AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this "Agreement") is made and
entered into as of the 10th day of July, 1998, among COLONIAL REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Borrower"), COLONIAL
PROPERTIES TRUST, an Alabama trust ("CPT"), COLONIAL PROPERTIES HOLDING COMPANY,
INC., an Alabama corporation ("CPHC"; CPHC and CPT are collectively, known as
the "Guarantors"), SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking
association, AMSOUTH BANK, a state banking corporation, WACHOVIA BANK, N.A., a
national banking association, FIRST NATIONAL BANK OF COMMERCE, N.A., a national
banking association, XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association and PNC BANK, NATIONAL ASSOCIATION, a national banking association,
successor by merger to PNC Bank, Ohio, National Association (collectively, the
"Banks").
R E C I T A L S:
A. Borrower, Guarantors and Banks have entered into that certain Credit
Agreement dated July 10, 1997 (as so amended, the "Credit Agreement").
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Credit Agreement.
B. Borrower, Guarantors and Banks desire to amend the Credit Agreement
to increase the Aggregate Commitment from $200,000,000 to $250,000,000.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the parties hereto agree as follows:
1. Article 1 of the Credit Agreement is hereby amended by deleting the
definitions of "Agent Fee", "Aggregate Commitment", "Commitment Fee", "Facility
Fee", "Maximum Borrowing Base", "Pool", "Pool GAV", "Revolver Period",
"Stabilized Properties", and "Total Liabilities" , and by inserting in lieu
thereof the following definitions:
"Agent Fee" means $50,000.
"Aggregate Commitment" means $250,000,000 subject to being
decreased as set forth in Section 2.8.
"Commitment Fee" means a commitment fee equal to fifteen (15)
basis points of the Aggregate Commitment. Such commitment fee shall be paid to
Lenders based upon their pro rata share of the Loans.
7
552384.6
"Facility Fee" means a facility fee equal to eight (8) basis
points per annum of each Lender's average unfunded portion of such
Lender's Commitment, payable monthly in arrears. For purposes of
calculating the unfunded portion of a Lender's Commitment for any
month, such Lender's Commitment Percentage of any unexpired Letters of
Credit and any Competitive Bid Loans made by such Lender will be
considered outstanding loans. Such Competitive Bid Loans will not be
considered outstanding loans for purposes of computing the unfunded
portion of any other Lender's Commitment. Attached hereto as Schedule
1.2 is an example of the method of calculating the Facility Fee.
"Maximum Borrowing Base" means the difference between (i) Pool
GAV divided by 1.70, and (ii) Unsecured Liabilities (excluding the
outstanding principal balance of the Loans and the Reimbursement
Obligation), all as more particularly set forth on Line 14 of the
Compliance Certificate
"Pool" shall mean the Credit Parties' unencumbered asset pool
which shall consist of (i) cash from a 1031 exchange, (ii) cash or cash
equivalents held by the Credit Parties for the sole purpose of
liquidating or retiring unsecured Debt, and (iii) all Properties of
Credit Parties which meet all of the following criteria: (a) a
certificate of occupancy has been issued for the Property and remains
in full force and effect, (b) the Property has been at least fifty
percent (50%) leased (based on actual leasable square footage at the
Property) for the most immediately preceding three (3) consecutive
months based on leases wherein the tenants are paying at least the
average monthly lease payments required by the terms of such leases and
such leases are free from default by either the landlord or tenant
thereunder, (c) there is no Lien on the Property, and (d) the Credit
Parties have provided Agent with a Phase I environmental report for the
Property in form and content acceptable to Lenders. Notwithstanding the
foregoing, the amount of Non-Stabilized Properties included in the Pool
shall not exceed twenty-five percent (25%) of Pool GAV. (Any
Non-Stabilized Property included in the Pool will be removed from the
Pool if such Property fails to meet the definition of a "Stabilized
Property" within nine (9) months from the date such Property is first
included in the Pool.)
"Pool GAV" shall mean the sum of (without redundancy) (i) 100%
of Pool EBITDA from Stabilized Properties, capitalized at the
appropriate Capitalization Rate, (ii) for each Non-Stabilized Property
in the Pool, the lesser of (a) 75% of the Gross Book Value of
Non-Stabilized Properties in the Pool, or (b) Pool EBITDA of
Non-Stabilized Properties capitalized at the appropriate Capitalization
Rate, and (iii) cash from a 1031 exchange, and (iv) cash or cash
equivalents held by the credit parties for the sole purpose of
liquidating or retiring unsecured debt. Notwithstanding the foregoing,
any Properties acquired during the applicable reporting period that
qualify for Pool shall be valued at Gross Book Value.
