EXHIBIT 10.15.05
COMPASS BANK
LOAN AGREEMENT
This Loan Agreement (the "Agreement") dated as of June 1, 2000, by and
between COMPASS BANK ("Bank") and XXXXXXX PROPERTIES RESIDENTIAL, L.P., a
Georgia limited partnership (the "Borrower").
In consideration of the Loan described below and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, Bank
and Borrower agree as follows:
1. DEFINITIONS AND REFERENCE TERMS. In addition to any other terms defined
herein, the following terms shall have the meaning set forth with
respect thereto:
A. Loan. Any loan described in Section 2 hereof and any subsequent
loan which states that it is subject to this Loan Agreement.
B. Loan Documents. Loan Documents means this Loan Agreement and any
and all promissory notes executed by Borrower in favor of Bank and
all other documents, instruments, guarantees, certificates and
agreements executed and/or delivered by Borrower, any guarantor or
third party in connection with any Loan.
C. Accounting Terms. All accounting terms not specifically defined or
specified herein shall have the meanings generally attributed to
such terms under generally accepted accounting principles
("GAAP"), as in effect from time to time, consistently applied,
with respect to the financial statements referenced in Section
3.F. hereof.
2. LOAN. Bank hereby agrees to make (or has made) one or more loans to
Borrower in the aggregate principal face amount of $2,000,000. The
obligation to repay the loans is evidenced by a promissory note or
notes dated as of June 1, 2000 (the promissory note or notes together
with any and all renewals, extensions or rearrangements thereof being
hereafter collectively referred to as the "Note") having a maturity
date, repayment terms and interest rate as set forth in the Note. The
Loan provides for a revolving line of credit (the "Line") under which
Borrower may from time to time, borrow, repay and re-borrow funds.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants
to Bank as follows:
A. Good Standing. Borrower is a limited partnership, duly organized,
validly existing and in good standing under the laws of Georgia
and has the power and authority to own its property and to carry
on its business in each jurisdiction in which Borrower does
business.
B. Authority and Compliance. Borrower has full power and authority to
execute and deliver the Loan Documents and to incur and perform
the obligations provided for therein, all of which have been duly
authorized by all proper and necessary action of the appropriate
governing body of Borrower. No consent or approval of any public
authority or other third party is required as a condition to the
validity of any Loan Document, and Borrower, to Borrower's
knowledge, is in compliance with all laws and regulatory
requirements to which it is subject.
C. Binding Agreement. This Agreement and the other Loan Documents
executed by Borrower constitute valid and legally binding
obligations of Borrower, enforceable in accordance with their
terms.
D. Litigation. There is no proceeding involving Borrower pending or,
to the knowledge of Borrower, threatened before any court or
governmental authority, agency or arbitration authority, which
would have a material adverse affect on Borrower, except as
disclosed to Bank in writing and acknowledged by Bank prior to the
date of this Agreement.
E. No Conflicting Agreements. There is no charter, bylaw, stock
provision, partnership agreement or other document pertaining to
the organization, power or authority of Borrower and no provision
of any existing agreement, mortgage, indenture or contract binding
on Borrower or affecting its property, which would have a
materially adverse effect on the execution, delivery or carrying
out of the terms of this Agreement and the other Loan Documents.
F. Financial Statements. The financial statements of Borrower
heretofore delivered to Bank have been prepared in accordance with
GAAP applied on a consistent basis throughout the period involved
and fairly present Borrower's financial condition as of the date
or dates thereof. All factual information furnished by Borrower to
Bank in connection with this Agreement and the other Loan
Documents is and will be accurate and complete on the date as of
which such information is delivered to Bank and is not and will
not be incomplete by the omission of any material fact necessary
to make such information not misleading.
G. Continuation of Representations and Warranties. All
representations and warranties made under this Agreement shall be
deemed to be made at and as of the date hereof and at and as of
the date of any advance under any Loan.
4. AFFIRMATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will, unless
Bank consents otherwise in writing (and without limiting any
requirement of any other Loan Document):
A. Financial Condition. Maintain its financial condition
substantially as it exists as of the date of this Agreement.
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B. Financial Statements and Other Information. Maintain a system of
accounting satisfactory to Bank and in accordance with GAAP
applied on a consistent basis throughout the period involved,
permit Bank's officers or authorized representatives to visit and
inspect Borrower's books of account and other records at such
reasonable times and as often as Bank may desire. Unless written
notice of another location is given to Bank, Borrower's books and
records will be located at Borrower's chief executive office set
forth above. All financial statements called for below shall be
prepared in form and content acceptable to Bank and by independent
certified public accountants.
