BRI OP LIMITED PARTNERSHIP
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AMENDMENT NO. 3 OF
AMENDED AND RESTATED
1992 CREDIT AGREEMENT
As of June 26, 1996
THE FIRST NATIONAL BANK OF BOSTON,
for Itself and as Agent
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Attn: Real Estate Division
MELLON BANK, N.A.
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Attn: Real Estate Finance
Ladies and Gentlemen:
Each of BRI OP Limited Partnership, a Delaware limited partnership
(the "Borrower") and Berkshire Realty Company Inc. (the "REIT"), hereby
agrees with each of you as follows:
1. Reference to Credit Agreement and Definitions. Reference is made to
the Amended and Restated 1992 Credit Agreement dated as of November 21,
1995, as amended by Amendment No. 1 thereof dated as of March 1, 1996 and
by Amendment No. 2 thereof dated as of March 1, 1996 (the "Credit
Agreement"), among the Borrower, Berkshire Realty Company, Inc., certain
Guarantors named therein and each of you. Capitalized terms defined in the
Credit Agreement and not otherwise defined herein are used herein with the
meanings given to them in the Credit Agreement.
2. Request for Amendment. The Borrower has advised you that it has
agreed to provide you with additional collateral for the Obligations and
has agreed to make appropriate revisions to the Credit Agreement.
3. Amendment. On the basis of the representations and warranties of the
Borrower set forth herein, the Credit Agreement is hereby amended as
follows:
3.1. The definition of "Advance Value" in Section 1.1 is amended to
read in its entirety as follows:
Advance Value. At the relevant time of reference
thereto, the sum of (a) for each item of Eligible Real Estate
included in the Mortgaged Property the product of (x) the Appraised
Value thereof as most recently determined as provided under section 5.2,
5.3(a)(i), 5.3(a)(ii) or 10.6 (except that determinations pursuant
to 5.3(a)(ii) shall be applicable to the determination of Advance
Value solely for the purpose of 5.4 and 5.5) times (y) 60%, plus
(b) the current value of cash and Eligible Short-term Investments, if
any, at the time pledged to the Agent as Collateral pursuant to a
Pledge Agreement, plus (c) the J.V. Advance Value then in effect
(subject to the limitation provided below in the definition of such
term), plus (d) the current value determined in a manner agreed to by
the Majority Banks of Collateral accepted by the Majority Banks under
clause (vi) of 5.1; provided that if and so long as any Security
Document Event of Default shall have occurred and be continuing or if
any event described in 12.1(m) shall have occurred with respect to
any Security Document, then the Real Estate subject to such Security
Document or in the case of a Pledge Agreement the cash, Eligible
Short-term Investments or other property subject thereto shall not be
included for the purpose of calculating the Advance Value. To the
extent that any property referred to in the preceding sentence is
encumbered by any lien or encumbrance permitted under 8.2(ii)(B),
the amount of the Indebtedness secured by such lien or encumbrance
shall be deducted from the value determined in accordance with the
preceding sentence.
3.2. The definition of "Banks" in Section 1.1 of the Credit
Agreement is amended in its entirety to read as follows:
Banks. FNBB, Mellon Bank, N.A. and other lending
institutions listed on Schedule 1 hereto and any other Person who
becomes an assignee of any rights of a Bank pursuant to 18.
3.3. The definition of Business Day in Section 1.1 of the Credit
Agreement is amended in its entirety to read as follows:
Business Day. Any day on which banking institutions in both
Boston, Massachusetts and Philadelphia, Pennsylvania are open for the
transaction of banking business and, in the case of Eurodollar Rate
Loans, which also is a Eurodollar Business Day.
3.4. The definition of "Commitment" in Section 1.1 of the Credit
Agreement is amended to read in its entirety as follows:
Commitment. With respect to each Bank, the amount set forth on
Schedule 1 hereto as the amount of such Bank's Commitment to make or
maintain Loans and to participate in Letters of Credit to the
Borrower, as the same may be reduced from time to time.
3.5. Section 1.1 of the Credit Agreement is amended by adding
thereto, in correct alphabetical order, a definition of the term "Joint
Ventures", reading in its entirety as follows:
Joint Ventures. Both of (i) real estate investment activities
pursuant to that certain Brookwood Village Joint Venture Amended and
Restated Joint Venture Agreement dated as of June 25, 1991 as amended
by First Amendment to Brookwood Village Amended and Restated Joint
Venture Agreement dated as of June 1, 1996, as from time to time in
effect between ▇▇▇▇▇ Cash Plus-II Limited Partnership and its
successors and assigns and BRI Texas Apartments Limited Partnership
(the "Brookwood Village Joint Venture") and (ii) real estate
investment activities pursuant to that certain Spring Valley
Partnership Amended and Restated Partnership Agreement dated as of
June 25, 1991, as from time to time in effect between the REIT and
▇▇▇▇▇ Cash Plus-V Limited Partnership ("KCP-V") and its successors
and assigns as amended by Assignment and First Amendment to Spring
Valley Partnership Amended and Restated Partnership Agreement dated
as of May 1, 1995 by and among the REIT, KCP-V, and BRI OP and as
amended by Assignment and Second Amendment to Spring Valley
Partnership Amended and Restated Partnership Agreement dated as of
May 3, 1996 by and among the REIT, KCP-V and BRI OP (the "Spring
Valley Partnership").
3.6. Section 1.1 of the Credit Agreement is amended by adding
thereto, in correct alphabetical order, a definition of the term "J.V.
Advance Value", reading in its entirety as follows:
J.V. Advance Value. An amount equal to 40% of the value of the
Joint Venture Collateral, as determined from time to time by the
Banks; provided, however, that the borrowing base availability
derived from the Joint Venture Collateral at no time shall exceed 37%
of the entire Advance Value then in effect. The determination of the
value of the Joint Venture Collateral shall be made on the basis of
MAI appraisals pursuant to Section 5.2(a) of the Credit Agreement as
amended.
3.7. Section 1.1 of the Credit Agreement is amended by adding
thereto, in correct alphabetical order, a definition of the term "Joint
Venture Collateral", reading in its entirety as follows:
Joint Venture Collateral. All right, title and interest to and
in the Joint Ventures pledged to the Agent for the benefit of the
Banks pursuant to the Joint Venture Pledge Agreement.
3.8. Section 1.1 of the Credit Agreement is amended by adding
thereto, in correct alphabetical order, a definition of the term "Joint
Venture Pledge Agreement", reading in its entirety as follows:
Joint Venture Pledge Agreement. The Pledge Agreement dated as
of June 26, 1996, as from time to time in effect, among the Borrower,
the REIT, BRI Texas Apartments Limited Partnership, BRI Texas
Apartments-II, Inc. and the Agent.
3.9. Section 1.1 of the Credit Agreement is amended by adding
thereto, in correct alphabetical order, a definition of the term "Joint
Venture Portion", reading in its entirety as follows:
Joint Venture Portion. On any date an amount equal to (a) the
sum of the total principal amount of Loans outstanding under the
Credit Agreement plus the Letter of Credit Exposure, minus (b) the
Advance Value of the Collateral excluding the J.V. Advance Value. To
the extent such calculation yields a negative number, the amount of
the Joint Venture Portion shall be deemed to be zero.
3.10. Section 1.1 of the Credit Agreement is amended by adding
thereto, in correct alphabetical order, a definition of the term "Letter of
Credit Exposure", reading in its entirety as follows:
Letter of Credit Exposure. On any date, the sum of (a) the
aggregate face amount of all drafts that may then or thereafter be
presented by beneficiaries under all Letters of Credit then
outstanding, plus (b) the aggregate face amount of all drafts that
the Agent has previously accepted under Letters of Credit but has not
paid. Letter of Credit Exposure shall be allocated to each Bank in
accordance with its Commitment Percentage.
3.11. The definition of "Loan Documents" in Section 1.1 of the
Credit Agreement is amended in its entirety to read as follows:
Loan Documents. This Agreement, the Notes, the Security
Documents, the Letters of Credit, each Qualified Hedge Agreement and
all amendments to the foregoing and other documents, instruments or
agreements executed or delivered by or on behalf of the Borrower or
any Nominee in connection with the Loans.
3.12. The definition of "Majority Banks" in Section 1.1 of the
Credit Agreement is amended to read in its entirety as follows:
Majority Banks. Both FNBB and Mellon Bank, N.A.
3.13. The definition of "Major Tenants" in Section 1.1 of the Credit
Agreement is amended in its entirety to read as follows:
Major Tenants. (a) All tenants from time to time that
occupy more than 30,000 square feet of Gross Rentable Area of any
Mortgaged Property or any Real Estate owned by a Joint Venture or 15
percent (15%) or more of the Total Gross Rentable Area of the
Building or parcel of Real Estate included in any Mortgaged Property
or owned by a Joint Venture or generate 15 percent (15%) or more of
the gross revenues of the Building or parcel of Real Estate included
in any Mortgaged Property or owned by a Joint Venture, (b) each of
▇▇▇▇-▇▇▇▇▇▇▇ Company, Kmart Corporation, The Kroger Co. and ▇▇▇▇▇▇▇▇
Incorporated d/b/a IGA Food Store, whether or not included in (a)
above, and (c) such additional tenants as the Majority Banks shall
reasonably designate as material to the financial condition of any
Mortgaged Property or any item of Joint Venture Collateral.
3.14. The definition of "Mortgaged Property Cash Flow" in Section
1.1 of the Credit Agreement is amended to become a definition of "Mortgaged
Property and Joint Venture Cash Flow", reading in its entirety as follows:
Mortgaged Property and Joint Venture Cash Flow. (A)
With respect to each item of Mortgaged Property for any fiscal
period, an amount equal to the difference of (a) the Net Operating
Income attributable to such item of Mortgaged Property minus (b) an
amount equal to the greater of (i) all recurring capital expenditures
capitalized in accordance with generally accepted accounting
principles with respect to such item of Mortgaged Property incurred
during such period and (ii) an allowance for capital expenditure
requirements computed at the annual rate of $200 per unit for
multifamily housing projects and $0.25 per rentable square foot for
retail commercial projects, and (B) with respect to each Joint
Venture for any fiscal period, an amount equal to the product of (i)
the combined cash flow of the Real Estate owned by each Joint Venture
(determined as provided in clause (A) above but subject to such
additional reserves as the Banks may require) multiplied by (ii) the
percentage interest of the Obligors in such Joint Venture.
