FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") is dated
as of the 14th day of June, 1999 among GABLES REALTY LIMITED PARTNERSHIP (the
"Borrower"), WACHOVIA BANK, N.A., as Administrative Agent (the "Administrative
Agent"), FIRST UNION NATIONAL BANK, as Syndication Agent, CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as Documentation Agent and WACHOVIA BANK, N.A., FIRST
UNION NATIONAL BANK, CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, COMMERZBANK AG,
ATLANTA AGENCY, PNC BANK, NATIONAL ASSOCIATION, AMSOUTH BANK OF ALABAMA and
GUARANTY FEDERAL BANK, F.S.B. (collectively, the "Banks");
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and the Banks executed and
delivered that certain Amended and Restated Credit Agreement, dated as of May
13, 1998 (the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent and the
Banks 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 Administrative Agent and
the Banks 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.
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2. AMENDMENT TO SECTION 1.01.
(a) Section 1.01 of the Credit Agreement hereby is amended by adding the
following definitions in the appropriate alphabetical sequence:
"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.
"Consolidated Fixed Charges" for any period means the sum of the following
of the Borrower 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.
"Joint Venture" means a Person (i) whose primary business is the
development or ownership of Multi-Family Properties, (ii) in which the Borrower
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 Borrower in its consolidated financial statements as of such date in
accordance with GAAP.
"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 Borrower or by any of its Consolidated Subsidiaries.
(b) Section 1.01 of the Credit Agreement hereby is amended by deleting the
definitions of "Borrowing Base", "Consolidated Income Available for Debt
Service", "Construction Period Termination Date", "Debt", "Economically
Occupied", "Termination Date", "Total Assets Value" and "Total Debt", and
substituting the following therefor:
"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
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(ii) an amount equal to the product of: (x) 00.00000; 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.
"Consolidated Income Available for Debt Service" shall mean, calculated on
a consolidated basis, the sum of the Borrower'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).
"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.
"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
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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.
"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.
"Termination Date" means May 13, 2002, 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
pursuant to Section 2.08 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 Borrower terminates the Commitments entirely pursuant to Section
2.07.
"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
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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 Borrower, 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 Borrower and the Guarantors, on a consolidated
basis, plus (ii) the aggregate amount of Debt Guaranteed by the Borrower,
the Guarantors and the other Subsidiaries (other than Guarantees which have
been fully cash collateralized), plus (iii) the Borrower'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 Borrower or the Guarantors is the
account party, determined at the end of the Borrower'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
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institutions for payment of real estate property taxes reflected on the
Borrower's balance sheet and reflected as restricted cash in accordance
with GAAP.
3. AMENDMENT TO SECTION 2.04(b). Section 2.04(b) of the Credit Agreement
hereby is deleted, and the following is substituted therefor:
(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, 2002, unless the Termination
Date is otherwise extended by the Banks, in their sole and absolute
discretion. Upon the written request of the Borrower, 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 each of May 13, 2000 and May 13, 2001
(each, an "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. Notwithstanding any request by the Borrower as described in the
foregoing sentence, in the event that a Bank chooses, in its sole and
absolute discretion, not to extend the Termination Date for such an
additional one-year period, notice shall be given by such Bank to the
Borrower and the Agent not more than 60 days but not less than 45 days
prior to the relevant Extension Date; provided, that the Termination Date
shall not be extended with respect to any of the Banks unless the Required
Banks are willing to extend the Termination Date and either (x) the
remaining Banks shall elect to 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 Borrower 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 (y) the Borrower shall find
another bank, acceptable to the Agent, willing to accept an assignment from
such terminating Bank (in the form of an Assignment and Acceptance) or (z)
the Borrower 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
Borrower shall pay to the 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.
