Exhibit 10.30
CREDIT AGREEMENT
among
COLONIAL REALTY LIMITED PARTNERSHIP
as Borrower
and
COLONIAL PROPERTIES TRUST
as Guarantor
and
SOUTHTRUST BANK
as Managing Agent
and
THE LENDERS IDENTIFIED HEREIN
WACHOVIA BANK, NATIONAL ASSOCIATION
As Administrative Agent
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Documentation Agent
and
AMSOUTH BANK
as Syndication Agent
and
PNC BANK, NATIONAL ASSOCIATION
as Co-Agent
DATED AS OF NOVEMBER 22, 2002
<PAGE>
TABLE OF CONTENTS
Table of Contents
Page
Article 1
DEFINITIONS.......................................................1
Article 2 REVOLVING
LOAN...................................................15
---------------
2.1
Disbursement of Revolving Advances.......................15
----------------------------------
2.2
The Revolving Notes......................................16
-------------------
2.3
Payments.................................................16
--------
2.4
Interest Rate............................................16
-------------
2.5
Prepayment...............................................17
----------
2.6
Fees.....................................................17
----
2.7
Termination by Borrower of the Revolving Loan............17
---------------------------------------------
2.8
Procedure for Revolving Advances Under Revolving Loan....18
-----------------------------------------------------
Article 3 LETTER OF CREDIT
SUBFACILITY.....................................20
-----------------------------
3.1
Issuance and Maintenance of Letters of Credit............20
---------------------------------------------
3.2
Reimbursement Obligation of Borrower.....................21
------------------------------------
3.3
Commissions and Fees.....................................21
--------------------
3.4
Reimbursement Obligation Absolute........................22
---------------------------------
3.5
Surrender of Letter of Credit............................22
-----------------------------
Article 4 COMPETITIVE BID
SUBFACILITY......................................22
----------------------------
4.1
Competitive Bid Option...................................22
----------------------
4.2
Competitive Bid Quote Request............................23
-----------------------------
4.3
Invitation for Competitive Bid Quotes....................23
-------------------------------------
4.4
Submission and Contents of Competitive Bid Quotes........23
-------------------------------------------------
4.5
Notice to Borrower.......................................24
------------------
4.6
Acceptance and Notice by Borrower........................25
---------------------------------
4.7
Interest Rate and Payments...............................25
--------------------------
4.8
Prepayment...............................................25
----------
Article 5 SWING
LOAN.......................................................25
-----------
5.1
Disbursement of Swing Loan Advances......................25
-----------------------------------
5.2
The Swing Loan Note......................................26
-------------------
5.3
Payments.................................................26
--------
5.4
Interest Rate............................................26
-------------
5.5
Prepayment...............................................26
----------
5.6
Termination by Borrower of the Swing Loan................26
-----------------------------------------
5.7
Procedure for Swing Loan Advances........................26
---------------------------------
Article 6 GENERAL PROVISIONS RELATING
TO...................................27
-------------------------------
ALL LOANS AND LETTERS OF
CREDIT............................................27
-------------------------------
6.1
Interest Calculation; Late Charge; Default Rate..........27
-----------------------------------------------
6.2
Use of Proceeds..........................................28
---------------
6.3
Place, Manner, Time and Extension of Payment.............28
--------------------------------------------
6.4
Obligation to Pay Loans Absolute.........................28
--------------------------------
6.5
Application of Payments..................................28
-----------------------
6.6
Capital Adequacy.........................................30
----------------
6.7
Inability to Determine Interest Rate.....................31
------------------------------------
6.8
Increased Costs..........................................31
---------------
6.9
Continuation and Conversion Elections....................31
-------------------------------------
6.10
Funding Losses; Prepayment...............................32
--------------------------
6.11
Expansion of Facility....................................33
---------------------
6.12
Term.....................................................33
----
6.13
Miscellaneous............................................34
-------------
6.14
Discontinuance of Advances...............................34
--------------------------
Article 7
GUARANTY.........................................................34
---------
7.1
Guaranty of Payment......................................34
-------------------
7.2
Obligations Unconditional................................35
-------------------------
7.3
Modifications............................................36
-------------
7.4
Waiver of
Rights.........................................36
----------------
7.5
Reinstatement............................................36
-------------
7.6
Remedies.................................................36
--------
Article 8 CONDITIONS PRECEDENT TO MAKING
ADVANCES, SWING LOAN
ADVANCES,
OR ISSUING LETTERS OF
CREDIT.....................................37
-----------------------------
Article 9 REPRESENTATIONS AND
WARRANTIES...................................39
-------------------------------
9.1
Existence, Power and Qualification.......................39
----------------------------------
9.2
Authority to Borrow Hereunder............................39
------------------------------
9.3
Due Execution and Enforceability.........................39
--------------------------------
9.4
No Conflict..............................................40
-----------
9.5
Material Claims..........................................40
---------------
9.6
Financial Statements Accurate............................40
-----------------------------
9.7
No Defaults or Restrictions..............................40
---------------------------
9.8
Payment of
Taxes.........................................40
----------------
9.9
Necessary Permits, Etc...................................40
-----------------------
9.10
Regulation U.............................................41
------------
9.11
Title to Assets..........................................41
---------------
9.12
Compliance with Applicable Environmental Law.............41
--------------------------------------------
9.13
Disclosure...............................................42
----------
9.14
Insolvency...............................................42
----------
9.15
ERISA....................................................42
-----
9.16
Existing Debt............................................42
-------------
Article 10 AFFIRMATIVE
COVENANTS...........................................42
----------------------
10.1
Payment of Loans and Reimbursement Obligation; Maintenance
of Maximum Borrowing Base................................42
-------------------------
10.2
Insurance................................................43
---------
10.3
Maintenance of Existence.................................43
------------------------
10.4
Compliance with Laws; Payment of Claims..................43
---------------------------------------
10.5
Accrual and Payment of Taxes.............................43
----------------------------
10.6
Maintenance of Properties................................43
-------------------------
10.7
Other Indebtedness.......................................43
------------------
10.8
Examination and Visitation By Lenders....................44
--------------------------------------
10.9
Accounting Records.......................................44
------------------
10.10
Maintenance of Permits, Etc..............................44
----------------------------
10.11
Conduct Business.........................................44
----------------
10.12
Correction of Defect, Etc................................44
--------------------------
10.13
Financial and Other Information..........................44
-------------------------------
10.14
Compliance Certificate...................................45
----------------------
10.15
Employee Plan Reports and Notices........................46
---------------------------------
10.16
Ownership................................................46
---------
10.17
REIT Status..............................................46
-----------
10.18
Ratings..................................................46
-------
10.19
Registration of Stock of CLP.............................46
----------------------------
10.20
Key Officers.............................................46
------------
10.21
Environmental Laws.......................................46
------------------
10.22
Newly formed Significant Subsidiaries of CLP as
Guarantors...............................................48
----------
Article 11 NEGATIVE
COVENANTS..............................................48
-------------------
11.1
Debt.....................................................49
-----
11.2
Merger, Consolidation, Etc...............................49
---------------------------
11.3
Sale or Disposition of Substantially All Assets..........49
-----------------------------------------------
11.4
Other Disposition of Assets..............................49
---------------------------
11.5
ERISA Funding and Termination............................49
-----------------------------
11.6
Transactions with Affiliates.............................49
----------------------------
11.7
Distributions............................................50
-------------
11.8
Financial Covenants:.....................................50
-------------------
11.9
Change in Business.......................................51
------------------
11.10
Changes in Accounting; Fiscal Year.......................51
----------------------------------
11.11
Loans or Advances........................................51
------------------
11.12
Investments..............................................51
-----------
11.13
Change in Management.....................................52
--------------------
Article 12 EVENTS OF DEFAULT AND
REMEDIES..................................52
-------------------------------
12.1
Events of Default........................................52
-----------------
12.2
Remedies.................................................54
--------
Article 13 AGENCY
PROVISIONS...............................................55
------------------
13.1
Appointment..............................................55
-----------
13.2
Delegation of Duties.....................................55
--------------------
13.3
Exculpatory Provisions...................................55
----------------------
13.4
Reliance on Communications...............................56
--------------------------
13.5
Notice of Default; Default by Credit Parties.............56
--------------------------------------------
13.6
Non-Reliance on Agent and Other Lenders..................57
---------------------------------------
13.7
Indemnification..........................................58
---------------
13.8
Agent in Its Individual Capacity.........................58
--------------------------------
13.9
Successor Agent..........................................58
---------------
13.10
Reimbursement of Expenses................................59
-------------------------
13.11
Resignation or Removal of Agent..........................59
-------------------------------
Article 14 PARTICIPATIONS, ASSIGNMENTS, AND
SETOFF.........................59
----------------------------------------
14.1
Participations...........................................59
--------------
14.2
Assignment...............................................60
----------
14.3
Right to Purchase........................................62
-----------------
14.4
Setoff...................................................62
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Article 15 GENERAL
PROVISIONS..............................................63
-------------------
15.1
Notices..................................................63
-------
15.2
Amendments, Waiver, and Consents.........................63
--------------------------------
15.3
Defaulting Lender........................................64
-----------------
15.4
Consent of Lenders.......................................64
------------------
15.5
Other Loans by Lenders to Credit Parties.................64
----------------------------------------
15.6
Time.....................................................65
----
15.7
No Control By Lenders....................................65
---------------------
15.8
No Waiver By Lenders, Etc................................65
--------------------------
15.9
Lenders'
Expenses........................................65
-----------------
15.10
GAAP.....................................................66
----
15.11
Number and Gender........................................66
-----------------
15.12
Headings.................................................66
--------
15.13
Survival of Covenants, Etc...............................66
---------------------------
15.14
Successors and Assigns...................................66
----------------------
15.15
Severability of Provisions...............................66
--------------------------
15.16
Entire Agreement, Counterparts...........................66
------------------------------
15.17
Trustees Not Liable for Obligations of CLP...............67
------------------------------------------
15.18
Certain Provisions.......................................67
------------------
15.19
EUPP Liability...........................................67
--------------
15.20
Termination of Prior Credit Agreement....................67
-------------------------------------
15.21
Controlling Law; Consent to Venue........................67
---------------------------------
15.22
Waiver of Jury Trial.....................................68
--------------------
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") dated as of November 22,
2002,
is among COLONIAL REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership
("Borrower" or "CRLP"); COLONIAL PROPERTIES
TRUST, an Alabama trust ("CLP"), the
Lenders (as defined herein), and SOUTHTRUST
BANK, an Alabama banking corporation
("SouthTrust"), as Agent for the
Lenders.