"Revolver Period" means the period of time from the Closing
Date until July 10, 2000, unless extended by Lenders in accordance with
Section 2.8. hereof.
"Stabilized Properties" shall mean any Property which meets
all of the following criteria: (i) a certificate of occupancy has been
issued for the Property and remains in full force and effect, (ii) the
Property has been at least eighty-five percent (85%) occupancy level if
multifamily, retail, or office (based on actual leasable square footage
at the property) for the most immediately preceding three (3)
consecutive months based on leases wherein the tenants are paying at
least the average monthly lease payments required by the terms of such
leases and such leases are free from default by either the landlord or
tenant thereunder, and (iii) there is no Lien on the Property. However,
if a historically Stabilized Property drops below the above listed
occupancy threshold level, such Property may again become classified as
a Stabilized Property after attaining a ninety percent (90%) occupancy
level for a monthly reporting period if such Property attains such
ninety percent (90%) occupancy level within three months of previously
being classified as a Stabilized Property.
"Total Liabilities" shall mean (without redundancy), all
mortgage debt, letters of credit, the deferred purchase price pursuant
to purchase agreements or contracts, to the extent such deferred
purchase price is required to be included in accordance with GAAP,
forward equity commitments (however, such commitments shall not be
considered debt if such commitments are required to be replaced dollar
for dollar with equity), pre-purchase deals (including all assets and
liabilities of such pre-purchase deals), unsecured debt, subordinated
debt, payables, accrued expenses, lease obligations (including ground
leases), guarantees of indebtedness and unfunded obligations, pro rata
share of non-recourse debt in an Unconsolidated Subsidiaries or joint
ventures (where the pro rata share of the asset has been included) and
any loan where any of the Credit Parties are liable for debt as a
general partner, and one hundred percent (100%) of recourse debt in an
Unconsolidated Subsidiaries or joint ventures, and one hundred percent
(100%) of recourse debt incurred by any of the Credit Parties.
2. Article 1 of the Credit Agreement is hereby amended by adding the
following definitions:
"Increase Commitment Fee" means a one-time commitment fee for
the $50,000,000 increase, which is due and payable upon execution of
this Agreement and will be calculated by multiplying $75,000 (15 basis
of the $50,000,000 increase) by a fraction, the numerator of which is
the number of days from execution of this Agreement until July 10,
1998, and the denominator of which is 365. Such increase commitment fee
shall be paid to Lenders based upon their pro rata share of the Loans.
"Up-Front Fee" means a one-time up-front commitment equal to
15 basis points of the $50,000,000 increase. Such up-front fee shall be
paid to Lenders based upon their pro rata share of the Loans.
3. Section 2.4(a) of the Credit Agreement shall be amended to delete
the indented information in its entirety and by inserting in lieu thereof the
following:
Published Debt Rating Margin
--------------------- ------
Less than BBB-/Baa3 or unrated by a Qualified Rating Agency 135
Equal to BBB-/Baa3 95
Equal to or greater than BBB/Baa2 80
4. Section 2.6 of the Credit Agreement shall be amended to delete the
first sentence of the section and insert in lieu thereof the following:
"The Borrower shall pay the Up-Front Fee, the Increase
Commitment Fee, and the Commitment Fee to Agent, for account of
Lenders, on the Closing Date of the Amendment to the Credit Agreement
and shall pay the Commitment Fee to Agent, for account of Lenders, on
each anniversary of the Closing Date."
