SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Agreement") is made
and entered into as of the 21st day of August, 1998, among COLONIAL REALTY
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Borrower"), COLONIAL
PROPERTIES TRUST, an Alabama trust ("CPT"), COLONIAL PROPERTIES HOLDING COMPANY,
INC., an Alabama corporation ("CPHC"; CPHC and CPT are collectively, known as
the "Guarantors"), SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking
association, AMSOUTH BANK, a state banking corporation, WACHOVIA BANK, N.A., a
national banking association, FIRST NATIONAL BANK OF COMMERCE, N.A., a national
banking association, XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association and PNC BANK, NATIONAL ASSOCIATION, a national banking association,
successor by merger to PNC Bank, Ohio, National Association (collectively, the
"Banks").
R E C I T A L S:
A. Borrower, Guarantors and Banks have entered into that certain Credit
Agreement dated July 10, 1997, as amended by that certain Amendment to Credit
Agreement dated July 10, 1998 (as so amended, the "Credit Agreement").
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Credit Agreement.
B. Borrower, Guarantors and Banks desire to amend the Credit Agreement
to add and amend certain definitions contained in 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. Article 1 of the Credit Agreement is hereby amended by deleting the
definitions of "GAV" and "Stabilized Properties"and by inserting in lieu thereof
the following definitions:
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"GAV" shall mean the sum of (without redundancy) (i) EBITDA from all
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) Corporate Recurring Income less corporate general and
administrative expenses, net of the imputed management fee included in the
definition of EBITDA, all capitalized at eighteen percent (18%), (iv) Gross Book
Value of Properties acquired during the applicable reporting period, (v) pro
rata share of Gross Book Value of properties acquired by Joint Ventures and
Unconsolidated Subsidiaries during the applicable reporting period and (vi)
recorded value of land and remaining tangible assets, as determined in
accordance with GAAP.
"Stabilized Properties" shall mean any Property which meets all of the
following criteria: (i) a certificate of occupancy has been issued for the
Property and remains in full force and effect, (ii) the Property has been at
least eighty-five percent (85%) occupancy level if multifamily, retail, or
office (based on actual leasable square footage at the property) for the most
immediately preceding three (3) consecutive months based on leases wherein the
tenants are paying at least the average monthly lease payments required by the
terms of such leases and such leases are free from default by either the
landlord or tenant thereunder, and (iii) there is no Lien on the Property.
However, if a historically Stabilized Property drops below the above listed
occupancy threshold level, such Property may again become classified as a
Stabilized Property after attaining a ninety percent (90%) occupancy level for a
monthly reporting period if such Property attains such ninety percent (90%)
occupancy level within three months of previously being classified as a
Stabilized Property. Once a Property is reclassified as a Stabilized Property,
then such Property shall remain classified as a Stabilized Property if it
satisfies items (i) and (iii) above and maintains at least eighty-five percent
(85%) occupancy level for each month thereafter.
2. Article 1 of the Credit Agreement is hereby amended by adding the
following definition:
"Colonial Investments" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person, loan or advance to such Person or making of
a time deposit with such Person.
"Joint Venture(s)" means any investment by any Credit Parties in a
corporation, limited liability company, limited liability partnership, tenancy
in common, and other similar entities.
3. Credit Agreement is hereby amended to add the following Article 6A:
Article 6A. Colonial Investments Covenant
Colonial Investments shall not exceed fifteen percent (15%) of GAV
("Investments Covenant"). However, if the Borrower receives a BBB/Baa3 rating
from a Qualified Rating Agency, then the Investments Covenant shall be increased
to twenty percent (20%).
4. Article 7. Negative Covenants is hereby amended to add the following
sections to the Agreement:
7.11. Loans or Advances. No Credit Party shall make loans or advances
to any Person without the prior written consent of the Lenders except
as permitted herein and except:
(1) loans or advance to employees and directors not exceeding $16,000,000
in the aggregate principal amount outstanding at any time;
(2) deposits required by government agencies or public utilities;
(3) loans or advances from the Borrower to any Guarantor or from any
Guarantor to the Borrower or another Guarantor; and/or
(4) other loans and advances by any Credit Party to any Person which (x) are
evidenced by notes (and, if requested by the Agent, acting at the direction
of the Required Lenders, with such notes, together with any related
mortgage, have been assigned to and pledged with the Agent, payment for the
benefit of itself and the Lenders, as security for the payment of all
obligations of any Credit Party to the Agent and the Lenders hereunder) and
(y) are in any amount which, together with Investments permitted by clause
(vi) of Section 7.12, do not exceed fifteen percent (15%) of Gross Asset
Value as of the end of the most recent Fiscal Quarter. However, if the
Borrower receives a BBB/Baa 3 rating from a Qualified Rating Agency, then
the foregoing percentage shall be increased from fifteen percent (15%) to
twenty percent (20%).
