1
EXHIBIT 10.31
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"First Amendment") is dated as of the 17th day of December, 1997 among POST
APARTMENT HOMES, L.P. (the "Borrower"), WACHOVIA BANK, N.A., as Administrative
Agent (the "Administrative Agent"), First Union National Bank, as Co-Agent, and
WACHOVIA BANK, N.A., FIRST UNION NATIONAL BANK, SUNTRUST BANK, ATLANTA,
CORESTATES BANK, COMMERZBANK AG, ATLANTA AGENCY, BANK ONE, TEXAS, N.A. and TEXAS
COMMERCE BANK, N.A. (collectively, the "Banks");
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent, the Co-Agent and
Wachovia Bank, N.A. (formerly Wachovia Bank of Georgia, N.A.), First Union
National Bank (formerly First Union National Bank of Georgia), Suntrust Bank,
Atlanta, Corestates Bank and Commerzbank AG, Atlanta Agency, executed and
delivered that certain Amended and Restated Credit Agreement, dated as of April
9, 1997 (the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent, the
Co-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, the Co-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
2. Global Amendment. The term "Guarantor", wherever used in the
Credit Agreement, hereby is deleted, and the term "Guarantors" hereby is
substituted therefor.
3. Amendments to Section 1.01. (A) The following new definitions are
hereby added in appropriate alphabetical order to Section 1.01 of the Credit
Agreement:
"Designated Bank" means a special purpose corporation sponsored
by its Designating Bank that is identified as such on the signature
pages hereto next to the caption "Designated Bank" as well as each
special purpose corporation sponsored by its Designating Bank that (i)
shall have become a party to this Agreement pursuant to Section
9.08(g), and (ii) is not otherwise a Bank.
"Designated Bank Note" means a Money Market Loan Note,
evidencing the obligation of the Borrower to repay Money Market Loans
made by a Designated Bank, and "Designated Bank Notes" means any and
all such Money Market Loan Notes to Designated Banks issued hereunder.
"Designating Bank" shall mean each Bank that is identified as
such on the signature pages hereto next to the caption "Designating
Bank" and immediately above the signature of its Designated Bank as
well as each Bank that shall designate a Designated Bank pursuant to
Section 9.08(g).
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit L, entered into by a Bank and a
Designated Bank and acknowledged by the Borrower and the Administrative
Agent.
"First Amendment" means the First Amendment to Amended and
Restated Credit Agreement dated as of December 17, 1997, among the
Borrower, the Banks listed on the signature pages thereof, Wachovia
Bank, N.A., as Administrative Agent and First Union National Bank, as
Co- Agent.
"GP Sub" means Post GP Holdings, Inc., a Georgia corporation
which is a direct Subsidiary of PPI and the owner of a 1% general
partner interest in the Borrower.
2
3
"Liquidity Bank" means for any Designated Bank, at any date of
determination, the collective reference to the financial institutions
which at such date are providing liquidity or credit support facilities
to or for the account of such Designated Bank to fund such Designated
Bank's obligations hereunder or to support the securities, if any,
issued by such Designated Bank to fund such obligations.
"LP Sub" means Post LP Holdings, Inc., a Georgia corporation
which is a direct Subsidiary of PPI and the owner (as of the date of
the First Amendment) of approximately 84% of the limited partner
interests in the Borrower.
(B) The definitions of "Bank", "Commitment", "Guaranty", "Lending
Office", "Money Market Loan Note" and Subsidiary Consolidated Total Assets" set
forth in Section 1.01 are deleted in their entirety and the following new
definitions thereof are substituted therefor:
"Bank" means each bank listed on the signature pages of the
First Amendment and the Designated Banks, if any; provided, however,
that the term "Bank" shall exclude each Designated Bank when used in
reference to a Syndicated Loan, the Commitments or terms relating to
the Syndicated Loans and the Commitments.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages of the
First Amendment, and (ii) as to any Bank which enters into any
Assignment and Acceptance (whether as transferor Bank or as Assignee
thereunder), the amount of such Bank's Commitment after giving effect
to such Assignment and Acceptance, in each case as such amount may be
reduced from time to time pursuant to Sections 2.07 and 2.08.
