SECOND AMENDED AND RESTATED CREDIT AGREEMENT
among
GABLES REALTY LIMITED PARTNERSHIP
The Banks Listed Herein
WACHOVIA BANK, N.A.,
as Administrative Agent,
FIRST UNION NATIONAL BANK,
as Syndication Agent,
and
THE CHASE MANHATTAN BANK
as Documentation Agent
August 14, 2000
<PAGE>
TABLE OF CONTENTS
AMENDED AND RESTATED CREDIT AGREEMENT
Page
ARTICLE I DEFINITIONS..............................................1
SECTION 1.01. Definitions..............................................1
SECTION 1.02. Accounting Terms and Determinations.....................16
SECTION 1.03. References..............................................16
SECTION 1.04. Use of Defined Terms....................................17
SECTION 1.05. Terminology.............................................17
ARTICLE II THE CREDITS.............................................17
SECTION 2.01. Commitments to Lend.....................................17
SECTION 2.02. Method of Borrowing.....................................17
SECTION 2.03. Money Market Loans......................................19
SECTION 2.04. Notes...................................................22
SECTION 2.05. Maturity of Loans.......................................23
SECTION 2.06. Interest Rates..........................................24
SECTION 2.07. Fees....................................................26
SECTION 2.08. Optional Termination or Reduction of Commitments........27
SECTION 2.09. Mandatory Reduction and Termination of Commitments......27
The Commitments shall terminate on the Termination Date and any
Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such
date. In the event of a Change in Control, the
Administrative Agent (acting at the direction of
the Required Banks) may terminate the Commitments
on a date specified in a notice to the Borrowers,
which date (i) must be at least 3 Domestic Business
Days following the date of such notice,
and (ii) shall constitute the Termination Date for
all purposes hereunder..................................27
SECTION 2.10. Optional Prepayments....................................27
SECTION 2.11. Mandatory Prepayments...................................27
SECTION 2.12. General Provisions as to Payments.......................28
SECTION 2.13. Computation of Interest and Fees........................29
ARTICLE III CONDITIONS TO BORROWINGS................................29
SECTION 3.01. Conditions to First Borrowing...........................29
SECTION 3.02. Conditions to All Borrowings............................31
ARTICLE IV REPRESENTATIONS AND WARRANTIES..........................32
SECTION 4.01. Partnership or Corporate Existence and Power............32
SECTION 4.02. Partnership or Corporate and Governmental
Authorization; No Contravention....................32
SECTION 4.03. Binding Effect..........................................32
SECTION 4.04. Financial and Property Information......................32
SECTION 4.05. No Litigation...........................................33
SECTION 4.06. Compliance with ERISA...................................33
SECTION 4.07. Compliance with Laws; Payment of Taxes..................33
SECTION 4.08. Subsidiaries............................................34
SECTION 4.09. Investment Company Act..................................34
SECTION 4.10. Public Utility Holding Company Act......................34
SECTION 4.11. Ownership of Property...................................34
SECTION 4.12. No Default..............................................34
SECTION 4.13. Full Disclosure.........................................34
SECTION 4.14. Environmental Matters...................................34
SECTION 4.15. Partner Interests and Capital Stock.....................35
SECTION 4.16. Margin Stock............................................35
SECTION 4.17. Insolvency..............................................35
SECTION 4.18. Insurance...............................................36
SECTION 4.19. Real Estate Investment Trust............................36
<PAGE>
ARTICLE V COVENANTS...............................................36
SECTION 5.01. Information.............................................36
SECTION 5.02. Inspection of Property, Books and Records...............37
SECTION 5.03. Total Secured Debt......................................38
SECTION 5.04. Ratio of Total Debt to Total Assets Value...............38
SECTION 5.05. Interest Coverage.......................................38
SECTION 5.06. Restricted Payments.....................................38
SECTION 5.07. Loans or Advances.......................................38
SECTION 5.08. Purchases of Stock by Guarantors........................39
SECTION 5.09. Investments.............................................39
SECTION 5.10. Dissolution.............................................39
SECTION 5.11. Consolidations, Mergers and Sales of Assets.............39
SECTION 5.12. Use of Proceeds.........................................40
SECTION 5.13. Compliance with Laws; Payment of Taxes..................41
SECTION 5.14. Insurance...............................................41
SECTION 5.15. Change in Fiscal Year...................................41
SECTION 5.16. Maintenance of Property; Principal Business.............41
SECTION 5.17. Environmental Notices...................................41
SECTION 5.18. Environmental Matters...................................41
SECTION 5.19. Environmental Release...................................42
SECTION 5.20. Transactions with Affiliates............................42
SECTION 5.21. Amendment of Other Agreements...........................42
SECTION 5.22. Qualification as a Real Estate Investment Trust;
General Partner....................................42
SECTION 5.23. Significant Subsidiaries to be Guarantors;
Election to Become Guarantor.......................42
SECTION 5.24. Certain Provisions Regarding Eligible Properties........42
SECTION 5.25. Restrictions of Certain Additional Guarantees...........43
SECTION 5.26. Maintenance of Existence................................43
SECTION 5.27. Ratio of Total Unencumbered Assets Value to Unsecured
Funded Debt........................................43
SECTION 5.28. Consolidated Fixed Charges Coverage Ratio...............43
ARTICLE VI DEFAULTS................................................43
SECTION 6.01. Events of Default.......................................43
SECTION 6.02. Notice of Default.......................................45
ARTICLE VII THE ADMINISTRATIVE AGENT................................45
SECTION 7.01. Appointment; Powers and Immunities......................45
SECTION 7.02. Reliance by Administrative Agent........................46
SECTION 7.03. Defaults................................................46
SECTION 7.04. Rights of Administrative Agent and its Affiliates
as a Bank..........................................47
SECTION 7.05. Indemnification.........................................47
SECTION 7.06. Consequential Damages...................................47
SECTION 7.07. Payee of Note Treated as Owner..........................48
SECTION 7.08. Nonreliance on Administrative Agent and Other Banks.....48
SECTION 7.09. Failure to Act..........................................48
SECTION 7.10. Resignation or Removal of Administrative Agent..........48
SECTION 7.11. Administrative Agent's Right to Replace Non-Qualifying
Bank...............................................49
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION..................50
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair.............................................50
SECTION 8.02. Illegality..............................................50
SECTION 8.03. Increased Cost and Reduced Return.......................51
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar
Loans..............................................52
SECTION 8.05. Compensation............................................52
ARTICLE IX MISCELLANEOUS...........................................52
SECTION 9.01. Notices.................................................53
SECTION 9.02. No Waivers..............................................53
SECTION 9.03. Expenses; Documentary Taxes.............................53
SECTION 9.04. Indemnification.........................................53
SECTION 9.05. Sharing of Setoffs......................................54
SECTION 9.06. Amendments and Waivers..................................54
SECTION 9.07. No Margin Stock Collateral..............................55
SECTION 9.08. Successors and Assigns..................................55
SECTION 9.09. Confidentiality.........................................57
SECTION 9.10. Representation by Banks.................................57
SECTION 9.11. Obligations Several.....................................57
SECTION 9.12. Georgia Law.............................................57
SECTION 9.13. Severability............................................57
SECTION 9.14. Interest................................................58
SECTION 9.15. Interpretation..........................................58
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction...........58
SECTION 9.17. Counterparts............................................59
SECTION 9.18. Source of Funds - ERISA.................................59
SECTION 9.19. Entire Agreement........................................59
SECTION 9.20. More Restrictive Agreements.............................59
<PAGE>
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrowers and Guarantors
EXHIBIT C Form of Opinion of Special Counsel for the Administrative Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Borrowing Base Certificate
EXHIBIT I Form of Guaranty
EXHIBIT J Form of Contribution Agreement
EXHIBIT K Form of Money Market Quote Request
EXHIBIT L Form of Money Market Quote
Schedule 4.08 Subsidiaries
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 14, 2000
among GABLES REALTY LIMITED PARTNERSHIP, the BANKS listed on the signature pages
hereof, WACHOVIA BANK, N.A., as Administrative Agent, FIRST UNION NATIONAL BANK,
as Syndication Agent, and THE CHASE MANHATTAN BANK, as Documentation Agent.
The parties hereto agree as follows:
This Second Amended and Restated Credit Agreement is an amendment and
restatement of the $225,000,000 Amended and Restated Credit Agreement by and
among the Borrowers, Wachovia Bank, N.A., First Union National Bank, Chase Bank
of Texas, National Association, AmSouth Bank, Guaranty Federal Bank, F.S.B., PNC
Bank, National Association, and Commerzbank AG, New York and Grand Cayman
Branches, Wachovia Bank, N.A. , as the Administrative Agent, First Union
National Bank, as Syndication Agent and Chase Bank of Texas, National
Association, as Documentation Agent, dated as of May 13, 1998, as amended prior
to the date hereof by First Amendment to Credit Agreement dated as of June 14,
1999 and Second Amendment to Credit Agreement dated as of November 23, 1999 (as
so amended and amended and restated, the "Original Agreement"), which is
superseded hereby.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
-----------
The terms as defined in this Section 1.01 shall, for all purposes of this
Agreement and any amendment hereto (except as herein otherwise expressly
provided or unless the context otherwise requires), have the meanings set forth
herein:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Adjusted Total Assets Value" means Total Assets Value; provided, that in
calculating Adjusted Total Assets Value, clauses (v), (vi) and (vii) of the
definition of Total Assets Value shall be excluded.
"Administrative Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as administrative agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Administrative Agent's Letter Agreement" means that certain letter
agreement, dated as of June 9, 2000 between the Parent and the Administrative
Agent, but only as it relates to certain fees from time to time payable by the
Borrowers to the Administrative Agent.
"Affiliate" of any relevant Person means (i) any Person that directly, or
indirectly through one or more intermediaries, controls the relevant Person (a
"Controlling Person"), (ii) any Person (other than the relevant Person or a
Subsidiary of the relevant Person) which is controlled by or is under common
control with a Controlling Person, or (iii) any Person (other than a Subsidiary
of the relevant Person) of which the relevant Person owns, directly or
indirectly, 20% or more of the common stock or equivalent equity interests. As
used herein, the term "control" means possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 9.08(c) in the form attached hereto as Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
<PAGE>
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per annum
equal to the higher as of such day of (i) the Prime Rate, or (ii) three quarters
of one percent above the Federal Funds Rate. For purposes of determining the
Base Rate for any day, changes in the Prime Rate or the Federal Funds Rate shall
be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear interest at a rate
based upon the Base Rate, and is to be made as a Base Rate Loan pursuant to the
applicable Notice of Borrowing, Section 2.02(f), or Article VIII, as applicable.
"Borrowers" means, individually and collectively, as the context shall
require, the Parent and Gables-TN, as joint and several obligors for all
purposes under this Agreement and the Notes.
"Borrowing" means a borrowing hereunder consisting of Syndicated Loans or
Money Market Loans. A Borrowing is a "Syndicated Borrowing" if such Loans are
Syndicated Loans, a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans,
a "Money Market Borrowing" if such Loans are Money Market Loans and a "Fixed
Rate Borrowing" if such Loans are Fixed Rate Loans.
"Borrowing Base" means the sum of each of the following, as determined by
reference to the most recent Borrowing Base Certificate furnished pursuant to
Section 3.01(h) or Section 5.01(h), as applicable:
(i) an amount equal to the product of: (x) 7.22222; times (y) the Net
Operating Income for the 12 month period ending on the last day of the month
just ended prior to the date of determination, from each Eligible Property which
either was on average at least 90% Economically Occupied during, or with respect
to which the Construction Period Termination Date occurred prior to the
commencement of, such 12 month period; provided, that if an Eligible Property
satisfies the criteria set forth in both this clause (i) and in clause (ii)
below, it shall be included in the calculations only in this clause (i); plus
(ii) an amount equal to the product of: (x) 28.88889; times (y) the Net
Operating Income for the 3 month period ending on the last day of the month just
ended prior to the date of determination, from each Eligible Property with
respect to which the Construction Period Termination Date did not occur prior to
the commencement of the 12 month period ending on the last day of the month just
ended prior to the date of determination; plus
(iii) an amount equal to the lesser of: (x) 50% of the aggregate amount of
cash expenditures (including indirect costs internally allocated in accordance
with GAAP) as of the last day of the month just ended prior to the date of
determination on all Eligible Properties which consist of Properties as to which
the Construction Period Termination Date has not occurred as of such last day of
the month just ended (provided, that no more than an aggregate of 20% of such
amount shall be included for land on which construction has not commenced); and
(y) 30% of the aggregate Commitments in effect on the date of determination;
less
(iv) the aggregate amount of all outstanding unsecured Consolidated Debt
including standby letters of credit, but excluding the outstanding balance under
this Agreement.
"Borrowing Base Certificate" means a certificate substantially in the form
of Exhibit H, duly executed by the chief financial officer of the General
Partner, setting forth in reasonable detail the calculations for each component
of the Borrowing Base, and certifying availability of funds sufficient to
complete all Eligible Properties then under construction.
"Capital Stock" means any nonredeemable capital stock or shares of
beneficial ownership of GBP or any Consolidated Subsidiary (to the extent issued
to a Person other than GBP), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. Section-9601 et. seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Inventory System established pursuant to CERCLA.
"Change in Control" shall mean the occurrence of any of the following:
(i) more than 50% of the outstanding voting common stock of GBP is owned,
directly or indirectly, by less than 6 "individuals" (as provided in Section
542(a)(2) of the Code); or (ii) a majority of the Persons comprising the Board
of Directors of GBP shall during any 12 month period cease to serve on the Board
of Directors of GBP for any reason other than disability or death; or (iii) the
Parent or any Guarantor shall fail to maintain their current partnership or
corporate status; or (iv) GBP shall fail to own at least 65% of the partnership
interests in the Parent.
<PAGE>
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means August 14, 2000.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof, and (ii) as to any
Bank which enters into any Assignment and Acceptance (whether as transferor Bank
or as Assignee thereunder), the amount of such Bank's Commitment after giving
effect to such Assignment and Acceptance, in each case as such amount may be
reduced from time to time pursuant to Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Debt" means at any date the Debt of the Parent and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Fixed Charges" for any period means the sum of the following
of the Parent and its Consolidated Subsidiaries, determined on a consolidated
basis (x) Consolidated Interest Expense, plus (y) all scheduled principal
payments (excluding balloon payments payable at maturity), plus (z) all
preferred dividends paid or accrued.
"Consolidated Fixed Charges Coverage Ratio" means, at any date, for the
Fiscal Quarter most recently ended and the immediately preceding 3 Fiscal
Quarters, the ratio of: (i) Consolidated Income Available for Debt Service; to
(ii) Consolidated Fixed Charges.
"Consolidated Income Available for Debt Service" shall mean, calculated on
a consolidated basis, the sum of the Parent's and its Subsidiaries': (i) net
income (but excluding equity in, and income and losses of, joint ventures)
before minority interests and extraordinary items in accordance with GAAP, plus
(ii) depreciation and amortization, plus (iii) losses from sales or joint
ventures, plus (iv) increases in deferred taxes and other non-cash items, minus
(v) gains from sales or joint ventures, minus (vi) decreases in deferred taxes
and other non-cash items, plus (vii) interest expense and letter of credit fees
on tax exempt bonds and plus (viii) taxes (excluding ad valorem taxes).
"Consolidated Income Available for Distribution" means, in any calendar
year, the sum of the following for such calendar year, calculated on a
consolidated basis for the Parent and its Subsidiaries: (i) Consolidated Income
Available for Debt Service, less (ii) interest expense and letter of credit fees
on tax exempt bonds, and less (iii) taxes (excluding ad valorem taxes and taxes
on gains described in clause (v) of the definition of Consolidated Income
Available for Debt Service).
"Consolidated Interest Expense" for any period means interest in respect of
Debt (excluding capitalized interest) of the Parent or any of its Consolidated
Subsidiaries outstanding during such period.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be consolidated with those
of the Parent in its consolidated financial statements as of such date.
"Consolidated Total Assets" means, at any time, the total assets of the
Parent and its Consolidated Subsidiaries, determined on a consolidated basis, as
set forth or reflected on the most recent consolidated balance sheet of the
Parent and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Construction Period Termination Date" means, with respect to construction
of Multi-Family Properties and Joint Venture Properties, the date which is 3
months after the issuance of a permanent certificate of occupancy for the last
unit of such Multi-Family Property or a Joint Venture Property.
"Contribution Agreement" means the Contribution Agreement of even date
herewith in substantially the form of Exhibit J to be executed by the Borrowers
and the Guarantors.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Parent, are treated as a single employer under Section
414 of the Code.
"Current Maturities of Long Term Debt" means all payments in respect of
Long Term Debt (other than Debt under this Agreement) that are required to be
made within one year from the date of determination, whether or not the
obligation to make such payments would constitute a current liability of the
obligor under GAAP, excluding, however, any such payment required to be made on
the ultimate maturity date of such Debt.
<PAGE>
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments (but
excluding such obligations to the extent of principal amounts escrowed or
maintained in a trust or escrow account or other fund with one or more trustees
pursuant to the applicable indenture or other agreement pertaining to such
obligations), (iii) all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable arising in the
ordinary course of business, (iv) all obligations of such Person as lessee under
capital leases, (v) all obligations of such Person to reimburse any bank or
other Person in respect of amounts payable under a banker's acceptance, (vi) all
Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations of such Person to reimburse any bank or
other Person in respect of amounts paid or to be paid or to be paid under a
letter of credit or similar instrument, (viii) all obligations of others secured
by a Lien on any asset of such Person, whether or not such obligations are
assumed by such Person, and (ix) all obligations of others Guaranteed by such
Person.
"Debt Rating" means at any time whichever is the higher of the rating of
the Parent's senior unsecured, unenhanced debt (or, if no such debt exists, its
issuer credit rating for debt of such type) by Moody's Investor Service or
Standard and Poor's (as such rating may change from time to time, either
pursuant to Section 2.06(f) or otherwise) (provided, that in the event of a
double or greater split rating, the rating immediately above the lower rating
shall apply), or if only one of them rates the Parent's senior unsecured,
unenhanced debt, such rating.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of 2%
plus the interest rate (including the Applicable Margin) which is applicable to
such Loan hereunder.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in Georgia are authorized by law to close
(including, without limitation, any day which is a federal banking holiday in
the United States of America).
"Economically Occupied" means, with respect to any Eligible Property, Joint
Venture Property or other Multi-Family Property and in reference to a specified
percentage, that tenants paying rental obligations are occupying at least the
specified percentage of the total number of units at such Eligible Property,
Joint Venture Property or other Multi-Family Property, as the case may be.
"Eligible Property" means (i) a Multi-Family Property of the Borrowers or
any of the Guarantors consisting of real estate as to which there is no Mortgage
in existence encumbering such Property and (ii) the Wachovia LC Properties, and
such Multi-Family Property or Wachovia LC Property is subject to no other Liens
or encumbrances, other than Permitted Encumbrances.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrowers or any Subsidiary required by any Environmental
Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or orders
arising from or in any way associated with any Environmental Requirements,
whether or not entered upon consent, or written agreements with an Environmental
Authority or other entity arising from or in any way associated with any
Environmental Requirement, whether or not incorporated in a judgment, decree or
order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority or by
any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
<PAGE>
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under any
applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrowers, any
Subsidiary or the Properties, including but not limited to any such requirement
under CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan which bears or is to bear interest at a
rate based upon the Adjusted London Interbank Offered Rate, and to be made as a
Euro-Dollar Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.06(d).
"Event of Default" has the meaning set forth in Section 6.01.
"Executive Officer" means any of the following officers of the General
Partner: the chairman, the president, the chief financial officer, the chief
accounting officer, any senior vice president and the secretary.
"Facility Fee" has the meaning set forth in Section 2.07(a).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to the Administrative Agent on such
day on such transactions, as determined by the Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the Parent.
"Fiscal Year" means any fiscal year of the Parent.
"Fixed Rate Loan" means any Euro-Dollar Loan or Money Market Loan.
"Funded Debt" means, without duplication, Long-Term Debt plus Current
Maturities of Long-Term Debt.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used in
making the calculations for purposes of determining compliance with the terms of
this Agreement.
"Gables-TN" means Gables-Tennessee Properties, L.L.C., a Tennessee limited
liability company, and its successors and permitted assigns.
"GBP" means Gables Residential Trust, a Maryland trust.
"General Partner" means the sole general partner of the Parent (which, on
the Closing Date, is Gables GP, Inc.) or, if there is more than one such general
partner, the managing general partner of the Parent.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
<PAGE>
"Guaranty" means the Guaranty Agreement of even date herewith in
substantially the form of Exhibit I to be executed by the Guarantors,
unconditionally and jointly and severally Guaranteeing payment of the Loans, the
Notes and all other obligations of the Borrowers to the Administrative Agent and
the Banks hereunder, including without limitation all principal, interest, fees,
costs, and compensation and indemnification amounts.
"Guarantors" means any one or more or all of the following, as the context
shall require: (i) GBP and Gables GP, Inc., a Texas corporation; and (ii) any
Significant Subsidiary which becomes a Guarantor pursuant to Section 5.23; and
(iii) any other Subsidiary which elects to become a Guarantor pursuant to
Section 5.23; in each case subject to the provisions of the last sentence of
Section 5.11.
"Hazardous Materials" includes, without limitation, (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of 1980, 42
U.S.C. Section 6901 et seq. and its implementing regulations and amendments, or
in any applicable state or local law or regulation, (b) "hazardous substance",
"pollutant", or "contaminant" as defined in CERCLA, or in any applicable state
or local law or regulation, (c) gasoline, or any other petroleum product or
by-product, including, crude oil or any fraction thereof, (d) toxic substances,
as defined in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation and (e) insecticides, fungicides, or
rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide
Act of 1975, or in any applicable state or local law or regulation, as each such
Act, statute or regulation may be amended from time to time.
"Interest Period" means:
(1) with respect to each Euro-Dollar Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in
the first, second, third or sixth month thereafter, as the Borrowers may elect
in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to paragraph (c) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall,
subject to paragraph (c) below, end on the last Euro-Dollar Business Day of
the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (subject to paragraph (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) no Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date may be selected.
(3) with respect to each Money Market Borrowing, the period commencing on
the date of such Borrowing and ending on the Stated Maturity Date or such other
date or dates as may be specified in the applicable Money Market Quote; provided
that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Joint Venture" means a Person (i) whose primary business is the
development or ownership of Multi-Family Properties, (ii) in which the Parent or
any of its Consolidated Subsidiaries owns a legal and beneficial ownership
interest and (iii) whose accounts at any date are not consolidated with those of
the Parent in its consolidated financial statements as of such date in
accordance with GAAP.
<PAGE>
"Joint Venture Property" means a Multi-Family Property which is owned by a
Joint Venture.
"Joint Venture Share" means, with respect to any Joint Venture, the
percentage of legal and beneficial ownership interest in such Joint Venture held
by the Parent or by any of its Consolidated Subsidiaries.
"Lending Office" means, as to each Bank, its office located at its address
set forth on the signature pages hereof (or identified on the signature pages
hereof as its Lending Office) or such other office as such Bank may hereafter
designate as its Lending Office by notice to the Borrowers and the
Administrative Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrowers or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Money Market Loan or
Syndicated Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans, Money
Market Loans or Syndicated Loans, or any or all of them, as the context shall
require.
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
Contribution Agreement, any other document evidencing, relating to or securing
the Loans, and any other document or instrument delivered from time to time in
connection with this Agreement, the Notes or the Loans, as such documents and
instruments may be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(d).
"Long-Term Debt" means at any date any Consolidated Debt which matures (or
the maturity of which may at the option of the Borrowers or any Consolidated
Subsidiary be extended such that it matures) more than one year after such date.
"Margin Stock" means "margin stock" as defined in Regulations G, T, U or X.
"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business or properties of GBP, the General Partner, the
Parent and its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Administrative Agent or the Banks under the Loan Documents, or
the ability of either of the Borrowers to perform its obligations under the Loan
Documents to which it is a party, as applicable, or (c) the legality, validity
or enforceability of any Loan Document.
"Money Market Borrowing Date" has the meaning specified in Section 2.03.
"Money Market Loan" means any Loan made by one or more of the Banks
pursuant to Section 2.02(A).
"Money Market Loan Notes" means the promissory notes of the Borrowers,
substantially in the form of Exhibit A-2, evidencing the obligation of the
Borrowers to repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Money Market Quote" has the meaning specified in Section 2.03.
"Money Market Quote Request" has the meaning specified in Section 2.03(b).
"Money Market Rate" has the meaning specified in Section 2.03(c)(ii)(C).
"Mortgage" means a mortgage, deed to secure debt, deed of trust or similar
instrument.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"Multi-Family Property" means residential apartment communities and
undeveloped land acquired for development thereof.
<PAGE>
"Net Operating Income" means, for any Multi-Family Property, the portion of
Consolidated Income Available for Debt Service derived from such Multi-Family
Property (which calculation includes an assumed 4% for management services).
"Notes" means each of the Syndicated Loan Notes or Money Market Loan Notes,
or any or all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Officer's Certificate" has the meaning set forth in Section 3.01(f).
"Original Agreement" has the meaning set forth in the preamble hereto.
"Original Notes" means the Notes executed and delivered pursuant to the
Original Agreement.
"Parent" means Gables Realty Limited Partnership, a Delaware limited
partnership, and its successors and its permitted assigns.
"Participant" has the meaning set forth in Section 9.08(b).
"Partner Interests" means any partner interests in the Borrowers, whether
limited or general.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means, with respect to any Eligible Property
included in the Borrowing Base, (i) Liens incidental to the conduct of its
business or the ownership of its assets which (x) do not secure Debt and (y) do
not in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business, (ii) any
Mortgage in favor of the relevant institutional trustee only (but not in favor
of Wachovia, as letter of credit issuer), with respect to the Wachovia LC
Properties, and (iii) any other Liens and encumbrances expressly consented to by
the Administrative Agent.
"Performance Pricing Determination Date" has the meaning set forth in
Section 2.06(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by a member of the Controlled Group
for employees of any member of the Controlled Group or (ii) maintained pursuant
to a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which a member of the Controlled
Group is then making or accruing an obligation to make contributions or has
within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrowers or any Subsidiary, wherever located.
