LOAN AGREEMENT
DATED AS OF
JULY 31, 1996
BETWEEN
SUMMIT PROPERTIES PARTNERSHIP, L.P.
AND
WACHOVIA BANK OF NORTH CAROLINA, N.A.
TABLE OF CONTENTS
[Not a part of the Agreement]
ARTICLE I - DEFINITIONS......................................................1
SECTION 1.01. Definitions................................................1
SECTION 1.02. Accounting Terms and Determinations........................7
SECTION 1.03. References.................................................7
ARTICLE II - THE LOANS.......................................................8
SECTION 2.01. The Loans..................................................8
SECTION 2.02. Promissory Notes...........................................8
SECTION 2.03. Interest Rates.............................................8
SECTION 2.04. Payment of Principal and Interest..........................9
SECTION 2.05. Prepayment.................................................9
ARTICLE III - GENERAL PROVISIONS CONCERNING PAYMENTS AND FEE................10
SECTION 3.01. Commitment Fee............................................10
SECTION 3.02. General Provisions Concerning Payments....................10
SECTION 3.03. Computation of Interest and Fees..........................10
ARTICLE IV - CONDITIONS PRECEDENT...........................................10
SECTION 4.01. Conditions to Loans.......................................10
ARTICLE V - REPRESENTATIONS AND WARRANTIES..................................11
SECTION 5.01. Existence and Power.......................................11
SECTION 5.02. Power and Governmental Authorization; Contravention.......11
SECTION 5.03. Binding Effect............................................12
SECTION 5.04. Financial Information.....................................12
SECTION 5.05. Litigation................................................12
SECTION 5.06. Compliance with ERISA.....................................12
SECTION 5.07. Taxes.....................................................13
SECTION 5.08. Subsidiaries..............................................13
SECTION 5.09. Not an Investment Company.................................13
SECTION 5.10. Ownership of Property, Liens..............................13
SECTION 5.11. No Default................................................13
SECTION 5.12. Full Disclosure...........................................13
SECTION 5.13. Environmental Matters.....................................13
ARTICLE VI - COVENANTS......................................................14
SECTION 6.01. Information...............................................14
SECTION 6.02. Inspection of Property Books and Records..................15
SECTION 6.03. No Liens on the Collateral................................16
SECTION 6.04. Ratio of Unencumbered Assets to Debt......................16
SECTION 6.05. Ratio of Debt to Assets...................................16
SECTION 6.06. Maximum Secured Debt......................................16
SECTION 6.07. Debt Service Ratio........................................16
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SECTION 6.08. Status as REIT............................................16
SECTION 6.09. Maintenance of Existence..................................16
SECTION 6.10. Dissolution...............................................16
SECTION 6.11. Consolidations. Mergers and Sales of Assets...............17
SECTION 6.12. Use of Proceeds...........................................17
SECTION 6.13. Compliance with Laws Payment of Taxes.....................17
SECTION 6.14. Insurance.................................................17
SECTION 6.15. Change in Fiscal Year.....................................17
SECTION 6.16. Maintenance of Property...................................17
SECTION 6.17. Environmental Notices.....................................18
SECTION 6.18. Environmental Matters.....................................18
SECTION 6.19. Environmental Release.....................................18
ARTICLE VII - DEFAULTS......................................................18
SECTION 7.01. Events of Default.........................................18
SECTION 7.02. Remedies on Default.......................................20
ARTICLE VIII - MISCELLANEOUS................................................20
SECTION 8.01. Notices...................................................20
SECTION 8.02. No Waivers................................................21
SECTION 8.03. Expenses: Documentary Taxes...............................21
SECTION 8.04. Amendments and Waivers....................................21
SECTION 8.05. Successors and Assigns....................................21
SECTION 8.06. Confidentiality...........................................21
SECTION 8.07. Interest Limitation.......................................22
SECTION 8.08. Governing Law.............................................22
SECTION 8.09. Counterparts..............................................22
SECTION 8.10. Consent to Jurisdiction...................................22
SECTION 8.11. Severability..............................................22
SECTION 8.12. Captions..................................................22
EXHIBIT A Form of $15,000,000 Note
EXHIBIT B Form of $16,000,000 Note
EXHIBIT C Form of Opinion of Counsel for the Borrower
EXHIBIT D Form of Guaranty Agreement
EXHIBIT E Description of Required Collateral
EXHIBIT F Form of Escrow Agreement
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LOAN AGREEMENT
THIS LOAN AGREEMENT, made as of the 31st day of July, 1996, by and
between SUMMIT PROPERTIES PARTNERSHIP, L.P., a Delaware limited partnership
(together with its successors, the "Borrower"), and WACHOVIA BANK OF NORTH
CAROLINA, N.A., a national banking association (together with endorsees,
successors and assigns, the "Bank").
BACKGROUND
The Borrower has requested the Bank to make two term loans to the
Borrower, one in the principal amount of $15,000,000.00 and the second in the
principal amount of $16,000,000.00, and the Bank is willing to do so on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the promises
herein contained, and each intending to be legally bound hereby, the parties
agree as follows:
ARTICLE I - DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein (terms defined in the singular to have the
same meanings when used in the plural and vice versa):
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 50% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Applicable Term' has the meaning set forth in Section 2.05.
"Applicable Treasury Rate" has the meaning set forth in Section 2.05.
"Assets" means the sum of (i) the Undepreciated Real Estate Assets for
all completed properties of the Borrower and the Guarantor plus (ii) 75% of the
actual cost incurred for the properties of the Borrower and Guarantor under
development and land purchase plus (iii) the actual cost of all other tangible
assets of the Borrower and Guarantor on a consolidated basis.