AGREEMENT:
NOW, THEREFORE, the parties agree as follows:
Article 1.........
DEFINITIONS
In addition to the terms defined in the introductory paragraph,
the
following terms shall have the following
respective meanings:
"Adjusted London Interbank Offered Rate" means a rate per
annum,
applicable to any Interest Period, equal to
the quotient obtained (rounded
upwards, if necessary, to the next higher
1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate
for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage
(Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as
of the effective date of any change in
the Euro-Dollar Reserve Percentage).
"Administrative Agent" shall mean Wachovia Bank, National
Association
The title of Administrative Agent shall be
in name only.
"Advance" means a Revolving Advance or a Competitive Bid Advance,
as
the case may be.
"Affiliate" means any Person which, directly or indirectly,
controls,
or is controlled by, or is under common
control with, another Person. For
purposes of this definition, "control"
(including, with correlative meanings,
the terms "controlled by" and "under common
control with"), as used with any
person means the possession, directly or
indirectly, of the power to direct or
cause the direction of the management and
policies of such Person whether
through the ownership of voting securities
or by contract or otherwise.
"Agent" means SouthTrust (or any successor thereto), or any
successor
agent appointed pursuant to Section 13.9
Notwithstanding the fact that other
Lenders may in some limited capacity serve
as a type of agent for this
Agreement, the term "Agent" as used herein
shall refer solely to SouthTrust.
"Agreement" or "Credit Agreement" means this Agreement, as the same
may
hereafter be modified or amended.
"Anniversary Date" means each anniversary of the Closing Date.
"Applicable Environmental Law" means any statutory law or case
law
pertaining to health or the environment, or
petroleum products, or oil, or
hazardous substances, including without
limitation the Comprehensive
Environmental Response, Compensation and
Liability Act of 1980, as codified at
42 U.S.C. ss. 9601 et. seq.; the Resource
Conservation and Recovery Act of 1976,
as amended, as codified at 42 U.S.C. ss.
6901 et seq.; the Superfund Amendments
and Reauthorization Act of 1986, as
codified at 42 U.S.C. ss. 9671, et seq.; and
any state or local law, regulation or
ordinance pertaining to such matters.
"Base Rate" means the rate of interest designated by SouthTrust
periodically as its Base Rate. The Base
Rate is not necessarily the lowest rate
charged by SouthTrust.
"Base Rate Advance" means an advance of a Base Rate Loan.
"Base Rate Loan" means a Loan which bears or is to bear interest at
a
rate based upon the Base Rate, and to be
made as a Base Rate Loan pursuant to
the applicable Notice of Borrowing or
Notice of Continuation or Conversion.
"Borrowing Date" means the date an Advance is to be disbursed
hereunder.
"Capitalization Rate" means 9.00% for multifamily Properties, 9.50%
for
strip shopping centers Properties, 8.50%
for all enclosed shopping mall
Properties and 9.50% for office complex
Properties, as such rates may be
adjusted by Lenders on each anniversary of
the Closing Date based upon then
current market conditions. Agent shall give
Borrower prompt written notice of
any such adjustments.
"Cash Management Agreements" means that certain Cash Management
Service
Agreement dated November 16, 1994, between
Borrower and SouthTrust and exhibits
thereto providing for Automatic Loan
Adjustment Service, Account Reconcilement
Service, Controlled Disbursement Service,
SouthLink Service, Zero Balance
Account Service, and Automated Clearing
House Service, and any agreement given
in renewal of, substitution for, or as a
supplement to, any of the foregoing, or
any agreement entered into by Borrower
relating to its cash management
arrangements with SouthTrust.
"Closing Date" means the date of this Agreement.
"Co-Agent" shall mean PNC Bank, National Association. The title
of
Co-Agent shall be in name only.
"Colonial Investments" means the amount of any investment by any
Credit
Party in any unconsolidated 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.
"Commitment Period" means the period of time during which Lenders
shall
be committed to make Advances to Borrower
and SouthTrust shall be obligated to
make Swing Loan Advances to Borrower, and
shall be from the Closing Date until
the Commitment Termination Date.
"Commitment Termination Date" means the first to occur of (i) the
date
that Lenders, by reason of an Event of
Default, suspend the making of further
Advances, or SouthTrust, by reason of Event
of Default, suspends the making of
Swing Loan Advances, (ii) the Maturity Date
(or if extended, then the Maturity
Extension Date), or (iii) the date that the
Revolving Loan is terminated by
Borrower as provided in Section 2.7.
hereof.
"Competitive Bid Advance" means an advance by a Lender pursuant
to
Article 4.
"Competitive Bid Loan" means a loan made by some or all of the
Lenders
pursuant to Article 4 hereof, together with
accrued interest thereon and other
agreed charges as shall be outstanding at
any given time, which shall be due and
owing on or before the Stated Maturity
Date.
"Competitive Bid Note" means a promissory note in substantially
the
form of Exhibit A attached hereto, with
appropriate insertions, evidencing a
Competitive Bid Loan, duly executed and
delivered to Agent by Borrower for the
account of a Lender and payable to the
order of such Lender, together with any
renewals, extensions, modifications, or
amendments to such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote in
substantially
the form of Exhibit B attached hereto,
completed and delivered by a Lender to
Agent in accordance with Section 4.2.
"Competitive Bid Quote Request" means Competitive Bid Quote Request
in
substantially the form of Exhibit C
attached hereto, completed and delivered by
Borrower to Agent in accordance with
Section 4.2.
"Compliance Certificate" means the certificate in the form of
Exhibit E
hereto completed and delivered by Credit
Parties to Agent in accordance with
Section 10.14.
"Construction in Process" means (i) any Property which is in
the
process of being developed but is not
classified as a Stabilized Property or
Non-Stabilized Property and (ii) the
redevelopment costs associated with any
Property, which in the case of either (i)
or (ii) is calculated on a
consolidated basis for the Borrower and the
Guarantors and which is the
Construction in Process as shown from time
to time on the books and records of
the Borrower and the Guarantors, maintained
in accordance with GAAP.
"Corporate Recurring Income" means recurring income received by one
or
more Subsidiaries of any of the Credit
Parties for sales commissions, leasing
fees, and management fees relating to any
Property not wholly owned by a Credit
Party.
"Credit Documents" means collectively this Agreement, the Notes,
the
Letters of Credit, the Letters of Credit
Agreements, any guaranty agreement
provided pursuant to Section 7.1, and any
other documents or instruments now or
hereafter executed by Borrower or others
evidencing, securing, or relating to
the Loans or the Letters of Credit.
"Credit Parties"
means, collectively, the Borrower and Guarantors.
"Credit Party Obligations" means all principal, interest, fees,
charges, expenses, attorneys' fees and
expenses and other indebtedness and
obligations of the Credit Parties to
SouthTrust, the Lenders and the Agent,
whenever arising, under this Credit
Agreement, the Notes, or any of the other
Credit Documents, as any of the same may
hereafter be amended or extended.
"Debt" means the total indebtedness of Credit Parties, determined
in
accordance with GAAP.
"Debt Rating" has the meaning set forth herein in the chart in
Section
2.4.
"Debt Service" means the sum of the following amounts for the
immediately preceding fiscal quarter on an
annualized basis: (i) Interest
Expense, (ii) debt amortization excluding
balloon payments (including accruals
of debt amortization to the extent not paid
on a monthly or quarterly basis and
Credit Parties' pro-rata share of debt
amortization from Unconsolidated
Subsidiaries) and (iii) capital
expenditures in an amount equal to five percent
(5%) of Funds From Operations, plus Credit
Parties' amortized leasing
commissions and tenant improvements and
Credit Parties' pro-rata share of
amortized leasing commissions and tenant
improvements from Unconsolidated
Subsidiaries.
"Default" means any event which will constitute an Event of
Default
with the lapse of time, giving of notice or
both.
"Default Rate" means a per annum rate of interest equal to two
percent
(2%) in excess of the Base Rate.
"Defaulting Lender" means, at any time, any Lender that, (a) has
failed
to pay to Agent or any Lender its Revolving
Commitment Percentage of any Advance
made pursuant to the terms of this Credit
Agreement or any of the other Credit
Documents (but only for so long as such
amount has not been repaid) or any
expenses or other amounts from time to time
due to Agent by such Lender pursuant
to this Agreement, or (b) has been deemed
insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a
receiver, trustee, or similar
official.
"Documentation Agent" shall mean Wells Fargo Bank, National
Association
("Wells Fargo"). The title of Documentation
Agent shall be in name only.
"Domestic Business Day" means any day except Saturday, Sunday or
other
day on which commercial banks in Alabama
are authorized by law to close.
