiples of $500,000) but
shall not cause the limits specified in Section 2.03(a) to be violated.
The Borrower may request offers to make Money Market Loans having up to 2
different Stated Maturity Dates in a single Money Market Quote Request;
provided that the request for each separate Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request for a separate Money
Market Borrowing. Except as otherwise provided in the immediately
preceding sentence, after the first Money Market Quote Request has been
given hereunder, no Money Market Quote Request shall be given until at
least 5 Domestic Business Days after all prior Money Market Quote Requests
have been fully processed by the Administrative Agent, the Banks and the
Borrower pursuant to this Section 2.03.
(c) (i) Each Bank may, but shall have no obligation
to, submit a response containing an offer to make a Money Market Loan
substantially in the form of Exhibit N hereto (a "Money Market Quote") in
response to any Money Market Quote Request; provided that, if the
Borrower's request under Section 2.03(b) specified more than 1 Stated
Maturity Date, such Bank may, but shall have no obligation to, make a
single submission containing a separate offer for each such Stated Maturity
Date and each such separate offer shall be deemed to be a separate Money
Market Quote. Each Money Market Quote must be submitted to the
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 6.01, 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 $1,000,000 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 2.03(c) and (ii) of any Money
Market Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the same
Money Market Quote Request. Any such subsequent Money Market Quote shall
be disregarded by the 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 2.03(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 $1,000,000 (and
in larger integral multiples of $500,000) but shall not cause the limits
specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending
order of Money Market Rates; and
(iv) the Borrower may not accept any offer where the
Administrative Agent has advised the Borrower that such offer fails to
comply with Section 2.03(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including without limitation,
Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for
a greater aggregate principal amount than the amount in respect of which
offers are accepted for the related Stated Maturity Date, the principal
amount of Money Market Loans in respect of which such offers are accepted
shall be allocated by the Borrower among such Banks as nearly as possible
in proportion to the aggregate principal amount of such offers.
Determinations by the Borrower of the amounts of Money Market Loans shall
be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 2:00 P.M. (Atlanta, Georgia time) on
the Money Market Borrowing Date, make the amount of such Money Market Loan
allocated to it available to the Administrative Agent at its address
referred to in Section 9.01 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
4:00 P.M. (Atlanta, Georgia time), in an account of such Borrower
maintained with Wachovia.
(g) After any Money Market Loan has been funded, the
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.
(h) Money Market Loans by Designated Banks. For any Bank
which is a Designating Bank, any Money Market Loan to be made by such Bank
may from time to time be made by its Designated Bank in such Designated
Bank's sole discretion, and nothing herein shall constitute a commitment to
make Money Market Loans by such Designated Bank; provided, that if any
Designated Bank elects not to, or fails to, make any such Money Market Loan
that has been accepted by the Borrower in accordance with the foregoing,
its Designating Bank hereby agrees that it shall make such Money Market
Loan pursuant to the terms hereof.
SECTION 2.04. NOTES.
(a) The Syndicated Loans of each Bank shall be evidenced by a
single Syndicated Loan Note payable to the order of such Bank for the
account of its Lending Office in an amount equal to the original principal
amount of such Bank's Commitment. The Swing Loans shall be evidenced by a
single Swing Loan Note payable to the order of Wachovia in the original
principal amount of $15,000,000. The Money Market Loans made by any Bank
to the Borrower shall be evidenced by a single Money Market Loan Note
payable to the order of such Bank for the account of its Lending Office in
an amount equal to the Money Market Facility Limit.
(b) Upon receipt of each Bank's Syndicated Loan Notes, Money
Market Loan Notes, and Wachovia's Swing Loan Note pursuant to Section 3.01,
the Administrative Agent shall deliver such Syndicated Loan Notes and Money
Market Loan Notes to such Bank and the Swing Loan Note to Wachovia. Each
Bank, as to the Syndicated Loans and Money Market Loan Notes (or Wachovia,
as to the Swing Loans), shall record, and prior to any transfer of its
Syndicated Loan Notes or Money Market Loan Notes (or Swing Loan Note) shall
endorse on the schedules forming a part thereof appropriate notations to
evidence, the date, amount and maturity of, and effective interest rate
for, each Syndicated Loan or Money Market Loan Notes (or Swing Loan) made
by it, the date and amount of each payment of principal made by the
Borrower with respect thereto, and such schedules of each such Bank's
Syndicated Loan Notes or Money Market Loan Notes (or Wachovia's Swing Loan
Note) shall constitute rebuttable presumptive evidence of the respective
principal amounts owing and unpaid on such Bank's Syndicated Loan Notes or
Money Market Loan Notes (or Wachovia's Swing Loan Note); provided that the
failure of any Bank (or Wachovia) to make, or error in making, any such
recordation or endorsement shall not affect the obligation of the Borrower
hereunder or under the Syndicated Loan Notes or Money Market Loan Notes (or
Swing Loan Note) or the ability of any Bank to assign its Syndicated Loan
Notes or Money Market Loan Notes or Wachovia to assign its Swing Loan Note.
Each Bank (and Wachovia, with respect to the Swing Loan) is hereby
irrevocably authorized by the Borrower so to endorse its Syndicated Loan
Notes or Money Market Loan Notes (or Swing Loan Note) and to attach to and
make a part of any Syndicated Loan Note or Money Market Loan Notes (or
Swing Loan Note) a continuation of any such schedule as and when required.
SECTION 2.05. MATURITY OF LOANS.
(a) Each Loan included in any Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal
amount of the Loans, if any, together with all accrued but unpaid interest
thereon, if any, shall be due and payable on October 11, 2002, 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 Administrative Agent at least 60 days
prior to each Extension Date (as such term is hereinafter defined), the
Banks shall have the option (without any obligation whatsoever so to do) of
extending the Termination Date for an additional one-year period on October
11, 2000 and October 11, 2001 (each an "Extension Date"). In the event
that a Bank chooses to extend the Termination Date for such an additional
one-year period, notice shall be given by such Bank to the Borrower and the
Administrative Agent at least 30 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 on the then existing Termination Date (without giving
effect to such extension) (x) the remaining Banks shall purchase ratable
assignments (without any obligation so to do) from any terminating Bank (in
the form of an Assignment and Acceptance) in accordance with their
respective percentage of the remaining Aggregate Commitments; provided,
that, such Banks shall be provided such opportunity (which opportunity
shall allow such Banks at least 5 Domestic Business Days in which to make a
decision) prior to the Borrower finding another bank pursuant to the
immediately succeeding clause (y); and, provided, further, that, should any
of the remaining Banks elect not to purchase such an assignment, then, such
other remaining Banks shall be entitled to purchase an assignment from any
Terminating Bank which includes the ratable interest that was otherwise
available to such non-purchasing remaining Bank or Banks, as the case may
be, (y) the Borrower shall find another bank, acceptable to the
Administrative Agent, willing to accept an assignment from such terminating
Bank (in the form of an Assignment and Acceptance) and/or (z) the Borrower
shall reduce the aggregate Commitments in an amount equal to the Commitment
of any such terminating Bank which is not purchased pursuant to clause
(x) or (y). In the event of any extension pursuant to the foregoing, on an
Extension Date, the Borrower shall pay to the Administrative Agent, for the
ratable account of the Banks, an extension fee equal to 0.10% of the
aggregate amount of the Commitments in effect on such Extension Date. If
no extension is granted on the first Extension Date, there shall be no
right to request an extension on the second Extension Date. In the event
of any extension pursuant to the foregoing, on the Extension Date, the
Borrower shall pay to the Agent, for the ratable account of the Banks, an
extension fee equal to 0.10% of the aggregate amount of the Commitments in
effect on such Extension Date.
SECTION 2.06. INTEREST RATES.
(a) "Applicable Margin" means: (i) until the Borrower
receives a Debt Rating, (x) for any Base Rate Loan, 0.00%, and (y) for each
Euro-Dollar Loan 1.30%; and (ii) from and after the date Borrower receives
a Debt Rating, (x) for any Base Rate Loan, 0.00% and (y) for each Euro-
Dollar Loan, the percentage determined on each Performance Pricing
Determination Date by reference to the table set forth below and the
Borrower's Debt Rating on such Performance Pricing Determination Date;
provided, that if Borrower has no Debt Rating, the Applicable Margin for
Euro-Dollar Loans shall be based upon Level IV of the table below.
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
------- -------- -------- --------
Debt
Rating greater than less than
or equal to BBB+ BBB BBB- BBB-
or or or or
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ + 0.75% 0.90% 1.05% 1.30%
In determining the amounts to be paid by the Borrower pursuant to
Section 2.06(b), the Borrower and the Banks shall refer to the Borrower's
Debt Rating from time to time. For purposes hereof, "Performance Pricing
Determination Date" shall mean each date on which the Borrower's Debt
Rating changes. Each change in interest and fees as a result of a change
in Borrower's Debt Rating shall be effective only for Loans (including
Refunding Loans) which are made on or after the relevant Performance
Pricing Determination Date. All determinations hereunder shall be made by
the Administrative Agent unless the Required Banks shall object to any such
determination. The Borrower shall promptly notify the Administrative Agent
of any change in the Borrower's Debt Rating.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Base Rate for such
day plus the Applicable Margin. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue principal of and, to
the extent permitted by applicable law, overdue interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period.
Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than 3 months, at intervals
of 3 months after the first day thereof. Any overdue principal of and, to
the extent permitted by law, overdue interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained
(rounded upwards, if necessary, to the next higher 1/100th of 1%) by
dividing (i) the applicable London Interbank Offered Rate for such Interest
Period by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar
Loan means for the Interest Period of such Euro-Dollar Loan, the rate per
annum determined on the basis of the offered rate for deposits in Dollars
of amounts equal or comparable to the principal amount of such Euro-Dollar
Loan offered for a term comparable to such Interest Period, which rates
appear on the Dow ▇▇▇▇▇ Markets, Inc. Page 3750 effective as of 11:00 A.M.,
London time, 2 Euro-Dollar Business Days prior to the first day of such
Interest Period, provided that if no such offered rates appear on such
page, the "London Interbank Offered Rate" for such Interest Period will be
the arithmetic average (rounded upward, if necessary, to the next higher
1/100th of 1%) of rates quoted by not less than 2 major banks in New York
City, selected by the 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
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.
(a) 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.
(b) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative 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.
(c) After the occurrence and during the continuance of an Event
of Default, the principal amount of the Loans (and, to the extent permitted
by applicable law, all accrued interest thereon) may, at the election of
the Required Banks, bear interest at the Default Rate.
SECTION 2.07. FEES.
(a) Commencing on the Closing Date, the Borrower shall pay to the
Administrative Agent, for the ratable account of each Bank, a facility fee,
calculated on the aggregate amount of such Bank's Commitment (without
taking into account the amount of the outstanding Loans made by such Bank),
at the rate of 0.20% per annum. Such fees shall be payable in arrears on
each March 31, June 30, September 30 and December 31 and on the Termination
Date.
(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 Agents' Letter Agreement.
SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS.
The Borrower may, upon at least 3 Domestic Business Days' notice (or
same Domestic Business Days' notice as to Swing Loans) to the
Administrative Agent, terminate at any time, or proportionately reduce the
Unused Commitments from time to time by an aggregate amount of at least
$10,000,000 or any larger integral multiple of $1,000,000. If the
Commitments are terminated in their entirety, all accrued fees (as provided
under Section 2.07) shall be due and payable on the effective date of such
termination.
SECTION 2.09. MANDATORY REDUCTION AND TERMINATION OF
COMMITMENTS.
The Commitments shall terminate on the Termination Date, or on any
earlier date pursuant to the provisions of and under the circumstances
provided in Section 2.11(d), and in either case any Loans then outstanding
(together with accrued interest thereon and, in the case of a termination
pursuant to Section 2.11(d), any other amounts payable pursuant to such
Section 2.11(d)) shall be due and payable on such date.
SECTION 2.10. OPTIONAL PREPAYMENTS.
(a) The Borrower may, upon at least 1 Domestic Business Days'
notice to the Administrative Agent, prepay any Base Rate Borrowing in whole
at any time, or from time to time in part in amounts aggregating at least
$1,000,000 or any larger integral multiple of $500,000 for Base Rate
Borrowings which are Syndicated Borrowings (with no minimum payment as to
Swing Loan Borrowings), by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the Base Rate
Loans of the several Banks (or of Wachovia, as to Swing Loans) included in
such Base Rate Borrowing.
(b) Subject to any payments required pursuant to the terms of
Article VIII for such Fixed Rate Loan, upon 3 Domestic Business Day's prior
written notice (or same Domestic Business Days' notice as to Swing
Loans) to the Administrative Agent, the Borrower may prepay in minimum
amounts of $1,000,000 or any larger integral multiple of $500,000 as to
Euro-Dollar Borrowings (with no minimum payment as to Swing Loan
Borrowings) all or any portion of the principal amount of any Fixed Rate
Loan prior to the maturity thereof. Each such optional prepayment shall be
applied to prepay ratably the Fixed Rate Loans of the several Banks (or of
Wachovia, as to Swing Loans) included in such Fixed Rate Borrowing.
(c) Each such payment or prepayment shall be applied to the Swing
Loans or ratably to the Loans of the Banks outstanding on the date of
payment or prepayment in the following order of priority: (i) first, to
Swing Loans which are Base Rate Loans; (ii) second, to Transaction Rate
Loans; (iii) third, to Syndicated Loans which are Base Rate Loans;
(iv) fourth, to Euro-Dollar Loans; and (v) last, to Money Market Loans.
(d) Upon receipt of a notice of prepayment pursuant to this
Section 2.10, the 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 2.11. MANDATORY PREPAYMENTS.
(a) On each date on which the Commitments are reduced pursuant
to Section 2.08 or Section 2.09, the Borrower shall repay or prepay such
principal amount of the outstanding Loans, if any (together with interest
accrued thereon and any amount due under Section 8.05(a)), as may be
necessary so that after such payment the aggregate unpaid principal amount
of the Loans does not exceed the aggregate amount of the Commitments as
then reduced.
(b) On each date on which the aggregate principal amount of the
Loans outstanding exceeds the Borrowing Base on such date, the Borrower
shall repay or prepay such principal amount of the outstanding Loans
(together with interest thereon and any amount due under
Section 8.05(a)) as may be necessary so that after such payment the
aggregate unpaid principal amount of the Loans does not exceed the
Borrowing Base on such date.
(c) Each such payment or prepayment pursuant to paragraph (a),
(b) or (d) shall be applied ratably to the Loans of the Banks outstanding
on the date of payment or prepayment in the following order of priority:
(i) first, to Swing Loans, (ii) secondly to Syndicated Loans which are Base
Rate Loans; (iii) thirdly, to Euro-Dollar Loans; and (iv) lastly, to Money
Market Loans.
(d) In the event of a Change in Control, the Borrower shall
notify the Administrative Agent and the Banks thereof within 3 Business
Days of the occurrence thereof, and shall include in such notification
relevant information pertaining thereto. Within 14 Business Days after
demand by the Administrative Agent, made in writing at the request of the
Required Banks within 60 days of the Administrative Agent's receipt of the
aforesaid notice from the Borrower, the Borrower shall prepay in full the
aggregate unpaid principal amount of the Loans, all accrued and unpaid
interest thereon, any amounts due under Section 8.05(a), and all other
accrued and unpaid amount hereunder, and the Commitments thereupon shall
terminate pursuant to Section 2.08.
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than 11:00 A.M.
(Atlanta, Georgia time) on the date when due, in Federal or other funds
immediately available in Atlanta, Georgia, to the Administrative Agent at
its address referred to in Section 9.01. The Administrative Agent will
promptly distribute to each Bank its ratable share of each such payment
received by the Administrative Agent for the account of the Banks, and to
Wachovia such payment received by the Administrative Agent on account of
the Swing Loans.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans, Money Market Loans or of fees hereunder shall be due on a
day which is not a Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic Business Day. Whenever
any payment of principal of or interest on, the Euro-Dollar Loans shall be
due on a day which is not a Euro-Dollar Business Day, the date for payment
thereof shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-
Dollar Business Day.
(c) All payments of principal, interest and fees and all other
amounts to be made by the Borrower pursuant to this Agreement with respect
to any Loan or fee relating thereto shall be paid without deduction for,
and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein
excluding in the case of each Bank, taxes imposed on or measured by its net
income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Bank's applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
imposts, levies, duties, deductions or withholdings of any nature being
"Taxes"). In the event that the Borrower is required by applicable law to
make any such withholding or deduction of Taxes with respect to any Loan or
fee or other amount, the Borrower shall pay such deduction or withholding
to the applicable taxing authority, shall promptly furnish to any Bank in
respect of which such deduction or withholding is made all receipts and
other documents evidencing such payment and shall pay to such Bank
additional amounts as may be necessary in order that the amount received by
such Bank after the required withholding or other payment shall equal the
amount such Bank would have received had no such withholding or other
payment been made.
No Bank will charge Borrower for taxes or other fees pursuant to this
Section 2.12 or, if such taxes or fees are charged, at a higher rate, than
such Bank, charges its other similarly situated borrowers or customers.
Each Bank which is not organized under the laws of the United States or any
state thereof agrees, as soon as practicable after receipt by it of a
request by the Borrower to do so, to file all appropriate forms and take
other appropriate action to obtain a certificate or other appropriate
document from the appropriate governmental authority in the jurisdiction
imposing the relevant Taxes, establishing that it is entitled to receive
payments of principal and interest under this Agreement and the Notes
without deduction and free from withholding of any Taxes imposed by such
jurisdiction; provided that if it is unable, for any reason, to establish
such exemption, or to file such forms and, in any event, during such period
of time as such request for exemption is pending, the Borrower shall
nonetheless remain obligated under the terms of the immediately preceding
paragraph.
In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.12(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at
any time thereafter it is required to return such refund, the Borrower
shall promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.12(c) shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations
required by such provisions (i) shall be made based upon the circumstances
of such Participant, Assignee or other Transferee, and (ii) constitute a
continuing agreement and shall survive the termination of this Agreement
and the payment in full or cancellation of the Notes.
SECTION 2.13. COMPUTATION OF INTEREST AND FEES.
Interest on Base Rate Loans shall be computed on the basis of a year
of 365 days and paid for the actual number of days elapsed (including the
first day but excluding the last day). Interest on Euro-Dollar Loans,
Money Market Loans and Transaction Rate Loans shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed,
calculated as to each Interest Period from and including the first day
thereof to but excluding the last day thereof. Facility 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).
SECTION 2.14. SECTION 2.14.EXPANSION OF FACILITY.
