Exhibit 4.2
THIS AMENDMENT TO LOAN AGREEMENT (this "Amendment"), is made as of this
first day of August, 1997, by and among APPLE RESIDENTIAL INCOME TRUST, INC., a
Virginia corporation (the "Borrower") and FIRST UNION NATIONAL BANK OF VIRGINIA,
a national banking association (the "Bank").
RECITALS
A. The Bank has made a revolving loan to the Borrower in an outstanding
principal amount not to exceed $10,000,000.00 at any one time (the "Loan")
pursuant to the terms of a Loan Agreement dated as of March 1, 1997, by and
between the Borrower and the Bank (the "Loan Agreement"), which loan is
currently evidenced by a Promissory Note of the Borrower dated March 1, 1997, in
the principal amount of $10,000,000.00, payable to the order of the Bank (the
"Note"). Capitalized terms used herein without definition which are defined in
the Loan Agreement, as amended hereby, shall have the same meaning as provided
therefor in the Loan Agreement, as amended hereby, unless the context otherwise
requires.
B. The Borrower and the Bank desire to modify and amend the Note and the
Loan Agreement and other Loan Documents to increase the maximum principal amount
of the Loan and the Note to $20,000,000.00 and to modify the Loan Documents as
otherwise provided herein.
AGREEMENT
NOW, THEREFORE, that for and in consideration of the sum of Ten Dollars
($10.00) cash in hand paid, and other good and valuable consideration, receipt
and sufficiency whereof is hereby acknowledged, the parties hereto do agree as
follows:
ARTICLE I
AMENDMENTS
Section 1.1. LOAN AGREEMENT.
The Loan Agreement is hereby modified as follows:
A. The first sentence of Section 2.1 of the Loan Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
2.1 Amount and Purpose. Borrower agrees to borrow, and Lender agrees
to lend [subject, among other things, to the terms of this Agreement], an
outstanding principal amount at any one time not to exceed Twenty Million
Dollars ($20,000,000.00), to be advanced as hereinafter provided to finance
a portion of the purchase price for acquisitions of Projects acquired by
Borrower after the date hereof.
B. The first sentence of Section 2.2 of the Loan Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
2.2 Note. To evidence the Loan, Borrower has delivered a promissory
note of Borrower payable to Lender in the face amount of $20,000,000.00
(the "Note").
C. In addition to the $50,000.00 loan fee specified in Paragraph 2.6 of the
Loan Agreement, upon Borrower's execution of this Amendment, Borrower agrees to
immediately pay Bank an additional loan fee of $33,333.00 (representing a
$50,000.00 loan fee pro rated from the date hereof through March 31, 1998) and
the term "Loan Fee" as defined in Section 2.6 of the Loan Agreement is hereby
amended to include such amount in addition to the original $50,000.00 loan fee
specified in such Section.
D. The notice address provided for Lender in Section 8.4 of the Loan
Agreement is hereby changed to the following:
If to Lender: Xx. Xxxx Xxxxxxxx
Vice President
First Union National Bank
One First Union Center, DC-6
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
With a copy to: Xxxxxx X. Xxxxxxx, Esquire
XxXxxxx Xxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Section 1.2. NOTE.
The Note shall be amended and restated to reflect the new $20,000,000.00
maximum outstanding principal amount of the Loan.
Section 1.3. OTHER LOAN DOCUMENTS AND MODIFICATIONS.
All references in the Loan Documents to the Loan Agreement, the Note and
the other Loan Documents shall refer, respectively, to the Loan Agreement, the
Note and the other Loan Documents, all as amended by this Amendment.
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ARTICLE II
ACKNOWLEDGMENTS AND CONFIRMATIONS
2.1 BORROWER.
A. The Borrower does hereby confirm and reaffirm its representations,
warranties and covenants contained in the Loan Documents as if made as of the
date of this Amendment.
B. The Borrower does hereby acknowledge and assert that as of the date
hereof there are no defenses whatsoever to the obligations represented by the
Note or any of the other Loan Documents, as amended hereby.
C. The Borrower acknowledges that the principal balance of the Note as
of July 31, 1997 was $6,442,605.73.
ARTICLE III
MISCELLANEOUS
3.1 NO OTHER MODIFICATION. Except as expressly modified herein, all of the
terms, agreements, covenants and provisions of the Loan Documents shall remain
in full force and effect, and the margin of each page of the Note shall be
legended as follows:
This Note has been amended and restated by a Promissory Note made by
Borrower payable to the order of the Lender in the principal amount of
$20,000,000.00 dated as of August 1, 1997, to which reference is hereby
made.
3.2 SEVERABILITY. In the event that any one or more of the covenants,
agreements, terms or provisions contained in the Note, Loan Agreement or other
Loan Documents, all as amended hereby, shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms and provisions contained in the such documents, shall be in no
way affected, prejudiced or disturbed thereby.
3.3 SUCCESSORS AND ASSIGNS. This Amendment shall bind and inure to the
benefit of the parties hereto, their heirs, executors, successors and assigns.
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3.4 COUNTERPARTS. This Amendment may be executed in any number of
couterparts, each of which shall constitute an original and all of which taken
together shall constitute one and the same agreement.
3.5 RULES OF CONSTRUCTION. When the identity of one of the parties hereto
or the circumstances make it appropriate, the masculine gender includes the
feminine and/or neuter and the singular number includes the plural. Section
headings are for convenience only and shall not affect the interpretation or
construction of this Amendment.
WITNESS the following signatures and seals.
BORROWER:
APPLE RESIDENTIAL INCOME TRUST, INC.
a Virginia corporation
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: President
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BANK:
FIRST UNION NATIONAL BANK OF VIRGINIA, a
national banking association
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President
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XXXXX XX Xxxxxxxx
XXXX XX Xxxxxxxx
The foregoing instrument was acknowledged before me in the aforesaid
jurisdiction this 4th day of August, 1997, on behalf of Apple Residential
Income Trust, Inc., a Virginia corporation by Xxxxx X. Xxxxxx, its President.
/s/ Xxxxxxxxx X. Xxxxx
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Notary Public
My commission expires: 6/30/99
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STATE OF North Carolina
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COUNTY OF Mecklenburg
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The foregoing instrument was acknowledged before me in the aforesaid
jurisdiction this 4th day of August, 1997, on behalf of First Union National
Bank of Virginia, a national banking association, by Xxxx X. Xxxxxxxx, its Vice
President.
/s/ Xxxx X. Xxxxx
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Notary Public
My commission expires: March 29, 2000
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