"EBITDA" means the sum of property net operating income (as
defined
herein) for all Property types of the
Credit Parties before extraordinary items
(including gains and losses from debt
restructuring and sales of Properties),
equity in earnings from Unconsolidated
Subsidiaries and minority interest in
earnings. For purposes hereof, property net
operating income shall be defined as
the sum of the net operating income
from:
(a) office Properties, multifamily
Properties, and strip center Properties,
calculated using the immediately preceding
fiscal quarter multiplied by four
(4);
(b) enclosed mall Properties which have not
converted from Construction in
Process in the applicable period,
calculated using the most immediately
preceding four (4) fiscal quarters;
(c) enclosed mall Properties which have
converted from Construction in Process
in the applicable period, calculated using
the average of the net operating
income for each of the four fiscal quarters
beginning in the first fiscal
quarter after conversion up to the fourth
fiscal quarter after conversion, and
multiplied by four, and
(d) Credit Parties' pro-rata share of net
operating income from Unconsolidated
Subsidiaries using the same calculations as
outlined in (a), (b) and (c) above
for each Property type.
For purposes hereof, property net operating income shall
exclude
Interest Expense, depreciation,
amortization and income tax expense, but shall
include (i) accruals of those expenses,
(including but not limited to, insurance
and property taxes) to the extent such
expenses are not paid on a monthly or
quarterly basis, (ii) an imputed management
fee expense for all Properties equal
to three percent (3%) of Effective Gross
Income and (iii) an imputed reserve of
$200 per unit per annum for multifamily
Properties and of $0.20 per square foot
per annum for all retail and office
properties. Except as set forth above, the
calculation to determine EBITDA shall be
prepared in accordance with GAAP.
"Effective Gross Income" means all collected rental income from
all
Properties, plus other Corporate Recurring
Income.
"Employee Plan" means any plan subject to Title IV of ERISA and
maintained in whole or in part for
employees of Credit Parties.
"ERISA" means the Employee Retirement Income Security Act of
1974,
together with all amendments from time to
time thereto, including any rules or
regulations promulgated thereunder.
"EUPP Liability" has the meaning set forth in Section 15.19
hereof.
"Euro-Dollar Advance" means an advance of a Euro-Dollar Loan.
"Euro-Dollar Business Day" means any Domestic Business Day on
which
dealings in Dollar deposits are carried out
in the London interbank market.
"Euro-Dollar Loan" means a Loan which bears or is to bear interest
at a
rate based upon the Adjusted London
Interbank Offered Rate, and to be made as a
Euro-dollar Loan pursuant to the applicable
Notice of Borrowing or Notice of
Continuation or Conversion.
"Euro-Dollar Reserve Percentage" means for any day that the
percentage
(expressed as a decimal) which is in effect
on such day, as prescribed by the
Board of Governors of the Federal Reserve
System (or any successor) for
determining the maximum reserve requirement
for a member bank of the Federal
Reserve System in respect of "Eurocurrency
liabilities" (or in respect of any
other category of liabilities which
includes deposits by reference to which the
interest rate on Euro-Dollar Loans is
determined or any category of extensions
of credit or other assets which includes
loans by a non-United States office of
any Lender to United States residents).
"Event of Default" means the events described in Section 12.1.
hereof.
"Extension Fee" means an extension fee equal to twenty (20)
basis
points of the Total Commitment. Such
extension fee shall be paid to Lenders
based on their pro rata share of the Total
Commitment.
"Facility Fee" means a facility fee as calculated in accordance
with
Schedule 1.2.
"Fixed Charges" means the sum of the following amounts for the
immediately preceding fiscal quarter on an
annualized basis: (i) Interest
Expense, (ii) debt amortization excluding
balloon payments (including accruals
of debt amortization to the extent not paid
on a monthly or quarterly basis and
Credit Parties' pro-rata share of debt
amortization from Unconsolidated
Subsidiaries), (iii) capital expenditures
in an amount equal to five percent
(5%) of Funds From Operations, plus Credit
Parties' amortized leasing
commissions and tenant improvements and
Credit Parties' pro-rata share of
amortized leasing commissions and tenant
improvements from Unconsolidated
Subsidiaries, (iv) Preferred Stock
Dividends, and (v) ground lease payments.
"Fixed Rate Advance" means a Euro-Dollar Advance or a Competitive
Bid
Advance, or any or all of them, as the
context shall require.
"Fixed Rate Loans" means Euro-Dollar Loans or Competitive Bid
Loans, or
any or all of them, as the context shall
require.
"Funds From Operations" means EBITDA less Interest Expense and
amortization of debt financing costs plus
any gains or minus losses from the
sales of Property.
"GAAP" means, as in effect from time to time, generally
accepted
accounting principles consistently applied
with respect to a Person conducting a
business the same as or similar to that of
Credit Parties.
"GAV" means the sum of (without redundancy) (i) EBITDA from all
wholly
owned Properties which have not been
acquired within the applicable reporting
period, capitalized at the appropriate
Capitalization Rate, (ii) pro rata share
of EBITDA from Joint Ventures and
Unconsolidated Subsidiaries which have not
been acquired within the applicable
reporting period, capitalized at the
appropriate Capitalization Rate, (iii)
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 wholly owned Properties
acquired during the applicable
reporting period, (v) pro rata share of
Gross Book Value of Properties acquired
by Joint Ventures (subject to the
limitation in Section 11.8 (m) of this
Agreement) and Unconsolidated Subsidiaries
during the applicable reporting
period, (vi) recorded value of land, and
(vii) recorded value of Construction in
Process (subject to the limitation of
Section 11.8 (l) of this Agreement) and
(viii) remaining tangible assets, as
determined in accordance with GAAP.
"Gross Book Value" means the value of an asset as recorded in the
books
of Credit Parties, as determined in
accordance with GAAP, before depreciation.
"Guarantor(s)" means CLP, any Significant Subsidiary, and any
newly
formed Significant Subsidiaries of CLP as
more particularly described in Section
10.22 of this Agreement.
"Interest Expense" means, for the immediately preceding fiscal
quarter
on an annualized basis, all interest
expense of the Credit Parties, plus
(without redundancy) (i) the pro-rata share
of interest expense in
Unconsolidated Subsidiaries, (ii)
capitalized interest, and (iii) all accrued,
or paid interest incurred on any obligation
for which the Credit Parties are
wholly or partially liable under repayment,
interest carry, or performance
guarantees, or other relevant
liabilities.
"Interest Period(s)" means (1) with respect to each Euro-Dollar
Advance, the period commencing on the date
of such Borrowing and ending seven
(7), fourteen (14), thirty (30), sixty
(60), ninety (90) or one hundred eighty
(180) days thereafter, as the Borrower may
elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period (subject to
paragraph (c) below) which would otherwise
end on a day which is not a Euro-Dollar
Business Day shall be extended to the
next succeeding Euro-Dollar Business
Day.
(b) any Interest Period which begins on the
last Euro-Dollar Business Day of a
calendar month (or on a day for which there
is not a numerically corresponding
day in the appropriate subsequent calendar
month) shall, subject to paragraph
(c) below, end on the last Euro-Dollar
Business Day of the appropriate
subsequent calendar month; and
(c) no Interest Period may be selected
which begins before the Commitment
Termination Date and would otherwise end
after the Commitment Termination Date.
(2)......with respect to each Competitive Bid Advance, the
period
commencing on the date of such Borrowing
and ending on the Stated Maturity Date
or such other date or dates as may be
specified in the applicable Competitive
Bid Quote; provided that:
(a) any Interest Period (subject to clause
(b) below) which would otherwise end
on a day which is not a Domestic Business
Day shall be extended to the next
succeeding Domestic Business Day; and
(b) no Interest Period may be selected
which begins before the Commitment
Termination Date and would otherwise end
after the Commitment Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986,
together with all amendments from time to
time thereto, including any rules or
regulations promulgated thereunder.
"Investments" means any investment in any Person, whether by means
of
(i) purchase or acquisition of all or
substantially all of the assets of such
Person (or of a division or line of
business of such Person), (ii) purchase or
acquisition of obligations or securities of
such Person, (iii) capital
contribution to such Person, (iv) loan or
advance to such person, (v) making of
a time deposit with such Person, (vi)
guarantee or assumption of any obligation
of such Person, or (vii) by any other
means.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the
form of Exhibit D hereto, completed
and delivered by Agent to Lenders in
accordance with Section 4.3.
"Joining Lender" has the meaning set forth in Section 6.11.
"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.
"Lender(s)" means any of the Persons identified as a "Lender" on
the
signature pages hereto, and including Agent
whether in its capacity as Agent or
a Lender, and SouthTrust, as holder of the
Swing Loan, any Person which may
become a Lender by way of assignment in
accordance with the terms hereof,
together with their successors and
permitted assigns and any Joining Lender,
together with their successors and
permitted assigns.
"Letter(s) of Credit" means any irrevocable Letter of Credit issued
by
Agent for the account of the Borrower, and
all renewals and replacements of such
Letters of Credit, in the aggregate amount
of up to $15,000,000 available to be
drawn from time to time, for the benefit of
the beneficiaries named therein.
"Letter of Credit Agreement(s)" means an Application and Agreement
for
Standby Letter of Credit executed by
Borrower with respect to the issuance of
any Letter of Credit, as the same may be
amended or extended. To the extent that
the provisions of any Letter of Credit
Agreement are inconsistent with the terms
of this Agreement, the terms hereof shall
control; otherwise, all terms and
conditions of any such Letter of Credit
Agreement shall be binding upon and
enforceable against Borrower and are
expressly incorporated herein by this
reference and made a part of this
Agreement.
"Letter of Credit Fee" means the fee payable by Borrower to Agent
with
respect to the issuance of a Letter of
Credit pursuant to Section 3.3.