"Guarantor" means, individually and collectively, as the
context shall require, GP Sub, LP Sub and PPI.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages of the First Amendment (or
identified on the signature pages hereof as its Lending Office) or such
other office as such Bank may hereafter designate as its Lending Office
by notice to the Borrower and the Administrative Agent.
3
4
"Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-3, including any
Designated Bank Notes, evidencing the obligation of the Borrower to
repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Subsidiary Consolidated Total Assets" means Consolidated Total
Assets, but without including assets of the Borrower.
4. Amendment to Section 2.03. Section 2.03 of the Credit Agreement
hereby is amended by adding a new paragraph (g) at the end thereof, as follows:
(g) Money Market Loans by Designated Banks. For any Bank which
is a Designating Bank, any Money Market Loan to be made by such Bank
may from time to time be made by its Designated Bank in such Designated
Bank's sole discretion, and nothing herein shall constitute a
commitment to make Money Market Loans by such Designated Bank; provided
that if any Designated Bank elects not to, or fails to, make any such
Money Market Loan pursuant to a Money Market Quote that has been
accepted by the Borrower in accordance with the foregoing, its
Designating Bank hereby agrees that it shall make such Money Market
Loan pursuant to the terms hereof on the date such Money Market Loan is
otherwise required to be made to the Borrower hereunder.
5. Amendment to Section 5.07. Section 5.07 of the Credit agreement
hereby is amended by deleting it in its entirety, and substituting the following
therefor:
SECTION 5.07. Loans or Advances. Neither the Borrower, the
Guarantor nor any Subsidiary shall make loans or advances to any Person
except: (i) deposits required by government agencies or public
utilities; (ii) without duplication, loans and advances made to the
Borrower, the Guarantor or any Subsidiary; provided, that loans and
advances from the Borrower and the Guarantor to Subsidiaries, together
with Investments in Subsidiaries permitted by clause (C) of Section
5.09, may not exceed an aggregate amount equal to 5% of Consolidated
Total Assets at any time; (iii) loans or advances to directors,
officers and employees in the ordinary course of business in the
aggregate outstanding at any time not exceeding
4
5
$2,500,000.00; and (iv) without duplication, other loans or advances
made in the ordinary course of business in the aggregate outstanding at
any time not exceeding $20,000,000 minus all amounts outstanding under
clause (iii) of this Section 5.07 and minus Investments made and
permitted pursuant to Section 5.09(D); provided that after giving
effect to the making of any loans, advances or deposits permitted by
clauses (i), (ii), (iii) or (iv), the Borrower will be in full
compliance with all the provisions of this Agreement.
6. Amendment to Section 5.09. Section 5.09 of the Credit
agreement hereby is amended by deleting it in its entirety, and
substituting the following therefor:
SECTION 5.09. Investments. Neither the Borrower nor
the Guarantor shall make Investments in any Person except: (A)
Investments in (i) direct obligations of the United States Government
maturing within one year, (ii) certificates of deposit issued by a
commercial bank whose credit is satisfactory to the Administrative
Agent, (iii) commercial paper rated A1 or the equivalent thereof by
Standard & Poor's Corporation or P1 or the equivalent thereof by
Moody's Investors Service, Inc. and in either case maturing within 9
months after the date of acquisition, (iv) tender bonds the payment of
the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates
of deposit are rated at least AA or the equivalent thereof by Standard
& Poor's Corporation and Aa or the equivalent thereof by Moody's
Investors Service, Inc. and/or (v) Investments in debt or equity
securities rated at least BBB+ or the equivalent thereof by Standard &
Poor's Corporation or at least Baa1 or the equivalent thereof by
Moody's Investors Service not exceeding an aggregate amount outstanding
at any time of $5,000,000; (B) Investments permitted by clauses (i),
(ii) and (iii) of Section 5.07 or by Section 5.08; (C) without
duplication, Investments made after July 26, 1995 in Subsidiaries in an
aggregate amount, together with the aggregate outstanding amount of
loans and advances from the Borrower and the Guarantor to Subsidiaries
permitted by clause (ii) of Section 5.07, not in excess of 5% of
Consolidated Total Assets; and (D) without duplication, other
Investments in an aggregate amount outstanding at any time not
exceeding $20,000,000 minus all
5
6
amounts outstanding under clauses (iii) and (iv) of Section 5.07.