At the request of the Borrower, the aggregate amount of the
Commitments may be increased at any time prior to the Termination Date to
an aggregate amount not in excess of $300,000,000 without any amendment to
this Agreement and without consent of the Banks, by the execution and
delivery by any new Bank which has been approved by the Borrower and the
Co-Lead Arrangers (a "Joining Bank") of a Bank Joinder Agreement. On the
effective date of such joinder: (i) the Administrative Agent shall notify
all other Banks thereof, including the name, notice address and amount of
Commitment of the Joining Bank; (ii) the Borrower shall execute and deliver
to the Administrative Agent, for re-delivery to the Banks, as appropriate,
a Syndicated Loan Note payable to the Joining Bank in the amount of its
Commitment, and a New Money Market Loan Note payable to each Bank in the
amount of the Money Market Limit, after giving effect to such joinder; and
(iii) the Joining Bank shall purchase from each other Bank a pro rata
participation in such other Bank's existing Syndicated Loans (but not its
Money Market Loans), including in any right of payment pursuant to Section
8.05 with respect thereto, so that, after giving effect thereto, each Bank
(including the Joining Bank) will have risk for such existing Loans equal
to its pro rata share of the Commitments, after giving effect to the
Commitment of the Joining Bank. Loans made after the effective date of
such joinder shall not be subject to the foregoing, and the Joining Bank
shall fund its ratable share thereof in accordance with its commitment.
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. CLOSING CONDITIONS.
The effectiveness of this Agreement and the obligation of each Bank
to make a Loan on the occasion of the first Borrowing hereunder is subject
to the satisfaction of the conditions set forth in Section 3.02 and receipt
by the 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 a duly executed
Money Market Loan Note for the account of each Bank and a duly executed
Swing Loan Note for the account of Wachovia complying with the provisions
of Section 2.03;
(c) an opinion letter of Pircher, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, counsel for
the Borrower and the Guarantors, dated as of the Closing Date,
substantially in the form of Exhibit B and covering such additional matters
relating to the transactions contemplated hereby as the 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) certificate (the "Closing Certificate") substantially in the
form of Exhibit G), dated as of the Closing Date, signed by an Executive
Officer of the General Partner, to the effect that, (i) no Default has
occurred and is continuing on the date of the first Borrowing and (ii) the
representations and warranties of the Borrower and each Guarantor contained
in Article IV are true on and as of the date of the first Borrowing
hereunder;
(f) all documents which the Administrative Agent or any Bank may
reasonably request relating to the existence of the Borrower the
partnership authority for and the validity of this Agreement, the Notes and
any other matters relevant hereto, all in form and substance satisfactory
to the Administrative Agent, including, without limitation, a certificate
and agreement of the General Partner as of the Closing Date substantially
in the form of Exhibit H (the "Officer's Certificate and Agreement"),
signed by an Executive Officer of the General Partner, and certified copies
of the following respective items for the Borrower and the General Partner:
(i) its Certificate of Declaration of Trust, or Certificate of Limited
Partnership, (ii) its Declaration of Trust, Partnership Agreement, (iii) a
certificate of the Secretary of State of the State of its incorporation or
creation as to its good standing as a real estate investment trust or
partnership created therein, and (iv) the action taken by its Board of
Trustees of the General Partner authorizing the execution, delivery and
performance of the Loan Documents to which it is a party;
(g) a Notice of Borrowing or notification pursuant to
Section 2.03(e) of acceptance of one or more Money Market Quotes, as
applicable;
(h) receipt of the Borrowing Base Certificate for the Fiscal
Quarter ending on June 30, 1999;
(i) receipt of the upfront fee payable to the Banks pursuant to
separate agreement between the Administrative Agent and the Borrower;
(j) payment of all amounts payable under and termination of the
Existing Credit Agreement (but if any Euro-Dollar Loans are outstanding
under the Existing Credit Agreement on the Closing Date, then (1) if there
is to be a funding of a Syndicated Loan on the Closing Date, any such Bank
may net out from such funding the amount of its existing Syndicated Loan,
and such amount shall be deemed to be due and payable under its Syndicated
Loan Note for an Interest Period equal to the remaining Interest Period
under its outstanding Euro-Dollar Loan under the Existing Credit
Agreement); and
(k) payment of all fees payable on the Closing Date to the
Administrative Agent, the Syndication Agent and the Co-Lead Arrangers under
the Agents' Letter Agreement.
In addition, if the Borrower desires funding of a Fixed Rate Loan on
the Closing Date, the Administrative Agent shall have received, the
requisite number of days prior to the Closing Date, a funding
indemnification letter satisfactory to it, pursuant to which (i) the
Administrative Agent and the Borrower shall have agreed upon the interest
rate, amount of Borrowing and Interest Period for such Fixed Rate Loan, and
(ii) the Borrower shall indemnify the Banks from any loss or expense
arising from the failure to close on the anticipated Closing Date
identified in such letter or the failure to borrow such Fixed Rate Loan on
such date.
SECTION 3.02. CONDITIONS TO ALL BORROWINGS.
The obligation of each Bank to make a Loan on the occasion of each
Borrowing is subject to the satisfaction of the following conditions except
as expressly provided in the last sentence of this Section 3.02:
(a) receipt by the Administrative Agent of a Notice of Borrowing
or acceptance of a Transaction Rate Quote or notification pursuant to
Section 2.03(e) of acceptance of one or more Money Market Quotes, as
applicable;
(b) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower and each Guarantor contained in Article IV of this Agreement shall
be true on and as of the date of such Borrowing; and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i) and (ii) of Section 2.01(a) shall have
been satisfied.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the truth and
accuracy of the facts specified in paragraphs (b), (c) and (d) of this
Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower and (by incorporation by reference in the Guaranty) the
Guarantors, as expressly stated, each represents and warrants that:
SECTION 4.01. PARTNERSHIP, TRUST AND CORPORATE EXISTENCE AND
POWER.
(a) The Borrower is a limited partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
creation, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and
has all partnership powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except where any failure does not have and would not reasonably be expected
to cause a Material Adverse Effect.
(b) The General Partner is a real estate investment trust duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its creation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all trust powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted, except where any failure does not have and would not
reasonably be expected to cause a Material Adverse Effect. The only
general partner of the Borrower is and shall be AMLI Residential
Properties Trust. The only assets of the General Partner (other than cash
held for distribution to its shareholders) are and shall be its interest in
the Borrower and its interest in various partnerships in which it owns,
directly or indirectly, not more than 1% of the partnership interests and
in which Borrower owns, directly or indirectly, all of the remaining
partnership interests.
(c) Each Guarantor is a corporation or partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its creation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted, except where any failure does not have and would not
reasonably be expected to cause a Material Adverse Effect.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION.
The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents and by the Guarantors of
the Guaranty and the Contribution Agreement (i) are within the Borrower's
or such Guarantor's partnership or corporate powers, (ii) have been duly
authorized by all necessary partnership or corporate action, (iii) require
no action by or in respect of or filing with, any governmental body, agency
or official, (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of
incorporation, certificate of limited partnership, partnership agreement,
or by-laws of the Borrower or any Guarantor or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or
any Guarantor except where such contravention or default does not have and
would not reasonably be expected to cause a Material Adverse Effect, and
(v) do not result in the creation or imposition of any Lien on any asset of
the Borrower or any of Guarantor.
SECTION 4.03. BINDING EFFECT.
This Agreement constitutes a valid and binding agreement of the
Borrower enforceable in accordance with its terms, and the Notes, the
Guaranty and the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding
obligations of the Borrower and the Guarantor parties thereto, enforceable
in accordance with their respective terms, provided that the enforceability
hereof and thereof is subject in each case to general principles of equity
and to bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights generally.
SECTION 4.04. FINANCIAL INFORMATION.
(a) The balance sheet of the General Partner and the consolidated
balance sheet of the Borrower as of December 31, 1998 and the related
consolidated statements of income, shareholders' equity and cash flows for
the Fiscal Year then ended, reported on by KPMG Peat Marwick LLP, and the
unaudited consolidated financial statements of the Borrower for the interim
period ended June 30, 1999, copies of which have been delivered to each of
the Banks, fairly present, in conformity with GAAP, the financial position
of the General Partner and the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such dates and the (with
respect to the Borrower, its consolidated) results of operations and cash
flows for such periods stated.
(b) Since December 31, 1998 there has been no event, act,
condition or occurrence having a Material Adverse Effect.
SECTION 4.05. NO LITIGATION.
There is no action, suit or proceeding pending, or to the knowledge
of the Borrower threatened, against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body,
agency or official which could have a Material Adverse Effect or which in
any manner draws into question the validity of or could impair the ability
of the Borrower to perform its obligations under, this Agreement, the Notes
or any of the other Loan Documents.
SECTION 4.06. COMPLIANCE WITH ERISA.
(a) The Borrower and each member of the Controlled Group have
fulfilled their obligations under the minimum funding standards of ERISA
and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or a Plan under Title
IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group
is or ever has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES.
To the best of the Borrower's knowledge, the Borrower and its
Subsidiaries are in compliance with all applicable laws, regulations and
similar requirements of governmental authorities, except where such
compliance is being contested in good faith through appropriate
proceedings, except where (i) such compliance is being contested in good
faith through appropriate proceedings or (ii) any failure does not have and
would not reasonably be expected to cause a Material Adverse Effect. There
have been filed on behalf of the Borrower and its Subsidiaries all material
Federal, state and local income, excise, property and other tax returns
which are required to be filed by them and all taxes due pursuant to such
returns or pursuant to any assessment received by or on behalf of the
Borrower or any Subsidiary have been paid, except: (A) ad valorem taxes
not due and payable; and (B) other liabilities, if (1) they are being
contested in good faith and against which the Borrower, Guarantor or
Subsidiary has set up reserves in accordance with GAAP, or (2) the
aggregate amount involved is not in excess of $5,000,000. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate. United States income tax returns of the General
Partner, the Borrower and its Subsidiaries have not been examined.
SECTION 4.08. SUBSIDIARIES, CO-INVESTMENT PARTNERSHIPS AND
SERVICE COMPANIES.
Each of the Borrower's Subsidiaries, Co- Investment Partnerships and
Service Companies is a corporation, partnership or limited liability
company duly organized, validly existing and in good standing under the
laws of its jurisdiction of creation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate or partnership powers and
all governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted, except where any failure does
not have and would not reasonably be expected to cause a Material Adverse
Effect. As of the Closing Date, the Borrower has no Subsidiaries or Co-
Investment Partnerships except for those Subsidiaries and Co-Investment
Partnerships listed on Schedule 4.08, which accurately sets forth each such
Subsidiary's and Co-Investment Partnership's complete name and jurisdiction
of creation. The Borrower will promptly notify the Administrative Agent of
the creation of any new Subsidiary, and each such new Subsidiary shall be
subject to the provisions of Section 5.28.
SECTION 4.09. INVESTMENT COMPANY ACT.
Neither the Borrower nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT.
Neither the General Partner, the Borrower nor any of its Subsidiaries
is a "holding company", or a "subsidiary company" of a "holding company",
or an "affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS.
Each of the General Partner, the Borrower and its Consolidated
Subsidiaries has title to its properties sufficient for the conduct of its
business, and none of such property which constitutes Eligible Property is
subject to any Lien except as permitted in Section 5.18.
SECTION 4.12. NO DEFAULT.
Neither the General Partner, the Borrower nor any of its Consolidated
Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of
its property is bound which could have or cause a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
SECTION 4.13. FULL DISCLOSURE.
All information heretofore furnished by the Borrower to the
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 every material respect
or based on reasonable estimates on the date as of which such information
is stated or certified. The Borrower has disclosed to the Banks in writing
any and all facts which could have or cause a Material Adverse Effect.
SECTION 4.14. ENVIRONMENTAL MATTERS.
(a) Except as set forth in Schedule 4.14 (and, as approved by the
Administrative Agent and the Banks in writing, as such Schedule 4.14 is
amended or supplemented from time to time by the Borrower), to the best of
the Borrower's knowledge, neither the Borrower nor any Subsidiary is
subject to any Environmental Liability which could have or cause a Material
Adverse Effect and neither the Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any
state statute similar to CERCLA, which designation or all such designations
in effect at any time, taken as a whole, could have or would cause a
Material Adverse Effect. None of the Properties has been identified on any
current or proposed (i) National Priorities List under 40 C.F.R. Section
300, (ii) CERCLIS list or (iii) any list arising from a state statute
similar to CERCLA.
(b) Except as set forth in Schedule 4.14 (and, as approved by the
Administrative Agent and the Banks in writing, as such Schedule 4.14 is
amended or supplemented from time to time by the Borrower), to the best of
the Borrower's knowledge, no Hazardous Materials have been or are being
used, produced, manufactured, processed, treated, recycled, generated,
stored, disposed of, managed or otherwise handled at, or shipped or
transported to or from the Properties or are otherwise present at, on, in
or under the Properties, or, to the best of the knowledge of the Borrower,
at or from any adjacent site or facility, except for Hazardous Materials,
such as cleaning solvents, pesticides, petroleum product and other
materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed of, managed, or otherwise handled in the
ordinary course of business in material compliance with all applicable
Environmental Requirements.
(c) The Borrower and each of its Subsidiaries and Affiliates has
procured all Environmental Authorizations necessary for the conduct of its
business, and is in compliance with all Environmental Requirements in
connection with the operation of the Properties and the Borrower's, and
each of its Subsidiary's and Affiliate's, respective businesses, except
where any such non-compliance would not have a Material Adverse Effect.
SECTION 4.15. CAPITAL STOCK.
All Capital Stock, beneficial interests, debentures, bonds, notes and
all other securities of the General Partner, the Borrower and its
Subsidiaries presently issued and outstanding are validly and properly
issued in all material respects in accordance with all applicable laws,
including, but not limited to, the "Blue Sky" laws of all applicable states
and the federal securities laws. The issued shares of Capital Stock of the
Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and
clear of any Lien or adverse claim. At least a majority of the issued
shares of Capital Stock of each of the Borrower's other Subsidiaries (other
than Wholly Owned Subsidiaries) is owned by the Borrower, and all such
shares which are owned by the Borrower are owned by it free and clear of
any Lien or adverse claim.
SECTION 4.16. MARGIN STOCK.
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as a significant part of its business, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any
Loan will be used to purchase or carry any Margin Stock or to extend credit
to others for the purpose of purchasing or carrying any Margin Stock, or be
used for any purpose which violates, or which is inconsistent with, the
provisions of Regulation T, U or X.
SECTION 4.17. INSOLVENCY.
After giving effect to the execution and delivery of the Loan
Documents and the making of the Loans under this Agreement: (i) the
Borrower will not (x) be "insolvent," within the meaning of such term as
used in O.C.G.A. Section 18-2-22 or as defined in Section 101 of the
"Bankruptcy Code", or Section 2 of either the "UFTA" or the "UFCA", or as
defined or used in any "Other Applicable Law" (as those terms are defined
below), or (y) be unable to pay its debts generally as such debts become
due within the meaning of Section 548 of the Bankruptcy Code, Section 4 of
the UFTA or Section 6 of the UFCA, or (z) have an unreasonably small
capital to engage in any business or transaction, whether current or
contemplated, within the meaning of Section 548 of the Bankruptcy Code,
Section 4 of the UFTA or Section 5 of the UFCA; and (ii) the obligations of
the Borrower under the Loan Documents and with respect to the Loans will
not be rendered avoidable under any Other Applicable Law. For purposes of
this Section 4.17, "Bankruptcy Code" means Title 11 of the United States
Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA" means the
Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means any
other applicable law pertaining to fraudulent transfers or acts voidable by
creditors, in each case as such law may be amended from time to time.
SECTION 4.18. INSURANCE.
The Borrower and each of its Subsidiaries has (either in the name of
the Borrower or in such Subsidiary's own name), with financially sound and
reputable insurance companies, all-risk insurance in at least such amounts
as are usually obtained in the same general area by companies of
established repute engaged in the same or similar business.
SECTION 4.19. REAL ESTATE INVESTMENT TRUST; SOLE GENERAL
PARTNER.
The General Partner is qualified under the Code as a real estate
investment trust and is the sole general partner of the Borrower.
SECTION 4.20. YEAR 2000 COMPLIANCE.
The Borrower (i) has developed, or is developing, a program to
evaluate the ability of its computer hardware and software systems and
programs to handle effectively data that includes dates after December 31,
1999 ("Year 2000 Compliant"), and (ii) has taken, or is in the process of
taking, reasonable corrective action as necessary to make its computer
hardware and software systems Year 2000 Compliant by December 31, 1999.
Based on the foregoing, the Borrower does not expect that any Material
Adverse Effect will exist or occur on or after January 1, 2000 as a result
of any of its computer hardware or software systems or programs failing to
be Year 2000 Compliant.
ARTICLE V
COVENANTS
The Borrower and (by incorporation by reference in the Guaranty) the
Guarantors agree that, so long as any Bank has any Commitment hereunder or
any amount payable hereunder or under any Note remains unpaid:
SECTION 5.01. INFORMATION.
The Borrower will deliver to each of the Banks:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the General
Partner and a consolidated balance sheet of the Borrower and the Guarantors
as of the end of such Fiscal Year and the related (with respect to the
Borrower, its consolidated) statements of income, shareholders' equity and
cash flows for such Fiscal Year, setting forth in each case in comparative
form the figures for the previous fiscal year, in either case audited by
KPMG Peat Marwick LLP or other independent public accountants of nationally
recognized standing, with such audit opinion to be free of material
exceptions and qualifications not acceptable to the Required Banks;
(b) as soon as available and in any event within 45 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a (with
respect to the Borrower, its consolidated) balance sheet of the Borrower
and the Guarantors as of the end of such Fiscal Quarter and the related
statement of income and statement of cash flows for such Fiscal Quarter and
for the portion of the Fiscal Year ended at the end of such Fiscal Quarter,
setting forth in each case in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by an Executive Officer of
the General Partner;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of Exhibit F (a "Compliance Certificate"), of an
Executive Officer of the General Partner (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 5.05, 5.15, 5.16, 5.17, and
5.20 through 5.26, inclusive, on the date of such financial statements and
(ii) stating whether any Default exists on the date of such certificate
and, if any Default then exists, setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(d) within 5 Domestic Business Days after the Borrower becomes
aware of the occurrence of any Default, a certificate of the chief
financial officer or the chief accounting officer of the Borrower setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto, which certificate shall indicate
that it is a "Notice of Default";
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and annual, quarterly or monthly reports
which the Borrower shall have filed with the Securities and Exchange
Commission;
(g) if and when any member of the Controlled Group (i) gives or
is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA;
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate or appoint a trustee to administer any Plan; or (iv) contributes
to or becomes obligated to contribute to a Multiemployer Plan, or incurs
any withdrawal liability with respect to a Multiemployer Plan; then a copy
of any such notice referred to in clauses (i) through (iii) of this
paragraph, and a detailed description of the amount and the circumstances
of such contribution or withdrawal liability obligation referred to in
clause (iv) of this paragraph;
(h) within 60 days after the end of each Fiscal Quarter, and more
frequently, at the election of the Borrower, a Borrowing Base Certificate
as of the last day of the Fiscal Quarter just ended;
(i) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, operating
statements for each Eligible Property for the period covered by such
financial statements; and
(j) from time to time such additional information regarding the
financial position or business of the Borrower and the Guarantors as the
Administrative Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS.