"LIBOR Plus Rate" means the sum of the Margin plus the
applicable
London Interbank Offered Rate for the
applicable Interest Period.
"Lien" means any voluntary or involuntary mortgage, security deed,
deed
of trust, lien, pledge, assignment, charge,
security interest, title retention
agreement, financing lease, levy,
execution, seizure, judgment, attachment,
garnishment, charge or other encumbrance of
any kind. Notwithstanding the
foregoing, a notice of commencement filed
with respect to any Property located
in the State of Florida shall not
constitute a "Lien" hereunder provided that
(i) the cost of the work described in such
notice of commencement does not
exceed five percent (5%) of Property GAV,
and (ii) no other Liens relating to
the work described in such notice of
commencement are filed with respect to the
Property.
"Loans" means, collectively, the Revolving Loan, the Competitive
Bid
Loans, if any, and the Swing Loan.
"London Interbank Offered Rate" or "LIBOR Rate" means for the
Interest
Period of such Euro-Dollar Loan, the rate
per annum determined on the basis of
the offered rate for deposits in dollars of
amounts equal or comparable to the
principal amount of such Euro-Dollar Loan
offered for a term comparable to such
Interest Period, which rates appear on
Telerate Page 3750 effective as of 11:00
A.M., London time, 2 Euro-Dollar Business
Days prior to the first day of such
Interest Period, provided that if no such
offered rates appear on such page, the
"London Interbank Offered Rate" for such
Interest Period will be the arithmetic
average (rounded upward, if necessary, to
the next higher 1/100th of 1%) of
rates quoted by not less than 2 major banks
in New York City, selected by the
Agent, at approximately 10:00 A.M., New
York City time, 2 Euro-Dollar Business
Days prior to the first day of such
Interest Period, for deposits in dollars
offered by leading European banks for a
period comparable to such Interest
Period in an amount comparable to the
principal amount of such Euro-Dollar Loan.
"Margin" shall have the meaning ascribed to such term in Section
2.4
hereof.
"Maturity Date" means the day which is thirty-six (36) months from
the
Closing Date, which may be extended as set
forth herein in Section 6.12.
"Maturity Extension Date" has the meaning set forth herein in
Section
6.12.
"Maximum Borrowing Base" means the difference between (i) Pool
GAV
divided by 1.70, and (ii) Unsecured
Liabilities (excluding the outstanding
principal balance of the Loans and the
Reimbursement Obligation funded under
Letter(s) of Credit) as more particularly
set forth on Line 14 of the Compliance
Certificate.
"Multiemployer Plan" has the meaning set forth in Section
4001(a)(3) of
ERISA.
"Non-Stabilized Property" means (i) any Property which is not a
Stabilized Property and (ii) such Property
is at least 65% leased (based on the
actual square footage at the Property) and
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.
"Notes" means, collectively, the Revolving Notes, the Competitive
Bid
Notes, and the Swing Loan Note.
"Organizational Documents" means (a) in the case of CLP, its
declaration of trust and bylaws (b) in the
case of CRLP, its partnership
agreement and certificate of limited
partnership, together, in each case, with
all amendments thereto, and (c) in the case
of any other Guarantor, similar
documents relating to the formation and
operation of such Person.
"Overadvance" means a Revolving Advance by Lenders under the
Revolving
Notes when an Overadvance Condition exists
or would result from the making of
such Revolving Advance.
"Overadvance Condition" means at any date, when the aggregate
outstanding principal of the Revolving
Loans plus the Reimbursement Obligation,
plus the outstanding principal balance of
all Competitive Bid Loans, plus the
outstanding principal balance of the Swing
Loan, exceed the Maximum Borrowing
Base on such date.
"Performance Pricing Determination Date" shall mean each date on
which
the Debt Rating changes.
"Person" means an individual, corporation, limited liability
company,
limited partnership, partnership,
association, joint-stock company, trust,
business trust, unincorporated organization
or Joint Venture, or a court or
governmental authority.
"Permitted Investments" means the sum of (i) Colonial Investments
and
(ii) the aggregate book value of land and
Construction in Process.
"Pool" means the Credit Parties' unencumbered asset pool which
shall
consist of (i) cash from a 1031 exchange,
(ii) cash or cash equivalents held by
the Credit Parties for the sole purpose of
liquidating or retiring unsecured
Debt, and (iii) all Stabilized Properties
and Non-Stabilized Properties of
Credit Parties which are wholly owned and
meet all of the following criteria:
(a) a certificate of occupancy has been
issued for the Property and remains in
full force and effect and (b) there is no
Lien on the Property, (c) the Credit
Parties have provided Agent with a Phase I
environmental report for the Property
in form and content acceptable to Lenders,
and (iv) wholly owned Construction in
Process which meets the criteria specified
in (iii) (b) and (c), in an amount
not to exceed ten percent (10%) of Pool
GAV.
"Pool EBITDA" means the sum of EBITDA of all Pool Properties.
"Pool GAV" means the sum of (without redundancy) (i) 100% of
Pool
EBITDA from Stabilized Properties,
capitalized at the appropriate Capitalization
Rate; (ii) for each Non-Stabilized Property
in the Pool, the lesser of (a) 75%
of the Gross Book Value of Non-Stabilized
Properties in the Pool, or (b) Pool
EBITDA of Non-Stabilized Properties
capitalized at the appropriate
Capitalization Rate (subject, however, to
such limitations set forth in Section
11.8 (i) and (j); (iii) 50% of the Gross
Book Value of Construction in Process
Pool Properties (subject, however, to such
limitations set forth in Section 11.8
(i) and (j); (iv) cash from a 1031
exchange; and (v) cash or cash equivalents
held by the credit parties for the sole
purpose of liquidating or retiring
unsecured debt. Notwithstanding the
foregoing, any Properties acquired during
the applicable reporting period that
qualify for Pool shall be valued at Gross
Book Value.
"Pool Properties" means Properties included in the Pool.
"Preferred Stock" means preferred stock issued by the Borrower.
"Preferred Stock Dividends" means Borrower's preferred stock
dividends
which have been paid and which have been
declared and not yet paid (excluding
preferred stock dividends which are "paid
in kind").
"Prohibited Transaction" means any transaction set forth in Section
406
of ERISA or Section 4975 of the Code.
"Property" or "Properties" means any multifamily, retail or office
real
estate property.
"Property GAV" means EBITDA from wholly owned Properties,
capitalized
at the appropriate Capitalization Rate, or
if such wholly owned Property has
been acquired during the applicable
reporting period, the Gross Book Value of
such Property.
"Qualified Rating Agency" means Moody's or Standard & Poors, or
any
other rating agency from time to time
approved by Borrower and Lenders in
writing as a Qualified Rating Agency.
"Refunding Loan(s)" means a new Revolving Loan made on the day on
which
an outstanding Revolving Loan is maturing
or a Base Rate Advance is being
converted to a Fixed Rate Advance, if and
to the extent that the proceeds
thereof are used for the purpose of paying
such maturing Loan or Loan being
converted, excluding any difference between
the amount of such maturing Loan or
Loan being converted and any greater amount
being borrowed on such day and
actually either being made available to the
Borrower pursuant to Section 2.8(c)
or remitted to the Agent as provided in
Section 2.3, in each case as
contemplated in Section 2.8(d).
"Regulation U" means Regulation U of the Board of Governors of
the
Federal Reserve System from time to time in
effect and shall include any
successor or other regulation or official
interpretation of said Board of
Governors relating to the extension of
credit by Lenders for the purpose of
purchasing or carrying margin stocks
applicable to member Lenders of the Federal
Reserve System.
"Reimbursement Obligation" means at any time the sum of the
undrawn
portion of any Letters of Credit plus the
amounts of all drawings against
Letters of Credit and other fees and costs
for which Borrower has not reimbursed
Agent.
"Reportable Event" means any of the events set forth in Section
4043(b)
of ERISA.
"Required Lenders" means the Lenders whose Total Commitments in
the
aggregate exceed sixty-six and 67/100
percent (66.67%) of the Total Commitment
or if the Commitment Termination Date has
occurred, Lenders having, at the time
of determination thereof, at least
sixty-six and 67/100 percent (66.67%) of the
aggregate principal amount of the Loans
outstanding plus all of the
Reimbursement Obligations; provided,
however, that if any Lender shall be a
Defaulting Lender at such time then such
Defaulting Lender's Total Commitment
shall be excluded from the determination of
Required Lenders.
"Revolving Advance" means an advance of the Revolving Loan.
"Revolving Commitment" means, for each Lender, such Lender's
committed
dollar amount of the Revolving Loan, as set
forth on Schedule 1.1.
"Revolving Commitment Percentage" means, for each Lender, the
percentage identified as its Revolving
Commitment Percentage on Schedule 1.1, as
such percentage may be adjusted as set
forth herein.
"Revolving Loan" means the credit facility available to
Borrower
pursuant to Article 2 of this Agreement,
together with interest thereon and
other agreed charges as may be outstanding
at any given time.
"Revolving Notes" means the promissory notes in substantially the
form
of Exhibit F attached hereto, with
appropriate insertions, evidencing each
Lender's Revolving Commitment in the
Revolving Loan, duly executed and delivered
to Lenders by Borrower and payable to the
order of such Lender, together with
any renewals, extensions, modifications, or
amendments to such promissory notes.
"SEC" means the Securities and Exchange Commission.
"Secured Liabilities" means those Total Liabilities which are
secured
by a Lien.
"Significant Subsidiary" means any Subsidiary wholly owned by
the
Credit Parties representing equal to or
greater than five percent (5%) of GAV
and/or the total consolidated revenues of
the Credit Parties as reported in the
financial statements of the Credit Parties
and prepared in accordance with GAAP.