"Redeemable Preferred Stock" of any Person means any preferred stock issued
by such Person which is at any time prior to the Termination Date either (i)
mandatorily redeemable for cash (by sinking fund or similar payments or
otherwise) or (ii) redeemable for cash at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day on which an
outstanding Syndicated Loan is maturing or a Base Rate Borrowing is being
converted to a Euro-Dollar Rate Borrowing, if and to the extent that the
proceeds thereof are used entirely for the purpose of paying such maturing Loan
or Loan being converted, excluding any difference between the amount of such
maturing Loan or Loan being converted and any greater amount being borrowed on
such day and actually either being made available to the Borrowers pursuant to
Section 2.02(c) or remitted to the Administrative Agent as provided in Section
2.12, in each case as contemplated in Section 2.02(d).
"Regulation G" means Regulation G of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
<PAGE>
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Required Banks" means at any time Banks having at least 66 2/3% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 66 2/3% of the aggregate outstanding principal
amount of the sum of the (i) Syndicated Loans and (ii) Money Market Loans.
"Restricted Payment" means (i) any distribution on any Partner Interests
(other than distributions consisting solely of additional Partner Interests) or
(ii) any payment on account of the purchase, redemption, retirement or
acquisition of (a) any Partner Interests or (b) any option, warrant or other
right to acquire Partner Interests.
"Significant Subsidiary" means any Subsidiary which either (x) has assets
which constitute more than 5% of Consolidated Total Assets at the end of the
most recent Fiscal Quarter, or (y) contributed more than 5% of Consolidated
Income Available for Debt Service during the most recent Fiscal Quarter and the
3 Fiscal Quarters immediately preceding such Fiscal Quarter (or, with respect to
any Subsidiary which existed during the entire 4 Fiscal Quarter period but was
acquired by the Parent during such period, which would have contributed more
than 5% of Consolidated Income Available for Debt Service during such period had
it been a Subsidiary for the entire period).
"South Florida Acquisition" means the Parent's acquisition of the
properties and operations of Trammell Crow Residential South Florida ("TCR/SF"),
which consists of up to 15 multifamily apartment communities containing a total
of 4,197 apartment homes and all of TCR/SF's residential construction and
development and third party management activities in South Florida, pursuant to
a definitive purchase agreement containing terms which include total
consideration of $368,250,000, consisting of $77,375,000 in common stock or
operating apartment units, $155,000,000 in cash and the assumption of
$135,875,000 in tax-exempt debt.
"Stated Maturity Date" means, with respect to any Money Market Loan, the
Stated Maturity Date therefor specified by the Bank in the applicable Money
Market Quote.
"Subsidiary" means (i) any corporation or other entity the majority of the
shares of the non-voting capital stock or other equivalent ownership interests
of which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Parent and/or GBP, and the majority of the shares of the
voting capital stock or other equivalent ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Parent, GBP, the General Partner, another Subsidiary, and/or one or more of
Chris Wheeler, Michael Hefley, Marvin R. Banks, Jr. and C. Jordan Clark (or, in
the event of death or disability of any of the foregoing individuals, his
respective legal representative(s)), or such individuals' successors in office
as an officer of such Subsidiary or the Secretary of such Subsidiary, and (ii)
any other entity (other than GBP or the Parent) the accounts of which are
consolidated with the accounts of the Parent.
"Syndicated Loans" means Base Rate Loans or Euro-Dollar Loans made pursuant
to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the Borrowers,
substantially in the form of Exhibit A-1, evidencing the obligation of the
Borrowers to repay Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means May 13, 2003, provided, that if any of the
following events occur, the Termination Date shall be such earlier date or later
date as is applicable pursuant to the following: (i) such later date to which it
is extended by the Banks pursuant to Section 2.04(b), in their sole and absolute
discretion; (ii) such earlier date on which the Commitments are terminated in
their entirety pursuant to Section 2.09 following the occurrence of a Change in
Control; (iii) such earlier date on which the Commitments are terminated
pursuant to Section 6.01 following the occurrence of an Event of Default; or
(iv) such earlier date on which the Borrowers terminate the Commitments entirely
pursuant to Section 2.08.
"Third Parties" means all lessees, sublessees, licensees and other users of
the Properties, excluding those users of the Properties in the ordinary course
of the Borrowers' business and on a temporary basis.
<PAGE>
"Total Assets Value" means the sum of:
(i) the quotient of (x) the Net Operating Income for the 12 month period
ending on the last day of the month just ended prior to the date of
determination, from each Multi-Family Property which either was on average at
least 90% Economically Occupied during, or with respect to which the
Construction Period Termination Date occurred prior to the commencement of, such
12 month period, divided by (y) 0.09; provided, that if a Multi-Family Property
satisfies the criteria set forth in both this clause (i) and in clause (ii)
below, it shall be included in the calculations only in clause (ii) below; plus
(ii) an amount equal to the quotient of (x) 400% of the Net Operating
Income for the 3 month period ending on the last day of the month just ended
prior to the date of determination, from each Multi-Family Property with respect
to which the Construction Period Termination Date did not occur prior to the
commencement of the 12 month period ending on the last day of the month just
ended prior to the date of determination, divided by (y) 0.09; plus
(iii) an amount equal to 100% of the aggregate amount of cash expenditures
(including indirect costs internally allocated in accordance with GAAP) as of
the last day of the month just ended prior to the date of determination on all
Multi-Family Properties as to which the Construction Period Termination Date has
not occurred as of such last day of the month just ended, plus
(iv) an amount equal to 100% of all unrestricted cash and cash equivalents
held by the Borrowers, including amounts on deposit with banks or other
financial institutions and Investments of the types described in clauses (i)
through (vi), inclusive, of the definition of "Investments", provided, with
respect to Investments described in clause (vi), that such Investments are
readily marketable, plus
(v) the quotient of (x) the Joint Venture Share of the net operating income
for the 12 month period ending on the last day of the month just ended prior to
the date of determination, from each Joint Venture Property which either was on
average at least 90% Economically Occupied during, or with respect to which the
Construction Period Termination Date occurred prior to the commencement of, such
12 month period, divided by (y) 0.09, plus
(vi) an amount equal to the Joint Venture Share of the aggregate amount of
the quotient of (x) 400% of the net operating income for the 3 month period
ending on the last day of the month just ended prior to the date of
determination, from each Joint Venture Property with respect to which the
Construction Period Termination Date did not occur prior to the commencement of
the 12 month period ending on the last day of the month just ended prior to the
date of determination, divided by (y) 0.09; plus
(vii) an amount equal to the Joint Venture Share of the aggregate amount of
cash expenditures (including indirect costs internally allocated in accordance
with GAAP) as of the last day of the month just ended prior to the date of
determination on each Joint Venture Property as to which the Construction Period
Termination Date has not occurred as of such last day of the month just ended.
"Total Debt" means the sum (without duplication) of (i) total liabilities
(but excluding such obligations to the extent of principal amounts escrowed or
maintained in a trust or escrow account or other fund with one or more trustees
pursuant to the applicable indenture or other agreement pertaining to such
obligations) of the Borrowers and the Guarantors, on a consolidated basis, plus
(ii) the aggregate amount of Debt Guaranteed by the Borrowers, the Guarantors
and the other Subsidiaries (other than Guarantees which have been fully cash
collateralized), plus (iii) the Parent's Joint Venture Share of the aggregate
amount of Debt of all Joint Ventures, plus (iv) the face amount of all letters
of credit (other than amounts which are fully cash collateralized) for which any
of the Borrowers or the Guarantors is the account party, determined at the end
of the Parent's most recent Fiscal Quarter, less (v) the aggregate amount of all
tenant deposits which are maintained in segregated accounts and classified as
restricted cash in accordance with GAAP, and less (vi) amounts maintained in
escrow deposits with banks or other financial institutions for payment of real
estate property taxes reflected on the Parent's balance sheet and reflected as
restricted cash in accordance with GAAP.
"Total Secured Debt" shall mean, without duplication, all Debt of the
Borrowers and the Guarantors consisting of: (i) capitalized leases; (ii) money
borrowed or the deferred purchase price of real property which is also secured
by a Mortgage on any real property owned by the Borrowers or any Guarantor; or
(iii) reimbursement obligations pertaining to any letter of credit.
"Total Unencumbered Assets Value" means Total Assets Value, but determined
with reference only to (i) Multi-Family Properties which are not subject to a
Mortgage and (ii) the Wachovia LC Properties.
"Transferee" has the meaning set forth in Section 9.08(d).
<PAGE>
"Unsecured Funded Debt" means any Funded Debt which is not secured by a
Mortgage on any Property, other than, with respect to the Wachovia LC
Properties, any Permitted Encumbrance.
"Unused Commitment" means at any date, with respect to any Bank, an amount
equal to the sum of (i) its Commitment, less (ii) the aggregate outstanding
principal amount of its Syndicated Loans(but not its Money Market Loans).
"Wachovia" means Wachovia Bank, N.A., a national banking association, and
its successors.
"Wachovia LC Properties" means the following Properties, as to each of
which Wachovia has issued its unsecured letter of credit to an institutional
trustee as a credit enhancement for revenue bonds or similar instruments: the
Arbor Crest project, the Arbor Knoll project, the Wood Arbor project and the
Wood Crossing Project.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of the
non-voting capital stock or other equivalent ownership interests of which
(except directors' qualifying shares) are at the time directly or indirectly
owned by the Parent and/or GBP, and all of the shares of the voting capital
stock or other equivalent ownership interests of which are at the time directly
or indirectly owned by the Parent, GBP, another Wholly Owned Subsidiary, and/or
one or more of Marcus E. Bromley, John T. Rippel, Marvin R. Banks, Jr. and C.
Jordan Clark (or, in the event of death or disability of any of the foregoing
individuals, his respective legal representative(s)), or such individuals'
successors in office as an officer of such Subsidiary or the Secretary of such
Subsidiary.
<PAGE>
SECTION 1.02. Accounting Terms and Determinations
-----------------------------------
Unless otherwise specified herein, all terms of an accounting character
used herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder shall
be prepared, in accordance with GAAP, applied on a basis consistent (except for
changes concurred in by the Parent's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Parent and its Consolidated Subsidiaries delivered
to the Banks unless with respect to any such change concurred in by the Parent's
independent public accountants or required by GAAP, in determining compliance
with any of the provisions of this Agreement or any of the other Loan Documents:
(i) the Parent shall have objected to determining such compliance on such basis
at the time of delivery of such financial statements, or (ii) the Required Banks
shall so object in writing within 30 days after the delivery of such financial
statements, in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.01
hereof, shall mean the financial statements referred to in Section 4.04).
SECTION 1.03. References
----------
Unless otherwise indicated, references in this Agreement to "Articles",
"Exhibits", "Schedules", "Sections" and other Subdivisions are references to
articles, exhibits, schedules, sections and other subdivisions hereof.
SECTION 1.04. Use of Defined Terms
--------------------
All terms defined in this Agreement shall have the same defined meanings
when used in any of the other Loan Documents, unless otherwise defined therein
or unless the context shall require otherwise.
SECTION 1.05. Terminology
-----------
All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
<PAGE>
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend
-------------------
(a) Syndicated Loans. Each Bank severally agrees, on the terms and
conditions set forth herein, to make Syndicated Loans to the Borrowers from time
to time before the Termination Date; provided that,
(i) immediately after each such Syndicated Loan is made, the aggregate
outstanding principal amount of Syndicated Loans by such Bank shall not
exceed the amount of its Commitment, and
(ii) the aggregate outstanding principal amount of all Syndicated
Loans and Money Market Loans shall not exceed the lesser of (A) the
aggregate amount of the Commitments and (B) the Borrowing Base.
Each Syndicated Borrowing under this Section shall be in an aggregate principal
amount of $3,000,000 or any larger integral multiple of $500,000 (except that
any such Syndicated Borrowing may be in the aggregate amount of the Unused
Commitments) and shall be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing limits, either or both of the
Borrowers may borrow under this Section, repay or, to the extent permitted by
Section 2.10, prepay Syndicated Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.02. Method of Borrowing
-------------------
(a) The Borrowers shall give the Administrative Agent notice (a "Notice of
Borrowing"), which shall be substantially in the form of Exhibit E, prior to
10:00 A.M. (Atlanta, Georgia time) on the same Domestic Business Day for each
Base Rate Borrowing and at least 3-Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Borrowing is to be a Base Rate Borrowing or a
Euro-Dollar Borrowing,
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Borrowing and such Notice of Borrowing, once received by the
Administrative Agent, shall not thereafter be revocable by the Borrowers.
(c) Not later than 2:00 P.M. (Atlanta, Georgia time) on the date of each
Syndicated Borrowing (or, if the notice required to be given by the
Administrative Agent pursuant to paragraph (b) of this Section shall be given
later than 12:00 Noon, Atlanta, Georgia time on the date of any Syndicated
Borrowing, not later than two (2) hours following the time such notice is given
on the date of each Syndicated Borrowing), each Bank shall (except as provided
in paragraph (d) of this Section) make available its ratable share of such
Syndicated Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Administrative Agent at its address determined pursuant
to Section 9.01. Unless the Administrative Agent determines that any applicable
condition specified in Article IV has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the Borrowers
at the Administrative Agent's aforesaid address. Unless the Administrative Agent
receives notice from a Bank, at the Administrative Agent's address referred to
in or specified pursuant to Section 9.01, no later than 4:00 P.M. (local time at
such address) on the Domestic Business Day before the date of a Syndicated
Borrowing (or, with respect to Base Rate Loans, by 2:00 P.M. on the date of such
Syndicated Borrowing) stating that such Bank will not make a Syndicated Loan in
connection with such Syndicated Borrowing, the Administrative Agent shall be
entitled to assume that such Bank will make a Syndicated Loan in connection with
such Syndicated Borrowing and, in reliance on such assumption, the
Administrative Agent may (but shall not be obligated to) make available such
Bank's ratable share of such Syndicated Borrowing to the Borrowers for the
account of such Bank.
<PAGE>
If the Administrative Agent makes such Bank's ratable share available to
the Borrowers as provided above and such Bank does not in fact make its ratable
share of such Syndicated Borrowing available on such date, the Administrative
Agent shall be entitled to recover such Bank's ratable share from such Bank or
the Borrowers (and for such purpose shall be entitled to charge such amount to
any account of the Borrowers maintained with the Administrative Agent), together
with interest thereon for each day during the period from the date of such
Syndicated Borrowing until such sum shall be paid in full at a rate per annum
equal to the rate at which the Administrative Agent determines that it obtained
(or could have obtained) overnight Federal funds to cover such amount for each
such day during such period, provided that (i) any such payment by the Borrowers
of such Bank's ratable share and interest thereon shall be without prejudice to
any rights that the Borrowers may have against such Bank and (ii) until such
Bank has paid its ratable share of such Syndicated Borrowing, together with
interest pursuant to the foregoing, it will have no interest in or rights with
respect to such Syndicated Borrowing for any purpose hereunder. If the
Administrative Agent does not exercise its option to advance funds for the
account of such Bank, it shall forthwith notify the Borrowers of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on a day on which the
Borrowers are to repay all or any part of an outstanding Syndicated Loan from
such Bank, such Bank shall apply the proceeds of its new Syndicated Loan to make
such repayment as a Refunding Loan and only an amount equal to the difference
(if any) between the amount being borrowed and the amount of such Refunding Loan
shall be made available by such Bank to the Administrative Agent as provided in
paragraph (c) of this Section, or remitted by the Borrowers to the
Administrative Agent as provided in Section 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in this Agreement,
no Euro-Dollar Borrowing or Money Market Borrowing may be made if there shall
have occurred a Default or an Event of Default, which Default or Event of
Default shall not have been cured or waived, and all Refunding Loans shall be
made as Base Rate Loans (but shall bear interest at the Default Rate, if
applicable).
(f) In the event that a Notice of Borrowing fails to specify whether the
Syndicated Loans comprising such Syndicated Borrowing are to be Base Rate Loans
or Euro-Dollar Loans, such Syndicated Loans shall be made as Base Rate Loans. If
the Borrowers are otherwise entitled under this Agreement to repay any
Syndicated Loans maturing at the end of an Interest Period applicable thereto
with the proceeds of a new Borrowing, and the Borrower fail to repay such
Syndicated Loans using its own moneys and fail to give a Notice of Borrowing in
connection with such new Syndicated Borrowing, a new Syndicated Borrowing shall
be deemed to be made on the date such Syndicated Loans mature in an amount equal
to the principal amount of the Syndicated Loans so maturing, and the Syndicated
Loans comprising such new Syndicated Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, there shall
not be more than 8 Euro-Dollar Borrowings and Money Market Borrowings
outstanding at any given time.
SECTION 2.03. Money Market Loans
------------------
(a) In addition to making Syndicated Borrowings, so long as the Debt Rating
is BBB- or Baa3 or higher, the Borrowers may, as set forth in this Section 2.03,
request the Banks to make offers to make Money Market Borrowings available to
the Borrowers. The Banks may, but shall have no obligation to, make such offers
and the Borrowers may, but shall have no obligation to, accept any such offers
in the manner set forth in this Section 2.03, provided that:
(i) the number of interest rates applicable to Money Market Loans
which may be outstanding at any given time is subject to the provisions of
Section 2.02(g);
(ii) the aggregate principal amount of all Money Market Loans at any
one time outstanding shall not exceed an amount equal to 50% of the
aggregate amount of the Commitments of all of the Banks at such time;
(iii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans, at
any one time outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time; and
(iv) the Money Market Loans of any Bank will be deemed to be usage of
the Commitments for the purpose of calculating availability pursuant to
Section 2.01(a)(ii) and 2.03(a)(iii), but will not reduce such Bank's
obligation to lend its pro rata share of the remaining Unused Commitment.
<PAGE>
(b) When the Borrowers wish to request offers to make Money Market Loans,
it shall give the Administrative Agent (which shall promptly notify the Banks)
notice substantially in the form of Exhibit K (a "Money Market Quote Request")
so as to be received no later than 10:00 A.M. (Atlanta, Georgia time) at least 2
Domestic Business Days prior to the date of the Money Market Borrowing proposed
therein (or such other time and date as the Borrowers and the Administrative
Agent, with the consent of the Required Banks, may agree), specifying:
(i) the proposed date of such Money Market Borrowing, which shall be a
Euro-Dollar Business Day (the "Money Market Borrowing Date");
(ii) the maturity date (or dates) (each a "Stated Maturity Date") for
repayment of each Money Market Loan to be made as part of such Money Market
Borrowing (which Stated Maturity Date shall be that date occurring not less
than 7 days but not more than 180 days from the date of such Money Market
Borrowing); provided that the Stated Maturity Date for any Money Market
Loan may not extend beyond the Termination Date (as in effect on the date
of such Money Market Quote Request); and
(iii) the aggregate amount of principal to be requested by the
Borrowers as a result of such Money Market Borrowing, which shall be at
least $3,000,000 (and in larger integral multiples of $1,000,000) but shall
not cause the limits specified in Section 2.03(a) to be violated.
The Borrowers may request offers to make Money Market Loans having up to 3
different] Stated Maturity Dates in a single Money Market Quote Request;
provided that the request for each separate Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request for a separate Money
Market Borrowing. Except as otherwise provided in the immediately preceding
sentence, after the first Money Market Quote Request has been given
hereunder, no Money Market Quote Request shall be given until at least 5
Domestic Business Days after all prior Money Market Quote Requests have
been fully processed by the Administrative Agent, the Banks and the
Borrowers pursuant to this Section 2.03.
(c) (i) Each Bank may, but shall have no obligation to, submit a response
containing an offer to make a Money Market Loan substantially in the form
of Exhibit L (a "Money Market Quote") in response to any Money Market Quote
Request; provided that, if the Borrowers' request under Section 2.03(b)
specified more than 1 Stated Maturity Date, such Bank may, but shall have
no obligation to, make a single submission containing a separate offer for
each such Stated Maturity Date and each such separate offer shall be deemed
to be a separate Money Market Quote. Each Money Market Quote must be
submitted to the Administrative Agent not later than 10:00 A.M. (Atlanta,
Georgia time) on the Money Market Borrowing Date; provided that any Money
Market Quote submitted by Wachovia may be submitted, and may only be
submitted, if Wachovia notifies the Borrowers of the terms of the offer
contained therein not later than 9:45 A.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date (or 15 minutes prior to the time that the other
Banks are required to have submitted their respective Money Market Quotes).
Subject to Section 5.01, any Money Market Quote so made shall be
irrevocable except with the written consent of the Administrative Agent
given on the instructions of the Borrowers.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing Date and the Stated
Maturity Date therefor;
(B) the principal amounts of the Money Market Loan which the
quoting Bank is willing to make for the applicable Money Market Quote,
which principal amounts (x) may be greater than or less than the
Commitment of the quoting Bank, (y) shall be at least $3,000,000 or a
larger integral multiple of $500,000 and (z) may not exceed the
principal amount of the Money Market Borrowing for which offers were
requested;
(C) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) offered for each such Money
Market Loan (such amounts being hereinafter referred to as the "Money
Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the Borrowers, no
Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in
the applicable Money Market Quote Request (other than setting forth the
principal amounts of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period) and, in particular, no
Money Market Quote may be conditioned upon acceptance by the Borrowers of
all (or some specified minimum) of the principal amount of the Money Market
Loan for which such Money Market Quote is being made.
<PAGE>
(d) The Administrative Agent shall as promptly as practicable after the
Money Market Quote is submitted (but in any event not later than 10:30 A.M.
(Atlanta, Georgia time)) on the Money Market Borrowing Date, notify the
Borrowers of the terms (i) of any Money Market Quote submitted by a Bank that is
in accordance with Section 2.03(c) and (ii) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Administrative
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Administrative Agent's
notice to the Borrowers shall specify (A) the principal amounts of the Money
Market Borrowing for which offers have been received and (B) the respective
principal amounts and Money Market Rates so offered by each Bank (identifying
the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on the Money Market
Borrowing Date, the Borrowers shall notify the Administrative Agent of its
acceptance or nonacceptance of the offers so notified to it pursuant to Section
2.03(d) and the Administrative Agent shall promptly notify each Bank which
submitted an offer. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers (for each Stated Maturity Date) that are
accepted. The Borrowers may accept any Money Market Quote in whole or in part;
provided that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Loan
comprising a Money Market Borrowing shall be at least $3,000,000 (and in
larger integral multiples of $1,000,000) but shall not cause the limits
specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order of
Money Market Rates; and
(iv) the Borrowers may not accept any offer where the Administrative
Agent has advised the Borrowers that such offer fails to comply with
Section 2.03(c)(ii) or otherwise fails to comply with the requirements of
this Agreement (including without limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for
a greater aggregate principal amount than the amount in respect of which
offers are accepted for the related Stated Maturity Date, the principal
amount of Money Market Loans in respect of which such offers are accepted
shall be allocated by the Borrowers among such Banks as nearly as possible
in proportion to the aggregate principal amount of such offers.
Determinations by the Borrowers of the amounts of Money Market Loans shall
be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has been accepted
shall, not later than 12:00 P.M. (Atlanta, Georgia time) on the Money Market
Borrowing Date, make the amount of such Money Market Loan allocated to it
available to the Administrative Agent at its address referred to in Section 8.01
in immediately available funds. The amount so received by the Administrative
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrowers on such date by depositing the same, in immediately
available funds, not later than 2:00 P.M. (Atlanta, Georgia time), in an account
of such Borrower maintained with Wachovia.
(g) After any Money Market Loan has been funded, the Administrative Agent
shall notify the Banks of the aggregate principal amount of the Money Market
Quotes received and the highest and lowest rates included in such Money Market
Quotes.
<PAGE>
SECTION 2.04. Notes
-----
(a) The Syndicated Loans of each Bank shall be evidenced by a single
Syndicated Loan Note payable to the order of such Bank for the account of its
Lending Office in an amount equal to the original principal amount of such
Bank's Commitment.
(b) The Money Market Loans made by any Bank to the Borrowers shall be
evidenced by a single Money Market Loan Note payable to the order of such Bank
for the account of its Lending Office in an amount equal to 50% of the original
principal amount of the aggregate Commitments.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01, the
Administrative Agent shall deliver such Notes to such Bank. Each Bank shall
record, and prior to any transfer of its Notes shall endorse on the schedules
forming a part thereof appropriate notations to evidence, the date, amount and
maturity of, and effective interest rate for, each Loan made by it, the date and
amount of each payment of principal made by the Borrowers with respect thereto,
and such schedules of each such Bank's Notes shall constitute rebuttable
presumptive evidence of the respective principal amounts owing and unpaid on
such Bank's Notes; provided that the failure of any Bank to make, or any error
in making, any such recordation or endorsement shall not affect the obligation
of the Borrowers hereunder or under the Notes or the ability of any Bank to
assign its Notes. Each Bank is hereby irrevocably authorized by the Borrowers so
to endorse its Notes and to attach to and make a part of any Note a continuation
of any such schedule as and when required.
(d) In the event of loss, theft, destruction, total or partial
obliteration, mutilation or inappropriate cancellation of a Note, the Borrowers
will execute and deliver, in lieu thereof, a replacement Note identical in form
and substance to such Note and dated as of the date of such Note.