The Borrower, the Guarantors and the General Partner will (i) keep
proper books of record and account in which full, true and correct entries
in conformity with GAAP shall be made of all dealings and transactions in
relation to its business and activities; and (ii) permit representatives of
any Bank at such Bank's expense prior to the occurrence of a Default and at
the Borrower's expense after the occurrence of a Default to visit and
inspect any of their respective properties, to examine and make abstracts
from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower, the General
Partner and the Guarantors agree to cooperate and assist in such visits and
inspections, in each case at such reasonable times and as often as may
reasonably be desired.
SECTION 5.03. MAINTENANCE OF EXISTENCE.
The Borrower, the General Partner and the Guarantors will, subject to
Sections 5.04 and 5.05, each maintain its respective partnership, corporate
and trust existence and carry on its respective business in substantially
the same manner and in substantially the same fields as such business is
now carried on and maintained.
SECTION 5.04. DISSOLUTION.
Neither the Borrower nor any of the Guarantors shall suffer or permit
dissolution or liquidation either in whole or in part or redeem or retire
any shares of its own stock or that of any Guarantor, except for Partner
Conversions.
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS.
Neither the Borrower, the General Partner nor any of the Guarantors
will consolidate or merge with or into, or acquire all or substantially all
of the assets or stock of any other Person, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other Person,
provided that:
(i) the Borrower may merge with another Person if (x) such Person
was organized under the laws of the United States of America or one of its
states, (y) the Borrower is the limited partnership surviving such merger
and (z) immediately after giving effect to such merger, no Default shall
have occurred and be continuing;
(ii) Guarantors may merge with one another, and the Guarantors
may sell, lease or otherwise transfer assets to the Borrower;
(iii) the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not prohibit,
during any Fiscal Quarter, the acquisition of all or substantially all of
the assets or stock of another Person unless the aggregate assets or stock
acquired in a single acquisition or series of related acquisitions of all
or substantially all of the assets or stock of another Person by the
Borrower, the General Partner and the Guarantors during such Fiscal Quarter
constituted more than 20% of Gross Asset Value at the end of the most
recent Fiscal Quarter immediately preceding such Fiscal Quarter; and
(iv) the foregoing limitation on the sale, lease or other
transfer of assets shall not prohibit, during any Fiscal Quarter, a
transfer of assets (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred, when
combined with all other assets transferred, by the Borrower, the General
Partner and the Guarantors during such Fiscal Quarter and the immediately
preceding 3 Fiscal Quarters, constituted more than 20% of Gross Asset Value
at the end of the most recent Fiscal Year immediately preceding such Fiscal
Quarter.
In the case of any Guarantor which transfers substantially all of its
assets pursuant to clause (iv) of the preceding sentence, and in the case
of any Guarantor the stock of which is being sold and with respect to which
clause (iv) would have been satisfied if the transaction had been a sale of
assets of such Guarantor, such Guarantor may dissolve and shall be entitled
to obtain from the Administrative Agent a written release from the
Guaranty, provided that it can demonstrate to the reasonable satisfaction
of the Administrative Agent that (A) it has repaid in full all Debt owed to
the Borrower or any other Guarantor and (B) such sale was for cash and in
the case of an asset transfer, the net cash proceeds received in connection
therewith are being distributed to the Borrower as part of such
dissolution, and upon obtaining such written release, it shall no longer be
a Guarantor for any purpose hereunder.
SECTION 5.06. USE OF PROCEEDS.
The proceeds of the Loans may be used for construction financing,
acquisitions, working capital and general commercial purposes; provided,
however, that no portion of the proceeds of the Loans will be used by the
Borrower or any Subsidiary (i) in connection with, whether directly or
indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other
corporation, unless such tender offer or other acquisition is to be made on
a negotiated basis with the approval of the Board of Directors of the
Person to be acquired, and the provisions of Section 5.17 would not be
violated, (ii) directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any Margin Stock, or
(iii) for any purpose in violation of any applicable law or regulation.
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES.
The Borrower, the General Partner and the Guarantors will, and will
cause each member of the Controlled Group to, comply with applicable laws
(including but not limited to ERISA), regulations and similar requirements
of governmental authorities (including but not limited to PBGC), except
where (i) the necessity of such compliance is being contested in good faith
through appropriate proceedings diligently pursued or (ii) any failure does
not have and would not reasonably be expected to cause a Material Adverse
Effect. The Borrower, the General Partner and the Guarantors will pay
promptly when due all taxes, assessments, governmental charges, claims for
labor, supplies, rent and other obligations which, if unpaid, might become
a lien against the Property of the Borrower or any Guarantor, except
(i) liabilities being contested in good faith and against which, if
requested by the Administrative Agent, the Borrower will set up reserves in
accordance with GAAP, or (2) the aggregate amount involved is not in excess
of $5,000,000.
SECTION 5.08. INSURANCE.
The Borrower, the General Partner and the Guarantors will maintain
(either in the name of the Borrower, the General Partner or in such
Guarantor's own name), with financially sound and reputable insurance
companies, all-risk insurance on all its property in at least such amounts
as are usually obtained in the same general area by companies of
established repute engaged in the same or similar business.
SECTION 5.09. CHANGE IN FISCAL YEAR.
The Borrower and each of the Guarantors agrees that it will not
change its Fiscal Year without the consent of the Required Banks.
SECTION 5.10. MAINTENANCE OF PROPERTY.
The Borrower, the General Partner and each Guarantor shall maintain
in all material respects all of its Properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.11. ENVIRONMENTAL NOTICES.
The Borrower and each Guarantor shall furnish to the Banks and the
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, and all facts, events, or conditions
that could lead to any of the foregoing, which has had or would reasonably
be expected to cause a Material Adverse Effect.
SECTION 5.12. ENVIRONMENTAL MATTERS.
The Borrower and the Guarantors will not, and will not permit any
Third Party to, use, produce, manufacture, process, treat, recycle,
generate, store, dispose of, manage at, or otherwise handle, or ship or
transport to or from the Properties any Hazardous Materials except for
Hazardous Materials such as cleaning solvents, pesticides and other similar
materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed, managed, or otherwise handled in minimal
amounts in the ordinary course of business in compliance with all
applicable Environmental Requirements, except where any failure does not
have and would not reasonably be expected to cause a Material Adverse
Effect.
SECTION 5.13. ENVIRONMENTAL RELEASE.
The Borrower and each Guarantor agrees that upon the occurrence of an
Environmental Release at or on any of the Properties it will act
immediately to investigate the extent of, and to take appropriate remedial
action to eliminate, such Environmental Release, whether or not ordered or
otherwise directed to do so by any Environmental Authority, except where
any Environmental Release does not have and would not reasonably be
expected to cause a Material Adverse Effect.
SECTION 5.14. TRANSACTIONS WITH AFFILIATES.
Neither the General Partner, the Borrower nor any of the Guarantors
shall enter into, or be a party to, any transaction with any Affiliate of
the Borrower or such Guarantor (which Affiliate is not the General Partner,
the Borrower or a Guarantor), except as permitted by law and in the
ordinary course of business and pursuant to reasonable terms and are no
less favorable to the General Partner, Borrower or such Subsidiary than
would be obtained in a comparable arm's length transaction with a Person
which is not an Affiliate.
SECTION 5.15. RESTRICTED PAYMENTS.
The Borrower's Restricted Payments in any calendar year shall not
exceed 95% of Funds From Operations for such period, unless (i) the
Borrower must pay out an amount in excess of 95% of Funds From Operations
to permit the General Partner to preserve its status as a real estate
investment trust under the applicable provision of the Code, or (ii) the
Borrower declares one or more capital gains dividends within such calendar
year (in which event the amount of additional Restricted Payments that may
be made as a result of such declaration as provided in this clause
(ii) shall not exceed the greater of (A) the income tax liability of the
Borrower's partners with respect thereto and (B) $1,500,000). In the event
that the Borrower receives an Investment Grade Debt Rating and so long as
that rating (or a better rating) is affirmed during each year, the
Borrower's Restricted Payments in any calendar year will be limited to 100%
of Funds from Operations for such calendar year with the same exceptions
contained in clauses (i) and (ii) of this Section 5.15.
SECTION 5.16. LOANS OR ADVANCES.
Neither the Borrower, the General Partner nor any of the Guarantors
shall make loans or advances to any Person except as permitted by
Section 5.17 and except:
(i) deposits required by government agencies or public utilities;
(ii) loans or advances from the Borrower to a Guarantor or from a
Guarantor to the Borrower or another Guarantor;
(iii) loans and advances made to (A) AMLI Institutional Advisors,
Inc. as part of its initial capital structure in the amount of $500,000,
and (B) AMLI Management Company as part of its initial capital structure in
the amount of $3,000,000;
(iv) loans or advances to employees, officers and directors not
exceeding $1,000,000 in the aggregate principal amount outstanding at any
time, in each case made in the ordinary course of business, but excluding
loans and advances described in clause (v);
(v) loans and advances to employees, officers and directors to
enable them to buy partnership units in the Borrower or stock in the
General Partner which are secured by a pledge of such stock, so long as the
aggregate amount of all such loans does not exceed $10,000,000;
(vi) working capital loans and advances to AMLI Residential
Construction, Inc. for use in the ordinary course of business and
consistent with past practices, so long as the aggregate principal amount
outstanding at any time for all such loans and advances is not in excess of
$15,000,000;
(vii) loans and advances to Co-Investment Partnerships in an
aggregate amount which, together with Investments in Co-Investment
Partnerships, does not exceed (i) so long as the Borrower has no Investment
Grade Debt Rating, 15% of Gross Asset Value and (ii) while the Borrower has
an Investment Grade Debt Rating, 20% of Gross Asset Value; and/or
(viii) other loans and advances by the Borrower, the General
Partner and the Guarantors to any Person other than a Co-Investment
Partnership which (x) are evidenced by notes (and, if requested by the
Administrative Agent, acting at the direction of the Required Banks, with
such notes, together with any related mortgage, have been assigned to and
pledged with the Administrative Agent, for the benefit of itself and the
Banks, as security for the payment of all obligations of the Borrower to
the Administrative Agent and the Banks hereunder) and (y) are in an amount
which, together with Investments permitted by clause (vii) of Section 5.17,
do not exceed 5% of Gross Asset Value as of the end of the most recent
Fiscal Quarter; provided that after giving effect to the making of any
loans, advances or deposits permitted by this Section, no Default shall be
in existence or be created thereby.
SECTION 5.17. INVESTMENTS.
Investments of the Borrower as of the Closing Date (other than in
Subsidiaries and Co-Investment Partnerships, which are set forth in
Schedule 4.08), are set forth on Schedule 5.17. Neither the Borrower, the
General Partner nor any of the Guarantors shall make Investments after the
Closing Date in any Person except as permitted by Section 5.16 and except
Investments in:
(i) direct obligations of the United States Government maturing
within one year;
(ii) certificates of deposit issued by a commercial bank whose
credit is satisfactory to the Administrative Agent;
(iii) commercial paper rated A1 or the equivalent thereof by S&P
or P1 or the equivalent thereof by ▇▇▇▇▇'▇ and in either case maturing
within 6 months after the date of acquisition;
(iv) tender bonds the payment of the principal of and interest on
which is fully supported by a letter of credit issued by a United States
bank whose long-term certificates of deposit are rated at least A or the
equivalent thereof by S&P and A or the equivalent thereof by ▇▇▇▇▇'▇;
(v) Investments consisting of the acquisition of all or
substantially all of the assets or stock of another Person permitted by
Section 5.05(iii);
(vi) Investments in Co-Investment Partnerships permitted by
Section 5.26; and/or
(vii) other Investments by the Borrower, the General Partner and
the Guarantors, other than in Co-Investment Partnerships, in an amount
which, together with loans and advances permitted by clause (viii) of
Section 5.16, do not exceed 5% of Gross Asset Value as of the end of the
most recent Fiscal Quarter;
provided, however, immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
SECTION 5.18. LIENS ON ELIGIBLE PROPERTY.
Neither the Borrower nor any Guarantor will create, assume or suffer
to exist any Lien on any Eligible Property now owned or hereafter acquired
by it, except: (i) Liens incidental to the conduct of its business or the
ownership of its assets which (x) do not secure Debt and (y) do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business; and (ii) as
permitted by the proviso contained in the definition of Eligible Property.
SECTION 5.19. RESTRICTIONS ON ABILITY OF GUARANTORS TO PAY
DIVIDENDS.
The Borrower shall not permit any Guarantor to, directly or
indirectly, create or otherwise cause or suffer to exist or become
effective any contractual encumbrance or restriction on the ability of any
such Guarantor to (i) pay any dividends or make any other distributions on
its Capital Stock or any other interest or (ii) make or repay any loans or
advances to the Borrower or the parent of such Guarantor.
SECTION 5.20. RATIO OF TOTAL CONSOLIDATED LIABILITIES TO
UNDEPRECIATED BOOK ASSET VALUE.
The ratio of Total Consolidated Liabilities to Undepreciated Book
Asset Value shall at all times be equal to or less than 0.60 to 1.0.
SECTION 5.21. RATIO OF TOTAL SECURED DEBT TO GROSS ASSET VALUE.
The ratio of Total Secured Debt to Gross Asset Value shall at all
times be equal to or less than 0.45 to 1.0.
SECTION 5.22. RATIO OF EBITDA TO CONSOLIDATED INTEREST EXPENSE.
The ratio of EBITDA to Consolidated Interest Expense for the Fiscal
Quarter just ended will not be less than 2.0 to 1.0, calculated at the end
of each Fiscal Quarter.
SECTION 5.23. RATIO OF UNENCUMBERED ASSETS TO UNSECURED FUNDED
DEBT.
The ratio of Unencumbered Assets to Unsecured Funded Debt shall at
all times be equal to or greater than 1.75 to 1.00.
SECTION 5.24. RATIO OF UNSECURED NET OPERATING INCOME TO
UNSECURED INTEREST EXPENSE.
The ratio of Unsecured Net Operating Income to Unsecured Interest
Expense shall at all times be equal to or greater than 2.0 to 1.0.
SECTION 5.25. RATIO OF EBITDA TO CONSOLIDATED FIXED CHARGES.
The ratio of EBITDA to Consolidated Fixed Charges for the Fiscal
Quarter just ended and the 3 immediately preceding Fiscal Quarters will not
be less than 1.75 to 1.0, calculated at the end of each Fiscal Quarter.
SECTION 5.26. CO-INVESTMENT PARTNERSHIPS DEPRECIATED BOOK VALUE.
The amount of the depreciated book value set forth on the line item
designated as "Investments in Partnerships" on the Borrower's consolidated
balance sheet, together with the aggregate amount of loans and advances to
Co-Investment Partnerships permitted by clause (vii) of Section 5.16, shall
not at any time exceed (i) so long as the Borrower does not have an
Investment Grade Debt Rating, 15% of Gross Asset Value and (ii) while the
Borrower has an Investment Grade Debt Rating, 20% of Gross Asset Value.
SECTION 5.27. STATUS AS A REIT.
The General Partner shall at all times maintain its status as a real
estate investment trust under the Code and remain sole general partner of
the Borrower. Neither the Borrower nor the General Partner will agree to
amend or otherwise modify the provisions of Section 3.2 of the limited
partnership agreement of the Borrower, as in effect on the date of this
Agreement, without the prior written consent of the Required Banks (which
consent the Banks hereby agree not to unreasonably withhold or delay).
SECTION 5.28. NEW SUBSIDIARIES TO BECOME GUARANTORS.
Any Subsidiary acquired or created after June 27, 1997, (other than
Co-Investment Partnerships), must become a Guarantor promptly upon its
acquisition or creation, in each case by (x) executing and delivering to
the 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 substantially the form and substance of Exhibit B, but
limited to such Subsidiary and the Guaranty and Contribution Agreement, and
excluding paragraph 2 thereof, and (z) delivering to the 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 relating to the Guaranty and the Contribution Agreement.
SECTION 5.29. SERVICE COMPANY DISTRIBUTIONS.
The Borrower agrees that (i) it shall not amend or otherwise modify
any corporate charter of or similar agreement relating to any Service
Company which would decrease the amount of preferred stock dividends or
yield with respect thereto which would be received by the Borrower, and
(ii) shall hold at all times an Economic Percentage in each Service Company
equal to at least 75%.
SECTION 5.30. ADDITIONAL DEBT.
Neither the Borrower, the General Partner nor any Guarantor will
create, incur, assume or suffer to exist any Debt except (i) Debt in
existence on June 27, 1997; (ii) Debt of any Guarantor to the Borrower,
(iii) publicly held debt having a maturity later than the Termination Date,
and (iv) other Debt which is privately held and which does not constitute
revolving credit.
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT.