"SouthTrust" means SouthTrust Bank, its successors and assigns.
"Stabilized Properties" means 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 percent (80%) 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 percent (80%)
occupancy level for each month
thereafter.
"Stated Maturity Date" means, with respect to any Competitive Bid
Loan,
the Stated Maturity Date therefor specified
by the Lender in applicable
Competitive Bid Quote Request and which
must be for an Interest Period of seven
(7), fourteen (14), thirty (30), sixty
(60), or ninety (90) days not to extend
more than ninety (90) days.
"Subsidiary" means any corporate entity, partnership, or other
business
entity, in which one or more of the Credit
Parties owns an ownership interest.
"Swing Commitment" means SouthTrust's committed dollar amount of
the
Swing Loan, as set forth on Schedule
1.1.
"Swing Commitment Percentage" means SouthTrust's percentage
identified
as its Swing Commitment Percentage on
Schedule 1.1, as such percentage may be
adjusted as set forth herein.
"Swing Loan" means the $25,000,000 loan made available to
Borrower
pursuant to Article 5 of this Agreement,
together with accrued interest thereon
and other agreed charges as may be
outstanding at any given time.
"Swing Loan Advance" means an advance of the Swing Loan.
"Swing Loan Note" means that certain Swing Loan Note of even
date
herewith from Borrower to SouthTrust, in
the form of Exhibit J attached hereto,
together with any renewals, extensions,
modifications, or amendments thereof.
"Syndication Agent" shall mean AmSouth Bank. The title of
Syndication
Agent shall be in name only.
"Total Allocated Commitment" means each Lender's Revolving
Commitment
as determined by the Agent and Borrower in
its sole discretion.
"Total Commitment" means $320,000,000, subject to being increased
as
set forth in Section 6.11, and consisting,
for each Lender, of such Lender's
committed dollar amount of the Loans, as
set forth in Schedule 1.1.
"Total Commitment Percentage" means for each Lender, the
percentage
identified as its Total Commitment
Percentage on Schedule 1.1, as such
percentage may be adjusted as set forth
herein.
"Total Liabilities" shall mean (without redundancy), all mortgage
debt,
letters of credit, the deferred purchase
price pursuant to purchase agreements
or contracts, to the extent such deferred
purchase price is required to be
included in accordance with GAAP, forward
equity commitments (however, such
commitments shall not be considered debt if
such commitments are required to be
replaced dollar for dollar with equity),
pre-purchase deals (including all
assets and liabilities of such pre-purchase
deals), unsecured debt, subordinated
debt, payables, accrued expenses, lease
obligations (including ground leases),
EUPP Liability, guarantees of indebtedness
and unfunded obligations (excluding
EUPP Liability), pro rata share of
non-recourse debt in Unconsolidated
Subsidiaries or Joint Ventures (where the
pro rata share of the asset has been
included) and any loan where any of the
Credit Parties are liable for debt as a
general partner, and one hundred percent
(100%) of Credit Parties portion of
recourse debt in Unconsolidated
Subsidiaries or Joint Ventures, and one hundred
percent (100%) of Credit Parties Portion of
recourse debt incurred by any of the
Credit Parties.
"Unconsolidated Subsidiary" means a Subsidiary that is not
consolidated
with the Credit Parties for financial
reporting purposes.
"Unsecured Interest Expense" means Interest Expense relating to
Unsecured Liabilities.
"Unsecured Liabilities" means those Total Liabilities which are
not
secured by a Lien.
"Up-Front Fee" means a one-time up-front fee equal to the sum of
each
Lender's Total Commitment amount multiplied
by the appropriate fee as detailed
below and paid on the Closing Date:
Total Allocated Commitment Amount
Upfront Fee
$15,000,000 to $34,999,999.99
45 basis points
$35,000,000 to $44,499,999.99
50 basis points
Maximum Commitment $50,000,000
55 basis points
Article 2.........
REVOLVING LOAN
2.1
Disbursement of Revolving Advances.
(a) Subject to the terms and conditions of
this Agreement, and for so long as no
Event of Default exists and no covenant,
term or condition contained in any of
the Credit Documents will be breached or
violated as a result of such Revolving
Advance, the Lenders agree to make
Revolving Advances to Borrower from time to
time during the Commitment Period, in an
aggregate principal amount at any time
outstanding not to exceed the lesser of (i)
the Total Commitment less the
Reimbursement Obligation and less the
outstanding principal balance of
Competitive Bid Loans and less the Swing
Commitment, and (ii) the Maximum
Borrowing Base less the Reimbursement
Obligation and less the outstanding
principal balance of Competitive Bid Loans,
and less the Swing Commitment.
Notwithstanding the foregoing, no Lender
shall be obligated to make Revolving
Advances in excess of its Revolving
Commitment. The Revolving Loan shall mature
and be payable in full upon the Commitment
Termination Date. During the
Commitment Period, Borrower may borrow,
repay and reborrow the principal of the
Revolving Loan, all in accordance with the
terms and conditions of this
Agreement.
(b) If the sum of the outstanding principal
amount of the Revolving Loan, plus
the Reimbursement Obligation, plus the
outstanding principal balance of all
Competitive Bid Loans, plus the outstanding
principal balance of the Swing Loan,
at any time exceeds the Maximum Borrowing
Base, Borrower shall immediately pay
to the Agent, without need of notice or
demand by Agent (and without Lenders'
waiving the Default or Event of Default
which may arise as a result of such
excess), an amount sufficient to reduce
said sum to the Maximum Borrowing Base.
(c) Even if such Revolving Advance would
constitute an Overadvance, the Lenders
may, in their sole discretion, but shall
not be obligated to, advance to
Borrower, and make a Revolving Advance for
a sum sufficient each month to pay
all interest accrued on the Loans and fees
due under this Agreement and the
other Credit Documents during or for the
immediately preceding month.
(d) The minimum Revolving Advance shall be
in an aggregate principal amount of
$5,000,000 or any larger integral multiple
of $500,000.
2.2 The
Revolving Notes. The
liability of the Borrower to pay the
Revolving Loan shall be evidenced by the Revolving Notes.
-------------------
2.3 Payments.
--------
(a) For a Base Rate Loan, on the tenth
(10th) day of each calendar month during
the Commitment Period and/or upon
conversion to a Euro-Dollar Loan, Borrower
shall pay to Agent in arrears all accrued
and unpaid interest on the outstanding
principal balance of the Base Rate Loan
through the last day of the preceding
month.
(b) For a Euro-Dollar Loan, (i) on the
maturity of Interest Period of seven (7)
or fourteen (14) days or (ii) on the tenth
(10th) day of each month during the
Commitment Period and upon the maturity of
an Interest Period of thirty (30),
sixty (60), ninety (90) and/or one hundred
eighty (180) days, Borrower shall pay
to Agent in arrears all accrued and unpaid
interest on the outstanding principal
balance of the Euro-Dollar Loan through the
last day of the preceding month.
(c) On the Commitment Termination Date, the
outstanding principal balance of the
Revolving Loan, plus all accrued and unpaid
interest thereon, shall be due and
payable.
2.4 Interest
Rate.
-------------
(a) "Margin"
means:
(i) for the
period commencing on the Closing Date to and including the
first Performance Pricing Determination Date, (x) for any Base
Rate
Loan, 0.00% and (y) for any Euro-Dollar Loan, 1.05%; and
(ii) from and after
the first Performance Pricing Determination Date for any
Base Rate Loan, and for each Euro-Dollar Loan, the percentage
determined on each Performance Pricing Determination Date by
reference
to the table set
forth below as to such type of Loan and the "Debt
Rating", being the ratings as determined by a Qualified Rating
Agency
and described in the table below, on each Performance Pricing
Determination Date; provided, that if there is no Debt Rating
the
Margin for Euro-Dollar Loans shall be based upon Level V of the
table
below.
Level I Level II
Level III
Level IV
Level
V
Debt Rating
> BBB + BBB+
or
BBB
BBB- <
BBB-
-
or Baal
Baa1
or Baa2 or
Baa3 or
Baa3
Euro-Dollar Margin 0.70%
0.80%
0.90% 1.05%
1.35%
Base Rate Margin 0.00%
0.00%
0.00% 0.00%
1.00%
Each change in interest and fees as a
result of a change in Debt Rating shall be
effective for Euro-Dollar Loans and Base
Rate Loans (including Refunding Loans)
which are made and fees which accrue on or
after the relevant Performance
Pricing Determination Date. All
determinations hereunder shall be made by the
Agent unless the Required Lenders shall
object to any such determination. The
Borrower shall promptly notify the Agent of
any change in the Debt Rating. If
more than one Debt Rating is available from
different Qualified Rating Agencies,
then the lowest Debt Rating will be used
for purposes of determining the Margin.
(b) Each Base Rate Loan shall bear interest
on the outstanding principal amount
thereof, for each day from the date such
Loan is made (including the date of
conversion of a Euro-Dollar Loan to a Base
Rate Loan pursuant to Section 6.9),
at a rate per annum equal to the Base Rate
plus applicable margin set forth in
Section 2.4(a) above, which rate will
change as and when the Base Rate changes.
(c) Each Euro-Dollar Loan shall bear
interest on the outstanding principal
amount thereof, for the Interest Period
applicable thereto, at a rate per annum
equal to the LIBOR Plus Rate.
(d) The Agent shall determine each interest
rate applicable to the Loans
hereunder. The Agent shall give prompt
notice to the Borrower and the Lenders by
telecopier of each rate of interest so
determined, and its determination thereof
shall be conclusive in the absence of
demonstrable error.