C. Existence and Compliance. Maintain its existence, good standing
and qualification to do business, where required and comply with
all laws, regulations and governmental requirements including,
without limitation, environmental laws applicable to it or to any
of its property, business operations and transactions.
D. Adverse Conditions or Events. Promptly advise Bank in writing of
(i) any condition, event or act which comes to its attention that
would materially adversely affect Borrower's financial condition
or operations or Bank's rights under the Loan Documents, (ii) any
litigation filed by or against Borrower that would have a material
adverse affect, and (iii) any event that has occurred that would
constitute an event of default under any Loan Documents.
5. DEFAULT. Borrower shall be in default under this Agreement and under
each of the other Loan Documents if it shall default in the payment of
any amounts due and owing under the Loan or should it fail to timely
and properly observe, keep or perform any term, covenant, agreement or
condition in any Loan Document or in any promissory note, or other
contract securing or evidencing payment of any indebtedness of Borrower
to Bank or any affiliate or subsidiary of Bank.
6. REMEDIES UPON DEFAULT. If an event of default shall occur, Bank shall
have all rights, powers and remedies available under each of the Loan
Documents as well as all rights and remedies available at law or in
equity.
7. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to Bank
immediately upon demand the full amount of all costs and expenses,
including actual attorneys' fees , incurred based on the attorney's
normal hourly rate and the number of hours worked and not the
attorneys' fees statutorily defined in O.C.G.A. ss.13-1-11 incurred by
Bank in connection with (a) negotiation and preparation of this
Agreement and each of the Loan Documents, and (b) all other costs and
attorneys' fees incurred by Bank for which Borrower is obligated to
reimburse Bank in accordance with the terms of the Loan Documents.
8. MISCELLANEOUS. Borrower and Bank further covenant and agree as follows,
without limiting any requirement of any other Loan Document:
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A. Cumulative Rights and No Waiver. Each and every right granted to
Bank under any Loan Document, or allowed it by law or equity shall
be cumulative of each other and may be exercised in addition to
any and all other rights of Bank, and no delay in exercising any
right shall operate as a waiver thereof, nor shall any single or
partial exercise by Bank of any right preclude any other or future
exercise thereof or the exercise of any other right. Borrower
expressly waives any presentment, demand, protest or other notice
of any kind, including but not limited to notice of intent to
accelerate and notice of acceleration. No notice to or demand on
Borrower in any case shall, of itself, entitle Borrower to any
other or future notice or demand in similar or other
circumstances.
B. Applicable Law. This Loan Agreement and the rights and obligations
of the parties hereunder shall be governed by and interpreted in
accordance with the laws of Georgia and applicable United States
federal law.
C. Amendment. No modification, consent, amendment or waiver of any
provision of this Loan Agreement, nor consent to any departure by
Borrower therefrom, shall be effective unless the same shall be in
writing and signed by an officer of Bank, and then shall be
effective only in the specified instance and for the purpose for
which given. This Loan Agreement is binding upon Borrower, its
successors and assigns, and inures to the benefit of Bank, its
successors and assigns; however, no assignment or other transfer
of Borrower's rights or obligations hereunder shall be made or be
effective without Bank's prior written consent, nor shall it
relieve Borrower of any obligations hereunder. There is no third
party beneficiary of this Loan Agreement.
D. Documents. All documents, certificates and other items required
under this Loan Agreement to be executed and/or delivered to Bank
shall be in form and content satisfactory to the parties and their
counsel.
E. Partial Invalidity. The unenforceability or invalidity of any
provision of this Loan Agreement shall not affect the
enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of any Loan
Document to any person or circumstance shall not affect the
enforceability or validity of such provision as it may apply to
other persons or circumstances.
F. Survivability. All covenants, agreements, representations and
warranties made herein or in the other Loan Documents shall
survive the making of the Loan and shall continue in full force
and effect so long as the Loan is outstanding or the obligation of
the Bank to make any advances under the Line shall not have
expired.
9. NO ORAL AGREEMENT. This written Agreement and the other Loan Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of
the date first above written.
BANK: BORROWER:
COMPASS BANK XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
a Georgia limited partnership
By: XXXXXXX REALTY INVESTORS,
INC., its general partner
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Title: Chief Financial Officer
[CORPORATE SEAL]
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