SECTION 2.05. Maturity of Loans
-----------------
(a) Each Loan included in any Borrowing shall mature, and the principal
amount thereof and interest thereon shall be due and payable, on the last day of
the Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal amount of the
Loans, if any, together with all accrued but unpaid interest thereon, if any,
shall be due and payable on May 13, 2003, unless the Termination Date is
otherwise extended by the Banks, in their sole and absolute discretion. Upon the
written request of the Borrowers, which request shall be delivered to the Agent
at least 90 days prior to each Extension Date (as such term is hereinafter
defined), the Banks shall have the option (without any obligation whatsoever so
to do) of extending the then current Termination Date for additional one-year
periods from the then current Termination Date on but not before May 13, 2001
(the "Extension Date"), but in no event shall the Commitment of any Bank or any
Loan hereunder be outstanding for a period greater than three (3) years. Each
Bank shall notify the Borrowers and the Administrative Agent not more than 60
days but not less than 45 days prior to the relevant Extension Date whether or
not it chooses to extend the Termination Date for such an additional one-year
period (but any Bank which fails to give such notice within such period shall be
deemed not to have extended); provided, that the Termination Date shall not be
extended with respect to any of the Banks unless:
(i) the Required Banks are willing to extend the Termination Date; and
(ii) on or before the Extension Date, as to the Commitment of any Bank
which gave notice that it chooses not to extend, or which is deemed
pursuant to the foregoing not to have extended (any such Bank being a
"Terminating Bank"), one of the following shall occur:
(A) the remaining Banks shall purchase ratable assignments
(without any obligation so to do) from such Terminating Bank (in the
form of an Assignment and Acceptance) in accordance with their
respective percentage of the remaining aggregate Commitments;
provided, that, such Banks shall be provided such opportunity (which
opportunity shall allow such Banks at least 30 days in which to make a
decision) prior to the Borrowers finding another bank pursuant to the
immediately succeeding clause (y); and, provided, further, that,
should any of the remaining Banks elect not to purchase such an
assignment, then, such other remaining Banks shall be entitled to
purchase an assignment from any Terminating Bank which includes the
ratable interest that was otherwise available to such non-purchasing
remaining Bank or Banks, as the case may be, or
<PAGE>
(B) the Borrowers shall find another bank, acceptable to the
Administrative Agent, willing to accept an assignment from such
Terminating Bank (in the form of an Assignment and Acceptance) on or
before the Extension Date, or
(C) the Borrowers shall reduce the aggregate Commitments in an
amount equal to the Commitment of any such Terminating Bank and pay to
the terminating Bank all principal, interest, fees and other amounts
then payable to it hereunder and under such terminating Bank's Notes.
Notwithstanding the foregoing, if the Termination Date is not extended
for an additional one year period on each Extension Date, there shall
be no further Extension Dates or extensions of the Termination Date.
If the Termination Date is extended for an additional one year period
on each Extension Date, the Borrowers shall pay to the Administrative
Agent, for the ratable account of the remaining Banks, an extension
fee in an amount equal to 0.10% of the aggregate Commitments in effect
on the relevant Extension Date, which fee shall be payable on such
Extension Date.
SECTION 2.06. Interest Rates
--------------
(a) "Applicable Margin" means
(i) for the period commencing on the Closing Date to and including the
first Performance Pricing Determination Date, (x) for any Base Rate Loan,
(0.25)%, and (y) for any Euro-Dollar Loan, 0.95%; and
(ii) from and after the first Performance Pricing Determination Date,
(x) for any Base Rate Loan, (0.25)% and (y) for each Euro-Dollar Loan, the
percentage determined on each Performance Pricing Determination Date by
reference to the table set forth below as to such type of Loan and the Debt
Rating for the quarterly or annual period ending immediately prior to such
Performance Pricing Determination Date; provided, that (i) if there is no
Debt Rating, the Applicable Margin for Euro-Dollar Loans shall be based
upon Level IV of the table below, and (ii) for Euro-Dollar Loans in effect
under the Original Agreement on the Closing Date, the Applicable Margin in
effect under the Original Agreement shall continue to apply thereto for the
remainder of the Interest Period with respect thereto.
<TABLE>
<CAPTION>
------------------ ---------------- ---------- ----------- -------------------
Level I Level II Level III Level IV
------------------ ---------------- ---------- ----------- -------------------
------------------ ---------------- ---------- ----------- -------------------
<S> <C> <C> <C> <C>
Debt Rating greater than
or equal to BBB+ BBB BBB- less than BBB-
or or or or
greater than Baa2 Baa3 less than Baa3
or equal to Baa1
------------------ ---------------- ---------- ----------- -------------------
------------------ ---------------- ---------- ----------- -------------------
Applicable Margin 0.825 0.95 1.10 1.30
------------------ ---------------- ---------- ----------- -------------------
</TABLE>
In determining the amounts to be paid by the Borrowers pursuant to Sections
2.06(b), and 2.07(a), the Borrowers and the Banks shall refer to the Parent's
Debt Rating from time to time. For purposes hereof, "Performance Pricing
Determination Date" shall mean each date on which the Debt Rating changes. Each
change in interest and fees as a result of a change in Debt Rating shall be
effective only for Loans (including Refunding Loans) which are made on or after
the relevant Performance Pricing Determination Date. All determinations
hereunder shall be made by the Administrative Agent unless the Required Banks or
the Borrowers shall object to any such determination. The Parent shall promptly
notify the Administrative Agent of any change in the Debt Rating.
(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day less the Applicable
Margin. Such interest shall be payable for each Interest Period on the last day
thereof. Any overdue principal of and, to the extent permitted by applicable
law, overdue interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
<PAGE>
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin plus the applicable Adjusted London
Interbank Offered Rate for such Interest Period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than 1 month, at intervals of 1 month after the first day thereof. Any
overdue principal of and, to the extent permitted by law, overdue interest on
any Euro-Dollar Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upwards,
if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered for
a term comparable to such Interest Period, which rates appear on Telerate Page
3750 effective as of 11:00 A.M., London time, 2 Euro-Dollar Business Days prior
to the first day of such Interest Period, provided that if no such offered rates
appear on such page, the "London Interbank Offered Rate" for such Interest
Period will be the arithmetic average (rounded upward, if necessary, to the next
higher 1/100th of 1%) of rates quoted by not less than 2 major banks in New York
City, selected by the Administrative Agent, at approximately 10:00 A.M., New
York City time, 2 Euro-Dollar Business Days prior to the first day of such
Interest Period, for deposits in Dollars offered by leading European banks for a
period comparable to such Interest Period in an amount equal or comparable to
the principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Agent shall give prompt notice to the Borrowers and
the Banks by telecopier of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of an Event of Default,
the principal amount of the Loans (and, to the extent permitted by applicable
law, all accrued interest thereon) may, at the election of the Required Banks,
bear interest at the Default Rate.
(f) Each Money Market Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Money Market Loan is made until
it becomes due, at a rate per annum equal to the applicable Money Market Rate
set forth in the relevant Money Market Quote. Such interest shall be payable on
the Stated Maturity Date thereof, and, if the Stated Maturity Date occurs more
than 90 days after the date of the relevant Money Market Loan, at intervals of
90 days after the first day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
<PAGE>
SECTION 2.07. Fees
----
(a) The Borrowers shall pay to the Administrative Agent, for the ratable
account of each Bank, a facility fee (the "Facility Fee") on the maximum amount
of the aggregate Commitments in effect for any relevant period, irrespective of
usage, calculated in the manner provided in Section 2.07(a)(ii), at a rate per
annum equal to
(i) for the period commencing on the Closing Date to and including the
first Performance Pricing Determination Date, 0.15%, and
(ii) from and after the first Performance Pricing Determination Date,
the percentage determined on each Performance Pricing Determination Date by
reference to the table set forth below and the Debt Rating for the
quarterly or annual period ending immediately prior to such Performance
Pricing Determination Date; provided, that if there is no Debt Rating, the
Facility Fee shall be based upon Level IV of the table below. The Facility
Fee shall accrue at all times from and including the Closing Date to but
excluding the Termination Date and shall be payable, in arrears, on each
March 31, June 30, September 30 and December 31 and on the Termination
Date.
<TABLE>
<CAPTION>
------------- -------------- -------------- ------------- ------------
Level I Level II Level III Level IV
------------- -------------- -------------- ------------- ------------
------------- -------------- -------------- ------------- ------------
<S> <C> <C> <C> <C>
Debt Rating greater than less than
or equal to
BBB+ BBB BBB- BBB-
or or or or
greater than Baa2 Baa3 less than
or equal to
Baa1 Baa3
------------- -------------- -------------- ------------- ------------
------------- -------------- -------------- ------------- ------------
Facility Fee 0.125 0.15 0.15 0.15
------------- -------------- -------------- ------------- ------------
</TABLE>
(b) The Borrowers shall pay to the Administrative Agent, for the account
and sole benefit of the Administrative Agent, such fees and other amounts at
such times as set forth in the Administrative Agent's Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of Commitments
------------------------------------------------
The Borrowers may, upon at least 3 Domestic Business Days' notice to the
Administrative Agent, terminate at any time, or proportionately reduce the
Unused Commitments from time to time by an aggregate amount of at least
$5,000,000 or any larger integral multiple of $1,000,000. If the Commitments are
terminated in their entirety, all accrued fees (as provided under Section 2.07)
shall be due and payable on the effective date of such termination.
SECTION 2.09. Mandatory Reduction and Termination of Commitments
--------------------------------------------------
The Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
such date. In the event of a Change in Control, the Administrative Agent (acting
at the direction of the Required Banks) may terminate the Commitments on a date
specified in a notice to the Borrowers, which date (i) must be at least 3
Domestic Business Days following the date of such notice, and (ii) shall
constitute the Termination Date for all purposes hereunder.
<PAGE>
SECTION 2.10. Optional Prepayments
--------------------
(a) The Borrowers may, upon at least 2 Domestic Business Days' notice to
the Administrative Agent, prepay any Fixed Rate Borrowing in whole at any time,
or from time to time in part in amounts aggregating at least $3,000,000 or any
larger integral multiple of $500,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment, plus
the amount of compensation determined to be due pursuant to Section 8.05, if
such prepayment is not made on the last of an Interest Period. Each such
optional prepayment shall be applied to prepay ratably the Fixed Rate Loans of
the several Banks included in such Fixed Rate Borrowing.
(b) The Borrowers may, upon at least 1 Domestic Business Days' notice to
the Administrative Agent, prepay any Base Rate Borrowing in whole at any time,
or from time to time in part in amounts aggregating at least $ 3,000,000 or any
larger integral multiple of $500,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the Base Rate Loans
of the several Banks included in such Base Rate Borrowing.
(c) Upon receipt of a notice of prepayment pursuant to this Section 2.10,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment and such notice, once
received by the Administrative Agent, shall not thereafter be revocable by the
Borrowers.
SECTION 2.11. Mandatory Prepayments
---------------------
(a) On each date on which the Commitments are reduced pursuant to Section
2.08, the Borrowers shall repay or prepay such principal amount of the
outstanding Loans, if any (together with interest accrued thereon and any amount
required to be paid pursuant to Section 8.05(a)), as may be necessary so that
after such payment the aggregate unpaid principal amount of the Loans does not
exceed the aggregate amount of the Commitments as then reduced. On the
Termination Date, the Borrowers shall make the payments required to be made
pursuant to Section 2.09.
(b) On each date on which the aggregate outstanding principal amount of all
Syndicated Loans and Money Market Loans exceeds the lesser of (A) the aggregate
amount of the Commitments and (B) the Borrowing Base (the "Excess"), the
Borrowers shall repay or prepay such principal amount of the outstanding Loans,
if any (together with interest accrued thereon and any amount due under Section
8.05(a)), by the amount of the Excess.
(c) Each such payment or prepayment shall be applied ratably to the Loans
of the Banks outstanding on the date of payment or prepayment in the following
order of priority:(i) first, to Base Rate Loans; (ii) secondly, to Euro-Dollar
Loans; and (iii) lastly, to Money Market Loans.
SECTION 2.12. General Provisions as to Payments
---------------------------------
(a) The Borrowers shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, not later than 1:00 P.M. (Atlanta, Georgia
time) on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Administrative Agent at its address referred to in
Section 9.01. The Administrative Agent will distribute to each Bank its ratable
share of each such payment received by the Administrative Agent for the account
of the Banks, such payment to be distributed by the Administrative Agent (x) by
2:00 P.M. on the date of receipt by the Administrative Agent, provided that such
payment was received by the Administrative Agent by 1:00 P.M. (Atlanta, Georgia
time), and (y) by 2:00 P.M. (Atlanta, Georgia time) on the date following the
date of receipt by the Administrative Agent, if such payment was received by the
Administrative Agent after 1:00 P.M. (Atlanta, Georgia time). If the
Administrative Agent shall fail to make such distribution within the time
required by the immediately preceding sentence, such distribution shall be made
together with interest thereon, for each day during the period from the date
such distribution should have been so made until the date such distribution
actually is made, at a rate per annum equal to the Federal Funds Rate.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or Money Market Loans or of fees hereunder shall be due on a day which is
not a Domestic Business Day, the date for payment thereof shall be extended to
the next succeeding Domestic Business Day. Whenever any payment of principal of
or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day.
<PAGE>
(c) All payments of principal, interest and fees and all other amounts to
be made by the Borrowers pursuant to this Agreement with respect to any Loan or
fee relating thereto shall be paid without deduction for, and free from, any
tax, imposts, levies, duties, deductions, or withholdings of any nature now or
at anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank's applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, imposts, levies, duties, deductions or withholdings of any nature being
"Taxes"). In the event that the Borrowers are required by applicable law to make
any such withholding or deduction of Taxes with respect to any Loan or fee or
other amount, the Borrowers shall pay such deduction or withholding to the
applicable taxing authority, shall promptly furnish to any Bank in respect of
which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may be
necessary in order that the amount received by such Bank after the required
withholding or other payment shall equal the amount such Bank would have
received had no such withholding or other payment been made.
Each Bank which is not organized under the laws of the United States or any
state thereof agrees, as soon as practicable after receipt by it of a request by
the Borrowers to do so, to file all appropriate forms and take other appropriate
action to obtain a certificate or other appropriate document from the
appropriate governmental authority in the jurisdiction imposing the relevant
Taxes, establishing that it is entitled to receive payments of principal and
interest under this Agreement and the Notes without deduction and free from
withholding of any Taxes imposed by such jurisdiction; provided that if it is
unable, for any reason, to establish such exemption, or to file such forms and,
in any event, during such period of time as such request for exemption is
pending, the Borrowers shall nonetheless remain obligated under the terms of the
immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by the Borrowers
pursuant to this Section 2.12(c), it will pay to the Borrowers the amount of
such refund promptly upon receipt thereof; provided that if at any time
thereafter it is required to return such refund, the Borrowers shall promptly
repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements and obligations of the Borrowers and the Banks
contained in this Section 2.12(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by such
provisions (i) shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing agreement and
shall survive the termination of this Agreement and the payment in full or
cancellation of the Notes.
SECTION 2.13. Computation of Interest and Fees
--------------------------------
Interest on Base Rate Loans and Money Market Loans shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). Interest on Euro-Dollar
Loans shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed, calculated as to each Interest Period from and
including the first day thereof to but excluding the last day thereof.
Commitment fees and any other fees payable hereunder shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).
<PAGE>
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing
-----------------------------
The obligation of each Bank to make a Syndicated Loan on the occasion of
the first Borrowing is subject to the satisfaction of the conditions set forth
in Section 3.02 and receipt by the Administrative Agent of the following (as to
the documents described in paragraphs (a), (c),(d) and (e) below, in sufficient
number of counterparts for delivery of a counterpart to each Bank and retention
of one counterpart by the Administrative Agent):
(a) from each of the parties hereto of either (i) a duly executed
counterpart of this Agreement signed by such party or (ii) a facsimile
transmission of such executed counterpart, with the original to be sent to the
Administrative Agent by overnight courier);
(b) a duly executed Syndicated Loan Note and Money Market Loan Note for the
account of each Bank complying with the provisions of Section 2.04 and a duly
executed Guaranty and Contribution Agreement, and from each Bank which holds any
of the Original Notes, such Original Notes;
(c) an opinion letter (i) (together with any opinions of local counsel
relied on therein) of Locke Liddell & Sapp, LLP, counsel for the Borrowers,
dated as of the Closing Date, in form and substance satisfactory to the
Administrative Agent in its reasonable discretion, the forms attached hereto as
Exhibit B and covering such additional matters relating to the transactions
contemplated hereby as the Administrative Agent or any Bank may reasonably
request;
(d) an opinion of Jones, Day, Reavis & Pogue, special counsel for the
Administrative Agent, dated as of the Closing Date, substantially in the form of
Exhibit C and covering such additional matters relating to the transactions
contemplated hereby as the Administrative Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in the form of
Exhibit G), dated as of the Closing Date, signed by an Executive Officer (other
than the Secretary), to the effect that (i) no Default has occurred and is
continuing on the date of the first Borrowing and (ii) the representations and
warranties of the Borrowers contained in Article IV are true on and as of the
date of the first Borrowing hereunder;
(f) all documents which the Administrative Agent or any Bank may reasonably
request relating to the existence of the Borrowers, the corporate authority for
and the validity of this Agreement, the Notes and the Guaranty, and any other
matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent, including, without limitation, certificates of incumbency
of the General Partner and of each Guarantor, signed by the Secretary or an
Assistant Secretary of the General Partner and each Guarantor, in form and
substance satisfactory to the Administrative Agent (the "Officer's
Certificate"), certifying as to the names, true signatures and incumbency of the
officer or officers of the General Partner and Guarantor authorized to execute
and deliver the Loan Documents on behalf of the Borrowers or Guarantors, and
certified copies of the following items:
(i) for the Parent (1) its Certificate of Limited Partnership and all
amendments thereto, issued by the Secretary of State of Delaware (or its
certificate that there have been no amendments thereto since the date of
the Original Agreement and that it is still in full force and affect); (2)
its Fourth Amended and Restated Partnership Agreement dated as of November
12, 1998 and all amendments thereto and (3) its Application for
Registration as a Foreign Limited Partnership and all amendments thereto,
filed in the office of the Secretary of State of Texas (or its certificate
that there have been no amendments thereto since the date of the Original
Agreement and that it is still in full force and affect);
(ii) for the General Partner, (1) its Certificate of Incorporation and
all amendments thereto, issued by the Secretary of State of Texas (or its
certificate that there have been no amendments thereto since the date of
the Original Agreement and that it is still in full force and affect), (2)
its Bylaws and all amendments thereto (or its certificate that there have
been no amendments thereto since the date of the Original Agreement and
that it is still in full force and affect) and (3) a Certificate of
Existence issued by the Secretary of State of Texas;
(iii) for GBP, (1) its Declaration of Trust and all amendments
thereto(or its certificate that there have been no amendments thereto since
the date of the Original Agreement and that it is still in full force and
affect) and (2) its Bylaws and all amendments thereto (or its certificate
that there have been no amendments thereto since the date of the Original
Agreement and that it is still in full force and affect); and
<PAGE>
(g) for Gables-TN, its Operating Agreement dated December 30, 1999 and all
amendments thereto; and
(h) receipt of the fees required to be paid on the Closing Date pursuant to
Sections 2.07.
The initial Borrowing hereunder shall include Loans in an amount which is
sufficient to pay in full all existing principal of and accrued and unpaid
interest of all Syndicated Loans outstanding under the Original Agreement on the
Closing Date, and all amounts payable pursuant to Section 7.05 with respect
thereto, and to the extent that any Bank has any Syndicated Loans to be so
repaid, its funding of such initial Loans shall be made pursuant to Section
2.02(d). All Money Market Loans of any Bank which outstanding under the Original
Agreement on the Closing Date shall be deemed to be evidenced by the new Money
Market Loan Note issued to such Bank pursuant to Section 3.01(b).
SECTION 3.02. Conditions to All Borrowings
----------------------------
The obligation of each Bank to make a Syndicated Loan or Money Market Loan,
as the case may be, on the occasion of each Borrowing is subject to the
satisfaction of the following conditions except as expressly provided in the
last sentence of this Section 3.02:
(a) receipt by the Administrative Agent of a Notice of Borrowing or
notification pursuant to Section 2.03(e) of acceptance of one or more Money
Market Quotes, as applicable.
(b) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrowers
contained in Article IV of this Agreement shall be true on and as of the date of
such Borrowing; and
(d) the fact that, immediately after such Borrowing, the conditions set
forth in clauses (i) and (ii) of Section 2.01 shall have been satisfied.
Each Syndicated Borrowing and each Money Market Borrowing hereunder shall
be deemed to be a representation and warranty by the Borrowers on the date of
such Borrowing as to the truth and accuracy of the facts specified in paragraphs
(b), (c) and (d) of this Section; provided that if such Borrowing is a
Syndicated Borrowing which consists solely of a Refunding Loan, such Borrowing
shall not be deemed to be such a representation and warranty to the effect set
forth in Section 4.04(b) as to any event, act or condition having a Material
Adverse Effect which has theretofore been disclosed in writing by the Borrowers
to the Banks.
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrowers and (by incorporation by reference in the Guaranty) the
Guarantors, as expressly stated, each represent and warrant that:
SECTION 4.01. Partnership or Corporate Existence and Power
--------------------------------------------
The Parent is a limited partnership duly created and validly existing under
the laws of Delaware, Gables-TN is a general partnership duly created and
validly existing under the laws of Tennessee, GBP is a trust duly created,
validly existing and in good standing under the laws of Maryland, the General
Partner is a corporation duly organized, validly existing and in good standing
under the laws of Texas, and each of the foregoing is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all partnership powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, except where any such failure does not have and is
not reasonably expected to cause a Material Adverse Effect.
SECTION 4.02. Partnership or Corporate and Governmental Authorization;
No Contravention
--------------------------------------------------------
The execution, delivery and performance by the Borrowers of this Agreement,
the Notes and the other Loan Documents and by the Guarantors of the Guaranty (i)
are within the Borrowers' partnership powers and the Guarantor's respective
corporate powers, (ii) have been duly authorized by all necessary partnership or
corporate action, (iii) require no action by or in respect of or filing with,
any governmental body, agency or official, other than filings required by
federal or state securities laws with respect to this Agreement (iv) do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of limited partnership or partnership agreement
of the Borrowers or the articles of incorporation or by-laws of any Guarantor or
of any material agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrowers, any Guarantor or any other Subsidiaries,
and (v) do not result in the creation or imposition of any Lien on any asset of
the Borrowers, any Guarantor or any other Subsidiaries.
SECTION 4.03. Binding Effect
--------------
This Agreement constitutes a valid and binding agreement of the Borrowers
enforceable in accordance with its terms, and the Notes, the Guaranty and the
other Loan Documents, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of the Borrowers and
the Guarantors parties thereto, enforceable in accordance with their respective
terms, provided that the enforceability hereof and thereof is subject in each
case to general principles of equity and to bankruptcy, insolvency and similar
laws affecting the enforcement of creditors' rights generally.
SECTION 4.04. Financial and Property Information
----------------------------------
(a) The balance sheet of GBP and the consolidated balance sheet of the
Parent and its Consolidated Subsidiaries as of December 31, 1999 and the related
consolidated statements of income, shareholders' equity and cash flows for the
Fiscal Year then ended, in the case of GBP reported on by Arthur Andersen LLP,
copies of which have been delivered to each of the Banks, and the unaudited
financial statement of GBP and consolidated financial statements of the Parent
for the interim period ended March 31, 2000 copies of which have been delivered
to each of the Banks, fairly present, in all material respects, in conformity
with GAAP, subject in the case of quarterly statements to normal year end audit
adjustments, the consolidated financial position of GBP and the Parent and its
Consolidated Subsidiaries, respectively, as of such dates and their consolidated
results of operations and cash flows for such periods stated.
(b) Since December 31, 1999, there has been no event, act, condition or
occurrence having a Material Adverse Effect.
(c) All material information concerning the Properties which has been
furnished to the Banks by the Parent is true and correct in all material
respects.
<PAGE>
SECTION 4.05. No Litigation
-------------
There is no action, suit or proceeding pending, or to the knowledge of the
Executive Officers, threatened, against or affecting the Borrowers, any
Guarantor or any other Subsidiaries before any court or arbitrator or any
governmental body, agency or official which has or is reasonably expected to
cause a Material Adverse Effect or which in any manner draws into question the
validity of or is reasonably expected to impair the ability of the Borrowers or
any Guarantor to perform its obligations under, this Agreement, the Notes, the
Guaranty or any of the other Loan Documents.
SECTION 4.06. Compliance with ERISA
---------------------
(a) The Parent and each member of the Controlled Group have fulfilled their
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and are in compliance in all material respects with the
presently applicable provisions of ERISA and the Code, and have not incurred any
liability to the PBGC or a Plan under Title IV of ERISA, except where any such
failure does not involve an aggregate amount in excess of $2,500,000.
(b) Neither the Parent nor any member of the Controlled Group is or ever
has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. Compliance with Laws; Payment of Taxes
--------------------------------------
The Borrowers, the Guarantors and the other Subsidiaries are in compliance
with all applicable laws, regulations and similar requirements of governmental
authorities, except where (i) such compliance is being contested in good faith
through appropriate proceedings or (ii) any failure to comply does not have and
is not reasonably expected to cause a Material Adverse Effect. There have been
filed on behalf of the Borrowers, the Guarantors and the other Subsidiaries all
Federal, state and local income, excise, property and other tax returns which
are required to be filed by them and all taxes due pursuant to such returns or
pursuant to any assessment received by or on behalf of the Borrowers, the
Guarantors or any other Subsidiary have been paid, except: (A) ad valorem taxes
not due and payable; and (B) other liabilities, if (1) they are being contested
in good faith and against which the Borrowers, Guarantor or Subsidiary has set
up reserves in accordance with GAAP, or (2) the aggregate amount involved is not
in excess of $2,500,000. The charges, accruals and reserves on the books of the
Borrowers, the Guarantors and the other Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Borrowers and the
Guarantors, adequate. United States income tax returns of GBP for the 1994
Fiscal Year have been timely filed. GBP has received no written communication
from the Internal Revenue Service regarding such returns.
SECTION 4.08. Subsidiaries
------------
The Parent has no Subsidiaries except for those Subsidiaries listed on
Schedule 4.08, as supplemented from time to time, which accurately sets forth
each such Subsidiary's complete name and jurisdiction of incorporation.
SECTION 4.09. Investment Company Act
----------------------
Neither the Borrowers, the Guarantors nor any other Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.10. Public Utility Holding Company Act
----------------------------------
Neither the Borrowers, any Guarantor nor any Subsidiary is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property
---------------------
Each of the Borrowers, the Guarantors and the Subsidiaries has title to its
properties sufficient for the conduct of its business, except where any such
failure does not have and is not reasonably expected to cause a Material Adverse
Effect.
<PAGE>
SECTION 4.12. No Default
----------
Neither the Borrowers, the Guarantors nor any of the Subsidiaries is in
default under or with respect to any agreement, instrument or undertaking to
which it is a party or by which it or any of its property is bound which has or
is reasonably expected to cause a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure
---------------
All information heretofore furnished by the Borrowers or any Guarantor to
the Administrative Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrowers to the Administrative Agent or any Bank
will be, true, accurate and complete in all material respects or based on
reasonable estimates on the date as of which such information is stated or
certified. The Borrowers and the Guarantors have disclosed to the Banks in
writing any and all facts which have had or are reasonably expected to cause a
Material Adverse Effect.