(e) After the occurrence and during the
continuance of an Event of Default, the
principal amount of the Loans shall bear
interest at the Default Rate.
2.5 Prepayment. Except as set forth in
Section 6.10 herein, the principal of the
Revolving Loan may be prepaid in whole or
in part without premium or penalty;
provided that Borrower shall orally notify
Agent at least two (2) Domestic
Business Days in advance of any prepayment
in excess of $5,000,000 which arises
outside of the Cash Management
Agreements.
2.6 Fees. ..The Borrower shall pay a
one-time Up-Front Fee to Agent, for account
of Lenders, on the Closing Date of the
Credit Agreement. The Borrower shall pay
to Agent the Facility Fee in accordance
with Schedule 1.2, for account of
Lenders, with the first payment on January
1, 2003. Thereafter, the Borrower
shall pay one-fourth (1/4) of the Facility
Fee to Agent, for account of Lenders,
on the first Domestic Business Day
following every fiscal quarter end.
2.7 Termination by Borrower of the
Revolving Loan. Provided that (1) no Advances
or Swing Loan Advances are outstanding and
no Letters of Credit are outstanding,
(2) all fees and charges due to Lenders
under the Credit Documents have been
paid, and (3) Borrower simultaneously
terminates the Swing Loan and Competitive
Bid Loans, Borrower may, by written notice
to Agent, terminate the Revolving
Loan upon the date specified in such
notice. On the date of such termination
(which shall become the Commitment
Termination Date), Borrower shall pay to
Agent, for the account of Lenders, the
Facility Fee specified in Section 2.6.,
for each month through the original
Commitment Termination Date.
2.8 Procedure
for Revolving Advances Under Revolving Loan.
-----------------------------------------------------
(a) Request
for a Revolving Advance shall be disbursed pursuant to the
Borrower's request therefor (whether in writing, by telephone,
or
otherwise) to Agent. Any written request for a Revolving Advance
shall
be given by Borrower to Agent (substantially in the form of Exhibit
L,
the "Notice of Borrowing") and any telephonic or other request
shall be
confirmed by a Notice of Borrower in such form within five (5)
Domestic
Business Days of such telephonic or other request). Any request for
a
Revolving Advance must be received prior to 11:00 A.M.
Birmingham,
Alabama time), on the same Domestic Business Day of each Base
Rate
Advance, and at least three (3) Euro-Dollar Business Days before
each
Euro-Dollar Advance (once the Notice of Borrowing is received by
the
Agent such notice shall not thereafter be revocable by the
Borrower),
specifying:
(i) the date
of such Borrowing, which shall be a Domestic Business Day in
the case of a Base Rate Advance or a Euro-Dollar Business Day in
the
case of a Euro-Dollar Advance,
(ii) the aggregate
amount of such Borrowing,
(iii) whether the Revolving
Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a
Fixed Rate Advance, the duration of the Interest
Period applicable thereto, subject to the provisions of the
definition
of Interest Period.
Revolving Advance must be made by (1)
Thomas H. Lowder, (2) Anita G. Phillips,
(3) Kenneth B. Howell, (4) Howard B.
Nelson, Jr., (5) Jerry A. Brewer, and (6)
any other Person designated in writing by
Thomas H. Lowder as President and CEO
or Howard B. Nelson, Jr., as CFO (or any
successor President, CEO, and/or CFO).
Agent and each Lender shall be entitled to
rely upon any notice it believes is
genuine and to have been given by an
authorized Person. Revolving Advances made
in conformity with the provisions of this
paragraph shall be fully binding upon
the Borrower. Notwithstanding the
foregoing, all drafts under any Letter of
Credit and Revolving Advances made pursuant
to Section 5.7., shall be deemed a
Revolving Advance requested by Borrower for
all purposes of this Section 2.8.
(b) If a Notice of Borrowing is not
received at least three (3) Domestic
Business Days prior to the proposed
Borrowing Date, then such Revolving Advance
shall be a Base Rate Advance and Agent
shall provide prompt notice to Lender on
the day of such Base Rate Advance to the
Lender. The Agent agrees to provide at
least two (2) days notice to the Lenders
for a Euro-Dollar Advance. Such notice
("Notice of Borrowing to Lenders") provided
to the Lenders by the Agent
(substantially in the form of Exhibit M)
shall also include the principal amount
of the Revolving Advance that each Lender
shall disburse as calculated based
upon each Lender's Revolving Commitment
Percentage, whether it is a Base Rate
Loan or a Euro-Dollar Loan, and the
applicable interest rate.
(c) Not later than 2:00 P.M. (Birmingham,
Alabama, time) as to Base Rate
Advances and as to Euro-Dollar Advances, on
the date of each Revolving Advance,
each Lender shall (except as provided in
paragraph (d) of this Section) make
available its Revolving Commitment
Percentage of such Revolving Advance, in
Federal or other funds immediately
available in Birmingham, Alabama, to the
Agent via wire transfer to the following
account (or to such other account as
Agent may hereafter designate in
writing):
SouthTrust Bank
Birmingham, Alabama
ABA No.: 062000080
Customer No.: 00015209641
For the account of Colonial Realty Limited Partnership
Attention: Participation Loans
The Agent will make the funds so received
from the Lenders available to the
Borrower at the Agent's aforesaid address.
Unless the Agent receives notice from
a Lender, at the Agent's address referred
to in or specified pursuant to Section
15.1, no later than 4:00 P.M. (Local time
at such address) on the Domestic
Business Day before the date of a Revolving
Advance stating that such Lender
will not make a Revolving Loan in
connection with such Revolving Advance, the
Agent shall be entitled to assume that such
Lender will make a Revolving Loan in
connection with such Revolving Advance and,
in reliance on such assumption, the
Agent may (but shall not be obligated to )
make available such Lender's
Revolving Commitment Percentage of such
Revolving Advance to the Borrower for
the account of such Lender. If the Agent
makes such Lender's Revolving
Commitment Percentage available to the
Borrower and such Lender does not in fact
make its Revolving Commitment Percentage of
such Revolving Advance available on
such date, the Agent shall be entitled to
recover such Lender's Revolving
Commitment Percentage from such Lender or
the Borrower (and for such purpose
shall be entitled to charge such amount to
any account of the Borrower
maintained with the Agent), together with
interest thereon for each day during
the period from the date of such Revolving
Advance until such sum shall be paid
in full at a rate per annum equal to the
rate at which the Agent determines that
it obtained (or could have obtained)
overnight Federal funds to cover such
amount for each such day during such
period, provided that (i) any such payment
by the Borrower of such Lender's Revolving
Commitment Percentage and interest
thereon shall be without prejudice to any
rights that the Borrower may have
against such Lender, including, but not
limited to actual attorneys' fees,
reasonable costs and expenses and (ii)
until such Lender has paid its Revolving
Commitment Percentage of such Revolving
Advance, together with interest pursuant
to the foregoing provisions, it will have
no interest in or rights with respect
to such Revolving Advance for any purpose
hereunder. If the Agent does not
exercise its option to advance funds for
the account of such Lender, it shall
forthwith notify the Borrower of such
decision. No Lender's obligation to fund
its Revolving Commitment Percentage of a
Revolving Advance shall be affected by
any other Lender's failure to fund its
Revolving Commitment Percentage of a
Revolving Advance, nor shall any Lender's
Revolving Commitment Percentage be
increased as a result of any such failure
of any other Lender.
(d) If any Lender makes a new Revolving
Loan hereunder on a day on which the
Borrower is to repay all or any part of an
outstanding Revolving Loan from such
Lender, such Lender shall apply the
proceeds of its new Revolving Loan to make
such repayment as a Refunding Loan and only
an amount equal to the difference
(if any) between the amount being borrowed
and the amount of such Refunding Loan
shall be made available by such Lender to
the Agent as provided in paragraph (c)
of this Section, or shall be remitted by
the Borrower to the Agent as provided
in Section 2.3, as the case may be.
(e) Notwithstanding anything to the
contrary contained in this Agreement, no
Fixed Rate Advance may be made if there
shall have occurred and be continuing a
Default or an Event of Default, which
Default or Event of Default shall not have
been cured or waived, and all Refunding
Loans shall be made as Base Rate Loans
(but shall bear interest at the Default
Rate, if applicable).
(f) In the event that a Notice of Borrowing
fails to specify whether the
Revolving Loans comprising such Revolving
Advance are to be Base Rate Loans or
Euro-Dollar Loans such Revolving Loans
shall be made as Base Rate Loans. If the
Borrower is otherwise entitled under this
Agreement to repay any Revolving Loans
maturing at the end of any Interest Period
applicable thereto with the proceeds
of a new Borrowing, and the Borrower fails
to repay such Revolving Loans using
its own moneys and fails to give a Notice
of Borrowing in connection with such
new Revolving Advance, a new Revolving
Advance shall be deemed to be made on the
date such Revolving Loans mature in an
amount equal to the principal amount of
the Revolving Loans so maturing, and the
Revolving Loans comprising such new
Revolving Advance shall be Base Rate
Loans.
(g) Notwithstanding anything to the
contrary contained herein, there shall not
be more than eight (8) Euro-Dollar Loans
and two (2) Competitive Bid Loans
outstanding at any given time.
(h) The obligations of the Lenders
hereunder are several and not joint. None of
the Lenders shall be liable to the Credit
Parties due to the failure of any
other Lender to fund its Revolving
Commitment Percentage of a Revolving Advance.
Article 3.........LETTER OF CREDIT
SUBFACILITY
3.1 Issuance
and Maintenance of Letters of Credit.