If one or more of the following events ("Events of Default") shall
have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan or shall fail to pay any interest on any Loan within 5 Domestic
Business Days after such interest shall become due, or shall fail to pay
any fee or other amount payable hereunder within 5 Domestic Business Days
after such fee or other amount becomes due; or
(b) the Borrower or the General Partner shall fail to observe or
perform any covenant contained in Sections 5.01(d), 5.01(h), 5.02(ii), 5.03
through 5.06, inclusive, Sections 5.16 through 5.28, inclusive, or
(c) the Borrower, the General Partner or any Guarantor shall fail
to observe or perform any covenant or agreement contained or incorporated
by reference in this Agreement (other than those covered by paragraph
(a) or (b) above) or the Guaranty and such failure shall not have been
cured within 30 days after the earlier to occur of (i) written notice
thereof has been given to the Borrower, the General Partner or such
Guarantor by the Administrative Agent at the request of any Bank or
(ii) the Borrower, the General Partner or such Guarantor otherwise becomes
aware of any such failure; or
(d) any representation, warranty, certification or statement made
by the Borrower, the General Partner or any Guarantor in Article IV of this
Agreement or the Guaranty or in any certificate, financial statement or
other document delivered pursuant to this Agreement or the Guaranty shall
prove to have been incorrect or misleading in any material respect when
made (or deemed made); or
(e) the Borrower, the General Partner or any Guarantor shall fail
to make any payment in respect of the ▇▇▇▇▇▇ Trust Facility, or in respect
of Debt in an aggregate principal amount outstanding in excess of
$10,000,000 (other than the Notes), or under any Hedging Agreement with a
termination value in excess of $10,000,000 (computed in accordance with a
method approved by the International Swap Dealers Association and agreed to
by such Person in the applicable Hedging Agreement) when due or within any
applicable grace period; provided, however, that there shall be excluded
from the foregoing any Non-Recourse Mortgage Debt which, on a cumulative
basis since June 27, 1997, does not exceed $25,000,000 in aggregate
principal amount; or
(f) any event or condition (other than the voluntary termination
of the ▇▇▇▇▇▇ Trust Facility, by the Borrower or ▇▇▇▇▇▇ Trust and Savings
Bank, while no uncured "default" or "event of default" (as defined
therein) has occurred and then exists) shall occur which results in the
acceleration of the maturity or termination of the ▇▇▇▇▇▇ Trust Facility or
the acceleration of the maturity of Debt (other than the voluntary
termination of a credit facility, by the Borrower or the creditor
thereunder, while no uncured "default" or "event of default" (as defined
therein) has occurred and then exists) in an aggregate principal amount
outstanding in excess of $10,000,000 of the Borrower, the General Partner
or any Guarantor (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower, the General Partner or
any Guarantor) or enables (or, with the giving of notice or lapse of time
or both, would enable) the holders of such Debt or commitment or any Person
acting on such holders' behalf to accelerate the maturity thereof or
terminate any such commitment (including, without limitation, any required
mandatory prepayment or "put" of such Debt to the Borrower, the General
Partner or any Guarantor); provided, however, that there shall be excluded
from the foregoing any Non-Recourse Mortgage Debt which does not exceed
$25,000,000 in aggregate principal amount; or
(g) the Borrower, the General Partner or any Guarantor shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability or failure generally, to
pay its debts as they become due, or shall take any action to authorize any
of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower, the General Partner or any Guarantor seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered against the Borrower, the General Partner or any Guarantor
under the federal bankruptcy laws as now or hereafter in effect; or
(i) the Borrower, the General Partner, any Guarantor or any
member of the Controlled Group shall fail to pay when due any material
amount which it shall have become liable to pay to the PBGC or to a Plan
under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
shall be filed under Title IV of ERISA by the Borrower, the General
Partner, any Guarantor or any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Subsection (c) of Section 4041 of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan
or Plans or a proceeding shall be instituted by a fiduciary of any such
Plan or Plans to enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within 30 days thereafter; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(j) one or more judgments or orders for the payment of money in
an aggregate amount in excess of $10,000,000 shall be rendered against the
Borrower, the General Partner or any Guarantor and such judgment or order
shall continue unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower, the
General Partner or any Guarantor under Section 6323 of the Code or a lien
of the PBGC shall be filed against the Borrower, the General Partner or any
Guarantor under Section 4068 of ERISA and in either case such lien shall
remain undischarged for a period of 25 days after the date of filing; or
(l) the occurrence of any event, act, occurrence, or condition
which the Required Banks determine either does or has a reasonable
probability of causing a Material Adverse Effect.
then, and in every such event, (i) the Administrative Agent shall, if
requested by the Required Banks, by notice to the Borrower terminate the
Commitments and the obligation to make Swing Loans and they shall thereupon
terminate, (ii) any Bank may terminate its obligation to fund a Money
Market Loan in connection with any relevant Money Market Quote, and
(iii) the 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;
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 and the obligations to make Swing Loans shall thereupon
terminate and the Notes (together with accrued interest thereon) and all
other amounts payable hereunder and under the other Loan Documents shall
automatically and without notice become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest thereon at the Default
Rate accruing on the principal amount thereof from and after the date of
such Event of Default. Notwithstanding the foregoing, the Administrative
Agent shall have available to it all other remedies at law or equity, and
shall exercise any one or all of them at the request of the Required Banks.
SECTION 6.02. NOTICE OF DEFAULT.
The 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.
Each Bank hereby irrevocably appoints and authorizes the
Administrative Agent to act as its administrative 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 willful 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.
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 General Partner or 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 and
the Syndication Agent, to the extent the Administrative Agent, the
Syndication Agent and the Documentation Agent, shall not have been
reimbursed by the Borrower, ratably in accordance with its Commitment, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, counsel
fees and disbursements) or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against the Administrative
Agent, the Syndication Agent or the Documentation Agent in any way relating
to or arising out of this Agreement or any other Loan Document or any other
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (excluding, unless an Event of
Default has occurred and is continuing, the normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or any such other
documents; provided that no Bank shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of
the Administrative Agent, the Syndication Agent or the Documentation Agent;
and provided further that no Designated Bank shall be liable for any
payment under this Section 7.05 so long as, and to the extent that, its
Designating Bank makes such payments. If any indemnity furnished to the
Administrative Agent, the Syndication Agent or the Documentation Agent for
any purpose shall, in the opinion of the Administrative Agent, the
Syndication Agent or the Documentation Agent, be insufficient or become
impaired, the Administrative Agent, the Syndication Agent or the
Documentation Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional
indemnity is furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES.
NEITHER THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE
DOCUMENTATION AGENT NOR ANY BANK SHALL BE RESPONSIBLE OR LIABLE TO ANY
BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER.
The 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.
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 consent of the Borrower (which shall not be unreasonably
withheld or delayed), except that no such consent shall be required during
the continuance of a Default. If no successor 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
consent of the Borrower (which shall not be unreasonably withheld or
delayed), except during the continuance of a Default. 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. SYNDICATION AGENT AND DOCUMENTATION AGENT.
The Syndication Agent and the Documentation Agent, it their
respective capacities as such, shall have no duties or responsibilities
under this Agreement or any of the other Loan Documents.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR.
If on or prior to the first day of any Interest Period:
(a) the 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 Euro-Dollar 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 Borrowing of such
Euro-Dollar Loans for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be
made as a Base Rate Borrowing.
SECTION 8.02. ILLEGALITY.
If, after the date hereof, the adoption of any applicable law, rule
or regulation, or any change therein or any existing or future law, rule or
regulation, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof (any such agency being
referred to as an "Authority" and any such event being referred to as a
"Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall
so notify the 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.
(e) No Bank, Assignee or other Transferee will charge Borrower
for increased costs or reduced returns pursuant to Sections 8.03(a) or
(b) at a higher rate than such Bank, Assignee or other Transferee charges
its other similarly situated borrowers or customers.
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR EURO- DOLLAR
LOANS.
If (i) the obligation of any Bank to make or maintain any Euro-Dollar
Loans has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03, and the Borrower shall, by at
least 5 Euro-Dollar Business Days' prior notice to such Bank through the
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 (in all cases
interest and principal on such Loans shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-
Dollar Loans shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. COMPENSATION.
Upon the request of any Bank, delivered to the Borrower and the
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 2.10, 2.11,
6.01, 8.02 or otherwise) of a Fixed Rate Loan on a date other than the last
day of an Interest Period for such Loan; or
(b) any failure by the Borrower to prepay a Fixed Rate Loan on
the date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(c) any failure by the Borrower to borrow a Fixed Rate Loan on
the date for the Fixed Rate Borrowing of which such Fixed Rate Loan is a
part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02 or notification of acceptance of Money Market Quotes pursuant
to Section 2.03(e);
such compensation to include, without limitation, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on
the amount so paid or prepaid or not prepaid or borrowed for the period
from the date of such payment, prepayment or failure to prepay or borrow to
the last day of the then current Interest Period for such Fixed Rate Loan
(or, in the case of a failure to prepay or borrow, the Interest Period for
such Fixed Rate Loan which would have commenced on the date of such failure
to prepay or borrow) at the applicable rate of interest for such Fixed Rate
Loan provided for herein over (y) the amount of interest (as reasonably
determined by such Bank) such Bank would have paid on deposits in Dollars
of comparable amounts having terms comparable to such period placed with it
by leading banks in the London interbank market (if such Fixed Rate Loan is
a Euro-Dollar Loan).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES.
All notices, requests and other communications to any party hereunder
shall be in writing (including telecopier or similar writing, except as
hereafter expressly provided) and shall be given to such party at its
address or telecopier number set forth on the signature pages hereof or
such other address or telecopier number as such party may hereafter specify
for the purpose by notice to each other party. Each such notice, request
or other communication shall be effective (i) if given by telecopier, when
such telecopy is transmitted to the telecopier number specified in this
Section and the confirmation is received, (ii) if given by mail, 72 hours
after such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other means, when
delivered at the address specified in this Section; provided that notices
to the Administrative Agent under Article II or Article VIII shall not be
effective until received. Notwithstanding the foregoing, notices pursuant
to Section 6.01 and service of process pursuant to Section 9.16(d) shall
not be given by telecopier.
SECTION 9.02. NO WAIVERS.
No failure or delay by the 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 special counsel
for 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 and (ii) 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.
SECTION 9.04. INDEMNIFICATION.
The Borrower shall indemnify the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Banks and each Affiliate
thereof and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject,
insofar as such losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by the Borrower of the proceeds of
any extension of credit by any Bank hereunder or breach by the Borrower of
this Agreement or any other Loan Document or from any investigation,
litigation (including, without limitation, any actions taken by the
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, the
Syndication Agent, the Documentation Agent and each Bank, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, legal
fees) incurred in connection with any such investigation or proceeding; but
excluding any such losses, liabilities, claims, damages or expenses
incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified.
SECTION 9.05. SETOFF; SHARING OF SETOFFS.
(a) The Borrower hereby grants to the Administrative Agent and
each Bank (and Wachovia, as to the Swing Loans) a lien for all indebtedness
and obligations owing to them from the Borrower upon all deposits or
deposit accounts, of any kind, or any interest in any deposits or deposit
accounts thereof, now or hereafter pledged, mortgaged, transferred or
assigned to the Administrative Agent or any such Bank or otherwise in the
possession or control of the Administrative Agent or any such Bank for any
purpose for the account or benefit of the Borrower and including any
balance of any deposit account or of any credit of the Borrower with the
Administrative Agent or any such Bank, whether now existing or hereafter
established hereby authorizing the Administrative Agent and each Bank at
any time or times with or without prior notice to apply such balances or
any part thereof to such of the indebtedness and obligations owing by the
Borrower to the Banks and/or the Administrative Agent then past due and in
such amounts as they may elect, and whether or not the collateral, if any,
or the responsibility of other Persons primarily, secondarily or otherwise
liable may be deemed adequate. For the purposes of this paragraph, all
remittances and property shall be deemed to be in the possession of the
Administrative Agent or any such Bank as soon as the same may be put in
transit to it by mail or carrier or by other bailee.
(b) Each Bank agrees that if it shall, by exercising any right of
setoff or counterclaim or resort to collateral security or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest owing with respect to the Note held by it which is greater than
the proportion received by any other Bank in respect of the aggregate
amount of all principal and interest owing with respect to the Note held by
such other Bank, the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes held by the other Banks
owing to such other Banks, and such other adjustments shall be made, as may
be required so that all such payments of principal and interest with
respect to the Notes held by the Banks owing to such other Banks shall be
shared by the Banks pro rata; provided that (i) nothing in this
Section shall impair the right of any Bank to exercise any right of setoff
or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such
payment received by the purchasing Bank is thereafter recovered from such
purchasing Bank, such purchase from each other Bank shall be rescinded and
such other Bank shall repay to the purchasing Bank the purchase price of
such participation to the extent of such recovery together with an amount
equal to such other Bank's ratable share (according to the proportion of
(x) the amount of such other Bank's required repayment to (y) the total
amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation
in a Note, whether or not acquired pursuant to the foregoing arrangements,
may exercise rights of setoff or counterclaim and other rights with respect
to such participation as fully as if such holder of a participation were a
direct creditor of the Borrower in the amount of such participation.
SECTION 9.06. AMENDMENTS AND WAIVERS.
(a) Any provision of this Agreement, the Notes or any other Loan
Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the 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,
or (viii) release any Guarantee given to support payment of the Loans, or
(ix) change the definition of "Borrowing Base", or (x) change any provision
of Section 9.06(a).
(b) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the provisions
of this Agreement except through the Administrative Agent, unless each Bank
shall be informed thereof by the Borrower and shall be afforded an
opportunity of considering the same and shall be supplied by the Borrower
with sufficient information to enable it to make an informed decision with
respect thereto. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Agreement shall be
delivered by the Borrower to each Bank forthwith following the date on
which the same shall have been executed and delivered by the requisite
percentage of Banks. The Borrower will not, directly or indirectly, pay or
cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any Bank (in its capacity as
such) as consideration for or as an inducement to the entering into by such
Bank of any waiver or amendment of any of the terms and provisions of this
Agreement unless such remuneration is concurrently paid, on the same terms,
ratably to all such Banks.
(c) The Designated Bank hereby appoints Designating Bank as Designated
Bank's agent and attorney in fact and grants to the Designating Bank an
irrevocable power of attorney, coupled with an interest, to receive
payments made for the benefit of the Designated Bank under this Agreement,
to deliver and receive all communications and notices under this Agreement
and other Loan Documents and to exercise on the Designated Bank's behalf
all rights to vote and to grant and make approvals, waivers, consent of
amendments to or under this Agreement or other Loan Documents. Any
document executed by such agent on the Designated Bank's behalf in
connection with this Agreement or other Loan Documents shall be binding on
the Designated Bank. The Borrower, the Administrative Agent and each of
the Banks may rely on and are beneficiaries of the preceding provisions.
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 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 VIII with respect to its participation in Loans outstanding from
time to time.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all or a proportionate part of
its rights and obligations under this Agreement, the Notes and the other
Loan Documents, and such Assignee shall assume all such rights and
obligations, pursuant to an Assignment and Acceptance, executed by such
Assignee, such transferor Bank and the 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 or Related Fund 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 3 Assignees that are not
then Banks (or an Affiliate or Related Fund thereof) 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 notwithstand-
ing, 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.
(g) Any Bank may at any time designate not more than one
Designated Bank to fund Money Market Loans on behalf of such Designating
Bank subject to the terms of Section 9.08(c), and the provisions of
Section 9.08(c) shall not apply to such designation. No Bank may have more
than one Designated Bank at any time. Such designation may occur either by
the execution of the signature pages hereof by such Bank and Designated
Bank next to the appropriate "Designating Bank" and "Designated Bank"
captions, or by execution by such parties of a Designation Agreement
subsequent to the date hereof; provided, that any Bank and its Designated
Bank executing the signatures pages hereof as "Designating Bank" and
"Designated Bank", respectively, on the date hereof shall be deemed to have
executed a Designation Agreement, and shall be bound by the respective
representations, warranties and covenants contained therein, and such
designation shall be conclusively deemed to be acknowledged by the Borrower
and the Administrative Agent. The parties to each such designation
occurring subsequent to the execution date hereof shall execute and deliver
to the Administrative Agent and the Borrower for their acknowledgment a
Designation Agreement. Upon such receipt of an appropriately completed
Designation Agreement executed by a Designating Bank and a designee
representing that it is a Designated Bank and acknowledgment by the
Borrower, the Administrative Agent will acknowledge such Designation
Agreement and will give prompt notice thereof to the Borrower and the other
Banks, whereupon, (i) the Borrower shall execute and deliver to the
Designating Bank a Designated Bank Note payable to the order of the
Designated Bank, (ii) from and after the effective date specified in the
Designation Agreement, the Designated Bank shall become a party to this
Agreement with a right to make Money Market Loans on behalf of its
Designating Bank pursuant to Section 2.03(h), and (iii) the Designated Bank
shall not be required to make payments with respect to any obligations in
this Agreement except to the extent of excess cash flow of such Designated
Bank which is not otherwise required to repay obligations of such
Designated Bank which are then due and payable; provided, however, that
regardless of such designation and assumption by the Designated Bank, the
Designating Bank shall be and remain obligated to the Borrower, the
Administrative Agent and the Banks for each and every obligation of the
Designating Bank and its related Designated Bank with respect to this
Agreement, including, without limitation, any indemnification obligations
under Section 7.05 and any sums otherwise payable to the Borrower by the
Designated Bank. Each Designating Bank, or a specified branch or affiliate
thereof, shall serve as the administrative agent of its Designated Bank and
shall on behalf of its Designated Bank: (i) receive any and all payments
made for the benefit of such Designated Bank and (ii) give and receive all
communications and notices and take all actions hereunder, including,
without limitation, votes, approvals, waivers, consents and amendments
under or relating to this Agreement and the other Loan Documents. Any such
notice, communication, vote, approval, waiver, consent or amendment shall
be signed by a Designating Bank, or specified branch or affiliate thereof,
as administrative agent for its Designated Bank and need not be signed by
such Designated Bank on its own behalf. The Borrower, the Administrative
Agent and the Banks may rely thereon without any requirement that the
Designated Bank sign or acknowledge the same. No Designated Bank may
assign or transfer all or any portion of its interest hereunder or under
any other Loan Document, other than via an assignment to its Designating
Bank or Liquidity Bank (but any assignment to a Liquidity Bank shall not
curtail or affect the appointment or rights of the Designating Bank
pursuant to Section 9.06(c) or Section 4 of the Designation Agreement,
which appointment and rights are irrevocable), if any, or otherwise in
accordance with the provisions of Section 2.03(h).
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 Affiliates, legal counsel and independent
auditors, (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 and (ix) by any
Designated Bank to any rating agency, commercial paper dealer, or provider
of a surety, guaranty or credit or liquidity enhancement to such Designated
Bank which has agreed in writing to be bound by the provisions of this
Section 9.09; provided that should disclosure of any such confidential
information be required by virtue of clause (ii) of the immediately
preceding sentence, to the extent permitted by law, any relevant Bank shall
promptly notify the Borrower of same so as to allow the Borrower to seek a
protective order or to take any other appropriate action; provided,
further, that, no Bank shall be required to delay compliance with any
directive to disclose any such information so as to allow the Borrower to
effect any such action.
SECTION 9.10. REPRESENTATION BY BANKS.
Each Bank hereby represents that it is a commercial lender or
financial institution which makes loans in the ordinary course of its
business and that it will make its Loans hereunder for its own account in
the ordinary course of such business; provided that, subject to
Section 9.08, the disposition of the Note or Notes held by that Bank shall
at all times be within its exclusive control.
SECTION 9.11. OBLIGATIONS SEVERAL.
The obligations of each Bank hereunder are several, and no Bank shall
be responsible for the obligations or commitment of any other Bank
hereunder. Nothing contained in this Agreement and no action taken by the
Banks pursuant hereto shall be deemed to constitute the Banks to be a
partnership, an association, a joint venture or any other kind of entity.
The amounts payable at any time hereunder to each Bank shall be a separate
and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document
and it shall not be necessary for any other Bank to be joined as an
additional party in any proceeding for such purpose.