SECTION 4.14. Environmental Matters
---------------------
(a) Neither the Borrowers, the Guarantors nor any other Subsidiary is, to
the knowledge of the Executive Officers, subject to any Environmental Liability
which has had or is reasonably expected to cause a Material Adverse Effect and
neither the Borrowers, the Guarantors nor any other Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA, except as disclosed in writing to the Administrative
Agent (and the Administrative Agent shall promptly furnish a copy of any such
disclosure to the Banks). None of the Properties has been identified on any
current or proposed (i) National Priorities List under 40 C.F.R. Section 300,
(ii) CERCLIS list or (iii) any list arising from a state statute similar to
CERCLA, except as disclosed in writing to the Administrative Agent, if any such
disclosures have been made.
(b) No Hazardous Materials have been permitted or are being permitted to be
used, produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the Properties,
or, to the best of the knowledge of the Executive Officers, at or from any
adjacent site or facility, except for Hazardous Materials, such as cleaning
solvents, pesticides and other materials used, stored, disposed of, managed, or
otherwise handled in all material respects in compliance with all applicable
Environmental Requirements and except as disclosed in writing to the
Administrative Agent.
(c) The Borrowers, each Guarantor and each of the Subsidiaries, has
procured all Environmental Authorizations necessary for the conduct of its
business, and is in compliance with all Environmental Requirements (including,
to the best knowledge of the Executive Officers, with respect to any
Environmental Releases) in connection with the operation of the Properties and
the Borrowers', each Guarantor's and each other Subsidiary's respective
businesses, except where any such failure to comply does not have and is not
reasonably expected to cause a Material Adverse Effect.
SECTION 4.15. Partner Interests and Capital Stock
-----------------------------------
All Partner Interests and Capital Stock, debentures, bonds, notes and all
other securities of the Borrowers, each Guarantor and each of the other
Subsidiaries presently issued and outstanding are validly and properly issued in
accordance with all applicable laws, including, but not limited to, the "Blue
Sky" laws of all applicable states and the federal securities laws, except where
any such failure to comply does not and is not reasonably expected to cause a
Material Adverse Effect. The issued shares of Capital Stock of the Parent's
Wholly Owned Subsidiaries are owned by the Borrower free and clear of any Lien
or adverse claim. At least a majority of the issued shares of non-voting Capital
Stock of each of the Parent's other Subsidiaries is owned by the Parent free and
clear of any Lien or adverse claim.
<PAGE>
SECTION 4.16. Margin Stock
------------
Neither the Borrowers, any Guarantor nor any of the Subsidiaries is engaged
principally, or as one of its important activities, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any Loan
will be used to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock, or be used for any
purpose which violates, or which is inconsistent with, the provisions of
Regulation X.
SECTION 4.17. Insolvency
----------
After giving effect to the execution and delivery of the Loan Documents and
the making of the Loans under this Agreement: (i) neither the Borrowers nor any
Guarantor will (x) be "insolvent," within the meaning of such term as used in
O.C.G.A. Section 18-2-22 or as defined in Section 101 of the "Bankruptcy Code",
or Section 2 of either the "UFTA" or the "UFCA", or as defined or used in any
"Other Applicable Law" (as those terms are defined below), or (y) be unable to
pay its debts generally as such debts become due within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA, or
(z) have an unreasonably small capital to engage in any business or transaction,
whether current or contemplated, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii) the
obligations of the Borrowers under the Loan Documents and with respect to the
Loans will not be rendered avoidable under any Other Applicable Law. For
purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the United
States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA" means the
Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means any other
applicable state law pertaining to fraudulent transfers or acts voidable by
creditors, in each case as such law may be amended from time to time.
SECTION 4.18. Insurance
---------
The Borrowers, each Guarantor and each of the Subsidiaries has (either in
the name of the Borrowers, such Guarantor or in such other Subsidiary's own
name), with financially sound and reputable insurance companies having an A.M.
Best rating of B+ or better, insurance on all its property in at least such
amounts and against at least such risks as are usually insured against in the
same general area by companies of established repute engaged in the same or
similar business.
SECTION 4.19. Real Estate Investment Trust
----------------------------
GBP is qualified under the Code as a real estate investment trust.
<PAGE>
ARTICLE V
COVENANTS
The Borrowers and (by incorporation by reference in the Guaranty) the
Guarantors agree that, so long as any Bank has any Commitment hereunder or any
amount payable hereunder or under any Note remains unpaid:
SECTION 5.01. Information
-----------
GBP and the Borrowers will deliver to each of the Banks:
(a) as soon as available and in any event within 90 days after the end of
each Fiscal Year, a consolidated balance sheet of GBP and its Consolidated
Subsidiaries as of the end of its Fiscal Year and the related consolidated
statements of income, shareholders' equity and cash flows for such Fiscal Year,
setting forth in each case in comparative form the figures for the previous
Fiscal Year, all certified by Arthur Andersen LLP or other independent public
accountants of nationally recognized standing, with such certification to be
free of exceptions and qualifications as to the scope of the audit or as to the
going concern nature of the business;
(b) as soon as available and in any event within 45 days after the end of
each of the first 3 Fiscal Quarters of each Fiscal Year, a consolidated balance
sheet of GBP and its Consolidated Subsidiaries as of the end of such Fiscal
Quarter and the related statement of income and statement of cash flows for such
Fiscal Quarter and for the portion of the Fiscal Year ended at the end of such
Fiscal Quarter, setting forth in each case in comparative form the figures for
the corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by an Executive Officer;
(c) simultaneously with the delivery of each set of financial statements
referred to in paragraphs (a) and (b) above, a certificate, substantially in the
form of Exhibit F (a "Compliance Certificate"), of an Executive Officer (i)
setting forth in reasonable detail the calculations required to establish
whether the Parent was in compliance with the requirements of Sections 5.03
through 5.09, inclusive, and Sections 5.25, 5.27 and 5.28, on the date of such
financial statements and (ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Parent is taking or proposes to take with
respect thereto;
(d) within 5 Domestic Business Days after any Executive Officer becomes
aware of the occurrence of any Default, a certificate of an Executive Officer
setting forth the details thereof and the action which the Parent is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the holders of beneficial
ownership in GBP generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon the filing thereof, notice of the filing of all
registration statements (other than any registration statements on Form S-3 or
Form S-8 or the equivalent thereof) and annual, quarterly or monthly reports
(excluding Form 4, Statement of Changes in Beneficial Ownership, or its
equivalent, unless they reflect a Change in Control), any filing on Form 8-K,
and any filing pursuant to the Williams Act, which GBP shall have filed with the
Securities and Exchange Commission, and, upon the request of any Bank, copies of
any of the foregoing (other than the exhibits to any registration statements);
(g) if and when any member of the Controlled Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or (iii)
receives notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice;
(h) within 45 Domestic Business Days after the end of each Fiscal Quarter,
a Borrowing Base Certificate as of the last day of the Fiscal Quarter just
ended; provided, however, that at the Parent's election, Parent may, and or at
the Administrative Agent's election on not less than 10 Domestic Business Days
notice, Parent shall, submit a Borrowing Base Certificate to the Administrative
Agent on or before the twentieth Domestic Business Day after the end of the
first or second month in any Fiscal Quarter, as of the last day of such month;
<PAGE>
(i) by April 1 of each year, a report as of the end of such Fiscal Year
containing the following information: (i) a schedule of all outstanding Debt,
showing for each component of Debt, the lender, the total commitment, the total
Debt outstanding, the interest rate, if fixed, or a statement that the interest
rate floats, the term, the required amortization (if any) and the security (if
any); (ii) a schedule of all interest rate protection agreements, showing for
each such agreement, the total dollar amount, the type of agreement (i.e. cap,
collar, swap, etc.) and the term thereof; and (iii) a development schedule of
the announced development pipeline, including for each announced development
project, the project name and location, the number of units, the expected
construction start date, the expected date of delivery of the first units, the
expected stabilization date, and the total anticipated cost.
(j) from time to time such additional information regarding the financial
position or business of the Borrowers and its Subsidiaries as the Administrative
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records
-----------------------------------------
The Borrowers and the Guarantors will (i) keep, and cause each other
Consolidated Subsidiary to keep, proper books of record and account in which
full, true and correct entries in conformity with GAAP shall be made of all
dealings and transactions in relation to its business and activities; and (ii)
permit, and cause each other Consolidated Subsidiary to permit, representatives
of any Bank at such Bank's expense prior to the occurrence of a Default and at
the Borrowers' or such Guarantor's expense after the occurrence and during the
continuance of a Default to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants. The
Borrowers and the Guarantors agree to cooperate and assist in such visits and
inspections, in each case at such reasonable times, upon reasonable prior notice
to the Borrowers or such Guarantor and as often as may reasonably be desired.
SECTION 5.03. Total Secured Debt
------------------
The amount of Total Secured Debt will not at any time exceed 40% of
Adjusted Total Assets Value.
SECTION 5.04. Ratio of Total Debt to Total Assets Value
-----------------------------------------
The ratio of Total Debt to Total Assets Value will not at any time exceed
0.55 to 1.00.
SECTION 5.05. Interest Coverage
-----------------
The ratio of (x) Consolidated Income Available for Debt Service to (y)
Consolidated Interest Expense shall at all times exceed 2.00 to 1.0, calculated
at the end of each Fiscal Quarter, based on the Fiscal Quarter just ended and
the immediately preceding three Fiscal Quarters.
SECTION 5.06. Restricted Payments
-------------------
The Parent's Restricted Payments in any calendar year shall not exceed 95%
of Consolidated Income Available for Distribution for such period, unless (i)
the Parent must pay out an amount in excess of 95% of Consolidated Income
Available for Distribution to permit GBP to preserve its status as a real estate
investment trust under the applicable provision of the Code, or (ii) GBP
declares one or more capital gains dividends within such calendar year (in which
event the amount of additional Restricted Payments that may be made as a result
of such declaration as provided in this clause (ii) shall not exceed the greater
of (A) the income tax liability of the Parent's partners with respect thereto
and (B) $1,500,000). In the event that the Parent or GBP receives a public debt
rating of BBB- or better from Standard & Poors or Baa3 or better from Moody's
Investor's Service and so long as that rating is affirmed during each year, the
Parent's Restricted Payments in any calendar year will be limited to 100% of
Consolidated Income Available for Distribution for such calendar year with the
same exceptions contained in clauses (i) and (ii) of this Section 5.06.
<PAGE>
SECTION 5.07. Loans or Advances
-----------------
Neither the Borrowers, the Guarantors nor any other Subsidiary shall make
loans or advances to any Person except: (i) deposits required by government
agencies or public utilities; (ii) loans and advances made by Borrowers or any
Guarantor to any Guarantor or to Borrowers; (iii) loans or advances to
directors, officers and employees in the ordinary course of business in the
aggregate outstanding at any time not exceeding $1,000,000; (iv) loans or
advances to employees in the ordinary course of business which are secured by
stock in GBP in the aggregate outstanding at any time not exceeding $5,000,000;
and (v) other loans or advances made in the ordinary course of business in the
aggregate outstanding at any time not exceeding 5% of the book value of the
total assets of the Parent and its Consolidated Subsidiaries, determined in
accordance with GAAP minus all amounts outstanding under clause (iii) of this
Section 5.07 and minus Investments made and permitted pursuant to Section
5.09(D); provided that after giving effect to the making of any loans, advances
or deposits permitted by clauses (i), (ii), (iii) or (iv), the Borrowers will be
in full compliance with all the provisions of this Agreement.
SECTION 5.08. Purchases of Stock by Guarantors
--------------------------------
Except for purchases or acquisitions of shares of GBP's Capital Stock made
for purposes of having such shares available for purchase by GBP shareholders
pursuant to GBP's dividend reinvestment and share purchase program known as "The
Share Builder Plan", as amended as of the Closing Date and, subject to the
approval of the Required Banks (not to be unreasonably withheld), as it may
thereafter be amended, the Guarantors shall not purchase or acquire any shares
of GBP's Capital Stock during any 12 month period in excess of 10% of all GBP's
Capital Stock outstanding on the first day of such period.
SECTION 5.09. Investments
-----------
Neither the Borrowers nor the Guarantors shall make Investments in any
Person except: (A) Investments in (i) direct obligations of the United States
Government, (ii) certificates of deposit issued by a commercial bank whose
credit is satisfactory to the Administrative Agent, (iii) commercial paper rated
A1 or the equivalent thereof by Standard & Poor's Corporation or P1 or the
equivalent thereof by Moody's Investors Service, Inc. and in either case
maturing within 9 months after the date of acquisition, (iv) tender bonds the
payment of the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates of deposit
are rated at least AA or the equivalent thereof by Standard & Poor's Corporation
and Aa or the equivalent thereof by Moody's Investors Service, Inc., (v) insured
money market Investments and/or (vi) Investments in debt or equity securities
rated at least BBB+ or the equivalent thereof by Standard & Poor's Corporation
or at least Baa1 or the equivalent thereof by Moody's Investors Service not
exceeding an aggregate amount outstanding at any time of $25,000,000; (B)
Investments permitted by clauses (i), (ii) and (iii) of Section 5.07 or by
Section 5.08; (C) Investments in Significant Subsidiaries; (D) the South Florida
Acquisition; and (E) other Investments not exceeding an aggregate amount
outstanding at any time 10% of the book value of the total assets of the Parent
and its Consolidated Subsidiaries, determined in accordance with GAAP, less
loans and advances outstanding and permitted by clause (iv) of Section 5.07.
SECTION 5.10. Dissolution
-----------
Neither the Borrowers, the Guarantors nor any of the other Subsidiaries
shall suffer or permit dissolution or liquidation either in whole or in part or
redeem or retire any shares of its own stock or that of any Subsidiary, except
to the extent permitted by Section 5.11 and except for purchases by GBP of its
own Capital Stock to the extent permitted by Section 5.08, and subject to the
rights of limited partners of the Borrowers to convert or exchange their Partner
Interests in the Borrowers to stock in GBP.
<PAGE>
SECTION 5.11. Consolidations, Mergers and Sales of Assets
-------------------------------------------
The Borrowers and the Guarantors will not, nor will the Borrowers permit
any other Subsidiary to, consolidate or merge with or into, or sell, lease or
otherwise transfer all or any substantial part of its assets to, any other
Person, or discontinue or eliminate any business line or segment, provided that
(a) the Borrowers, any Guarantor and any other Subsidiary may merge with
another Person if (i) such Person was organized under the laws of the United
States of America or one of its states, (ii) the Borrowers or such Guarantor or
other Subsidiary is the corporation surviving such merger and (iii) immediately
after giving effect to such merger, no Default shall have occurred and be
continuing,
(b) any Guarantor may merge with or transfer assets to another Guarantor or
either of the Borrowers (with such Borrower as the survivor of any such merger)
and any other Subsidiary may merge with or transfer assets to a Guarantor,
another Subsidiary, or either of the Borrowers (with such Borrower as the
survivor of any such merger), and
(c) the foregoing limitation on the sale, lease or other transfer of assets
and on the discontinuation or elimination of a business line or segment shall
not prohibit,
(i) the sale of Properties, during any period of 12 calendar months,
pursuant to reasonable terms which are no less favorable to the Borrowers
or such Subsidiary than would be obtained in a comparable arm's length
transaction with a Person which is not an Affiliate, for fair market value
(as determined in good faith by the Board of Directors of the Borrowers or
an Executive Committee thereof), for an aggregate amount, when combined
with all other such sales pursuant to this clause (c)(i), does not exceed
15% of Consolidated Total Assets as of the end of the Fiscal Quarter
immediately preceding the Fiscal Quarter in which such 12 calendar month
period begins, or
(ii) during any Fiscal Quarter, other transfers of assets or the
discontinuance or elimination of a business line or segment (in a single
transaction or in a series of related transactions) unless the aggregate
assets to be so transferred or utilized in a business line or segment to be
so discontinued, when combined with all other assets transferred, and all
other assets utilized in all other business lines or segments discontinued,
during such Fiscal Quarter and the immediately preceding 3 Fiscal Quarters,
excluding in all cases sales permitted under clause (c)(i) above, either
(x) constituted more than 5% of Consolidated Total Assets at the end of the
Fiscal Quarter immediately preceding such Fiscal Quarter, or (y)
contributed more than 5% of Consolidated Income Available for Debt Service
during the 4 Fiscal Quarters immediately preceding such Fiscal Quarter.
In the case of any Subsidiary which transfers substantially all of its
assets pursuant to clause (c) of the preceding sentence, and in the case of any
Subsidiary the stock of which is being sold and with respect to which clause (c)
would have been satisfied if the transaction had been a sale of assets of such
Subsidiary, such Subsidiary may dissolve and, if it is a Guarantor, such
Subsidiaries shall be entitled to obtain from the Administrative Agent a written
release from the Guaranty, provided that it can demonstrate to the reasonable
satisfaction of the Administrative Agent that (A) it was not a Significant
Subsidiary immediately prior to such transfer of assets, and (B) it has repaid
in full all Debt owed to the Borrowers or any other Guarantor which was incurred
after the Closing Date (or such Debt has been assumed by the Borrowers or a
Significant Subsidiary), and upon obtaining such written release, it shall no
longer be a Guarantor for any purpose hereunder.
SECTION 5.12. Use of Proceeds
---------------
The proceeds of the Loans may be used to provide a line of credit for
construction and acquisition financing and for general corporate and partnership
purposes of the Borrowers and the Guarantors. No portion of the proceeds of the
Loans will be used by the Borrowers or any Guarantor (i) in connection with,
whether directly or indirectly, any tender offer for, or other acquisition of,
stock of any corporation with a view towards obtaining control of such other
corporation, unless such tender offer or other acquisition is to be made on a
negotiated basis with the approval of the Board of Directors of the Person to be
acquired or (ii) for any purpose in violation of any applicable law or
regulation.
<PAGE>
SECTION 5.13. Compliance with Laws; Payment of Taxes
--------------------------------------
The Borrowers and Guarantors will, and will cause each of the other
Subsidiaries and each member of the Controlled Group to, comply with applicable
laws (including but not limited to ERISA), regulations and similar requirements
of governmental authorities (including but not limited to PBGC), except where
(i) the necessity of such compliance is being contested in good faith through
appropriate proceedings, or (ii) any failure to comply which does not have and
is not reasonably expected to cause a Material Adverse Effect. The Borrowers and
Guarantors will, and will cause each of the other Subsidiaries to, pay promptly
when due all taxes, assessments, governmental charges, claims for labor,
supplies, rent and other obligations which, if unpaid, might become a Lien
against the Property of the Borrowers, any Guarantor or any other Subsidiary,
except (A) liabilities being contested in good faith and against which, if
requested by the Administrative Agent, the Borrowers, Guarantor or Subsidiary
will set up reserves in accordance with GAAP, and (B) liabilities in an
aggregate amount for all Properties not in excess of $1,000,000.
SECTION 5.14. Insurance
---------
The Borrowers and the Guarantors will maintain, and will cause each of the
other Subsidiaries to maintain (either in the name of the Borrowers or such
Guarantor's or such other Subsidiary's own name), with financially sound and
reputable insurance companies having an A.M. Best rating of B+ or better,
insurance on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies of
established repute engaged in the same or similar business.
SECTION 5.15. Change in Fiscal Year
---------------------
The Borrowers and the Guarantors will not, and will cause the other
Subsidiaries to not, change its Fiscal Year without the consent of the Required
Banks.
SECTION 5.16. Maintenance of Property; Principal Business
-------------------------------------------
The Borrowers and the Guarantors shall, and shall cause each other
Subsidiary to, maintain all of its properties and assets in good condition,
repair and working order, ordinary wear and tear excepted, and maintain all
Multi-Family Property (other than Property consisting of land acquired with
existing improvements which are to be substantially demolished) in a first class
manner. The principal business operations of the Borrowers and the Subsidiaries,
taken as a whole, will be directly or indirectly related to Multi-Family
Properties.
SECTION 5.17. Environmental Notices
---------------------
Promptly upon any Executive Officer's becoming aware thereof, the Borrowers
and the Guarantors shall furnish to the Banks and the Administrative Agent
prompt written notice of all Environmental Liabilities, pending, threatened or
anticipated Environmental Proceedings, Environmental Notices, Environmental
Judgments and Orders, and Environmental Releases at, on, in, under or in any way
affecting the Properties or any adjacent property, which has had or is
reasonably expected to cause a Material Adverse Effect.
SECTION 5.18. Environmental Matters
---------------------
The Borrowers and the Guarantors will not, and will cause the other
Subsidiaries to not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Properties any Hazardous
Materials except for Hazardous Materials such as cleaning solvents, pesticides
and other materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed, managed, or otherwise handled in compliance in all
material respects with all applicable Environmental Requirements.
<PAGE>
SECTION 5.19. Environmental Release
---------------------
The Borrowers and the Guarantors agree that upon any Executive Officer's
becoming aware of the occurrence of an Environmental Release at or on any of the
Properties the Borrowers will act promptly to investigate the extent of, and to
take appropriate action to remediate such Environmental Release, whether or not
ordered or otherwise directed to do so by any Environmental Authority.
SECTION 5.20. Transactions with Affiliates
----------------------------
Neither the Borrowers, the Guarantors nor any of the other Subsidiaries
shall enter into, or be a party to, any transaction with any Affiliate of the
Borrowers, such Guarantor or such other Subsidiary (which Affiliate is not GBP,
the Borrowers, a Guarantor or a Wholly Owned Subsidiary), except as permitted by
law and in the ordinary course of business and pursuant to reasonable terms
which are no less favorable to Borrowers or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person which is not an
Affiliate.
SECTION 5.21. Amendment of Other Agreements
-----------------------------
Within 90 days after the Closing Date, the Borrowers shall amend all other
agreements pertaining to credit facilities with any of the Banks so as to
conform the financial covenants contained therein to those contained in this
Agreement.
SECTION 5.22. Qualification as a Real Estate Investment Trust;
General Partner
---------------------------------------------------
GBP shall at all times remain qualified under the Code as a real estate
investment trust and Gables GP, Inc. shall at all times be the General Partner.
The Parent will not agree to amend or waive the requirements of Section 3.2 of
the limited partnership agreement of the Parent, as in effect on the date of
this Agreement, as such requirements are applicable to the General Partner,
without the prior written consent of the Required Banks (which consent the Banks
hereby agree not to unreasonably withhold or delay).
SECTION 5.23. Significant Subsidiaries to be Guarantors; Election to Become
Guarantor
-------------------------------------------------------------
Any Subsidiary (whether existing on the Closing Date or acquired or created
thereafter) (i) must become a Guarantor promptly upon becoming a Significant
Subsidiary, and (ii) may elect to become a Guarantor at any time if it is not a
Significant Subsidiary, in each case by (x) executing and delivering to the
Administrative Agent a counterpart of the Guaranty and a counterpart of the
Contribution Agreement, thereby becoming a party to each of them, (y) delivering
to the Administrative Agent an opinion of counsel to such Subsidiary, in form
and substance satisfactory to the Administrative Agent in its reasonable
discretion, the form attached hereto as Exhibit B (being one such satisfactory
form, but limited to such Subsidiary, and making appropriate modifications,
including references to this Agreement and to Wachovia Bank, N.A., as
Administrative Agent, rather than to the Original Agreement and Wachovia Bank of
Georgia, N.A., respectively, and excluding paragraph 2 thereof, and (z)
delivering to the Administrative Agent documents pertaining to the Subsidiary
reasonably requested by the Administrative Agent of the types described in
paragraph (f) of Section 3.01 (but making appropriate modifications, including
references to this Agreement and to Wachovia Bank, N.A., as Administrative
Agent, rather than to the Original Agreement and Wachovia Bank of Georgia, N.A.,
respectively).
SECTION 5.24. Certain Provisions Regarding Eligible Properties
------------------------------------------------
Neither the Borrowers nor any Consolidated Subsidiary will create, assume
or suffer to exist any Lien on any Eligible Property included in the Borrowing
Base, now owned or hereafter acquired by it, except Permitted Encumbrances.
SECTION 5.25. Restrictions of Certain Additional Guarantees
---------------------------------------------
Neither the Borrowers nor any of the Guarantors shall incur or permit to
exist any Guarantees of unsecured revolving Debt, other than the Guaranty made
hereunder, in an aggregate principal amount outstanding at any time of
$25,000,000 or more.
<PAGE>
SECTION 5.26. Maintenance of Existence
------------------------
The Borrowers shall, and shall cause each Subsidiary to, maintain its
corporate existence and carry on its business in substantially the same manner
and in substantially the same fields as such business is now carried on and
maintained.
SECTION 5.27. Ratio of Total Unencumbered Assets Value to
Unsecured Funded Debt
--------------------------------------------
The ratio of Total Unencumbered Assets Value to Unsecured Funded Debt will
not at any time be less than 1.75 to 1.00.
SECTION 5.28. Consolidated Fixed Charges Coverage Ratio
-----------------------------------------
At the end of each Fiscal Quarter, the Consolidated Fixed Charges Coverage
Ratio shall not be less than 1.75 to 1.0.