"BBB Rated Period" means any period when the rating by S&P of the
Borrower's senior unsecured debt is BBB or better (and when the Borrower has
received a comparable rating by at least one of the following: Moody's, Fitch or
Xxxx & Xxxxxx).
"BBB-Rated Period" means any period when the rating by S&P of the
Borrower's senior unsecured debt is BBB- (and when the Borrower has received a
comparable rating by at least one of the following: Moody's, Fitch or Duff &
Xxxxxx).
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in North Carolina are authorized by law to close.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Inventory System established pursuant to CERCLA.
"Change of Control" for purposes of this Agreement shall be deemed to
have occurred and shall mean when (i) any five or fewer Persons acting in
concert shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 50% or more of the outstanding shares of the voting stock of the
Guarantor; or (ii) as of any date a majority of the Board of Directors of the
Guarantor consists of individuals who were not either (A) directors of the
Guarantor as of the corresponding date of the previous year, (B) selected or
nominated to become directors by the Board of Directors of the Guarantor of
which a majority consisted of individuals described in clause (A), or (C)
selected or nominated to become directors by the Board of Directors of the
Guarantor of which a majority consisted of individuals described in clause (A)
and individuals described in clause (B).
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Commitment Fee" has the meaning set forth in Section 3.01.
"Contract Interest Rate" means the interest rates set forth in Section
2.03 (a) and (b).
"Controlled Group" means any and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"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, (iii)
all obligations of such Person to pay the deferred purchase 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 under a letter of credit or similar instrument, (viii)
all Debt of
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others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, and (ix) all Debt of others Guaranteed by such
Person.
"Debt Service" means for any period principal and interest scheduled to
be paid by the Borrower and the Guarantor during such period in respect of Debt.
"Debt Service Ratio" means the ratio of Net Operating Income to Debt
Service, calculated quarterly based on an annualization of the Fiscal Quarter
then ended.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Depreciation" means for any period the sum of all depreciation
expenses of the Borrower and the Guarantor for such period, as determined in
accordance with generally accepted accounting principles consistently applied.
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower required by any Environmental Requirement.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notice" means notice from any Environmental Authority or
by any other person or entity, of possible or alleged noncompliance with any
Environmental Requirement, including without limitation any complaints,
citations, demands or requests from any Environmental Authority or from any
other person or entity for correction of any violation of any Environmental
Requirement or any investigations concerning any violation of any Environmental
Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
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"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
or the Properties, including but not limited to any such requirement under
CERCLA or similar state legislation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law, including any rules or
regulations promulgated thereunder. Any reference to any provision of ERISA
shall also be deemed to be a reference to any successor provision or provisions
thereof.
"Escrow Agent" means Chicago Title Insurance Company, 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
"Escrow Agreement" means an Escrow agreement substantially in the form
of Exhibit F attached hereto executed by the Borrower, the Bank and the Escrow
Agent.
"Event of Default" has the meaning set forth in Section 7.01.
"$15,000,000 Note" has the meaning set forth in Section 2.02.
"First Maturity Date" means the fourth anniversary of the Closing Date.
"Fiscal Quarter" means any fiscal quarter of the Borrower or Guarantor,
as the case may be.
"Fiscal Year" means any fiscal year of the Borrower or Guarantor, as
the case may be.
"Fitch" means Fitch Investors Service, Inc.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means Summit Properties.
"Guaranty Agreement" means a Guaranty Agreement substantially in the
form of Exhibit D attached hereto executed by the Guarantor.
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"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, or in any applicable state or local law or regulation, (b) hazardous
substances, as defined in CERCLA, or in any applicable state or local law or
regulation, (c) gasoline, or any other petroleum product or by-product, (d)
toxic substances, as defined in the Toxic Substances Control Act of 1976, or in
any applicable state or local law or regulation or (e) insecticides, fungicides,
or rodenticides, as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act of 1975, or in any applicable state or local law or regulation,
as each such Act, statute or regulation may be amended from time to time.
"Interest Payment Date" means the fifteenth day of each January, April,
July and October.
"Investment Grade Rating" means a rating by S&P of the Borrower's
senior unsecured debt of BBB- or better (and when the Borrower has received a
comparable rating by at least one of the following: Moody's, Fitch or Xxxx &
Xxxxxx).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or Guarantor shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" or "Loans" means, individually or collectively as the context
may require, the two term loans made by the Bank to the Borrower pursuant to
Article II hereof, one in the principal amount of $15,000,000.00 and the second
in the principal amount of $16,000,000.00.
"Loan Documents" means this Agreement, the Notes, any other document
evidencing or securing the Loans.
"Margin Stock" means "margin stock" as defined in Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System, as in effect from
time to time, together with all official rulings and interpretations issued
thereunder.
"Moody's" means Xxxxx'x Investors Service, a corporation organized and
existing under the laws of the State of Delaware, its legal successors and
assigns.
"Muldemployer Plan" has the meaning set forth in Section 4001(a)(3) of
ERISA.
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person, after income taxes, for such
period, as determined in accordance with generally accepted accounting
principles consistently applied.
"Net Interest Rate Differential Percentage" has the meaning set forth
in Section 2.05.
"Net Operating Income" shall mean (i) the aggregate Net Income of the
Borrower and Guarantor, before minority interests and extraordinary items, plus
(ii) Depreciation and amortization, plus (iii) losses from sales or joint
ventures, plus (iv) increases in deferred taxes
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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, plus (viii) income taxes.
"Notes" means, collectively, the two promissory notes, either as
originally executed or as may from time to time be supplemented, modified,
amended, renewed or extended, executed by the Borrower and together evidencing
the Loans.