3.15. The definition of "NationsBank" in Section 1.1 of the Credit
Agreement is deleted in its entirety and all references in the Loan
Documents to NationsBank shall be deemed to refer to Mellon Bank, N.A.
3.16. The definition of "Obligations" in Section 1.1 of the Credit
Agreement is amended in its entirety to read as follows:
Obligations. All indebtedness, obligations and liabilities of
the Borrower and its Subsidiaries to any of the Banks and the Agent,
individually or collectively, under this Agreement or any of the
other Loan Documents or in respect of any of the Loans or the Notes
or the Letters of Credit, or other instruments at any time evidencing
any of the foregoing, whether existing on the date of this Agreement
or arising or incurred hereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of
law or otherwise.
3.17. The definition of "Pro Forma Debt Service Charges" in Section
1.1 of the Credit Agreement is amended to read in its entirety as follows:
Pro Forma Debt Service Charges. On any date an amount equal to
the average annual debt service on an amount equal to the sum of (x)
the principal amount of the Loans outstanding hereunder, excluding
the Joint Venture Portion, if any, plus (y) if the Joint Venture
Portion is greater than zero, an additional amount equal to 150% of
the Joint Venture Portion, where it is assumed (a) that interest and
principal will be payable in equal monthly installments over a period
of 25 years and (b) that the rate of interest shall be a fixed rate
of interest (calculated on the basis of a year of twelve 30-day
months) equal to the greater of (i) the highest rate of interest then
in effect with respect to the Loans and (ii) the sum of (A) the
current yield on United States Treasury securities maturing on the
date that is closest to the seventh anniversary of such date plus (B)
two percent (2%).
3.18. The definition of "Security Documents" in Section 1.1 of the
Credit Agreement is amended to read in its entirety as follows:
Security Documents. The Security Deeds, the Assignments of
Rents and Leases, the Assignments of Permits, Licenses and
Agreements, the Subordination, Attornment and Non-Disturbance
Agreements, the Joint Venture Pledge Agreement, each Pledge Agreement
and the Swap Assignment, including, without limitation, UCC-1
financing statements executed and delivered in connection therewith.
3.19. The heading "The Revolving Credit Facility" in Section 2 is
hereby amended to read in its entirety as follows:
2. "The Revolving Credit Facility and Letter of Credit
Facility"
3.20. Section 2.1 of the Credit Agreement "Commitment to Lend" is
amended to read in its entirety as follows:
2.1. Commitment to Lend. Subject to the terms and
conditions set forth in this Agreement, each of the Banks severally
agrees to lend to the Borrower, and the Borrower may borrow (and
repay and reborrow) from time to time between the Closing Date and
the Revolving Credit Maturity Date upon notice by the Borrower to the
Agent given in accordance with 2.6, such sums as are requested by
the Borrower for the purposes set forth in 7.11 up to a maximum
aggregate principal amount outstanding (after giving effect to all
amounts requested) at any one time equal to such Bank's Commitment
minus the portion of such Bank's Commitment allocated to Letter of
Credit Exposure; provided, that, in all events no Default or Event of
Default shall have occurred and be continuing and the Borrower's pro
forma financial statements as required pursuant to 2.6(iii) shall
demonstrate compliance with all covenants set forth therein; and
provided, further, that the sum of outstanding principal amount of
the Revolving Loans (after giving effect to all amounts requested)
plus Letter of Credit Exposure shall not at any time exceed either
(i) the Total Commitment or (ii) the Advance Value then in effect.
The Revolving Loans shall be made pro rata in accordance with each
Bank's Commitment Percentage. Each request for a Revolving Loan
hereunder shall constitute a representation and warranty by the
Borrower that all of the conditions set forth in 10 and 11, in the
case of the initial Revolving Loan, and 11, in the case of all other
Revolving Loans, have been satisfied on the date of such request.
3.21. Section 2.2 of the Credit Agreement "Facility Fee" is amended
to read in its entirety as follows:
2.2. Facility Fee. The Borrower agrees to pay to the Agent
for the accounts of the Banks in accordance with their respective
Commitment Percentages a facility fee calculated at the rate of the
Applicable Percentage per annum on the average daily amount by which
the Total Commitment exceeds the sum of the outstanding principal
amount of Revolving Loans plus the Letter of Credit Exposure during
each calendar quarter or portion thereof commencing on the date
hereof and ending on the Revolving Credit Maturity Date. For each
such calendar quarter or portion thereof, the term "Applicable
Percentage" shall mean (i) if the average daily amount by which the
Total Commitment exceeded such sum during such period was greater
than 50% of the average Total Commitment during such period, one-
quarter of one percent (1/4%) and (ii) otherwise, one-eighth of one
percent (1/8%). The facility fee shall be payable quarterly in
arrears on the first day of each calendar quarter for the immediately
preceding calendar quarter or portion thereof, with a final payment
on the Revolving Credit Maturity Date or, as provided in 2.3, any
earlier date on which the Commitments shall be reduced or shall
terminate.
3.22. Section 2.3 of the Credit Agreement is further amended by
adding at the end of the first sentence thereof the following proviso:
provided, that no such reduction may reduce the Total Commitment to
an amount that is less than the sum of the principal amount of
Revolving Loans outstanding plus the Letter of Credit Exposure in
effect immediately after giving effect to such reduction.
3.23. Section 2.6 of the Credit Agreement "Requests for Revolving
Loans" is amended to read in its entirety as follows:
2.6. Requests for Revolving Loans. The Borrower shall notify
the Banks of a potential request for a Revolving Loan as soon as
possible but not less than three Business Days prior to the
Borrower's proposed Drawdown Date and shall give to the Banks written
notice in the form of Exhibit D hereto (or telephonic notice
confirmed in writing in the form of Exhibit D hereto) of each
Revolving Loan requested hereunder (a "Loan Request") no less than
three Business Days prior to the proposed Drawdown Date. Each such
notice shall specify with respect to the requested Revolving Loan the
proposed principal amount, Drawdown Date, Interest Period and Type.
Each such notice shall also contain (i) a calculation showing that
after giving effect to such advance the sum of the principal amount
of Revolving Loans to be outstanding plus the Letter of Credit
Exposure shall not exceed either the Total Commitment or the Advance
Value then in effect, (ii) a certification by the chief financial or
chief accounting officer of the REIT that the REIT and the Borrower
are and will be in compliance with all covenants under the Loan
Documents (except for any Security Document Event of Default
specified in such certification) after giving effect to the making of
such Revolving Loan, and (iii) a Compliance Certificate prepared on a
pro forma basis using the financial statements of the Borrower most
recently provided or required to be provided to the Banks under 6.4
or 7.4 adjusted in the best good faith estimate of the Borrower to
give effect to the proposed advance. Promptly upon receipt of any
such notice, the Agent shall notify each of the Banks thereof. Each
such notice shall be irrevocable and binding on the REIT and the
Borrower and shall obligate the Borrower to accept the Revolving Loan
requested from the Banks on the proposed Drawdown Date. Each Loan
Request shall be (a) for a Base Rate Revolving Loan in a minimum
aggregate amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof, or (b) for a Eurodollar Rate Revolving Loan in a
minimum aggregate amount of $2,000,000 or an integral multiple of
$100,000 in excess thereof; provided, however, that there shall be no
more than five Eurodollar Rate Revolving Loans outstanding at any one
time.
3.24. Section 2 of the Credit Agreement is further amended by adding
thereto the following paragraphs:
2.8. Issuance of Letters of Credit. Subject to all the terms
and conditions of this Agreement and so long as no Default exists, on
and after the effective date of Amendment No. 3 to this Agreement,
the Agent on behalf of the Banks will issue for the account of the
Borrower irrevocable standby letters of credit (the "Letters of
Credit") provided, however, that no more than three Letters of Credit
may be outstanding at any one time, that the Letter of Credit
Exposure in effect at any time shall never exceed $4,000,000 and that
at no time shall the sum of the Letter of Credit Exposure plus the
aggregate outstanding principal amount of Revolving Loans exceed the
lesser of the Total Commitment or the Advance Value.
2.9 Requests for Letters of Credit. The Borrower may from
time to time request a Letter of Credit to be issued by providing to
the Agent a notice which is actually received no less than five
Business Days prior to the requested closing date for such Letter of
Credit specifying (a) the amount of the requested Letter of Credit,
(b) the beneficiary thereof, (c) the requested closing date and (d)
the principal terms of the text for such Letter of Credit. Each
Letter of Credit will be issued by forwarding it to the Borrower or
to such other Person as directed in writing by the Borrower. In
connection with the issuance of any Letter of Credit, the Borrower
shall furnish to the Agent a certificate in substantially the form of
Exhibit D, the Compliance Certificate required by 11.5(b) and any
customary application forms required by the Agent.
2.10. Form and Expiration of Letters of Credit. Each Letter
of Credit to be issued under this Section 2 and each draft accepted
or paid under such Letters of Credit shall be issued, accepted or
paid, as the case may be, by the Agent at its principal office. No
Letter of Credit shall provide for the payment of drafts drawn
thereunder, and no draft shall be payable, at a date which is later
than the earlier of (a) the date twelve months after the date of
issuance or (b) the Revolving Credit Maturity Date. Each Letter of
Credit and each draft accepted under a Letter of Credit shall be in
such form and minimum amount, and shall contain such terms, as the
Agent and the Borrower may agree upon at the time such Letter of
Credit is issued, including a requirement of not less than three
Banking Days after presentation of a draft before payment must be
made thereunder.
2.11. Banks' Participation in Letters of Credit. Upon the
issuance of each Letter of Credit, a participation therein, in an
amount equal to each Bank's Commitment Percentage, shall
automatically be deemed granted by the Agent to each Bank on the date
of such issuance and each Bank shall automatically be obligated, to
reimburse the Agent to the extent of its Commitment Percentage for
all obligations incurred by the Agent to third parties in respect of
such Letters of Credit not reimbursed by the Borrower. The Agent
will send to each Bank on a monthly basis a confirmation regarding
the participation in Letters of Credit outstanding during such month.