<PAGE>
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default
-----------------
If one or more of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrowers shall fail to pay when due any principal of any Loan or
shall fail to pay any interest on any Loan within 5 Domestic Business Days after
such interest shall become due, or shall fail to pay any fee or other amount
payable hereunder within 5 Domestic Business Days after such fee or other amount
becomes due; or
(b) the Borrowers or any Guarantor shall fail to observe or perform any
covenant contained in Sections 5.01(c), 5.02(ii), 5.03 through 5.12, inclusive,
Sections 5.22 or Sections 5.24 through 5.28; or
(c) the Borrowers or any Guarantor shall fail to observe or perform any
covenant or agreement contained in this Agreement or any other Loan Document
(other than those covered by paragraph (a) or (b) above) and such failure shall
not have been cured within 30 days after the earlier to occur of (i) written
notice thereof has been given to the Borrowers or such Guarantor by the
Administrative Agent at the request of any Bank or (ii) an Executive Officer or
such Guarantor otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or statement made by the
Borrowers or any Guarantor in Article IV of this Agreement or in any other Loan
Document or in any certificate, financial statement or other document delivered
pursuant to this Agreement or any other Loan Document shall prove to have been
incorrect or misleading in any material respect when made (or deemed made); or
(e) the Borrowers, GBP or any Subsidiary shall fail to make any payment in
respect of Debt outstanding (other than the Notes) when due or within any
applicable grace period, if the amount of any such Debt of the Borrowers, GBP or
any Subsidiary individually is $5,000,000 or more or if the aggregate amount of
all such Debt of the Borrowers, GBP and all Subsidiaries is $10,000,000 or more;
or
(f) any event or condition shall occur which results in the acceleration of
the maturity of Debt outstanding of the Borrowers, GBP or any Subsidiary
(including, without limitation, any required mandatory prepayment or "put" of
such Debt to the Borrowers or any Subsidiary) or enables (or, with the giving of
notice or lapse of time or both, would enable) the holders of such Debt or
commitment or any Person acting on such holders' behalf to accelerate the
maturity thereof or terminate any such commitment (including, without
limitation, any required mandatory prepayment or "put" of such Debt to the
Borrowers or any Subsidiary), if the amount of any such Debt of the Borrowers,
GBP or any Subsidiary individually is $5,000,000 or more or if the aggregate
amount of all such Debt of the Borrowers, GBP and all Subsidiaries is
$10,000,000 or more; or
(g) the Borrowers, GBP or any Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced against the
Borrowers, GBP or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrowers, GBP or any Subsidiary under the
federal bankruptcy laws as now or hereafter in effect; or
<PAGE>
(i) the Borrowers or any member of the Controlled Group shall fail to pay
when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrowers, any
member of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan or Plans must be terminated; or the Borrowers or any other member
of the Controlled Group shall enter into, contribute or be obligated to
contribute to, terminate or incur any withdrawal liability with respect to, a
Multiemployer Plan; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the Borrowers
or any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrowers or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrowers or any Subsidiary under Section 4068 of ERISA and in
either case such lien shall remain undischarged for a period of 25 days after
the date of filing.
then, and in every such event, (i) the Administrative Agent shall, if requested
by the Required Banks, by notice to the Borrowers terminate the Commitments and
they shall thereupon terminate, (ii) the Administrative Agent shall, if
requested by the Required Banks, by notice to the Borrowers declare the Notes
(together with accrued interest thereon), and all other amounts payable
hereunder and under the other Loan Documents, to be, and the Notes, together
with accrued interest thereon, and all other amounts payable hereunder and under
the other Loan Documents shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrowers together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default, and (iii) any Bank may terminate its obligation to fund a Money
Market Loan in connection with any relevant Money Market Quote; provided that if
any Event of Default specified in paragraph (g) or (h) above occurs with respect
to the Borrowers, without any notice to the Borrowers or any other act by the
Administrative Agent or the Banks, the Commitments shall thereupon terminate and
the Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall automatically and without
notice become immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers
together with interest thereon at the Default Rate accruing on the principal
amount thereof from and after the date of such Event of Default. Notwithstanding
the foregoing, the Administrative Agent shall have available to it all other
remedies at law or equity, and under any of the other Loan Documents, and shall
exercise any one or all of them at the request of the Required Banks.
SECTION 6.02. Notice of Default
-----------------
The Administrative Agent shall give notice to the Borrowers of any Default
under Section 6.01(c) promptly upon being requested to do so by any Bank and
shall thereupon notify all the Banks thereof.
<PAGE>
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Appointment; Powers and Immunities
----------------------------------
(a) Each Bank hereby irrevocably appoints and authorizes the Administrative
Agent to act as its agent hereunder and under the other Loan Documents with such
powers as are specifically delegated to the Administrative Agent by the terms
hereof and thereof, together with such other powers as are reasonably incidental
thereto. The Administrative Agent: (a) shall have no duties or responsibilities
except as expressly set forth in this Agreement and the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be a
trustee for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this Agreement
or any other Loan Document, or in any certificate or other document referred to
or provided for in, or received by any Bank under, this Agreement or any other
Loan Document, or for the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or any other
document referred to or provided for herein or therein or for any failure by the
Borrowers to perform any of its obligations hereunder or thereunder; (c) shall
not be required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Loan Document except to the extent requested by the
Required Banks, and then only on terms and conditions satisfactory to the
Administrative Agent, and (d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other Loan Document or any
other document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The provisions of this
Article VII are solely for the benefit of the Administrative Agent and the
Banks, and the Borrowers shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Administrative Agent
shall act solely as agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for the Borrowers. The duties of the Administrative Agent shall be
ministerial and administrative in nature, and the Administrative Agent shall not
have by reason of this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank. The Administrative Agent shall administer
the Loans and the Loan Documents with a degree of care at least equal to that
customarily employed by the Administrative Agent in the administration of
similar credit facilities for its own account.
(b) Each Bank hereby designates First Union National Bank as Syndication
Agent and The Chase Manhattan Bank as Documentation Agent. The Syndication Agent
and the Documentation Agent, in such capacities, shall have no duties or
obligations whatsoever under this Agreement or any other Loan Document or any
other document or any matter related hereto and thereto, but shall nevertheless
be entitled to all the indemnities and other protection afforded to the Agent
under this Article VII.
SECTION 7.02. Reliance by Administrative Agent
--------------------------------
The Administrative Agent shall be entitled to rely upon any certification,
notice or other communication (including any thereof by telephone, telecopier,
telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants or other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
<PAGE>
SECTION 7.03. Defaults
--------
The Administrative Agent shall not be deemed to have knowledge of the
occurrence of a Default or an Event of Default (other than the nonpayment of
principal of or interest on the Loans) unless the Administrative Agent has
received notice from a Bank or the Borrowers specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Administrative Agent receives such a notice of the occurrence of a Default
or an Event of Default, the Administrative Agent shall give prompt notice
thereof to the Banks. The Administrative Agent shall give each Bank prompt
notice of each nonpayment of principal of or interest on the Loans whether or
not it has received any notice of the occurrence of such nonpayment. The
Administrative Agent shall (subject to Section 9.06) take such action hereunder
with respect to such Default or Event of Default as shall be directed by the
Required Banks, provided that, unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Banks.
SECTION 7.04. Rights of Administrative Agent and its Affiliates as a Bank
-----------------------------------------------------------
With respect to the Loans made by the Administrative Agent and any
Affiliate of the Administrative Agent, Wachovia in its capacity as a Bank
hereunder and any Affiliate of the Administrative Agent or such Affiliate in its
capacity as a Bank hereunder shall have the same rights and powers hereunder as
any other Bank and may exercise the same as though Wachovia were not acting as
the Administrative Agent, and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include Wachovia in its individual capacity and any
Affiliate of the Administrative Agent in its individual capacity. The
Administrative Agent and any Affiliate of the Administrative Agent may (without
having to account therefor to any Bank) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with the
Borrowers (and any of the Borrowers' Affiliates) as if Wachovia were not acting
as the Administrative Agent, and the Administrative Agent and any Affiliate of
the Administrative Agent may accept fees and other consideration from the
Borrowers (in addition to any agency fees and arrangement fees heretofore agreed
to between the Borrowers and the Administrative Agent) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Banks.
SECTION 7.05. Indemnification
---------------
Each Bank severally agrees to indemnify the Administrative Agent, to the
extent the Administrative Agent shall not have been reimbursed by the Borrowers,
ratably in accordance with its Commitment, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement or any other Loan Document or any other
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (excluding, unless an Event of Default has
occurred and is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or any such other documents; provided that
no Bank shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the Administrative Agent. If any
indemnity furnished to the Administrative Agent for any purpose shall, in the
opinion of the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06. Consequential Damages
---------------------
THE ADMINISTRATIVE AGENT SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY BANK,
THE BORROWERS OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
<PAGE>
SECTION 7.07. Payee of Note Treated as Owner
------------------------------
The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent and the provisions of Section 9.08(c) have been satisfied. Any requests,
authority or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of that Note or of
any Note or Notes issued in exchange therefor or replacement thereof.
SECTION 7.08. Nonreliance on Administrative Agent and Other Banks
---------------------------------------------------
Each Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrowers and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any of the other Loan Documents. The
Administrative Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrowers of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrowers or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder or under the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Borrowers or any other Person (or any of their Affiliates) which may come into
the possession of the Administrative Agent; provided, that the Administrative
Agent shall make available to any Bank, upon its request, (i) copies of the
Administrative Agent's records with respect to all sums received or expended by
the Administrative Agent in connection with the Loans and the Loan Documents,
(ii) information as to the amount of the then outstanding Loans, and (iii)
copies of any documents pertaining to an Eligible Property requested by such
Bank and held by the Administrative Agent pursuant to Section 5.24(b).
SECTION 7.09. Failure to Act
--------------
Except for action expressly required of the Administrative Agent hereunder
or under the other Loan Documents, the Administrative Agent shall in all cases
be fully justified in failing or refusing to act hereunder and thereunder unless
it shall receive further assurances to its satisfaction by the Banks of their
indemnification obligations under Section 7.05 against any and all liability and
expense which may be incurred by the Administrative Agent by reason of taking,
continuing to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Administrative Agent
----------------------------------------------
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
giving notice thereof to the Banks and the Borrowers and the Administrative
Agent may be removed at any time with or without cause by the Required Banks.
Upon any such resignation or removal, the Required Banks shall have the right to
appoint a successor Administrative Agent, subject to the approval of the
Borrowers, which approval shall not be unreasonably withheld or delayed;
provided, however, that no such approval of the Borrowers shall be required if
(i) the successor is a Bank or (ii) a Default or Event of Default is in
existence. If no successor Administrative Agent shall have been so appointed by
the Required Banks and shall have accepted such appointment within 30 days after
the retiring Administrative Agent's notice of resignation or the Required Banks'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a successor Administrative Agent,
subject to the approval of the Borrowers, which approval shall not be
unreasonably withheld or delayed; provided, however, that no such approval of
the Borrowers shall be required if (i) the successor is a Bank or (ii) a Default
or Event of Default is in existence. Any successor Administrative Agent shall be
a bank which has a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent hereunder.
<PAGE>
SECTION 7.11. Administrative Agent's Right to Replace Non-Qualifying Bank
-----------------------------------------------------------
In the event that any Bank (a "Non-Qualifying Bank") shall at the end of
any quarter not qualify as a "well-capitalized" bank (within the meaning
provided therefor in 12 CFR Section 6, as amended from time to time) under the
regulations or policies of the Comptroller of the Currency, or the sum of its
non-performing assets and its "Other Real Estate Owned" shall be equal to more
than fifty percent (50%) of its tangible equity, the Administrative Agent, in
its sole discretion, may give notice to such Non-Qualifying Bank and to the
other Banks, with a copy to the Borrowers (the "Replacement Notice"), that it
wishes to seek one or more assignees (which may be one or more of the Banks) to
assume the Commitment of such Non-Qualifying Bank and to purchase its
outstanding Loans and Notes and interest in this Agreement, and in such event:
(i) the remaining Banks may elect to purchase ratable assignments (without any
obligation so to do) from the Non-Qualifying Bank (in the form of an Assignment
and Acceptance and in accordance with Section 9.08(c)) in accordance with their
respective percentage of the remaining aggregate Commitments, by giving notice
of such election to the Administrative Agent and the other Banks, with a copy to
the Borrowers, no later than the date (the "Initial Option Date") which is 15
days after the date of the Replacement Notice; (ii) should any of the remaining
Banks not elect on or before the Initial Option Date to purchase such an
assignment, then, such other remaining Banks shall be entitled to purchase an
assignment from Non-Qualifying Bank which includes the ratable interest that was
otherwise available to such non-purchasing remaining Bank or Banks, by giving
notice of such election to the Administrative Agent and the other Banks, with a
copy to the Borrowers, within 15 days after the Initial Option Date; and (iii)
if and to the extent that the remaining Banks have not elected to purchase such
an assignment, the Administrative Agent may find another assignee to purchase
such assignment. Each Non-Qualifying Bank agrees to sell its Commitment, Loans,
Notes and interest in this Agreement by an Assignment and Acceptance in
accordance with Section 9.08(c) to any such assignee or assignees for an amount
equal to the sum of the outstanding unpaid principal of and accrued interest on
such Loans and Notes, plus all other fees and amounts (including, without
limitation, any compensation claimed by such Non-Qualifying Bank under Section
2.12(c) or this Section 7.11) due such Non-Qualifying Bank hereunder calculated,
in each case, to the date such Loans, Notes and interest are purchased. Upon
such sale or prepayment, and assumption by the assignee or assignees of the
Non-Qualifying Bank's Commitment, such Non-Qualifying Bank shall have no further
Commitment or other obligation to the Borrowers hereunder or under any Note.
<PAGE>
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair
--------------------------------------------------------
If on or prior to the first day of any Interest Period:
(a) the Administrative Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(b) the Required Banks advise the Administrative Agent that the London
Interbank Offered Rate, as determined by the Administrative Agent, will not
adequately and fairly reflect the cost to such Banks of funding the relevant
Euro-Dollar Rate Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrowers
and the Banks, whereupon until the Administrative Agent notifies the Borrowers
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make Euro-Dollar Loans specified in such notice
shall be suspended. Unless the Borrowers notify the Administrative Agent at
least 2 Domestic Business Days before the date of any Euro-Dollar Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
SECTION 8.02. Illegality
----------
If, after the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein or any existing or future law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof (any such agency being referred to as
an "Authority" and any such event being referred to as a "Change of Law"), or
compliance by any Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority shall make it unlawful
or impossible for any Bank (or its Lending Office) to make, maintain or fund its
Euro-Dollar Loans and such Bank shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Banks and
the Borrowers, whereupon until such Bank notifies the Borrowers and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrowers shall immediately prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Bank, together with accrued
interest thereon and any amount due such Bank pursuant to Section 8.05(a).
Concurrently with prepaying each such Euro-Dollar Loan, the Borrowers shall
borrow a Base Rate Loan in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
<PAGE>
SECTION 8.03. Increased Cost and Reduced Return
---------------------------------
(a) If after the date hereof, a Change of Law or compliance by any Bank (or
its Lending Office) with any request or directive (whether or not having the
force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on the United
States market for certificates of deposit or the London interbank market
any other condition affecting its Fixed Rate Loans, its Notes or its
obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Administrative Agent), the Borrowers shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Authority, has or would have the effect of reducing the rate of return on
such Bank's capital as a consequence of its obligations hereunder to a level
below that which such Bank could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank, the Borrowers shall pay
to such Bank such additional amount or amounts as will compensate such Bank for
such reduction.
(c) Each Bank will promptly notify the Borrowers and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations required by
such provisions shall be made based upon the circumstances of such Participant,
Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Bank to make or maintain any Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrowers shall, by at least 5
Euro-Dollar Business Days' prior notice to such Bank, through the Administrative
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrowers that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans, and interest and principal on
such Loans shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Banks, and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans shall
be applied to repay its Base Rate Loans instead.
<PAGE>
SECTION 8.05. Compensation
------------
Upon the request of any Bank, delivered to the Borrowers and the
Administrative Agent, the Borrowers shall pay to such Bank such amount or
amounts as shall compensate such Bank for any loss, cost or expense incurred by
such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10, 2.11, 6.01, 8.02
or otherwise) of a Fixed Rate Loan on a date other than the last day of an
Interest Period for such Loan; or
(b) any failure by the Borrowers to prepay a Euro-Dollar Loan on the date
for such prepayment specified in the relevant notice of prepayment hereunder; or
(c) any failure by the Borrowers to borrow a Fixed Rate Loan on the date
for the Fixed Rate Borrowing of which such Fixed Rate Loan is a part specified
in the applicable Notice of Borrowing delivered pursuant to Section 2.02 or
notification of acceptance of Money Market Quotes pursuant to Section 2.03(e);
such compensation to include, without limitation, if such Fixed Rate Loan is a
Euro-Dollar Loan, an amount equal to the excess, if any, of (x) the amount of
interest which would have accrued on the amount so paid or prepaid or not
prepaid or borrowed for the period from the date of such payment, prepayment or
failure to prepay or borrow to the last day of the then current Interest Period
for such Fixed Rate Loan (or, in the case of a failure to prepay or borrow, the
Interest Period for such Fixed Rate Loan which would have commenced on the date
of such failure to prepay or borrow) at the applicable rate of interest for such
Fixed Rate Loan provided for herein over (y) the amount of interest (as
reasonably determined by such Bank) such Bank would have paid on deposits in
Dollars of comparable amounts having terms comparable to such period placed with
it by leading banks in the London interbank market.
<PAGE>
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices
-------
All notices, requests and other communications to any party hereunder shall
be in writing (including telecopier or similar writing) and shall be given to
such party at its address or telecopier number set forth on the signature pages
hereof or such other address or telecopier number as such party may hereafter
specify for the purpose by notice to each other party. Each such notice, request
or other communication shall be effective (i) if given by telecopier, when such
telecopy is transmitted to the telecopier number specified in this Section and
the confirmation is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
Administrative Agent under Article II or Article IX shall not be effective until
received.
SECTION 9.02. No Waivers
----------
No failure or delay by the Administrative Agent or any Bank in exercising
any right, power or privilege hereunder or under any Note or other Loan Document
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes
---------------------------
The Borrowers shall pay (i) all out-of-pocket expenses of the
Administrative Agent, including fees and disbursements of Jones, Day, Reavis &
Pogue, special counsel for the Banks and the Administrative Agent, in connection
with the preparation of this Agreement and the other Loan Documents, any waiver
or consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder, (ii) legal fees up to but
not in excess of $10,000, plus expenses, incurred by each Bank in connection
with the preparation of this Agreement and the other Loan Documents and (iii) if
a Default occurs, all out-of-pocket expenses incurred by the Administrative
Agent and the Banks, including fees and disbursements of counsel, in connection
with such Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents. The Borrowers shall indemnify the Administrative
Agent and each Bank against any transfer taxes, documentary taxes, assessments
or charges made by any Authority by reason of the execution and delivery of this
Agreement or the other Loan Documents. The provisions of this Section 9.03 are
in addition to and not in limitation of any expense reimbursement or
indemnification provision contained in any other Loan Documents.
SECTION 9.04. Indemnification
---------------
The Borrowers shall indemnify the Administrative Agent, the Banks and each
Affiliate thereof and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses, liabilities,
claims or damages to which any of them may become subject, insofar as such
losses, liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrowers of the proceeds of any extension of credit by any
Bank hereunder or breach by the Borrowers of this Agreement or any other Loan
Document or from any investigation, litigation (including, without limitation,
any actions taken by the Administrative Agent or any of the Banks to enforce
this Agreement or any of the other Loan Documents) or other proceeding
(including, without limitation, any threatened investigation or proceeding)
relating to the foregoing, and the Borrowers shall reimburse the Administrative
Agent and each Bank, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified. The provisions of this Section 9.04 are in addition to
and not in limitation of any expense reimbursement or indemnification provision
contained in any other Loan Documents.
<PAGE>
SECTION 9.05. Sharing of Setoffs
------------------
Each Bank agrees that if it shall, by exercising any right of setoff or
counterclaim or resort to collateral security or otherwise, receive payment of a
proportion of the aggregate amount of principal and interest owing with respect
to the Note held by it which is greater than the proportion received by any
other Bank in respect of the aggregate amount of all principal and interest
owing with respect to the Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks owing to such other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks owing to such other Banks
shall be shared by the Banks pro rata; provided that (i) nothing in this Section
shall impair the right of any Bank to exercise any right of setoff or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrowers other than its indebtedness under the
Notes, and (ii) if all or any portion of such payment received by the purchasing
Bank is thereafter recovered from such purchasing Bank, such purchase from each
other Bank shall be rescinded and such other Bank shall repay to the purchasing
Bank the purchase price of such participation to the extent of such recovery
together with an amount equal to such other Bank's ratable share (according to
the proportion of (x) the amount of such other Bank's required repayment to (y)
the total amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount so
recovered. Each of the Borrowers agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrowers in the amount of such participation.
SECTION 9.06. Amendments and Waivers
----------------------
(a) Any provision of this Agreement, the Notes or any other Loan Documents
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the Borrowers and the Required Banks (and, if the rights or
duties of the Administrative Agent are affected thereby, by the Administrative
Agent); provided that no such amendment or waiver shall, unless signed by all
Banks, (i) change the Commitment of any Bank or subject any Bank to any
additional obligation, (ii) change the principal of or rate of interest on any
Loan or any fees (other than fees payable to the Administrative Agent)
hereunder, (iii) change the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder, (iv) change the amount of principal,
interest or fees due on any date fixed for the payment thereof, (v) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the percentage of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement, (vi) change the manner of application of any payments made under this
Agreement or the Notes, (vii) release or substitute all or any substantial part
of the collateral (if any) held as security for the Loans, except as expressly
authorized by this Agreement or any of the other Loan Documents, (viii) release
any Guarantee given to support payment of the Loans, (ix) change the definition
of Borrowing Base in a such a way as to make it less restrictive, (x) change the
definition of Required Banks or (xi) change this Section 9.06.
(b) The Borrowers will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement unless each Bank shall be informed thereof by the Borrowers and shall
be afforded an opportunity of considering the same and shall be supplied by the
Borrowers with sufficient information to enable it to make an informed decision
with respect thereto. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Agreement shall be delivered
by the Borrowers to each Bank forthwith following the date on which the same
shall have been executed and delivered by the requisite percentage of Banks. The
Borrowers will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
<PAGE>
SECTION 9.07. No Margin Stock Collateral
--------------------------
Each of the Banks represents to the Administrative Agent and each of the
other Banks that it in good faith is not, directly or indirectly (by negative
pledge or otherwise), relying upon any Margin Stock as collateral in the
extension or maintenance of the credit provided for in this Agreement.
SECTION 9.08. Successors and Assigns
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided that the Borrowers may not assign or otherwise transfer any of their
respective rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event shall a Bank
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Bank may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related Loan or loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related Loan or loans, (iii) the change of the principal of the related Loan
or loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or fee (as the case may be) in respect of such participation, (v) the release or
substitution of all or any substantial part of the collateral (if any) held as
security for the Loans, or (vi) the release of any Guarantee given to support
payment of the Loans. Each Bank selling a participating interest in any Loan,
Note, Commitment or other interest under this Agreement (other than solely with
respect to a Money Market Loan or Money Market Note or participating interest
therein) shall, within 10 Domestic Business Days of such sale, provide the
Borrowers and the Administrative Agent with written notification stating that
such sale has occurred and identifying the Participant and the interest
purchased by such Participant. The Borrowers agree that each Participant shall
be entitled to the benefits of Article IX with respect to its participation in
Loans outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all or a proportionate part of its rights and
obligations under this Agreement, the Notes and the other Loan Documents, and
such Assignee shall assume all such rights and obligations, pursuant to an
Assignment and Acceptance, executed by such Assignee, such transferor Bank and
the Administrative Agent (and, in the case of an Assignee that is not then a
Bank, subject to clause (iii) below, by the Borrowers); provided that (i) no
interest may be sold by a Bank pursuant to this paragraph (c) unless the
Assignee shall agree to assume ratably equivalent portions of the transferor
Bank's Commitment, (ii) if a Bank is assigning only a portion of its Commitment,
then, the amount of the Commitment being assigned (determined as of the
effective date of the assignment) shall be in an amount not less than
$5,000,000, (iii) except during the continuance of a Default, no interest may be
sold by a Bank pursuant to this paragraph to any Assignee that is not then a
Bank (or an Affiliate of a Bank) without the consent of the Borrowers and the
Administrative Agent, which consent shall not be unreasonably withheld, and (iv)
a Bank may not have more than 2 Assignees that are not then Banks at any one
time. Upon (A) execution of the Assignment and Acceptance by such transferor
Bank, such Assignee, the Administrative Agent and (if applicable) the Borrowers,
(B) delivery of an executed copy of the Assignment and Acceptance to the
Borrowers and the Administrative Agent, (C) payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, and (D) payment of a processing and
recordation fee of $2,500 to the Administrative Agent, such Assignee shall for
all purposes be a Bank party to this Agreement and shall have all the rights and
obligations of a Bank under this Agreement to the same extent as if it were an
original party hereto with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by the
Borrowers, the Banks or the Administrative Agent shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this paragraph (c), the
transferor Bank, the Administrative Agent and the Borrowers shall make
appropriate arrangements so that, if required, a new Note is issued to each of
such Assignee and such transferor Bank.
<PAGE>
(d) Subject to the provisions of Section 9.09, the Borrowers authorize each
Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial information
in such Bank's possession concerning the Borrowers which has been delivered to
such Bank by the Borrowers pursuant to this Agreement or which has been
delivered to such Bank by the Borrowers in connection with such Bank's credit
evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment under
Section 8.03 than the transferor Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrowers' prior written consent or by reason of the provisions of Section 8.02
or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary notwithstanding, any Bank
may assign and pledge all or any portion of the Loans and/or obligations owing
to it to any Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal Reserve Bank,
provided that any payment in respect of such assigned Loans and/or obligations
made by the Borrowers to the assigning and/or pledging Bank in accordance with
the terms of this Agreement shall satisfy the Borrowers' obligations hereunder
in respect of such assigned Loans and/or obligations to the extent of such
payment. No such assignment shall release the assigning and/or pledging Bank
from its obligations hereunder.
SECTION 9.09. Confidentiality
---------------
Each Bank agrees to exercise commercially reasonable efforts to keep any
information delivered or made available by the Borrowers to it which is clearly
indicated to be confidential information, confidential from anyone other than
persons employed or retained by such Bank who are or are expected to become
engaged in evaluating, approving, structuring or administering the Loans;
provided that nothing herein shall prevent any Bank from disclosing such
information (i) to any other Bank, (ii) upon the order of any court or
administrative agency, (iii) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Bank, (iv) which has been publicly
disclosed, (v) to the extent reasonably required in connection with any
litigation to which the Administrative Agent, any Bank or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Bank's legal counsel
and independent auditors and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 9.09; provided
that should disclosure of any such confidential information be required by
virtue of clause (ii) of the immediately preceding sentence, any relevant Bank
shall, to the extent permitted by law, promptly notify the Borrowers of same so
as to allow the Borrowers to seek a protective order or to take any other
appropriate action; provided, further, that, no Bank shall be required to delay
compliance with any directive to disclose any such information so as to allow
the Borrowers to effect any such action.