"Obligations" means all indebtedness, obligations and liabilities to
the Bank existing on the date of this Agreement or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise, of the Borrower under this Agreement or any other Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means any individual, joint venture, corporation, company,
voluntary association, partnership, trust, joint stock company, unincorporated
organization, association, government, or any agency, instrumentality, or
political subdivision thereof, or any other form of entity or organization.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions.
"Prime Rate" means that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate. A change in the Prime Rate
shall be effective on the date of such change.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary of the Borrower, wherever located.
The term "Properties" includes the Required Collateral.
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Second Maturity Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Reportable Event" has the meaning set forth in Section 4043(b) of
Title V of ERISA.
"Required Collateral" means those real estate assets of the Borrower
more particularly described in Exhibit E attached hereto.
6
"S&P" means Standard & Poor's Ratings Services, a Division of the
XxXxxx-Xxxx Companies, Inc., or its legal successors or assigns.
"Second Maturity Date" means the sixth anniversary of the Closing Date.
"Secured Debt" means all Debt of the Borrower and the Guarantor which
is secured by a Lien on any real or personal property of the Borrower or the
Guarantor.
"$16,000,000 Note" has the meaning set forth in Section 2.02 hereof.
"Subsidiary" of a Person means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"Summit Properties" means Summit Properties Inc., a Maryland
corporation.
"Third Parties" means all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
"Undepreciated Real Estate Assets" means the cost (original plus
capital improvements, if any) of the real estate assets of the Borrower and the
Guarantor and their Wholly-Owned Subsidiaries, before Depreciation and
amortization, determined on a consolidated basis.
"Unrated Period" means any period when neither the Borrower nor Summit
Properties has an Investment Grade Rating.
"Wachovia" means Wachovia Bank of North Carolina, N.A., a national
banking association, together with its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower
or by the Borrower and Guarantor together.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder (other than any monthly
or quarterly balance sheets and operating statements of any of the Required
Collateral) shall be prepared in accordance with generally accepted accounting
principles as in effect from time to time, applied on a basis consistent (except
for changes concurred in by the Borrower's independent public accountants) with
the most recent audited financial statements of the Borrower delivered to the
Bank.
SECTION 1.03. REFERENCES. Except as otherwise expressly provided in
this Agreement: the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole, including any Schedule or
Exhibit hereto which is a part hereof, and not to any particular Section,
Article, paragraph or other subdivision; the singular includes the
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plural and the plural includes the singular; "or" is not exclusive; the words
"include," "includes" and "including" are not limiting; a reference to any
agreement or other contract includes past and future permitted supplements,
amendments, modifications and restatements thereto or thereof; a reference to an
Article, Section, paragraph or other subdivision is a reference to an Article,
Section, paragraph or other subdivision' of this Agreement; a reference to any
law includes any amendment or modification to such law and any rules and
regulations promulgated thereunder; a reference to a Person includes its
permitted successors and assigns; any right may be exercised at any time and
from time to time; and, except as otherwise expressly provided therein, all
obligations under any agreement or other contract are continuing obligations
throughout the term of such agreement or contract.
ARTICLE II - THE LOANS
SECTION 2.01. THE LOANS.
(a) Subject to the terms and conditions of this Agreement, on
the Closing Date, the Bank agrees to lend to the Borrower, and the
Borrower agrees to borrow from the Bank, the aggregate principal sum of
$31,000,000 (the "Loans").
(b) The closing of the Loans hereunder shall take place at the
office of the Bank in Charlotte, North Carolina, or such other place as
the parties may agree, on the Closing Date. On or within three (3)
Business Days after the Closing Date as requested by the Borrower, upon
receipt of the documents required by, and satisfaction of the
conditions specified in, Article IV, the Bank will advance, in
immediately available funds, the aggregate amount of the Loans to the
Borrower.
SECTION 2.02. PROMISSORY NOTES. The Loans shall be evidenced by two
promissory notes of the Borrower (the "Notes") in the aggregate principal amount
of Thirty-one Million and No/100 Dollars ($31,000,000.00), one of such Notes to
be for the principal sum of $15,000,000.00 and in the form of Exhibit A hereto,
with appropriate insertions, payable to the order of the Bank and dated the
Closing Date (the "$15,000,000 Note") and the other of said Notes to be for the
principal sum of $16,000,000.00 and in the form of Exhibit B hereto, with
appropriate insertions, payable to the order of the Bank and dated the Closing
Date (the "$16,000,000 Note").
SECTION 2.03. INTEREST RATES.
(a) The $15,000,000 Note shall bear interest from the Closing
Date (or, if later, from the date of advancement of the Loans to the
Borrower) at a rate per annum equal to 7.71% during any Unrated Period,
7.61% during any BBB-Rated Period and 7.51% during any BBB Rated
Period.
(b) The $16,000,000 Note shall bear interest from the Closing
Date (or, if later, from the date of advancement of the Loans to the
Borrower) at a rate per annum equal to 7.95% during any Unrated Period,
7.85% during any BBB-Rated Period and 7.75% during any BBB Rated
Period.
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(c) Any overdue principal of, and to the extent permitted by
law, overdue interest on the Loans shall bear interest, payable on
demand for each day until paid at a rate per annum equal to 150% of the
Prime Rate.
SECTION 2.04. PAYMENT OF PRINCIPAL AND INTEREST. The Borrower promises
and agrees to pay to the Bank the principal and interest on the Loans and Notes
as follows:
(a) Interest shall be payable quarterly in arrears on each
Interest Payment Date commencing with the first of such dates after the
Closing Date.
(b) The principal of the $15,000,000 Note shall be payable in
full on the First Maturity Date; and the principal of the $16,000,000
Note shall be payable in full on the Second Maturity Date.