2.12. Presentation. The Agent may accept or pay any draft
presented to it, regardless of when drawn and whether or not
negotiated, if such draft, the other required documents and any
transmittal advice are presented to the Agent and dated on or before
the expiration date of the Letter of Credit under which such draft is
drawn. Except insofar as instructions actually received may be given
by the Borrower in writing expressly to the contrary with regard to,
and prior to, the Agent's issuance of any Letter of Credit for the
account of the Borrower and such contrary instructions are reflected
in such Letter of Credit, the Agent may honor as complying with the
terms of the Letter of Credit and with this Agreement any drafts or
other documents otherwise in order signed or issued by an
administrator, executor, conservator, trustee in bankruptcy, debtor
in possession, assignee for benefit of creditors, liquidator,
receiver or other legal representative of the party authorized under
such Letter of Credit to draw or issue such drafts or other
documents.
2.13. Payment of Drafts. At such time as the Agent makes any
payment on a draft presented or accepted under a Letter of Credit,
the Borrower will on demand pay to the Agent for the benefit of the
Banks in immediately available funds the amount of such payment.
Unless the Borrower shall otherwise pay to the Agent the amount
required by the foregoing sentence, such amount shall be considered a
Revolving Loan.
2.14. Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, and any subsequent revisions
thereof approved by a Congress of the International Chamber of
Commerce and adhered to by the Agent (the "Uniform Customs and
Practice"), shall be binding on the Borrower and the Agent except to
the extent otherwise provided herein, in any Letter of Credit or in
any other Loan Document. Anything in the Uniform Customs and
Practice to the contrary notwithstanding:
(a) Neither the Borrower nor any beneficiary of any Letter
of Credit shall be deemed an agent of the Agent.
(b) With respect to any Letter of Credit, neither the Agent
nor its correspondents shall be responsible for or shall have
any duty to ascertain:
(i) the genuineness of any signature;
(ii) the validity, form, sufficiency, accuracy,
genuineness or legal effect of any endorsements;
(iii) delay in giving, or failure to give, notice of
arrival, notice of refusal of documents or of discrepancies
in respect of which the Agent refuses the documents or any
other notice, demand or protest;
(iv) the performance by any beneficiary under any Letter
of Credit of such beneficiary's obligations to the Borrower;
(v) inaccuracy in any notice received by the Agent;
(vi) the validity, form, sufficiency, accuracy,
genuineness or legal effect of any instrument, draft,
certificate or other document required by such Letter of
Credit to be presented before payment of a draft, or the
office held by or the authority of any Person signing any of
the same; or
(vii) failure of any instrument to bear any reference or
adequate reference to such Letter of Credit, or failure of
any Person to note the amount of any instrument on the
reverse of such Letters of Credit or to surrender such
Letter of Credit or to forward documents in the manner
required by such Letter of Credit.
(c) The occurrence of any of the events referred to in the
Uniform Customs and Practice or in the preceding clauses of
this Section 2.14 shall not affect or prevent the vesting of
any of the Agent's rights or powers hereunder or the Borrower's
obligation to make reimbursement of amounts paid under any
Letter of Credit or any draft accepted thereunder so long as
the Agent has acted without gross negligence or willful
misconduct.
(d) The Borrower will promptly examine (i) each Letter of
Credit (and any amendments thereof) sent to it by the Agent and
(ii) all instruments and documents delivered to it from time to
time by the Agent. The Borrower will notify the Agent of any
claim of noncompliance by notice actually received within three
Business Days after receipt of any of the foregoing documents,
the Borrower being conclusively deemed to have waived any such
claim against the Agent and its correspondents unless such
notice is given. The Agent shall have no obligation or
responsibility to send any such Letter of Credit or any such
instrument or document to the Borrower.
(e) In the event of any conflict between the provisions of
this Agreement and the Uniform Customs and Practice, the
provisions of this Agreement shall govern.
2.15. Subrogation. Upon any payment by the Agent under any
Letter of Credit and until the reimbursement of the Agent by the
Borrower with respect to such payment, the Agent shall be entitled to
be subrogated to, and to acquire and retain, the rights which the
Person to whom such payment is made may have against the Borrower,
all for the benefit of the Banks. The Borrower will take such action
as the Agent may reasonably request, including requiring the
beneficiary of any Letter of Credit to execute such documents as the
Agent may reasonably request, to assure and confirm to the Agent such
subrogation and such rights, including the rights, if any, of the
beneficiary to whom such payment is made in accounts receivable,
inventory and other properties and assets of any Obligor.
2.16. Modification, Consent, etc. If the Borrower requests or
consents in writing to any modification or extension of any Letter of
Credit, or waives any failure of any draft, certificate or other
document to comply with the terms of such Letter of Credit, and if
the Agent consents thereto, the Agent shall be entitled to rely on
such request, consent or waiver. This Agreement shall be binding
upon the Borrower with respect to such Letter of Credit as so
modified or extended, and with respect to any action taken or omitted
by the Agent pursuant to any such request, consent or waiver.
2.17. Letter of Credit Fees. The Borrower will pay to the
Agent customary service charges and expenses for its services in
connection with the Letters of Credit at the times and in the amounts
from time to time in effect in accordance with its general rate
structure, including fees and expenses relating to issuance,
amendment, negotiation, cancellation and similar operations. The
Borrower will also pay to the Agent for the benefit of the Banks a
fee equal to 175 basis points per annum payable quarterly in arrears
on the Letter of Credit Exposure, which fee shall be allocated among
the Banks in accordance with their Commitment Percentage.
3.25. Section 2.5 of the Credit Agreement is amended by adding
thereto the following new subparagraph (e) reading as follows:
(e) To the extent that the Joint Venture Portion on any date
or for any period shall exceed zero, the rate of interest on such
date or during such period on each Eurodollar Rate Loan attributable
to the Joint Venture Portion shall be 200 basis points over the
Eurodollar Rate and the rate of interest on each Base Rate Revolving
Loan attributable to the Joint Venture Portion shall be 25 basis
points over the Base Rate. For the purpose of this subparagraph (e),
the Joint Venture Portion will be attributed first to any Eurodollar
Rate Loans then outstanding in the order in which they were advanced,
and then to the Base Rate Revolving Loans.
3.26. Section 3.2 of the Credit Agreement is amended to read in its
entirety as follows:
3.2. Mandatory Prepayments. The Borrower promises to pay
principal of the Loans prior to stated maturity, as follows:
(a) If at any time the sum of the aggregate outstanding
principal amount of the Revolving Loans plus the Letter of Credit
Exposure exceeds either the Total Commitment or the Advance Value
then in effect, then the Borrower shall immediately pay the amount of
such excess to the Agent for the respective accounts of the Banks for
application to the Revolving Loans.
(b) Upon any sale or refinancing by Non-recourse Indebtedness
of any Mortgaged Property as permitted hereunder, the Borrower shall
immediately pay to the Agent for the respective accounts of the Banks
for application to the Revolving Loans the amount required to bring
the Loans into compliance with all covenants under the Loan
Documents, unless substitute Collateral shall have been provided to
the Agent in a form and amount satisfactory to the Majority Banks as
provided in 5.3.
3.27. Section 4.1(a) of the Credit Agreement is amended by adding at
the end thereof a new sentence reading in its entirety as follows:
The Agent shall notify the Banks promptly following its receipt of
such Conversion Request.
3.28. Section 4.5(a) of the Credit Agreement is amended to read in
its entirety as follows:
(a) All payments of principal, interest, Letter of
Credit reimbursement payments, facility fees, Agent's fees, closing
fees and any other amounts due hereunder or under any of the other
Loan Documents shall be made to the Agent, for the respective
accounts of the Banks and the Agent, as the case may be, at the
Agent's Head Office, in each case in immediately available funds.
The Agent is hereby authorized to charge the account of the Borrower
with FNBB, on the dates when the amount thereof shall become due and
payable, with the amounts of the principal of and interest on the
Loans, Letter of Credit reimbursement payments, and all fees,
charges, expenses and other amounts owing to the Agent and/or the
Banks under the Loan Documents.
3.29. Section 4.11 of the Credit Agreement is amended to read in its
entirety as follows:
4.11. Capital Adequacy. If any present or future law,
governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) or the interpretation
thereof by a court or governmental authority with appropriate
jurisdiction affects the amount of capital required or expected to be
maintained by any Bank or any corporation controlling such Bank and
such Bank reasonably determines that the amount of capital so
required or expected to be maintained is increased by or based upon
the existence of Loans or Letters of Credit made or deemed to be made
or committed to be made under this Agreement, then such Bank may
notify the Borrower of such fact, and the Borrower shall pay to such
Bank or the Agent from time to time on demand, as an additional fee
payable hereunder, such amount as such Bank shall determine in good
faith and certify in a notice to the Borrower in reasonable detail to
be an amount that will adequately compensate such Bank in light of
these circumstances for its increased costs of maintaining such
capital. Each Bank shall allocate such cost increases among its
customers in good faith and on an equitable basis.
3.30. Section 4.13 of the Credit Agreement is amended to read in its
entirety as follows:
4.13. Interest on Overdue Amounts; Late Charge. Overdue
principal, Letter of Credit reimbursement payments and (to the extent
permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest payable on demand at a rate per annum
equal to four and three-quarters percent (4 3/4%) above the Base Rate
until such amount shall be paid in full (after as well as before
judgment). In addition, the Borrower shall pay a Late Charge equal
to three percent (3%) of any amount of interest, Letter of Credit
reimbursement payments and/or principal payable on the Loans which is
not paid within ten days of the date when due.
3.31. Section 5.1 of the Credit Agreement is amended in its entirety
to read as follows:
5.1. Collateral. The Obligations shall be secured by (i)
a perfected first priority lien or security title to be held by the
Agent for the benefit of the Banks (subject only to Permitted Liens)
in the Mortgaged Property of the Borrower, pursuant to the terms of
the Security Deeds and in the Joint Venture Collateral, pursuant to
the Joint Venture Pledge Agreement, (ii) a perfected first priority
security interest to be held by the Agent for the benefit of the
Banks in the Leases pursuant to the Assignments of Rents and Leases,
(iii) a first lien collateral assignment of all licenses, permits,
contracts and agreements for the Mortgaged Properties, to be held by
the Agent for the benefit of the Banks pursuant to the Assignments of
Permits, Licenses and Agreements, (iv) a perfected first priority
lien to be held by the Agent for the benefit of the Banks in cash and
Eligible Short-term Investments of the Borrower from time to time
pledged to the Agent pursuant to one or more Pledge Agreements, (v)
perfected first priority liens in the rights of the Borrower under
interest rate protection arrangements provided under 8.10 and
10.6 and (vi) such additional collateral, if any, as the Agent for
the benefit of the Banks from time to time may accept as security for
the Obligations with the consent of the Majority Banks, which consent
may be given or withheld in the good faith judgment of the Majority
Banks. The Agent and the Majority Banks shall be entitled to charge
modification fees, in amounts satisfactory to the Agent and the
Majority Banks to be agreed between the Borrower, the Agent and the
Majority Banks, in connection with the taking or releasing of any
Collateral pursuant to this 5.1 or any other provision of the Loan
Documents.