SECTION 9.10. Representation by Banks
-----------------------
Each Bank hereby represents that it is a commercial lender or financial
institution which makes loans in the ordinary course of its business and that it
will make its Loans hereunder for its own account in the ordinary course of such
business; provided that, subject to Section 9.08, the disposition of the Note or
Notes held by that Bank shall at all times be within its exclusive control.
SECTION 9.11. Obligations Several
-------------------
The obligations of each Bank hereunder are several, and no Bank shall be
responsible for the obligations or commitment of any other Bank hereunder.
Nothing contained in this Agreement and no action taken by the Banks pursuant
hereto shall be deemed to constitute the Banks to be a partnership, an
association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Bank shall be a separate and independent debt, and
each Bank shall be entitled to protect and enforce its rights arising out of
this Agreement or any other Loan Document and it shall not be necessary for any
other Bank to be joined as an additional party in any proceeding for such
purpose.
<PAGE>
SECTION 9.12. Georgia Law
-----------
This Agreement and each Note shall be construed in accordance with and
governed by the law of the State of Georgia.
SECTION 9.13. Severability
------------
In case any one or more of the provisions contained in this Agreement, the
Notes or any of the other Loan Documents should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby and shall be enforced to the greatest extent
permitted by law.
SECTION 9.14. Interest
--------
In no event shall the amount of interest, and all charges, amounts or fees
contracted for, charged or collected pursuant to this Agreement, the Notes or
the other Loan Documents and deemed to be interest under applicable law
(collectively, "Interest") exceed the highest rate of interest allowed by
applicable law (the "Maximum Rate"), and in the event any such payment is
inadvertently received by any Bank, then the excess sum (the "Excess") shall be
credited as a payment of principal, unless the Borrowers shall notify such Bank
in writing that they elect to have the Excess returned forthwith. It is the
express intent hereof that the Borrowers not pay and the Banks not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrowers under applicable law. The right to
accelerate maturity of any of the Loans does not include the right to accelerate
any interest that has not otherwise accrued on the date of such acceleration,
and the Administrative Agent and the Banks do not intend to collect any unearned
interest in the event of any such acceleration. All monies paid to the
Administrative Agent or the Banks hereunder or under any of the Notes or the
other Loan Documents, whether at maturity or by prepayment, shall be subject to
rebate of unearned interest as and to the extent required by applicable law. By
the execution of this Agreement, the Borrowers covenant, to the fullest extent
permitted by law, that (i) the credit or return of any Excess shall constitute
the acceptance by the Borrowers of such Excess, and (ii) the Borrowers shall not
seek or pursue any other remedy, legal or equitable , against the Administrative
Agent or any Bank, based in whole or in part upon contracting for charging or
receiving any Interest in excess of the Maximum Rate. For the purpose of
determining whether or not any Excess has been contracted for, charged or
received by the Administrative Agent or any Bank, all interest at any time
contracted for, charged or received from the Borrowers in connection with this
Agreement, the Notes or any of the other Loan Documents shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread in
equal parts throughout the full term of the Commitments. The Borrowers, the
Administrative Agent and each Bank shall, to the maximum extent permitted under
applicable law, (i) characterize any non-principal payment as an expense, fee or
premium rather than as Interest and (ii) exclude voluntary prepayments and the
effects thereof. The provisions of this Section shall be deemed to be
incorporated into each Note and each of the other Loan Documents (whether or not
any provision of this Section is referred to therein). All such Loan Documents
and communications relating to any Interest owed by the Borrowers and all
figures set forth therein shall, for the sole purpose of computing the extent of
obligations hereunder and under the Notes and the other Loan Documents be
automatically recomputed by the Borrowers, and by any court considering the
same, to give effect to the adjustments or credits required by this Section.
SECTION 9.15. Interpretation
--------------
No provision of this Agreement or any of the other Loan Documents shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured or dictated such provision.
<PAGE>
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction
---------------------------------------------
The Borrowers (a) and each of the Banks and the Administrative Agent
irrevocably waives, to the fullest extent permitted by law, any and all right to
trial by jury in any legal proceeding arising out of this Agreement, any of the
other Loan Documents, or any of the transactions contemplated hereby or thereby,
(b) submits to the nonexclusive personal jurisdiction in the State of Georgia,
the courts thereof and the United States District Courts sitting therein, for
the enforcement of this Agreement, the Notes and the other Loan Documents, (c)
waives any and all personal rights under the law of any jurisdiction to object
on any basis (including, without limitation, inconvenience of forum) to
jurisdiction or venue within the State of Georgia for the purpose of litigation
to enforce this Agreement, the Notes or the other Loan Documents, and (d) agrees
that service of process may be made upon it in the manner prescribed in Section
9.01 for the giving of notice to the Borrowers. Nothing herein contained,
however, shall prevent the Administrative Agent from bringing any action or
exercising any rights against any security and against the Borrowers personally,
and against any assets of the Borrowers, within any other state or jurisdiction.
SECTION 9.17. Counterparts
------------
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 9.18. Source of Funds - ERISA
-----------------------
Each of the Banks hereby severally (and not jointly) represents to the
Borrowers that no part of the funds to be used by such Bank to fund the Loans
hereunder from time to time constitutes (i) assets allocated to any separate
account maintained by such Bank in which any employee benefit plan (or its
related trust) has any interest nor (ii) any other assets of any employee
benefit plan. As used in this Section, the terms "employee benefit plan" and
"separate account" shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
SECTION 9.19. Entire Agreement
----------------
The Loan Documents and, as between the Borrowers and the Administrative
Agent, the Administrative Agent's Letter Agreement, contain the entire agreement
between the Borrowers, the Administrative Agent and the Banks relating to the
credit transactions contemplated hereby and supersede entirely any and all prior
written or oral agreements with respect thereto; and each of the Borrowers
acknowledges and agrees that there are no contemporaneous oral agreements with
respect to the subject matter hereof.
SECTION 9.20. More Restrictive Agreements
---------------------------
Should the Borrowers or any Guarantor, while this Agreement is in effect or
any Note remains unpaid, enter into, refinance or modify the relevant documents
pertaining to any existing or future Debt for money borrowed which constitutes
revolving credit, in an amount exceeding $5,000,000 in aggregate amount to any
lender or group of lenders acting in concert with one another, pursuant to a
Loan agreement, credit agreement, note purchase agreement, indenture or other
similar instrument, which instrument includes covenants, warranties,
representations, or defaults or events of default (or any other type of
restriction which would have the practical effect of any of the foregoing,
including, without limitation, any "put" or mandatory prepayment of such debt)
other than those set forth herein or in any of the other Loan Documents, the
Borrowers shall promptly so notify the Administrative Agent and, if the
Administrative Agent, in the discretion of the Administrative Agent, shall so
request by written notice to the Borrowers, the Borrowers, the Administrative
Agent and the Required Banks (in their sole discretion and based on their
respective independent credit judgment, and subject to Section 9.06) shall
promptly amend this Agreement to incorporate some or all of such provisions,
into this Agreement and, to the extent necessary and reasonably desirable to the
Administrative Agent and the Required Banks (in their sole discretion and based
on their respective independent credit judgment, and subject to Section 7.06),
into any of the other Loan Documents, all at the election of the Administrative
Agent; provided, however, that any such amendment shall provide that, upon
cancellation or termination of the Loan agreement, credit agreement, note
purchase agreement, indenture or other instrument pertaining to such other
revolving credit (other than by reason of an event of default thereunder), so
long as no Default or Event of Default is in existence, such amendment also
shall terminate and the provisions of the Credit Agreement affected by such
amendment shall revert to the terms thereof as in effect prior to giving effect
to such amendment.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
GABLES REALTY LIMITED PARTNERSHIP
(SEAL)
By: Gables GP, Inc., its sole general partner
By: /s/ Marvin R. Banks Jr.
-----------------------
Marvin R. Banks, Jr.
Senior Vice President
Gables Realty Limited Partnership
2859 Paces Ferry Road
Suite 1450
Atlanta, Georgia 30339
Attention: Marvin R. Banks, Jr.
Telecopier number: 770-438-5559
Confirmation number: 770-438-5501
GABLES-TENNESSEE PROPERTIES, L.L.C.
By: Gables Realty Limited Partnership, member
By: Gables GP, Inc.,
its general partner
By: /s/ Marvin R. Banks, Jr.
------------------------
Marvin R. Banks, Jr.
Senior Vice President
Address:
Gables Realty Limited Partnership
2859 Paces Ferry Road
Suite 1450
Atlanta, Georgia 30339
Attention: Marvin R. Banks, Jr.
Telecopier number: 770-438-5559
Confirmation number: 770-438-5501
WACHOVIA BANK, N.A.,
(SEAL)
as Administrative Agent and as a Bank
Commitment:
$40,000,000 By: /s/ Steven R. Wood
----------------------------
Title: Senior Vice President
Commitment Percentage:
Lending Office
17.7778% Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Real Estate Finance Division
Telecopier number: 404-332-4005
Confirmation number: 404-332-6971
FIRST UNION NATIONAL BANK,
(SEAL)
as Syndication Agent and as a Bank
Commitment:
$40,000,000 By: /s/ Daniel J. Sullivan
----------------------
Daniel J. Sullivan
Commitment Percentage: Managing Director
17.7778% Lending Office
First Union National Bank
One First Union Center
Charlotte, North Carolina 28288-0166
Attention: Daniel J. Sullivan
Telecopier number: 704-383-6205
Confirmation number: 704-383-6441
<PAGE>
THE CHASE MANHATTAN BANK
(SEAL)
(successor by merger to Chase Bank of Texas,
National Association),
Commitment: as Documentation Agent and as a Bank
$40,000,000
By: /s/ Susan M. Tate
---------------------
Commitment Percentage: Title: Vice President
17.7778% Lending Office
The Chase Manhattan Bank
707 Travis, 6th Fl. North
Houston, Texas 77002
Attention: Susan M. Tate,
Vice President
Telecopier number: 713-216-7713
Confirmation number: 713-216-1511
AMSOUTH BANK
(SEAL)
Commitment:
$33,000,000 By: /s/ Katherine M. Allen
----------------------
Title: AVP
Commitment Percentage:
Lending Office
14.6667% AmSouth Bank
1900 5th Avenue North
9th Floor
Birmingham, Alabama 35203
Attention: Katherine Allen
Telecopier number: 205-326-4075
Confirmation number: 205-326-4783
PNC BANK, NATIONAL ASSOCIATION
(SEAL)
Commitment:
$30,000,000 By: /s/ Wayne P. Robertson
----------------------
Title: Vice President
Commitment Percentage:
Lending Office
13.333% PNC BANK, National Association
249 Fifth Avenue, 19th Floor
Pittsburgh, PA 15222
Attention: Wayne P. Robertson
Vice President
Telecopier number: 412-762-6500
Confirmation number: 412-762-8452
Commitment: SOUTHTRUST BANK
$22,000,000
By: /s/ Sam Boroughs
-------------------------------
Commitment Percentage: Title: Assistant Vice President
9.7778% Lending Office
SouthTrust Bank
420 North 20th Street - 11th Floor Corporate Banking
Birmingham, AL 35203
Attention: Sam Boroughs
Telecopier number: 205-254-8270
Confirmation number:
Commitment BANK OF AMERICA, N.A.
(SEAL)
$20,000,000
By: /s/ Dea R. Whitehall
--------------------------
Commitment Title: Vice President
Percentage:
Lending Office
8.8889% Bank of America, N.A.
6610 Rockledge Drive, Suite 600
Bethesda, MD 20817
Attention: Denise Harris
Telecopier number: 301-571-9093
Confirmation number: 301-571-9668
TOTAL COMMITMENTS:
$225,000,000
<PAGE>
EXHIBIT A-1
-----------
SYNDICATED LOAN NOTE
--------------------
Atlanta, Georgia
August 14, 2000
For value received, GABLES REALTY LIMITED PARTNERSHIP, a Delaware limited
partnership and GABLES-TENNESSEE PROPERTIES, L.L.P., a Tennessee limited
liability company (collectively, the "Borrower"), jointly and severally promise
to pay to the order of __________________________________________ (the "Bank"),
for the account of its Lending Office, the principal sum of
_______________________________ AND NO/100 DOLLARS ($ ), or such lesser
amount as shall equal the unpaid principal amount of each Syndicated Loan made
by the Bank to the Borrowers (or either of them) pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided in the
Credit Agreement. The Borrowers promise to pay interest on the unpaid principal
amount of this Syndicated Loan Note on the dates and at the rate or rates
provided for in the Credit Agreement. Interest on any overdue principal of and,
to the extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Wachovia Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia
30303-1757, or such other address as may be specified from time to time pursuant
to the Credit Agreement.
All Loans made by the Bank, the respective maturities thereof, the interest
rates from time to time applicable thereto, and all repayments of the principal
thereof shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof; provided that the failure of
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrowers hereunder or under the Credit Agreement.
This Syndicated Loan Note is one of the Syndicated Loan Notes referred to
in the Second Amended and Restated Credit Agreement dated as of even date
herewith among Gables Realty Limited Partnership, Gables-Tennessee Properties,
L.L.C., the Banks listed on the signature pages thereof, Wachovia Bank, N.A., as
Administrative Agent, First Union National Bank, as Syndication Agent and The
Chase Manhattan Bank, as Documentation Agent (as the same may hereafter be
amended and modified from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the optional and mandatory
prepayment and the repayment hereof and the acceleration of the maturity hereof,
as well as the obligation of the Borrower to pay all costs of collection,
including reasonable attorneys fees, in the event this Syndicated Loan Note is
collected by law or through an attorney at law.
The Borrowers hereby waive presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
IN WITNESS WHEREOF, each of the Borrowers has caused this Syndicated Loan
Note to be duly executed, under seal, by its duly authorized officer as of the
day and year first above written.
GABLES-TENNESSEE PROPERTIES (SEAL) GABLES REALTY LIMITED
By: Gables Realty Limited Partnership, PARTNERSHIP, L.L.C. (SEAL)
member By: Gables GP, Inc.
By: Gables GP, Inc. its sole general partner
its sole general partner
By: By:
------------------------ ---------------------
Marvin Banks, Jr. Marvin Banks, Jr.
Senior Vice President Senior Vice President
<PAGE>
Syndicated Loan Note (cont'd)
--------------------
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
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<PAGE>
EXHIBIT A-2
-----------
MONEY MARKET LOAN NOTE
----------------------
As of August 14, 2000
For value received, GABLES REALTY LIMITED PARTNERSHIP, a Delaware limited
partnership and GABLES-TENNESSEE PROPERTIES, L.L.C, a Tennessee limited
liability company (collectively, the "Borrower"), jointly and severally promises
to pay to the order of , a
_______________ (the "Bank"), for the account of its Lending Office, the
principal sum of ONE HUNDRED TWELVE MILLION, FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($112,500,000), or such lesser amount as shall equal the unpaid
principal amount of each Money Market Loan made by the Bank to the Borrower (or
either of them) pursuant to the Credit Agreement referred to below, on the dates
and in the amounts provided in the Credit Agreement. The Borrowers promise to
pay interest on the unpaid principal amount of this Money Market Loan Note on
the dates and at the rate or rates provided for in the Credit Agreement referred
to below. Interest on any overdue principal of and, to the extent permitted by
law, overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Wachovia Bank,
N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or such other
address as may be specified from time to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective maturities thereof,
the interest rates from time to time applicable thereto, and all repayments of
the principal thereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Money Market Loan Note is one of the Money Market Loan Notes referred
to in the Second Amended and Restated Credit Agreement dated as of even date
herewith among Gables Realty Limited Partnership, Gables-Tennessee Properties,
L.L.C., the Banks listed on the signature pages thereof, Wachovia Bank, N.A., as
Administrative Agent, First Union National Bank, as Syndication Agent and The
Chase Manhattan Bank, as Documentation Agent (as the same may hereafter be
amended and modified from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the optional and mandatory
prepayment and the repayment hereof and the acceleration of the maturity hereof,
as well as the obligation of the Borrowers to pay all costs of collection,
including reasonable attorneys fees, in the event this Money Market Loan Note is
collected by law or through an attorney at law.
The Borrowers hereby waive presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
IN WITNESS WHEREOF, each of the Borrowers has caused this Money Market Loan
Note to be duly executed, under seal, by its duly authorized officer as of the
day and year first above written.
GABLES-TENNESSEE PROPERTIES (SEAL) GABLES REALTY LIMITED PARTNERSHIP
By: Gables Realty Limited Partnership, (SEAL)
member By: Gables GP, Inc.,
By: Gables GP, Inc., its sole general partner
its sole general partner
By: By:
--------------------- ---------------------
Marvin Banks, Jr. Marvin Banks, Jr.
Senior Vice President Senior Vice President
<PAGE>
Money Market Loan Note (cont'd)
----------------------
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
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<PAGE>
EXHIBIT B
---------
[Note: additional appropriate assumptions, qualifications and exceptions and
general matters to be added]
FORM OF
OPINION OF
COUNSEL FOR THE BORROWERS AND THE GUARANTORS
--------------------------------------------
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Dear Sirs:
We have acted as counsel for GABLES REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Parent") and GABLES-TENNESSEE PROPERTIES, L.L.C., a
Tennessee limited liability company, as the Borrowers, in connection with the
Second Amended and Restated Credit Agreement (the "Credit Agreement") dated as
of August 14, 2000, among the Borrowers the banks listed on the signature pages
thereof and Wachovia Bank, N.A., as Administrative Agent, First Union National
Bank, as Syndication Agent and The Chase Manhattan Bank, as Documentation Agent.
Terms defined in the Credit Agreement are used herein as therein defined. The
Credit Agreement and the Notes are herein collectively called the "Credit
Documents". We have also acted as counsel for the Guarantors.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion. We have assumed for purposes of our opinions set forth below that the
execution and delivery of the Credit Agreement by each Bank and by the
Administrative Agent have been duly authorized by each Bank and by the
Administrative Agent.
Upon the basis of the foregoing, we are of the opinion that:
1. The Parent is a limited partnership duly organized, validly existing and
in good standing under the laws of Delaware, and has all requisite partnership
power and authority to execute, deliver and perform the Credit Documents.
2. Gables Residential Trust is a real estate investment trust, duly
organized, validly existing and in good standing under the laws of the State of
Maryland and has all requisite corporate power and authority to execute, deliver
and perform the Guaranty. Gables GP, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas and
has all requisite corporate power and authority to execute, deliver and perform
the Guaranty. Gables-Tennessee Properties, L.L.C. is a limited liability
company, duly organized, validly existing and in good standing under the laws of
the State of Tennessee and has all requisite power and authority to execute,
deliver and perform the Credit Documents.
3. The Credit Documents have been duly and validly executed and delivered
by the Borrowers and constitute the valid and binding obligations of the
Borrowers. The Guaranties have been duly and validly executed and delivered by
the Guarantors and constitute the valid and binding obligation of each
Guarantor.
4. The execution, delivery and performance by the Borrowers of the Credit
Documents and the borrowings thereunder and the execution, delivery and
performance by the Guarantors of the Guaranty (i) have been duly authorized by
all necessary partnership action on the part of the Borrowers and by all
necessary corporate action on the part of each Guarantor, (ii) do not and will
not contravene or violate any statutory law, rule or regulation of any
governmental authority included in the scope of this opinion which is binding on
or affecting the Borrowers or Guarantors or the property of any of them or the
Organization Documents (hereinafter defined) of any of them and (iii) to the
Actual Knowledge (hereinafter defined) of the Primary Lawyer Group (hereinafter
defined), do not and will not result in the breach of, or constitute and will
not constitute a default under, any written agreement, instrument, judgment,
license, writ, order, decree or permit which names either Borrower or any
Guarantor, as the case may be, and is specifically directed to the Borrower or
any Guarantor or the property of any of them. The Organizational Documents as
used herein shall mean the agreement of limited partnership of the Parent, the
articles of incorporation and bylaws of Gables GP, Inc., and the declaration of
trust and bylaws of Gables Residential Trust, and the operating agreement of
Gables-Tennessee Properties, L.L.C. as in effect on the date hereof.
<PAGE>
5. No authorization, consent, approval, license or permission of, and no
registration, qualification or filing with, any court, governmental authority or
agency included in the scope of this opinion is required in connection with the
execution, delivery and performance of the Credit Documents by Borrowers or the
Guaranty by the Guarantors, except (a) for routine filings that may be required
after the date hereof to maintain partnership or corporate qualification and
good standing and (b) for obligations relating solely to the ordinary and
necessary conduct of the operations of the Borrowers and the Guarantors.
6. We confirm to you that there is, to the Actual Knowledge of the Primary
Lawyer Group, no litigation or legal, arbitral or administrative proceeding
pending against either Borrower or either Guarantor which (i) challenges the
validity of the Credit Documents or the Guaranty or (ii) which, if adversely
determined, and taking into account any insurance with respect thereto, would
have a material adverse effect on the business, consolidated financial condition
or consolidated results of operations of the Parent and its Consolidated
Subsidiaries, considered as a whole.
7. Neither of the Borrowers is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
8. Neither of the Borrowers is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
The term "Primary Lawyer Group" as used herein means the lawyers in this
firm who have given substantive legal attention to the representation of the
Borrowers and the Guarantors in connection with the transaction evidenced by the
Credit Documents and the Guaranty. The term "Actual Knowledge" means the
conscious awareness of facts or other information by the Primary Lawyer Group,
without undertaking any special investigation and without searching public
records, our files or the files of the Borrowers or the Guarantors.
This opinion is limited in all respects to the federal laws of the United
States, the laws of the State of Texas, the Delaware Revised Limited Partnership
Act and the General Corporation Law of the State of Maryland, in each case as
now in effect, which have been published and are generally available in a format
that makes legal research reasonably feasible and we disclaim any responsibility
to inform you of any changes. No opinion is expressed as to any matter than may
be governed by the laws of any other jurisdiction.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you, any Assignee, Participant
or other Transferee under the Credit Agreement, and Jones, Day, Reavis & Pogue
without our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT C
---------
FORM OF
OPINION OF
JONES, DAY, REAVIS & POGUE, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
-------------------------------------------
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Dear Sirs:
We have participated in the preparation of the Second Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of August 14, 2000, among
Gables Realty Partnership, a Delaware limited partnership (the "Parent") and
Gables-Tennessee Properties, L.L.C., a Tennessee limited liability company, as
the Borrowers, the banks listed on the signature pages thereof (the "Banks") and
Wachovia Bank, N.A., as Administrative Agent (the "Administrative Agent"), First
Union National Bank, as Syndication Agent and The Chase Manhattan Bank, as
Documentation Agent, and have acted as special counsel for the Administrative
Agent for the purpose of rendering this opinion pursuant to Section 3.01(d) of
the Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
This opinion letter is limited by, and is in accordance with, the January
1, 1992 edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia which
Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, and assuming the due authorization,
execution and delivery of the Credit Agreement and each of the Notes by or on
behalf of the Borrowers, and of the Guaranty by each of the Guarantors, we are
of the opinion that the Credit Agreement constitutes a valid and binding
agreement of the Borrowers, each Note constitutes valid and binding obligations
of the Borrowers, and the Guaranty constitutes a valid and binding agreement of
each of the Guarantors, in each case enforceable in accordance with its terms
except as: (i) the enforceability thereof may be affected by bankruptcy,
insolvency, reorganization, fraudulent conveyance, voidable preference,
moratorium or similar laws applicable to creditors' rights or the collection of
debtors' obligations generally; (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability; and (iii) the enforceability of certain of the remedial, waiver
and other provisions of the Credit Agreement and the Notes may be further
limited by the laws of the State of Georgia; provided that such additional laws
do not, in our opinion, substantially interfere with the practical realization
of the benefits expressed in the Credit Agreement, the Notes or the Guaranty,
except for the economic consequences of any procedural delay which may result
from such laws.
In giving the foregoing opinion, we express no opinion as to the effect (if
any) of any law of any jurisdiction except the State of Georgia and the General
Corporation Law of the State of Delaware. We express no opinion as to the effect
of the compliance or noncompliance of the Administrative Agent or any of the
Banks with any state or federal laws or regulations applicable to the
Administrative Agent or any of the Banks by reason of the legal or regulatory
status or the nature of the business of the Administrative Agent or any of the
Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
<PAGE>
EXHIBIT D
---------
ASSIGNMENT AND ACCEPTANCE
-------------------------
Dated _______________, 19____
Reference is made to the Second Amended and Restated Credit Agreement dated
as of August 14, 2000 (together with all amendments and modifications thereto,
the "Credit Agreement") among Gables Realty Limited Partnership and
Gable-Tennessee Properties, L.L.C. (collectively, the "Borrowers"), the Banks
(as defined in the Credit Agreement) and Wachovia Bank, N.A., as Administrative
Agent, First Union National Bank, as Syndication Agent, and The Chase Manhattan
Bank, as Documentation Agent. Terms defined in the Credit Agreement are used
herein with the same meaning.
_______________________________________________ (the "Assignor") and
__________________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without recourse
to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a % interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the Effective Date (as defined below)
(including, without limitation, a _____% interest (which on the Effective Date
hereof is $__________) in the Assignor's Commitment and a interest (which on the
Effective Date hereof is $______________) in the Syndicated Loans [and Money
Market Loans] owing to the Assignor and a ____% interest in the Note[s] held by
the Assignor (which on the Effective Date hereof is $__________).
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that it is the legal and beneficial owner of the interest being assigned by
it hereunder, that such interest is free and clear of any adverse claim and that
as of the date hereof its Commitment (without giving effect to assignments
thereof which have not yet become effective) is $__________ and the aggregate
outstanding principal amount of Syndicated Loans [and Money Market Loans] owing
to it (without giving effect to assignments thereof which have not yet become
effective) is $________; (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of their obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iii) attaches the Note[s] referred to in paragraph 1 above and requests
that the Administrative Agent exchange such Note[s] for [a new Syndicated Loan
Note dated _________, ____ in the principal amount of $__________ payable to the
order of the Assignee and a new Money Market Loan Note dated ___________, ____
in the principal amount of [$112,500,000](1) payable to the order of the
Assignee] [new Notes as follows: a (i) Syndicated Loan Note dated ___________,
in the principal amount of $__________ payable to the order of the Assignor (ii)
Syndicated Loan Note dated _________, ______ in the principal amount of
$_________ payable to the order of the Assignee, and (iii) and a new Money
Market Loan Note dated ___________, ____ in the principal amount of
[$112,500,000] (1) payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.04(a) thereof (or any more recent financial statements of the Parent
delivered pursuant to Section 5.01(a) or (b) thereof) and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Administrative Agent
to take such action as Administrative Agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to the Administrative Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; (vi) specifies as its Lending Office (and address for
notices) the office set forth beneath its name on the signature pages hereof,
(vii) represents and warrants that the execution, delivery and performance of
this Assignment and Acceptance are within its corporate powers and have been
duly authorized by all necessary corporate action, (viii) makes the
representation and warranty contained in Section 9.18 of the Credit Agreement [,
--------
(1) This amount should be equal to 50% of the aggregate Commitments at the time
of the assignment.