SECTION 2.05. PREPAYMENT. The Borrower shall have the privilege to
prepay the principal amount of the Loans in full, but not in part, subject to a
prepayment premium calculated as follows:
The product (discounted back to a net present value at the Applicable
Treasury Rate) determined by multiplying the outstanding principal
amount being prepaid times the Net Interest Rate Differential
Percentage times the number of years (whole or partial) remaining until
the First Maturity Date, if the prepayment relates to the $15,000,000
Note, or until the Second Maturity Date, if the prepayment relates to
the $16,000,000 Note. The "Net Interest Rate Differential Percentage"
shall be the difference between the then applicable Contract Interest
Rate on the $15,000,000 Note or the $16,000,000 Note, as the case may
be, and the Applicable Treasury Rate. The "Applicable Treasury Rate"
shall mean the per annum spot rate adjusted to a constant maturity for
a term equal to the number of months from the date of prepayment to the
First Maturity Date, in the case of the $15,000,000 Note, or from the
date of prepayment to the Second Maturity Date, in the case of the
$16,000,000 Note (the "Applicable Term"), as of five (5) Business Days
prior to the prepayment. The product shall never be a negative amount.
Example:
Outstanding principal balance of applicable Loan: $1,000,000
Contract Interest Rate on such Loan: 8.25%
48 months remaining from the date
of prepayment until maturity of
such Loan (therefore, the "Applicable
Treasury Rate" is the 4 year Treasury Rate): 6.00%
Therefore:
Contract Interest Rate 8.25%
- Applicable Treasury Rate 6.00%
-------------------------- ------------
= Net Interest Rate Differential Percentage 2.25%
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Thus, the Net Interest Rate Differential Percentage times the principal
amount of such Loan to be prepaid times the number of years (whole or
partial) remaining from the date of prepayment until the First Maturity
Date or the Second Maturity Date, as the case may be = prepayment
premium for such Loan Calculation: 2.25% X $1,000,000 X 4 years =
$90,000 prepayment premium (which shall be discounted back to a net
present value at the Applicable Treasury Rate).
NOTWITHSTANDING the foregoing provisions of this paragraph,
the Borrower, without payment of any prepayment premium or penalty, may
(a) within the sixty (60) days period prior to the First Maturity Date,
repay in full but not in part the $15,000,000 Note and (b) within the
sixty (60) days period prior to the Second Maturity Date, repay in full
but not in part the $16,000,000 Note.
ARTICLE III - GENERAL PROVISIONS CONCERNING PAYMENTS AND FEE
SECTION 3.01. COMMITMENT FEE. On or before the Closing Date the
Borrower shall pay to the Bank a-commitment fee (the "Commitment Fee") equal to
$155,000.00.
SECTION 3.02. GENERAL PROVISIONS CONCERNING PAYMENTS.
(a) All payments and prepayments of principal of, or interest
on, the Notes and of the Commitment Fee shall be made in Federal or
other funds immediately available to the Bank at its office in
Charlotte, North Carolina not later than 2:00 p.m., Charlotte, North
Carolina time. Funds received after 2:00 p.m. shall be deemed to have
been paid on the next following Business Day.
(b) Whenever any payment of principal of, or interest on, the
Loans shall be due on a day which is not a Business Day, the date for
payment thereof shall be extended to the next succeeding Business Day.
If the date for any payment of principal is extended by operation of
law or otherwise, interest thereon shall be payable for such extended
time.
SECTION 3.03. COMPUTATION OF INTEREST AND FEES. Interest shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed, calculated as to each interest period from and including the first
day thereof to but excluding the last day thereof.
ARTICLE IV - CONDITIONS PRECEDENT
SECTION 4.01. CONDITIONS TO LOANS. The obligation of the Bank to make
the Loans is subject to the satisfaction of the following conditions:
(a) receipt by the Bank from the Borrower of a duly executed
counterpart of this Agreement signed by the Borrower;
(b) receipt by the Bank of the duly executed Notes;
10
(c) receipt by the Bank of the duly executed Guaranty
Agreement and Escrow Agreement;
(d) receipt by the Bank of an opinion of counsel of Xxxxxxx
Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. counsel for the Borrower and
Guarantor, substantially in the form of Exhibit C hereto, and covering
such additional matters relating to the transactions contemplated
hereby as the Bank may reasonably request;
(e) receipt by the Bank of a certificate, dated the Closing
Date (or, if later, the date of advancement of the Loans), signed by
the general partner of the Borrower to the effect that (i) no Default
hereunder has occurred and is continuing on such date and (ii) the
representations and warranties of the Borrower contained in Article V
are true on and as of such date;
(f) receipt by the Bank of all documents which the Bank may
reasonably request relating to the existence of the Borrower and of the
Guarantor, the authority for and the validity of this Agreement, the
Notes, the other Loan Documents and any other matters relevant hereto,
all in form and substance satisfactory to the Bank, such documents to
include without limitation a copy of the Partnership Agreement and
Certificate of Limited Partnership of the Borrower and copies of the
Guarantor's Articles of Incorporation and By-laws;
(g) a certificate of the Secretary of State of Delaware as to
the existence of the Borrower as a limited partnership in such
jurisdiction and of the Secretary of State of North Carolina as to the
qualification of the Borrower to transact business in such
jurisdiction;
(h) a certificate of the Secretary of State of Maryland as to
the existence of the Guarantor as a corporation in such jurisdiction
and of the Secretary of State of the State of North Carolina as to the
qualification of the Guarantor to transact business in such
jurisdiction; and
(i) such other items as the Bank may reasonably require after
receipt and review of the documents and agreements referred to above.