3.32. Section 5.2 of the Credit Agreement is amended in its entirety
to read as follows:
5.2. MAI Appraisals.
(a) The Agent shall require biennial MAI Appraisals of
each of the Mortgaged Properties and the Joint Venture Collateral,
which will be ordered, reviewed and approved by the appraisal
departments of the Majority Banks, in order to determine the current
Appraised Value of the Mortgaged Property and the Joint Venture
Collateral, and the Borrower shall pay to the Agent on demand all
reasonable costs of all such MAI Appraisals; provided, however, that
so long as no Default or Event of Default shall have occurred and be
continuing and regulatory requirements or internal policies of any
Bank generally applicable to real estate loans of the category made
under this Agreement shall not require more frequent MAI Appraisals,
the Borrower shall not be required to pay for an MAI Appraisal of
either any particular item of Mortgaged Property or any particular
item of Joint Venture Collateral more often than once in any 24-month
period. The MAI Appraisals of the Joint Venture Collateral shall be
made on the basis of MAI appraisals of the underlying Real Estate
owned by the Joint Ventures. Such MAI appraisals shall be adjusted
as the Banks shall determine. Each of the Banks represents that as
of the date of this Amendment No. 3 its internal policies, as applied
to the credit advanced under this Agreement and the Collateral
provided therefor, do not require MAI Appraisals either of the
Mortgaged Properties or the Joint Venture Collateral more frequently
than every 24 months.
(b) Notwithstanding the provisions of 5.2(a), in the
event that any Major Tenant shall take any action described in
12.1(i) or become the subject of any event described in 12.1(j) or
12.1(k) (reading 12.1(i), (j), and (k) as referring to such Major
Tenant in place of the Borrower), then at the request of any Bank an
MAI Appraisal of each item of Mortgaged Property and Joint Venture
Collateral in which such Major Tenant is a tenant shall be
commissioned by the Agent at the expense of the Borrower. If so
requested by the Borrower, the Agent also shall commission MAI
Appraisals of any or all of the remaining items of Mortgaged Property
and Joint Venture Collateral, in each case at the expense of the
Borrower.
3.33. Section 5.3 of the Credit Agreement is amended in its entirety
to read as follows:
5.3. Majority Bank Appraisals.
(a) Notwithstanding the provisions of 5.2, the Majority
Banks may perform Majority Bank Appraisals or internal studies
updating and revising prior Appraisals (i) annually with respect to
the Mortgaged Property and the Joint Venture Collateral or such
portion thereof as the Majority Banks shall determine, for the
purpose of determining the current Appraised Value of the Mortgaged
Property and the Joint Venture Collateral, and (ii) at the option of
the Majority Banks more frequently than annually in connection with
any request for a release of Collateral under 5.4 or 5.5. Majority
Bank Appraisals or updates performed under clause (ii) of the
preceding sentence shall be for the purpose of determining whether
the proposed release satisfies the conditions set forth in 5.4 or
5.5, as the case may be, and shall be limited to those Mortgaged
Properties and the Joint Venture Collateral with respect to which
there shall have occurred or arisen since the most recent prior
Appraisal any event or condition which, in the reasonable judgment of
the Majority Banks, constitutes a material adverse change with
respect to such Mortgaged Property and such Joint Venture Collateral
or presents a reasonable likelihood that such a change shall occur in
the future. The expense of Majority Bank Appraisals and updates
performed pursuant to clause (i) and clause (ii) of this 5.3(a)
shall be borne by the Borrower as provided in 15.
(b) In the event that the Agent shall advise the Borrower,
on the basis of any Majority Bank Appraisal or update pursuant to
5.3(a)(ii), that a proposed release of Collateral under 5.4 or 5.5
does not satisfy the conditions set forth in 5.4 or 5.5, as the
case may be, then the Agent shall not be required to permit such
release.
(c) The provisions of 5.3(b) are subject, however, to
the right of the Borrower to contest such Majority Bank Appraisals or
updates, as provided in this 5.3(c). In the event that the Borrower
shall have been advised that such Majority Bank Appraisals or updates
shall have reduced the Advance Value, then (i) at the request of the
Borrower the Majority Banks shall identify those items of the
Mortgaged Property and the Joint Venture Collateral for which the
Appraised Value shall have been reduced from the prior Appraisals,
and (ii) if it disagrees with such conclusion, the Borrower may,
within ten days after receipt of such advice, by notice in writing
specifying the basis for such disagreement request that the Majority
Bank Appraisals or updates or any of them be reviewed. In this event
at the Borrower's expense the Majority Bank Appraisals or updates or
such of them as the Borrower may specify shall be submitted to the
independent appraisers who prepared the MAI Appraisals most recently
completed with respect to the Mortgaged Property and the Joint
Venture Collateral subject to such Majority Bank Appraisals or
updates or, if any such appraiser is not available to respond to such
submission on a timely basis, to another firm of MAI appraisers
selected by the Majority Banks. In the event that any such
independent appraiser shall advise the Majority Banks within 30 days
following such submission that a Majority Bank Appraisal or update
submitted to such independent appraiser is unreasonable in any of its
assumptions or methodology, then such Majority Bank Appraisal or
update shall be adjusted by the Majority Banks to change such
assumptions or methodology, as the case may be, to those which the
independent appraiser considers reasonable and the Advance Value
shall be adjusted accordingly. In the event that an independent
appraiser does not give such notice within such period with respect
to a Mortgaged Property or an item of Joint Venture Collateral, then
the applicable Majority Bank Appraisal or update shall remain in
effect.
(d) At the written request of the Borrower at any time (but
not more often than once in any period of six consecutive calendar
months) the Agent shall advise the Borrower of the current Appraised
Value of each of the Mortgaged Properties and each item of Joint
Venture Collateral.
3.34. Section 5.4 of the Credit Agreement is amended in its entirety
to read as follows:
5.4. Release of Real Estate Collateral. So long as no
Default or Event of Default has occurred and is continuing (or would
exist immediately after giving effect to the transactions
contemplated by this 5.4), then promptly following receipt by the
Agent of the Borrower's written request for a release of any of the
Mortgaged Property or any of the Joint Venture Collateral accompanied
by a Compliance Certificate prepared on a pro forma basis using the
financial statements of the Borrower most recently provided or
required to be provided under 6.4 or 7.4 adjusted in the best good-
faith estimate of the Borrower to give effect to such release and
demonstrating that no Default or Event of Default with respect to the
covenants referred to therein shall exist after giving effect to such
release, the Agent shall release the lien securing the Obligations on
the Joint Venture Collateral or any Eligible Real Estate included in
the Mortgaged Property that, in either case, is sold or made subject
to Non-recourse Indebtedness by the Borrower, but only if and to the
extent that such lien is no longer required hereunder because of (i)
a reduction at the request of the Borrower of the Total Commitment,
(ii) the delivery by the Borrower to the Agent of replacement
Mortgaged Property, cash, Eligible Short-term Investments or other
Collateral referred to in clause (vi) of 5.1 or (iii) the Advance
Value of the Collateral remaining after giving effect to such release
equals or exceeds the Total Commitment. The Agent shall give each of
the Banks prior notice of any release of Collateral under this 5.4.
Any release by the Agent hereunder shall be without recourse or
warranty of any kind.
3.35. Section 5 of the Credit Agreement is amended by adding thereto
a new 5.7 reading in its entirety as follows:
5.7. Additional Collateral. The Obligations shall also be
secured by a perfected first priority lien to be held by the Agent
for the benefit of the Banks pursuant to a pledge of all right, title
and interest of the Obligors to and in (but none of their respective
obligations with respect to) the Joint Venture Collateral.
3.36. Section 6.22(d) of the Credit Agreement is amended by adding
at the end thereof a new sentence reading in its entirety as follows:
An asbestos operation and maintenance program must be
instituted and maintained for all asbestos-containing materials
located in such Mortgaged Property to the extent required by
applicable law or by the Environmental Engineer.
3.37. Section 6.22(e) of the Credit Agreement is amended by adding
at the end thereof a new sentence reading in its entirety as follows:
Such Mortgaged Property is not in violation of the federal
Americans with Disabilities Act, and the Borrower or its
Nominee has made reasonable efforts to comply with such Act
with respect to such Mortgaged Property.
3.38. Section 7.1 of the Credit Agreement is amended to read in its
entirety as follows:
7.1. Punctual Payment. The Borrower will duly and punctually
pay or cause to be paid the principal and interest on the Loans,
Letter of Credit reimbursement payments and all interest and fees
provided for in this Agreement, all in accordance with the terms of
this Agreement and the Notes as well as all other sums owing pursuant
to the Loan Documents.
3.39. Section 7.4(g) of the Credit Agreement is amended by adding in
the fourth line immediately after the reference to "9" the words "and
evidencing the nonexistence of an Event of Default under 12.1(r)".
3.40. Section 7 of the Credit Agreement is amended by adding a new
Section 7.16 to read in its entirety as follows:
7.16. Title to Assets of Joint Ventures. The Borrower shall
provide on or before September 30, 1996 evidence satisfactory to the
Majority Banks that the underlying assets of the Joint Ventures are
not subject to any liens or encumbrances except for liens and
encumbrances expressly permitted by the Joint Venture Pledge
Agreement. The Borrower shall also provide a status report to the
Majority Banks on or before each of July 15, August 15 and September
15, 1996 describing its progress in arranging for the discharge and
release of matters described in Schedule 12.1(s) and other title
matters relating to the underlying assets of the Joint Ventures
reasonably objected to in writing by the Majority Banks. With
respect to any title matters raised by the Majority Banks, the
Majority Banks agree to reasonably consider any title clearing
arrangement (including bonding off of any lien) proposed by the
Borrower. Notwithstanding anything to the contrary in this
Agreement, failure by the Borrower to comply with the requirements of
this 7.16 shall cause the borrowing base availability derived from
the Joint Venture Collateral to be zero (0).
