FIRST AMENDMENT TO TERM LOAN
THIS FIRST AMENDMENT TO TERM LOAN (this "First Amendment") is dated as of the
5th day of August, 1997 among GABLES REALTY LIMITED PARTNERSHIP (the
"Borrower"), WACHOVIA BANK, N.A., as Agent (the "Agent"), and WACHOVIA BANK,
N.A., (the "Bank');
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Bank executed and delivered that
certain Term Loan, dated as of the 15th day of November, 1996 (the "Credit
Agreement");
WHEREAS, the Borrower has requested and the Agent and the Bank have agreed to
certain amendments to the Credit Agreement, subject to the terms and conditions
hereof;
NOW, THEREFORE, for and in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged by the parties hereto, the Borrower, the Agent and the Bank hereby
covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term used
herein which is defined in the Credit Agreement shall have the meaning
assigned to such term in the Credit Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and
each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall from and after the date hereof
refer to the Credit Agreement as amended hereby.
2. Amendments.
2.1. Amendment to Section 2.05. Section 2.05 of the Credit Agreement is hereby
amended by deleting such Section in its entirety and by substituting
therefor the following:
SECTION 2.05. Interest Rates. (a) "Applicable Margin" means (i) for the period
commencing on the Closing Date to and including the first Performance Pricing
Determination Date, (x) for any Base Rate Loan, (0.25)%, and (y) for any
Euro-Dollar Loan, 0.80%; and (ii) from and after the first Performance Pricing
Determination Date, (x) for any Base Rate Loan, (0.25)% and (y) for each
Euro-Dollar Loan, the percentage determined on each Performance Pricing
Determination Date by reference to the table set forth below as to such type
of Loan and the Debt Rating for the quarterly or annual period ending
immediately prior to such Performance Pricing Determination Date; provided,
that (i) if there is no Debt Rating, the Applicable Margin for the Euro Dollar
Loans shall be based upon Level IV of the table if there is no Debt Rating, the
Applicable Margin for the Euro-Dollar Loans shall be based upon Level IV of the
table below, and (ii) for Euro-Dollar Loans in effect under the Original
Agreement on the Closing Date, the Applicable Margin in effect under the
Original Agreement shall continue to apply thereto for the remainder of the
Interest Period with respect thereto.
Level I Level II Level III Level IV
Debt BBB+ BBB BBB- less than BBB-
Rating or or or or
Baal Baa2 Baa3 less than Baa3
Applicable 0.675 0.80 0.95 1.15
Margin
In determining the amounts to be paid by the Borrower pursuant to Sections
2.05(b), and 2.06(a), the Borrower and the Bank shall refer to the Borrower's
Debt Rating from time to time. For purposes hereof, "Performance Pricing
Determination Date" shall mean each date on which the Debt Rating changes. Each
change in interest and fees as a result of a change in Debt Rating shall be
effective only for Loans (including Refunding Loans) which are made on or after
the relevant Performance Pricing Determination Date. All determinations
hereunder shall be made by the Agent unless the Bank or the Borrower shall
object to any such determination. The Borrower shall promptly notify the 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 upon
demand, for each day until paid at a rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin plus the applicable Adjusted London
Interbank Offered Rate for such Interest Period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than 1 month, at intervals of 1 month after the first day thereof. Any
overdue principal of and, to the extent permitted by law, overdue interest on
any Euro-Dollar Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest Period
means a rate per annum equal to the quotient obtained (rounded upwards, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan means for
the Interest Period of such Euro-Dollar Loan, the rate per annum determined on
the basis of the offered rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rates appear on Telerate Page 3750
effective as of 11:00 A.M., London time, 2 Euro-Dollar Business Days prior to
the first day of such Interest Period, provided that if no such offered rates
appear on such page, the "London Interbank Offered Rate" for such Interest
Period will be the arithmetic average (rounded upward, if necessary, to the next
higher 1/100th of 1%) of rates quoted by not less than 2 major banks in New York
City, selected by the 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 Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Bank 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 Bank, 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.
2.2. Amendment to Section 9.01. Section 9.01 of the Credit Agreement is hereby
amended by deleting the first sentence of such Section in its entirety and
by substituting therefor the following:
SECTION 9.01. Notices. All notices, requests and other communications to either
party hereunder shall be in writing (including telecopier or similar writing)
and shall be given (i) to Lender and Agent, as Wachovia Bank, N.A., and (ii) to
Borrower, at the respective addresses and telecopier numbers set forth on the
signature pages hereof or at such other address or telecopier number as either
party may hereafter specify for the purpose of notice to the other party.
