BRI OP LIMITED PARTNERSHIP
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
AMENDMENT NO. 4 OF
AMENDED AND RESTATED
1992 CREDIT AGREEMENT
As of July 16, 1996
THE FIRST NATIONAL BANK OF BOSTON,
for Itself and as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
MELLON BANK, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Real Estate Finance
Ladies and Gentlemen:
Each of BRI OP Limited Partnership, a Delaware limited partnership
(the "Borrower") and Berkshire Realty Company Inc. (the "REIT"), and the
undersigned BRI Benchmark Limited Partnership, a Texas limited partnership
and BRI Commons Limited Partnership, a Texas limited partnership, hereby
agrees with each of you as follows:
1. Reference to Credit Agreement and Definitions. Reference is made to
the Amended and Restated 1992 Credit Agreement dated as of November 21,
1995, as amended by Amendment No. 1 thereof dated as of March 1, 1996, by
Amendment No. 2 thereof dated as of March 1, 1996 and by Amendment No. 3
thereof dated as of June 26, 1996 (the "Credit Agreement"), among the
Borrower, Berkshire Realty Company, Inc., certain Guarantors named therein
and each of you. Capitalized terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings given to them in
the Credit Agreement.
2. Request for Amendment. The Borrower has advised you that it has
agreed to provide you with additional collateral for the Obligations and
has agreed to make appropriate revisions to the Credit Agreement.
3. Amendment. On the basis of the representations and warranties of the
Borrower set forth herein, the Credit Agreement is hereby amended as
follows:
3.1. The definition of "Advance Value" in Section 1.1 is amended to
read in its entirety as follows:
Advance Value. At the relevant time of reference
thereto, the sum of (a) for each item of Eligible Real Estate that is
multifamily housing included in the Mortgaged Property the product of
(x) the Appraised Value thereof as most recently determined as
provided under 5.2, 5.3(a)(i), 5.3(a)(ii) or 10.6 (except that
determinations pursuant to 5.3(a)(ii) shall be applicable to the
determination of Advance Value solely for the purpose of 5.4 and
5.5) times (y) 65%, plus (b) for each item of Eligible Real Estate
that is retail commercial space included in the Mortgaged Property
the product of (x) the Appraised Value thereof as most recently
determined as provided under 5.2, 5.3(a)(i), 5.3(a)(ii) or 10.6
(except that determinations pursuant to 5.3(a)(ii) shall be
applicable to the determination of Advance Value solely for the
purpose of 5.4 and 5.5) times (y) 60%, plus (c) the current value
of cash and Eligible Short-term Investments, if any, at the time
pledged to the Agent as Collateral pursuant to a Pledge Agreement,
plus (d) the J.V. Advance Value then in effect (subject to the
limitation provided below in the definition of such term), plus (e)
the current value determined in a manner agreed to by the Majority
Banks of Collateral accepted by the Majority Banks under clause (vi)
of 5.1; provided that if and so long as any Security Document Event
of Default shall have occurred and be continuing or if any event
described in 12.1(m) shall have occurred with respect to any
Security Document, then the Real Estate subject to such Security
Document or in the case of a Pledge Agreement the cash, Eligible
Short-term Investments or other property subject thereto shall not be
included for the purpose of calculating the Advance Value. To the
extent that any property referred to in the preceding sentence is
encumbered by any lien or encumbrance permitted under 8.2(ii)(B),
the amount of the Indebtedness secured by such lien or encumbrance
shall be deducted from the value determined in accordance with the
preceding sentence.
3.2. Amendment of Schedule 2. The Credit Agreement is amended by
amending Schedule 2 thereto to read in its entirety in the form of Schedule
2 attached to this Amendment.
3.3. Amendment of Schedule 6.22. The Credit Agreement is amended by
amending Schedule 6.22 thereto to read in its entirety in the form of
Schedule 6.22 attached to this Amendment.