SECTION 9.12. GEORGIA LAW.
This Agreement and each Note shall be construed in accordance with
and governed by the law of the State of Georgia.
SECTION 9.13. SEVERABILITY.
In case any one or more of the provisions contained in this
Agreement, the Notes or any of the other Loan Documents should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby and shall be enforced
to the greatest extent permitted by law.
SECTION 9.14. INTEREST.
In no event shall the amount of interest, and all charges, amounts or
fees contracted for, charged or collected pursuant to this Agreement, the
Notes or the other Loan Documents and deemed to be interest under
applicable law (collectively, "Interest") exceed the highest rate of
interest allowed by applicable law (the "Maximum Rate"), and in the event
any such payment is inadvertently received by any Bank, then the excess sum
(the "Excess") shall be credited as a payment of principal, unless the
Borrower shall notify such Bank in writing that it elects to have the
Excess returned forthwith. It is the express intent hereof that the
Borrower not pay and the Banks not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may legally be paid by
the Borrower under applicable law. The right to accelerate maturity of any
of the Loans does not include the right to accelerate any interest that has
not otherwise accrued on the date of such acceleration, and the
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. EXCULPATION.
Neither the General Partner nor any other partner of the Borrower,
nor any officer or trustee of any of them, shall have any obligation or
liability for payment of the Loans, and holders of the Notes will have no
claims or other recourse against the General Partner or any other partner
of the Borrower or any officer or trustee of any of them, or against any
assets of the General Partner or any other partner of the Borrower or any
officer or trustee of any of them, in respect of the Loans; and the holders
of the Notes shall not have any right to enforce any obligations of a
partner to make a contribution to the Borrower under any provision of the
Agreement of Limited Partnership of the Borrower. Neither the General
Partner nor any other partner of the Borrower nor any officer or trustee of
any of them nor any of their respective assets shall be subject to any
lien, levy, execution or any other enforcement procedure relating directly
or indirectly to the Loans or any obligations thereunder; provided,
however, that in the event of a dissolution of the Borrower, any assets of
the Borrower that are received by the General Partner in such dissolution
shall be subject to the claims of the holders of the Notes for the
enforcement of payment thereof.
SECTION 9.20. NO BANKRUPTCY PROCEEDINGS. Each of the borrower,
the Banks, the Administrative Agent, the Syndication Agent and the
Documentation Agent agrees that it will not institute against any
Designated Bank or join any other Person in instituting against any
Designated Bank any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any federal or state bankruptcy or similar
law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Designated Bank.
[Signatures are contained on the following pages.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, under seal, by their respective authorized officers as of
the day and year first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware Limited Partnership
By: AMLI Residential Properties Trust,
a Maryland real estate investment
trust,
its General Partner
By:
------------------------------
Title:
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AMLI Residential Properties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENTS
$40,000,000
WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank
(SEAL)
By:
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Title:
------------------------------
Lending Office
--------------
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
$40,000,000
BANK ONE, NA, as Syndication Agent
and as a Bank
(SEAL)
By:
------------------------------
Title:
------------------------
Lending Office
--------------
Bank One, NA
Main Office (Chicago)
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
$35,000,000
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as a Bank
(SEAL)
By:
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Title:
------------------------
Lending Office
--------------
PNC Bank, National Association
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop: P1-▇▇▇▇-19-2
Pittsburgh, Pennsylvania 15222-2707
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
$35,000,000
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Senior Managing Agent and as a Bank
(SEAL)
By:
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Title:
------------------------
Lending Office
--------------
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Bins
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
$30,000,000
COMMERZBANK AG, NEW YORK BRANCH, as Managing Agent and
as a Bank
(SEAL)
By:
------------------------------
Title:
------------------------
By:
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Title:
------------------------
Lending Office
--------------
Commerzbank AG, New York Branch
2 World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
FOUR WINDS FUNDING CORPORATION,
as a Bank
(SEAL)
By: Commerzbank AG, New York Branch,
As Administrator and Attorney-in-Fact
By:
------------------------------
Title:
------------------------
By:
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Title:
------------------------
$25,000,000
LASALLE BANK, NATIONAL ASSOCIATION
as a Bank
(SEAL)
By:
------------------------------
Title:
------------------------
Lending Office
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LaSalle Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
$25,000,000
SOUTHTRUST BANK, N.A.,
as a Bank
(SEAL)
By:
------------------------------
Title:
------------------------
Lending Office
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SouthTrust Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
$20,000,000
FIRSTAR BANK, NATIONAL
ASSOCIATION, as a Bank
(SEAL)
By:
------------------------------
Title:
------------------------
Lending Office
--------------
Firstar Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
TOTAL COMMITMENTS:
$250,000,000
EXHIBIT A-1
-----------
SYNDICATED LOAN NOTE
Atlanta, Georgia
October 12, 1999
For value received, AMLI RESIDENTIAL PROPERTIES, L.P., a
Delaware limited partnership (the "Borrower"), promises to pay to the order
of _________________, a ____________________ (the "Bank"), for the account
of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($________), or such
lesser amount as shall equal the unpaid principal amount of each Syndicated
Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below, on the dates and in the amounts provided in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Note on the dates and at the rate or rates provided for in
the Credit Agreement. Interest on any overdue principal of and, to the
extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Wachovia Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be specified from
time to time pursuant to the Credit Agreement.
All Syndicated Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable
thereto, and all repayments of the principal thereof shall be recorded by
the Bank and, prior to any transfer hereof, endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Bank to make any
such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Note is one of the Syndicated Loan Notes referred to in
the Credit Agreement dated as of October 12, 1999 among the Borrower, the
Banks listed on the signature pages thereof, Wachovia Bank, N.A., as
Administrative Agent, Bank One, NA, as Syndication Agent and PNC Bank,
N.A., as Documentation Agent (as the same may be amended and modified from
time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the optional and mandatory prepayment
and the repayment hereof and the acceleration of the maturity hereof, as
well as the obligation of the Borrower to pay all costs of collection,
including reasonable attorneys fees, in the event this Note is collected by
law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice
of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly
provided for in the Credit Agreement.
This Note and the rights and claims of the Bank hereunder are
subject in all respects to the provisions of Section 9.19 of the Credit
Agreement, which contains exculpation provisions with respect to the
liability of the general and limited partners of Borrower with respect to
the liabilities of the Borrower hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed, under seal, by its duly authorized officer as of the day and
year first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
(SEAL)
By: AMLI Residential Properties Trust,
a Maryland real estate investment trust,
its General Partner
By:
------------------------------------
Title:
------------------------------------
SYNDICATED LOAN NOTE (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
Base
Rate
or Euro- Amount Amount of
Dollar of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
---- ---------- ---------- ---------- ---------- ----------
EXHIBIT A-2
-----------
SWING LOAN NOTE
Atlanta, Georgia
October 12, 1999
For value received, AMLI RESIDENTIAL PROPERTIES, L.P., a Delaware
limited partnership (the "Borrower"), promises to pay to the order of
WACHOVIA BANK, N.A. (the "Bank"), for the account of its Lending Office,
the principal sum of FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000), or
such lesser amount as shall equal the unpaid principal amount of each Swing
Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below, on the dates and in the amounts provided in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Swing Loan Note at the rate provided for Base Rate Loans or
Transaction Rate Loans, as the case may be, on the dates provided for in
the Credit Agreement. Interest on any overdue principal of and, to the
extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Wachovia Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be specified from
time to time pursuant to the Credit Agreement.
All Swing Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto, and all
repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder
or under the Credit Agreement.
This Note is one of the Swing Loan Notes referred to in the
Credit Agreement dated as of October 12, 1999 among the Borrower, the Banks
listed on the signature pages thereof, Wachovia Bank, N.A., as
Administrative Agent, Bank One, NA, as Syndication Agent and PNC Bank,
N.A., as Documentation Agent (as the same may be amended and modified from
time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the optional and mandatory prepayment
and the repayment hereof and the acceleration of the maturity hereof, as
well as the obligation of the Borrower to pay all costs of collection,
including reasonable attorneys fees, in the event this Note is collected by
law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice
of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly
provided for in the Credit Agreement.
This Note and the rights and claims of the Bank hereunder are
subject in all respects to the provisions of Section 9.19 of the Credit
Agreement, which contains exculpation provisions with respect to the
liability of the general and limited partners of Borrower with respect to
the liabilities of the Borrower hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed, under seal, by its duly authorized officer as of the day and
year first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
(SEAL)
By: AMLI Residential Properties Trust,
a Maryland real estate investment trust,
its General Partner
By:
------------------------------
Title:
------------------------------
SWING LOAN NOTE (cont'd)
SWING LOANS AND PAYMENTS OF PRINCIPAL
Base
Rate
or Euro- Amount Amount of
Dollar of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
---- ---------- ---------- ---------- ---------- ----------
EXHIBIT A-3
-----------
MONEY MARKET LOAN NOTE
October 12, 1999
For value received, AMLI RESIDENTIAL PROPERTIES, L.P., a
Delaware Limited Partnership (the "Borrower"), promises to pay to the order
of _____________________, a _______________ (the "Bank"), for the account
of its Lending Office, the principal sum of ONE HUNDRED FIFTY MILLION AND
NO/100 DOLLARS ($150,000,000), or such lesser amount as shall equal the
unpaid principal amount of each Money Market Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below, on the dates
and in the amounts provided in the Credit Agreement. The Borrower promises
to pay interest on the unpaid principal amount of this Money Market Loan
Note on the dates and at the rate or rates provided for in the Credit
Agreement referred to below. Interest on any overdue principal of and, to
the extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for in the
Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of Wachovia Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable
thereto, and all repayments of the principal thereof shall be recorded by
the Bank and, prior to any transfer hereof, endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Bank to make any
such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Money Market Loan Note is one of the Money Market Loan
Notes referred to in the Credit Agreement dated as of October 12, 1999
among the Borrower, the Banks listed on the signature pages thereof,
Wachovia Bank, N.A., as Administrative Agent, Bank One, NA, as Syndication
Agent and PNC Bank, N.A., as Documentation Agent (as the same may be
amended and modified from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional
and mandatory prepayment and the repayment hereof and the acceleration of
the maturity hereof, as well as the obligation of the Borrower to pay all
costs of collection, including reasonable attorneys fees, in the event this
Money Market Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by
law relative hereto, except to the extent as otherwise may be expressly
provided for in the Credit Agreement.
This Note and the rights and claims of the Bank hereunder are
subject in all respects to the provisions of Section 9.19 of the Credit
Agreement, which contains exculpation provisions with respect to the
liability of the general and limited partners of Borrower with respect to
the liabilities of the Borrower hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Money Market
Loan Note to be duly executed, under seal, by its duly authorized officer
as of the day and year first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware Limited Partnership
By: AMLI Residential Properties Trust,
a Maryland real estate investment trust,
its General Partner
By:
------------------------------
Title:
------------------------------
MONEY MARKET LOAN NOTE (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made by
---- ---------- ---------- ---------- ---------- ----------
EXHIBIT B
---------
OPINION OF
COUNSEL FOR THE BORROWER
------------------------
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndications Group
Dear Sirs:
We have acted as counsel for AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership (the "Borrower") in connection with the
Credit Agreement (the "Credit Agreement") dated as of October 12, 1999,
among the Borrower, the banks listed on the signature pages thereof,
Wachovia Bank, N.A., as Administrative Agent, Bank One, NA, as Syndication
Agent and PNC Bank, N.A., as Documentation Agent. Terms defined in the
Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records, trust
records, partnership records, certificates of public officials and other
instruments and have conducted such other investigations of fact and law as
we have deemed necessary or advisable for purposes of this opinion. We
have assumed for purposes of our opinions set forth below that the
execution and delivery of the Credit Agreement by each Bank and by the
Administrative Agent have been duly authorized by each Bank and by the
Administrative Agent.
Upon the basis of the foregoing, we are of the opinion that:
The Borrower is a limited partnership duly created,
validly existing and in good standing under the laws of Delaware and has
all partnership powers required to carry on its business as now conducted.
The execution, delivery and performance by the Borrower
of the Credit Agreement the Notes (i) are within its partnership powers,
(ii) have been duly authorized by all necessary partnership action,
(iii) require no action by or in respect of, or filing with, any
governmental body, agency or official, (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation
or of the certificate of limited partnership or partnership agreement of
the Borrower or of the declaration of trust of the General Partner, or of
any agreement, judgment, injunction, order, decree or other instrument
which to our knowledge is binding upon the Borrower and (v) to our
knowledge, except as provided in the Credit Agreement, do not result in the
creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
The Credit Agreement constitutes a valid and binding
agreement of the Borrower, enforceable against it in accordance with its
terms, and the Notes constitute valid and binding obligations of the
Borrower, enforceable in accordance with its terms, except as such
enforceability may be limited by: (i) bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity.
To our knowledge, there is no action, suit or proceeding
pending, or threatened, against or affecting the Borrower before any court
or arbitrator or any governmental body, agency or official in which there
is a reasonable possibility of an adverse decision which could materially
adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower or which in any manner
questions the validity or enforceability of the Credit Agreement or any
Note.
The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
The Borrower is not a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
We are qualified to practice in the State of Illinois and do not
purport to be experts on any laws other than the laws of the United States,
the State of Illinois and the revised Uniform Limited Partnership Act as in
effect in the State of Delaware, and this opinion is rendered only with
respect to such laws. For purposes of the opinion contained in Paragraph 3
above, we have assumed that the laws of the State of Georgia are the same
as those of the State of Illinois. We have made no independent
investigation of the laws of any other jurisdiction.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you, any
Assignee, Participant or other Transferee under the Credit Agreement, and
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇ without our prior written consent.
Very truly yours,
EXHIBIT C
---------
OPINION OF
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT_______
-------------------------------------------
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
Attention: Syndications Group
Dear Sirs:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") dated as of October 12, 1999, among AMLI
Residential Properties, L.P., a Delaware limited partnership (the
"Borrower"), the banks listed on the signature pages thereof (the "Banks"),
Wachovia Bank, N.A., as Administrative Agent, Bank One, NA, as Syndication
Agent and PNC Bank, N.A., as Documentation Agent, and have acted as special
counsel for the Administrative Agent for the purpose of rendering this
opinion pursuant to Section 3.01(d) of the Credit Agreement. Terms defined
in the Credit Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to
Legal Opinions to Third Parties in Corporate Transactions adopted by the
Legal Opinion Committee of the Corporate and Banking Law Section of the
State Bar of Georgia which Interpretive Standards are incorporated herein
by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement and each of
the Notes by or on behalf of the Borrower, we are of the opinion that the
Credit Agreement constitutes a valid and binding agreement of the Borrower,
each Note constitutes valid and binding obligations of the Borrower,
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization,
fraudulent conveyance, voidable preference, moratorium or similar laws
applicable to creditors' rights or the collection of debtors' obligations
generally; (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
and (iii) the enforceability of certain of the remedial, waiver and other
provisions of the Credit Agreement and the Notes may be further limited by
the laws of the State of Georgia; provided that such additional laws do
not, in our opinion, substantially interfere with the practical realization
of the benefits expressed in the Credit Agreement or the Notes, except for
the economic consequences of any procedural delay which may result from
such laws.
In giving the foregoing opinion, we express no opinion as to
the effect (if any) of any law of any jurisdiction except the State of
Georgia. We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Banks with any
state or federal laws or regulations applicable to the Administrative Agent
or any of the Banks by reason of the legal or regulatory status or the
nature of the business of the Administrative Agent or any of the Banks.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you and any
Assignee, Participant or other Transferee under the Credit Agreement
without our prior written consent.
Very truly yours,
EXHIBIT D
---------
ASSIGNMENT AND ACCEPTANCE
Dated ___________, ____
Reference is made to the Credit Agreement dated as of
October 12, 1999 (together with all amendments and modifications thereto,
the "Credit Agreement") among AMLI Residential Properties, L.P., a Delaware
limited partnership (the "Borrower"), the Banks (as defined in the Credit
Agreement), Wachovia Bank, N.A., as Administrative Agent, Bank One, NA, as
Syndication Agent and PNC Bank, N.A., as Documentation Agent. Terms
defined in the Credit Agreement are used herein with the same meaning.
_________________________ (the "Assignor") and
______________________ (the "Assignee") agree as follows:
The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and
assumes from the Assignor, a ____% interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the Effective Date
(as defined below) (including, without limitation, a ____% interest (which
on the Effective Date hereof is $_______) in the Assignor's Commitment and
a _____ interest (which on the Effective Date hereof is $_______) in the
Syndicated Loans [and Swing Loans] [and Money Market Loans] owing to the
Assignor and a ____% interest in the Syndicated Loan Note [and Swing Loan
Note] [and Money Market Loan Note] held by the Assignor (which on the
Effective Date hereof is $________) [and $________, respectively].
The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of
the interest being assigned by it hereunder, that such interest is free and
clear of any adverse claim and that as of the date hereof its Commitment
(without giving effect to assignments thereof which have not yet become
effective) is $______ and the aggregate outstanding principal amount of
Syndicated Loans [and Swing Loans] [and Money Market Loans] owing to it
(without giving effect to assignments thereof which have not yet become
effective) is $_________ [and $_________, respectively]; (ii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iii) attaches
the Note[s] referred to in Paragraph 1 above and requests that the
Administrative Agent exchange such Note[s] [for a new Syndicated Loan Note
dated _________, ____ in the principal amount of $____________ payable to
the order of the Assignee, a new Swing Loan Note dated ___________, ____ in
the principal amount of $____________ payable to the order of the Assignee,
[and for new Notes as follows: a (i) Syndicated Loan Note dated
___________, ____ in the principal amount of $___________ payable to the
order of the Assignor, (ii) Swing Loan Note dated ____________, ____ in the
principal amount of $__________ payable to the order of the Assignor], and
(iii) Money Market Loan Note dated ____________, ____ in the principal
amount of $__________ payable to the order of the Assignor].
The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.04(a) thereof (or any more recent financial
statements of the Borrower delivered pursuant to Section 5.01(a) or
(b) thereof) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other
Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that
it is a bank or financial institution; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Bank;
(vi) specifies as its Lending Office (and address for notices) the office
set forth beneath its name on the signature pages hereof, (vii) represents
and warrants that the execution, delivery and performance of this
Assignment and Acceptance are within its powers and have been duly
authorized by all necessary action, (viii) makes the representation and
warranty contained in Section 9.18 of the Credit Agreement, and
(ix) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's status for purposes of
determining exemption from United States withholding taxes with respect to
all payments to be made to the Assignee under the Credit Agreement and the
Notes.
The Effective Date for this Assignment and Acceptance
shall be ___________, ____ (the "Effective Date"). Following the execution
of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for execution and acceptance by the Administrative
Agent and to the Borrower for execution by the Borrower.