7. Amendment to Section 7.05. Section 7.05 of the Credit agreement
hereby is amended by deleting the proviso at the end of the second to last
sentence thereof, and substituting the following therefor:
provided that (i) no Bank shall be liable for any of the foregoing to
the extent they arise from the negligence or wilful misconduct of the
Administrative Agent and (ii) no Designated Bank shall be liable for
any payment under this Section 7.05 so long as, and to the extent that,
its Designating Bank makes such payments.
8. Amendment to Section 9.01. Section 9.01 of the Credit Agreement
hereby is amended by deleting the word "hereof" in the fifth line thereof, and
substituting therefor the words "of the First Amendment".
9. Amendment to Section 9.06. Section 9.06 of the Credit greement
hereby is amended by adding thereto a new paragraph (c), as follows:
(c) Each Designated Bank hereby appoints its
Designating Bank as such Designated Bank's agent and attorney in fact
and grants to its Designating Bank an irrevocable power of attorney,
coupled with an interest, to receive payments made for the benefit of
such Designated Bank under the Credit Agreement, to deliver and receive
all communications and notices under this Agreement and other Loan
Documents and to exercise on such Designated Bank's behalf all rights
to vote and to grant and make approvals, waivers, consents, releases
and amendments to or under this Agreement or the other Loan Documents.
Any document executed by such agent on such Designated Bank's behalf in
connection with this Agreement or the other Loan Documents shall be
binding on such Designated Bank. The Borrower, the Administrative
Agent, the Co-Agent and each of the Banks may rely on and are
beneficiaries of the preceding provisions.
10. Amendment to Section 9.08. Section 9.08 of the Credit agreement
hereby is amended by adding thereto a new paragraph (g), as follows:
6
7
(g) Any Bank may at any time designate not more than
one Designated Bank to fund Money Market Loans on behalf of such
Designating Bank subject to the terms of this Section 9.08(g), and the
provisions of Section 9.08(c) shall not apply to such designation. No
Bank may have more than one Designated Bank at any time. Such
designation may occur either by the execution of the signature pages of
the First Amendment by such Bank and Designated Bank next to the
appropriate "Designating Bank" and "Designated Bank" captions, or by
execution by such parties of a Designation Agreement subsequent to the
date of the First Amendment; provided, that any Bank and its Designated
Bank executing the signatures pages of the First Amendment as
"Designating Bank" and "Designated Bank", respectively, on the date
hereof shall be deemed to have executed a Designation Agreement, and
shall be bound by the respective representations, warranties and
covenants contained therein, and such designation shall be conclusively
deemed to be acknowledged by the Borrower and the Administrative Agent.
The parties to each such designation occurring subsequent to the
execution date hereof shall execute and deliver to the Administrative
Agent and the Borrower for their acknowledgment a Designation
Agreement. Upon such receipt of an appropriately completed Designation
Agreement executed by a Designating Bank and a designee representing
that it is a Designated Bank and acknowledged by the Borrower, the
Administrative Agent will acknowledge such Designation Agreement and
will give prompt notice thereof to the Borrower and the other Banks,
whereupon, (i) the Borrower shall execute and deliver to the
Designating Bank a Designated Bank Note payable to the order of the
Designated Bank, (ii) from and after the effective date specified in
the Designation Agreement, the Designated Bank shall become a party to
this Agreement with a right to make Money Market Loans on behalf of its
Designating Bank pursuant to Section 2.03(g), and (iii) the Designated
Bank shall not be required to make payments with respect to any
obligations in this Agreement except to the extent of excess cash flow
of such Designated Bank which is not otherwise required to repay
obligations of such Designated Bank which are then due and payable;
provided, however, that regardless of such designation and assumption
by the Designated Bank, the Designating Bank shall be and remain
obligated to the Borrower, the Administrative Agent, the Co-Agent and
the Banks for each and every obligation of the Designating Bank and its