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4. AMENDMENT TO SECTION 2.05(a). Section 2.05(a) of the Credit Agreement
hereby is amended by deleting the table contained therein and substituting
therefor the following table:
Xxxxx X Xxxxx XX Xxxxx XXX Xxxxx XX
------- -------- --------- --------
Debt Rating Greater than or = BBB+ BBB BBB- Less than BBB-
or or or or
Greater than or = Xxx0 Xxx0 Xxx0 Less than Baa3
Applicable
Margin 0.825 0.95 1.10 1.30
5. AMENDMENT TO SECTION 5.01(c). Section 5.01(c) of the Credit Agreement
hereby is deleted and the following is substituted therefor:
(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 Borrower 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 Borrower is taking or proposes to take with respect thereto;
6. AMENDMENT TO SECTION 5.11. Section 5.11 of the Credit Agreement hereby
is amended by deleting clause (c) thereof, and the following is substituted
therefor:
(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 Borrower 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 Borrower 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
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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.
7. NEW SECTION 5.28. A new Section 5.28 hereby is added to the Credit
Agreement, as follows:
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.
8. AMENDMENT TO SECTION 5.03. Section 5.03 of the Credit Agreement hereb
is amended and the following is substituted therefor:
SECTION 5.03. Total Secured Debt. The amount of Total Secured
Debt will not at any time exceed 40% of Adjusted Total Assets Value.
9. AMENDMENT TO SECTION 6.01(b). Section 6.01(b) of the Credit Agreement
hereby is amended and the following is substituted therefor:
(b) the Borrower 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
10. AMENDMENT TO COMPLIANCE CERTIFICATE (Exhibit F).
(a) Paragraph 1 of the Compliance Certificate hereby is deleted
and the following is substituted therefor:
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)
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(b) Paragraph 2 of the Compliance Certificate hereby is deleted
and the following is substituted therefor:
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 Borrower, 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) Borrower'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 Borrower 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 Borrower'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 $
-------------
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Actual Ratio of (g) to (h) to 1.00
---------
Maximum Ratio Less than 0.55 to 1.00 (1)
(c) a new Paragraph 10 hereby is added to the Compliance Certificate,
as follows:
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
(d) Schedules 2, 3, 4 and 7 to the Compliance Certificate hereby are
deleted and Schedules 2, 3, 4 and 7 attached hereto are
substituted therefor.
11. AMENDMENT TO BORROWING BASE CERTIFICATE (Exhibit H) . The Borrowing
Base Certificate hereby is deleted and Exhibit H attached hereto hereby is
substituted therefor.
12. 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 (except to the extent such representations and warranties
expressly relate to an earlier date) and with specific reference to this First
Amendment and all other loan documents executed and/or delivered in connection
herewith.
13. 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.
14. 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.
-----------------------
(1) 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.
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15. 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 (which may be by telecopier pursuant to
Section 20 below) shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
16. 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.
17. No Default. To induce the Administrative Agent and the Banks 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 Banks under
the Credit Agreement.
18. Further Assurances. The Borrower agrees to take such further actions as
the Administrative Agent shall reasonably request in connection herewith to
evidence the amendments herein contained to the Borrower.
19. Governing Law. This First Amendment shall be governed by and construed
and interpreted in accordance with, the laws of the State of Georgia.
20. Conditions Precedent. This First Amendment shall become effective only
upon (i) execution hereof by the Administrative Agent; (ii) execution and return
to the Administrative Agent at the telecopier number set forth below of a copy
hereof by the Borrower and the Banks; (iii) execution and return to the
Administrative Agent at the telecopier number set forth below of a copy of the
Consent and Reaffirmation of Initial Guarantors at the end hereof and (iv)
payment to the Administrative Agent, for the ratable account of the Banks, of an
amendment and extension fee in an amount equal to 0.15% of the aggregate
Commitments in effect on the date hereof. Executed copies hereof shall be sent
by facsimile to counsel for the Administrative Agent, Xxxxx, Day, Xxxxxx &
Xxxxx, Attention: Xxxxxxxxxxx x. Xxxxxx, at telecopier number 000-000-0000,
confirmation number 000-000-0000.