Upon such execution and acceptance by the Administrative
Agent, and execution by the Borrower, if required by the Credit Agreement,
from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent rights and obligations have been
transferred to it by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent
its rights and obligations have been transferred to the Assignee by this
Assignment and Acceptance, relinquish its rights (other than under Sections
8.03, 9.03 and 9.04 of the Credit Agreement) and be released from its
obligations under the Credit Agreement, except as expressly provided
therein.
Upon such execution and acceptance by the Administrative
Agent, and execution by the Borrower, if required by the Credit Agreement,
from and after the Effective Date, the Administrative Agent shall make all
payments in respect of the interest assigned hereby to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
for periods prior to such acceptance by the Administrative Agent directly
between themselves.
This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
------------------------------
Title:
------------------------------
[NAME OF ASSIGNEE]
By:
------------------------------
Title:
------------------------------
Lending Office:
--------------
[Address]
WACHOVIA BANK, N.A.,
As Administrative Agent
By:
------------------------------
Title:
------------------------------
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust, its General Partner
[If required by the Credit Agreement]
By:
------------------------------
Title:
------------------------------
EXHIBIT E
NOTICE OF BORROWING
-------------------
_______________, ____
Wachovia Bank, N.A., as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Re: Credit Agreement (as amended and modified from time to time,
the "Credit Agreement") dated as of October 12, 1999 by and
among AMLI Residential Properties, L.P., the Banks from
time to time parties thereto, Wachovia Bank, N.A.,
as Administrative Agent, Bank One, NA, as Syndication Agent
and PNC Bank, N.A., as Documentation Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to
Section 2.02 of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing]
[Syndicated Loan Borrowing at a Base Rate] [Swing Loan Borrowing] in the
aggregate principal amount of $_______ to be made on _____________, _____,
and for interest to accrue thereon at the rate established by the Credit
Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration of the
Interest Period with respect thereto shall be [1 month] [2 months] [3
months] [6 months] [30 days].
The amount available to be borrowed under Section 2.01 of the
Credit Agreement, net of amounts to be paid with the proceeds of this
Borrowing, is as follows:
(a) Aggregate amount of Commitments $______________
(b) Borrowing Base per most recent
Borrowing Base Certificate $______________
(c) Principal amount outstanding under
Syndicated Loans $______________
(d) Principal amount outstanding under
Swing Loans $______________
(e) Principal amount outstanding under
Money Market Loans $______________
(f) Amount available to be borrowed
(lesser of (a) or (b), less sum of (c),
(d) and (e) $______ $______________
The Borrower has caused this Notice of Borrowing to be executed
and delivered by its duly authorized officer this ____ day off __________,
___.
AMLI RESIDENTIAL PROPERTIES, L.P.
By: AMLI Residential Properties Trust,
a Maryland real estate investment trust,
its General Partner
By:
------------------------------
Title:
------------------------------
EXHIBIT F
COMPLIANCE CERTIFICATE
----------------------
Reference is made to the Credit Agreement dated as of
October 12, 1999 (as modified and supplemented and in effect from time to
time, the "Credit Agreement") by and among AMLI Residential Properties,
L.P., the Banks from time to time parties thereto, Wachovia Bank, N.A., as
Administrative Agent, Bank One, NA, as Syndication Agent and PNC Bank,
N.A., as Documentation Agent. Capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement; all amounts shown
herein, unless expressly set forth to the contrary, shall be without
duplication.
Pursuant to Section 5.01(c) of the Credit Agreement,
_____________, the duly authorized __________ of the Borrower, hereby
(i) certifies to the Administrative Agent and the Banks that the
information contained in the Compliance Check List attached hereto is true,
accurate and complete as of _________, _____, and that no Default is in
existence on and as of the date hereof and (ii) restates and reaffirms that
the representations and warranties contained in Article IV of the Credit
Agreement are true on and as of the date hereof as though restated on and
as of this date.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: AMLI Residential Properties Trust,
a Maryland real estate investment trust,
its General Partner
By:
------------------------------
Its:
----------------------
COMPLIANCE CHECK LIST
AMLI RESIDENTIAL PROPERTIES, L.P.
_______________________________
_________________, ______
1. Consolidations, Mergers and Sales of Assets (Section 5.05)
Neither the Borrower, the General Partner nor any of the Guarantors
will consolidate or merge with or into, or acquire all or substantially all
of the assets or stock of any other Person, or sell, lease or otherwise
transfer all or any substantial part of its assets to, any other Person,
provided that:
. the Borrower may merge with another Person if (x) such
Person was organized under the laws of the United States of America or one
of its states, (y) the Borrower is the limited partnership surviving such
merger and (z) immediately after giving effect to such merger, no Default
shall have occurred and be continuing;
. Guarantors may merge with one another, and the Guarantors
may sell, lease or otherwise transfer assets to the Borrower;
. the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not prohibit,
during any Fiscal Quarter, the acquisition of all or substantially all of
the assets or stock of another Person unless the aggregate assets or stock
acquired in a single acquisition or series of related acquisitions of all
or substantially all of the assets or stock of another Person by the
Borrower, the General Partner and the Guarantors during such Fiscal Quarter
constituted more than 20% of Gross Asset Value at the end of the most
recent Fiscal Quarter immediately preceding such Fiscal Quarter; and
. the foregoing limitation on the sale, lease or other
transfer of assets shall not prohibit, during any Fiscal Quarter, a
transfer of assets (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred, when
combined with all other assets transferred, by the Borrower, the General
Partner and the Guarantors during such Fiscal Quarter and the immediately
preceding 3 Fiscal Quarters, constituted more than 20% of Gross Asset Value
at the end of the most recent Fiscal Year immediately preceding such Fiscal
Quarter.
In the case of any Guarantor which transfers substantially all
of its assets pursuant to clause (iv) of the preceding sentence, and in the
case of any Guarantor the stock of which is being sold and with respect to
which clause (iv) would have been satisfied if the transaction had been a
sale of assets of such Guarantor, such Guarantor may dissolve and shall be
entitled to obtain from the Administrative Agent a written release from the
Guaranty, provided that it can demonstrate to the reasonable satisfaction
of the Administrative Agent that (A) it has repaid in full all Debt owed to
the Borrower or any other Guarantor and (B) such sale was for cash and in
the case of an asset transfer, the net cash proceeds received in connection
therewith are being distributed to the Borrower as part of such
dissolution, and upon obtaining such written release, it shall no longer be
a Guarantor for any purpose hereunder.
(a) Aggregate amount of assets or stock $___________
acquired in a single acquisition or
series of related acquisitions during
Fiscal Quarter just ended
(b) Gross Asset Value Schedule 1 $___________
(c) 20% of (b)
Limitation: (a) may not exceed (c) $___________
(d) Aggregate amount of assets sold
during Fiscal Quarter just ended $___________
(e) Aggregate amount of assets sold $___________
during 3 prior Fiscal Quarters
(f) Sum of (d) and (e)
Limitation: (f) may not exceed (c) $___________
(g) Restricted Payments (Section 5.15)
The Borrower's Restricted Payments in any calendar year shall
not exceed 95% of Funds From Operations for such period, unless (i) the
Borrower must pay out an amount in excess of 95% of Funds From Operations
to permit the General Partner to preserve its status as a real estate
investment trust under the applicable provision of the Code, or (ii) the
Borrower declares one or more capital gains dividends within such calendar
year (in which event the amount of additional Restricted Payments that may
be made as a result of such declaration as provided in this clause
(ii) shall not exceed the greater of (A) the income tax liability of the
Borrower's partners with respect thereto and (B) $1,500,000). In the event
that the Borrower receives an Investment Grade Debt Rating and so long as
that rating (or a better rating) is affirmed during each year, the
Borrower's Restricted Payments in any calendar year will be limited to 100%
of Funds from Operations for such calendar year with the same exceptions
contained in clauses (i) and (ii) of this Section 5.15.
(a) Restricted Payments for current $___________
calendar year
(b) Funds From Operations for current
calendar year Schedule 2
Maximum Restricted Payments
Generally: [95%] [100%] of (b) $___________
(c) Additional Restricted Payments $___________
permitted by clause (i)
(d) Additional Restricted Payments $___________
permitted by clause (ii),
not to exceed greater of partners'
income tax liability and $1,500,000
(e) Calendar year distributions to
date $___________
2. Loans or Advances (Section 5.16)
Neither the Borrower, the General Partner nor any of the
Guarantors shall make loans or advances to any Person except as permitted
by Section 5.17 and except:
(i) deposits required by government agencies or public
utilities;
(ii) loans or advances from the Borrower to a Guarantor or
from a Guarantor to the Borrower or another Guarantor;
(iii) loans and advances made to (A) AMLI Institutional
Advisors, Inc. as part of its initial capital structure in the amount of
$500,000, and (B) AMLI Management Company as part of its initial capital
structure in the amount of $3,000,000;
(iv) loans or advances to employees, officers and directors
not exceeding $1,000,000 in the aggregate principal amount outstanding at
any time, in each case made in the ordinary course of business, but
excluding loans and advances described in clause (v);
(v) loans and advances to employees, officers and directors
to enable them to buy partnership units in the Borrower or stock in the
General Partner which are secured by a pledge of such stock, so long as the
aggregate amount of all such loans does not exceed $5,000,000;
(vi) working capital loans and advances to AMLI Residential
Construction, Inc. for use in the ordinary course of business and
consistent with past practices, so long as the aggregate principal amount
outstanding at any time for all such loans and advances is not in excess of
$6,000,000;
(vii) loans and advances to Co-Investment Partnerships in
an aggregate amount which, together with Investments in Co-Investment
Partnerships, does not exceed (i) so long as the Borrower has no Investment
Grade Debt Rating, 15% of Gross Asset Value and (ii) while the Borrower has
an Investment Grade Debt Rating, 20% of Gross Asset Value; and/or
(viii) other loans and advances by the Borrower, the
General Partner and the Guarantors to any Person other than a Co-Investment
Partnership which (x) are evidenced by notes (and, if requested by the
Administrative Agent, acting at the direction of the Required Banks, with
such notes, together with any related mortgage, have been assigned to and
pledged with the Administrative Agent, for the benefit of itself and the
Banks, as security for the payment of all obligations of the Borrower to
the Administrative Agent and the Banks hereunder) and (y) are in an amount
which, together with Investments permitted by clause (vii) of Section 5.17,
do not exceed 5% of Gross Asset Value as of the end of the most recent
Fiscal Quarter;
provided that after giving effect to the making of any loans,
advances or deposits permitted by this Section, no Default shall be in
existence or be created thereby.
(a) Loans and advances to employees, officers $___________
and directors, excluding stock purchase loans
Limitation $1,000,000
(b) Loans and advances to employees, officers $___________
and directors for the purchase of, and
secured by, stock in the General Partner
Limitation $5,000,000
(c) working capital loans to AMLI Residential $___________
Construction, Inc. for construction in
progress
Limitation $6,000,000
(d) Loans and advances to Co-Investment $___________
Partnerships
(e) See line (d) and "Limitation" of $___________
paragraph 10 below
(f) other loans and advances evidenced by $___________
notes (and, if required, pledged with
Administrative Agent) and not permitted
by clauses (i) through (vii)
(g) See line (e) and "Limitation" of $___________
paragraph 4 below
3. Investments (Section 5.17)
Neither the Borrower, the General Partner nor any of the Guarantors
shall make Investments after the Closing Date in any Person except as
permitted by Section 5.16 and except Investments in:
(i) direct obligations of the United States Government
maturing within one year;
(ii) certificates of deposit issued by a commercial bank
whose credit is satisfactory to the Administrative Agent;
(iii) commercial paper rated A1 or the equivalent thereof
by S&P or P1 or the equivalent thereof by ▇▇▇▇▇'▇ and in either case
maturing within 6 months after the date of acquisition;
(iv) tender bonds the payment of the principal of and
interest on which is fully supported by a letter of credit issued by a
United States bank whose long-term certificates of deposit are rated at
least A or the equivalent thereof by S&P and A or the equivalent thereof by
▇▇▇▇▇'▇;
(v) Investments consisting of the acquisition of all or
substantially all of the assets or stock of another Person permitted by
Section 5.05(iii);
(vi) Investments in Co-Investment Partnerships permitted by
Section 5.26; and/or
(vii) other Investments by the Borrower, the General
Partner and the Guarantors, other than in Co-Investment Partnerships, in an
amount which, together with loans and advances permitted by clause
(viii) of Section 5.16, do not exceed 5% of Gross Asset Value as of the end
of the most recent Fiscal Quarter;
provided, however, immediately after giving effect to the
making of any Investment, no Default shall have occurred and be continuing.
(a) Line (f) of paragraph 3 above $___________
(b) Other Investments not permitted by $___________
clauses (i) through (vi)
(c) Sum of (a) and (b) $___________
(d) Gross Asset Value Schedule 1 $___________
(e) 5% of (d)
$___________
Limitation: (c) may not exceed (e)
4. Ratio of Consolidated Total Liabilities to Undepreciated Book Asset
Value (Section 5.20)
The ratio of Total Consolidated Liabilities to Undepreciated
Book Asset Value shall at all times be equal to or less than 0.60 to 1.0.
(a) Total Consolidated Liabilities $___________
Schedule 3
(b) Original cost of all real estate assets $___________
plus the cost of capital improvements
thereon, without deduction for
accumulated depreciation and amortization
incurred in connection therewith
(c) Book value of all other tangible $___________
assets determined in accordance
with GAAP $6,000,000
(d) Approved Collateral Value $___________
(e) Undepreciated Book Asset Value $___________
(sum of (b) plus (c) minus (d))
(f) Actual ratio of (a) to (e) _______ to 1.0
0.60 to 1.0
Maximum Ratio
5. Ratio of Total Secured Debt to Gross Asset Value (Section 5.21)
The ratio of Total Secured Debt to Gross Asset Value shall at
all times be equal to or less than 0.45 to 1.0.
(a) Total Secured Debt Schedule 4 $___________
(b) Gross Asset Value Schedule 1 $___________
(c) Actual ratio of (a) to (b) _____ to 1.0
0.45 to 1.0
Minimum Ratio
6. Ratio of EBITDA to Consolidated Interest Expense (Section 5.22)
The ratio of EBITDA to Consolidated Interest Expense for the
Fiscal Quarter just ended will not be less than 2.0 to 1.00, calculated at
the end of each Fiscal Quarter.
(a) EBITDA Schedule 5 $___________
(b) Consolidated Interest Expense $___________
(c) Ratio of (a) to (b) to 1.0 _____ to 1.0
Minimum Ratio 2.0 to 1.0
7. Ratio of Unencumbered Assets to Unsecured Funded Debt (Section 5.23)
The ratio of Unencumbered Assets to Unsecured Funded Debt shall
at all times be equal to or greater than 1.75 to 1.00.
(a) Net Operating Income from each $___________
Property (other than Properties
owned by a Co-Investment Partnership)
not subject to a Mortgage Schedule 6
(b) (a) divided by 0.09 $___________
(c) 4 times (b) $___________
(d) book value of all Construction $___________
in Progress and unimproved land not
subject to a Mortgage (in each case
excluding Properties owned by a
Co-Investment Partnership)
(e) sum of (c) and (d) $___________
(f) Unsecured Funded Debt Schedule 7 $___________
(g) Actual ratio of (e) to (f) _____ to 1.0
1.75 to 1.0
Minimum Ratio
8. Ratio of Unsecured Net Operating Income to Unsecured Interest
Expense (Section 5.24)
The ratio of Unsecured Net Operating Income to Unsecured
Interest Expense shall at all times be equal to or greater than 2.0 to 1.0.
(a) Unsecured Net Operating Income $___________
Schedule 6
(b) Unsecured Interest Expense(1) $___________
(c) Actual ratio of (a) to (b) _____ to 1.0
2.0 to 1.0
Minimum Ratio
9. Ratio of EBITDA to Consolidated Fixed Charges (Section 5.30)
The ratio of EBITDA to Consolidated Fixed Charges for the
Fiscal Quarter just ended and the 3 immediately preceding Fiscal Quarters
will not be less than 1.75 to 1.00, calculated at the end of each Fiscal
Quarter.
(a) EBITDA Schedule 5 $___________
(b) Consolidated Fixed Charges Schedule 8 $___________
(c) Ratio of (a) to (b) to 1.0 _____ to 1.0
1.75 to 1.0
Minimum Ratio
10. Co-Investment Partnerships Depreciated Book Value (Section 5.26)
The amount of the depreciated book value set forth on the line
item designated as "Investments in Partnerships" on the Borrower's
consolidated balance sheet, together with the aggregate amount of loans and
advances to Co-Investment Partnerships permitted by clause (vii) of
Section 5.16, shall not at any time exceed (i) so long as the Borrower does
not have an Investment Grade Debt Rating, 15% of Gross Asset Value and
(ii) while the Borrower has an Investment Grade Debt Rating, 20% of Gross
Asset Value.
(a) depreciated book value of Co-Investment $___________
Partnerships per Borrower's consolidated
balance sheet
(b) Gross Asset Value Schedule 1 $-----------
Limitation (a) may not exceed [15%] [20%]
of (b)
(1) Include only Consolidated Interest Expense attributable to Unsecured
Funded Debt.
SCHEDULE 1
GROSS ASSET VALUE
-----------------
(a) Net Operating Income for the 3 month period $___________
ending on the last day of the month just ended
prior to the date of determination, from each
Property (other than Properties owned by a
Co-Investment Partnership) owned for three
months or longer
(b) (a) divided by 0.09 $___________
(c) 4 times (b) $___________
(d) book value of Construction in Progress $___________
(other than Properties owned by a Co-Investment
Partnership) and unimproved land
(e) acquisition cost of improved Property $___________
(other than Properties owned by a Co-Investment
Partnership) owned by Borrower for less than
three months
(f) sum of unrestricted cash on deposit and $___________
market value of Investments permitted under
Section 5.17(i), (ii), (iii) and (iv)
(g) sum of all earnings before interest and taxes $___________
of the Service Companies for the 3 month period
ending on the last day of the month just ended
(h) 4 times (g) $___________
(i) divided by 0.15 $___________
GROSS ASSET VALUE (sum of (c), (d), (e) (f) $___________
and (i))
SCHEDULE 2
FUNDS FROM OPERATIONS
---------------------
(for Fiscal Year just ended) (1)
Net income $___________
plus depreciation and amortization of $___________
real estate assets
plus net loss/(gain) on real estate sales $___________
plus loss/(gains) on extraordinary $___________
items plus depreciation of $___________
real estate assets held in
unconsolidated entities
FUNDS FROM OPERATIONS $___________
(1) The calculation is subject to change as required by NEREIT,
subject to the provisions of Section 1.02.