3. Restatement of Representations and Warranties. The Borrower hereby restates
and renews each and every representation and warranty heretofore made by it
in the Credit Agreement and the other Loan Documents as fully as if made on
the date hereof and with specific reference to this First Amendment and all
other loan documents executed and/or delivered in connection herewith.
4. Effect of Amendment. Except as set forth expressly hereinabove, all terms
of the Credit Agreement and the other Loan Documents shall be and remain in
full force and effect, and shall constitute the legal, valid, binding and
enforceable obligations of the Borrower. The amendments contained herein
shall be deemed to have prospective application only, unless otherwise
specifically stated herein.
5. Ratification. The Borrower hereby restates, ratifies and reaffirms each and
every term, covenant and condition set forth in the Credit Agreement and
the other Loan Documents effective as of the date hereof.
6. Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and
the same instrument.
7. Section References. Section titles and references used in this First
Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreements among the parties hereto
evidenced hereby.
8. No Default. To induce the Agent and the Bank to enter into this First
Amendment and to continue to make advances pursuant to the Credit
Agreement, the Borrower hereby acknowledges and agrees that, as of the date
hereof, and after giving effect to the terms hereof, there exists (i) no
Default or Event of Default and (ii) no right of offset, defense,
counterclaim, claim or objection in favor of the Borrower arising out of or
with respect to any of the Loans or other obligations of the Borrower owed
to the Bank under the Credit Agreement.
9. Further Assurances. The Borrower agrees to take such further actions as the
Agent and the Bank shall reasonably request in connection herewith to
evidence the amendments herein contained to the Borrower.
10. Governing Law. This First Amendment shall be governed by and construed and
interpreted in accordance with, the laws of the State of Georgia.
11. Conditions Precedent. This First Amendment shall become effective only upon
execution and delivery (i) of this First Amendment by each of the parties
hereto, and (ii) of the Consent and Reaffirmation of Guarantors at the end
hereof by each of the Guarantors.
IN WITNESS WHEREOF, the Borrower, the Agent and the Bank have caused this
First Amendment to be duly executed, under seal, by its duly authorized officer
as of the day and year first above written.
GABLES REALTY LIMITED PARTNERSHIP,
By: Gables GP, Inc.,
its sole general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
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Title: Vice President
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WACHOVIA BANK, N.A.
as Agent and as a Bank
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Amended and
Restated Credit Agreement (the "Replacement Agreement"), (ii) consents to the
execution and delivery of the Replacement Agreement by the parties thereto and
(iii) reaffirms all of its obligations and covenants under the Guaranty
Agreement dated as of November 15, 1996 executed by it, and agrees that none of
such obligations and covenants shall be affected by the execution and delivery
of the Replacement Agreement. In addition, (a) the General Partner certifies
that it is authorized to execute the Replacement Agreement on behalf of the
Borrower and to bind the Borrower thereby, that it is authorized to execute this
Consent and Reaffirmation of Guarantors on behalf of Gables-Tennessee Properties
and to bind Gables-Tennessee Properties hereby, that since November 15, 1996,
there has been no amendment to the Borrower's Certificate of Limited
Partnership, the Borrower's Partnership Agreement, the General Partner's
Certificate of Incorporation or the General Partner's Bylaws, and that each of
such documents, as in effect on November 15, 1996, continues in full force and
effect as of the date hereof and that since November 15, 1996, there has been no
amendment to its Partnership Agreement and that its Partnership Agreement, as in
effect on November 15, 1996 continues in full force and effect as of the date
hereof, except that the Partnership Agreement was amended on July 24, 1997, to
create preferred units in response to an issuance of preferred shares, and to
make other changes relating thereto; and (b) GBP hereby certifies that since
November 15, 1996, there has been no amendment to its Declaration of Trust or
its Bylaws, except as indicated in the Secretary's Certificate to the Agent, and
that each of such documents, as in effect on November 15, 1996, and as amended
as indicated in such Secretary's Certificate, continues in full force and effect
as of the date hereof.
This Consent and Reaffirmation may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
GABLES GP, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx.
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Vice President
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GABLES RESIDENTIAL TRUST
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
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Title: Vice President
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GABLES-TENNESSEE PROPERTIES
By: Gables GP, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
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Title: Vice President
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