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SWING CREDIT AGREEMENT
By and Among
WACHOVIA BANK, N.A.,
AS SWING BANK,
AND
WEEKS REALTY, L.P.,
AS BORROWER,
and
WEEKS CORPORATION, WEEKS GP HOLDINGS, INC.
AND WEEKS LP HOLDINGS, INC.,
AS GUARANTORS,
IN THE MAXIMUM AMOUNT OF
$20,000,000
JULY 1, 1998
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TABLE OF CONTENTS
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PAGE NO.
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ARTICLE I DEFINITIONS AND CONSTRUCTION............................... 1
1.01 TERMS IN SYNDICATED CREDIT AGREEMENT....................... 1
1.02 OTHER DEFINED TERMS........................................ 2
"ADVANCE REQUEST"................................................. 2
"AGREEMENT"........................................................ 2
"AUTHORIZED SIGNATORY"............................................. 2
"AVAILABLE SWING CREDIT"........................................... 2
"EXPIRATION DATE".................................................. 2
"LIBOR RATE"....................................................... 2
"SWING CREDIT FACILITY"............................................ 2
"SWING LINE COMMITMENT"............................................ 2
"SWING LINE COMMITMENT PERIOD"..................................... 2
"SWING LINE DEFAULT"............................................... 3
"SWING LINE MASTER NOTE"........................................... 3
"SWING LOAN DOCUMENTS"............................................. 3
"SWING LOAN GUARANTIES"............................................ 3
"SWING LOANS"...................................................... 3
"SWING OBLIGATIONS"................................................ 3
"SYNDICATED CREDIT AGREEMENT"...................................... 3
"SYNDICATED CREDIT OBLIGATIONS".................................... 3
"WEEKLY LIBOR INDEX RATE".......................................... 4
1.03 REFERENCES.................................................. 4
1.04 USE OF DEFINED TERMS........................................ 4
1.05 TERMINOLOGY; CONSTRUCTION................................... 4
ARTICLE II SWING CREDIT FACILITY...................................... 4
2.01 SWING LINE OF CREDIT........................................ 4
2.02 EXPIRATION; EXTENSION....................................... 4
2.03 RATE OF INTEREST............................................ 5
2.04 NOTICE AND MANNER OF BORROWING.............................. 6
2.05 INTEREST PAYMENTS........................................... 6
2.06 MATURITY.................................................... 6
2.07 PERMITTED PREPAYMENT OF SWING LOANS......................... 6
2.08 DEFAULT RATE OF INTEREST.................................... 6
2.09 FACILITY FEE................................................ 7
2.10 USE OF PROCEEDS............................................. 7
2.11 COSTS; ILLEGALITY; CAPITAL ADEQUACY......................... 7
ARTICLE III CONDITIONS TO SWING CREDIT FACILITY....................... 8
3.01 BORROWER'S AUTHORITY........................................ 8
3.02 GUARANTORS' AUTHORITY....................................... 8
3.03 CONDITIONS TO SYNDICATED CREDIT FACILITY.................... 9
3.04 REPRESENTATIONS AND WARRANTIES.............................. 9
3.05 SWING LINE MASTER NOTE...................................... 9
3.06 SWING LOAN GUARANTIES....................................... 9
3.07 OPINION OF COUNSEL.......................................... 9
3.08 CERTIFICATE OF INCUMBENCY................................... 9
3.09 OTHER DOCUMENTATION......................................... 9
3.10 GENERAL CONDITIONS.......................................... 9
ARTICLE IV CONDITIONS TO SWING LOANS.................................. 9
4.01 REPRESENTATIONS AND WARRANTIES.............................. 9
4.02 AVAILABLE SWING CREDIT...................................... 10
4.03 NO MATERIAL ADVERSE CHANGE.................................. 10
4.04 FULL COMPLIANCE............................................. 10
4.05 NO DEFAULT; NO CLAIMS....................................... 10
4.06 INCUMBENCY.................................................. 10
ARTICLE V REPRESENTATIONS AND WARRANTIES............................. 10
5.01 REPRESENTATIONS AND WARRANTIES IN
SYNDICATED CREDIT AGREEMENT.............................. 10
5.02 POWER AND AUTHORITY......................................... 10
5.03 ENFORCEABILITY.............................................. 11
5.04 VIOLATION OF ORGANIZATIONAL DOCUMENTS....................... 11
5.05 CONFLICTS................................................... 11
5.06 MISREPRESENTATIONS.......................................... 11
ARTICLE VI AFFIRMATIVE COVENANTS...................................... 11
6.01 AFFIRMATIVE COVENANTS IN
SYNDICATED CREDIT AGREEMENT.............................. 12
6.02 INSPECTION.................................................. 12
ARTICLE VII NEGATIVE COVENANTS........................................ 12
ARTICLE VIII FINANCIAL COVENANTS...................................... 12
ARTICLE IX SWING LINE DEFAULT......................................... 12
9.01 NONPAYMENT OF SWING OBLIGATIONS............................. 12
9.02 BREACH OF WARRANTY OR REPRESENTATION........................ 12
9.03 BREACH OF COVENANTS......................................... 13
9.04 SWING LOAN GUARANTIES....................................... 13
9.05 DEFAULTS UNDER SYNDICATED CREDIT AGREEMENT.................. 13
ARTICLE X RIGHTS AND REMEDIES......................................... 13
10.01 PRIOR TO SWING LINE DEFAULT................................. 13
10.02 UPON SWING LINE DEFAULT..................................... 13
10.03 CURE OF DEFAULTS............................................ 13
10.04 COSTS OF COLLECTION......................................... 14
10.05 SETOFF...................................................... 14
ARTICLE XI FEES AND EXPENSES; INDEMNIFICATION......................... 15
11.01 FEES AND EXPENSES........................................... 15
11.02 INDEMNIFICATION............................................. 15
ARTICLE XII TERM...................................................... 16
ARTICLE XIII MISCELLANEOUS............................................ 16
13.01 CUMULATIVE RIGHTS; NON-WAIVER............................... 16
13.02 NO OBLIGATION TO THIRD PARTIES.............................. 16
13.03 SUCCESSORS AND ASSIGNS...................................... 17
13.04 GOVERNING LAW............................................... 17
13.05 SURVIVAL OF OBLIGATIONS..................................... 17
13.06 ENTIRE AGREEMENT............................................ 17
13.07 INVALIDITY.................................................. 17
13.08 CHANGES IN FORMS............................................ 17
13.09 NOTICES..................................................... 17
13.10 TIME OF THE ESSENCE......................................... 19
13.11 EXECUTION IN COUNTERPARTS................................... 19