3.41. Section 8.1(m) of the Credit Agreement is amended to read in
its entirety as follows:
(m) only at such times as the Joint Venture Collateral is not
included in the Collateral, other Indebtedness for borrowed money
which does not exceed in aggregate principal amount outstanding at
any time the sum of $25,000,000; provided, that no Indebtedness
permitted under this subsection (m) which is secured by a single
parcel of Real Estate shall exceed in principal amount outstanding at
any time the sum of $15,000,000.
3.42. Section 9.5 of the Credit Agreement is amended to read in its
entirety as follows:
9.5 Mortgaged Property and Joint Venture Cash Flow. The
REIT and the Borrower will not permit (a) the combined Mortgage
Property and Joint Venture Cash Flow on all items of Mortgaged
Property and, if the Joint Venture Portion exceeds zero, all items of
Joint Venture Collateral included in the Collateral on the last day
of any fiscal quarter, computed for the period of four consecutive
fiscal quarters (treated as a single accounting period) ending on
such day, to be less than (b) 1.35 times the Pro Forma Debt Service
Charges as of such last day; provided, that if and so long as any
Security Document Event of Default shall have occurred and be
continuing or any event described in 12.1(m) shall have occurred
with respect to any Security Document, the Mortgaged Property and
Joint Venture Cash Flow of the item of Mortgaged Property or Joint
Venture Collateral, as the case may be, subject to such Security
Document shall not be included in clause (a) above for the purpose of
determining compliance with this 9.5; and provided, further, that in
the case of any item of Mortgaged Property or Joint Venture
Collateral, as the case may be, owned less than one year by the
Borrower, Mortgaged Property and Joint Venture Cash Flow shall be
measured after one fiscal quarter of ownership by multiplying the
Mortgaged Property and Joint Venture Cash Flow for that quarter times
four, after two fiscal quarters of ownership by multiplying the
Mortgaged Property and Joint Venture Cash Flow for the first and
second quarters times two, after three fiscal quarters of ownership
by multiplying the Mortgaged Property and Joint Venture Cash Flow for
the first three quarters times one and one-third and after four
fiscal quarters of ownership and thereafter as provided above.
3.43. The introductory paragraph to section 11 of the Credit
Agreement is amended in its entirety to read as follows:
The obligations of the Banks to make any Loan or to issue any
Letter of Credit, whether on or after the Closing Date, shall also be
subject to the satisfaction of the following conditions precedent:
3.44. Section 11.2 of the Credit Agreement is amended in its
entirety to read as follows:
11.2. No Legal Impediment. No change shall have occurred in
any law or regulations thereunder or interpretations thereof that in
the reasonable opinion of any Bank would make it illegal for such
Bank to make such Loan or to issue any Letter of Credit.
3.45. Section 11.5 of the Credit Agreement is amended to read in its
entirety as follows:
11.5. Borrowing Documents. In the case of any request for a
Revolving Loan or Letter of Credit, each of the Banks shall have
received each of the following:
(a) the request for a Revolving Loan required by 2.6 or, as
the case may be, a request for a Letter of Credit required by 2.9,
in the form of Exhibit D hereto, fully completed; and
(b) the pro forma Compliance Certificate required by clause
(iii) of 2.6 or by 2.9, as the case may be, prepared in a manner
reasonably acceptable to the Agent.
3.46. Section 11.7 of the Credit Agreement is amended to read in its
entirety as follows:
11.7. Future Advances Tax Payment. As a condition precedent
to any Bank's obligations to make any Loans or incur Letter of Credit
Exposure in excess of an aggregate amount of $50,000,000 (calculated
as the sum of all Loans and Letters of Credit advanced hereunder
without deduction for any repayments of such Loans or Letters of
Credit and regardless of whether such Loans are outstanding at the
time of reference hereto), the REIT and the Borrower will pay to the
Agent any mortgage, recording, intangible, documentary stamp or other
similar taxes and charges which the Agent reasonably determines to be
payable to the State of Georgia or the State of Florida or any county
or municipality thereof and deliver to the Agent such affidavits or
other information which the Agent reasonably determines to be
necessary in connection with the payment of such tax, in order to
insure that the Security Deeds on Mortgaged Property located in
Georgia or Florida, as the case may be, secure the Borrower's
obligation with respect to the Loans or Letters of Credit then being
requested by the Borrower. The provisions of this 11.7 shall be
without limitation of the obligations of the REIT and the Borrower
under other provisions of the Loan Documents, including without
limitation 15 hereof.
3.47. Paragraph (a) of Section 12.1 of the Credit Agreement is
amended to read in its entirety as follows:
(a) the Borrower shall fail to pay any principal of the Loans
or reimbursement of payments under Letters of Credit when the same
shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for
payment;
3.48. Section 12.1 of the Credit Agreement is further amended to add
new paragraphs (r) and (s) immediately after existing paragraph (q) to read
in their entirety as follows:
(r) the borrowing base availability derived from the Joint
Venture Collateral shall exceed 37% of the aggregate Advance Value;
(s) the Borrower shall fail to provide on or before September
30, 1996 evidence satisfactory to the Banks of the discharge, release
and termination of the liens and encumbrances listed in Schedule
12.1(s) attached hereto.
3.49. A portion of Section 12.1 following new paragraph (s) is
amended to read as follows:
then, and in any such event, so long as the same may be continuing,
the Agent may, and upon the request of the Majority Banks shall, by
notice in writing to the REIT and the Borrower declare all amounts
owing with respect to this Agreement, the Notes and the other Loan
Documents to be, and they shall thereupon forthwith become,
immediately due and payable and require the Borrower immediately to
deposit with the Agent in cash an amount equal to the then Letter of
Credit Exposure (which cash shall be held and applied to
reimbursement of Letter of Credit payments, in each case) without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Borrower; provided that in
the event of any Event of Default specified in 12(i), 12(j) or
12(k), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from any of the
Banks or the Agent.
3.50. Section 12.2 of the Credit Agreement is amended to read in its
entirety as follows:
12.2 Termination of Commitments. If any one or more Events
of Default specified in 12(i), 12(j) or 12(k) shall occur, then
immediately and without any action on the part of the Agent or any
Bank any unused portion of the credit hereunder shall terminate and
the Banks shall be relieved of all obligations to make Loans or issue
Letters of Credit to the Borrower. If any other Event of Default
shall have occurred and be continuing, any Bank may by notice to the
REIT and the Borrower terminate its obligations to make Loans or
issue Letters of Credit to the Borrower. No termination under this
12.2 shall relieve the REIT or the Borrower of any of the
Obligations or any of its existing obligations to such Bank arising
under other agreements or instruments.
3.51. Section 14.5 of the Credit Agreement is amended by amending
the first sentence thereof to read in its entirety as follows:
A payment in immediately available funds by the REIT or the
Borrower to the Agent hereunder or under any of the other Loan
Documents for the account of any Bank shall constitute a
payment to such Bank.
3.52. Section 14.9 of the Credit Agreement is amended by amending
the fourth sentence thereof to read in its entirety as follows:
If no successor Agent shall have been so appointed by the
Majority Banks and shall have accepted such appointment within
30 days after the retiring Agent's giving of notice of
resignation, then the Banks other than the Agent may appoint a
successor Agent, which shall be a bank whose debt obligations
are rated not less than "A" or its equivalent by ▇▇▇▇▇'▇
Investors Service, Inc. or not less than "A" or its equivalent
by Standard & Poor's Ratings Group and which has total assets
in excess of $10 billion.
3.53. Section 18.1 of the Credit Agreement is amended to read in its
entirety as follows:
18.1. Conditions to Assignment by Banks. Except as
provided herein, each Bank may assign to one or more Eligible
Assignees all or a portion of its interests, rights and obligations
under this Agreement (including all or a portion of its Commitment
Percentage and Commitment and the same portion of the Loans at the
time owing to it, and the Notes held by it and its share of Letter of
Credit Exposure); provided that (a) each of the Agent, the Majority
Banks, the REIT and the Borrower shall have given its prior written
consent to such assignment, which shall not unreasonably be withheld,
(b) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and obligations under
this Agreement, (c) each assignment shall be in an amount that is a
whole multiple of $1,000,000, (d) each Bank which is a Bank on the
date hereof shall retain, free of any such assignment, an amount of
its Commitment of not less than $15,000,000 and shall not make
assignments to more than one institution unaffiliated with such Bank
and (e) the parties to such assignment shall execute and deliver to
the Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of Exhibit F
hereto (an "Assignment and Acceptance"), together with any Notes
subject to such assignment. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (i) the
assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder, and (ii) the assigning Bank shall,
to the extent provided in such assignment and upon payment to the
Agent of the registration fee referred to in 18.3, be released from
its obligations under this Agreement.
3.54. Section 18.1A. of the Credit Agreement is amended to read in
its entirety as follows:
18.1A. Assignment Among Banks. Notwithstanding the
provisions of 18.1, in the event that the debt obligations of any
Bank shall be rated less than "Ba2" by ▇▇▇▇▇'▇ Investors Service,
Inc. or less than "BB" by Standard & Poor's Ratings Group, each other
Bank party hereto or any two or more of them acting together shall be
entitled on ten Business Days' prior written notice to the Agent, the
REIT, the Borrower and such Bank to purchase the interest of such
Bank hereunder, in whole and not in part, at a purchase price equal
to the outstanding principal amount of such Bank's Commitment
Percentage in the Loans advanced hereunder and its share of Letter of
Credit Exposure plus accrued and unpaid interest thereon to the
purchase date, together with any fees or other amounts that may be
owing to such Bank hereunder, including without limitation additional
interest with respect to such Bank's Commitment Percentage in any
Eurodollar Rate Loan calculated as provided in 4.9. Such transfer
shall be effected by the execution and delivery of an Assignment and
Acceptance.
3.55. Amendment of Schedule 1. The Credit Agreement is amended by
amending Schedule 1 thereto to read in its entirety in the form of Schedule
1 attached to this Amendment.
3.56. Amendment of Schedule 2. The Credit Agreement is amended by
amending Schedule 2 thereto to read in its entirety in the form of Schedule
2 attached to this Amendment.
3.57. Amendment of Schedule 6.22. The Credit Agreement is amended
by amending Schedule 6.22 thereto to read in its entirety in the form of
Schedule 6.22 attached to this Amendment.
3.58. Amendment of Exhibit D. The Credit Agreement is amended by
amending Exhibit D thereto to read in its entirety in the form of Exhibit D
attached to this Amendment.
3.59. Amendment of Exhibit E. The Credit Agreement is amended by
amending Exhibit E thereto to read in its entirety in the form of Exhibit E
attached to this Amendment.
