BRI OP LIMITED PARTNERSHIP
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
AMENDMENT NO. 1 OF
REVOLVING CREDIT AGREEMENT
As of April 15, 1998
BANKBOSTON, N.A.,
for Itself and as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
Ladies and Gentlemen:
Each of BRI OP Limited Partnership, a Delaware limited partnership (the
"Borrower"), and Berkshire Realty Company Inc., a Delaware corporation (the
"REIT"), and the undersigned Guarantors hereby agrees with you as follows:
1. Reference to Credit Agreement and Definitions. Reference is made to the
Revolving Credit Agreement dated as of January 30, 1998 (the "Credit
Agreement"), among the Borrower, Berkshire Realty Company, Inc., certain
Guarantors named therein and you. Capitalized terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings
given to them in the Credit Agreement.
2. Reason for Amendment. The parties have agreed to correct or clarify certain
provisions of the Credit Agreement by amending the Credit Agreement accordingly.
3. Amendments. On the basis of the representations and warranties of the REIT
and the Borrower set forth herein, the Credit Agreement is hereby amended,
effective as of the date hereof, as follows:
3.1. Section 1.1 of the Credit Agreement is amended by amending paragraph
(b) of the definition of "Eligible Real Estate" to read in its entirety as
follows:
(b) which is owned in fee by the Borrower or any Wholly Owned
Subsidiary which is a Guarantor or title to which is held for the benefit
of the Borrower or any Wholly Owned Subsidiary which is a Guarantor in the
name of a Nominee which is a Wholly Owned Subsidiary;
3.2. Section 1.1 of the Credit Agreement is further amended by amending the
definition of "Interest Expense" to read in its entirety as follows:
Interest Expense. With respect to any Person for any fiscal period,
the interest expense of such Person for such fiscal period determined in
accordance with generally accepted accounting principles plus, without
duplication, all capitalized interest of such Person for such fiscal
period.
3.3. Section 1.1 of the Credit Agreement is further amended by amending the
definition of "Majority Banks" to read in its entirety as follows:
Majority Banks. Banks holding 66%% of the Commitments; provided,
however, that in the event the obligations of the Banks to make Loans or
issue Letters of Credit hereunder shall have been terminated, Banks holding
66%% of the sum of the outstanding principal amount of the Loans plus the
participations under ss. 2.11 in the Letter of Credit Exposure; and
provided, further, that the Commitment or, as the case may be, Loans and
Letter of Credit Exposure participations of any Delinquent Bank (as defined
in ss. 14.5(c)) shall not be included in the calculation of Majority Banks.
3.4. Section 1.1 of the Credit Agreement is further amended by amending the
definition of "Operating Cash Flow" to read in its entirety as follows:
Operating Cash Flow. With respect to any Person for any fiscal period,
an amount equal to EBITDA for such fiscal period minus an allowance for
capital expenditure requirements computed at the annual rate of $200 per
unit for multifamily housing projects and minus such allowance for capital
expenditure requirements on properties other than multifamily housing
projects in such amounts as may be agreed between the Borrower and the
Majority Banks.
3.5. Section 8.11 of the Credit Agreement is amended to read in its
entirety as follows:
ss. 8.11. Certain Guarantees. None of the Non-recourse Indebtedness of
the Borrower or any Subsidiary or Nominee shall be guaranteed by the REIT
or the Borrower or any Subsidiary or Nominee; provided, however, that two
or more issues of Non-recourse Indebtedness of Special Purpose Subsidiaries
may be cross-guaranteed and cross-collateralized if, and only if, each of
such guarantees constitutes Non-recourse Indebtedness and the loan-to-value
ratio of each item of Non-recourse Indebtedness so cross-guaranteed shall
not exceed 75% as of the date of its incurrence; and provided, that the
Borrower or the REIT may guarantee the Indebtedness referred to in ss.
8.1(j). In addition, none of the REIT, the Borrower, any Subsidiary or any
Nominee shall guarantee any Indebtedness of any Person in which the
Borrower is not a direct or indirect investor as permitted under ss. 8.3.
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3.6. Section 9.6 is amended by deleting the bracketed reference to ss.
8.3(1).
3.7. Section 14.9 of the Credit Agreement is amended to read in its
entirety as follows:
ss. 14.9. Resignation and Removal. The Agent may resign at any time by
giving 60 days' prior written notice thereof to the Banks, the REIT and the
Borrower. In addition, in the event that none of the Commitments shall be
held by the Agent or a corporate affiliate of the Agent or that the Agent
shall have engaged in willful misconduct in the performance of its duties
under the Loan Documents, the Agent may be removed by 30 days' written
notice executed on behalf of the Majority Banks. Upon any such resignation
or removal, the Majority Banks shall have the right to appoint as a
successor Agent any bank whose senior debt obligations are rated not less
than "A" or its equivalent by Xxxxx'x or not less than "A" or its
equivalent by S&P and which has total assets in excess of $10 billion.
Unless a Default or Event of Default shall have occurred and be continuing,
such successor Agent shall be reasonably acceptable to the REIT and the
Borrower. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
or removed Agent, and the retiring or removed Agent shall be discharged
from its duties and obligations hereunder. After any Agent's resignation or
removal, the provisions of this Agreement and the other Loan Documents
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 Agent.