13.12 CONFLICT WITH MANDATE LETTER................................ 19
13.13 MISCELLANEOUS............................................... 19
TABLE OF EXHIBITS
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Exhibit A - Advance Request
Exhibit B - Swing Line Master Note
Exhibit C - Swing Loan Guaranty
SWING CREDIT AGREEMENT
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THIS SWING CREDIT AGREEMENT (the "AGREEMENT") is made and entered into as
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of July 1, 1998, by and between WEEKS REALTY, L.P., a Georgia limited
partnership ("BORROWER"), WEEKS CORPORATION, a Georgia corporation ("WEEKS
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CORPORATION"), WEEKS GP HOLDINGS, INC., a Georgia corporation ("GP HOLDINGS"),
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WEEKS LP HOLDINGS, INC., a Georgia corporation ("LP HOLDINGS"; Weeks
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Corporation, GP Holdings and LP Holdings, collectively, "GUARANTORS," and each,
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individually, a "GUARANTOR"), and WACHOVIA BANK, N.A., a national banking
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association ("SWING BANK").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower desires to borrow, repay and reborrow money from Swing
Bank, on the terms and conditions set forth herein; and
WHEREAS, Swing Bank is willing to make loans to Borrower, in amounts which
do not exceed at any one time the principal sum outstanding of $20,000,000.00,
on the terms and conditions set forth herein; and
WHEREAS, Weeks Corporation is the owner of 100% of the issued and
outstanding capital stock of GP Holdings and 100% of the issued and outstanding
capital stock of LP Holdings; and
WHEREAS, GP Holdings constitutes the sole general partner of Borrower, and
LP Holdings holds a majority interest in Borrower as a limited partnership
interest; and
WHEREAS, the loans will be to the direct financial interest and advantage
of Guarantors, and in order to induce Swing Bank to enter into this Agreement
and to make loans to Borrower pursuant to its terms, Guarantors have agreed to
guaranty the full and prompt payment and performance when due of the Swing
Obligations (as defined herein), to become parties to this Agreement and to
become bound by the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, the parties hereto agree as follows:
ARTICLE I
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DEFINITIONS AND CONSTRUCTION
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1.01 TERMS IN SYNDICATED CREDIT AGREEMENT. Unless otherwise stated in
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this Agreement, capitalized terms defined in the Syndicated Credit Agreement and
used but not otherwise defined in this Agreement shall have the meanings
ascribed to such terms in the Syndicated Credit Agreement, unless the context
otherwise requires.
1.02 OTHER DEFINED TERMS. In addition to those terms defined elsewhere
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in this Agreement, as used in this Agreement, the following terms shall have the
following meanings, unless the context otherwise requires:
"ADVANCE REQUEST" shall mean a request for a Swing Loan, in the form of
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Exhibit A, which is attached hereto and incorporated herein by reference.
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"AGREEMENT" shall mean this Swing Credit Agreement, together with any
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amendments or supplements hereto and schedules or exhibits hereto.
"AUTHORIZED SIGNATORY" shall mean, with respect to a person, such senior
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officer of such person as may be duly authorized and designated in writing by
such person to execute documents, agreements and instruments, including the
Swing Loan Documents, on behalf of such person.
"AVAILABLE SWING CREDIT" shall mean the amount, if any, by which the Swing
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Line Commitment exceeds the unpaid principal balance of the Swing Loans.
"EXPIRATION DATE" shall mean the date which is 364 days after the date of
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this Agreement or such later date to which the expiration of the Swing Credit
Facility may be extended pursuant to the provisions of Section 2.02.
"LIBOR RATE" shall mean an interest rate which, as of the date of this
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Agreement, is equal to the sum of (a) the Weekly LIBOR Index Rate determined as
of 11:00 a.m., London time, on the second Eurodollar Business Day immediately
preceding the first Domestic Business Day of the calendar week in which the date
of this Agreement occurs, plus (b) the Applicable Margin, and which, after the
date of this Agreement, shall be adjusted on the first Domestic Business Day of
each calendar week to reflect changes, if any, in the Weekly LIBOR Index Rate
determined as of 11:00 a.m., London time, on the second Eurodollar Business Day
immediately preceding the first Domestic Business Day of such calendar week.
"SWING CREDIT FACILITY" shall mean the swing credit facility established by
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Swing Bank for the benefit of Borrower pursuant to Article II.
"SWING LINE COMMITMENT" shall mean $20,000,000.
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"SWING LINE COMMITMENT PERIOD" shall mean the period of time commencing on
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the date of this Agreement and continuing through and including the original
Expiration Date (determined before any extension of the Expiration Date shall be
effected hereunder).
"SWING LINE DEFAULT" shall mean any of the events or conditions described
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in Article IX.
"SWING LINE MASTER NOTE" shall mean Borrower's Swing Line Master Note, made
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payable to the order of Swing Bank and in the form of Exhibit B, evidencing the
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Swing Loans, as amended from time to time.
"SWING LOAN DOCUMENTS" shall mean this Agreement, the Swing Line Master
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Note, and all other documents, agreements, certificates, and reports called for
herein or executed in connection herewith or contemplated hereby.
"SWING LOAN GUARANTIES" shall mean, collectively, an unconditional guaranty
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of payment and performance, in the form of Exhibit C, which is attached hereto
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and incorporated herein by reference, executed by each Guarantor, in favor of
Swing Bank, whereby such Guarantor unconditionally guaranties the payment and
performance when due of all Swing Obligations of Borrower to Swing Bank, and a
"SWING LOAN GUARANTY" shall mean any such unconditional guaranty.