<PAGE>
and (ix) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such taxes at a rate reduced by an applicable tax treaty].
4. The Effective Date for this Assignment and Acceptance shall be
_______________, 19____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
execution and acceptance by the Administrative Agent and to the Borrowers for
execution by the Borrowers.
5. Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrowers] [If required by the Credit Agreement], from and
after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent rights and obligations have been transferred to it
by this Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and (ii) the Assignor shall, to the extent its rights and obligations
have been transferred to the Assignee by this Assignment and Acceptance,
relinquish its rights (other than under Sections 8.03, 9.03 and 9.04 of the
Credit Agreement) and be released from its obligations under the Credit
Agreement.
6. Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrowers] [If required by the Credit Agreement], from and
after the Effective Date, the Administrative Agent shall make all payments in
respect of the interest assigned hereby to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments for periods prior to
such acceptance by the Administrative Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR)
By:__________________________________________________
Title:
[NAME OF ASSIGNEE]
By:__________________________________________________
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Administrative Agent
By:__________________________________________________
Title:
GABLES REALTY LIMITED PARTNERSHIP
If required by the Credit Agreement
By: Gables GP, Inc., its sole general partner
By: _________________________________________________
Marvin R. Banks, Jr.,
Senior Vice President
GABLES-TENNESSEE PROPERTIES, L.L.C. (SEAL)
If required by the Credit Agreement
By: Gables Realty Limited Partnership,
member
By: Gables GP, Inc., its sole general partner
By: ________________________________________________
Marvin R. Banks, Jr.,
Senior Vice President
<PAGE>
EXHIBIT E
---------
NOTICE OF BORROWING
-------------------
____________________, 199___
Wachovia Bank, N.A., as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Real Estate Finance Division
Re: Second Amended and Restated Credit Agreement (as amended and
modified from time to time, the "Credit Agreement") dated as
August 14, 2000 by and among Gables Realty Limited Partnership
and Gables-Tennessee Properties, L.L.C., as the Borrowers, the
Banks from time to time parties thereto, and Wachovia Bank, N.A.,
as Administrative Agent, First Union National Bank, as
Syndication Agent, and The Chase Manhattan Bank, as Documentation
Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02 of
the Credit Agreement.
The Borrower hereby requests a Syndicated Borrowing which is a [Euro-Dollar
Borrowing] [Base Rate Borrowing] in the aggregate principal amount of
$_______________ to be made on _______________, 199___, and for interest to
accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar
Loans] [Base Rate Loans]. The duration of the Interest Period with respect
thereto shall be [1 month] [2 months] [3 months] [6 months] [30 days] [60 days]
[90 days] [120 days].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this day of , 199 .
GABLES REALTY LIMITED PARTNERSHIP
(SEAL)
By: Gables GP, Inc., its sole general partner
By: __________________________________________
Marvin R. Banks, Jr., Senior Vice President
GABLES-TENNESSEE PROPERTIES, L.L.C.,
(SEAL)
By: Gables Realty Limited Partnership,
member
By: Gables GP, Inc., its sole general partner
By: __________________________________________
Marvin R. Banks, Jr.,
Senior Vice President
<PAGE>
EXHIBIT F
---------
COMPLIANCE CERTIFICATE
----------------------
Reference is made to the Second Amended and Restated Credit Agreement dated
as of August 14, 2000 (as modified and supplemented and in effect from time to
time, the "Credit Agreement") among Gables Realty Limited Partnership and
Gable-Tennessee Properties, as the Borrowers, the Banks from time to time
parties thereto, and Wachovia Bank, N.A., as Administrative Agent, First Union
National Bank, as Syndication Agent, and The Chase Manhattan Bank, as
Documentation Agent. Capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement, ____________________,
the duly authorized [title of Executive Officer, other than Secretary] of the
General Partner, hereby (i) certifies to the Administrative Agent and the Banks
that the information contained in the Compliance Check List attached hereto is
true, accurate and complete in all material respects as of _______________,
______, and that no Default is in existence on and as of the date hereof and
(ii) restates and reaffirms that the representations and warranties contained in
Article V of the Credit Agreement are true on and as of the date hereof as
though restated on and as of this date.
GABLES REALTY LIMITED PARTNERSHIP
(SEAL)
By: Gables GP, Inc., its sole general partner
By: __________________________________________
[Name and title of Executive Officer,
other than Secretary]
<PAGE>
COMPLIANCE CHECKLIST
--------------------
COMPLIANCE CHECK LIST
Gables Realty Limited Partnership
_________________________
_______________, ______
1. Consolidated Total Secured Debt (Section 5.03)
The amount of Total Secured Debt will not at any time exceed 40% of
Adjusted Total Assets Value.
(a) Total Secured Debt Schedule - 1 $__________
(b) Adjusted Total Assets Value Schedule - 2 $__________
(c) 40% of (b) $__________
Limitation: (a) must be less than (c)
2. Ratio of Total Debt to Total Assets (Section 5.04)
The ratio of Total Debt to Total Assets Value will not at any time exceed
0.55 to 1.00.
(a) consolidated total liabilities at end
of most recent Fiscal Quarter (other than
principal amount equal to cash held in escrow) $__________
(b) aggregate amount of Debt Guaranteed
by Borrowers, the Guarantor and the
Subsidiaries (other than of Guarantees of
Debt of any of them and Guarantees
which have been fully cash
collateralized) at end of most recent
Fiscal Quarter $__________
(c) Parent's Joint Venture Share of aggregate
amount of Debt of all Joint Ventures $__________
(d) face amount of all letters of credit
(other than amounts which are fully cash
collateralized) for which the Borrowers or any
of the Guarantors is account party at the end
of the most recent Fiscal Quarter $__________
(e) aggregate amount of all tenant deposits
which are maintained in segregated accounts
and classified as restricted cash in accordance
with GAAP $__________
(f) amounts maintained in escrow deposits
with banks or other financial institutions
for payment of real estate property taxes
reflected on the Parent's balance sheet
and reflected as restricted cash in accordance
with GAAP $__________
(g) Total Debt
(sum of (a) plus (b) plus (c) plus (d) less
(e) less (f)) $__________
(h) Total Assets Value Schedule - 2 $__________
Actual Ratio of (g) to (h) _____ to 1.00
Maximum Ratio less than 0.55 to 1.00(2)
--------
(2) 0.60 to 1.0 for the Fiscal Quarter ending June 30, 1998 (but not
thereafter), if a ratio of 0.55 to 1.0 is exceeded solely because of the
South Florida acquisition.
<PAGE>
3. Interest Coverage (Section 5.05)
The ratio of (x) Consolidated Income Available for Debt Service to (y)
Consolidated Interest Expense shall at all times exceed 2.00 to 1.0,
calculated at the end of each Fiscal Quarter, based on the Fiscal Quarter
just ended and the immediately preceding three Fiscal Quarters.
(a) Consolidated Income Available
for Debt Service Schedule - 3 $__________
(b) Consolidated Interest Expense Schedule - 3 $__________
Actual Ratio of (a) to (b) _____ to 1.00
Minimum Ratio less than 2.00 to 1.00
4. Restricted Payments (Section 5.06) (include only at the end of each
calendar year)
The Parent's Restricted Payments in any calendar year shall not exceed 95%
of Consolidated Income Available for Distribution for such period, unless
(i) the Parent must pay out an amount in excess of 95% of Consolidated
Income Available for Distribution to permit GBP to preserve its status as a
real estate investment trust under the applicable provision of the Code, or
(ii) GBP declares one or more capital gains dividends within such calendar
year (in which event the amount of additional Restricted Payments that may
be made as a result of such declaration as provided in this clause (ii)
shall not exceed the greater of (A) the income tax liability of the
Parent's partners with respect thereto and (B) $1,500,000). In the event
that the Parent or GBP receives a public debt rating of BBB- or better from
Standard & Poors or Baa3 or better from Moody's Investor's Service and so
long as that rating is affirmed during each year, the Parent's Restricted
Payments in any calendar year will be limited to 100% of Consolidated
Income Available for Distribution for such calendar year with the same
exceptions contained in clauses (i) and (ii) of this Section 5.06.
(a) Consolidated Income Available
for Debt Service Schedule - 4 $_________
(b) interest expense and certain
letter of credit fees Schedule - 4 $_________
(c) taxes included in
Consolidated Income
Available for Debt Service (excluding
ad valorem taxes and taxes on gains
from sales or joint ventures $_________
(d) sum of (a) less (b) less (c) $_________
Maximum Restricted Payments generally
[95%] [100%] of (d) $_________
Additional Restricted Payments permitted
by clause (i) $_________
Additional Restricted Payments permitted
by clause (ii), not to exceed greater
of partners' income tax liability
and $1,500,000 $_________
Calendar year distributions to date $_________
<PAGE>
5. Loans and Advances (Section 5.07)
Neither the Borrowers, the Guarantors nor any other Subsidiary shall make
loans or advances to any Person except: (i) deposits required by government
agencies or public utilities; (ii) loans and advances made by Borrowers or
any Guarantor to any Guarantor or to Borrowers; (iii) loans or advances to
directors, officers and employees in the ordinary course of business in the
aggregate outstanding at any time not exceeding $1,000,000; (iv) loans or
advances to employees in the ordinary course of business which are secured
by stock in GBP in the aggregate outstanding at any time not exceeding
$5,000,000; and (v) other loans or advances made in the ordinary course of
business in the aggregate outstanding at any time not exceeding 5% of the
book value of the total assets of the Parent and its Consolidated
Subsidiaries, determined in accordance with GAAP minus all amounts
outstanding under clause (iii) of this Section 5.07 and minus Investments
made and permitted pursuant to Section 5.09(E); provided that after giving
effect to the making of any loans, advances or deposits permitted by
clauses (i), (ii), (iii) or (iv), the Borrowers will be in full compliance
with all the provisions of this Agreement.
(a) to directors, officers and
employees $_________
Limitation: $1,000,000
(b) to employees, secured by GBP stock $__________
Limitation: $5,000,000
(c) other $__________
Limitation: $__________(3)
6. Purchases of Stock by Subsidiaries (Section 5.08)
Except for purchases or acquisitions of shares of GBP's Capital Stock made
for purposes of having such shares available for purchase by GBP
shareholders pursuant to GBP's dividend reinvestment and share purchase
program known as "The Share Builder Plan", as amended as of the Closing
Date and, subject to the approval of the Required Banks (not to be
unreasonably withheld), as it may thereafter be amended, the Guarantors
shall not purchase or acquire any shares of GBP's Capital Stock during any
12 month period in excess of 10% of all GBP's Capital Stock outstanding on
the first day of such period.
(a) Aggregate number of shares of
GBP's Capital Stock
purchased by the Guarantors in
last 12 months (4) ___________
(b) Aggregate purchase price of shares
described in (a) $__________
(c) aggregate value of GBP's Capital Stock
on first day of last 12 month period $__________
(d) (c) times 0.10 $__________
Limitation: (d)
--------
(3) 5% of book value of Borrower and Consolidated Subsidiaries, determined per
GAAP, less amount in (a) of this paragraph 5 and amount in line (c) of
paragraph 7 below.
(4) Exclude shares purchased pursuant to The Share Builder Plan.
<PAGE>
7. Investments (Section 5.09)
Neither the Borrowers nor the Guarantors shall make Investments in any
Person except: (A) Investments in (i) direct obligations of the United
States Government, (ii) certificates of deposit issued by a commercial bank
whose credit is satisfactory to the Administrative Agent, (iii) commercial
paper rated A1 or the equivalent thereof by Standard & Poor's Corporation
or P1 or the equivalent thereof by Moody's Investors Service, Inc. and in
either case maturing within 9 months after the date of acquisition, (iv)
tender bonds the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose
long-term certificates of deposit are rated at least AA or the equivalent
thereof by Standard & Poor's Corporation and Aa or the equivalent thereof
by Moody's Investors Service, Inc., (v) insured money market Investments
and/or (vi) Investments in debt or equity securities rated at least BBB+ or
the equivalent thereof by Standard & Poor's Corporation or at least Baa1 or
the equivalent thereof by Moody's Investors Service not exceeding an
aggregate amount outstanding at any time of $25,000,000; (B) Investments
permitted by clauses (i), (ii) and (iii) of Section 5.07 or by Section
5.08; (C) Investments in Significant Subsidiaries; (D) the South Florida
Acquisition; and (E) other Investments not exceeding an aggregate amount
outstanding at any time 10% of the book value of the total assets of the
Parent and its Consolidated Subsidiaries, determined in accordance with
GAAP, less loans and advances outstanding and permitted by clause (iv) of
Section 5.07.
(a) debt or equity securities rated
at least BBB+ or Baa1 $__________
Limitation: $25,000,000
(b) Investments in Significant
Subsidiaries after Closing Date $__________
(c) other $__________
Limitation: $__________(5)
8. Restrictions on Additional Guarantees (Section 5.25)
Neither the Borrowers nor any of the Guarantors shall incur or permit to
exist any Guarantees of unsecured revolving Debt, other than the Guaranty
made hereunder, in an aggregate principal amount outstanding at any time of
$25,000,000 or more.
(a) aggregate amount of Guaranties
of unsecured revolving Debt not
described in (i)
of Section 5.25 $__________
Limitation $25,000,000
--------
(5) 10% of book value of Borrower and Consolidated Subsidiaries per GAAP, less
amount on line (c) of paragraph 5 above.
<PAGE>
9. Ratio of Total Unencumbered Assets Value to Unsecured Funded Debt
(Section 5.27)
The ratio of Total Unencumbered Assets Value to Unsecured Funded Debt will
not at any time be less than 1.75 to 1.00.
(a) Total Unencumbered Assets
Value at end of most recent
Fiscal Quarter Schedule - 5 $__________
(b) Unsecured Funded Debt at
end of most recent
Fiscal Quarter Schedule - 6 $__________
Actual Ratio of (a) to (b) _____ to 1.00
Minimum Ratio 1.75 to 1.00
10. Consolidated Fixed Charges Coverage Ratio (Section 5.28)
At the end of each Fiscal Quarter, the Consolidated Fixed Charges Coverage
Ratio shall not be less than 1.75 to 1.0.
(a) Consolidated Income Available for
Debt Service - Schedule 4 $__________
(b) Consolidated Fixed Charges
- Schedule 7 $__________
(c) Actual Ratio of (a) to (b) _____ to 1.0
Minimum Ratio 1.75 to 1.0
<PAGE>
Schedule - 1
------------
Total Secured Debt
------------------
INTEREST FINAL
RATE(6) MATURITY TOTAL
-------- -------- -----
Money Borrowed(7)
--------------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
Total Money Borrowed $---------
Deferred Purchase Price
-----------------------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
Total Deferred Purchase Price
Reimbursement Obligations Pertaining
to any Letter of Credit $--------
-----------------------
Capitalized Leases
------------------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
Total Capitalized Leases $---------
Total Secured Debt $=========
--------
(6) If rate is fixed, insert contract rate. If rate is floating, state that.
(7) Include only Debt secured by a Mortgage.
<PAGE>
Schedule - 2
------------
Adjusted Total Assets Value and Total Assets Value
--------------------------------------------------
(a) Net Operating Income for the 12 month
period ending on the last day of the month
just ended from each Multi-Family Property which either
was on average at least 90% economically occupied
during, or with respect to which the Construction
Period___Termination Date occurred prior
to the commencement of, such 12 month
period (8) $__________
(b) (a) divided by 0.09; $__________
(c) Net Operating Income for the 3 month
period ending on the last day of the month
just ended from each Multi-Family Property with respect
to which the Construction Period Termination Date
did not occur prior to the commencement of the 12
month period ending on the last day of the month
just ended $__________
(d) (c) times 4.0_____ $__________
(e) (d) divided by 0.09 $__________
(f) aggregate amount of cash expenditures (9) as of
the last day of the month just ended on each
Multi-Family Property as to which the Construction
Period Termination Date has not occurred as of such
last day of the month just ended $__________
(g) aggregate amount of all cash and cash equivalents
held by the Borrowers (10) $__________
(h) ADJUSTED TOTAL ASSETS VALUE
sum of (b) plus (e) plus (f) plus (g) $__________
(i) Joint Venture Share of the net operating income
for the 12 month period ending on the last day
of the month just ended from each Joint Venture
Property which either was on average at
least 90% economically occupied during,
or with respect to which the Construction
Period Termination Date occurred prior
to the commencement of, such 12 month
period $__________
(j) (i) divided by 0.09 $__________
(k) Joint Venture Share of the net operating income
for the 3 month period ending on the last day of
the month just ended from each Joint Venture
Property with respect to which the Construction
Period Termination Date did not occur prior to the
commencement of the 12 month period ending
on the last day of the month just ended $__________
(l) (k) times 4.0 $__________
-----
(m) (l) divided by 0.09 $__________
-------
--------
(8) If a Multi-family Property satisfies the criteria set forth in both (a) and
(b), it shall be included only in the calculations in (b).
(9) Including indirect costs internally allocated in accordance with GAAP.
(10) Including amounts on deposit with banks or other financial institutions and
Investments of the types described in clauses (i) through (vi), inclusive,
of the definition of "Investments", Provided, with respect to Investments
described in clause (vi), that such Investments are readily marketable.
<PAGE>
(n) Joint Venture Share of the aggregate amount
of cash expenditures (11) as of the last day of the
month just ended prior to the date of determination
on each Joint Venture Property which is still
under construction as of such last day of the
month just ended $__________
(o) TOTAL ASSETS VALUE sum of (h) plus (j)
plus (m) plus (n)_ $__________
--------
(11) Including indirect costs internally allocated in accordance with GAAP.
<PAGE>
Schedule - 3
------------
Consolidated Income Available For Debt Service
----------------------------------------------
(for Fiscal Quarter just ended and immediately preceding 3 Fiscal Quarters)
_____ quarter _____
net income (12) $__________
plus minority interests $__________
less extraordinary gains ($_________)
plus extraordinary losses $__________
plus depreciation and amortization $__________
plus losses from sales or joint ventures $__________
less gains from sales or joint ventures ($_________)
less decreases in deferred taxes
and non-cash items ($_________)
plus increases in deferred taxes
and non-cash items $__________
plus interest expense $__________
plus letter of credit fees on
on tax exempt bonds $__________
plus taxes (excluding ad valorem taxes) $__________
_____ quarter _____
net income (12) $__________
plus minority interests $__________
less extraordinary gains ($_________)
plus extraordinary losses $__________
plus depreciation and amortization $__________
plus losses from sales or joint ventures $__________
less gains from sales or joint ventures ($_________)
less decreases in deferred taxes
and non-cash items ($_________)
plus increases in deferred taxes
and non-cash items $__________
plus interest expense $__________
plus letter of credit fees on
on tax exempt bonds $__________
plus taxes (excluding ad valorem taxes) $__________
_____ quarter _____
net income (12) $__________
plus minority interests $__________
less extraordinary gains ($_________)
plus extraordinary losses $__________
plus depreciation and amortization $__________
plus losses from sales or joint ventures $__________
less gains from sales or joint ventures ($_________)
less decreases in deferred taxes
and non-cash items ($_________)
plus increases in deferred taxes
and non-cash items $__________
plus interest expense $__________
plus letter of credit fees on
on tax exempt bonds $__________
plus taxes (excluding ad valorem taxes) $__________
_____ quarter _____
net income (12) $__________
plus minority interests $__________
less extraordinary gains ($_________)
plus extraordinary losses $__________
plus depreciation and amortization $__________
plus losses from sales or joint ventures $__________
less gains from sales or joint ventures ($_________)
less decreases in deferred taxes
and non-cash items ($_________)
plus increases in deferred taxes
and non-cash items $__________
plus interest expense $__________
plus letter of credit fees on
on tax exempt bonds $__________
plus taxes (excluding ad valorem taxes) $__________
Consolidated Income Available
for Debt Service
(last 4 Fiscal Quarters) $
===========
--------
(12) Excluding equity in and income and losses of joint ventures.
<PAGE>
Schedule - 4
------------
Income Available For Debt Service
---------------------------------
(for the current calendar year)
first quarter
net income (13) $__________
plus minority interests $__________
less extraordinary gains ($_________)
plus extraordinary losses $__________
plus depreciation and amortization $__________
plus losses from sales or joint ventures $__________
less gains from sales or joint ventures ($_________)
less decreases in deferred taxes
and non-cash items ($_________)
plus increases in deferred taxes
and non-cash items $__________
plus interest expense $__________
plus letter of credit fees on
on tax exempt bonds $__________
plus taxes (excluding ad valorem taxes) $__________
second quarter
net income (13) $__________
plus minority interests $__________
less extraordinary gains ($_________)
plus extraordinary losses $__________
plus depreciation and amortization $__________
plus losses from sales or joint ventures $__________
less gains from sales or joint ventures ($_________)
less decreases in deferred taxes
and non-cash items ($_________)
plus increases in deferred taxes
and non-cash items $__________
plus interest expense $__________
plus letter of credit fees on
on tax exempt bonds $__________
plus taxes (excluding ad valorem taxes) $__________
third quarter
net income (13) $__________
plus minority interests $__________
less extraordinary gains ($_________)
plus extraordinary losses $__________
plus depreciation and amortization $__________
plus losses from sales or joint ventures $__________
less gains from sales or joint ventures ($_________)
less decreases in deferred taxes
and non-cash items ($_________)
plus increases in deferred taxes
and non-cash items $__________
plus interest expense $__________
plus letter of credit fees on
on tax exempt bonds $__________
plus taxes (excluding ad valorem taxes) $__________
fourth quarter
net income (13) $__________
plus minority interests $__________
less extraordinary gains ($_________)
plus extraordinary losses $__________
plus depreciation and amortization $__________
plus losses from sales or joint ventures $__________
less gains from sales or joint ventures ($_________)
less decreases in deferred taxes
and non-cash items ($_________)
plus increases in deferred taxes
and non-cash items $__________
plus interest expense $__________
plus letter of credit fees on
on tax exempt bonds $__________
plus taxes (excluding ad valorem taxes) $__________
Income Available for Debt Service
(current calendar year) $
===========
--------
(13) Excluding equity in and income and losses of joint ventures.
<PAGE>
Schedule - 5
------------
Total Unencumbered Asset Value
------------------------------
(a) Net Operating Income for the
12 month period ending on the
last day of the month just
ended from each Multi-Family
Property which is not subject
to a Mortgage and which either was on
average at least 90% economically
occupied during, or with
respect to which the
Construction Period
Termination Date occurred
prior to the commencement
of, such 12 month period $__________
(b) (a) divided by 0.09; $__________
-------
(c) Net Operating Income for
the 3 month period ending
on the last day of the month
just ended from each
Multi-Family Property which
is not subject to a Mortgage (14)
with respect to which the
Construction Period
Termination Date did not
occur prior to the commencement
of the 12 month period ending on
the last day of the month just
ended $__________
(d) (c) times 4.0 $__________
-----
(e) (d) divided by 0.09 $__________
(f) aggregate amount of cash
expenditures (including
indirect costs internally
allocated in accordance
with GAAP) as of the last
day of the month just ended
on all Multi-Family Properties
which are not encumbered by a
Mortgage as to which the Construction
Period Termination Date has
not occurred as of such last
day of the month just ended $__________
(g) (f) times 0.50____ $__________
-----
Total Unencumbered Assets Value (sum of (b)
plus (e) plus (g) $
---- ---- ==========
--------
(14) Exclude the Properties which are excluded in the definition of Total
Unencumbered Assets Value.
<PAGE>
Schedule - 6
------------
Unsecured Funded Debt (15)
---------------------
INTEREST FINAL
RATE (16) MATURITY TOTAL
--------- -------- -----
Long-Term Debt
--------------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
Current Maturities of Long-Term Debt
------------------------------------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
---------------------------------- -------- -------- $---------
Total Current Maturities
of Long-Term Debt $---------
--------
(15) Include only Debt which is not secured by a Mortgage, other than, with
respect to the Wachovia LC Properties, any Permitted Encumbrances.
(16) If rate is fixed, insert contract rate. If rate is floating, state that.
<PAGE>
Schedule - 7
------------
Consolidated Fixed Charges
--------------------------
___ quarter ___
interest expense $__________
scheduled principal payments (17) $__________
preferred dividends paid or accrued $__________
Total $__________
___ quarter ___
interest expense $__________
scheduled principal payments (17) $__________
preferred dividends paid or accrued $__________
Total $__________
___ quarter ___
interest expense $__________
scheduled principal payments (17) $__________
preferred dividends paid or accrued $__________
Total $__________
___ quarter ___
interest expense $__________
scheduled principal payments (17) $__________
preferred dividends paid or accrued $__________
Total $__________
--------
(17) Excluding balloon payments payable at maturity.
<PAGE>
EXHIBIT G
---------
GABLES REALTY LIMITED PARTNERSHIP
CLOSING CERTIFICATE
-------------------
Reference is made to the Second Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of August 14, 2000, among Gables Realty Limited
Partnership, the Banks listed therein, and Wachovia Bank, N.A., as
Administrative Agent, First Union National Bank, as Syndication Agent, and The
Chase Manhattan Bank, as Documentation Agent. Capitalized terms used herein have
the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
------------------------------, the duly authorized ------------- of the General
Partner, hereby certifies to the Administrative Agent and the Banks that (i) no
Default has occurred and is continuing as of the date hereof, and (ii) the
representations and warranties contained in Article V of the Credit Agreement
are true on and as of the date hereof.
Certified as of August 14, 2000.