ARTICLE V - REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 5.01. EXISTENCE AND POWER. The Borrower is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, is duly qualified to transact business in every
jurisdiction where, by the nature of its business, such qualification is
necessary, and has all powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 5.02. POWER AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
execution, delivery and performance by the Borrower of this Agreement, the Notes
and the other Loan Documents (i) are within the Borrower's powers, (ii) have
been duly authorized by all
11
necessary partnership action, (iii) require no action by or in respect of, or
filing with, any governmental body, agency or official other than ordinary
filings with the Securities and Exchange Commission, (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the Partnership Agreement or Certificate of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower, and (v) do not result in the creation or imposition of any Lien on any
asset of the Borrower.
SECTION 5.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, and
the Notes and the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 5.04. FINANCIAL INFORMATION.
(a) The financial statements of the Borrower and its
Subsidiaries as of December 31, 1995, and the related statements of
income, and cash flows for the Fiscal Year then ended, audited by
Deloitte & Touche LLP, copies of which have been delivered to the Bank,
and the unaudited financial statements of the Borrower and its
Subsidiaries for the interim period ended March 31, 1996, copies of
which have been delivered to the Bank, fairly present the financial
position of the Borrower and its Subsidiaries as of such dates and the
Borrower's results of operations and cash flows for such periods
stated. Such annual financial statements have been prepared in
conformity with generally accepted accounting principles.
(b) Since March 31, 1996, there has been no material adverse
change in the business, financial position, results of operations or
prospects of the Borrower and its Subsidiaries.
SECTION 5.05. LITIGATION. There is no action, suit or proceeding
pending, or to the knowledge of the Borrower threatened, against or affecting
the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which could materially adversely affect
the business, consolidated financial position or consolidated results of
operations of the Borrower and its Subsidiaries, or which could reasonably
impair the ability of the Borrower to perform its obligations under, this
Agreement, the Notes or any of the other Loan Documents.
SECTION 5.06. COMPLIANCE WITH ERISA.
(a) The Borrower and each member of the Controlled Group have
fulfilled their obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in
all material respects with the presently applicable provisions of ERISA
and the Code, and have not incurred any liability to the PBGC or a Plan
under Title IV of ERISA.
12
(b) Neither the Borrower nor any member of the Controlled
Group is or ever has been obligated to contribute to any Multiemployer
Plan.
SECTION 5.07. TAXES. There have been filed on behalf of the Borrower
all Federal, state and local income, excise, property and other tax returns
which are required to be filed by it and any and all taxes due pursuant to such
returns or pursuant to any assessment received by or on behalf of the Borrower
have been paid, other than taxes being contested in good faith and against
which, if requested by the Bank, adequate reserves for the payment of such taxes
have been established by the Borrower. The charges, accruals and reserves on the
books of the Borrower in respect of taxes or other governmental charges are, in
the opinion of the Borrower, adequate.
SECTION 5.08. SUBSIDIARIES. Each of the Borrower's Subsidiaries is a
corporation, partnership or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, and has all powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
SECTION 5.09. NOT AN INVESTMENT COMPANY. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 5.10. OWNERSHIP OF PROPERTY, LIENS. The Borrower has title to
its properties (including without limitation the Required Collateral) sufficient
for the conduct of its business, and none of the Required Collateral is subject
to any Lien.
SECTION 5.11. NO DEFAULT. The Borrower is not in default under or with
respect to any agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound which will be materially adverse to the
business, operations, property or financial or other condition of the Borrower,
or which will materially adversely affect the ability of the Borrower to perform
its obligations under the Loan Documents. No Default has occurred and is
continuing.
SECTION 5.12. FULL DISCLOSURE. All information heretofore furnished by
the Borrower to the Bank for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such information hereafter
furnished by the Borrower to the Bank will be, true, accurate and complete in
every material respect or based on reasonable estimates on the date as of which
such information is stated or certified. The Borrower has disclosed to the Bank
in writing any and all facts which materially and adversely affect or may affect
(to the extent the Borrower can now reasonably foresee), the business,
operations, prospects or condition, financial or otherwise, of the Borrower, the
Guarantor and their Subsidiaries or the ability of the Borrower to perform its
obligations under this Agreement or of the Guarantor to perform its obligations
under the Guaranty Agreement.
SECTION 5.13. ENVIRONMENTAL MATTERS.
(a) To the best of the knowledge of the Borrower, the Borrower
is not subject to any Environmental Liability which is likely to have a
material adverse effect on the business, financial position, results of
operations or prospects of the Borrower and
13
the Borrower has not been designated as a potentially responsible party
under CERCLA or under any state statute similar to CERCLA. None of the
Properties have been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any
list arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, generated, stored, disposed of,
managed at, or shipped or transported to or from the Properties or are
otherwise present at, on, in or under the Properties, or, to the best
of the knowledge of the Borrower, at or from any adjacent site or
facility, except for Hazardous Materials, such as cleaning solvents,
pesticides and other materials used, produced, manufactured, processed,
generated, stored, disposed of, and managed in the ordinary course of
business in compliance with all applicable Environmental Requirements.