7.12. Investments. No Credit Party shall make Colonial Investments
after the Closing Date in any Person except as permitted by Section
7.11 and except Investments in:
(1) direct obligations of the United States Government maturing within one
(1) year;
(2) certificates of deposit issued by a commercial bank whose credit is
satisfactory to the Agent;
(3) commercial paper rated A1 or the equivalent thereof
by S&P or P1 or the equivalent thereof by Xxxxx'x and
in either case maturing withing six (6) months after
the date of acquisition;
(4) tender bonds the payment of the principal of and
interest on which is fully supported by a letter of
credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the
equivalent thereof by S&P and Aa or the equivalent
thereof by Xxxxx'x;
(5) Colonial Investments consisting of the acquisition of
all or substantially all of the assets or stock or
another Person permitted by Section 7.2; and/or
(6) other Colonial Investments by Credit Parties in an
amount which together with loans and advances
permitted by clause (iv) of Section 7.11, do not
exceed fifteen percent (15%) of Gross Asset Value as
of the end of the most recent Fiscal Quarter.
However, if the Borrower receives a BBB/Baa 3 rating
from a Qualified Rating Agency, then the foregoing
percentage shall be increased from fifteen percent
(15%) to twenty percent (20%).
5. Borrowers represent and warrant that all representations and
warranties set forth in Article 5 of the Credit Agreement, as amended hereby,
are true and correct on the date hereof, and that, to the best of their
knowledge, no Default or Event of Default has occurred or exists.
6. No right of any Bank with respect to the Loan Documents is or will
be in any manner released, destroyed, diminished, or otherwise adversely
affected by this Agreement.
7. All references in the Loan Documents to the Credit Agreement shall
be deemed to refer, from and after the date hereof, to the Credit Agreement as
amended hereby, and as the same may hereafter be modified or amended.
8. Except as hereby expressly modified and amended, the Credit
Agreement shall remain in full force and effect, and the Credit Agreement, as
amended, is hereby ratified and affirmed in all respects. Borrowers confirm
that, to the best of their knowledge, they have no defenses or setoffs with
respect to their obligations pursuant to the Credit Agreement, as amended
hereby.
9. This Agreement shall inure to the benefit of and be binding upon the
parties hereto, and their respective successors and assigns.
10. 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.
11. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND GUARANTORS
HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO TRIAL BY JURY ON ANY CLAIM,
COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING OUT OF OR IN
ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT OR THE LOAN DOCUMENTS, OR (II)
IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY
DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE LOAN
DOCUMENTS OR IN CONNECTION WITH THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED
THEREBY OR THE EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL
OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. BORROWER AND GUARANTORS 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 GUARANTORS
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, GUARANTORS, 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 HOLDING COMPANY, INC., an Alabama
corporation,
Its General partner
By: /s/ Xxxxxx X. Xxxxxx Xx.
Its: Chief Financial Officer
GUARANTORS:
COLONIAL PROPERTIES TRUST,
an Alabama trust
By: /s/ Xxxxxx X. Xxxxxx Xx.
Its: Chief Financial Officer
COLONIAL PROPERTIES HOLDING COMPANY, INC., an Alabama corporation
By: /s/ Xxxxxx X. Xxxxxx Xx.
Its: Chief Financial Officer
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
LENDERS:
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Group Vice President
AMSOUTH BANK,
a state banking corporation
By:
Its
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association
By:
Its
WACHOVIA BANK, N.A., a national banking association
By:
Its
(Signatures Continue)
Signature Page to Colonial Realty
Limited Partnership Credit Agreement
PNC BANK, NATIONAL ASSOCIATION,
a national banking association,
successor by merger to PNC Bank, Ohio, National Association
By:
Its
FIRST NATIONAL BANK OF COMMERCE, N.A.,
a national banking association
By:
Its
AGENT:
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Group Vice President