SCHEDULE 3
TOTAL CONSOLIDATED LIABILITIES
------------------------------
1. Consolidated Liabilities $___________
2. Debt Guaranteed by Borrower or any Guarantor $___________
3. Face amount of all letters of credit issued $___________
for the account of the Borrower or any
Guarantor
4. Approved Collateral Value $___________
TOTAL CONSOLIDATED LIABILITIES $___________
(sum of (a)through (c) minus (d)
SCHEDULE 4
TOTAL SECURED DEBT (1)
----------------------
Interest Final
Rate (2) Maturity Total
---------- ---------- ----------
Money Borrowed
--------------
Total Money Borrowed
Deferred Purchase Price (3)
---------------------------
Total Deferred Purchase Price
Capital Leases in Which Borrower is the Tenant
----------------------------------------------
Total Capital Leases
Letter of Credit Reimbursement Obligations
------------------------------------------
Total Letter of Credit
Reimbursement Obligations
Guarantee of Debt of Periods Other Than Borrower and Guarantor
--------------------------------------------------------------
Total Secured Debt
(1) Include only Debt secured by a Mortgage.
(2) If rate is fixed, insert contract rate. If rate is floating,
state that.
(3) Exclude trade accounts payable in the ordinary course of
business.
SCHEDULE 5
EBITDA
------
_____ quarter _____
consolidated net income $_________
less extraordinary gains ($_________)
plus extraordinary losses $_________
plus Consolidated Interest Expense $_________
plus taxes on income $_________
plus depreciation and amortization $_________
plus other non-cash charges $_________
Total $_________
EBITDA $
=========
SCHEDULE 6
UNSECURED NET OPERATING INCOME AND
NET OPERATING INCOME (1)
-----------------------------------
(for Fiscal Quarter just ended)
_____ quarter _____
(a) Property Revenues $___________
(b) Property expenses $___________
(excluding depreciation, amortization
and debt service and actual
management fees)
(c) UNSECURED NET OPERATING INCOME $___________
(sum of (a) less (b)
(d) management fee (4% of gross rental $___________
income, excluding percentage rents
and less any management fees
included in (b))
(e) capital reserve ($150 per Unit) $___________
(f) NET OPERATING INCOME (sum of (c) $___________
less (d) less (e)
(1) Include only Properties not subject to a Mortgage.
SCHEDULE 7
UNSECURED FUNDED DEBT (1)
-------------------------
Interest Final
Rate (2) Maturity Total
---------- ---------- ----------
Money Borrowed
--------------
Total Money Borrowed
Deferred Purchase Price (3)
---------------------------
Total Deferred Purchase Price
Capital Leases in Which Borrower is the Tenant
----------------------------------------------
Total Capital Leases
Letter of Credit Reimbursement Obligations
------------------------------------------
Total Letter of Credit
Reimbursement Obligations
Guarantee of Debt of Periods Other Than Borrower and Guarantor
--------------------------------------------------------------
Total Secured Debt
(1) Include only Debt secured by a Mortgage.
(2) If rate is fixed, insert contract rate. If rate is floating,
state that.
(3) Exclude trade accounts payable in the ordinary course of
business.
SCHEDULE 8
CONSOLIDATED FIXED CHARGES
--------------------------
_____ quarter _____
Consolidated Interest Expense $_________
plus dividends paid or declared but not paid on
preferred stock $_________
plus scheduled principal amortization paid (1) $_________
plus other non-cash charges $_________
Total $_________
_____ quarter _____
Consolidated Interest Expense $_________
plus dividends paid or declared but not paid
on preferred stock $_________
plus scheduled principal amortization paid (1) $_________
plus other non-cash charges $_________
Total $_________
_____ quarter _____
Consolidated Interest Expense $_________
plus dividends paid or declared but not paid on
preferred stock $_________
plus scheduled principal amortization paid (1) $_________
plus other non-cash charges $_________
Total $_________
_____ quarter _____
Consolidated Interest Expense $_________
plus dividends paid or declared but not paid on
preferred stock $_________
plus scheduled principal amortization paid (1) $_________
plus other non-cash charges $_________
Total $_________
Consolidated Fixed Charges $
=========
(1) Exclude principal payments under this Agreement and any balloon
payments on other Debt.
EXHIBIT G
AMLI RESIDENTIAL PROPERTIES, L.P.
CLOSING CERTIFICATE
-------------------
Reference is made to the Credit Agreement (the "Credit
Agreement") dated as of October 12, 1999, among AMLI Residential
Properties, L.P., the Banks listed therein, Wachovia Bank, N.A., as
Administrative Agent, Bank One, NA, as Syndication Agent and PNC Bank,
N.A., as Documentation Agent. Capitalized terms used herein have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
_______________, the duly authorized executive officer of AMLI Residential
Properties Trust, the General Partner of AMLI Residential Properties, L.P.,
hereby certifies to the Administrative Agent and the Banks that, to the
best of my knowledge, (i) no Default has occurred and is continuing as of
the date hereof, and (ii) the representations and warranties contained in
Article IV of the Credit Agreement are true on and as of the date hereof.
Certified as of October 12, 1999.
By:
------------------------------
Printed
Name:
------------------------------
[Chairman] [Vice Chairman]
[President] [Treasurer]
EXHIBIT H-1
AMLI RESIDENTIAL PROPERTIES TRUST
OFFICER'S CERTIFICATE
---------------------
The undersigned, ___________________, the [Chairman] [Vice
Chairman] [President] [Treasurer] of AMLI RESIDENTIAL PROPERTIES TRUST,
general partner of AMLI RESIDENTIAL PROPERTIES L.P., a Delaware limited
partnership (the "Borrower"), hereby certifies that [s]he has been duly
elected, qualified and is acting in such capacity and that, as such, [s]he
is familiar with the facts herein certified and is duly authorized to
certify the same, and hereby further certifies, in connection with the
Credit Agreement dated as of October 12, 1999 (as amended from time to
time, the "Credit Agreement") among the Borrower, Wachovia Bank, N.A., as
Administrative Agent, Bank One, NA, as Syndication Agent and PNC Bank,
N.A., as Documentation Agent, and certain other Banks listed on the
signature pages thereof, that:
1. Attached hereto as Exhibit A is a complete and correct copy
of the Declaration of Trust of AMLI Residential Properties Trust (the
"Trust") as in full force and effect on the date hereof.
2. Attached hereto as Exhibit B is a complete and correct copy
of the Certificate of Limited Partnership as certified by the Secretary of
State of the State of Delaware, the Borrower's state of creation.
3. Attached hereto as Exhibit C is a complete and correct copy
of the Partnership Agreement of the Borrower as in full force and effect on
the date hereof.
4. The General Partner incorporates herein by reference as fully
as if set forth herein all of the representations and warranties pertaining
to the General Partner contained in Article IV of the Credit Agreement
(which representations and warranties shall be deemed to have been renewed
by the General Partner upon each Borrowing under the Credit Agreement, and
the General Partner will fully comply with those covenants set forth in
Article V of the Credit Agreement pertaining to the General Partner, and
the General Partner incorporates herein by reference as fully as if set
forth herein all of such covenants.
5. As [Chairman] [Vice Chairman] [President] [Treasurer] I have
been duly authorized by all proper and necessary action to execute and
deliver the Credit Agreement and the other Loan Documents (defined in the
Credit Agreement) on behalf of the Trust, as general partner of the
Borrower and (with respect to Paragraph 4 hereof) on behalf of the Trust,
and no consent or approval of any beneficiaries or trustors under the Trust
is required as a condition thereto.
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her]
hand as of July ___, 1998.
[Chairman] [Vice Chairman]
[President] [Treasurer]
EXHIBIT I
BORROWING BASE CERTIFICATE
--------------------------
Reference is made to the Credit Agreement dated as of
October 12, 1999 (as modified and supplemented and in effect from time to
time, the "Credit Agreement") among AMLI Residential Properties, L.P., the
Banks from time to time parties thereto, Wachovia Bank, N.A., as
Administrative Agent, Bank One, NA, as Syndication Agent and PNC Bank,
N.A., as Documentation Agent. Capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section [3.01(h)][5.01(h)] of the Credit Agreement,
______________, the duly authorized __________________ of the Borrower,
hereby (i) certifies to the Administrative Agent and the Banks that the
calculation of the Borrowing Base contained in this Borrowing Base
Certificate is true, accurate and complete in all material respects as of
__________, ______.
The calculation of the Borrowing Base is as follows:
(a) Net Operating Income for the 3 month $___________
period ending on the last day of the
Fiscal Quarter just ended prior to the
date of determination, from each Eligible
Unencumbered Stabilized Property
(b) (a) divided by 0.09 $___________
(c) 4 times (b) $___________
(d) 0.60 times (c) $___________
(e) book value of Construction in Progress $___________
on all Eligible Properties
(f) 0.50 times (e) $___________
(g) lesser of (f) and $50,000,000 $___________
(h) cost of land acquired for apartment $___________
community development
(i) 0.40 times (h) $___________
(j) lesser of (i) and $15,000,000 $___________
BORROWING BASE: sum of (d), plus (g), $___________
plus (j)
AMLI Residential Properties, L.P.,
a Delaware limited partnership
By:
------------------------------
[Chairman] [Vice Chairman]
[President] [Treasurer]
EXHIBIT J
LIST OF ELIGIBLE PROPERTIES
---------------------------
Property Location
-------- --------
Sope Creek Properties Marietta, Georgia
AMLI at ▇▇▇▇▇▇ ▇▇▇▇▇ Carrollton, Texas
AMLI at ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Carrollton, Texas
AMLI at ▇▇▇▇▇▇ ▇▇▇▇▇ III Carrollton, Texas
AMLI at Chase Oaks Plano, Texas
AMLI at Gleneagles Dallas, Texas
AMLI at Gleneagles II Dallas, Texas
AMLI at Paces Vinings Atlanta, Georgia
AMLI at Paces Vinings-Phase II Atlanta, Georgia
AMLI at West Paces Atlanta, Georgia
AMLI at Alvamar Lawrence, Kansas
AMLI at Spring Creek IV Atlanta, Georgia
AMLI at Peachtree City Peachtree City, Georgia
AMLI on the Parkway Dallas, Texas
AMLI at Arboretum Austin, Texas
AMLI at Bent Tree Dallas, Texas
AMLI at Bent Tree II (CIP) Dallas, Texas
AMLI at Lantana Ridge Austin, Texas
AMLI at Martha's Vineyard Austin, Texas
AMLI at Town Center Overland Park, Kansas
AMLI at ▇▇▇▇▇▇▇ Creek Snellville, Georgia
EXHIBIT K
GUARANTY
--------
THIS GUARANTY (this "Guaranty") is made as of ______________,
jointly and severally, by and among _________________, a __________________
corporation (the "Guarantor"; the terms "Guarantor" and "Guarantors" shall
also include any Subsidiary of Amli Residential Properties L.P. which
becomes a Guarantor pursuant to Section 15 hereof and Section 5.28 of the
Credit Agreement referred to below) in favor of the 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, AMLI Residential Properties, L.P., a Delaware limited
partnership (the "Borrower"), Wachovia Bank, N.A., as Administrative Agent
(the "Administrative Agent"), Bank One, NA, as Syndication Agent, PNC Bank,
N.A., as Documentation Agent and certain other Banks from time to time
party thereto have entered into a certain Credit Agreement dated as
October 12, 1999 (as amended as of the date hereof and as it may be amended
or modified further from time to time, the "Credit Agreement"), providing,
subject to the terms and conditions thereof, for extensions of credit to be
made by the Banks to the Borrower which will the benefit the Guarantors;
WHEREAS, it is required under Section 5.28 of the Credit
Agreement, that the Guarantor execute and deliver this Guaranty whereby it
and, together with the other Guarantors which are or become such as
contemplated in such Section and in Section 15 hereof, shall guarantee the
payment when due of all principal, interest and other amounts that shall be
at any time payable by the Borrower under the Credit Agreement, the Notes
and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support
that the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantors, whether directly or
indirectly, and in order to induce the Banks and the Administrative Agent
to enter into and maintain the credit facilities under the Credit
Agreement, the Guarantors are willing to guarantee the obligations of the
Borrower under the Credit Agreement, the Notes, and the other Loan
Documents;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective
meanings provided for therein.
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors contained in
Article IV of the Credit Agreement (which representations and warranties
shall be deemed to have been renewed by the Guarantors upon each Borrowing
under the Credit Agreement).
SECTION 3. COVENANTS. The Guarantors covenant that, so long
as any Bank has any Commitment outstanding under the Credit Agreement or
any amount payable under the Credit Agreement or any Note shall remain
unpaid, the Guarantors will fully comply with those covenants set forth in
Article V of the Credit Agreement pertaining to the Guarantors, and the
Guarantors incorporate herein by reference as fully as if set forth herein
all of such covenants.
SECTION 4. THE GUARANTY. The Guarantors hereby
unconditionally and jointly and severally guarantee (i) the full and
punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on each Note issued by the
Borrower pursuant to the Credit Agreement, and the full and punctual
payment of all other amounts payable by the Borrower under the Credit
Agreement, including, without limitation, all Syndicated Loans and Swing
Loans and interest thereon, all compensation and indemnification amounts
and fees payable pursuant to the Credit Agreement and the 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. Section 13-1-11(a)(2) to the
contrary, the Guarantors shall not be obligated to pay more than the
attorneys fees actually incurred in connection with such collection.
SECTION 5. GUARANTY UNCONDITIONAL. The obligations of the
Guarantors hereunder shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged
or otherwise affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Borrower under the
Credit Agreement, any Note, or any other Loan Document, by operation of law
or otherwise or any obligation of any other guarantor of any of the
Guaranteed Obligations;
(ii) any modification or amendment of or supplement to
the Credit Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any
direct or indirect security, if any, for any obligation of the Borrower
under the Credit Agreement, any Note, any Loan Document, or any obligations
of any other guarantor of any of the Guaranteed Obligations;
(iv) any change in the partnership structure or
ownership of the Borrower or corporate structure or ownership of any other
Guarantor or any other guarantor of any of the Guaranteed Obligations, or
any insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower, or any other Guarantor or any other guarantor of
the Guaranteed Obligations, or its assets or any resulting release or
discharge of any obligation of the Borrower, or any other Guarantor or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights
which the Guarantors may have at any time against the Borrower, any other
Guarantor or any other guarantor of any of the Guaranteed Obligations, the
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
any Guarantor's obligations hereunder.
SECTION 6. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT
IN CERTAIN CIRCUMSTANCES. The Guarantors' obligations hereunder shall
remain in full force and effect until all Guaranteed Obligations shall have
been paid in full and the Commitments under the Credit Agreement shall have
terminated or expired. If at any time any payment of the principal of or
interest on any Note or any other amount payable by the Borrower under the
Credit Agreement or any other Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Guarantors' obligations
hereunder with respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
SECTION 7. WAIVER OF NOTICE BY THE GUARANTORS. The Guarantors
irrevocably waive acceptance hereof, presentment, demand, protest and, to
the fullest extent permitted by law, any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against the Borrower, any other Guarantor or any other guarantor of the
Guaranteed Obligations, or any other Person.
SECTION 8. STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by the Borrower under the Credit
Agreement, any Note or any other Loan Document is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement,
any Note or any other Loan Document shall nonetheless be payable by the
Guarantors hereunder forthwith on demand by the 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 9.01 of the Credit Agreement.
Except as otherwise provided in this Guaranty, all such communications
shall be deemed to have been duly given when transmitted by telecopier, or
personally delivered or, in the case of a mailed notice, 3 Domestic
Business Days after such communication is deposited in the mails with first
class postage prepaid, in each case given or addressed as aforesaid.
SECTION 10. NO WAIVERS. No failure or delay by the
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 GUARANTORS
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 Guarantors hereunder shall be made without setoff or counterclaim and
free and clear of and without deduction or withholding for or on account
of, any present or future taxes, levies, imposts, duties or other charges
of whatsoever nature imposed by any government or any political or taxing
authority pursuant and subject to the provisions of Section 2.10(c) of the
Credit Agreement, the terms of which are incorporated herein by reference
as to the Guarantors as fully as if set forth herein, and for such
purposes, the rights and obligations of the Borrower under such
Section shall devolve to the Guarantors as to payments required to be made
by the Guarantors hereunder.
SECTION 15. ADDITIONAL GUARANTORS; RELEASE OF GUARANTORS.
Section 5.28 of the Credit Agreement provides that all new Subsidiaries and
must become Guarantors, by, among other things, executing and delivering to
the 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 5.05 of the
Credit Agreement, Guarantors 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 Guarantor has caused this Guaranty to
be duly executed, under seal, by its authorized officer as of the date
first above written.
By:
------------------------------
Title:
------------------------------
EXHIBIT L
CONTRIBUTION AGREEMENT
----------------------
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into
as of ______________, ____, jointly and severally, by and among AMLI
Residential Properties, L.P., a Delaware limited partnership (the
"Principal"), and _________________, a _____________ corporation (the
"Guarantor"; the terms "Guarantor" and "Guarantors" shall also include any
Subsidiary of the Principal which becomes a Guarantor pursuant to the last
paragraph hereof and Section 5.28 of the Credit Agreement referred to
below). The Principal and each of the Subsidiary Guarantors are sometimes
hereinafter referred to individually as a "Contributing Party" and
collectively as the "Contributing Parties").
W I T N E S S E T H :
--------------------
WHEREAS, pursuant to that certain Credit Agreement, dated as of
October 12, 1999 among the Principal, the Banks party thereto, Wachovia
Bank, N.A., as Administrative Agent, Bank One, NA, as Syndication Agent,
and PNC Bank, N.A., as Documentation Agent (such agreement, as amended as
of the date hereof and as the same may from time to time be amended,
modified, restated or extended, being hereinafter referred to as the
"Credit Agreement"; capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement), the Banks have agreed to extend
financial accommodations to the Principal;
WHEREAS, Section 5.28 of the Credit Agreement requires that the
Guarantor execute and deliver that certain Guaranty, dated as of even date
herewith (such agreement, as the same may from time to time be amended,
modified, restated or extended, being hereinafter referred to as the
"Guaranty"), pursuant to which, among other things, the Guarantor and,
together with other Guarantors which become such as contemplated in the
last paragraph hereof, have jointly and severally agreed to guarantee the
"Guaranteed Obligations" (as defined in the Guaranty); and
WHEREAS, each Guarantor is a direct or indirect subsidiary of
the Principal and is engaged in businesses related to those of the
Principal and each other Guarantor, and each of the Guarantors will derive
direct or indirect economic benefit from the effectiveness and existence of
the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce each Guarantor to enter into
the Guaranty, it is agreed as follows:
To the extent that any Guarantor shall, under the Guaranty,
make a payment (a "Guarantor Payment") of a portion of the Guaranteed
Obligations, then, without limiting its rights of subrogation against the
principal, such Guarantor shall be entitled to contribution and
indemnification from, and be reimbursed by, each of the other Contributing
Parties in an amount, for each such Contributing Party, equal to a fraction
of such Guarantor Payment, the numerator of which fraction is such
Contributing Party's Allocable Amount and the denominator of which is the
sum of the Allocable Amounts of all of the Contributing Parties.