related Designated Bank with respect to this
7
8
Agreement, including, without limitation, any indemnification
obligations under Section 7.05 and any sums otherwise payable to the
Borrower by the Designated Bank. Each Designating Bank shall serve as
the administrative agent of its Designated Bank and shall on behalf of
its Designated Bank: (i) receive any and all payments made for the
benefit of such Designated Bank and (ii) give and receive all
communications and notices and take all actions hereunder, including,
without limitation, votes, approvals, waivers, releases, consents and
amendments under or relating to this Agreement and the other Loan
Documents. Any such notice, communication, vote, approval, waiver,
consent or amendment shall be signed by a Designating Bank as
administrative agent for its Designated Bank and need not be signed by
such Designated Bank on its own behalf. The Borrower, the
Administrative Agent, the Co-Agent and the Banks may rely thereon
without any requirement that the Designated Bank sign or acknowledge
the same. No Designated Bank may assign or transfer all or any portion
of its interest hereunder or under any other Loan Document, other than
via an assignment to its Designating Bank or Liquidity Bank (but any
assignment to a Liquidity Bank shall not curtail or affect the
appointment or rights of the Designating Bank pursuant to Section
9.06(c) or Section 4 of the Designation Agreement, which appointment
and rights are irrevocable), if any, or otherwise in accordance with
the provisions of Section 2.03(g).
11. Amendment to Section 9.09. Section 9.09 of the Credit agreement
hereby is amended by (i) deleting the word "and" immediately before clause
(viii) thereof and (ii) adding a new clause (ix) thereto, immediately after
clause (viii) and before the first proviso, as follows:
and (ix) by any Designated Bank to any rating agency, commercial paper
dealer, or provider of a surety, guaranty or credit or liquidity
enhancement to such Designated Bank which has agreed in writing to be
bound by the provisions of this Section 9.09 and to use such
information solely for purposes of evaluating the creditworthiness of
the Borrower and the Guarantor and their abilities to perform their
obligations under this Agreement and the other Loan Documents.
8
9
12. New Section 9.18. A new Section 9.18 hereby is added
to the Credit Agreement following Section 9.17 thereof, as follows:
9.18 No Bankruptcy Proceedings. Each of the Borrower, the
Banks, the Administrative Agent and the Co-Agent agrees that it will
not institute against any Designated Bank or join any other Person in
instituting against any Designated Bank any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any federal or
state bankruptcy or similar law, for one year and one day after the
payment in full of the latest maturing commercial paper note issued by
such Designated Bank.
13. Replacement of Form of Money Market Loan Note. Exhibit
A-3 to the Credit Agreement hereby is deleted, and Exhibit A-3 hereto is
substituted therefor.
14. Amendment to Exhibit F. Exhibit F to the Credit Agreement (the
Compliance Certificate) hereby is amended by deleting paragraphs 5 and 7
thereof, and substituting therefor paragraphs 5 and 7 below:
5. Loans and Advances (Section 5.07)
Neither the Borrower, the Guarantor nor any Subsidiary shall
make loans or advances to any Person except: (i) deposits
required by government agencies or public utilities; (ii)
without duplication, loans and advances made to the Borrower,
the Guarantor or any Subsidiary; provided, that loans and
advances from the Borrower and the Guarantor to Subsidiaries,
together with Investments in Subsidiaries permitted by clause
(e) of Section 5.09, may not exceed an aggregate amount equal
to 5% of Consolidated Total Assets at any time; (iii) loans or
advances to directors, officers and employees in the ordinary
course of business in the aggregate outstanding at any time
not exceeding $2,500,000.00; and (iv) without duplication,
other loans or advances made in the ordinary course of
business in the aggregate outstanding at any time not
exceeding $20,000,000 minus all amounts outstanding under
clause (iii) of this Section 5.07 and minus Investments made
and permitted pursuant to Section 5.09(D); provided that after
giving effect to the making of any loans, advances or deposits
permitted by clauses (i), (ii),
9
10
(iii) or (iv), the Borrower will be in full compliance with
all the provisions of this Agreement.
