1
EXHIBIT 10.33
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "First Amendment") is dated as of the ___th day of February, 1999 among
POST APARTMENT HOMES, L.P. (the "Borrower"), WACHOVIA BANK, N.A., as
Administrative Agent (the "Administrative Agent"), FIRST UNION NATIONAL BANK, as
Syndication Agent, SUNTRUST BANK, ATLANTA, as Documentation Agent and WACHOVIA
BANK, N.A., FIRST UNION NATIONAL BANK, SUNTRUST BANK, ATLANTA, COMMERZBANK AG,
ATLANTA AGENCY, FOUR WINDS FUNDING CORPORATION, BANK ONE, TEXAS, N.A., CHASE
BANK OF TEXAS, NATIONAL ASSOCIATION, and NATIONSBANK, N.A. (collectively, the
"Banks");
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent, the Syndication Agent,
the Documentation Agent and Wachovia Bank, N.A., First Union National Bank,
Suntrust Bank, Atlanta, Commerzbank AG, Atlanta Agency, Four Winds Funding
Corporation, Bank One, Texas, N.A., and Chase Bank of Texas, National
Association, executed and delivered that certain Second Amended and Restated
Credit Agreement, dated as of November 20, 1998 (the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Banks have agreed to make
certain amendments to the Credit Agreement and to add NationsBank, N.A. as a new
bank, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which
hereby is acknowledged by the parties hereto, the Borrower, the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Banks hereby
covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term
used herein which is defined in the Credit Agreement shall have the meaning
assigned to such term in the Credit Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Credit Agreement
2
shall from and after the date hereof refer to the Credit Agreement as amended
and restated hereby.
2. Changes to Commitments. From and after the date of this Amendment,
the Commitment of each Bank shall be the amount set forth opposite the name of
such Bank on the signature page of this Amendment, as such amount may be
increased or reduced pursuant to Section 2.08 of the Credit Agreement.
3. Maximum Commitment. The Maximum Commitment (as defined in Section
3(b) of the Second Amended And Restated Credit Agreement)is hereby increased to
and shall hereafter be $300,000,000.
4. Amendment to Section 2.12. Section 2.12 of the Credit Agreement
hereby is amended by deleting paragraph (a) thereof in its entirety, and
substituting the following therefor:
(a) The Borrower shall make each payment of principal of, and interest
on, the Syndicated Loans, Money Market Loans and Swing Loans and of fees
hereunder, not later than noon (Atlanta, Georgia time) on the date when due, in
Federal or other funds immediately available in Atlanta, Georgia, to the
Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the account of the
Banks, and to Wachovia such payment received by the Administrative Agent on
account of the Swing Loans. If the Administrative Agent fails to distribute to
any Bank its ratable share of any such payment on the day received, if received
not later than 1:00 p.m. (Atlanta, Georgia time) on such day, or on the next
Domestic Business Day, if received after 1:00 p.m. (Atlanta, Georgia time) on
such day, such Bank shall be entitled to recover such Bank's ratable share of
such payment from the Administrative Agent, together with interest thereon for
each day during the period from the date of distribution of such Banks ratable
share of such payment shall have become due until such distribution shall be
made, at a rate per annum equal to the rate at which the Administrative Agent
determines that it obtained (or could have obtained) overnight federal funds in
such amount for each such day during such period.
5. Additional Bank. Upon execution of this Amendment by NationsBank,
N.A., NationsBank, N.A. shall be a Bank for all purposes under the Credit
Agreement with the Commitment set forth on the signature page hereof.
2
3
6. Restatement of Representations and Warranties. The Borrower hereby
restates and renews each and every representation and warranty heretofore made
by it in the Credit Agreement and the other Loan Documents as fully as if made
on the date hereof and with specific reference to this Amendment and all other
loan documents executed and/or delivered in connection herewith, except to the
extent otherwise disclosed pursuant to Section 5.01(c) or (d) of the Credit
Agreement.
7. Effect of Amendment. Except as set forth expressly hereinabove, all
terms of the Credit Agreement and the other Loan Documents shall be and remain
in full force and effect, and shall constitute the legal, valid, binding and
enforceable obligations of the Borrower. The amendments contained herein shall
be deemed to have prospective application only, unless otherwise specifically
stated herein.
8. Ratification. The Borrower hereby restates, ratifies and reaffirms
each and every term, covenant and condition set forth in the Credit Agreement
and the other Loan Documents effective as of the date hereof.
9. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
10. Section References. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
11. No Default. The Borrower hereby acknowledges and agrees that, as of
the date hereof, and after giving effect to the terms hereof, there exists (i)
no Default or Event of Default and (ii) no right of offset, defense,
counterclaim, claim or objection in favor of the Borrower arising out of or with
respect to any of the Loans or other obligations of the Borrower owed to the
Banks.
12. Further Assurances. The Borrower agrees to take such further
actions as the Administrative Agent shall reasonably request in connection
herewith to evidence the amendments herein contained to the Borrower.