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"SWING LOANS" shall mean all advances made by Swing Bank under the Swing
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Credit Facility. A "SWING LOAN" shall mean an individual advance made by Swing
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Bank under the Swing Credit Facility.
"SWING OBLIGATIONS" shall mean the aggregate amount of all indebtedness,
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liabilities and obligations of Borrower to Swing Bank under, pursuant to or
arising out of this Agreement, including, without limiting the generality of the
foregoing: any and all indebtedness, liabilities and obligations of Borrower to
Swing Bank evidenced by the Swing Line Master Note and any extensions or
renewals thereof; all principal and interest owing under any of the foregoing;
all Swing Bank's fees, charges and expenses of or incidental to the preparation,
renewal, modification or enforcement of any of the foregoing and any and all
extensions or renewals thereof in whole or in part; whether or not any of the
foregoing is absolute, contingent, mature, unmatured, or otherwise; and all
Swing Bank's charges, expenses, and costs of collection of any or all of the
foregoing, including reasonable attorneys' fees actually incurred.
"SYNDICATED CREDIT AGREEMENT" shall mean that certain Syndicated Credit
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Agreement, dated as of May [ ], 1998, by and among Borrower, as borrower,
Guarantors, as guarantors, Agent, as agent for Banks, and Banks.
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"SYNDICATED CREDIT OBLIGATIONS" shall mean the Obligations (as defined in
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the Syndicated Credit Agreement).
"WEEKLY LIBOR INDEX RATE" shall mean the interest rate denominated as Swing
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Bank's "Weekly LIBOR Index Rate" and set by Swing Bank from time to time in its
sole discretion, taking into account the prevailing London Interbank Offered
Rate (LIBOR), as published by the BBA and reported by Telerate (Screen 3750)
(or, in the absence or unavailability of Telerate (Screen 3750), as such rate is
determined by Swing Bank by any other means available to Swing Bank), for a term
of seven (7) days, and such other factors as Swing Bank shall deem relevant.
1.03 REFERENCES. Unless otherwise indicated, references in this
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Agreement to "Articles," "Exhibits," "Schedules," "Sections" and other
subdivisions or paragraphs are references to articles, exhibits, schedules,
sections and other subdivisions or paragraphs hereof.
1.04 USE OF DEFINED TERMS. All terms defined in this Agreement shall
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have the same defined meanings when used in any of the other Swing Loan
Documents, unless otherwise defined therein or unless the context shall require
otherwise.
1.05 TERMINOLOGY; CONSTRUCTION. All personal pronouns used in this
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Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only and neither limit nor amplify the provisions of this
Agreement. When anything is described or referred to in the Swing Loan
Documents in general terms and one or more examples or components of what has
been described or referred to generally is associated with that description
(whether or not following the word "including"), the examples or components
shall be deemed illustrative only and shall not be construed as limiting the
generality of the description or reference in any way.
ARTICLE II
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SWING CREDIT FACILITY
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2.01 SWING LINE OF CREDIT. Upon the satisfaction of each of the
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conditions of Article III, Swing Bank shall extend a line of credit to Borrower
under which Swing Bank will, subject to the conditions of Article IV and all
other terms and conditions of this Agreement, from time to time at Borrower's
request, make Swing Loans to Borrower in amounts not to exceed the Available
Swing Credit, which may be borrowed, repaid and reborrowed, from time to time,
in one or more borrowings prior to the Expiration Date. The Swing Loans made by
Swing Bank shall be evidenced by the Swing Line Master Note.
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2.02 EXPIRATION; EXTENSION. The Swing Credit Facility shall expire on
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the Expiration Date, at which time the principal amount of all Swing Loans then
outstanding and all accrued but unpaid interest thereon shall be due and payable
in full. The expiration of the Swing Credit Facility may be extended only in
accordance with the following:
(a) Borrower may, in its sole discretion, give written notice to Swing
Bank, no sooner than 90 days and no later than 60 days before the then effective
Expiration Date, of its request to extend the expiration of the Swing Credit
Facility for a term ending 364 days after the then effective Expiration Date.
In the event that Swing Bank receives any such written request, Swing Bank may,
no later than 45 days before the then effective Expiration Date, give written
notice to Borrower of its determination, in its sole discretion, to make an
offer or not to make an offer to Borrower to extend the expiration of the Swing
Credit Facility for a term ending 364 days after the then effective Expiration
Date, and, if it shall have determined to make such an offer, the terms and
conditions of the offer and the amount of the extension fee which Swing Bank
shall require in consideration of the extension.
(b) In the event that, no later than the then effective Expiration
Date, Borrower (i) accepts in writing the offer in accordance with those terms
and conditions set forth by Swing Bank in such written notice, (ii) pays Swing
Bank the extension fee required by Swing Bank, and (iii) executes and delivers
to Swing Bank an amendment to the Swing Line Master Note and such other
amendments, instruments or other documents required by Swing Bank as a condition
to the extension, all in form and substance acceptable to Swing Bank, the
Expiration Date shall thereupon be extended to the last day of the 364 day term
for which such extension shall have been offered.
(c) In the event that (i) Borrower fails to give written notice to
Swing Bank, before 60 days before the then effective Expiration Date, of its
request to extend the expiration of the Swing Credit Facility, or (ii) Swing
Bank fails, before 45 days before the then effective Expiration Date, to respond
to such a written notice from Borrower, or (iii) Swing Bank gives written notice
to Borrower of its determination, in its sole discretion, not to make an offer
to Borrower to extend the Swing Credit Facility, or (iv) Swing Bank offers to
extend the Expiration Date, before 45 days before the then effective Expiration
Date but Borrower does not accept the offer, pay the stipulated extension fee,
and execute and deliver the documents required as a condition to the extension,
all on or before the then effective Expiration Date, the Swing Credit Facility
shall not be extended, and the principal amount of all Swing Loans then
outstanding and all accrued but unpaid interest thereon shall be due and payable
in full on such Expiration Date.