ARTICLE VI - COVENANTS
The Borrower agrees that, so long as the Commitment is in effect
hereunder or any amount payable under this Agreement remains unpaid:
SECTION 6.01. INFORMATION. The Borrower will deliver to the Bank:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of income, shareholders' equity and
cash flows for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
accordance with generally accepted accounting principles and audited
and certified by Deloitte & Touche LLP or another independent certified
public accountant acceptable to the Bank, with such certification to be
free of exceptions and qualifications not acceptable to Bank;
(b) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year,
a consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such Fiscal Quarter and the related statement of income and
statement of cash flows for such Fiscal Quarter and for the portion of
the Fiscal Year ended at the end of such Fiscal Quarter, setting forth
in each case in comparative form the figures for the corresponding
Fiscal Quarter and the corresponding portion of the previous Fiscal
Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation and consistency by the chief financial officer
or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 6.04 through 6.07, inclusive, on the date of
such financial statements and (ii) stating whether any Default exists
on the date of such certificate and,
14
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;
(d) within five Domestic Business Days after the Borrower
becomes aware of the occurrence of any Default, a certificate of the
chief financial officer or the chief accounting officer of the Borrower
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the partners of the
Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon the filing thereof, copies of any and all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower shall have filed with
the Securities and Exchange Commission;
(g) if and when any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any Reportable Event with
respect to any Plan which might constitute grounds for a termination of
such Plan under Title IV of ERISA, or knows that the plan administrator
of any Plan has given or is required to give notice of any such
Reportable Event, a copy of the notice of such Reportable Event given
or required to be given to the PBGC; (ii) receives notice of complete
or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA
of an intent to terminate or appoint a trustee to administer any Plan,
a copy of such notice;
(h) within 30 days after the end of each Fiscal Quarter,
quarterly operating statements for each of the properties comprising
the Required Collateral; provided that this requirement shall terminate
at such time prior to the occurrence of a "Payment Default" or
"Covenant Violation" (as those terms are defined in the Escrow
Agreement) as the Borrower shall have received an Investment Grade
Rating.
(i) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries
as the Bank may reasonably request.
SECTION 6.02. INSPECTION OF PROPERTY BOOKS AND RECORDS. The Borrower
will keep, and will cause each of its Subsidiaries to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause its Subsidiaries to permit, representatives of the Bank
at the Bank's expense prior to the occurrence of an Event of Default and at the
Borrower's expense after the occurrence of an Event of Default to visit and
inspect any of their respective properties (including without limitation the
Required Collateral), to examine and make abstracts from any of their respective
books and records and to discuss their respective affairs, finances and accounts
with their respective officers, employees and independent public accountants.
The Borrower agrees to cooperate and assist in such visits and inspections, in
each case at such reasonable times and as often as may reasonably be desired;
provided, however, that
15
prior to the occurrence of an Event of Default, the Bank shall give the Borrower
not less than twenty-four (24) hours' notice of any such visit or inspection.
SECTION 6.03. NO LIENS ON THE COLLATERAL. The Borrower will not place
or permit to exist any lien on any of the Required Collateral except those, if
any, approved by the Bank in writing; provided, however, that this covenant
shall terminate at such time prior to the occurrence of a "Payment Default" or
"Covenant Violation" (as those terms are defined in the Escrow Agreement) as the
Borrower shall have received an Investment Grade Rating.
SECTION 6.04. RATIO OF UNENCUMBERED ASSETS TO DEBT. The collective
unencumbered Assets of the Borrower and Guarantor, tested as of the last day of
each Fiscal Quarter, shall at all times equal or exceed 150% of the aggregate
outstanding unsecured Debt of such entities.
SECTION 6.05. RATIO OF DEBT TO ASSETS. The aggregate Debt of the
Borrower and the Guarantor, tested as of the last day of each Fiscal Quarter,
shall at no time exceed 60% of the total collective Assets of the Borrower and
the Guarantor.
SECTION 6.06. MAXIMUM SECURED DEBT. The aggregate Secured Debt of the
Borrower and the Guarantor, tested as of the last day of each Fiscal Quarter,
shall at no time exceed the lesser of (i) $350,000,000 or (ii) 60% of total
collective Assets of the Borrower and the Guarantor until the earlier of (a)
such time as the Borrower shall have received an Investment Grade Rating or (b)
June 30, 1997, at and after which time aggregate Secured Debt of the Borrower
and the Guarantor, tested as of the last day of each Fiscal Quarter, shall not
exceed 40% of total collective Assets of the Borrower and the Guarantor.
SECTION 6.07. DEBT SERVICE RATIO. The Debt Service Ratio, tested as of
the last day of each Fiscal Quarter, shall at no time be less than 1.75 to 1.
SECTION 6.08. STATUS AS REIT. The Borrower shall maintain at all times
its status as a real estate investment trust under the Code.
SECTION 6.09. MAINTENANCE OF EXISTENCE. The Borrower shall, and shall
cause each Subsidiary to, maintain its existence and carry on its business in
substantially the same manner and in substantially the same fields as such
business is now carried on and maintained; provided, however, that nothing
contained in this Section shall preclude the Borrower from dissolving a
Subsidiary of the Borrower so long as the assets of such Subsidiary have
theretofore been transferred to the Borrower or another Subsidiary of the
Borrower.
SECTION 6.10. DISSOLUTION. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of its own stock or any of its own
securities or other ownership interests or that of any Subsidiary, except (a)
through corporate reorganization to the extent permitted by Section 6.11 and (b)
so long as after giving pro forma effect thereto, the Borrower will not be in
violation of the terms of this Agreement, pursuant to Section 8.6 of the
Agreement of Limited Partnership of the Borrower as amended through the Closing
Date or as amended subsequent to the Closing Date if the sole purpose of the
amendment is to specify a date through which a limited partner's ownership
interest must be held prior to such redemption; provided, however, that nothing
16
contained in this Section shall preclude the Borrower from dissolving a
Subsidiary of the Borrower so long as the assets of such Subsidiary have
theretofore been transferred to the Borrower or another Subsidiary of the
Borrower.
SECTION 6.11. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Borrower
will not, nor will it permit any Subsidiary to, consolidate or merge with or
into, or sell, lease or otherwise transfer all or substantially all of its
assets to, any other Person, or discontinue or eliminate any business line or
segment, provided that
(a) the Borrower may merge with another Person if (i) such
Person was organized under the laws of the United States of America or
one of its states, (ii) the Borrower is the corporation surviving such
merger and (iii) immediately after giving effect to such merger, no
Default shall have occurred and be continuing, and
(b) Subsidiaries of the Borrower may merge with one another.
