Exhibit 10.31
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this "Agreement") is made and
entered into as of the 16th day of December 2003, among COLONIAL REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Borrower"), COLONIAL
PROPERTIES TRUST, an Alabama Trust (the "Guarantor"), SOUTHTRUST BANK, an
Alabama banking corporation, AMSOUTH BANK, an Alabama banking corporation,
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, a national banking association, PNC BANK, NATIONAL
ASSOCIATION, a national banking association, COMERICA BANK, a national banking
association, U.S. BANK NATIONAL ASSOCIATION, a national banking association,
COMPASS BANK, an Alabama banking corporation, and BRANCH BANKING & TRUST
COMPANY, a North Carolina banking corporation (collectively, the "Lenders").
R E C I T A L S:
A. Borrower, Guarantor and Lenders have entered into that certain Credit
Agreement dated November 22, 2002 (including all amendments thereto, the "Credit
Agreement"). Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Credit Agreement. The obligations of
Borrower pursuant to the Credit Agreement are guaranteed by Guarantor pursuant
to, and as more particularly provided in, Article 7 of the Credit Agreement
(such provisions of the Credit Agreement being herein referred to as the
"Guaranty").
B. Borrower and Guarantor have requested certain amendments to the Credit
Agreement which have been approved by Lenders as hereinafter provided; and
therefore, Borrower, Guarantor and Lenders desire to enter into this Agreement
for the purpose of amending the terms of the Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the parties hereto agree as follows:
1. The Recitals set forth hereinabove are true and correct.
2. The Credit Agreement is hereby amended by deleting the definition of
"Capitalization Rate" as the same appears in Article 1 thereof in its entirety,
and by inserting in lieu thereof the following:
"Capitalization Rate" means 7.75% for multifamily Properties,
8.50% for strip shopping center Properties, 8.50% for all enclosed
shopping mall Properties, 9.00% for office complex Properties, and
7.25% for Tax Exempt Financed Properties. On each anniversary of the
Closing Date, the Agent shall make recommendations to the Lenders based
upon then current market conditions whether any or all of the foregoing
capitalization rates should be adjusted or maintained. Upon the
Required Lenders affirmative vote of any of such recommendations the
capitalization rates shall be adjusted or maintained as determined by
the Required Lenders. Such recommendations shall be based upon Agent's
good faith effort in determining the current market capitalization
rates for such Properties and upon any Lender's written request the
Agent shall provide the data used to make such recommendations to such
Lender. Agent shall give Borrower prompt written notice of any such
adjustments.
3. The Credit Agreement is hereby amended to add the following definitions to
Article 1:
"Construction Budgets" means, in aggregate, the fully budgeted
cost for land, construction, development and redevelopment of
Construction in Process, such budget to include an adequate reserve.
"Tax Exempted Financed Properties" means any Properties
encumbered with tax exempt debt.
4. The Credit Agreement is hereby amended by deleting clause (iii) (such clause
pertaining to Corporate Recurring Income) from the definition of "GAV" as the
same appears in Article 1 thereof in its entirety, such that hereafter, "GAV"
shall be defined as follows:
"GAV" means the sum of (without redundancy) (i) EBITDA from
all wholly owned Properties which have not been acquired within the
applicable reporting period, capitalized at the appropriate
Capitalization Rate, (ii) pro rata share of EBITDA from Joint Ventures
and Unconsolidated Subsidiaries which have not been acquired within the
applicable reporting period, capitalized at the appropriate
Capitalization Rate, (iii) Gross Book Value of wholly owned Properties
acquired during the applicable reporting period, (iv) pro rata share of
Gross Book Value of Properties acquired by Joint Ventures (subject to
the limitation in Section 11.8 (m) of this Agreement) and
Unconsolidated Subsidiaries during the applicable reporting period, (v)
recorded value of land, and (vi) recorded value of Construction in
Process (subject to the limitation of Section 11.8 (l) of this
Agreement) and (vii) remaining tangible assets, as determined in
accordance with GAAP.