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2.03 RATE OF INTEREST. Interest shall accrue on the unpaid principal
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amount of the Swing Line Master Note at the LIBOR Rate. Notwithstanding any
provision of this Agreement to the contrary, if Swing Bank determines in good
faith that it is not possible to determine the applicable LIBOR Rate or the
LIBOR Rate shall not cover the actual cost to Swing Bank of obtaining United
States dollar deposits in the Interbank Eurodollar Market plus the Applicable
Margin, then Swing Bank shall promptly notify Borrower, and the principal amount
of the Swing Line Master Note shall thereafter accrue interest at the Floating
Rate.
2.04 NOTICE AND MANNER OF BORROWING. (a) Borrower shall give Swing
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Bank an Advance Request prior to 10:00 a.m. (Atlanta, Georgia time) on the
Banking Day on which the Swing Loan is to be made.
(b) Upon receipt by Swing Bank of an Advance Request, such Advance
Request shall not thereafter be revocable by Borrower.
(c) Unless Swing Bank determines that any applicable condition
specified in Article IV hereof has not been satisfied, Swing Bank will make the
funds available to Borrower by crediting a checking account maintained by
Borrower with Swing Bank.
(d) All Advance Requests shall specify the date, amount, and such
other information called for in the form of the Advance Request. Any such
notice which Swing Bank believes in good faith to have been given by a duly
authorized agent of Borrower shall be deemed given by Borrower.
2.05 INTEREST PAYMENTS. Beginning on the first (1st) day of the first
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(1st) month after the initial Swing Loan is made and continuing on the first
(1st) day of each month thereafter so long as there is any principal amount or
accrued and unpaid interest outstanding under the Swing Line Master Note,
accrued and unpaid interest on the unpaid principal amount of the Swing Line
Master Note shall be due and payable. Interest payable on the Swing Line Master
Note shall be computed on the basis of a hypothetical year of 360 days for the
actual number of days elapsed.
2.06 MATURITY. The entire unpaid principal amount of the Swing Line
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Master Note, together with all accrued and unpaid interest thereon, shall be due
and payable on the Expiration Date.
2.07 PERMITTED PREPAYMENT OF SWING LOANS. All or part of the
-----------------------------------
outstanding principal amount of any Swing Loan may be prepaid at any time
without penalty or premium.
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2.08 DEFAULT RATE OF INTEREST. If a Swing Line Default shall occur,
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then, at the option of Swing Bank, interest shall accrue on the unpaid principal
amount of the Swing Loans from and after the date of such occurrence through and
including the date on which such Swing Line Default shall have been cured at
rates of interest equal to the rates otherwise applicable to such Swing Loans
plus an additional two percent (2.00%) per annum (200 basis points).
2.09 FACILITY FEE. A Facility Fee, which shall be computed as set forth
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below, shall be due and payable on the effective date of this Agreement and
shall be deemed fully earned and nonrefundable when paid. The Facility Fee
shall be computed by (a) multiplying the Swing Line Commitment by .10% (10
basis points), (b) dividing the product so obtained by 360, and (c) multiplying
the quotient so obtained by the actual number of days in the Swing Line
Commitment Period.
2.10 USE OF PROCEEDS. Proceeds of the Swing Loans shall be used
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solely for those purposes for which the proceeds of the Loans may be used as set
forth in Section 2.09 of the Syndicated Credit Agreement.
2.11 INCREASED COSTS; ILLEGALITY; CAPITAL ADEQUACY. (a) If Swing Bank
---------------------------------------------
should suffer any increased cost in connection with any Swing Loan, as a result
of any change subsequent to the date hereof causing the imposition or increase
of any reserve, insurance, tax or assessment requirement (other than a tax
assessable on Swing Bank's overall net income or gross receipts) or the
compliance with any guidelines or requests from any governmental authority
issued subsequent to the date hereof (whether or not having the force of law),
Swing Bank shall, upon becoming aware of such increased costs, certify to
Borrower the amount thereof (and such certification shall be deemed prima facie
----- -----
correct), whereupon Borrower shall have the option either to: (i) repay in full
the Swing Line Master Note and request Swing Bank to terminate this Agreement;
or (ii) continue to borrow from Swing Bank under the terms of this Agreement and
pay Swing Bank, on subsequent interest payment dates, such additional amounts as
will compensate Swing Bank, from the date of receipt of certification, for such
increased costs.
(b) In the event that the introduction of or any change subsequent to
the date hereof in any applicable law, rule or regulation or in the
interpretation or administration thereof or compliance by Swing Bank with any
request or directive (whether or not having the force of law) of any
governmental authority shall, in the determination of Swing Bank (which
determination shall be made in good faith and shall be deemed prima facie
----- -----
correct) make it unlawful or impractical for Swing
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Bank to make, fund or maintain any Swing Loan, Swing Bank shall promptly, upon
becoming aware of such event, notify Borrower, whereupon Borrower shall, within
thirty (30) days after such notice, pay Swing Bank in full such amounts as will
compensate Swing Bank for any losses (not including lost profits) or expenses
which Swing Bank shall have sustained or incurred as a result of such event (and
the determination of which by Swing Bank shall be deemed prima facie correct, as
----- -----
certified by Swing Bank).
(c) If, after the date hereof, the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the administration thereof, or compliance
by Swing Bank with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, affects the amount of capital required or expected to be
maintained by Swing Bank or any person or entity in Control of Swing Bank and
Swing Bank determines that the amount of said capital is increased by or based
upon Swing Bank's obligations hereunder, then Swing Bank will promptly notify
Borrower thereof, and from time to time, within 30 days after demand by Swing
Bank, Borrower shall pay to Swing Bank such additional amount or amounts as will
compensate Swing Bank in light of such circumstances, to the extent that Swing
Bank reasonably determines such increase in capital is allocable to its
obligations hereunder.
(d) Swing Bank shall deliver to Borrower a certificate setting forth
in reasonable detail the calculations of any additional amounts required in
order to compensate Swing Bank under subparagraphs (a), (b) and (c) of this
Section 2.11. In determining any such amounts, Swing Bank may use any
reasonable averaging and attribution method, provided that Swing Bank shall use
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such methods in good faith, and such methods and the resulting charges to
Borrower shall be in accordance with those generally used by Swing Bank for this
purpose.