---------------------------------------------
(a) Subject to all terms set forth herein
and in the Letter of Credit
Agreements, and for so long as no Event of
Default exists and no covenant will
be breached or violated as a result of
issuance of such Letters of Credit, Agent
agrees, from the date hereof until thirty
(30) days prior to the Commitment
Termination Date, and on the terms
hereinafter set forth, to issue on its behalf
and on behalf of the Lenders, the Letters
of Credit, and agrees to maintain the
Letters of Credit for the account of the
Borrower in accordance with the terms
hereof and of the Letter of Credit
Agreements.
(b) Upon Borrower's written request
specifying (i) the beneficiary of the Letter
of Credit, (ii) the amount of the Letter of
Credit, (iii) the term of the Letter
of Credit, and (iv) such other information
as Agent may request, and upon
Borrower's execution of a Letter of Credit
Agreement, Agent shall issue a Letter
of Credit substantially in the form of the
letter of credit attached hereto as
Exhibit G. Agent shall not be obligated to
issue any Letter of Credit if the
amount of such Letter of Credit plus the
Reimbursement Obligation would exceed
$15,000,000 or if the requested expiration
date would extend beyond the
Commitment Termination Date.
(c) Agent shall give prompt written notice
to Lenders of the issuance of a
Letter of Credit and each Lender's
respective Revolving Commitment Percentage in
such Letter of Credit.
3.2 Reimbursement Obligation of Borrower.
Borrower hereby agrees to reimburse
Agent: (i) on each date on which a draft is
presented for payment on the Letters
of Credit (x) the amount of the draft paid
by the Agent under the Letters of
Credit and (y) the amount of any taxes
(other than income taxes), fees, charges
or other costs or expenses whatsoever
incurred by Agent under, or with respect
to the Letters of Credit; and (ii) upon the
acceleration of the Loans in
accordance with Section 12.2. hereof, an
amount equal to the Reimbursement
Obligation. Payments of the Reimbursement
Obligation shall be made by Lenders
making a Revolving Advance of the Revolving
Loan, and this Revolving Advance
will be made notwithstanding Section 13.5
or any other provision of this
Agreement to the contrary. All amounts
remaining unpaid by Borrower under this
Section 3.2. shall bear interest from the
date such amounts become payable
(whether as stated, by acceleration or
otherwise) until payment in full, at the
Default Rate, and such interest shall be
payable by Borrower to Agent on each
Domestic Business Day.
3.3 Commissions and
Fees.
(a) As consideration for the issuance of
each Letter of Credit, Borrower shall
pay to Agent, for the account of Lenders, a
fee (the "Letter of Credit Fee")
equal to the then applicable Euro-Dollar
Loan Margin on the available and
undrawn portion of the applicable Letter of
Credit from the effective date of
such Letter of Credit to the expiration of
such Letter of Credit based upon a
360-day year. The Letter of Credit Fee for
any Letter of Credit shall be
nonrefundable and shall be payable in full
upon execution of the Letter of
Credit.
(b) In addition to the Letter of Credit Fee
described above, Borrower shall also
pay to Agent for its account, standard and
customary set-up and draw fees in
such amounts as may be established by Agent
from time to time.
3.4 Reimbursement Obligation Absolute.
Borrower's obligations under this Article 3
and under the Letter of Credit
Agreements shall be absolute and
unconditional under any and all circumstances
and irrespective of any setoff,
counterclaim or defense to payment which
Borrower may have or have had against any
Agent or a beneficiary of a Letter of
Credit. Borrower also agrees that Agent
shall not be responsible for, and
Borrower's Reimbursement Obligation shall
not be affected by, among other
things, the validity or genuineness of
documents or of any endorsements thereon,
even if such documents should, in fact,
prove to be in any and all respects
invalid, fraudulent or forged, or any
dispute between or among Borrower and the
beneficiary of a Letter of Credit or other
party to whom a Letter of Credit may
be transferred or any claims whatsoever of
Borrower against the beneficiary of a
Letter of Credit or any transferee. Agent
shall not be liable for any error,
omission, interpretation or delay in
transmission, dispatch or delivery of any
message or advice, however transmitted, in
connection with a Letter of Credit.
Borrower agrees that any action taken or
omitted by Agent under or in connection
with a Letter of Credit or any related
drafts or documents, if done in good
faith and in accordance with the standards
and principles specified in the
International Standby Practices 1998 (as
defined in the Letter of Credit), shall
be binding on Borrower and shall not put
the Agent under any liability to
Borrower.
3.5 Surrender of Letter of Credit.
Borrower shall surrender or cause to be
surrendered to Agent all original
outstanding Letters of Credit on the
Commitment Termination Date, or upon
failing to do so shall pay to Agent in
escrow an amount equal to the
Reimbursement Obligation. Agent will be
entitled to apply such escrowed funds to
any draws thereafter made upon any such
Letters of Credit and, if a balance
remains in escrow once all Letters of
Credit have been surrendered or expired,
Agent will remit such balance to Borrower
upon request.
Article 4.........COMPETITIVE BID
SUBFACILITY
4.1 Competitive Bid Option. Subject to the
terms and conditions of this
Agreement, and for as long as (i) no
Default or Event of Default exists, (ii)
Borrower maintains BBB-/Baa3 or higher Debt
Rating from all Qualified Rating
Agencies, and (iii) no covenant, term, or
condition contained in any of the
Credit Documents will be breached or
violated as a result of such Competitive
Bid Advance, Borrower shall have the option
from time to time during the
Commitment Period, but not more than two
(2) times in any calendar month, to
request Lenders to make Competitive Bid
Loans, in an aggregate amount at any
time not to exceed (after giving effect to
any prepayments on the Revolving Loan
and Swing Loan that will be made with the
proceeds of a Competitive Bid Loan)
the lesser of (1) 50% of the Total
Commitment (subject to being changed as set
forth in Sections 6.11 and 6.12 hereof) and
(2) the Maximum Borrowing Base less
the Reimbursement Obligation and less the
outstanding principal balance of the
Revolving Loan and less the Swing
Commitment. Each Lender may, but shall have no
obligation to, make such offers for
Competitive Bid Loans and the Borrower may,
but shall have no obligation to, accept any
such offers. Any amounts outstanding
under a Competitive Bid Loan will reduce
availability for a Revolving Advance. A
Lender's Competitive Bid Loan(s) shall not
reduce Lender's obligation to make
its Revolving Commitment Percentage of a
Revolving Advance. Competitive Bid
Loans shall be evidenced by the Competitive
Bid Notes.
4.2 Competitive Bid Quote Request. When the
Borrower wishes to request offers to
make Competitive Bid Loans under this
Section 4.2, it shall transmit to the
Agent by telecopy a Competitive Bid Quote
Request so as to be received no later
than 10:00 A.M. (Birmingham, Alabama, time)
at least seven (7) Domestic Business
Days prior to the Borrowing Date which
request must specify:
(a) the proposed Borrowing Date, which must
be seven (7) Domestic Business Days
after the day Borrower submits the
Competitive Bid Quote Request;
(b) the aggregate principal amount of such
Competitive Bid Advance (which must
be for a minimum of $25,000,000 and must be
in increments of $1,000,000); and
(c) the Stated Maturity Date must not
extend beyond the Commitment Termination
Date.
A Competitive Bid Quote Request that does
not conform substantially to the
format of Exhibit C hereto shall be
rejected, and the Agent shall promptly
notify the Borrower of such rejection by
telecopy.
4.3 Invitation for Competitive Bid Quotes.
For any Competitive Bid Quote Request
that is not rejected pursuant to Section
4.2, the Agent shall send to each of
the Lenders by telecopy, on or before 10:00
A.M. (Birmingham, Alabama, time) two
(2) Domestic Business Days after Agent's
receipt of a Competitive Bid Quote
Request, an Invitation for Competitive Bid
Quote in the form of Exhibit D, which
shall constitute an invitation by the
Borrower to each Lender to submit
Competitive Bid Quotes offering to make the
Competitive Bid Loans to which such
Competitive Bid Quote Request relates in
accordance with this Article 4. If
Agent chooses to submit a Competitive Bid
Quote to Borrower, it must do so on or
before the earlier of (i) 10:00 A.M.
(Birmingham, Alabama, time) two (2)
Domestic Business Days after the receipt of
the Competitive Bid Quote Request,
or (ii) its submission of the Invitation
for Competitive Bid Quotes to the
Lenders.
4.4 Submission
and Contents of Competitive Bid Quotes.
-------------------------------------------------
(a) Each
Lender may, in its sole discretion, submit a Competitive Bid
Quote
containing an offer or offers to make Competitive Bid Loans in
response
to any Invitation for Competitive Bid Quotes. Each Competitive
Bid
Quote must comply with the requirements of this Section 4.4 and
must be
submitted to the Agent by telecopy on or before 10:00 A.M.
(Birmingham,
Alabama, time) two (2) Domestic Business Days after their receipt
of
the Invitation for Competitive Bid Quotes. Subject to Articles 8
and
12, any Competitive Bid Quote so made shall be irrevocable except
with
the written consent of the Agent given on the instructions of
the
Borrower.
(b) Each
Competitive Bid Quote shall be in substantially the form of
Exhibit B hereto and shall in any case specify:
(i) the proposed
Borrowing Date, which shall be the same as that set
forth in the applicable Invitation for Competitive Bid Quotes;
(ii) the principal amount of the Competitive Bid Loan for which
each
such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Total Commitment of the
quoting Lender, and (2) may not exceed the principal amount of
Competitive Bid Loans for which offers were requested;
(iii) the applicable margin for each such principal amount from
such
quoting Lender ("Competitive Bid Margin");
(iv) the minimum amount, if any, of the Competitive Bid Loan which
may
be accepted by the Borrower;
(v) the identity of
the quoting Lender; and
(vi) applicable Interest Period.
