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EXHIBIT 10.15.02
COMPASS BANK
LOAN AGREEMENT
This Loan Agreement (the "Agreement") dated as of June 1, 1999, by and
between COMPASS BANK ("Bank") and XXXXXXX PROPERTIES RESIDENTIAL, L.P., a
Georgia limited partnership (the "Borrower").
In consideration of the Loan described below and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, Bank
and Borrower agree as follows:
1. DEFINITIONS AND REFERENCE TERMS. In addition to any other terms defined
herein, the following terms shall have the meaning set forth with
respect thereto:
A. LOAN. Any loan described in Section 2 hereof and any
subsequent loan which states that it is subject to this Loan
Agreement.
B. LOAN DOCUMENTS. Loan Documents means this Loan Agreement and
any and all promissory notes executed by Borrower in favor of
Bank and all other documents, instruments, guarantees,
certificates and agreements executed and/or delivered by
Borrower, any guarantor or third party in connection with any
Loan.
C. ACCOUNTING TERMS. All accounting terms not specifically
defined or specified herein shall have the meanings generally
attributed to such terms under generally accepted accounting
principles ("GAAP"), as in effect from time to time,
consistently applied, with respect to the financial statements
referenced in Section 3.F. hereof.
2. LOAN. Bank hereby agrees to make (or has made) one or more loans to
Borrower in the aggregate principal face amount of $2,000,000. The
obligation to repay the loans is evidenced by a promissory note or
notes dated as of June 1, 1999 (the promissory note or notes together
with any and all renewals, extensions or rearrangements thereof being
hereafter collectively referred to as the "Note") having a maturity
date, repayment terms and interest rate as set forth in the Note. The
Loan provides for a revolving line of credit (the "Line") under which
Borrower may from time to time, borrow, repay and re-borrow funds.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Bank as follows:
A. GOOD STANDING. Borrower is a limited partnership, duly organized,
validly existing and in good standing under the laws of Georgia
and has the power and authority to own its property and to carry
on its business in each jurisdiction in which Borrower does
business.
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B. AUTHORITY AND COMPLIANCE. Borrower has full power and authority to
execute and deliver the Loan Documents and to incur and perform
the obligations provided for therein, all of which have been duly
authorized by all proper and necessary action of the appropriate
governing body of Borrower. No consent or approval of any public
authority or other third party is required as a condition to the
validity of any Loan Document, and Borrower, to Borrower's
knowledge, is in compliance with all laws and regulatory
requirements to which it is subject.
C. BINDING AGREEMENT. This Agreement and the other Loan Documents
executed by Borrower constitute valid and legally binding
obligations of Borrower, enforceable in accordance with their
terms.
D. LITIGATION. There is no proceeding involving Borrower pending or,
to the knowledge of Borrower, threatened before any court or
governmental authority, agency or arbitration authority, which
would have a material adverse affect on Borrower, except as
disclosed to Bank in writing and acknowledged by Bank prior to the
date of this Agreement.
E. NO CONFLICTING AGREEMENTS. There is no charter, bylaw, stock
provision, partnership agreement or other document pertaining to
the organization, power or authority of Borrower and no provision
of any existing agreement, mortgage, indenture or contract binding
on Borrower or affecting its property, which would have a
materially adverse effect on the execution, delivery or carrying
out of the terms of this Agreement and the other Loan Documents.
F. FINANCIAL STATEMENTS. The financial statements of Borrower
heretofore delivered to Bank have been prepared in accordance with
GAAP applied on a consistent basis throughout the period involved
and fairly present Borrower's financial condition as of the date
or dates thereof. All factual information furnished by Borrower to
Bank in connection with this Agreement and the other Loan
Documents is and will be accurate and complete on the date as of
which such information is delivered to Bank and is not and will
not be incomplete by the omission of any material fact necessary
to make such information not misleading.
G. CONTINUATION OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made under this Agreement shall be
deemed to be made at and as of the date hereof and at and as of
the date of any advance under any Loan.
4. AFFIRMATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will,
unless Bank consents otherwise in writing (and without limiting any
requirement of any other Loan Document):
A. FINANCIAL CONDITION. Maintain it's financial condition
substantially as it exists as of the date of this Agreement.
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B. FINANCIAL STATEMENTS AND OTHER INFORMATION. Maintain a system of
accounting satisfactory to Bank and in accordance with GAAP applied on
a consistent basis throughout the period involved, permit Bank's
officers or authorized representatives to visit and inspect Borrower's
books of account and other records at such reasonable times and as
often as Bank may desire. Unless written notice of another location is
given to Bank, Borrower's books and records will be located at
Borrower's chief executive office set forth above. All financial
statements called for below shall be prepared in form and content
acceptable to Bank and by independent certified public accountants.