3.60. Addition of New Schedule 12.1(s). The Credit Agreement is
amended by adding a new Schedule 12.1(s) to read in its entirety in the
form of Schedule 12.1(s) attached to this Amendment.
4. Conditions to Effectiveness of Amendment. Acceptance of the foregoing
amendments by the Agent on behalf of the Banks shall be subject, without
limitation, to the following conditions:
(a) All Real Estate owned by the Joint Ventures shall constitute
Eligible Real Estate, excluding compliance with subsection (a)
of the definition of "Eligible Real Estate" and compliance with
the requirements set forth in subsections (a), (b), (c), (d),
(e), (f), (g), (h), (i), (l), (n), (p), (r) of the definition
of "Eligible Real Estate Qualification Documents," provided
that the Majority Banks also shall receive satisfactory
evidence of title to such Real Estate.
(b) The Borrower shall have provided evidence that the underlying
assets of the Joint Ventures are not and will not be subject to
any liens or encumbrances except for liens and encumbrances
expressly permitted by the Joint Venture Pledge Agreement.
(c) The legal documentation of each Joint Venture shall be
satisfactory to the Banks and their counsel.
(d) The Agent shall have received a first prior perfected lien in
the Joint Venture Collateral in the form of a Joint Venture
Pledge Agreement attached hereto as Exhibit A, supported by
such legal documentation and opinions of legal counsel as shall
be satisfactory to the Banks and their counsel.
(e) The Joint Venture partners shall have consented to the pledges
by the Borrower of the Joint Venture Collateral. Such consents
will allow: (i) the assignment to the Agent for the benefit of
the Banks of the Joint Venture Collateral, (ii) the transfer of
full legal title in the Joint Venture Collateral to the Agent
for the benefit of the Banks upon election by the Agent after
the occurrence of an Event of Default, (iii) the Agent to
transfer the Joint Venture Collateral to a third party (subject
only to a right of first refusal on the part of the other joint
venturer) and (iv) the substitution of new management for the
Joint Ventures upon the occurrence of an Event of Default,
provided the new management is experienced, of good reputation
and comparable to the existing manager in terms of scope of
service and cost. The Banks shall receive a favorable legal
opinion of outside counsel as to the effectiveness of such
consents and the availability of remedies.
(f) The Indigo multifamily housing project shall have been removed
from the Collateral securing the Credit Agreement.
(g) New Revolving Credit Notes shall have been issued by the
Borrower to Mellon Bank, N.A. in the principal amount of
$25,000,000 and to FNBB in the principal amount of $25,000,000;
and the Agent shall promptly return to the Borrower for
cancellation the Revolving Credit Notes initially delivered.
(h) Each of the Banks shall have received the opinion of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, General Counsel to the Borrower, with respect to
this Amendment, the Joint Venture Pledge Agreement and other
documents required to be delivered in connection with this
Amendment, including without limitation, the consents referred
to in subparagraph (e) of this Section 4.
(i) Each of the Banks shall have received a Compliance Certificate
dated as of the date hereof demonstrating compliance with each
of the covenants calculated therein as of March 31, 1996.
(j) All proceedings in connection with the transactions
contemplated by this Amendment shall be reasonably satisfactory
in form and substance to the Majority Banks and the Agent's
Special Counsel, and the Agent shall have received all
information and such counterpart originals or certified copies
of such documents and such other Certificates, opinions or
documents as the Majority Banks and the Agent's Special Counsel
may reasonably require.
(k) Each of the Banks shall have received from the REIT and the
Borrower a copy, certified as of a date in 1995 or 1996 by the
appropriate officer of each State in which the REIT, the
Borrower or any Subsidiary or Nominee is organized and
certified by a duly authorized officer of the REIT to be true
and complete, of each amendment to the certificate of
incorporation of the REIT or the certificate of limited
partnership of the Borrower and of each organizational document
(or amendment thereto) of each Subsidiary and Nominee.
(l) All action on the part of the REIT, the Borrower and each
Subsidiary and Nominee necessary for the valid execution,
delivery and performance by each of the REIT, the Borrower and
such Subsidiary and Nominee of this Amendment No. 3 and the
other Loan Documents to which it is or is to become a party
shall have been duly and effectively taken, and evidence
thereof satisfactory to the Agent shall have been provided to
each of the Banks. Each of the Banks shall have received from
each of the REIT, the Borrower and each applicable Subsidiary
and Nominee true copies of its by-laws and the resolutions
adopted by its shareholders and board of directors, partners,
beneficiaries and trustees, as the case may be, authorizing the
transactions described herein, each certified by its clerk,
secretary, trustee or authorized partner as of a recent date to
be true and complete.
(m) Each of the Banks shall have received from the REIT, the
Borrower and each applicable Subsidiary and Nominee an
incumbency certificate, dated as of the effective date of this
Amendment No. 3, signed by a duly authorized officer of the
REIT or officer, trustee or partner of each applicable
Subsidiary and Nominee and giving the name and bearing a
specimen signature of each individual who shall be authorized:
(a) to sign, in the name and on behalf of the REIT, the
Borrower and each such Subsidiary and Nominee, each of the Loan
Documents to which the REIT, the Borrower or such Subsidiary or
Nominee is or is to become a party; (b) to make Loan and
Conversion Requests; and (c) to give notices and to take other
action on behalf of the REIT or the Borrower under the Loan
Documents.
5. Modification Fees. Upon the execution of this Amendment No. 3, the
Borrower agrees to pay the Banks a fee, in accordance with their respective
Commitment Percentage, in the amount of one-half of one percent (1/2%) of the
Advance Value of the Joint Venture Collateral.
6. Representations and Warranties. In order to induce you to enter into
this Amendment, the Borrower hereby represents and warrants that each of
the representations and warranties contained in 6 of the Credit Agreement
is true and correct on the date hereof, after giving effect to the
amendments effected hereby.
7. Miscellaneous. This Amendment may be executed in any number of
counterparts, which together shall constitute one instrument, shall be a
Loan Document, shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts (without giving effect to the
conflict of laws rules of any jurisdiction) and shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns,
including as such successors and assigns all holders of any Obligation.
If the foregoing corresponds with your understanding of our
agreement, please sign this letter and the accompanying copies thereof in
the appropriate space below and return the same to the undersigned. This
letter shall become a binding agreement among each of you and the Borrower
when both the Borrower and you shall have one or more copies hereof
executed by the Borrower, each of you and each of the Guarantors listed
below.
BRI OP LIMITED PARTNERSHIP
By Berkshire Realty Company, Inc.,
its General Partner
By:______________________________
Name:
Title:
The foregoing Amendment is
hereby agreed to.
THE FIRST NATIONAL BANK OF BOSTON,
for Itself and as Agent
By:____________________________
Name:
Title:
MELLON BANK, N.A.
By:____________________________
Name:
Title:
The foregoing Amendment is
hereby consented to.
BERKSHIRE REALTY COMPANY, INC.
By:____________________________
Name:
Title:
BRI TEXAS APARTMENTS LIMITED
PARTNERSHIP
By BRI Texas Apartments-II, Inc., its
General Partner
By:____________________________
Name:
Title:
BRI RIVER OAKS LIMITED PARTNERSHIP
By BRI River Oaks-II, Inc., its General
Partner
By:____________________________
Name:
Title:
BRI SOUTHWEST APARTMENTS LIMITED
PARTNERSHIP
By BRI Southwest Apartments-II, Inc.,
its General Partner
By:____________________________
Name:
Title:
BRI GREENTREE CORPORATION
By:____________________________
Name:
Title:
BRI TEXAS APARTMENTS-II, INC.
By:____________________________
Name:
Title:
BRI RIVER OAKS-II, INC.
By:____________________________
Name:
Title:
BRI SOUTHWEST APARTMENTS-II, INC.
By:____________________________
Name:
Title:
SCHEDULE 1
BANKS AND COMMITMENTS
Name and
Address Commitment Commitment
Percentage
The First National Bank of
Boston
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ $25,000,000 50%
Eurodollar Lending Office:
Same as above
Mellon Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attn: Real Estate Finance
Attn: Real Estate Loan
Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ $25,000,000
50%
Eurodollar Lending
Office:
Attn:same as above
___________
$50,000,000
AMEND1D.WPD
____
100%
SCHEDULE 2
ELIGIBLE REAL ESTATE
Name of Facility Location Type
Banks Crossing ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ Shopping Center
Greentree Square Marlton, NJ Shopping Center
Stoneledge
Plantation Greenville, SC Multifamily Housing
Schedule 6.22
SERVICE CONTRACTS
Greentree Square:
Fire Alarm System
National Guardian
Fire Alarm
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
Landscaping
Exterior Maintenance
(1995 season)
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Parking Lot Sweeping
Advanced Lot
Maintenance
Rubbish Removal
Five County Carting
Security
General Security
Systems
Snow Removal
▇▇▇▇▇▇▇ Bros.
Banks Crossing
Shopping Center:
Window
Washing/Rubbish
Removal
▇.▇. ▇▇▇▇▇▇ Irrigation/Sprinkler
s
Sweetwater
Irrigation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Asphalt
▇▇▇▇▇ Asphalt
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Asphalt (repairs)
Classic Paint &
Construction
Concrete
▇▇▇▇▇ ▇▇▇▇▇
Fire Alarm/Sprinkler
Systems
▇▇▇▇ Fire & Safety
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Signs
Maltese Signs
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Towing
AMEND1D.WPD
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Sweeping
Sparkling Clean
Parking Lot
Maintenance
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
0041
Landscaping
▇▇▇▇ Landscaping
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Exterminating
▇▇▇▇▇▇ Exterminating
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Termite Bond
Arrow Exterminating
Fayetteville, GA
HVAC
Diversified
Mechanical
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pressure Washing
J & M Truck Kleen
Plumbing
▇▇▇▇▇▇▇ Plumbing
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Locksmith
A H & H Locksmith
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
Roof Repair
West Ga. Roofing
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Parking Lot Lights
Special Service Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Electrical
Special Service Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ Wrecker, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Glass
The Glass Doctor
Jonesboro, GA
Crossroads South
Shopping Center:
Window
Washing/Rubbish
Removal
▇.▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Sweeping
Sparkling Clean
Parking Lot
Maintenance
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Landscaping
▇▇▇▇ Landscaping
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Exterminating
▇▇▇▇▇▇ Exterminating
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Termite Bond
Arrow Exterminating
Fayetteville, GA
HVAC
Diversified
Mechanical
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Rubbish Removal
BFI Waste Systems
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pressure Washing
J & M Truck Kleen
Security
Roc s Protective
Service
Roof Repair
West Ga. Roofing
6.22-276.22-27
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Plumbing
▇▇▇▇▇▇▇ Plumbing
Parking Lot Lights
Special Service Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Electrical
Special Service Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇
Locksmith
A H & H Locksmith
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
Irrigation/Sprinklers
Sweetwater Irrigation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Asphalt
▇▇▇▇▇ Asphalt
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Asphalt (repairs)
Classic Paint &
Construction
Concrete
▇▇▇▇▇ ▇▇▇▇▇
Fire Alarm/Sprinkler
Systems
▇▇▇▇ Fire & Safety
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Signs
Maltese Signs
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Towing
▇▇▇▇ Wrecker, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Glass
The Glass Doctor
Jonesboro, GA
6.22-286.22-28
SERVICE CONTRACTS (cont d)
Stoneledge Plantation
Apartments:
Landscaping
Sun Landscaping of
Greenville, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Waste Removal
Waste Management of
South Carolina
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Note: Property is
missing TCI Cable
contract.