(a) To Subsidiaries $
----------
(b) Sum of (a) and amount $
in paragraph 7(b) below ----------
(c) Consolidated Total Assets
Schedule 2 $
----------
(d) 5% of (c) $
----------
Limitation (b) may not exceed (d)
(e) To directors, officers and
employees $
----------
Limitation $2,500,000
(f) other $
----------
Limitation $ (1)
----------
7. Investments (Section 5.09)
Neither the Borrower nor the Guarantor shall make Investments
in any Person except: (A) Investments in (i) direct
obligations of the United States Government maturing within
one year, (ii) certificates of deposit issued by a commercial
bank whose credit is satisfactory to the Administrative Agent,
(iii) commercial paper rated A1 or the equivalent thereof by
Standard & Poor's Corporation or P1 or the equivalent thereof
by Moody's Investors Service, Inc. and in either case maturing
within 9 months after the date of acquisition, (iv) tender
bonds the payment of the principal of and interest on which is
fully supported by a letter of credit issued by a United
States bank whose long-term certificates of deposit are rated
at least AA or the equivalent thereof by Standard & Poor's
- --------------
(1)$20,000,000 less amount in (e) of this paragraph 5 and amount in line (f) of
paragraph 7 below.
10
11
Corporation and Aa or the equivalent thereof by Moody's
Investors Service, Inc. and/or (v) Investments in debt or
equity securities rated at least BBB+ or the equivalent
thereof by Standard & Poor's Corporation or at least Baa1 or
the equivalent thereof by Moody's Investors Service not
exceeding an aggregate amount outstanding at any time of
$5,000,000; (B) Investments permitted by clauses (i), (ii) and
(iii) of Section 5.07 or by Section 5.08; (C) without
duplication, Investments made after July 26, 1995 in
Subsidiaries in an aggregate amount, together with the
aggregate outstanding amount of loans and advances from the
Borrower and the Guarantor to Subsidiaries permitted by clause
(ii) of Section 5.07, not in excess of 5% of Consolidated
Total Assets; and (D) without duplication, other Investments
in an aggregate amount outstanding at any time not exceeding
$20,000,000 minus all amounts outstanding under clauses (iii)
and (iv) of Section 5.07.
(a) debt or equity securities rated $
at least BBB+ or Baa1 ---------
Limitation $5,000,000
(b) Investments in Subsidiaries $
after July 26, 1995 ---------
(c) Sum of (b) and amount $
in paragraph 5(a) above ---------
(d) Consolidated Total Assets
Schedule 2 $
---------
(e) 5% of (d) $
---------
Limitation (c) may not exceed (e)
(f) Other $
---------
Limitation $ (2)
---------
- ---------------
(2)$20,000,000 less amount in (e) of this paragraph 5 and amount in line (f) of
paragraph 7 below.
11
12
15. Replacement of Form of Guaranty. Exhibit H to the Credit Agreement
hereby is deleted, and Exhibit H hereto is substituted therefor.
16. New Exhibit L. Exhibit L (form of Designation Agreement) hereto
hereby is added to the Credit Agreement as Exhibit L thereto.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. No Default. To induce the Administrative Agent, the Co-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
12
13
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.
23. 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.