ARTICLE III
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CONDITIONS TO SWING CREDIT FACILITY
-----------------------------------
The obligation of Swing Bank to extend the Swing Credit Facility and to
make the initial Swing Loan thereunder is subject to the satisfaction of the
following conditions:
3.01 BORROWER'S AUTHORITY. Swing Bank shall have received a
--------------------
Certificate of General Partner of Borrower, in form and substance acceptable to
Swing Bank, authorizing the execution, delivery and performance of this
Agreement, together with such other papers, certifications or other documents as
Swing Bank may require to
-8-
evidence that Borrower has the legal power and authority to enter into this
Agreement and consummate the transactions contemplated hereby.
3.02 GUARANTORS' AUTHORITY. Swing Bank shall have received certified
---------------------
copies of resolutions of Weeks Corporation's, GP Holdings' and LP Holdings'
respective Boards of Directors authorizing the execution, delivery and
performance of this Agreement and the Swing Loan Guaranty executed by it,
together with such other papers, certifications or corporate documents of
Guarantors, as Swing Bank may require to evidence that each such Guarantor has
the power and authority to enter into this Agreement, the Swing Loan Guaranty
executed by it, and the transactions contemplated hereby.
3.03 CONDITIONS TO SYNDICATED CREDIT FACILITY. Each of the
----------------------------------------
conditions set forth in Article IV of the Syndicated Credit Agreement shall have
been met.
3.04 REPRESENTATIONS AND WARRANTIES. The representations and warranties
------------------------------
of Borrower set forth in Article delivered pursuant hereto or in connection
herewith shall be true and correct in all material respects.
3.05 SWING LINE MASTER NOTE. Swing Bank shall have received the
----------------------
original of the Swing Line Master Note, duly executed and delivered by Borrower.
3.06 SWING LOAN GUARANTIES. Swing Bank shall have received the
---------------------
original Swing Loan Guaranties, duly executed and delivered by Guarantors.
3.07 OPINION OF COUNSEL. Swing Bank shall have received a
------------------
favorable opinion letter from King & Spalding, counsel for Borrower, in form and
substance satisfactory in form and substance to Swing Bank and its counsel.
3.08 CERTIFICATE OF INCUMBENCY. Swing Bank shall have received an
-------------------------
original Certificate of Incumbency from Borrower and each Guarantor with respect
to the Authorized Signatory of each such party.
3.09 OTHER DOCUMENTATION. Swing Bank shall have received such other
-------------------
loan documentation as deemed reasonably necessary or desirable by Swing Bank or
its counsel, satisfactory in form and substance to Swing Bank, providing for the
Swing Loans to be made.
3.10 GENERAL CONDITIONS. Each of the conditions set forth in Article
------------------
IV shall have been satisfied.
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ARTICLE IV
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CONDITIONS TO SWING LOANS
-------------------------
The obligation of Swing Bank to make any Swing Loan is subject to the
satisfaction of the following conditions at the time of the request for the
Swing Loan:
4.01 REPRESENTATIONS AND WARRANTIES. The representations and warranties
------------------------------
contained in this Agreement and in the Syndicated Credit Agreement shall have
been true and correct in all material respects when made, and such
representations and warranties and those made by or on behalf of Borrower in
connection with the Swing Loan shall remain true and correct in all material
respects, except as otherwise disclosed in writing pursuant to the Syndicated
Credit Agreement to Swing Bank.
4.02 AVAILABLE SWING CREDIT. The amount of the Swing Loan shall not
----------------------
exceed the Available Swing Credit.
4.03 NO MATERIAL ADVERSE CHANGE. The financial condition of Weeks
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Corporation and the Subsidiaries (all of the foregoing taken as a whole), and of
Borrower (standing alone) shall not have materially adversely changed from its
or their financial conditions, respectively, as of the date of this Agreement.
4.04 FULL COMPLIANCE. Borrower and Weeks Corporation shall be in full
---------------
compliance with all the terms and conditions of this Agreement and the
Syndicated Credit Agreement.
4.05 NO DEFAULT; NO CLAIMS. No Swing Line Default or an event that upon
---------------------
notice or lapse of time or both, would constitute a Swing Line Default shall
have occurred, and there will be no claim, action, suit or proceeding pending or
threatened against Weeks Corporation or any Subsidiary that would result in a
material adverse change in the financial condition, assets, or operations of
Weeks Corporation and the Subsidiaries (all of the foregoing taken as a whole)
or of Borrower (standing alone).
4.06 INCUMBENCY. The Authorized Signatories of each party executing and
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delivering any document to Swing Bank in connection with the Swing Loan shall be
as set forth in the applicable Certificate of Incumbency delivered to Swing Bank
pursuant to Section 3.08 or as subsequently modified and reflected in an updated
Certificate of Incumbency delivered to Swing Bank.
ARTICLE V
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REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce Swing Bank to enter into the Swing Loan Documents and to
make or extend Swing Loans as contemplated
-10-
hereby, Borrower represents and warrants to Swing Bank, each of which
representations and warranties is deemed to be material, that:
5.01 REPRESENTATIONS AND WARRANTIES IN SYNDICATED CREDIT AGREEMENT. All
-------------------------------------------------------------
of the representations and warranties contained in the Syndicated Credit
Agreement are true and correct in all material respects as of the date hereof.
5.02 POWER AND AUTHORITY. Borrower and Guarantors each has full right,
-------------------
power and authority to enter into the Swing Loan Documents and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement and the documents
contemplated to be executed and delivered hereby.
5.03 ENFORCEABILITY. The Swing Loan Documents constitute valid
--------------
obligations of the parties executing the same, legally binding upon Borrower and
each Guarantor, as the case may be, and enforceable in accordance with their
terms, except as enforcement may be affected by bankruptcy, insolvency and other
laws and equitable principles affecting the rights and remedies of creditors
generally and except as may be limited by general principles of equity. No
consent, license, or approval of any governmental authority, bureau or agency is
required in connection with the execution, delivery, performance, validity or
enforceability of the Swing Loan Documents.
5.04 VIOLATION OF ORGANIZATIONAL DOCUMENTS. The execution, delivery and
-------------------------------------
performance of the Swing Loan Documents will not violate the provisions of the
Articles of Incorporation or By-Laws of Weeks Corporation, Construction, Realty,
GP Holdings or LP Holdings, or the partnership agreements or certificates of
Borrower, Development or Financing.