(c) The Agent
shall reject any Competitive Bid Quote that:
(i) is not
substantially in the form of Exhibit B hereto or does not
specify all of the information required by Section 4.4.
(ii) contains qualifying, conditional or similar language, other
than
any such language contained in Exhibit B hereto;
(iii) proposes terms other than or in addition to those set forth
in
the
applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section 4.4.
If any Competitive Bid Quote shall be
rejected pursuant to this Section 4.4(c),
then the Agent shall notify the relevant
Lender of such rejection promptly.
4.5 Notice to Borrower. The Agent shall
promptly notify the Borrower of the
terms (i) of the Competitive Bid Quote
submitted by a Lender that is in
accordance with Section 4.4 and (ii) of any
Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with
a previous Competitive Bid Quote
submitted by such Lender with respect to
the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote
shall be disregarded by the Agent
unless such subsequent Competitive Bid
Quote specifically states that it is
submitted solely to correct a manifest
error in such former Competitive Bid
Quote, and absent such manifest error, each
original Competitive Bid Quote shall
be irrevocable for the period to and
including the proposed Borrowing Date or
such earlier date, if any, at which such
Competitive Bid Quote is rejected in
writing by Borrower. The Agent's notice to
the Borrower shall specify the
aggregate principal amount of Competitive
Bid Loans for which offers have been
received.
4.6 Acceptance and Notice by Borrower. Not
later than 10:00 A.M. (Birmingham,
Alabama, time) two (2) Domestic Business
Days prior to the Borrowing Date, the
Borrower shall notify the Agent of its
acceptance or rejection of the offers so
notified to it pursuant to Section 4.5 and
of the account of Borrower into which
such Competitive Bid Advance is to be
disbursed; provided, however, that the
failure by the Borrower to give such notice
to the Agent shall be deemed to be a
rejection of all such offers. Not later
than 11:00 A.M. (Birmingham, Alabama,
time) on such date, Agent shall notify the
Lenders of (1) the name of the
Lender(s) whose bid(s) is (are) accepted by
Borrower, (2) the principal amount,
interest rate, and term of the Competitive
Bid Quote accepted by Borrower, and
(3) the account designated by Borrower into
which the Competitive Bid Advance is
to be disbursed. The Lender(s) whose bid(s)
is (are) accepted by Borrower shall
make the Competitive Bid Advance into the
account designated by Borrower by 1:00
P.M. (Birmingham, Alabama, time) on the
Borrowing Date.
4.7 Interest Rate and Payments. Interest on
Competitive Bid Loans shall accrue
at the per annum rate equal to the sum of
the Competitive Bid Margin plus the
Adjusted London Interbank Offered Rate for
such applicable Interest Period,
which such Adjusted London Interbank
Offered Rates shall be calculated two (2)
Euro-Dollar Business Days prior to the
funding of the Competitive Bid Advance.
Interest on Competitive Bid Loans shall be
payable (i) on the Stated Maturity
Date for Competitive Bid Loans with an
Interest Period of one month and (ii) on
the tenth (10th) day of each month for
Competitive Bid Loans with an Interest
Period of two and/or three months. Interest
on Competitive Bid Loans shall be
payable in arrears. The outstanding
principal balance of Competitive Bid Loans,
together with all accrued and unpaid
interest thereon, shall be due and payable
in full on the Stated Maturity Date.
4.8 Prepayment. Competitive Bid Loans may
not be prepaid except in the sole
discretion of the Lender who made such
Competitive Bid Loan and subject to
Section 6.5(e).
Article 5.........SWING LOAN
5.1 Disbursement of Swing Loan Advances.
Subject to the terms and conditions of
this Agreement, and for so long as no Event
of Default exists and no covenant,
term or condition contained in any of the
Credit Documents will be breached or
violated as a result of such Swing Loan
Advance, SouthTrust agrees to make Swing
Loan Advances to Borrower from time to time
during the Commitment Period, in an
aggregate principal amount at any time
outstanding not to exceed $25,000,000
less the outstanding principal balance of
the Swing Loan Note. The Swing Loan
shall mature and be payable in full upon
the Commitment Termination Date. During
such time, Borrower may borrow, repay and
reborrow the principal of the Swing
Loan, all in accordance with the terms and
conditions of this Agreement.
Notwithstanding anything to the contrary
contained herein, SouthTrust shall be
required to make Swing Loan Advances only
to the extent that Lenders are
obligated to make Revolving Advances
hereunder.
5.2 The Swing
Loan Note. The
liability of the Borrower to pay the Swing
Loan shall be evidenced by the Swing Loan Note.
-------------------
5.3
Payments.
--------
(a) On the tenth day of each calendar month
during the Commitment Period,
Borrower shall pay to Agent, for the
account of SouthTrust, all accrued and
unpaid interest on the outstanding
principal balance of the Swing Loan.
(b) On the Commitment Termination Date, the
outstanding principal balance of the
Swing Loan, plus all accrued and unpaid
interest thereon, shall be due and
payable.
5.4 Interest
Rate.
-------------
(a) The unpaid principal balance of the
Swing Loan shall bear interest at the
LIBOR Plus Rate, for an Interest Period of
one month as calculated two (2)
Euro-Dollar Business Days prior to the end
of a calendar month, with such LIBOR
Plus Rate being effective for the entire
subsequent month and being recalculated
for each subsequent calendar month
thereafter pursuant to the foregoing
procedure.
(b) Credit Parties agree that
notwithstanding the fact that the interest rate
accruing on the Swing Loan is based upon
SouthTrust's cost of funds in the
Euro-Dollar Market, SouthTrust shall not be
required to actually obtain funds
from such source at any time.
5.5 Prepayment. Except as provided in
Section 6.10 herein, the principal of the
Swing Loan may be prepaid in whole or in
part without premium or penalty;
provided that Borrower shall orally notify
Agent at least two (2) Domestic
Business Days in advance of any prepayment
in excess of $5,000,000.
5.6 Termination by Borrower of the Swing
Loan. Provided that no Swing Loan
Advances or Advances are outstanding and no
Letters of Credit are outstanding,
and provided further that Borrower has
terminated the Revolving Loan and
Competitive Bid Loans in the manner set
forth in Section 2.7., Borrower may, by
written notice to SouthTrust, also
terminate the Swing Loan upon the date
specified in such notice.
5.7 Procedure
for Swing Loan Advances.
(a) Swing Loan Advances shall be disbursed
to fund the day to day operations of
Borrower, and Borrower shall be deemed to
have requested a Swing Loan Advance,
pursuant to the Cash Management Agreements,
as necessary to cover any excess of
disbursements over receipts, or as
otherwise permitted pursuant to the Cash
Management Agreements.
(b) Upon the occurrence of an Event of
Default, and notwithstanding anything to
the contrary in Section 13.5 or any other
provision of this Agreement, the Swing
Commitment shall terminate, and each other
Lender will purchase from SouthTrust
its Total Commitment Percentage of the
Swing Loan, and SouthTrust shall purchase
from the other Lenders the remainder of its
Total Commitment Percentage in the
Revolving Loan, such that upon an Event of
Default each Lender will hold its
Total Commitment Percentage of the
Revolving Loan, Swing Loan and Reimbursement
Obligation. Each Lender's obligation to
purchase its Total Commitment Percentage
of the Swing Loan and the SouthTrust
obligation to purchase its Total Commitment
Percentage in the Revolving Loan shall be
absolute and unconditional and shall
not be affected by any circumstance,
including, without limitation, (i) any
setoff, counterclaim, recoupment, defense
or other right which such Lender or
any other Person may have against
SouthTrust or any other Person for any reason
whatsoever; (ii) the occurrence or
continuance of a Default or Event of Default
or the Commitment Termination Date; (iii)
any adverse change in the condition
(financial or otherwise) of any Credit
Party or any of their Subsidiaries; (iv)
any breach of this Agreement or any of the
other Credit Documents by any Credit
Party, SouthTrust, or any Lender; or (v)
any other circumstance, happening or
event whatsoever, whether or not similar to
any of the foregoing.
Notwithstanding anything to the contrary
contained in this Agreement, after an
Event of Default and termination of the
Swing Loan, all subsequent Advances, if
any, shall be made based upon the Total
Commitment Percentage and the term
"Revolving Commitment Percentage", as
contained in this Agreement, shall read as
"Total Commitment Percentage".
Article 6.........GENERAL PROVISIONS
RELATING TO
ALL LOANS AND LETTERS OF CREDIT
6.1 Interest
Calculation; Late Charge; Default Rate.
(a) All rates of interest to be applied to
the principal of the Loans shall be
calculated on a simple basis for a 360-day
year by multiplying the outstanding
principal amount by the applicable per
annum rate, multiplying the product
thereof by the actual number of days
elapsed, and dividing the product so
obtained by 360.
(b) Borrower shall pay to Agent, for the
account of Lenders, a late charge equal
to two percent (2%) of any payment which is
not received by Agent within fifteen
(15) days of the due date therefor in order
to cover the additional expenses
incident to the handling and processing of
delinquent payments.
(c) Upon the occurrence and during the
continuance of an Event of Default, the
outstanding principal balance of the Loans
shall bear interest at the Default
Rate.
6.2 Use of Proceeds. The proceeds of the
Loans shall be used by Borrower, and
the Letters of Credit shall be used by
Borrower, for pre-development costs,
development costs, acquisition costs,
working capital, equity investments,
repayment of indebtedness, and general
corporate purposes of Borrower.
6.3 Place, Manner, Time and Extension of
Payment. All sums payable hereunder and
under the Notes shall be paid to Agent for
the account of the Lenders (or, in
the case of Competitive Bid Notes, for the
account of the applicable Lender,