As of any date of determination, the "Allocable Amount" of each
Contributing Party shall be equal to the maximum amount of liability which
could be asserted against such Contributing Party hereunder with respect to
the applicable Guarantor Payment without (i) rendering such Contributing
Party "insolvent" within the meaning of Section 101(31) of the Federal
Bankruptcy Code (the "Bankruptcy Code") or Section 2 of either the Uniform
Fraudulent Transfer Act (the "UFTA") or the Uniform Fraudulent Conveyance
Act (the "UFCA"), (ii) leaving such Contributing Party with unreasonably
small capital, within the meaning of Section 548 of the Bankruptcy Code or
Section 4 of the UFTA or Section 5 of the UFCA, or (iii) leaving such
Contributing Party unable to pay its debts as they become due within the
meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or
Section 6 of the UFCA.
This Agreement is intended only to define the relative rights
of the Contributing Parties, and nothing set forth in this Agreement is
intended to or shall impair the obligations of the Guarantors, jointly and
severally, to pay any amounts, as and when the same shall become due and
payable in accordance with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets in favor of each
Guarantor to which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by
each of the Contributing Parties and shall continue in full force and
effect and may not be terminated or otherwise revoked by any Contributing
Party until all of the Guaranteed Obligations shall have been indefeasibly
paid in full (in lawful money of the United States of America) and
discharged and the Credit Agreement and financing arrangements evidenced
and governed by the Credit Agreement shall have been terminated. Each
Contributing Party agrees that if, notwithstanding the foregoing, such
Contributing Party shall have any right under applicable law to terminate
or revoke this Agreement, and such Contributing Party shall attempt to
exercise such right, then such termination or revocation shall not be
effective until a written notice of such revocation or termination,
specifically referring hereto and signed by such Contributing Party, is
actually received by each of the other Contributing Parties and by the
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 Guarantor Payments made
with respect to such loans or Guaranteed Obligations shall be the same as
if such termination or revocation had not occurred.
Section 5.28 of the Credit Agreement provides that new
Subsidiaries, must become Guarantors by, among other things, executing and
delivering to the 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 Guarantor for all purposes hereunder.
Under certain circumstances described in the last sentence of Section 5.05
of the Credit Agreement, Guarantors may obtain from the 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 Guarantor or Contributing Party hereunder, and such
release shall automatically and without further action constitute a release
by each other Contributing Party of all obligations of such Subsidiary
hereunder. Each other Guarantor consents and agrees to any such release
and agrees that no such release shall affect its obligations hereunder,
except as to the Subsidiary so released.
IN WITNESS WHEREOF, each Contributing Party has executed and
delivered this Agreement, under seal, as of the date first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.
(SEAL)
By: AMLI RESIDENTIAL PROPERTIES
TRUST, a Maryland real estate investment
trust, its General Partner
By:
------------------------------
Title:
------------------------------
By:
------------------------------
Title:
------------------------------
EXHIBIT M
MONEY MARKET QUOTE REQUEST
--------------------------
Wachovia Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Re: MONEY MARKET QUOTE REQUEST
This Money Market Quote Request is given in accordance with
Section 2.03 of the Credit Agreement (as amended or modified from time to
time, the "Credit Agreement") dated as of July ____, 1998, among AMLI
RESIDENTIAL PROPERTIES, L.P., the Banks from time to time parties thereto,
WACHOVIA BANK, N.A., as Administrative Agent, Bank One, NA, as Syndication
Agent and PNC Bank, N.A., as Documentation Agent. Terms defined in the
Credit Agreement are used herein as defined therein.
The Borrower hereby requests that the Administrative Agent
obtain quotes for a Money Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
______________, 19_____ (the "Money Market Borrowing Date"). (1)*
2. The aggregate amount of the Money Market Borrowing shall be
$______. (2)
3.The Stated Maturity Date(s) applicable to the Money Market
Borrowing shall be ____ days. (3)
* All numbered footnotes appear on the last page of this Exhibit M.
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware Limited Partnership
By: AMLI Residential Properties Trust, a
Maryland real estate investment trust,
its General Partner
By:
------------------------------
Title:
------------------------------
(1) The date must be a Euro-Dollar Business Day.
(2) The amount of the Money Market Borrowing is subject to
Section 2.03(a) and (b).
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii). The
Borrower may request that up to 2 different Stated Maturity Dates be
applicable to any Money Market Borrowing, provided that (i) each such
Stated Maturity Date shall be deemed to be a separate Money Market Quote
Request and (ii) the Borrower shall specify the amounts of such Money
Market Borrowing to be subject to each such different Stated Maturity Date.
EXHIBIT N
MONEY MARKET QUOTE
------------------
Wachovia Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Re: Money Market Quote to ______________
This Money Market Quote is given in accordance with
Section 2.03(c)(ii) of the Credit Agreement (as amended or modified from
time to time, the "Credit Agreement") dated as of [September __], 1999,
among Amli Residential Properties, L.P. (the "Borrower"), the Banks from
time to time parties thereto, Wachovia Bank, N.A., as Administrative Agent,
Bank One, NA, as Syndication Agent and PNC Bank, N.A., as Documentation
Agent. Terms defined in the Credit Agreement are used herein as defined
therein.
In response to the Borrower's Money Market Quote Request dated
__________, 19____, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2 Person to contact at Quoting Bank:
3. Date of Money Market Borrowing: (1)*
4. We hereby offer to make Money Market Loan(s) in the
following maximum principal amounts for the following Interest Periods and
at the following rates:
Maximum Stated Rate
Principal Maturity Per
Amount (2) Date (3) Annum (4)
---------- ---------- ----------
* All numbered footnotes appear on the last page of this Exhibit N.
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Credit Agreement, irrevocably obligate(s) us to make the Money Market
Loan(s) for which any offer(s) [is] [are] accepted, in whole or in part
(subject to the last sentence of Section 2.03(c)(i) of the Credit
Agreement).
Very truly yours,
[Name of Bank]
Dated:
------------------------------
By:
------------------------------
------------------------------
Authorized Officer
Officer:
------------------------------
(1) As specified in the related Money Market Quote Request.
(2) The principal amount bid for each Stated Maturity Date may not
exceed the principal amount requested. Money Market Quotes must be made
for at least $1,000,000 or a larger integral multiple of $500,000.
(3) The Stated Maturity Dates are subject to Section 2.03(b)(ii).
(4) Subject to Section 2.03(c)(ii)(C).
EXHIBIT P
BANK JOINDER AGREEMENT
----------------------
Dated ___________, ____
Reference is made to the Credit Agreement dated as of
October 12, 1999 (together with all amendments and modifications thereto,
the "Credit Agreement") among Amli Residential Properties, L.P., a Delaware
limited partnership (the "Borrower"), the Banks (as defined in the Credit
Agreement), Wachovia Bank, N.A., as Administrative Agent, Bank One, NA, as
Syndication Agent and PNC Bank, N.A., as Documentation Agent. Terms
defined in the Credit Agreement are used herein with the same meaning.
The undersigned, _________________________ (the "Joining Bank")
desires to join as a Bank under the Credit Agreement pursuant to the
provisions of Section 2.14 thereof, and hereby agree as follows:
1. The Joining Bank hereby sets forth its Commitment as
a Bank under the Credit Agreement in the amount of $__________________ and
requests the execution and delivery by the Borrower to it of a Syndicated
Loan Note in that amount and a Money Market Loan Note.
2. The Joining Bank (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.04(a) thereof (or any more recent
financial statements of the Borrower delivered pursuant to
Section 5.01(a) or (b) thereof) and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into this Bank Joinder Agreement; (ii) agrees 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 credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that
it is a bank or financial institution; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Bank;
(vi) specifies as its Lending Office (and address for notices) the office
set forth beneath its name on the signature pages hereof, (vii) represents
and warrants that the execution, delivery and performance of this Bank
Joinder Agreement are within its powers and have been duly authorized by
all necessary action, (viii) makes the representation and warranty
contained in Section 9.18 of the Credit Agreement, [and] (ix) agrees that
on the Effective Date, it will purchase participations in the existing
Syndicated Loans of the other Banks pursuant to Section 2.14 of the Credit
Agreement [and (x) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit
Agreement and the Notes].
3 The Effective Date for this Bank Joinder Agreement
shall be ___________, ____ (the "Effective Date"), provided that it has
been executed and accepted by the Co-Lead Arrangers and the Borrower and
delivered to the Administrative Agent.
4. Upon such execution and acceptance by the Co-Lead
Arrangers and the Borrower and delivery to the Administrative Agent, and
from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement.
5. This Bank Joinder Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF JOINING BANK]
By:
------------------------------
Title:
------------------------------
Lending Office:
--------------
[Address]
WACHOVIA SECURITIES, INC.,
As Co-Lead Arranger
By:
------------------------------
Title:
------------------------------
BANC ONE CAPITAL MARKETS, INC.,
As Co-Lead Arranger
By:
------------------------------
Title:
------------------------------
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: AMLI Residential Properties
Trust, a Maryland real estate
investment trust, its General Partner
By:
------------------------------
Title:
------------------------------
EXHIBIT Q
FORM OF DESIGNATION AGREEMENT
-----------------------------
Dated __________________, _______
Reference is made to that certain Credit Agreement dated as of
October 12, 1999 (together with all amendments and modifications thereto,
the "Credit Agreement") among Amli Residential Properties, L.P., a Delaware
limited partnership (the "Borrower"), the Banks (as defined in the Credit
Agreement), Wachovia Bank, N.A., as Administrative Agent, Bank One, NA, as
Syndication Agent and PNC Bank, N.A., as Documentation Agent (as amended
prior to the date hereof and as it may hereafter be amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meaning.
[NAME OF DESIGNATING BANK] (the "Designating Bank") and [NAME
OF DESIGNEE] (the "Designee") agree as follows:
1. Pursuant to Section 9.08(g) of the Credit Agreement, the
Designating Bank hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Money Market Loans
pursuant to Section 2.03(h) of the Credit Agreement. Any assignment by
Designating Bank to Designee of its rights to make a Money Market Loan
pursuant to such Section 2.03(h) shall be effective at the time of the
funding of such Money Market Loan and not before such time.
2. Except as set forth in Section 7, below, the Designating
Bank makes no representation or warranty and assumes no responsibility
pursuant to this Designation Agreement with respect to (a) any statements,
warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument and
document furnished pursuant thereto and (b) the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of
each Loan Document, together with copies of the financial statements
referred to in Sections 4.04 and 5.01(a) and (b) (for periods for which
such financial statements are available) of the Credit Agreement and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Designation Agreement;
(b) agrees that it will independently and without reliance upon the
Administrative Agent, the Designating Bank or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under any Loan Document; (c) confirms that it is a Designated Bank; (d)
appoints and authorizes the Administrative Agent to take such action as the
Administrative Agent on its behalf and to exercise such powers and
discretion under any Loan Document as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (e) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
any Loan Document are required to be performed by it as a Bank.
4. The Designee hereby appoints the Designating Bank as
Designee's agent and attorney in fact and grants to the Designating Bank an
irrevocable power of attorney, coupled with an interest, to receive
payments made for the benefit of Designee under the Credit Agreement, to
deliver and receive all communications and notices under the Credit
Agreement and other Loan Documents and to exercise on Designee's behalf all
rights to vote and to grant and make approvals, waivers, consent of
amendments to or under the Credit Agreement or other Loan Documents. Any
document executed by such agent on the Designee's behalf in connection with
the Credit Agreement or other Loan Documents shall be binding on the
Designee. The Borrower, the Administrative Agent and each of the Banks
may rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by
the Designating Bank and its Designee, it will be delivered to the Borrower
for acknowledgment and to the Administrative Agent for acknowledgment and
recording by the Administrative Agent. The effective date for this
Designation Agreement (the "Effective Date") shall be the date of
acknowledgment hereof by the Administrative Agent, unless otherwise
specified on the signature page thereto.
6. The Designating Bank and, by execution of their
respective acknowledgments below, the Borrower and the Administrative
Agent, each hereby (i) acknowledges that the Designee is relying on the
non-petition provisions of Section 9.19 of the Credit Agreement as agreed
to by all signatories thereto and (ii) reaffirms that it will not institute
against the Designee or join any other Person in instituting against the
Designee any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any federal or state bankruptcy or similar
law for one year and done day after the payment in full of the latest
maturing commercial paper note issued by the Designee.
7. The Designating Bank unconditionally agrees to pay or
reimburse the Designee and save the Designee harmless against all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or mature whatsoever
which may be imposed or asserted by any of the parties to the Loan
Documents against the Designee, in its capacity as such, in any way
relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Designee hereunder or thereunder,
provided that the Designating Bank shall not be liable for any portion of
such Liabilities, obligations, Losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results from
the Designee's gross negligence or willful misconduct.
8. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, the Designee shall be a party to the
Credit Agreement with a right to make Money Market Loans as a Designated
Bank pursuant to Section 2.03(h) of the Credit Agreement and the rights and
obligations of a Designated Bank related thereto; provided, however, that
the Designee shall not be required to make payments with respect to such
obligations except to the extent of excess cash flow of the Designee which
is not otherwise required to repay obligations of the Designee Bank which
is not otherwise required to repay obligations of the Designee Bank which
are then due and payable. Notwithstanding the foregoing, the Designating
Bank shall be and remain obligated to the Borrower, the Administrative
Agent
and the Banks for each and every of the obligations of the Designee
and the Designating Bank with respect to the Credit Agreement, including,
without limitation, any indemnification obligations under Section 7.05 of
the Credit Agreement and any sums otherwise payable to the Borrower by the
Designee.
9. This Designation Agreement shall be governed by and
construed in accordance with the laws of the State of [Georgia][New
York][other jurisdiction chosen by Designating Bank and Designated Bank].
10. This Designation Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of a signature page to this Designation
Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designating Bank and the Designee,
intending to be legally bound, have caused this Designation Agreement to be
executed by their officers thereunto duly authorized as of the date first
above written.
[NAME OF DESIGNATING BANK]
as Designating Bank
By:
------------------------------
Title:
------------------------------
[NAME OF DESIGNEE], as Designee
By:
------------------------------
Title:
------------------------------
Lending Office (and address for notices):
Acknowledged this ____ day Acknowledged this ____ day
of ______________ ____, 19__ of ______________ __, 19__
(the Effective Date)
WACHOVIA BANK, NA
As the Administrative Agent
as the Borrower
By: By:
-------------------- ------------------------
Title: Title:
-------------------- ------------------------
SCHEDULE 4.08
SUBSIDIARIES AND CO-INVESTMENT PARTNERSHIPS
-------------------------------------------
Subsidiaries:
------------
Name: Jurisdiction of Creation
---- ------------------------
1. Laurel Park Venture Georgia
2. Park Creek-Gainsville, L.L.C. Georgia
3. Lantana Apartments, Ltd. Texas
4. Windsor Plano Partners, Ltd. Texas
5. AMLI at ▇▇▇▇▇▇ Farms, L.P. Delaware
6. ▇▇▇▇▇▇▇▇▇, ▇.▇. Delaware
CO-INVESTMENT PARTNERSHIPS:
--------------------------
Name: Jurisdiction of Creation
---- ------------------------
1. AMLI Foundation Co-Investors-L.P. -
Park Place Apartments
(Austin, Texas) Delaware
2. AMLI Foundation Co-Investors-II,
L.P. - Greenwood Forest Delaware
3. AMLI at Champions, L.P. -
Park at Champions and Champions
Centre (Houston, Texas) Texas
4. AMLI at Chevy Chase, L.P. Illinois
5. AMLI at River Exchange
Limited Liability Company Delaware
6. AMLI at Willeo Creek, L.P. Georgia
7. AMLI at Windbrooke, L.P. Illinois
8. ▇▇▇▇▇▇▇ Lakes Limited
Liability Company Delaware
9. ▇▇▇▇▇▇▇ Drive L.L.C. -
Northwinds Apartments
(Alpharetta, GA) Delaware
10. Pleasant Hill Joint Venture Georgia
11. Acquiport/Aurora Crossing, L.P. Delaware
12. Acquiport/Fossil Creek, L.P. Delaware
13. Acquiport/Clearwater, L.P. Delaware
Name: Jurisdiction of Creation
---- ------------------------
14. Acquiport/Wynnewood Farms, L.P. Delaware
15. Acquiport/Monterey Oaks, L.P. Delaware
16. Acquiport/St. ▇▇▇▇▇▇▇, L.P. Delaware
17. Acquiport/Park Bridge, L.P. Delaware
18. AMLI at Danada, L.L.C Illinois
19. AMLI at Regents Crest, L.P. Delaware
20 AMLI Castle Creek, L.P. Delaware
21. AMLI Creekside, L.P. Delaware
22. AMLI at Verandah, L.P. Delaware
23. AMLI at Willowbrook, L.P Illinois
24. AMLI at ▇▇▇▇▇ Oakhurst, L.P Delaware
25. AMLI Partners Ltd. ▇▇-▇▇ -
▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇) Illinois
26. AMLI Towne Creek Crossing
Ltd. Partnership -
Towne Creek Crossing
(Gainesville, Georgia) Georgia
27. AMLI at Timberglen, L.P. Delaware
28. Park Creek - Old Mill, L.P. Georgia
29. AMLIWS Deerfield, L.P. Texas
30. AMLIWS Parkway, L. P. Texas
31. Landmark at Spring Mill, L.L.C. Delaware
32. AMLI at Mill Creek, L.L.C. Delaware
33. AMLIWS Summit Ridge, L.L.C. Missouri
34. AMLI/BPMT Prestonwood Hills Partnership Delaware
35. Prestonwood Hills REIT II Maryland
36. AMLI/BPMT On The Green Partnership Delaware
37. On The Green REIT II Maryland
SCHEDULE 4.14
ENVIRONMENTAL MATTERS
---------------------
None
SCHEDULE 5.17
EXISTING INVESTMENTS (1)
------------------------
Real Estate Tax Escrow Deposits $ 714,618
▇▇▇▇▇▇▇ Money Deposits $1,776,344
Notes Receivable-Co-Investments $9,969,197
Restricted Cash $ 734,417
Security Deposits $2,061,359
(1) Excludes Subsidiaries and Co-Investment Partnerships, which are
set forth on Schedule 4.08.