5.05 CONFLICTS. The execution, delivery and performance of the Swing Loan
---------
Documents will not violate the provisions of any Mortgage, indenture, security
agreement, contract, undertaking or other agreement to which Borrower or any
Guarantor, or any combination thereof, is a party, or which purports to be
binding upon Borrower or any Guarantor, or any combination thereof, or any of
their respective properties or assets. No consent, approval, authorization,
waiver or notice to any other person or entity is required for the execution,
delivery and performance of the Swing Loan Documents by Borrower and Guarantors,
except for such consents, approvals, authorizations, and waivers which have been
obtained, are unconditional and are in full force and effect, and such notices
which have been given.
5.06 MISREPRESENTATIONS. No representation or warranty by Borrower made
------------------
herein and no statement or certificate to be furnished to Swing Bank pursuant
hereto in connection with the
-11-
transactions contemplated hereby contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact necessary to
make the statements contained therein not misleading.
ARTICLE VI
----------
AFFIRMATIVE COVENANTS
---------------------
Borrower covenants and agrees with Swing Bank that from and after the date
hereof, and so long as any Swing Obligations remain outstanding or this
Agreement remains in effect, that:
6.01 AFFIRMATIVE COVENANTS IN SYNDICATED CREDIT AGREEMENT. Borrower
----------------------------------------------------
shall abide by all affirmative covenants contained in Article VIII of the
Syndicated Credit Agreement.
6.02 INSPECTION. Borrower shall permit Swing Bank or any persons duly
----------
designated by it to call at its place of business at any reasonable time, and
without hindrance or delay, to inspect, audit, check and make extracts from its
books, records, journals, orders, receipts and any correspondence or other data
relating to its business or any other transactions between or among the parties
hereto.
ARTICLE VII
-----------
NEGATIVE COVENANTS
------------------
Borrower covenants and agrees with Swing Bank that from and after the date
hereof, and so long as any Swing Obligations remain outstanding or this
Agreement remains in effect, that Borrower shall abide by all negative covenants
contained in Article IX of the Syndicated Credit Agreement.
ARTICLE VIII
------------
FINANCIAL COVENANTS
-------------------
Borrower covenants and agrees with Swing Bank that from and after the date
hereof, and so long as any amount remains outstanding on the Swing Obligations
or this Agreement remains in effect, that Borrower shall abide by the financial
covenants contained in Article X of the Syndicated Credit Agreement.
ARTICLE IX
----------
SWING LINE DEFAULT
------------------
Each of the following shall constitute a Swing Line Default hereunder:
-12-
9.01 NONPAYMENT OF SWING OBLIGATIONS. Failure of Borrower to make any
-------------------------------
payment of principal or interest on the Swing Obligations when due;
9.02 BREACH OF WARRANTY OR REPRESENTATION. Any representation or
------------------------------------
warranty made by Borrower in the Swing Loan Documents or other statement
furnished at any time hereunder or in connection with the Swing Loan Documents
is untrue in any material respect when made or furnished;
9.03 BREACH OF COVENANTS. Default by Borrower under, or in the
-------------------
observance or performance of any of the covenants contained in, this Agreement
or the other Swing Loan Documents;
9.04 SWING LOAN GUARANTIES. The termination or revocation of any Swing
---------------------
Loan Guaranty, the denial or disaffirmation by any Guarantor of its obligations
under a Swing Loan Guaranty or any provision of a Swing Loan Guaranty, or if any
Swing Loan Guaranty shall otherwise cease to be in full force or effect; and
9.05 DEFAULTS UNDER SYNDICATED CREDIT AGREEMENT. A Default shall occur
------------------------------------------
and such Default shall continue beyond any applicable cure period provided
therefor under the Syndicated Credit Agreement (provided that the cure of any
--------
such Default to the satisfaction of Agent shall constitute a cure for purposes
of this Section 9.05).
ARTICLE X
---------
RIGHTS AND REMEDIES
-------------------
10.01 PRIOR TO SWING LINE DEFAULT. Before or after the occurrence of a
---------------------------
Swing Line Default, Swing Bank may examine, audit or inspect any of Borrower's
books and records, wherever located, at any reasonable time or times, and may
enter upon its premises for such purposes. Borrower shall assist Swing Bank in
whatever way reasonably necessary to make each such examination, audit and
inspection. Swing Bank, from time to time, at its option, may perform any
agreement of Borrower hereunder or under any of the Swing Loan Documents which
Borrower shall fail to perform, and Borrower agrees to reimburse forthwith Swing
Bank for all expenses of Swing Bank in connection with the foregoing, together
with interest thereon at the Floating Rate from the date incurred until
reimbursed.
10.02 UPON SWING LINE DEFAULT. Upon the occurrence of any Swing Line
-----------------------
Default, Swing Bank may terminate this Agreement and may declare the Swing
Obligations, notwithstanding any provisions thereof, without demand or notice of
any kind, immediately due and payable, whereupon the Swing Obligations shall
become immediately due and payable and may be collected forthwith; and Swing
Bank may exercise from time to time any
-13-
rights and remedies available to it under the Swing Loan Documents and
applicable law.