5. Section 2.8(b) of the Credit Agreement shall be deleted in its
entirety, and the following inserted in its place:
(b) If Lenders elect not to extend the Revolver Period,
(i) by the day that is three (3) months
after the Conversion Date, Borrower shall have
reduced the aggregate outstanding principal balance
of all Loans (inclusive of the Reimbursement
Obligation) to $229,700,000 (and the maximum amount
of Competitive Bid Loans shall be reduced to
$114,850,000),
(ii) by the day that is six (6) months after the Conversion
Date, Borrower shall have reduced the
aggregate outstanding principal balance of all Loans
(inclusive of the Reimbursement Obligation) to
$209,400,000 (and the maximum amount of Competitive
Bid Loans shall be reduced to $104,700,000),
(iii) by the day that is nine (9) months
after the Conversion Date, Borrower shall have
reduced the aggregate outstanding principal balance
of all Loans (inclusive of the Reimbursement
Obligation) to $189,100,000 (and the maximum amount
of Competitive Bid Loans shall be reduced to
$94,550,000),
(iv) by the day that is twelve (12) months after the
Conversion Date, Credit Parties shall have
reduced the aggregate outstanding principal balance
of all Loans (inclusive of the Reimbursement
Obligation) to $168,750,000,000 (and the maximum
amount of Competitive Bid Loans shall be reduced to
$84,375,000),
(v) by the day that is fifteen (15) months
after the Conversion Date, Borrower shall have
reduced the aggregate outstanding principal balance
of all Loans (inclusive of the Reimbursement
Obligation) to $137,500,000 (and the maximum amount
of Competitive Bid Loans shall be reduced to
$68,750,000),
(vi) by the day that is eighteen (18) months
after the Conversion Date, Borrower shall have
reduced the aggregate outstanding principal balance
of all Loans (inclusive of the Reimbursement
Obligation) to $106,250,000 (and the maximum amount
of Competitive Bid Loans shall be reduced to
$53,125,000),
(vii) by the day that is twenty-one (21) months after the
Conversion Date, Borrower shall have
reduced the aggregate outstanding principal balance
of all Loans (inclusive of the Reimbursement
Obligation) to $75,000,000 (and the maximum amount of
Competitive Bid Loans shall be reduced to
$37,500,000), and
(viii) on the Maturity Date, the outstanding principal balance
of all Loans, together with all
accrued and unpaid interest thereon shall be due and
payable.
6. The Letter of Credit Fee as set forth in Section 2A.3 shall be
reduced to from one percent (1%) to three-quarters of a percent (3/4%).
7. The Credit Agreement is amended to add the following Sections to
Article 6:
6.23. Newly formed subsidiaries of CPT as Guarantors.
CPT agrees that any newly formed subsidiaries of CPT shall
execute an agreement guarantying the prompt payment of the
Credit Party Obligations in full when due and shall assume and
agree to all conditions and terms set forth in Article 3
hereof.
6.24. Year 2000 Representations and Warranties
(a) Borrower has (i) begun analyzing the operations
of Borrower and its subsidiaries and affiliates that could be
adversely affected by failure to become Year 2000 compliant
(that is, that computer applications, imbedded microchips and
other systems will be able to perform date-sensitive functions
prior to and after December 31, 1999) and; (ii) developed a
plan for becoming Year 2000 compliant in a timely manner,
implementation of which is on schedule in all material
respects. Borrower reasonably believes that it will become
Year 2000 compliant for its operations and those of its
subsidiaries and affiliates on a timely basis except to the
extent that a failure to do so could not reasonably be
expected to have a material adverse effect upon the financial
condition of Borrower.
(b) Borrower will promptly notify Lenders in the
event Borrower determines that any computer application which
is material to the operations of Borrower, its subsidiaries or
any of its material vendors or suppliers will not be fully
Year 2000 compliant on a timely basis, except to the extent
that such failure could not reasonably be expected to have a
material adverse effect upon the financial condition of
Borrower.
8. Section 7.8 shall be amended to delete subsection (g) and
insert in lieu thereof the following:
(g) the ratio of Secured Liabilities to GAV to
exceed thirty-five (35%).
9. Section 7.8 shall be amended to add the following:
(h) the ratio of total preferred stock of CPT to Total
Market Capitalization to exceed fifteen percent
(15%).
10. The Credit Agreement is hereby further amended by deleting in its
entirety Schedule 1.1 and inserting in lieu thereof Schedule 1.1 attached
hereto.
11. The Credit Agreement is hereby further amended by deleting in its
entirety Exhibit E and inserting in lieu thereof Exhibit E attached hereto.
12. Borrowers represent and warrant that all representations and
warranties set forth in Article 5 of the Credit Agreement, as amended hereby,
are true and correct on the date hereof, and that, to the best of their
knowledge, no Default or Event of Default has occurred or exists.
13. No right of any Bank with respect to the Loan Documents is or will
be in any manner released, destroyed, diminished, or otherwise adversely
affected by this Agreement.
14. All references in the Loan Documents to the Credit Agreement shall
be deemed to refer, from and after the date hereof, to the Credit Agreement as
amended hereby, and as the same may hereafter be modified or amended.
15. Except as hereby expressly modified and amended, the Credit
Agreement shall remain in full force and effect, and the Credit Agreement, as
amended, is hereby ratified and affirmed in all respects. Borrowers confirm
that, to the best of their knowledge, they have no defenses or setoffs with
respect to their obligations pursuant to the Credit Agreement, as amended
hereby.