Schedule 12.1(s)
a. Mortgage by ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to The First National Bank of
Birmingham, dated October 11, 1973 and recorded in The Probate
Office, Jefferson County, Alabama in Real Volume 1002, Page 450
(All "Real Volume" references pertain to documents recorded with
the Probate Office, Jefferson County, Alabama); as amended by Real
Volume 1125, Page 695; as further amended by Real Volume 1265,
Page 465, said amendment having been corrected and re-recorded in
Real Volume 1272, Page 78;
b. Notice of Lien against Applebee's of North Alabama (tenant) in
favor of ▇▇▇▇▇ Designs, Inc., for $12,722.05 with interest from
September 11, 1989, recorded in Real Volume 3676, Page 5;
c. Notice of Lien against ▇▇▇▇▇ Asset Management Corp. (Brookwood
Village Joint Venture) in favor of The Finish Line Inc., for
$7,882.83 with interest from January 11, 1989, recorded in Real
6.22-296.22-29
SERVICE CONTRACTS (cont d)
Volume 3596, Page 930 and Verified Claim of Lien recorded in Real
Volume 3596, Page 936;
EXHIBIT D
FORM OF LOAN OR CREDIT REQUEST
The First National Bank of Boston,
for itself and as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
Mellon Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Finance
Ladies and Gentlemen:
Pursuant to the provisions of 2.6 or 2.9 of the Amended and Restated
1992 Credit Agreement dated as of November 21, 1995, as amended by
Amendment No. 1 thereof dated as of March 1, 1996, by Amendment No. 2
thereof dated as of March 1, 1996 and by Amendment No. 3 thereof dated as
of June __, 1996 (the "Credit Agreement"), among BRI OP Limited Partnership
(the "Borrower"), Berkshire Realty Company, Inc., certain Guarantors named
therein, The First National Bank of Boston, for itself and as Agent, Mellon
Bank, N.A. and the other Banks from time to time party thereto, the
Borrower hereby requests and certifies as follows:
8. Revolving Loan. The Borrower hereby requests a Revolving Loan
under 2.1 of the Credit Agreement:
Principal Amount: $
Type (Eurodollar, Base Rate):
Drawdown Date: , 19
Interest Period:
by credit to the general account of the Borrower with the Agent at the
Agent's Head Office.
9. Letter of Credit. The Borrower hereby requests a Letter of Credit
under 2.9 of the Credit Agreement:
Stated Amount: $
Issue Date:
Termination Date:
Beneficiary:
Delivery Address:
6.22-30
SERVICE CONTRACTS (cont d)
10. No Default. The undersigned chief financial or chief accounting
officer of the Borrower certifies that the Borrower is and will be in
compliance with all covenants under the Loan Documents (excluding, however,
such Security Document Events of Default as may be specified in a schedule
attached hereto) after giving effect to the making of the Revolving Loan or
the issuance of the Letter of Credit requested hereby. Attached to this
Loan or Credit Request is a Compliance Certificate prepared on a pro forma
basis using the financial statements of the Borrower most recently provided
or required to be provided under 6.4 or 7.4 of the Credit Agreement
adjusted in the best good-faith estimate of the Borrower to give effect to
the making of the Revolving Loan or the issuance of the Letter of Credit
requested hereby.
11. Representations True. Each of the representations and warranties
of the Borrower and its Subsidiaries contained in the Credit Agreement, in
the other Loan Documents or in any document or instrument delivered
pursuant to or in connection with the Credit Agreement was true as of the
date as of which it was made and shall also be true at and as of the
Drawdown Date for the Revolving Loan or the date of issue of the Letter of
Credit requested hereby, with the same effect as if made at and as of such
Drawdown Date or date of issue (except to the extent of changes resulting
from transactions contemplated or permitted by the Credit Agreement and the
other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and
except to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default has
occurred and is continuing.
12. Other Conditions. All other conditions to the making of the
Revolving Loan or the issuance of the Letter of Credit requested hereby set
forth in 11 of the Credit Agreement have been satisfied. [Reference title
insurance "date down", if applicable.]
13. Drawdown Date. Except to the extent, if any, specified by notice
actually received by the Agent prior to the Drawdown Date specified above,
the foregoing representations and warranties shall be deemed to have been
made by the Borrower on and as of such Drawdown Date.
14. Definitions. Terms defined in the Credit Agreement are used
herein with the meanings so defined.
IN WITNESS WHEREOF, I have hereunto set my hand this ________ day of
_____, 199_.
BRI OP LIMITED PARTNERSHIP
By Berkshire Realty Company, Inc.,
its General Partner
By__________________________
Chief Financial or Chief
Accounting Officer
EXHIBIT E
FORM OF
COMPLIANCE CERTIFICATE
6.22-1
SERVICE CONTRACTS (cont d)
The First National Bank of Boston,
for Itself and as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
Mellon Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Finance
Ladies and Gentlemen:
Reference is made to the Amended and Restated 1992 Credit Agreement
dated as of November 21, 1995, as amended by Amendment No. 1 thereof dated
as of March 1, 1996, by Amendment No. 2 thereof dated as of March 1, 1996
and by Amendment No. 3 thereof dated as of June __, 1996 (the "Credit
Agreement") by and among BRI OP Limited Partnership, a Delaware limited
partnership (the "Borrower"), Berkshire Realty Company, Inc., a Delaware
corporation, certain Guarantors named therein, The First National Bank of
Boston, for itself and as Agent, Mellon Bank, N.A. and the other Banks from
time to time party thereto. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as defined in the Credit
Agreement.
Pursuant to 6.4 or 7.4 of the Credit Agreement, the Borrower is
furnishing to you herewith [or has most recently furnished to you] the
financial statements of the Borrower and its Subsidiaries for the fiscal
period ended __________ (the "Balance Sheet Date"). Such financial
statements have been prepared in accordance with generally accepted
accounting principles and present fairly, in all material respects, the
financial position of the Borrower and the Subsidiaries covered thereby at
the date thereof and the results of their operations for the periods
covered thereby, subject in the case of interim statements only to normal
year-end audit adjustments and the addition of footnotes.
This certificate is submitted in compliance with the requirements of
2.6(iii), 5.4, 5.5, 7.4(g), 7.4(k) or 8.9 of the Credit Agreement.
If this certificate is provided under a provision other than 7.4(g), the
calculations provided below are made on a pro forma basis using the
financial statements of the Borrower and its Subsidiaries as of the Balance
Sheet Date adjusted in the best good-faith estimate of the Borrower to give
effect to the making of a Revolving Loan, release of Collateral or
acquisition or disposition of property that occasions the preparation of
this certificate; and the nature of such event and the Borrower's estimate
of its effects are set forth in reasonable detail in an attachment hereto.
The undersigned officer of the Borrower is its chief financial or chief
accounting officer.
The undersigned officer has caused the provisions of the Credit
Agreement to be reviewed and has no knowledge of any Default or Event of
Default. [Note: If the signer does have knowledge of any Default or Event
of Default, the form of certificate should be revised to specify the
Default or Event of Default, the nature thereof and the actions taken,
being taken or proposed to be taken by the Borrower with respect thereto.]
The Borrower is providing the following information to demonstrate
compliance as of the Balance Sheet Date with the following covenants:
E-2
SERVICE CONTRACTS (cont d)
1. 8.3(j). Other Investments.
A. Consolidated Total Assets
Consolidated Total Assets (from Schedule 1, Part A) $__________
B. Other Investments (value to be calculated as
provided in the definition of "Consolidated Total
Assets" in 1.1 if applicable, otherwise at book value)
(i) Loans secured by mortgages or deeds of
trust on real property, referred to in
clause (i) of 8.3(j) (per balance sheet) $__________
(ii) Multifamily housing facilities "Under
Development" and raw land, referred to in
clause (ii) of 8.3(j) (per balance sheet) __________
(iii) "Other Investments" in Real Estate (per
balance sheet) __________
(iv) Investments in real estate companies other than
Subsidiaries __________
Total (i) through (iv) $__________
B divided by A equals (may not exceed 50%): ________%
Item B(i) divided by A equals (may not exceed 25%): ________%
Item B(ii) divided by A equals (may not exceed 25%): ________%
C. Raw Land
Aggregate value of raw land other than raw
land constituting part of Development Assets
permitted under clause (ii) of 8.3(j) (at book value)$__________
C divided by A equals (may not exceed 5%): ________%
D. Consolidated Development Assets (value to be calculated
as provided in the definition of "Consolidated Total Assets"
in 1.1 if applicable, otherwise at book value)
Multifamily housing facilities "Under Development" $__________
Amounts committed to costs of development, design,
construction and equipping __________
Total $__________
D divided by A equals (may not exceed 25%): ________%
2. 8.8. Borrower Distributions.
A. Consolidated Funds From Operations
Consolidated net income for most recent quarter
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SERVICE CONTRACTS (cont d)
(per income statement) $__________
Minus gains (or losses) from debt restructuring and
sales of property (_________)
Plus depreciation and amortization __________
Adjustments for unconsolidated partnerships and
joint ventures __________
Subtotal for most recent quarter $__________
Consolidated Funds From Operations for
three prior quarters:
Quarter ended __________ __________
Quarter ended __________ __________
Quarter ended __________ __________
Total $__________
B. Distributions for Test Period
Subtotal for most recent quarter $__________
Distributions for three prior quarters:
Quarter ended __________ __________
Quarter ended __________ __________
Quarter ended __________ __________
Total $__________
B divided by A equals (may not exceed 92% except to extent
that Distributions are required to maintain REIT Status): _______%
3. 9.1. Liabilities to Worth Ratio.