[SIGNATURES CONTAINED ON NEXT PAGE]
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IN WITNESS WHEREOF, the Borrower, the Administrative Agent and each of the
Banks has 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
(SEAL)
By: Gables GP, Inc., its sole
general partner
By: /s/Xxxxxx X. Xxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
WACHOVIA BANK, N.A., FIRST UNION NATIONAL BANK.,
as Administrative Agent and as a Bank as Syndication Agent and as a Bank
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxxx
----------------------------- -----------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx Xxxxxxxx
Title: Vice President Title: Vice President
CHASE BANK OF TEXAS, COMMERZBANK AG, ATLANTA AGENCY,
NATIONAL ASSOCIATION, as a Bank
as Documentation Agent and as a Bank
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- -----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
By: /s/ E. Xxxxxx Xxxxx
-----------------------------
Name: E. Xxxxxx Xxxxx
Title: Assistant Vice President
PNC BANK, NATIONAL AMSOUTH BANK OF ALABAMA,
ASSOCIATION, as a Bank as a Bank
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxx
----------------------------- -----------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxxx
Title: Vice President Title: Vice President
GUARANTY FEDERAL BANK, F.S.B.
as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
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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 (2) $
--------------
(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 (3) 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 Borrower (4) $
--------------
-----------------------
(2) If a Multi-Family Property satisfies the criteria set forth in both
(a) and (b), in shall be included only in the calculations in (b).
(3) Including indirect costs internally allocated in accordance with GAAP.
(4) 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.
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(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 $
--------------
(n) Joint Venture Share of the aggregate amount of cash
expenditures (5) 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) $
--------------
-----------------------
(5) Including indirect costs internally allocated in accordance with GAAP.
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SCHEDULE - 3
------------
CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE
(for Fiscal Quarter just ended and immediately preceding 3 Fiscal Quarters)
quarter
---- ----
net income (6) $
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 (6) $
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 (6) $
plus minority interests $
less extraordinary gains ($ )
plus extraordinary losses $
-----------------------
(6) Excluding equity in and income and losses of joint ventures
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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 (6) $
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) $
=============
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SCHEDULE - 4
------------
INCOME AVAILABLE FOR DEBT SERVICE
(for the current calendar year)
First Quarter
net income (7) $
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 (7) $
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 (7) $
-----------------------
(7) Excluding equity in and income and losses of joint ventures
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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 (7) $
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) $
===============
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SCHEDULE - 7
------------
CONSOLIDATED FIXED CHARGES
___ quarter ___
interest expense $
scheduled principal payments (8) $
preferred dividends paid or accrued $
Total $
___ quarter ___
interest expense $
scheduled principal payments (8) $
preferred dividends paid or accrued $
Total $
___ quarter ___
interest expense $
scheduled principal payments (8) $
preferred dividends paid or accrued $
Total $
___ quarter ___
interest expense $
scheduled principal payments (8) $
preferred dividends paid or accrued $
Total $
-----------------------
(8) Excluding balloon payments payable at maturity.
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EXHIBIT H
BORROWING BASE CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement dated as of
May 13, 1998 (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 Chase Bank of Texas, National
Association, 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 (9) $______________
(b) product of 7.22222 times (i)(a) $______________
-----------------------
(9) If an Eligible Property satisfies the criteria set forth in both clause (i)
and in clause (ii), it shall be included in the calculations only in clause (i).
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(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) $
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(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]
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CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing First
Amendment to Credit Agreement (the "First Amendment"), (ii) consents to the
execution and delivery of the First Amendment by the parties thereto and (iii)
reaffirms all of its obligations and covenants under the Guaranty Agreement
dated as of May 13, 1998 executed by it, and agrees that none of such
obligations and covenants shall be affected by the execution and delivery of the
First Amendment. 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. (SEAL)
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Title: Senior Vice President
GABLES RESIDENTIAL TRUST (SEAL)
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Title: Senior Vice President
GABLES-TENNESSEE PROPERTIES (SEAL)
By: Gables Realty Limited Partnership,
a general partner
By: Gables GP, Inc.,
its general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Title: Senior Vice President
AT: 1029909v7
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