GABLES REALTY LIMITED PARTNERSHIP
(SEAL)
By: Gables GP, Inc., its sole general partner
By:___________________________________________
[Name and title of Executive Officer,
other than Secretary]
<PAGE>
EXHIBIT H
---------
BORROWING BASE CERTIFICATE
--------------------------
Reference is made to the Second Amended and Restated Credit Agreement dated
as of August 14, 2000 (as modified and supplemented and in effect from time to
time, the "Credit Agreement") among Gables Realty Limited Partnership, the Banks
from time to time parties thereto and Wachovia Bank, N.A., as Administrative
Agent, First Union National Bank, as Syndication Agent, and The Chase Manhattan
Bank, as Documentation Agent. Capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section [3.01(i)][5.01(h)] of the Credit Agreement,
_________________________, the duly authorized chief financial officer of the
General Partner, hereby certifies to the Administrative Agent and the Banks that
(i) sufficient funds are available to complete all Eligible Properties now under
construction, and (ii) the calculation of the Borrowing Base contained in this
Borrowing Base Certificate is true, accurate and complete in all material
respects as of _______________, ______.
The calculation of the Borrowing Base is as follows:
(i) (a) Net Operating Income for the 12 month
period ending on the last day of the
month just ended from each Eligible
Property which either was on
average at least 90% economically
occupied during, or with respect to
which the Construction Period
Termination Date occurred prior
to the commencement of, such
12 month period (18) $__________
(b) product of 7.22222 times (i)(a) $__________
-----
(ii) (a) Net Operating Income for the 3 month
period ending on the last day of the
month just ended from each Eligible
Property with respect to which
the Construction Period Termination
Date did not occur prior to the
commencement of the 12 month period
ending on the last day of the month
just ended $__________
(b) product of 28.88889 times (ii)(a) $__________
-----
(iii)(a) aggregate amount of cash expenditures
(including indirect costs internally
allocated in accordance with GAAP)
as of the last day of the month just
ended on all Eligible Properties
which consist of Properties as
to which the Construction Period
Termination Date has not occurred
as of such last day of the month
just ended $__________
(b) 20% of amount in (iii)(a) $__________
(c) amount in excess of amount in (iii)(b)
for all Eligible Properties included in (iii)(a)
for undeveloped land $__________
(d) (iii)(a) less (iii)(c) $__________
----
(e) product of 0.50 times (iii)(d) $__________
-----
(f) aggregate amount of Commitments $__________
(g) 30% of (iii)(f) $__________
(h) lesser of (iii)(e) and (iii)(g) $__________
--------
(18) If an Eligible Property satisfies the criteria set forthin both clause (i)
and in clause (ii), it shall be included in the calculations only in clause
(i).
<PAGE>
EXHIBIT H
---------
(cont'd.)
(iv) aggregate amount of all outstanding
unsecured Consolidated Debt, including
standby letters of credit, other than
the outstanding balance under this
Agreement. $__________
BORROWING BASE (sum of (i)(b), plus (ii)(b), plus
---- ----
(iii)(h) and less (iv) $__________
----
GABLES REALTY LIMITED PARTNERSHIP
(SEAL)
By: Gables GP, Inc., its sole general partner
By: _____________________________________________
[chief financial officer]
<PAGE>
EXHIBIT I
---------
GUARANTY
--------
THIS GUARANTY (this "Guaranty") is made as of August 14, 2000, by GABLES
GP, INC., a Texas corporation, and GABLES RESIDENTIAL TRUST, a Maryland Trust
(each a "Guarantor", and collectively, the "Guarantors", which terms shall
include any subsidiary of Gables Realty Limited Partnership which becomes a
Guarantor pursuant to Section 15 hereof and Section 5.23 of the Credit Agreement
referred to below) in favor of the Administrative Agent, for the ratable benefit
of the Banks, under the Credit Agreement referred to below;
W I T N E S S E T H
WHEREAS, GABLES REALTY LIMITED PARTNERSHIP, a Delaware limited partnership,
and GABLES-TENNESSEE PROPERTIES, L.L.C., a Tennessee limited liability company
(collectively, the "Borrowers"), WACHOVIA BANK, N.A., as Administrative Agent
(the "Administrative Agent"), First Union National Bank, as Syndications Agent,
The Chase Manhattan Bank, as Documentation Agent, and certain other Banks from
time to time party thereto have entered into a certain Second Amended and
Restated Credit Agreement dated as of even date herewith (as it may be amended
or modified further from time to time, the "Credit Agreement"), providing,
subject to the terms and conditions thereof, for extensions of credit to be made
by the Banks to the Borrowers which will the benefit the Guarantors;
WHEREAS, it is required by Section 3.01(b) of the Credit Agreement, that
the Guarantors execute and deliver this Guaranty whereby the Guarantors shall
guarantee the payment when due of all principal, interest and other amounts that
shall be at any time payable by the Borrowers under the Credit Agreement, the
Notes and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support that the
Borrowers have provided, and such financial and other support as the Borrowers
may in the future provide, to the Guarantors, whether directly or indirectly,
and in order to induce the Banks and the Administrative Agent to enter into the
Credit Agreement, the Guarantors are willing to guarantee the obligations of the
Borrowers under the Credit Agreement, the Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have,
as used herein, the respective meanings provided for therein.
SECTION 2. Representations and Warranties. The Guarantors incorporate
herein by reference as fully as if set forth herein all of the representations
and warranties pertaining to the Guarantors contained in Article V of the Credit
Agreement (which representations and warranties shall be deemed to have been
renewed by the Guarantors upon each Borrowing under the Credit Agreement).
SECTION 3. Covenants. The Guarantors covenant that, so long as any Bank has
any Commitment outstanding under the Credit Agreement or any amount payable
under the Credit Agreement or any Note shall remain unpaid, the Guarantors will
fully comply with those covenants set forth in Article VI of the Credit
Agreement pertaining to the Guarantors, and the Guarantors incorporate herein by
reference as fully as if set forth herein all of such covenants.
SECTION 4. The Guaranty. The Guarantors hereby unconditionally and jointly
and severally guarantee (i) the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest on
each Note issued by the Borrowers pursuant to the Credit Agreement, and the full
and punctual payment of all other amounts payable by the Borrowers under the
Credit Agreement, including, without limitation, all Syndicated Loans and Money
Market Loans and interest thereon, all compensation and indemnification amounts
and fees payable pursuant to the Credit Agreement and the Administrative Agent's
Letter Agreement, and (ii) the timely performance of all other obligations of
the Borrower under the Credit Agreement and the other Loan Documents (all of the
foregoing obligations being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Borrowers to pay punctually any such amount
or perform such obligations, each of the Guarantors agrees that it shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in the Credit Agreement, the relevant Note or the relevant Loan
Document, as the case may be, or perform such obligation in accordance with the
terms and conditions therefor specified in the Credit Agreement or the other
Loan Documents, and pay all costs of collection, including reasonable attorneys
fees; provided that, notwithstanding the provisions of O.C.G.A. Section
13-1-11(a)(2) to the contrary, the Guarantors shall not be obligated to pay more
than the attorneys fees actually incurred in connection with such collection.
<PAGE>
SECTION 5. Guaranty Unconditional. The obligations of the Guarantors
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Borrowers under the Credit Agreement,
any Note, or any other Loan Document, by operation of law or otherwise or
any obligation of any other guarantor of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the Credit
Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any direct or
indirect security, if any, for any obligation of the Borrowers under the
Credit Agreement, any Note, any Loan Document, or any obligations of any
other guarantor of any of the Guaranteed Obligations;
(iv) any change in the partnership structure or ownership of the
Borrowers or corporate structure or ownership of any other Guarantor or any
other guarantor of any of the Guaranteed Obligations, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Borrower, or any other Guarantor or any other guarantor of the Guaranteed
Obligations, or its assets or any resulting release or discharge of any
obligation of the Borrower, or any other Guarantor or any other guarantor
of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the
Guarantors may have at any time against the Borrowers, any other Guarantor
or any other guarantor of any of the Guaranteed Obligations, the
Administrative Agent, any Bank or any other Person, whether in connection
herewith or any unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Borrowers, or any other Guarantor or any other guarantor of any of the
Guaranteed Obligations, for any reason related to the Credit Agreement, any
other Loan Document, or any other Guaranty, or any provision of applicable
law or regulation purporting to prohibit the payment by the Borrowers, or
any other Guarantor or any other guarantor of the Guaranteed Obligations,
of the principal of or interest on any Note or any other amount payable by
the Borrowers under the Credit Agreement, the Notes, or any other Loan
Document; or
(vii) any other act or omission to act or delay of any kind by the
Borrowers, any other Guarantor or any other guarantor of the Guaranteed
Obligations, the Administrative Agent, any Bank or any other Person or any
other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Guarantor's
obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Guarantors' obligations hereunder shall remain in full force
and effect until all Guaranteed Obligations shall have been paid in full and the
Commitments under the Credit Agreement shall have terminated or expired. If at
any time any payment of the principal of or interest on any Note or any other
amount payable by the Borrowers under the Credit Agreement or any other Loan
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Borrowers or otherwise, the
Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 7. Waiver of Notice by the Guarantors. The Guarantors irrevocably
waive acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against the Borrowers, any
other Guarantor or any other guarantor of the Guaranteed Obligations, or any
other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrowers under the Credit Agreement, any Note or any
other Loan Document is stayed upon the insolvency, bankruptcy or reorganization
of the Borrowers, all such amounts otherwise subject to acceleration under the
terms of the Credit Agreement, any Note or any other Loan Document shall
nonetheless be payable by the Guarantors hereunder forthwith on demand by the
Administrative Agent made at the request of the Required Banks.
<PAGE>
SECTION 9. Notices. All notices, requests and other communications to any
party hereunder shall be given or made by telecopier or other writing and
telecopied or mailed or delivered to the intended recipient at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for such purpose by
notice to the Administrative Agent in accordance with the provisions of Section
8.01 of the Credit Agreement. Except as otherwise provided in this Guaranty, all
such communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice, 3
Domestic Business Days after such communication is deposited in the mails with
first class postage prepaid, in each case given or addressed as aforesaid.
SECTION 10. No Waivers. No failure or delay by the Administrative Agent or
any Banks in exercising any right, power or privilege hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in this Guaranty, the Credit
Agreement, the Notes, and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for the benefit of the
Administrative Agent and the Banks and their respective successors and assigns
and in the event of an assignment of any amounts payable under the Credit
Agreement, the Notes, or the other Loan Documents, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty may not be assigned by the Guarantors without the
prior written consent of the Administrative Agent and the Required Banks, and
shall be binding upon the Guarantors and their respective successors and
permitted assigns.
SECTION 12. Changes in Writing. Neither this Guaranty nor any provision
hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by the Guarantors and the Administrative Agent, with the consent
of the Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTOR AND THE ADMINISTRATIVE AGENT
HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY GEORGIA STATE COURT
SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE GUARANTORS AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by the Guarantor
hereunder shall be made without setoff or counterclaim and free and clear of and
without deduction or withholding for or on account of, any present or future
taxes, levies, imposts, duties or other charges of whatsoever nature imposed by
any government or any political or taxing authority pursuant and subject to the
provisions of Section 2.12(c) of the Credit Agreement, the terms of which are
incorporated herein by reference as to the Guarantors as fully as if set forth
herein, and for such purposes, the rights and obligations of the Borrowers under
such Section shall devolve to the Guarantors as to payments required to be made
by the Guarantors hereunder.
SECTION 15. Additional Guarantors; Release of Guarantors. Section 5.23 of
the Credit Agreement provides that Significant Subsidiaries must become
Guarantors, and Subsidiaries which are not Significant Subsidiaries may elect to
become Guarantors, by, among other things, executing and delivering to the
Administrative Agent a counterpart of this Guaranty. Any Subsidiary which
executes and delivers to the Administrative Agent a counterpart of this Guaranty
shall be a Guarantor for all purposes hereunder. Under certain circumstances
described in the last sentence of Section 5.11 of the Credit Agreement,
Subsidiaries which are not Significant Subsidiaries may obtain from the
Administrative Agent a written release from this Guaranty pursuant to the
provisions of such sentence, and upon obtaining such written release, any such
Subsidiary shall no longer be a Guarantor hereunder. Each other Guarantor
consents and agrees to any such release and agrees that no such release shall
affect its obligations hereunder.
<PAGE>
SECTION 16. Other Waivers by the Guarantors. The Guarantors hereby
expressly waive, renounce, and agree not to assert, any right, claim or cause of
action, including, without limitation, a claim for reimbursement, subrogation,
indemnification or otherwise, against the Borrower arising out of or by reason
of this Guaranty or the obligations of the Guarantors hereunder, including,
without limitation, the payment or securing or purchasing of any of the
Guaranteed Obligations by the Guarantors. The waiver, renunciation and agreement
contained in the immediately preceding sentence is for the benefit of the
Administrative Agent and the Banks and also for the benefit of the Borrower who
may assert the benefits thereof as a third-party beneficiary, and the Guarantors
may be released from such waiver, renunciation and agreement only by the
execution and delivery, by the Administrative Agent, the Required Banks and the
Borrower, of an instrument expressly releasing the Guarantors therefrom.
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be duly
executed, under seal, by its authorized officer as of the date first above
written.
GABLES GP, INC.
(SEAL)
By:___________________________________________
Marvin R. Banks, Jr., Senior Vice President
Address:
c/o Gables Realty Limited Partnership
2859 Paces Ferry Road
Suite 1450
Atlanta, Georgia 30339
Attention: Marvin R. Banks, Jr.
Telecopier number: 770-438-5559
Confirmation number: 770-438-5501
GABLES RESIDENTIAL TRUST
(SEAL)
By:___________________________________________
Title:
Address:
c/o Gables Realty Limited Partnership
2859 Paces Ferry Road
Suite 1450
Atlanta, Georgia 30339
Attention: Marvin R. Banks, Jr.
Telecopier number: 770-438-5559
Confirmation number: 770-438-5501
<PAGE>
EXHIBIT J
---------
CONTRIBUTION AGREEMENT
----------------------
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into as of August
14, 2000 by and between GABLES REALTY LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Parent") and GABLES-TENNESSEE PROPERTIES, L.L.C., a Tennessee
limited liability company (together with the Parent, individually or
collectively, as the context shall require, the "Principals"), GABLES GP, INC.,
a Texas corporation, and GABLES RESIDENTIAL TRUST, a Maryland trust
(collectively, the "Guarantors" and, together with any subsidiary of the Parent
which becomes a Guarantor pursuant to the last paragraph hereof, Section 15 of
the Guaranty referred to below and Section 5.23 of the Credit Agreement referred
to below). The Principals and each of the Guarantors are sometimes hereinafter
referred to individually as a "Contributing Party" and collectively as the
"Contributing Parties").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Second Amended and Restated Credit
Agreement, dated as of even date herewith among the Principals, the Banks party
thereto and Wachovia Bank, N.A., as Administrative Agent, First Union National
Bank, as Syndication Agent, The Chase Manhattan Bank, as Documentation Agent,
and certain other Banks from time to time party thereto (such agreement, as the
same may from time to time be amended, modified, restated or extended, being
hereinafter referred to as the "Credit Agreement"; capitalized terms used herein
shall have the meanings ascribed thereto in the Credit Agreement), the Banks
have agreed to extend financial accommodations to the Principal;
WHEREAS, as a condition, among others, to the willingness of the
Administrative Agent and the Banks to enter into the Credit Agreement, they have
required that each Guarantor execute and deliver that certain Guaranty, dated as
of even date herewith (such agreement, as the same may from time to time be
amended, modified, restated or extended, being hereinafter referred to as the
"Guaranty"), pursuant to which, among other things, the Guarantors have jointly
and severally agreed to guarantee the "Guaranteed Obligations" (as defined in
the Guaranty); and
WHEREAS, each Guarantor other than Gables Residential Trust is a direct or
indirect subsidiary of the Parent and is engaged in businesses related to those
of the Parent and each other Guarantor which is a Subsidiary, and each of the
Guarantors will derive direct or indirect economic benefit from the
effectiveness and existence of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce each Subsidiary Guarantor to enter into the
Guaranty, it is agreed as follows:
To the extent that any Guarantor shall, under the Guaranty, make a payment
(a "Guarantor Payment") of a portion of the Guaranteed Obligations, then,
without limiting its rights of subrogation against the Principas, such Guarantor
shall be entitled to contribution and indemnification from, and be reimbursed
by, each of the other Contributing Parties in an amount, for each such
Contributing Party, equal to a fraction of such Guarantor Payment, the numerator
of which fraction is such Contributing Party's Allocable Amount and the
denominator of which is the sum of the Allocable Amounts of all of the
Contributing Parties.
As of any date of determination, the "Allocable Amount" of each
Contributing Party shall be equal to the maximum amount of liability which could
be asserted against such Contributing Party hereunder with respect to the
applicable Guarantor Payment without (i) rendering such Contributing Party
"insolvent" within the meaning of Section 101(31) of the Federal Bankruptcy Code
(the "Bankruptcy Code") or Section 2 of either the Uniform Fraudulent Transfer
Act (the "UFTA") or the Uniform Fraudulent Conveyance Act (the "UFCA"), (ii)
leaving such Contributing Party with unreasonably small capital, within the
meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or
Section 5 of the UFCA, or (iii) leaving such Contributing Party unable to pay
its debts as they become due within the meaning of Section 548 of the Bankruptcy
Code or Section 4 of the UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights of the
Contributing Parties, and nothing set forth in this Agreement is intended to or
shall impair the obligations of the Guarantors, jointly and severally, to pay
any amounts, as and when the same shall become due and payable in accordance
with the terms of the Guaranty.
<PAGE>
The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets in favor of each Guarantor to
which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by each of the
Contributing Parties and shall continue in full force and effect and may not be
terminated or otherwise revoked by any Contributing Party until all of the
Guaranteed Obligations shall have been indefeasibly paid in full (in lawful
money of the United States of America) and discharged and the Credit Agreement
and financing arrangements evidenced and governed by the Credit Agreement shall
have been terminated. Each Contributing Party agrees that if, notwithstanding
the foregoing, such Contributing Party shall have any right under applicable law
to terminate or revoke this Agreement, and such Contributing Party shall attempt
to exercise such right, then such termination or revocation shall not be
effective until a written notice of such revocation or termination, specifically
referring hereto and signed by such Contributing Party, is actually received by
each of the other Contributing Parties and by the Administrative Agent at its
notice address set forth in the Credit Agreement. Such notice shall not affect
the right or power of any Contributing Party to enforce rights arising prior to
receipt of such written notice by each of the other Contributing Parties and the
Administrative Agent. If any Bank grants additional loans to the Principals or
takes other action giving rise to additional Guaranteed Obligations after any
Contributing Party has exercised any right to terminate or revoke this Agreement
but before the Administrative Agent receives such written notice, the rights of
each other Contributing Party to contribution and indemnification hereunder in
connection with any Guarantor Payments made with respect to such loans or
Guaranteed Obligations shall be the same as if such termination or revocation
had not occurred.
Section 5.23 of the Credit Agreement provides that Significant Subsidiaries
must become Guarantors, and Subsidiaries which are not Significant Subsidiaries
may elect to become Guarantors, by, among other things, executing and delivering
to the Administrative Agent a counterpart of the Guaranty and of this
Contribution Agreement. Any Subsidiary which executes and delivers to the
Administrative Agent a counterpart of the Guaranty and of this Contribution
Agreement shall be a Subsidiary Guarantor for all purposes hereunder. Under
certain circumstances described in the last sentence of Section 5.11 of the
Credit Agreement, Subsidiaries which are not Significant Subsidiaries may obtain
from the Administrative Agent a written release from the Guaranty pursuant to
the provisions of such sentence, and upon obtaining such written release, any
such Subsidiary shall no longer be a Subsidiary Guarantor or Contributing Party
hereunder, and such release shall automatically and without further action
constitute a release by each other Contributing Party of all obligations of such
Subsidiary hereunder. Each other Subsidiary Guarantor consents and agrees to any
such release and agrees that no such release shall affect its obligations
hereunder, except as to the Subsidiary so released.
IN WITNESS WHEREOF, each Contributing Party has executed and delivered this
Agreement, under seal, as of the date first above written.
GABLES REALTY LIMITED PARTNERSHIP
(SEAL)
By: Gables GP, Inc., its sole general partner
By:___________________________________________
Marvin R. Banks, Jr., Senior Vice President
Gables Realty Limited Partnership
2859 Paces Ferry Road
Suite 1450
Atlanta, Georgia 30339
Attention: Marvin R. Banks, Jr.
Telecopier number: 770-438-5559
Confirmation number: 770-438-5501
GABLES GP, INC.
(SEAL)
By:___________________________________________
Marvin R. Banks, Jr., Senior Vice President
Address:
Gables Realty Limited Partnership
2859 Paces Ferry Road
Suite 1450
Atlanta, Georgia 30339
Attention: Marvin R. Banks, Jr.
Telecopier number: 770-438-5559
Confirmation number: 770-438-5501
<PAGE>
EXHIBIT K
---------
MONEY MARKET QUOTE REQUEST
--------------------------
Wachovia Bank, N.A.,
as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Real Estate Finance Division
Re: Money Market Quote Request
This Money Market Quote Request is given in accordance with Section 2.03 of
the Second Amended and Restated Credit Agreement (as amended to date and as
hereafter amended or modified from time to time, the "Credit Agreement") dated
as of August 14, 2000, among Gables Realty Limited Partnership and
Gables-Tennessee Properties, L.L.C., as the Borrowers, the Banks from time to
time parties thereto, and Wachovia Bank, N.A., as Administrative Agent, First
Union National Bank, as Syndication Agent, and The Chase Manhattan Bank, as
Documentation Agent. Terms defined in the Credit Agreement are used herein as
defined therein.
The undersigned Borrower hereby requests that the Administrative Agent
obtain quotes for a Money Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
______________, 19_____ (the "Money Market Borrowing Date"). (1)
2. The aggregate amount of the Money Market Borrowing shall be $ . (2)
3. The Stated Maturity Date(s) applicable to the Money Market Borrowing
shall be days. (3)
Very truly yours,
GABLES REALTY LIMITED PARTNERSHIP
(SEAL)
By: Gables GP, Inc., its sole general partner
By:___________________________________________
[Name and title of Executive Officer,
other than Secretary]
[GABLES-TENNESSEE PROPERTIES, L.L.C.
(SEAL)
By: Gables Realty Limited Partnership,
member
By: Gables GP, Inc., its sole general partner
By:___________________________________________
Marvin R. Banks, Jr., Senior Vice President
--------
(1) The date must be a Euro-Dollar Business Day.
(2) The amount of the Money Market Borrowing is subject to Section 2.03(a) and
(b).
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii). The Borrower
may request that up to 3 different Stated Maturity Dates be applicable to
any Money Market Borrowing, provided that (i) each such Stated Maturity
Date shall be deemed to be a separate Money Market Quote Request and (ii)
the Borrower shall specify the amounts of such Money Market Borrowing to be
subject to each such different Stated Maturity Date.
<PAGE>
EXHIBIT L
---------
MONEY MARKET QUOTE
------------------
Wachovia Bank, N.A.,
as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Real Estate Finance Division
Re: Money Market Quote to Gables Realty Limited Partnership
-------------------------------------------------------
This Money Market Quote is given in accordance with Section 2.03(c)(ii) of
the Second Amended and Restated Credit Agreement (as amended to date and as
hereafter amended or modified from time to time, the "Credit Agreement") dated
as of August 14, 2000, among Gables Realty Limited Partnership and
Gables-Tennessee Properties, L.L.C., as the Borrowers), the Banks from time to
time parties thereto, and Wachovia Bank, N.A., as Administrative Agent, First
Union National Bank, as Syndication Agent, and The Chase Manhattan Bank, as
Documentation Agent. Terms defined in the Credit Agreement are used herein as
defined therein.
In response to the Borrower's Money Market Quote Request dated
_______________, 19____, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Money Market Borrowing: (1)
4. We hereby offer to make Money Market Loan(s) in the following maximum
principal amounts for the following Interest Periods and at the
following rates:
Maximum Stated
Principal Maturity
Amount (2) Date (3) Rate Per Annum (4)
---------- -------- ------------------
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Money Market Loan(s) for which any
offer(s) [is] [are] accepted, in whole or in part (subject to the last sentence
of Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: __________________ By: _______________________
Authorized Officer
--------
(1) As specified in the related Money Market Quote Request.
(2) The principal amount bid for each Stated Maturity Date may not exceed the
principal amount requested. Money Market Quotes must be made for at least
$3,000,000 or a larger integral multiple of $1,000,000
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii).
(4) Subject to Section 2.03(c)(ii)(C).
<PAGE>
Schedule 4.08
--------------
Subsidiaries
------------
ENTITY TYPE OF ENTITY
------ --------------
Gables Residential Trust Maryland Trust
Gables Realty Limited Partnership Delaware Limited Partnership
Gables - Tennessee Properties, L.L.C. Tennessee Limited Liability Company
Gables GP, Inc. Texas Corporation
Gables East Construction, Inc. Georgia Corporation
East Apartment Management, Inc. Georgia Corporation
Gables Central Construction, Inc. Texas Corporation
Central Apartment Management, Inc. Texas Corporation
Candlewood Gen Par, Inc. Georgia Corporation
Candlewood - Indian Creek, L.P. Georgia Limited Partnership
GRT Villas Gen Par, Inc. Georgia Corporation
(formerly Candle Creek, Inc.)
GRT Villas Limited Partnership Texas Limited Partnership
Pin Oak Green Texas General Partnership
Pin Oak Park Apartments Texas General Partnership
Gables Lions Head Limited Texas Limited Partnership
Gables Rivercrest II Limited Texas Limited Partnership
Kings Colony Associates, Ltd. Florida Limited Partnership
San Michele Joint Venture Florida General Partnership
Hampton Place Joint Venture Florida General Partnership
CM Bay Associates Florida General Partnership
Hampton Lakes II Associates Florida General Partnership
San Remo Limited Partnership Florida Limited Partnership
Mizner I Limited Partnership Florida Limited Partnership
TCRDAD Vinings at Boynton Beach II Florida Limited Partnership
Limited Partnership
TCRDAD Wellington Limited Partnership Florida Limited Partnership
Boynton Beach I Limited Partnership Florida Limited Partnership
Hampton Lakes Associates Florida General Partnership
Town Colony Associates Florida General Partnership
Town Colony II Associates Florida General Partnership
Boca Place Associates, Ltd. Florida Limited Partnership