16. This Agreement shall inure to the benefit of and be binding upon
the parties hereto, and their respective successors and assigns.
17. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which, when taken together,
shall constitute one and the same instrument.
18. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWERS HEREBY WAIVE
ANY RIGHT ANY OF THEM MAY HAVE TO TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM,
SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING OUT OF OR IN ANY WAY
PERTAINING OR RELATING TO THIS AGREEMENT OR THE LOAN DOCUMENTS, OR (II) IN ANY
WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF
THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE LOAN DOCUMENTS OR IN
CONNECTION WITH THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED THEREBY OR THE
EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL OF THE
FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE. BORROWERS AGREE THAT BANKS MAY FILE A COPY OF
THIS WAIVER WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED AGREEMENT OF BORROWERS IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY
JURY, AND THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR
CONTROVERSY WHATSOEVER BETWEEN BORROWERS AND BANKS SHALL INSTEAD BE TRIED IN A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
properly executed and delivered to be effective as of the day and year first
above written.
BORROWER:
COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
BY: COLONIAL PROPERTIES HOLDING COMPANY, INC., an Alabama
corporation,
Its General partner
BY: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its President and Chief Executive Officer
GUARANTORS:
COLONIAL PROPERTIES TRUST,
an Alabama trust
BY: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its President and Chief Executive Officer
COLONIAL PROPERTIES HOLDING COMPANY, INC., an Alabama corporation
BY: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its President and Chief Executive Officer
(Signatures Continue)
Signature Page to Colonial Realty Limited
Partnership Credit Agreement
LENDERS:
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
a national banking association
By:/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Group Vice President
AMSOUTH BANK,
a state banking corporation
By:
Its
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association
By:
Its
WACHOVIA BANK, N.A., a national banking association
By:
Xxxxxx X. Xxxxxxxxxxx
Its Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION,
a national banking association,
successor by merger to PNC Bank, Ohio, National Association
By:
Its
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
FIRST NATIONAL BANK OF COMMERCE, N.A.,
a national banking association
By:/s/ Xxxx X. Xxxx
Its Senior Vice President
AGENT:
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Group Vice President
SCHEDULE 1.1
Lender Commitment Commitment Percentage
SouthTrust Bank, National Association $50,000,000 20%
AmSouth Bank 50,000,000 20%
Xxxxx Fargo Bank, National Association 50,000,000 20%
Wachovia Bank, N.A. 50,000,000 20%
PNC Bank, National Association 25,000,000 10%
First National Bank of Commerce, N.A. 25,000,000 10%
---------- --------
TOTALS $250,000,000 100%
EXHIBIT E
COMPLIANCE CERTIFICATE
SouthTrust Bank, National Association,
as Agent for the Lenders
RE: Credit Agreement dated July 10, 1997 among Colonial Realty Limited
Partnership (the "Borrower") Colonial Properties Trust and Colonial Properties
Holding Company, Inc. ("Guarantors"), the Lenders, and SouthTrust Bank, National
Association, as Agent for the Lenders (as the same may hereafter be modified or
amended the "Credit Agreement")
Ladies and Gentlemen:
This Compliance Certificate is submitted pursuant to Section 6.14. of
the above-referenced Credit Agreement. The undersigned treasurer or chief
financial officer of the Borrower hereby certifies as follows:
1. No Default or Event of Default has occurred or exists
except .
-----------------------------------------------------------------
2. As of _________________________ (the last day of each fiscal
quarter for quarterly compliance certificates, or the most
recent practicable date for all other compliance
certificates):
(a) EBITDA was
------------------------------------------
(b) Pool EBITDA was
-------------------------------------
(c) GAV was
---------------------------------------------
(d) Pool GAV was
----------------------------------------
(e) Interest Expense was
--------------------------------
(f) Fixed Charges were
----------------------------------
(g) Unsecured Interest Expense was
----------------------
(h) Unsecured Liabilities were
--------------------------
(i) Debt was
--------------------------------------------
GE>
(j) Total Market Capitalization was
---------------------
(k) Total Liabilities were
------------------------------
(l) Secured Liabilities were
----------------------------
(m) CPT's distributions to shareholders were
------------
(n) CRLP's distributions to partners were
---------------
(o) Funds From Operations were
--------------------------
3. As of the date specified in 2. above:
(a) The ratio of EBITDA to Interest Expense was:
Required: Not less than 2.0 to 1.0
Actual: to 1.0
(b) The ratio of EBITDA to Fixed Charges was:
Required: Not less than 1.75 to 1.0
Actual: to 1.0
(c) The ratio of Pool EBITDA to Unsecured Interest Expense
was:
Required: Not less than 2.0 to 1.0
Actual: to 1.0
(d) The ratio of Pool GAV to Unsecured Liabilities was:
Required: Not less than 1.70 to 1.0
Actual: to 1.0
(e) The ratio of Debt to Total Market Capitalization was:
Required: Not to exceed 55%
Actual: %
(f) The ratio of Total Liabilities to GAV was:
Required: Not to exceed 55%
Actual: %
(g) The ratio of Secured Liabilities to GAV was:
Required: Not to exceed 35%.