3
4
13. Governing Law. This Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of Georgia.
14. Conditions Precedent. This Amendment shall become effective only
upon receipt by the Administrative Agent of the following (as to the documents
described in paragraphs (a), (c), and (d) below, in sufficient number of
counterparts for each Bank):
(a) from each of the parties hereto either (i) a duly executed
counterpart of this Amendment signed by such party or (ii) a facsimile
transmission of such executed counterpart (with the original to be sent
to the Administrative Agent by overnight courier);
(b) a duly executed Syndicated Loan Note for each New Bank and
any Bank with an increased Commitment and a duly executed Money Market
Loan Note for the account of each Bank complying with the provisions of
Section 2.03 (including a Designated Bank Note in favor of Four Winds
Funding Corporation, as the Designated Bank of Commerzbank AG, Atlanta
Agency) and a Consent and Reaffirmation of Guarantors duly executed by
the Guarantors;
(c) an opinion letter of King & Spalding, counsel for the
Borrower and the Guarantors, dated as of the date hereof, covering such
matters relating to the transactions contemplated hereby as the
Administrative Agent or any Bank may reasonably request;
(d) a certificate (the "Closing Certificate"), dated as of the
Closing Date, signed by a principal financial officer of the Borrower,
to the effect that, to the best of his or her knowledge, (i) no Default
has occurred and is continuing and (ii) the representations and
warranties of the Borrower contained in Article IV of the Credit
Agreement are true on and as of the date hereof;
(e) all documents which the Administrative Agent or any Bank
may reasonably request relating to the existence of the Borrower and
the Guarantors, the corporate authority for and the validity of this
Amendment, the Notes, and any other matters relevant hereto, all in
form and substance satisfactory to the Administrative Agent, including,
without
4
5
limitation, a certificate of each of the Borrower and the Guarantors
(the "Officer's Certificate"), signed by the Secretary or an Assistant
Secretary of the Borrower and the Guarantors, respectively, and as to
the names, true signatures and incumbency of the officer or officers of
the Borrower or Guarantors authorized to execute and deliver the Loan
Documents, and certified copies of the following items for each of the
Borrower and Guarantors (i) a certificate of the Secretary of State of
the State of its incorporation as to its good standing as a corporation
incorporated therein, and (ii) the action taken by its Board of
Directors authorizing the execution, delivery and performance of the
Loan Documents to which it is a party.
5
6
IN WITNESS WHEREOF, the Borrower, the Administrative Agent, the
Syndication Agent, the Documentation Agent, and each of the undersigned Banks
has caused this Amendment to be duly executed, under seal, by its duly
authorized officer as of the day and year first above written.
POST APARTMENT HOMES, L.P. (SEAL)
By: Post GP Holdings, Inc., its
sole general partner
By: /s/ R. Xxxxx Xxxxxxx, Xx.
----------------------------------------
R. Xxxxx Xxxxxxx, Xx.
Executive Vice President
Commitments
------------
$70,000,000 WACHOVIA BANK, N.A.,
as Administrative Agent and
as a Bank (SEAL)
By: /s/
--------------------------------------------
Title:
$60,000,000 FIRST UNION NATIONAL BANK,
as Syndication Agent and
as a Bank (SEAL)
By: /s/
--------------------------------------------
Title:
$70,000,000 SUNTRUST BANK, ATLANTA,
as Documentation Agent and
a Bank (SEAL)
By: /s/
--------------------------------------------
Title:
6
7
$20,000,000 COMMERZBANK AG, ATLANTA
AGENCY (SEAL)
By: /s/
---------------------------------------------
Title:
By: /s/
---------------------------------------------
Title:
FOUR WINDS FUNDING
CORPORATION (SEAL)
By: Commerzbank AG, New York
Branch, as Administrator
and Attorney-in-Fact
By: /s/
-----------------------------------------
Title:
By: /s/
-----------------------------------------
Title:
$20,000,000 BANK ONE, TEXAS, N.A.(SEAL)
By: /s/
---------------------------------------------
Title:
$10,000,000 CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/
---------------------------------------------
Title: Vice President
7
8
$25,000,000 NATIONSBANK, N.A.
By: /s/
---------------------------------------------
Title:
LENDING OFFICE
NationsBank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxx Xxxx
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
8
9
CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing First
Amendment to Second Amended and Restated Credit Agreement (the "Amendment"),
(ii) consents to the execution and delivery of the Amendment by the parties
thereto and (iii) reaffirms all of its obligations and covenants under their
respective Guaranties dated as of April 9, 1997 and December 17, 1997, and
agrees that none of such obligations and covenants shall be affected by the
execution and delivery of the Amendment. This Consent and Reaffirmation may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same instrument.
POST PROPERTIES, INC. (SEAL)
By: /s/
-----------------------------------------
Title:
POST GP HOLDINGS, INC. (SEAL)
By: /s/
-----------------------------------------
Title:
POST LP HOLDINGS, INC. (SEAL)
By: /s/
-----------------------------------------
Title:
