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EXHIBIT (10)(h.2)
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT dated as of the 1st day of July,
1997 (the "Amendment") by and among IRT PROPERTY COMPANY, a Georgia corporation
(the "Borrower"), NATIONSBANK, N.A. (formerly NationsBank of Georgia, N.A. and
NationsBank, N.A. (South)), CORESTATES BANK, N.A., AMSOUTH BANK OF ALABAMA, and
SIGNET BANK\VIRGINIA, as banks (collectively, and with any financial institution
which subsequently becomes a 'Bank' under the Loan Agreement, as such term is
defined therein, the "Banks"); NATIONSBANK, N.A., as swing line lender (in such
capacity, the "Swing Line Lender"), and NATIONSBANK, N.A. (formerly NationsBank
of Georgia, N.A. and NationsBank, N.A. (South)), as administrative agent for the
Banks (in such capacity, the "Administrative Agent"),
WITNESSETH:
WHEREAS, the Borrower, the Banks, the Swing Line Lender and the
Administrative Agent are parties to that certain Loan Agreement dated as of
December 15, 1995 (as heretofore and hereafter amended, the "Loan Agreement");
and
WHEREAS, the Borrower, the Banks, the Swing Line Lender and the
Administrative Agent have agreed to amend the Loan Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Loan Agreement, and further agree as follows:
1. Amendments to Article 1.
(a) Article 1 of the Loan Agreement, Definitions, is hereby
amended (which amendment shall be effective as of June 30, 1997) by deleting the
definition of "Applicable Margin" in its entirety and by substituting the
definition in lieu thereof:
"'Applicable Margin' shall mean, in the case of the LIBOR Basis,
as of any calculation date, the Applicable Margin set forth below
opposite the rating then
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assigned by S&P and Moody's to the senior unsecured long-term debt
obligations of the Borrower set forth below (changes in the Applicable
Margin shall be effective on the date any such rating changes):
"RATINGS ASSIGNED BY S&P APPLICABLE
AND MOODY'S MARGIN
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(i) A- or greater 0.95%
(ii) BBB+/Baa1 1.05%
(iii) BBB/Baa2 1.15%
(iv) BBB-/Baa3 1.25%
(v) less than BBB-/Baa3 1.40%
provided, however, that on any calculation date that the ratings
assigned fall in more than one level, the higher Applicable Margin
shall apply."
(b) Article 1 of the Loan Agreement, Definitions, is hereby
further amended by adding, appropriately alphabetized, the following definition
of "Moody's":
"'Moody's' shall mean Xxxxx'x Investors Service, Inc."
2. Amendment to Article 2. Subsection 2.4(b) of the Loan Agreement,
Utilization Fee, is hereby amended by deleting such subsection in its entirety
and by substituting the following new subsection 2.4(b) in lieu thereof:
"(b) Utilization Fee. The Borrower agrees to pay to the
Administrative Agent for the benefit of the Banks, in accordance with
their respective Commitment Ratios, a utilization fee on the actual daily
unborrowed amount which is (i) the lesser of (A) the Commitment and (B)
the Availability Restriction minus (ii) the Loans and the Swing Line
Loans then outstanding for each day from July 1, 1997 through the
Maturity Date, at a rate of (X) twenty-five one-hundredths of one percent
(.25%) per annum for each day that such unborrowed amounts are greater
than or equal to fifty percent (50%) of the lesser of (1) the Commitment
and (2) the Availability Restriction and (Y) fifteen one-hundredths of
one percent (.15%) per annum for each day that such unborrowed amounts
are less than fifty percent (50%) of the lesser of (1) the Commitment and
(2) the Availability Restriction. Such utilization fee shall be computed
on the basis of a year of 365/366 days for the actual number of days
elapsed, shall be payable quarterly in arrears on the first day of each
calendar quarter, commencing on October 1, 1997 (for the period from and
including July 1, 1997 through September 30, 1997), and if then unpaid,
on the Maturity Date, and shall be fully earned when due and
nonrefundable when paid."
3. Amendment to Article 4. Subsection 4.1(c) of the Loan Agreement,
Subsidiaries, is hereby amended by deleting the existing subsection 4.1(c) in
its entirety and by substituting the following new subsection 4.1(c) in lieu
thereof:
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"(c) Subsidiaries. The Borrower has no Subsidiaries
except for IRT Management Company, a Georgia corporation, and VW Mall,
Inc., a Georgia corporation, and IRT Capital Corporation, a Georgia
corporation."