24. Governing Law. This First Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of Georgia.
25. Conditions Precedent. This First Amendment shall become effective
only upon execution and delivery to the Administrative Agent:
(i) by each of the parties hereto, of this First Amendment;
(ii) by the Borrower, of Syndicated Loan Notes payable to Bank One,
Texas, N.A. and Texas Commerce Bank, N.A., respectively, each in the original
principal amount of $10,000,000;
(iii) by the Borrower, of new Money Market Loan Notes in substantially
the form of Exhibit A-3 hereto in favor of the Banks (including a Designated
Bank Note in favor of Four Winds Corporation, as the Designated Bank of
Commerzbank AG, Atlanta Agency);
(iv) by the Guarantors, of the Guaranty in substantially the
form of Exhibit H;
(v) of an opinion letter of King & Spalding, counsel for the Borrower
and the Guarantors, dated as of the date hereof, substantially in the form
delivered on the Closing Date of the Credit Agreement, but addressing the First
Amendment Loan Documents and covering such additional matters relating to the
transactions contemplated hereby as the Administrative Agent or any Bank may
reasonably request;
(vi) of a certificate, dated as of the date hereof, signed by an
Executive Officer (other than the Secretary) to the effect
13
14
that (a) no Default has occurred and is continuing on the date hereof and (b)
the representations and warranties of the Borrower contained in Article IV are
true on and as of the date hereof, except to the extent otherwise disclosed
pursuant to Section 5.01(c) or (d) of the Credit Agreement; and
(vii) of all other 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 First
Amendment, the new Syndicated Loan Notes described in clause (ii) above, the new
Money Market Loan Notes described in clause (iii) above and the Guaranty
(collectively, the "First Amendment Loan Documents"), and any other matters
relevant hereto, all in form and substance satisfactory to the Administrative
Agent, including, without limitation, certificates of incumbency of the General
Partner and each of the Guarantors, signed by the Secretary or an Assistant
Secretary of the General Partner and such Guarantor, certifying as to the names,
true signatures and incumbency of the officer or officers of the General Partner
and such Guarantor authorized to execute and deliver the First Amendment Loan
Documents on behalf of the Borrower or such Guarantor, and certified copies of
the following items:
(a) the Borrower's Certificate of Limited Partnership;
(b) the Borrower's Partnership Agreement,
(c) for the General Partner and each of the Guarantors, its
Certificate of Incorporation,
(d) for the General Partner and each of the Guarantor, its
Bylaws,
(e) for the Borrower, the General Partner and each of the
Guarantors, a certificate of the Secretary of State of Georgia as to
the valid existence of the Borrower, the General Partner or such
Guarantor as a Georgia limited partnership or corporation, as the case
may be, and
(f) the action taken by the Board of Directors of the General
Partner and each of the Guarantors authorizing the execution, delivery
and performance of First Amendment Loan Documents to which it is a
party.
14
15
IN WITNESS WHEREOF, the Borrower, the Administrative Agent, the
Co-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)
By: Post GP Holdings, Inc., its
sole general partner
By: /s/ Timothy A. Peterson
----------------------------------------
Timothy A. Peterson
Vice President
Post Apartment Homes, L.P.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339-3363
Attention: John T. Glover,
President
Telecopier number: 404-951-1825
Confirmation number: 404-850-4400
COMMITMENTS WACHOVIA BANK, N.A.,
as Administrative Agent and
as a Bank (SEAL)
$60,000,000
By: /s/
----------------------------------------
Title:
Lending Office
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Telecopier number: 404-332-4005
Confirmation number: 404-332-6971
15
16
FIRST UNION NATIONAL
BANK, as
Co-Agent and as a Bank (SEAL)
$60,000,000 By: /s/
----------------------------------------
Title:
Lending Office
First Union National Bank
999 Peachtree Street, N.E.
Suite 610
Atlanta, GA 30309
Attention: Ms. Susan T. Miller
Telecopier number: 404-225-4113
Confirmation number: 404-225-4030
SUNTRUST BANK, ATLANTA (SEAL)
$30,000,000 By: /s/
----------------------------------------
Title:
Lending Office
SunTrust Bank, Atlanta
25 Park Place, MC-081
Atlanta, GA 30303
Attention: Mr. W. John Neill
Telecopier number: 404-827-6774
Confirmation number: 404-588-8248
16
17
CORESTATES BANK (SEAL)
$20,000,000 By: /s/
------------------------------------------------
Title:
Lending Office
CoreStates Bank
Real Estate Department
1339 Chestnut Street
Philadelphia, PA 19107-7618
Attention: Mr. Glen Gallager
Telecopier number: 215-786-6381
Confirmation number: 215-786-4221
COMMERZBANK AG, ATLANTA AGENCY
(SEAL)
$10,000,000 By: /s/
------------------------------------------------
Title:
By: /s/
------------------------------------------------
Title:
Lending Office
Commerzbank AG, Atlanta Agency
1230 Peachtree Street
35th Floor
Atlanta, GA 30309
Attention: Mr. Mark Wortman
Telecopier number: 404-888-6539
Confirmation number: 404-888-6500
Designating Bank with respect to
Four Winds Funding Corporation
FOUR WINDS FUNDING CORPORATION
(SEAL)
$0 By: Commerzbank AG, New York Branch,
as Administrator and Attorney-in-
Fact
By: /s/
------------------------------------------------
Title:
By: /s/
------------------------------------------------
Title:
17
18
Lending Office
Four Winds Funding Corporation
c/o Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281-1050
Attention: Mr. Howard Thompson
Telecopier number: 212-266-7661
Confirmation number: 212-266-7474
Designated Bank of Commerzbank AG,
Atlanta Agency
BANK ONE, TEXAS, N.A. (SEAL)
$10,000,000 By: /s/
-----------------------------------------------
Title:
Lending Office
Bank One, Texas, N.A.