5. The Credit Agreement is hereby amended by deleting Section 11.8(f) and (l)
thereof in its entirety, and by inserting in lieu thereof the following:
"(f) the ratio of Total Liabilities to GAV to exceed sixty percent
(60%);" and
"(l) the ratio of Construction Budgets to GAV to exceed twenty-five
percent (25%);"
6. Borrower represents and warrants that all representations, warranties,
affirmative covenants, and negative covenants set forth in of the Credit
Agreement, as amended hereby, are true and correct on the date hereof, and that,
to the best of its knowledge, no Default or Event of Default has occurred or
exists.
7. No right of Lenders with respect to the Credit Agreement or any other Credit
Documents is or will be in any manner released, destroyed, diminished, or
otherwise adversely affected by this Agreement.
8. All references in the Credit 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.
9. 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. Borrower confirms that, to the best of
its knowledge, it has no defenses or setoffs with respect to its obligations
pursuant to the Credit Agreement, as amended hereby.
10. Guarantor is executing this Agreement to acknowledge its consent to the
terms hereof, and to acknowledge that the Guaranty remains in full force and
effect, and is hereby ratified and affirmed in all respects by the Guarantor,
and extends to the Credit Agreement, as so modified and amended herein.
Guarantor confirms that it has no defenses or setoffs with respect to its
obligations pursuant to the Guaranty.
11. This Agreement shall inure to the benefit of and be binding upon the parties
hereto, and their respective successors and assigns.
12. 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.
13. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND GUARANTOR HEREBY
WAIVE ANY RIGHT EITHER 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 CREDIT 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 CREDIT
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. BORROWER AND GUARANTOR AGREE THAT
LENDERS MAY FILE A COPY OF THIS WAIVER WITH ANY COURT AS WRITTEN EVIDENCE OF THE
KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF BORROWER AND GUARANTOR IRREVOCABLY
TO WAIVE THEIR RIGHT TO TRIAL BY JURY, AND THAT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN BORROWER,
GUARANTOR, AND LENDERS 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 TRUST ,
an Alabama Trust
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------
Xxxxxx X. Xxxxxx, Xx.
Its Chief Financial Officer
GUARANTOR:
COLONIAL PROPERTIES TRUST,
an Alabama Trust
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Xxxxxx X. Xxxxxx, Xx.
Its Chief Financial Officer
(Signatures Continue on Following Pages)
Signature Page to Colonial Realty
Limited Partnership Amendment to Credit Agreement
LENDERS:
SOUTHTRUST BANK,
an Alabama banking corporation
By: /s/ Xxxxxx Xxxxx
------------------------------
Print Name: Xxxxxx Xxxxx
----------------------
Its: Assistant Vice President
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AMSOUTH BANK,
an Alabama banking corporation
By: /s/ Xxx Xxxxxxx
------------------------------
Print Name: Xxx Xxxxxxx
----------------------
Its: Officer
-----------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Print Name: Xxxxxx Xxxxxxx
----------------------
Its: Senior Vice President
-----------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Print Name: Xxxxx Xxxxxxxx
----------------------
Its: Vice President
-----------------------------
(Signatures Continue on Following Pages)
Signature Page to Colonial Realty
Limited Partnership Amendment to Credit Agreement
PNC BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Print Name: Xxxxx Xxxxxxxxx
----------------------
Its: Senior Vice President
-----------------------------
COMERICA BANK
a national bank
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Print Name: Xxxxxxx X. Xxxxx
----------------------
Its: Assistant Vice President
-----------------------------
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxx Xxxxxx
------------------------------
Print Name: Xxxxx Xxxxxx
----------------------
Its: Vice President
-----------------------------
(Signatures Continue on Following Pages)
Signature Page to Colonial Realty
Limited Partnership Amendment to Credit Agreement
COMPASS BANK,
an Alabama banking corporation
By: /s/ Xxxxxxx Xxxx Xxxxx
------------------------------
Print Name: Xxxxxxx Xxxx Xxxxx
----------------------
Its: Senior Vice President
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BRANCH BANKING & TRUST COMPANY,
a North Carolina banking corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
------------------------------
Print Name: Xxxxxxxxxxx X. Xxxxxxxxx
-----------------------
Its: Vice President
------------------------------
AGENT:
SOUTHTRUST BANK,
an Alabama banking corporation
By: /s/ Xxxxxx Xxxxx
------------------------------
Print Name: Xxxxxx Xxxxx
----------------------
Its: Assistant Vice President
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