4. Conditions to Effectiveness of Amendment. Acceptance of the foregoing
amendments by the Agent on behalf of the Banks shall be subject, without
limitation, to the following conditions:
(a) The Agent shall have received all Eligible Real Estate
Qualification Documents with respect to the multifamily
apartment projects known as Benchmark Apartments located in
Irving, Texas ("Benchmark Apartments") and The Providence
Apartments formerly known as Newport Commons located in Dallas,
Texas ("Providence Apartments").
(b) Each of the Banks shall have received the opinion of Xxxxx X.
Xxxxxxxxx, General Counsel to the Borrower, with respect to
this Amendment, the Security Documents for Benchmark Apartments
and Providence Apartments as contemplated by subparagraph (a)
of this Section 4 and other documents required to be delivered
in connection with this Amendment.
(c) Each of the Banks shall have received the opinion of Xxxxxxx &
Xxxxxx LLP with respect to the Security Documents for Benchmark
Apartments and Providence Apartments as contemplated by
subparagraph (a) of this Section 4.
(d) Each of the Banks shall have received a Compliance Certificate
dated as of the date hereof demonstrating compliance with each
of the covenants calculated therein as of June 30, 1996.
(e) All proceedings in connection with the transactions
contemplated by this Amendment shall be reasonably satisfactory
in form and substance to the Majority Banks and the Agent's
Special Counsel, and the Agent shall have received all
information and such counterpart originals or certified copies
of such documents and such other certificates, opinions or
documents as the Majority Banks and the Agent's Special Counsel
may reasonably require.
(f) All action on the part of the REIT, the Borrower and each
Subsidiary and Nominee necessary for the valid execution,
delivery and performance by each of the REIT, the Borrower and
such Subsidiary and Nominee of this Amendment No. 4 and the
other Loan Documents to which it is or is to become a party
shall have been duly and effectively taken, and evidence
thereof satisfactory to the Agent shall have been provided to
each of the Banks. Each of the Banks shall have received from
each of the REIT, the Borrower and each applicable Subsidiary
and Nominee true copies of its by-laws and the resolutions
adopted by its shareholders and board of directors, partners,
beneficiaries and trustees, as the case may be, authorizing the
transactions described herein, each certified by its clerk,
secretary, trustee or authorized partner as of a recent date to
be true and complete.
(g) Each of the Banks shall have received from the REIT, the
Borrower and each applicable Subsidiary and Nominee an
incumbency certificate, dated as of the effective date of this
Amendment No. 4, signed by a duly authorized officer of the
REIT or officer, trustee or partner of each applicable
Subsidiary and Nominee and giving the name and bearing a
specimen signature of each individual who shall be authorized:
(a) to sign, in the name and on behalf of the REIT, the
Borrower and each such Subsidiary and Nominee, each of the Loan
Documents to which the REIT, the Borrower or such Subsidiary or
Nominee is or is to become a party; (b) to make Loan and
Conversion Requests; and (c) to give notices and to take other
action on behalf of the REIT or the Borrower under the Loan
Documents.
5. Modification Fees. Upon the execution of this Amendment No. 4, the
Borrower agrees to pay the Banks a fee, in accordance with their respective
Commitment Percentage, in the amount of three eighths of one percent (3/8%)
of the Advance Value of the Benchmark Apartments and Providence Apartments.
6. Representations and Warranties. In order to induce you to enter into
this Amendment, the Borrower hereby represents and warrants that each of
the representations and warranties contained in 6 of the Credit Agreement
is true and correct on the date hereof, after giving effect to the
amendments effected hereby.
7. Joinder. Pursuant to Section 5A.9 of the Credit Agreement, each of the
undersigned BRI Benchmark Limited Partnership and BRI Commons Limited
Partnership hereby joins the Credit Agreement as a Guarantor for all
purposes, including without limitation agreeing to observe and perform all
of the covenants of the Guarantors set forth in Section 5A of the Credit
Agreement. Each of BRI Benchmark Limited Partnership and BRI Commons
Limited Partnership acknowledges and confirms that all representations with
respect to the Guarantors set forth in the Credit Agreement are true with
respect to such new Guarantor. Each of the Obligors listed below hereby
consents to the joinder of BRI Benchmark Limited Partnership and BRI
Commons Limited Partnership.