3.8. Section 18.1 is amended by amending clause (a) thereof to read in its
entirety as follows:
(a) the Agent shall have given its prior written consent to such
assignment, which shall not unreasonably be withheld, and (but only so long
as no Default or Event of Default shall have occurred and be continuing)
the Borrower also shall have given its prior written consent to such
assignment, which shall not unreasonably be withheld.
4. Conditions to Effectiveness of Amendment. Acceptance of the foregoing
amendments by the Banks shall be subject, without limitation, to the following
conditions:
(a) No Default or Event of Default under the Credit Agreement shall have
occurred and be continuing (other than a Default or Event of Default
which shall have been waived in writing by the Banks).
(b) All proceedings in connection with the transactions contemplated by
this Amendment shall be reasonably satisfactory in form and substance
to the Majority Banks and the Agent's Special Counsel, and the Agent
shall have received all information and such counterpart originals or
certified copies of
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such documents and such other certificates, opinions or documents as
the Majority Banks and the Agent's Special Counsel may reasonably
require.
5. Representations and Warranties. In order to induce you to enter into this
Amendment, the Borrower hereby represents and warrants that each of the
representations and warranties contained in Section 6 of the Credit Agreement is
true and correct on the date hereof, after giving effect to the amendments
effected hereby.
6. Miscellaneous. This Amendment may be executed in any number of counterparts,
which together shall constitute one instrument, shall be a Loan Document, shall
be governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts (without giving effect to the conflict of laws rules of any
jurisdiction) and shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns, including as such successors and
assigns all holders of any Obligation.
If the foregoing corresponds with your understanding of our agreement,
please sign this letter and the accompanying copies thereof in the appropriate
space below and return the same to the undersigned. This letter shall become a
binding agreement among each of you and the Borrower when both the Borrower and
you shall have one or more copies hereof executed by the Borrower, you and each
of the Guarantors listed below.
BRI OP LIMITED PARTNERSHIP
By Berkshire Apartments, Inc.,
its General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President/Chief Financial Officer
The foregoing Amendment is
hereby agreed to.
BANKBOSTON, N.A.,
for Itself and as Agent
By:______________________
Authorized Officer
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such documents and such other certificates, opinions or documents as
the Majority Banks and the Agent's Special Counsel may reasonably
require.
5. Representations and Warranties. In order to induce you to enter into this
Amendment, the Borrower hereby represents and warrants that each of the
representations and warranties contained in Section 6 of the Credit Agreement is
true and correct on the date hereof, after giving effect to the amendments
effected hereby.
6. Miscellaneous. This Amendment may be executed in any number of counterparts,
which together shall constitute one instrument, shall be a Loan Document, shall
be governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts (without giving effect to the conflict of laws rules of any
jurisdiction) and shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns, including as such successors and
assigns all holders of any Obligation.
If the foregoing corresponds with your understanding of our agreement,
please sign this letter and the accompanying copies thereof in the appropriate
space below and return the same to the undersigned. This letter shall become a
binding agreement among each of you and the Borrower when both the Borrower and
you shall have one or more copies hereof executed by the Borrower, you and each
of the Guarantors listed below.
BRI OP LIMITED PARTNERSHIP
By Berkshire Apartments, Inc.,
its General Partner
By:
------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President/Chief Financial Officer
The foregoing Amendment is
hereby agreed to.
BANKBOSTON, N.A.,
for Itself and as Agent
By:/s/ [ILLEGIBLE]
-----------------------------------
Authorized Officer Vice President
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BERKSHIRE REALTY COMPANY, INC.
BERKSHIRE APARTMENTS, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President/Chief Financial
Officer
BRI TEXAS APARTMENTS LIMITED
PARTNERSHIP
By BRI Texas Apartments-II, Inc., its
General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Vice President and Treasuer
BRI BENCHMARK LIMITED PARTNERSHIP
BRI COMMONS LIMITED PARTNERSHIP
By Berkshire Apartments, Inc., the General
Partner of each
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President/Chief Financial
Officer
BRI HUNTERS XXXX LIMITED PARTNERSHIP
By BRI Hunters Xxxx-II, Inc.,
its General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President and Treasurer
Officer
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BRI RIDGEVIEW CHASE LIMITED
PARTNERSHIP
By BRI Emerald, Inc., its General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President and Treasurer
BRI DIAMOND RIDGE ASSOCIATES
LIMITED PARTNERSHIP
By BRI Baltimore - 31, L.L.C.,
its General Partner
By Berkshire Apartments, Inc.,
its Manager
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President and Chief
Financial Officer
BRI FOXGLOVE ASSOCIATES, L.L.C.
By Berkshire Apartments, Inc.
its Manager
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President/Chief Financial
Officer
BRI TEXAS APARTMENTS-II, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Vice President and Treasurer
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BRI HUNTERS XXXX - II, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Vice President and Treasurer
BRI EMERALD, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Vice President and Treasurer
BRI BALTIMORE - 31, L.L.C.
By: Berkshire Apartments, Inc., its Manager
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxxxx
Senior Vice President/Chief Financial
Officer
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