Actual: %
(h) The ratio of total preferred stock of CPT to Total Market
Capitalization was:
Required: Not to exceed 15%
Actual: %
4. As of the date specified in 2. above:
(a) CPT's distributions to shareholders were:
Required: Not to exceed 95% of Funds From Operations
Actual: % of Funds From Operations.
(b) CRLP's distributions to partners were:
Required: Not to exceed 95% of Funds From Operations.
Actual: % of Funds From Operations.
5. The following items are attached for each Pool Property:
(a) A list of all Pool Properties.
(b) Most recent fiscal year end operating statement (to the
extent not previously submitted).
(c) Most recent fiscal quarter operating statement (to the
extent not previously submitted).
(d) Certified rent roll (certifying rents in full payment).
(e) Calculation of Property EBITDA and Property GAV.
(f) Occupancy for the most recent three (3) consecutive
months (see Notes 1 and 2 below).
Note 1: Occupancy must be based on actual leasable
square footage at the property and leases wherein the tenants
are paying at least the average monthly lease payments
required by the terms of such leases and such leases must be
free from default by either the landlord or tenant thereunder.
Note 2: If occupancy is less than eighty-five percent
(85%) for any month, please state the number of consecutive
months that occupancy has been below eighty-five percent
(85%):
---------------------.
6. The following items are also attached:
(a) Calculation of Pool EBITDA and Pool GAV.
(b) Calculation of EBITDA and GAV.
(c) List of Total Liabilities (Please list all Unsecured
Liabilities together and all Secured Liabilities
together by Property).
7. For each multifamily phased Property, please complete and attach the
following information:
(a) How many units included in all phases?
(b) How many units included in the Pool?
(c) Are the operating statements submitted pursuant
hereto for the Pool Property only? . If not, what
percentage is attributable to Pool Property. .
(d) Is the rent roll submitted hereto for the Pool
Property only? . If not, please specify on the rent
roll the units included in the Pool Property.
8. The current information with respect to the rating of CRLP's senior unsecured
Debt is as follows:
Rating Agency Rating Date of Rating
a.
b.
c.
d.
9. All representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct
as though given on the date hereof except
----------------------------.
10. Credit Parties represent and warrant that each Property
described in the list provided pursuant to Section 5(a),
satisfies the conditions for inclusion in the Pool.
11. All information provided herein or attached hereto is true and correct. 1.
12. Capitalized terms not defined herein shall have the meanings given to such
terms in the Credit Agreement.
13. The following Letters of Credit have been issued and are outstanding under
the Revolving Loan:
(a) Date of Letter (b) Undrawn Amount (c) Unreimbursed Draws
(d) Expiration Date
TOTAL
14. The Maximum Borrowing Base is as follows:
(1) Pool GAV / 1.70
(2) Unsecured Liabilities (excluding the outstanding
principal balance of the Swing Loan, Revolving Loan,
and Reimbursement Obligation)
(3) Difference between Line 14(a) and 14(b)
---------
(4) Lesser of $250,000,000 or Line 14(c)
---------
(5) Amount of Reimbursement Obligation
(Total of Line 13(b) and 13(c))
(6) Amount of outstanding principal balance
of Competitive Bid Loans
(7) Amount of outstanding principal balance
of Swing Loan
(8) Maximum Borrowing Base
(Line 14(d) less Line 14(e), Line 14(f),
and Line 14 (g)
Dated this ____ day of __________________, 199__.
COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
By: Colonial Properties Holding Company, Inc., an Alabama
corporation
Its General Partner
By:/s/Xxxxxx X. Xxxxxx Xx.
Its:Chief Financial Officer