10.03 CURE OF DEFAULTS. Anything herein contained to the contrary
----------------
notwithstanding, the provisions of this Section 10.03 shall not apply to any
Swing Line Default consisting of a failure to comply with any Sections of
Articles VII or VIII, to any Swing Line Default consisting of a failure to repay
the Swing Line Master Note on the maturity date thereof, to any Swing Line
Default consisting of a failure to make any payment of principal on the Swing
Obligations when due, to any Swing Line Default under Section 9.04 or 9.05, or
to any Swing Line Default that is specifically excluded from any provision for
cure of defaults pursuant to the terms of any other of the Loan Documents. In
the event of the occurrence of a Swing Line Default which consists of failure to
make a payment of interest on the Swing Obligations when due, Swing Bank will
not, on account of said Swing Line Default, accelerate the maturity of any Swing
Obligations, exercise any other rights or remedies under the Swing Loan
Documents, or institute any court action under this Agreement or any of the
Swing Loan Documents if, within three (3) Domestic Business Days after the date
of occurrence of said Swing Line Default, Borrower makes such payment to Swing
Bank. In the event of the occurrence of a Swing Line Default of a type set forth
in Section 9.03 pertaining to covenants set forth in this Agreement or in the
other Swing Loan Documents, other than those covenants set forth in Articles VII
and VIII hereof, Swing Bank will not, on account of said Swing Line Default,
accelerate the maturity of any Swing Obligations, exercise any other rights or
remedies under the Swing Loan Documents, or institute any court action under
this Agreement or any of the Swing Loan Documents if (a) within thirty (30) days
after the earlier to occur of (i) the date written notice thereof has been given
to Borrower by Swing Bank, or (ii) the date a Key Executive otherwise has actual
knowledge of any such Swing Line Default, or (b) in the case of any covenants
set forth in the other Swing Loan Documents, within any applicable grace period
provided for therein, Borrower fully cures said Swing Line Default. Except as
specifically set forth in this Section 10.03, no default notice or cure period
shall be applicable with respect to the breach by Borrower or Weeks Corporation
of any of their respective obligations under this Agreement or under any of the
Loan Documents. This Section 10.03 shall not be applicable during the pendency
of any bankruptcy proceedings affecting Borrower or any Guarantor.
10.04 COSTS OF COLLECTION. Borrower agrees to pay all costs of Swing Bank
-------------------
of collection of the Swing Obligations and enforcement of rights hereunder, and,
if collected by or through an attorney, reasonable attorneys' fees actually
incurred and also other legal and court expenses.
10.05 SETOFF. As security for the full payment and performance of the
------
-14-
Swing Obligations, Borrower hereby assigns, conveys, and grants a security
interest to Swing Bank in all property in which Borrower has an interest which
is in or comes into the possession, control or custody of Swing Bank (including,
but not limited to, balances, credits, deposits, accounts and monies). Borrower
hereby agrees that Swing Bank may, upon the occurrence of any Swing Line
Default, without notice, apply any balances, credits, deposits, accounts, monies
or other indebtedness now or hereafter owing by Swing Bank to Borrower in
satisfaction of any Swing Obligation, whether or not such Swing Obligation is
then due and payable.
ARTICLE XI
----------
FEES AND EXPENSES; INDEMNIFICATION
----------------------------------
11.01 FEES AND EXPENSES. Borrower and Guarantors shall provide, at their
-----------------
expense, to Swing Bank all documents, instruments, assurances, and certificates
as Swing Bank may deem necessary to consummate the transactions contemplated
hereby. Borrower shall be obligated to Swing Bank to pay all reasonable fees,
expenses and costs incurred by Swing Bank in connection with the preparation,
negotiation, and entering into of the Swing Loan Documents and the
administration of the Swing Loans, including any amendments or modifications
thereto, whether incurred before, on or after the date of this Agreement,
including, but not limited to, reasonable attorneys' fees and expenses. All the
foregoing costs and expenses may, at the discretion of Swing Bank and upon
notice to Borrower, be charged to the Swing Line Master Note as advances
thereunder. In the event Swing Bank pays any of the costs or expenses under
this Section 11.01, Borrower shall reimburse Swing Bank promptly upon demand,
and all such sums shall bear interest at the default rate of interest set forth
in Section 2.08.
11.02 INDEMNIFICATION. At all times prior to and after the consummation
---------------
of the transactions contemplated by this Agreement, Borrower agrees to hold
harmless Swing Bank, its respective directors, officers, employees, agents,
affiliates, successors and assigns from and indemnify Swing Bank, its respective
directors, officers, employees, agents, affiliates, successors and assigns,
against, all demands, loss, damages, judgments, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) actually incurred
by any of the foregoing, whether direct or indirect, as a result of or arising
from or relating to any claim for relief or cause of action made, brought,
asserted or threatened by any entity, asserting a claim for any legal or
equitable remedy against any person under any statute, or regulation or as a
matter of law, including, without limitation, any federal or state securities
laws or under any common law or equitable case or otherwise, arising from or in
connection with this Agreement, the other
-15-
Swing Loan Documents, and any of the transactions contemplated by this
Agreement, except to the extent such losses, damages, costs or expenses are due
to the wilful misconduct or gross negligence of Swing Bank or any other such
indemnitee. At the request of Swing Bank, Borrower will indemnify any assignee
to whom Swing Bank transfers or sells all or any portion of its interest in the
Loans or participation therein on terms substantially similar to the terms set
forth above. Swing Bank shall not be responsible or liable to any entity for
consequential damages which may be alleged as a result of this Agreement or any
of the transactions contemplated hereby.
ARTICLE XII
-----------
TERM
----
When executed by each of the parties hereto, this Agreement shall be
effective on the date first above written and shall continue in full force and
effect until all Swing Obligations have been paid and satisfied in full, unless
sooner terminated by Agent upon a Swing Line Default. Upon termination,
Borrower shall continue to perform all of their obligations hereunder incurred
prior to termination, including, without limitation, all obligations under
Article II, which shall survive the termination of this Agreement.
ARTICLE XIII
------------
MISCELLANEOUS
-------------
13.01 CUMULATIVE RIGHTS; NON-WAIVER. No delay or omission by Swing
-----------------------------
Bank to exercise any right, power or remedy accruing upon any Swing Line Default
shall exhaust or impair any such right, power or remedy or shall be construed to
be a waiver of any such Swing Line Default, or acquiescence therein, and every
right, power and remedy given by this Agreement to Swing Bank may be exercised
from time to time and as often as may be deemed expedient by Swing Bank. No
consent or waiver, expressed or implied, by Swing Bank to or of any Swing Line
Default shall be deemed or construed to be a consent or waiver to or of any
other Swing Line Default. No delay, indulgence, departure, act or omission by
Swing Bank or any holder of the Swing Line Master Note shall release, discharge,
modify, change or otherwise affect the original liability under the Swing Line
Master Note or any other obligation of Borrower, or any maker, surety or
guarantor, or preclude Swing Bank or such holder from exercising any right,
privilege or power granted herein or alter the security title, security interest
or lien hereof. Swing Bank may at any time, without notice to or further
consent from Borrower, surrender or substitute any property or other security of
any kind or nature
-16-
whatsoever securing the Swing Obligations or release any guarantor, and no such
action will release Borrower's obligations hereunder or alter the effect hereof.