1717 Main Street
Dallas, Texas 75201
Attention: Mr. Dale Renner
Telecopier number: 214-290-2275
Confirmation number: 214-290-2891
TEXAS COMMERCE BANK, N.A. (SEAL)
$10,000,000 By: /s/
-----------------------------------------------
Title:
Lending Office
Texas Commerce Bank, N.A.
2200 Ross Avenue
Dallas, Texas 75201
Attention: Mr. Joseph F. Griffith
Telecopier number: 214-965-2290
Confirmation number: 214-965=2790
TOTAL COMMITMENTS
$200,000,000
18
19
EXHIBIT A-3
MONEY MARKET LOAN NOTE
As of December 17, 1997
For value received, POST APARTMENT HOMES, L.P., a Georgia
limited partnership (the "Borrower"), promises to pay to the order of , a
_______________ (the "Bank"), for the account of its Lending Office, the
principal sum of ONE HUNDRED MILLION AND NO/100 DOLLARS ($100,000,000), or such
lesser amount as shall equal the unpaid principal amount of each Money Market
Loan made by the Bank to the Borrower pursuant to the Amended and Restated
Credit Agreement referred to below, on the dates and in the amounts provided in
the Amended and Restated Credit Agreement. The Borrower promises to pay interest
on the unpaid principal amount of this Money Market Loan Note on the dates and
at the rate or rates provided for in the Amended and Restated Credit Agreement
referred to below. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Amended and Restated Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Wachovia Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia
30303-1757, or such other address as may be specified from time to time pursuant
to the Amended and Restated Credit Agreement.
All Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Amended and
Restated Credit Agreement.
This Money Market Loan Note is one of the Money Market Loan
Notes referred to in the Amended and Restated Credit Agreement dated as of April
9, 1997 among the Borrower, the Banks listed on the signature pages thereof,
Wachovia Bank, N.A. (formerly Wachovia Bank of Georgia, N.A.), as Administrative
Agent (as amended on even date herewith and as the same may hereafter be amended
and modified from time to time, the "Amended and Restated Credit Agreement").
Terms defined in the Amended and Restated Credit Agreement are used herein with
the same meanings. Reference is made to the Amended and Restated Credit
Agreement for provisions for the optional and mandatory prepayment and the
repayment hereof and the acceleration of the maturity hereof.
19
20
IN WITNESS WHEREOF, the Borrower has caused this Money Market
Loan Note 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:
-------------------------------------
Timothy A. Petersen
Executive Vice President
20
21
Money Market Loan Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
- --------------------------------------------------------------------------------
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
21
22
EXHIBIT H
GUARANTY
THIS GUARANTY (this "Guaranty") is made December 17, 1997, by
POST PROPERTIES, INC., POST GP HOLDINGS, INC. and POST LP HOLDINGS, INC., each a
Georgia corporation (each individually a "Guarantor", and collectively, the
"Guarantors") in favor of the Administrative Agent, for the ratable benefit of
the Banks, under the Amended and Restated Credit Agreement referred to below;
W I T N E S S E T H
WHEREAS, POST APARTMENT HOMES, L.P., a Georgia limited
partnership (the "Borrower"), FIRST UNION NATIONAL BANK (formerly First Union
National Bank of Georgia), as Co-Agent (the "Co-Agent") and WACHOVIA BANK, N.A.