A. Consolidated Total Indebtedness
Consolidated Total Indebtedness (per Schedule 1, Part B)$_________
B. Consolidated Total Assets
Consolidated Total Assets (per Schedule 1, Part A) __________
A divided by B (may not exceed 50%): ________%
4. 9.2. Cash and Cash Equivalents.
A. Cash and Equivalents
Cash $___________
Plus Eligible Short-term Investments ___________
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SERVICE CONTRACTS (cont d)
Minus any amount included above that
is subject to a Pledge Agreement or
an Escrow Agreement or otherwise reserved,
escrowed or set aside as provided
in 9.2 (___________)
Total (must not be less than $5,000,000) $___________
5. 9.3. Interest Coverage.
A. Consolidated EBITDA for Test Period
Consolidated Net Income for
most recent quarter (per income statement) $____________
Plus depreciation and amortization ____________
Plus Interest Expense ____________
Plus taxes ____________
Plus extraordinary or nonrecurring losses ____________
Minus extraordinary or nonrecurring gains (__________)
Subtotal for most recent quarter $___________
Consolidated EBITDA for three prior quarters:
Quarter ended __________ ____________
Quarter ended __________ ____________
Quarter ended __________ ____________
Total $___________
B. Consolidated Interest Expense
Subtotal for most recent quarter (per income
statement) $___________
Consolidated Interest Expense for
three prior quarters:
Quarter ended __________ ___________
Quarter ended __________ ___________
Quarter ended __________ ___________
Total $___________
A divided by B equals (may not be less than 225%): _________%
6. 9.4. Debt Service Coverage.
A. Consolidated Operating Cash Flow
for Test Period
Consolidated net income for most
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SERVICE CONTRACTS (cont d)
recent quarter (per income statement) $___________
Minus gains (or losses) from debt restructuring and
sales of property (__________)
Plus depreciation and amortization ___________
Adjustments for unconsolidated partnerships and
joint ventures ___________
Subtotal = Funds From Operations $___________
Plus Interest Expense ___________
Minus the greater of all capital expenditures and
an allowance for capital expenditure requirements
computed as provided in the definition of
"Operating Cash Flow" in 1.1 (_________)
Subtotal for most recent quarter $___________
Consolidated Operating Cash Flow
for three prior quarters:
Quarter ended __________ ___________
Quarter ended __________ ___________
Quarter ended __________ ___________
Total $___________
B. Actual Debt Service for Test Period
Consolidated Interest Expense for most recent quarter
(per income statements) $___________
Plus principal payments (excluding principal paid
from proceeds of permitted refunding debt) ___________
Subtotal for most recent quarter $___________
Actual Debt Service for three
prior quarters:
Quarter ended __________ ___________
Quarter ended __________ ___________
Quarter ended __________ ___________
Total $___________
A divided by B equals (may not be less than 190%): _________%
7. 9.5. Mortgaged Property and Joint Venture Cash Flow.
A. Mortgaged Property and Joint Venture Cash Flow
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SERVICE CONTRACTS (cont d)
Total for most recent quarter (per Schedule 2,
attached) $___________
Mortgaged Property and Joint Venture Cash Flow for
three prior quarters:
Quarter ended __________ ___________
Quarter ended __________ ___________
Quarter ended __________ ___________
Total $___________
B. Pro Forma Debt Service Charges
Pro Forma Debt Service Charges (per Schedule 3,
attached) $___________
A divided by B equals (may not be less than 135%): _________%
8. 9.6. Minimum Consolidated Net Worth
A. Consolidated Net Worth
Consolidated total assets (per balance sheet) $____________
Minus consolidated total liabilities (per balance
sheet) (___________)
Total $____________
B. Increase in Consolidated Capital (since June 30, 1995)
Net amount realized from issuance of equity
securities $____________
Plus amount realized from receipt of
capital contributions ___________
Total $___________
A minus ($200,000,000 plus 90% of B) equals: ___________
(A must equal or exceed $200,000,000 plus 90% of B.)
9. 12.1(r). J.V. Advance Value
A. Advance Value
Mortgaged Properties
[itemize] $____________
Joint Venture Collateral
[itemize] $____________
Other
[itemize] $____________
Sum = Advance Value = $____________
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SERVICE CONTRACTS (cont d)
B. Joint Venture Collateral
[itemize]
Sum = J.V. Advance Value = $____________
B divided by A (may not exceed 37%) = __________%
IN WITNESS WHEREOF, the undersigned officer of the Borrower has set
his or her hand and seal this ____ day of _________, 199_.
BRI OP LIMITED PARTNERSHIP
By Berkshire Realty Company, Inc.,
its General Partner
By:___________________________
Chief Financial or Chief
Accounting Officer
Compliance Certificate Schedule 1
Calculation of Consolidated Total Assets and
Consolidated Total Indebtedness as of
Balance Sheet Date
A. Consolidated Total Assets
1. Aggregate value of Real Estate owned
in fee (from Worksheet #1, attached): $___________
Plus
2. Aggregate value of Real Estate
owned by joint venture or
unconsolidated subsidiary
(from Worksheet #2, attached): $___________
Plus
3. Aggregate book value of mortgage loans
owned (excluding loans on properties
owned in fee by the Borrower or a
Consolidated Subsidiary) (from balance
sheet) $____________
Minus (without double counting)
related reserves ( __________ )
Total $____________
Plus
4. Aggregate book value of raw land and
construction work in progress (not
included above) (from balance sheet) $____________
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SERVICE CONTRACTS (cont d)
Plus
5. Aggregate book value of other tangible
or financial assets (from balance
sheet) $____________
Minus (without double counting)
related reserves ( __________ )
Total $____________
Total of Items 1 through 5 $
B. Consolidated Total Indebtedness
All liabilities (from balance sheet) $____________
Minus minority interests recorded as
liabilities on the balance sheet of any
Subsidiary (___________)
Minus Indebtedness secured solely by
mortgage-
backed securities (___________)
Plus additional contingent liabilities not
included above _____________
Plus guarantees of debt of joint ventures
not included above _____________
Total $
Note: If any guarantee is valued at less than the full principal amount
thereof pursuant to the last sentence of the definition of
"Consolidated Total Indebtedness", provide a full explanation below
or on a separate sheet.
Compliance Certificate Schedule 1 -- Worksheet #1: Value of Real Estate
Owned in Fee
by Borrower or Consolidated
Subsidiary
A. Properties Held for More Than One Year
Name Adjusted N.O.I. Capitalization RateValue
$____________ ___%
$____
Total Value of
Category A:
$________
B. Properties Held for Less Than One Year
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SERVICE CONTRACTS (cont d)
Cost
(including Actual
Annualized
Acquisition completed Adjusted
Adjusted Capitalization
Name Date improvements) N.O.I.
N.O.I. Rate Value
$___________ $______ $________
___% $____
Total Value of
Category B: $_________
C. Properties Undergoing Rehabilitation
Four-Quarter Adjusted Capitalization
Name End Date N.O.I. Rate
Value
$_______ ___% $____
Total Value of
Category C:
$___________
Total
Item 1: $
Compliance Certificate Schedule 1 -- Worksheet #2: Value of Real Estate
Owned in Part
by Joint Venture or
Unconsolidated Subsidiary
A. Properties Held for More Than One Year
Joint Adjusted Capitalization Gross Net BRI
Venture Property N.O.I. Rate Value Debt Value*
Percentage* Discount* Value
$______ ___% $____ $___ $____
___% ___% $____
Total Value of
Category A: $________
_______________
* If applicable.
B. Properties Held for Less Than One Year
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SERVICE CONTRACTS (cont d)
Cost
(including Actual Annualized
Capitali-
Joint Acquisition completed Adjusted Adjusted
zation Gross Net BRI
Venture Property Date improvements) N.O.I. N.O.I. Rate Value
Debt Value* %* Discount* Value
$___________ $_____ $________ ___% $____ $____ __% ___% $____
Category B:
$_________
* If applicable.
C. Properties Undergoing Rehabilitation
Capitali-
Joint Four-Quarter Adjusted zation
Gross Net BRI
Venture Property End Date N.O.I. Rate Value Debt
Value* Percentage* Discount* Value
$______ ___% $____ $____ $____ ________%
__________% $_______
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SERVICE CONTRACTS (cont d)
Value of
C: $___________
2: $
_______________
* If applicable.
Compliance Certificate Schedule 2
Calculation of Mortgaged Property and Joint Venture Cash Flow
Greater of all
recurring capital
expenditures on
an allowance for Mortgaged
capital Property and
Mortgaged expenditure Joint Venture
Property NOI requirements1 Cash Flow2
Banks $_______ (__________) $________
Crossing
Crossroads $_______ (__________) $________
South
Greentree $_______ (__________) $________
Square
New Commons $_______ (__________) $________
Stoneledge $_______ (__________) $________
Plantation
Brookwood
Joint Venture3 $_______ (__________) $_________
Spring Valley
Joint Venture3 $_______ (__________) $_________
And, in the case of Joint Ventures, other reserves required
by Banks.
Provided that for any item of Mortgaged Property owned less than one
year, Mortgaged Property and Joint Venture Cash Flow shall be adjusted as
provided in 9.5.
Adjusted to reflect Obligors' percentage interest in Joint Venture.
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SERVICE CONTRACTS (cont d)
Total4 = $
Compliance Certificate Schedule 3
Calculation of Pro Forma Debt Service Charges
Principal amount of Loans outstanding:
(a) Principal amount excluding
Joint Venture Portion $___________
(b) 150% of Joint Venture Portion ____________
Total $___________
Rate of interest assumed, equal to the greater of:
(a) highest rate of interest in effect
on Loans, and ____________%
(b) current yield on seven-year Treasuries
plus 2% ____________%
Annual debt service, assuming equal monthly installments
of principal and interest paid over 25 years
$____________
Excluding the Mortgaged Property and Joint Venture Cash Flow for any item
of Mortgaged Property with respect to which there shall have occurred and be
continuing any Security Document Event of Default or event described in
12.1(m).
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