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EXHIBIT 10.34
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT(this "First Amendment") is dated as of the 3rd day of September, 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., SUNTRUST BANK, ATLANTA, FIRST UNION NATIONAL BANK, BANK OF AMERICA,
N.A. (formerly Nationsbank, N.A.), SOUTHTRUST BANK, N.A., COMMERZBANK, AG,
ATLANTA AGENCY, FOUR WINDS FUNDING CORPORATION, THE FIRST NATIONAL BANK OF
CHICAGO, CHASE BANK OF TEXAS, NATIONAL ASSOCIATION and PNC BANK, NATIONAL
ASSOCIATION (collectively, the "Banks");
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and the Banks executed
and delivered that certain Third Amended and Restated Credit Agreement, dated as
of May 7, 1999 (the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent and
the Banks have agreed to certain amendments to the Credit Agreement, 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 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 shall from and after the date hereof refer to the Credit
Agreement as amended hereby.
2. Amendment to Section 1.01. Section 1.01 of the Credit Agreement
hereby is amended by deleting the definitions of "GP Sub" and "General Partner"
and substituting the following therefor:
"GP Sub" means Post GP Holdings, Inc., a Georgia corporation
which is a direct Subsidiary of PPI, the General Partner and the owner
of a 1% general partner interest in the Borrower as of the Closing
Date.
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"General Partner" means the sole general partner of the
Borrower (which, on the Closing Date, is GP Sub) or, if there is more
than one such general partner, the managing general partner of the
Borrower.
3. Amendment to Section 2.06(a). Section 2.06(a) of the Credit
Agreement hereby is amended by deleting the definition of "London Interbank
Offered Rate" and substituting the following therefor:
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar
Loan, the rate per annum determined on the basis of the offered rate
for deposits in Dollars of amounts equal or comparable to the
principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rates appear on Telerate
Page 3750 effective as of 11:00 A.M., London time, 2 Euro-Dollar
Business Days prior to the first day of such Interest Period,
provided that if no such offered rates appear on such page, the
"London Interbank Offered Rate" for such Interest Period will be the
arithmetic average (rounded upward, if necessary, to the next higher
1/100th of 1%) of rates quoted by not less than 2 major banks in New
York City, selected by the Administrative Agent, at approximately
10:00 A.M., New York City time, 2 Euro-Dollar Business Days prior to
the first day of such Interest Period, for deposits in Dollars
offered by leading European banks for a period comparable to such
Interest Period in an amount comparable to the principal amount of
such Euro-Dollar Loan.
4. Amendment to Section 5.21. Section 5.21 of the Credit Agreement
hereby is amended by deleting it in its entirety and substituting the following
therefor:
SECTION 5.21. Qualification as a Real Estate Investment Trust;
General Partner. PPI shall at all times remain qualified under the
Code as a real estate investment trust. The Borrower will not agree
to amend or waive the requirements of Section 7.5A of the limited
partnership agreement of the Borrower, as in effect on the date of
this Agreement, as such requirements are applicable to the General
Partner, without the prior written consent of the Required Banks
(which consent the Banks hereby agree not to unreasonably withhold
or delay). The General Partner shall at all times be one of PPI, GP
Sub or another Wholly Owned Subsidiary of PPI which is a Guarantor.
5. Amendment to Section 5.22(b). Section 5.22(b) of the Credit
Agreement hereby is amended by deleting it in its entirety and substituting the
following therefor:
(b) not permit any of the Subsidiaries (other than the
Borrower, the General Partner, or LP Sub) to Guarantee the Debt of
another Person; provided, that any Subsidiary can Guarantee the Debt of
another Subsidiary, so long as the
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aggregate amount of Debt of Subsidiaries which is Guaranteed by
Subsidiaries (other than the Borrower, the General Partner, or LP Sub)
does not exceed $500,000;
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 First 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 First 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
First 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. To induce the Administrative Agent and the Banks to
enter into this First Amendment and to continue to make advances pursuant to the
Credit Agreement, 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 under
the Credit Agreement.
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.
13. Governing Law. This First Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of Georgia.
14. Conditions Precedent. This First Amendment shall become effective
only upon execution and delivery (i) of this First
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Amendment by the Borrower, the Agent and the Required Banks and (ii) of the
Consent and Reaffirmation of Guarantors at the end hereof by each of the
Guarantors.
IN WITNESS WHEREOF, the Borrower, the Administrative Agent and each of
the Banks has caused this First 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) WACHOVIA BANK, N.A., (SEAL)
as Borrower as Administrative Agent and a Bank
By: Post GP Holdings, Inc.,
its sole general partner By:
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Title:
By:
R. Byron Carlock, Jr.
Executive Vice President
FIRST UNION NATIONAL BANK, (SEAL) SUNTRUST BANK, ATLANTA, (SEAL)
as Syndication Agent and a Bank as Documentation Agent and a Bank
By: By:
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Title: Title:
BANK OF AMERICA, N.A. (formerly SOUTHTRUST BANK, N.A., (SEAL)
Nationsbank, N.A.), (SEAL) as a Bank
as a Bank
By: By:
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Title: Title:
COMMERZBANK AG, ATLANTA (SEAL) FOUR WINDS FUNDING
AGENCY, as a Bank CORPORATION, as a Bank (SEAL)
By: By:
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Title: Title:
By: By:
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Title: Title:
THE FIRST NATIONAL BANK CHASE BANK OF TEXAS,
OF CHICAGO, (SEAL) NATIONAL ASSOCIATION, (SEAL)
as a Bank as a Bank
By: By:
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Title: Title:
PNC BANK, NATIONAL
ASSOCIATION, (SEAL)
as a Bank
By:
Title
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CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing First
Amendment to Credit Agreement (the "First Amendment"), (ii) consents to the
execution and delivery of the First Amendment by the parties thereto and (iii)
reaffirms all of its obligations and covenants under the Guaranty Agreement
dated as of May 7, 1999 executed by it, and agrees that none of such obligations
and covenants shall be affected by the execution and delivery of the First
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:
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R. Byron Carlock, Jr.
Title:
POST GP HOLDINGS, INC. (SEAL)
By:
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R. Byron Carlock, Jr.
Title:
POST LP HOLDINGS, INC. (SEAL)
By:
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R. Byron Carlock, Jr.
Title:
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