SECTION 6.12. USE OF PROCEEDS. The proceeds of the Loans will be used
by the Borrower (i) to refinance existing indebtedness of the Borrower, and (ii)
for general business and working capital purposes. No portion of the proceeds of
the Loans will be used by the Borrower (a) in connection with any tender offer
for, or other acquisition of, stock of any corporation with a view towards
obtaining control of such other corporation, (b) directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any Margin Stock, or (c) for any purpose in violation of any applicable law or
regulation.
SECTION 6.13. COMPLIANCE WITH LAWS PAYMENT OF TAXES. The Borrower will,
and will cause each of its Subsidiaries and each member of the Controlled Group
to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including but
not limited to PBGC), except where the necessity of such compliance is being
contested in good faith through appropriate proceedings. The Borrower will, and
will cause each of its Subsidiaries to, pay promptly when due all taxes,
assessments, governmental charges, claims for labor, supplies, rent and other
obligations which, if unpaid, might become a lien against the property of the
Borrower or any Subsidiary, except liabilities being contested in good faith and
against which, if reasonably requested by the Bank, the Borrower will set up
reserves reasonably satisfactory to the Bank.
SECTION 6.14. INSURANCE. The Borrower will maintain, and will cause
each of its Subsidiaries to maintain (either in the name of the Borrower or in
such Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business.
SECTION 6.15. CHANGE IN FISCAL YEAR. The Borrower will not change its
Fiscal Year without the consent of the Bank.
SECTION 6.16. MAINTENANCE OF PROPERTY. The Borrower shall, and shall
cause each Subsidiary to, maintain all of its properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
17
SECTION 6.17. ENVIRONMENTAL NOTICES. The Borrower shall furnish to the
Bank prompt written notice of all Environmental Liabilities, pending, or, to the
best knowledge of Borrower, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases at, on, in, under or in any way affecting the Properties or any
adjacent property (to the extent Borrower has actual knowledge with respect to
such adjacent property), and all facts, events, or conditions that could lead to
any of the foregoing.
SECTION 6.18. ENVIRONMENTAL MATTERS. The Borrower will not, and will
not permit any Third Party to, use, produce, manufacture, process, generate,
store, dispose of, manage at, or ship or transport to or from the Properties any
Hazardous Materials except for Hazardous Materials such as cleaning solvents,
pesticides and other similar materials used, produced, manufactured, processed,
generated, stored, disposed or managed in the ordinary course of business in
compliance with all applicable Environmental Requirements.
SECTION 6.19. ENVIRONMENTAL RELEASE. The Borrower agrees that upon the
occurrence of an Environmental Release it will act immediately to investigate
the extent of, and to take appropriate remedial action to eliminate, such
Environmental Release, whether or not ordered or otherwise directed to do so by
any Environmental Authority.
ARTICLE VII - DEFAULTS
SECTION 7.01. EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an Event of Default by the Borrower under
this Agreement:
(a) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within five
Domestic Business Days after such interest shall become due, or shall
fail to pay any fee or other amount payable hereunder within five
Domestic Business Days after such fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 6.03 through 6.12, inclusive; or
(c) the Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above), and such failure shall not be cured within
thirty days after written notice thereof has been given to the Borrower
by the Bank (or such longer period of time as is reasonably necessary
to cure such failure if such failure is not possible to cure within
such thirty (30) day period and the Borrower is making a good faith
diligent effort to cure, but in no event more than sixty (60) days
after such notice without the written consent of the Bank); or
(d) any representation, warranty, certification or statement
made by the Borrower in Article V or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made (or
deemed made); or
18
(e) the Borrower or Guarantor or any Subsidiary of the
Borrower or Guarantor shall fail to make any payment in respect of Debt
outstanding to the Bank when due or within any applicable grace period;
or
(f) any event or condition shall occur which results either
(i) in the acceleration of the maturity of recourse Debt outstanding of
the Borrower, the Guarantor or any Subsidiary of the Borrower or
Guarantor to any Person other than the Bank or (ii) the required
purchase of such recourse Debt by the Borrower (or its designee), the
Guarantor (or its designee) or such Subsidiary (or its designee) prior
to the scheduled maturity thereof;
(g) the Borrower and/or Guarantor shall default in any payment
in respect of or otherwise default with respect to non-recourse Debt in
the aggregate principal amount of $20,000,000 or more;
(h) a Change of Control shall occur;
(i) the Borrower, the Guarantor or any Subsidiary of the
Borrower or Guarantor shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take
any corporate action to authorize any of the foregoing; or
(j) an involuntary case or other proceeding shall be commenced
against the Borrower, the Guarantor, or any Subsidiary of the Borrower
or Guarantor seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period
of 90 days; or an order for relief shall be entered against the
Borrower, the Guarantor, or any Subsidiary of the Borrower or Guarantor
under the federal bankruptcy laws as now or hereafter in effect; or
(k) the Borrower or any member of the Controlled Group shall
fail to pay when due any material amount which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate
or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such
Plan or Plans to enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within 60 days thereafter; or
a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
19
(l) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000.00 (not covered by
insurance) shall be rendered against the Borrower, the Guarantor, or
any Subsidiary of the Borrower or Guarantor and such judgment or order
shall not be appealed, shall become final and shall continue
unsatisfied and unstayed for a period of 30 days; or
(m) a federal tax lien shall be filed against the Borrower or
Guarantor under Section 6323 of the Code or a lien of the PBGC shall be
filed against the Borrower or Guarantor under Section 4068 of ERISA and
in either case such lien shall remain undischarged for a period of 25
days after the date of filing; or
(n) the Guarantor shall fail to comply with the provisions of
the Guaranty Agreement or the Borrower shall fail to comply with the
provisions of the Escrow Agreement.