C. EXISTENCE AND COMPLIANCE. Maintain its existence, good standing and
qualification to do business, where required and comply with all laws,
regulations and governmental requirements including, without
limitation, environmental laws applicable to it or to any of its
property, business operations and transactions.
D. ADVERSE CONDITIONS OR EVENTS. Promptly advise Bank in writing of (i)
any condition, event or act which comes to its attention that would
materially adversely affect Borrower's financial condition or
operations or Bank's rights under the Loan Documents, (ii) any
litigation filed by or against Borrower that would have a material
adverse affect, and (iii) any event that has occurred that would
constitute an event of default under any Loan Documents.
E. COMPLIANCE STATEMENT. Borrower shall provide to Bank a Covenant
Compliance Statement, with calculations, semi-annually. Covenants shall
be as follows:
1. Universal Default: A default under any debt obligation owing
to Bank of the Borrower or guarantor shall be a default under
this facility.
2. Debt Service coverage shall be 1.75X or greater at all times
calculated as:
Income from Operations + Depreciation
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Interest Expense
3. Leverage shall be 70% or less measured as follows:
Mortgage Notes Payable
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Net Real Estate Assets + Accumulated Depreciation
5. DEFAULT. Borrower shall be in default under this Agreement and under
each of the other Loan Documents if it shall default in the payment of
any amounts due and owing under the Loan or should it fail to timely
and properly observe, keep or perform any term, covenant, agreement or
condition in any Loan Document or in any promissory note, or other
contract securing or evidencing payment of any indebtedness of Borrower
to Bank or any affiliate or subsidiary of Bank.
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6. REMEDIES UPON DEFAULT. If an event of default shall occur, Bank shall
have all rights, powers and remedies available under each of the Loan
Documents as well as all rights and remedies available at law or in
equity.
7. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to Bank
immediately upon demand the full amount of all costs and expenses,
including actual attorneys' fees, incurred based on the attorney's
normal hourly rate and the number of hours worked and not the
attorneys' fees statutorily defined in O.C.G.A. ss.13-1-11 incurred by
Bank in connection with (a) negotiation and preparation of this
Agreement and each of the Loan Documents, and (b) all other costs and
attorneys' fees incurred by Bank for which Borrower is obligated to
reimburse Bank in accordance with the terms of the Loan Documents.
8. MISCELLANEOUS. Borrower and Bank further covenant and agree as follows,
without limiting any requirement of any other Loan Document:
A. CUMULATIVE RIGHTS AND NO WAIVER. Each and every right granted to Bank
under any Loan Document, or allowed it by law or equity shall be
cumulative of each other and may be exercised in addition to any and
all other rights of Bank, and no delay in exercising any right shall
operate as a waiver thereof, nor shall any single or partial exercise
by Bank of any right preclude any other or future exercise thereof or
the exercise of any other right. Borrower expressly waives any
presentment, demand, protest or other notice of any kind, including but
not limited to notice of intent to accelerate and notice of
acceleration. No notice to or demand on Borrower in any case shall, of
itself, entitle Borrower to any other or future notice or demand in
similar or other circumstances.
B. APPLICABLE LAW. This Loan Agreement and the rights and obligations of
the parties hereunder shall be governed by and interpreted in
accordance with the laws of Georgia and applicable United States
federal law.
C. AMENDMENT. No modification, consent, amendment or waiver of any
provision of this Loan Agreement, nor consent to any departure by
Borrower therefrom, shall be effective unless the same shall be in
writing and signed by an officer of Bank, and then shall be effective
only in the specified instance and for the purpose for which given.
This Loan Agreement is binding upon Borrower, its successors and
assigns, and inures to the benefit of Bank, its successors and assigns;
however, no assignment or other transfer of Borrower's rights or
obligations hereunder shall be made or be effective without Bank's
prior written consent, nor shall it relieve Borrower of any obligations
hereunder. There is no third party beneficiary of this Loan Agreement.
D. DOCUMENTS. All documents, certificates and other items required under
this Loan Agreement to be executed and/or delivered to Bank shall be in
form and content satisfactory to the parties and their counsel.
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E. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision
of this Loan Agreement shall not affect the enforceability or validity
of any other provision herein and the invalidity or unenforceability of
any provision of any Loan Document to any person or circumstance shall
not affect the enforceability or validity of such provision as it may
apply to other persons or circumstances.
F. SURVIVABILITY. All covenants, agreements, representations and
warranties made herein or in the other Loan Documents shall survive the
making of the Loan and shall continue in full force and effect so long
as the Loan is outstanding or the obligation of the Bank to make any
advances under the Line shall not have expired.
9. NO ORAL AGREEMENT. This written Agreement and the other Loan Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of
the date first above written.
BANK: BORROWER:
COMPASS BANK XXXXXXX PROPERTIES RESIDENTIAL,
L.P., a Georgia limited partnership
By: XXXXXXX REALTY INVESTORS,
INC., its general partner
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Title: President
[CORPORATE SEAL]
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