8. Advance Value of Eligible Real Estate and Joint Venture Collateral. As
of the date hereof, the Borrower and the Majority Banks hereby confirm that
the Advance Value of the Eligible Real Estate and the J.V. Advance Value of
the Joint Venture Collateral is as follows:
Eligible Real Estate Appraised Value Advance Value
Banks Crossing $12,200,000 x .60 $7,320,000
Crossroads South $11,100,000 x .60 $6,660,000
Greentree Square $ 9,500,000 x .60 $5,700,000
Stoneledge Plantation $11,200,000 x .65 $7,280,000
Benchmark Apartments $ 7,700,000 x .65 $5,005,000
Providence Apartments $ 6,100,000 x .65 $3,965,000
Joint Venture Collateral Appraised Value Advance Value
Brookwood Village $13,800,000 x.40 $5,520,000
Spring Valley
Partnership $20,000,000 x.40 $8,000,000
The Advance Value of the Eligible Real Estate and the J.V. Advance Value of
the Joint Venture Collateral is subject to change from time to time in
accordance with the terms and provisions of the Credit Agreement, as
amended.
9. Miscellaneous. This Amendment may be executed in any number of
counterparts, which together shall constitute one instrument, shall be a
Loan Document, shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts (without giving effect to the
conflict of laws rules of any jurisdiction) and shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns,
including as such successors and assigns all holders of any Obligation.
If the foregoing corresponds with your understanding of our
agreement, please sign this letter and the accompanying copies thereof in
the appropriate space below and return the same to the undersigned. This
letter shall become a binding agreement among each of you and the Borrower
when both the Borrower and you shall have one or more copies hereof
executed by the Borrower, each of you and each of the Guarantors listed
below.
BRI OP LIMITED PARTNERSHIP
By Berkshire Realty Company, Inc.,
its General Partner
By:______________________________
Name:
Title:
BRI BENCHMARK LIMITED PARTNERSHIP
By BRI Southwest Apartments-II, Inc.,
its General Partner
By:______________________________
Name:
Title:
BRI COMMONS LIMITED PARTNERSHIP
By BRI Southwest Apartments-II, Inc.,
its General Partner
By:______________________________
Name:
Title:
The foregoing Amendment is
hereby agreed to.
THE FIRST NATIONAL BANK OF BOSTON,
for Itself and as Agent
By:____________________________
Name:
Title:
MELLON BANK, N.A.
By:____________________________
Name:
Title:
The foregoing Amendment is
hereby consented to.
BERKSHIRE REALTY COMPANY, INC.
By:____________________________
Name:
Title:
BRI TEXAS APARTMENTS LIMITED
PARTNERSHIP
By BRI Texas Apartments-II, Inc., its
General Partner
By:____________________________
Name:
Title:
BRI RIVER OAKS LIMITED PARTNERSHIP
By BRI River Oaks-II, Inc., its General
Partner
By:____________________________
Name:
Title:
BRI SOUTHWEST APARTMENTS LIMITED
PARTNERSHIP
By BRI Southwest Apartments-II, Inc.,
its General Partner
By:____________________________
Name:
Title:
BRI GREENTREE CORPORATION
By:____________________________
Name:
Title:
BRI TEXAS APARTMENTS-II, INC.
By:____________________________
Name:
Title:
BRI RIVER OAKS-II, INC.
By:____________________________
Name:
Title:
BRI SOUTHWEST APARTMENTS-II, INC.