SECTION 7.02. REMEDIES ON DEFAULT. Upon the occurrence of an Event of
Default, the Bank, in addition to having the rights and remedies given it by
this Agreement, the Escrow Agent and the other Loan Documents may, by notice to
the Borrower, declare the Notes (together with accrued interest thereon) to be,
and the Notes and all outstanding Loans shall thereupon become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; provided that if any Event of
Default specified in clause' (i) or (j) above occurs with respect to the
Borrower or Guarantor, without any notice to the Borrower or any other act by
the Bank, the Notes and all outstanding Loans (together with accrued interest
thereon) and fees shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE VIII - MISCELLANEOUS
SECTION 8.01. NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party at its address
or facsimile number set forth below or such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the other party:
(a) If to the Borrower:
Summit Properties Partnership, L.P.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Mr. Xxxx Xxxxxx, Senior Vice President
Fax number: (000) 000-0000
(b) If to the Bank:
Wachovia Bank of North Carolina, N. A.
P. O. Box 31608
20
Charlotte, North Carolina 28231-6071
Attention: Xxxxx X. Xxxxxx, Senior Vice President
Fax number: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (ii) if given by any other
means, when delivered at the address specified in this Section.
SECTION 8.02. NO WAIVERS. No failure or delay by the Bank in exercising
any right, power or privilege hereunder or under the Notes or other Loan
Documents shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 8.03. EXPENSES: DOCUMENTARY TAXES. The Borrower shall pay (i)
all out-of-pocket expenses of the Bank, including reasonable fees and
disbursements of counsel for the Bank, in connection with the preparation of
this Agreement and the other Loan Documents, any waiver or consent hereunder or
any modification or amendment hereof or any Default hereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the Bank,
including reasonable fees and disbursements of counsel, in connection with such
Event of Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents. Reasonable fees and disbursements of counsel shall
mean actual fees and disbursements incurred by the Bank charged to it by counsel
at ordinary and customary rates and shall not be calculated on the basis of the
percentage of the outstanding balance of the Loans. The Borrower shall indemnify
the Bank against any transfer taxes, documentary taxes, assessments or charges
made by any governmental authority by reason of the execution and delivery of
this Agreement or the other Loan Documents.
SECTION 8.04. AMENDMENTS AND WAIVERS. Any provision of this Agreement,
the Notes or any other Loan Documents may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the Borrower and the
Bank.
SECTION 8.05. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement.
SECTION 8.06. CONFIDENTIALITY. The Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower,
confidential from any one other than persons employed or retained by the Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided, however, that nothing herein shall prevent
the Bank from disclosing such information (i) upon the order of any court or
administrative agency, (ii) upon the formal demand of any regulatory agency or
authority having jurisdiction over the Bank, (iii) which has been publicly
disclosed, (iv) to the extent reasonably required in connection with any
litigation to which the Bank or their respective Affiliates may be
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a party, (v) to the extent reasonably required in connection with the exercise
of any remedy hereunder, and (vi) to the Bank's legal counsel and independent
auditors. The Bank, however, shall use reasonable efforts to notify the Borrower
regarding any proposed disclosure pursuant to clauses (i), (ii) and (iv) of this
Section (unless, in the case of clause (iv), such litigation is between the
Borrower and the Bank) prior to such proposed disclosure so that the Borrower
shall have an opportunity to contest such proposed disclosure by proper means.
SECTION 8.07. INTEREST LIMITATION. Notwithstanding any other term of
this Agreement, the Notes or any other Loan Document, the maximum amount of
interest which may be charged to or collected from any person liable hereunder
or under the Notes by the Bank shall be absolutely limited to, and shall in no
event exceed, the maximum amount or interest which could lawfully be charged or
collected under applicable law (including, to the extent applicable, the
provisions of section 5197 of the Revised Statutes of the United States of
America, as amended, 12 U.S.C. ss.85, as amended), so that the maximum of all
amounts constituting interest under applicable law, howsoever computed, shall
never exceed as to any Person liable therefor such lawful maximum, and any term
of this Agreement, the Notes or any other Loan Document which could be construed
as providing for interest in excess of such lawful maximum shall be and hereby
is made expressly subject to and modified by the provisions of this paragraph.
SECTION 8.08. GOVERNING LAW. This Agreement and the Notes shall be
construed in accordance with and governed by the law of the State of North
Carolina. This Agreement and the Notes are intended to be effective as
instruments executed under seal.
SECTION 8.09. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 8.10. CONSENT TO JURISDICTION. The Borrower (a) submits to
personal jurisdiction in the State of North Carolina, the courts thereof and the
United States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (b) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of North Carolina for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (c) agrees that service of
process may be made upon it in the manner prescribed in Section 8.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Bank from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
SECTION 8.11. SEVERABILITY. If any provisions of this Agreement shall
be held invalid under any applicable laws, such invalidity shall not affect any
other provision of this Agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
SECTION 8.12. CAPTIONS. Captions in this Agreement are for the
convenience of reference only and shall not affect the meaning or interpretation
of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the year and day first above written.
BORROWER:
SUMMIT PROPERTIES PARTNERSHIP, L.P.
a Delaware Limited Partnership
By: Summit Properties Inc.
Sole General Partner
By: /s/ XXXXXXX X. XXXXXX (SEAL)
----------------------------
Xxxxxxx X. Xxxxxx,
Senior Vice President
BANK:
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By: /s/ XXXXX X. XXXXXX (SEAL)
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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