4. No Other Amendment or Waiver. Notwithstanding the agreement of the
Administrative Agent, the Swing Line Lender and the Banks to the terms and
provisions of this Amendment, the Borrower acknowledges and expressly agrees
that this Amendment is limited to the extent expressly set forth herein and
shall not constitute a modification of the Loan Agreement or a course of dealing
at variance with the terms of the Loan Agreement (other than as expressly set
forth above) so as to require further notice by the Administrative Agent, the
Swing Line Lender or the Banks, or any of them, of its or their intent to
require strict adherence to the terms of the Loan Agreement in the future. All
of the terms, conditions, provisions and covenants of the Loan Agreement and the
other Loan Documents shall remain unaltered and in full force and effect except
as expressly modified by this Amendment.
5. Representations and Warranties. The Borrower hereby represents and
warrants in favor of the each of the Administrative Agent, the Swing Line Lender
and each Bank as follows:
(a) Each representation and warranty set forth in Article 4 of
the Loan Agreement is hereby restated and affirmed as true and correct in all
material respects as of the date hereof, except to the extent previously
fulfilled in accordance with the terms of the Loan Agreement, as amended hereby,
and to the extent relating specifically to the Agreement Date or otherwise
inapplicable;
(b) The Borrower has the corporate power and authority to enter
into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it; and
(c) This Amendment has been duly authorized, validly executed
and delivered by Authorized Signatories, and constitutes the legal, valid and
binding obligation of the Borrower enforceable against it in accordance with its
terms, subject, as to enforcement of remedies, to the following qualifications:
(i) an order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are considered
an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Borrower).
6. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to the following:
(a) the truth and accuracy of the representations and
warranties contained in Section 5 hereof;
(b) receipt by the Administrative Agent of execution pages to
this Amendment from the Swing Line Lender, the Banks and the Borrower;
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(c) receipt by the Administrative Agent of an incumbency
certificate in form and substance satisfactory to the Administrative Agent and a
certified copy of any amendments to the articles of incorporation for the
Borrower since the date of the most recent loan certificate delivered to the
Administrative Agent; and
(d) receipt by the Administrative Agent of all other documents
as the Administrative Agent shall reasonably request.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
8. Loan Documents. Each reference in the Loan Agreement and in any
other Loan Document to the term "Loan Agreement" shall hereafter mean and refer
to the Loan Agreement as amended hereby or as the same may hereafter be amended.
9. Consent. Each of the parties hereto consents to the assignment by
SouthTrust Bank, National Association (formerly SouthTrust Bank of Alabama,
National Association) ("ST") to NationsBank, N.A. of all of ST's interest in the
Loans and Commitment (the "Acquired Commitment and Loans"). Each of the parties
hereto further consents that the assignment by NationsBank, N.A. of all or a
portion of the Acquired Commitment and Loans after the date hereof shall be
considered approved assignments notwithstanding anything in the contrary
contained in the Loan Agreement.
10. Governing Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of Georgia, without giving effect to
any conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto cause their respective duly
authorized officers or representatives to execute and deliver this Amendment as
of the day and year first above written, to be effective as of the day and year
first above written.
BORROWER: IRT PROPERTY COMPANY, a Georgia corporation
By:/s/Xxxx X. Xxxxxx
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Title:Executive Vice President & CFO
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Attest:/s/W. Xxxxxxxx Xxxxx
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Title:Assistant Secretary
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ADMINISTRATIVE AGENT, NATIONSBANK, N.A. (formerly NationsBank of
SWING LINE LENDER Georgia, N.A. and NationsBank, N.A. (South)), as
AND BANKS: Agent, Swing Line Lender and a Bank
By:/s/Xxxxx X. Xxxxxxx
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Title:Senior Vice President
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CORESTATES BANK, N.A., as a Bank
By:/s/Xxxxx Xxxxxxxxx
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Title:Vice President
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AMSOUTH BANK OF ALABAMA, as a Bank
By:/s/Xxxxxx X. Xxxxxxx, III
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Title:Vice President
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IRT PROPERTY COMPANY
SECOND AMENDMENT TO LOAN AGREEMENT
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SIGNET BANK\VIRGINIA, as a Bank
By:/s/Xxxx Xxxxxxxx
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Title:Senior Vice President
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IRT PROPERTY COMPANY
SECOND AMENDMENT TO LOAN AGREEMENT
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