By:____________________________
Name:
Title:
SCHEDULE 2
ELIGIBLE REAL ESTATE
Name of Facility Location Type
Banks Crossing Xxxxxxxxxxxx, XX Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx Xxxxxxxxx, XX Shopping Center
Greentree Square Marlton, NJ Shopping Center
Stoneledge
Plantation Greenville, SC Multifamily Housing
Benchmark Apartments Irving, TX Multifamily Housing
The Providence
Apartments (f/k/a
Newport Commons) Dallas, TX Multifamily Housing
Schedule 6.22
SERVICE CONTRACTS
Greentree Square:
Fire Alarm System
National Guardian Fire Alarm
0000 Xxxx Xxxxx Xxxx
X.X. Xxx 00
Xxxx Xxxxx, XX 00000-0000
Landscaping
Exterior Maintenance (1995 season)
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Parking Lot Sweeping
Advanced Lot Maintenance
Rubbish Removal
Five County Carting
Security
General Security Systems
Snow Removal
Xxxxxxx Bros.
Banks Crossing Shopping Center:
Window Washing/Rubbish Removal
X.X. Xxxxxx
000 Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Sweeping
Sparkling Clean Xxxxxxx Xxx Xxxxxxxxxxx
X.X. Xxx 00
Xxxxxxxxx, XX 00000-0000
Landscaping
Xxxx Landscaping
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Exterminating
Xxxxxx Exterminating
X.X. Xxx 000
Xxxxxxx, XX 00000
Termite Bond
Arrow Exterminating
Fayetteville, GA
HVAC
Diversified Mechanical
0000 Xxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Pressure Washing
J & M Truck Kleen
Plumbing
Xxxxxxx Plumbing
0000 Xxxx Xxxxx Xx.
Xxxxxxx, XX 00000
Locksmith
A H & H Locksmith
000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX
Roof Repair
West Ga. Roofing
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Parking Lot Lights
Special Service Co.
000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Electrical
Special Service Co.
000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Irrigation/Sprinklers
Sweetwater Irrigation
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Asphalt
Xxxxx Asphalt
0000-X Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Asphalt (repairs)
Classic Paint & Construction
Concrete
Xxxxx Xxxxx
Fire Alarm/Sprinkler Systems
Xxxx Fire & Safety
0000 Xxxx Xxxxxxx, 000-00
Xxxxxxx, XX 00000
Signs
Maltese Signs
0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Towing
Xxxx Wrecker, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Glass
The Glass Doctor
Jonesboro, GA
Crossroads South Shopping Center:
Window Washing/Rubbish Removal
X.X. Xxxxxx
000 Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Sweeping
Sparkling Clean Parking Lot Maintenance
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Landscaping
Xxxx Landscaping
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Exterminating
Xxxxxx Exterminating
X.X. Xxx 000
Xxxxxxx, XX 00000
Termite Bond
Arrow Exterminating
Fayetteville, GA
HVAC
Diversified Mechanical
0000 Xxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Rubbish Removal
BFI Waste Systems
X.X. Xxx 00000
Xxxxxxx, XX 00000
Pressure Washing
J & M Truck Kleen
Security
Roc s Protective Service
Roof Repair
West Ga. Roofing
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Plumbing
Xxxxxxx Plumbing
Parking Lot Lights
Special Service Co.
000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Electrical
Special Service Co.
000 Xxxxxxxxx Xxxx
Xxxxxx, XX
Locksmith
A H & H Locksmith
000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX
Irrigation/Sprinklers
Sweetwater Irrigation
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Asphalt
Xxxxx Asphalt
0000-X Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Asphalt (repairs)
Classic Paint & Construction
Concrete
Xxxxx Xxxxx
Fire Alarm/Sprinkler Systems
Xxxx Fire & Safety
0000 Xxxx Xxxxxxx, 000-00
Xxxxxxx, XX 00000
Signs
Maltese Signs
0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Towing
Xxxx Wrecker, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Glass
The Glass Doctor
Jonesboro, GA
Stoneledge Plantation Apartments:
Landscaping
Sun Landscaping of Greenville, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Waste Removal
Waste Management of South Carolina
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000
Note: Property is missing TCI Cable contract.
Benchmark Apartments:
[Not Available]
Newport Commons Apartments:
[Not Available]
