BRI OP LIMITED PARTNERSHIP
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
AMENDMENT NO. 2 OF
AMENDED AND RESTATED
1992 CREDIT AGREEMENT
As of March , 1996
THE FIRST NATIONAL BANK OF BOSTON,
for Itself and as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
NATIONSBANK OF TEXAS, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Real Estate Loan Administration
Ladies and Gentlemen:
BRI OP Limited Partnership, a Delaware limited partnership (the
"Borrower"), 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 (the
"Credit Agreement"), among the Borrower, Berkshire Realty Company, Inc.,
certain Guarantors named therein and each of you. 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
established a benefit plan under section 401(k) of the Code and 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. Section 1.1 of the Credit Agreement is amended by adding
thereto, in correct alphabetical order, a definition of the term
Accumulated Benefit Obligations, reading in its entirety as follows:
Accumulated Benefit Obligations. The actuarial present value
of the accumulated benefit obligations under any Plan, calculated in
accordance with Statement No. 87 of the Financial Accounting
Standards Board.
3.2. Section 1.1 of the Credit Agreement is further amended by
adding thereto, in correct alphabetical order, a definition of the
word Plan reading in its entirety as follows:
Plan. At any time, any pension benefit plan subject to Title
IV of ERISA maintained, or to which contributions have been made or
are required to be made, by the REIT, the Borrower or any ERISA
Affiliate within six years prior to such time.
3.3. Section 6.16 of the Credit Agreement is amended to read
in its entirety as follows:
section 6.16. Pension Plans. Each Plan (other than a
Multiemployer
Plan) and, to the knowledge of the REIT and the Borrower, each
Multiemployer Plan is in material compliance with the applicable
provisions of ERISA and the Code. Each Multiemployer Plan and each
Plan that constitutes a defined benefit plan (as defined in ERISA)
are set forth in Schedule 6.16. The REIT, the Borrower and each
ERISA Affiliate have met all of the funding standards applicable to
all Plans that are not Multiemployer Plans, and no condition exists
which would permit the institution of proceedings to terminate any
Plan that is not a Multiemployer Plan under section 4042 of ERISA.
To the best knowledge of the REIT and the Borrower, no Plan that is a
Multiemployer Plan is currently insolvent or in reorganization or has
been terminated within the meaning of ERISA.
3.4. Section 8 of the Credit Agreement is amended by adding
thereto a new section 8.12 reading in its entirety as follows:
section 8.12. ERISA, etc. Each of the Borrower and the REIT
shall
comply, and shall cause all ERISA Affiliates to comply, in all
material respects, with the provisions of ERISA and the Code
applicable to each Plan. Each of the Borrower and the REIT shall
meet, and shall cause all ERISA Affiliates to meet, all minimum
funding requirements applicable to them with respect to any Plan
pursuant to section 302 of ERISA or section 412 of the Code, without
giving effect to any waivers of such requirements or extensions of
the related amortization periods which may be granted. At no time
shall the Accumulated Benefit Obligations under any Plan that is not
a Multiemployer Plan exceed the fair market value of the assets of
such Plan allocable to such benefits by more than $500,000. The
Borrower and the REIT shall not withdraw, and shall cause all other
ERISA Affiliates not to withdraw, in whole or in part, from any
Multiemployer Plan so as to give rise to withdrawal liability
exceeding $500,000 in the aggregate. At no time shall the actuarial
present value of unfunded liabilities for post-employment health care
benefits, whether or not provided under a Plan, calculated in a
manner consistent with Statement No. 106 of the Financial Accounting
Standards Board, exceed $500,000.
3.5. The Credit Agreement is further amended by adding thereto
a new Schedule 6.16 reading in its entirety in the form attached
hereto as Schedule 6.16.
4. Representations and Warranties. In order to induce you to enter into
this Amendment, the Borrower hereby represents and warrants that each of
the representations and warranties contained in section 6 of the Credit
Agreement
is true and correct on the date hereof, after giving effect to the
amendments effected hereby.
5. 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:
The foregoing Amendment is
hereby agreed to.
THE FIRST NATIONAL BANK OF BOSTON,
for Itself and as Agent
By:____________________________
Name:
Title:
NATIONSBANK OF TEXAS, 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 6.16
BENEFIT PLANS
[none applicable]