No right, power or remedy conferred upon or reserved to Swing Bank hereunder is
intended to be exclusive of any other right, power or remedy, but each and every
such right, power and remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy given hereunder or under the other
Swing Loan Documents or now or hereafter existing at law, in equity or by
statute.
13.02 NO OBLIGATION TO THIRD PARTIES. The Swing Loan Documents are
------------------------------
made solely for the benefit of Swing Bank. No tenant in any of the properties
of Borrower, nor any party involved with the construction of any improvements on
any part of such properties nor any other party whatsoever shall have standing
to bring any action against Swing Bank as the result of the Swing Loan
Documents, or to assume that Swing Bank will exercise any remedies provided
herein, and no party other than Swing Bank shall be deemed to be a beneficiary
of any provision of the Swing Loan Documents, any and all of which may be freely
waived in whole or in part by Swing Bank in its discretion at any time. Nothing
contained in this Section 13.02 is intended to deprive Borrower of the benefit
of any covenant by Swing Bank in favor of Borrower contained in the Swing Loan
Documents.
13.03 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
----------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that Borrower may not assign or otherwise
--------
transfer any of its rights under this Agreement.
13.04 GOVERNING LAW. This Agreement is entered into in the State of
-------------
Georgia, and the rights and obligations of the parties hereunder shall be
governed by, construed and interpreted in accordance with, the laws of the State
of Georgia.
13.05 SURVIVAL OF OBLIGATIONS. All representations, warranties and
-----------------------
covenants contained herein shall survive the execution and delivery of the Swing
Line Master Note or any other documents contemplated hereby.
13.06 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
----------------
of the parties hereto with respect to the subject matter hereof.
13.07 INVALIDITY. Any provision of this Agreement that is prohibited
----------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
-17-
13.08 CHANGES IN FORMS. Swing Bank reserves the right to make
----------------
reasonable changes in the forms of all certificates and other documents to be
executed and delivered by Borrower hereunder.
13.09 NOTICES. Any notice, payment, demand or communication required or
-------
permitted to be given by the provisions of this Agreement shall be deemed to
have been sufficiently given or served for all purposes if delivered personally
to a party or to an officer of the party to whom the same is directed, or if
sent by United States Mail, first class postage and charges prepaid, addressed
to such party at the following address, or to such other address as shall be
furnished in writing by any party to the other, pursuant to the provisions
hereof:
If to Borrower, to: WEEKS REALTY, L.P.
c/o Weeks Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: Weeks Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Corporate Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Weeks Corporation,
to: Weeks Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Weeks GP
Holdings, Inc., to: Weeks GP Holdings, Inc.
c/o Weeks Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
-18-
If to Weeks LP
Holdings, Inc., to Weeks LP Holdings, Inc.
c/o Weeks Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Swing Bank,
to: Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Wachovia Corporate Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Corporate Finance Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice shall be deemed given as of the date so delivered personally, or
three (3) days after the date on which same was deposited, first class postage
prepaid, in a regularly maintained receptacle for the deposit of United States
Mail, addressed as aforesaid.
13.10 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
-------------------
13.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
-------------------------
multiple counterparts, each of which shall be treated as an original, but all of
which shall constitute one and the same agreement.
13.12 CONFLICT WITH MANDATE LETTER. In the event of inconsistencies or
----------------------------
conflict between the terms and provisions of this Agreement and the terms and
provisions of the Mandate Letter, the terms and provisions of this Agreement
shall prevail.
13.13 MISCELLANEOUS. The Swing Loan Documents may be changed, waived,
-------------
discharged or terminated only by an instrument, in writing, signed by the party
against whom enforcement of such change, waiver, discharge or termination is
sought. Nothing
-19-
contained in the Swing Loan Documents shall be construed to create an agency,
partnership or joint venture between Borrower and Swing Bank. Wherever in the
Swing Loan Documents it is indicated that the approval, consent or determination
of Swing Bank is to be given or made at the option or in the discretion or
judgment of Swing Bank without reference to a standard of reasonableness, then
Swing Bank may grant or withhold such approval or consent or make such
determination without restriction in its sole and absolute discretion. The
obligations of Borrower under this Agreement and the Swing Line Master Note
shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt thereof would be contrary to provisions of
law applicable to Swing Bank limiting rates of interest which may be charged or
collected by Swing Bank. In the event that any such payment in excess of the
maximum rate of interest allowed by applicable law is inadvertently paid by
Borrower or inadvertently received by Swing Bank, the amount in excess of the
maximum rate of interest allowed by applicable law shall be credited as a
payment of principal, unless Borrower shall notify Swing Bank in writing that
the Borrower elects to have such excess sum returned to it forthwith. All
exhibits referred to in the Swing Loan Documents are by such reference
incorporated into the Swing Loan Documents as if fully set forth therein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered in their names and on their behalf, and their seals to be affixed
and attested, all as of the day and year first above written.
BORROWER:
--------
WEEKS REALTY, L.P.
By: WEEKS GP HOLDINGS, INC., its
sole general partner
ATTEST: By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Its: SVP and CFO
--------------------------- --------------------------
Secretary Date:
[CORPORATE SEAL]
GUARANTORS:
----------
ATTEST: WEEKS CORPORATION
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- ---------------------------------
Secretary Its: SVP and CFO
-----------------------------
[CORPORATE SEAL]
WEEKS GP HOLDINGS, INC.
ATTEST:
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- --------------------------------
Secretary Its: SVP and CFO
-------------------------
[CORPORATE SEAL]
WEEKS LP HOLDINGS, INC.
ATTEST:
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- --------------------------------
Secretary Its: SVP and CFO
-------------------------
[CORPORATE SEAL]
SWING BANK:
----------
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Its: Senior Vice President
----------------------------
Date:
---------------------------
[BANK SEAL]
-20-