(formerly Wachovia Bank of Georgia, N.A.), as Administrative Agent (the
"Administrative Agent"), and certain other Banks from time to time party thereto
have entered into a certain Amended and Restated Credit Agreement dated as of
April 9, 1997 (as amended as of even date herewith and as it may be amended or
modified further from time to time, the "Amended and Restated Credit
Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit to be made by the Banks to the Borrower which will the
benefit the Guarantors;
WHEREAS, it is required by the First Amendment that the
Guarantors execute and deliver this Guaranty whereby the Guarantors shall,
unconditionally and jointly and severally, guarantee the payment when due of all
principal, interest and other amounts that shall be at any time payable by the
Borrower under the Amended and Restated Credit Agreement, the Notes and the
other Loan Documents; and
WHEREAS, in consideration of the direct and indirect ownership
interests of the Guarantors in the Borrower and the financial and other support
that the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantors, whether directly or
indirectly, and in order to induce the Banks, the Co-Agent and the
Administrative Agent to enter into the Amended and Restated Credit Agreement,
the Guarantors are willing to guarantee the obligations of the Borrower under
the Amended and Restated Credit Agreement, the Notes, and the other Loan
Documents;
22
23
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Amended and
Restated Credit Agreement and not otherwise defined herein have, as used herein,
the respective meanings provided for therein.
SECTION 2. Representations and Warranties. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors contained in Article
IV of the Amended and Restated Credit Agreement (which representations and
warranties shall be deemed to have been renewed by the Guarantors upon each
Borrowing under the Amended and Restated Credit Agreement), except to the extent
otherwise disclosed to the Banks pursuant to Section 5.01(c) or (d) of the
Credit Agreement).
SECTION 3. Covenants. The Guarantors covenant that, so long as
any Bank has any Commitment outstanding under the Amended and Restated Credit
Agreement or any amount payable under the Amended and Restated Credit Agreement
or any Note shall remain unpaid, the Guarantors will fully comply with those
covenants set forth in Article V of the Amended and Restated Credit Agreement
pertaining to the Guarantors, and the Guarantors incorporate herein by reference
as fully as if set forth herein all of such covenants.
SECTION 4. The Guaranty. The Guarantors hereby unconditionally
and jointly and severally guarantee the full and punctual payment (whether at
stated maturity, upon acceleration or otherwise) of the principal of and
interest on each Note issued by the Borrower pursuant to the Amended and
Restated Credit Agreement, and the full and punctual payment of all other
amounts payable by the Borrower under the Amended and Restated Credit Agreement
(including, without limitation, all Syndicated Loans, Swing Loans and Money
Market Loans and interest thereon, and all compensation and indemnification
amounts and fees payable pursuant to the Amended and Restated Credit Agreement
and the Administrative Agent's Letter Agreement (all of the foregoing
obligations being referred to collectively as the "Guaranteed Obligations").
Upon failure by the Borrower to pay punctually any such amount, each Guarantor
agrees that it shall forthwith on demand pay the amount not so paid at the place
and in the manner specified in the Amended and Restated Credit Agreement, the
relevant Note or the relevant Loan Document, as the case may be.
SECTION 5. Guaranty Unconditional. The obligations of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
23
24
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Borrower under
the Amended and Restated Credit Agreement, any Note, or any other
Loan Document, by operation of law or otherwise or any obligation of
any other guarantor of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement
to the Amended and Restated Credit Agreement, any Note, or any other
Loan Document;
(iii) any release, nonperfection or invalidity of any
direct or indirect security for any obligation of the Borrower under
the Amended and Restated Credit Agreement, any Note, any Loan
Document, or any obligations of any other Guarantor or guarantor of
any of the Guaranteed Obligations;
(iv) any change in the partnership structure or
ownership of the Borrower or corporate structure or ownership of any
of the Guarantors, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Borrower or any of the
Guarantors, or any of their assets or any resulting release or
discharge of any obligation of the Borrower or any of the Guarantors;
(v) the existence of any claim, setoff or other
rights which any of the Guarantors may have at any time against the
Borrower, the Administrative Agent, the Co-Agent, any Bank or any
other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to
or against the Borrower for any reason related to the Amended and
Restated Credit Agreement, any other Loan Document, or any other
guaranty, or any provision of applicable law or regulation purporting
to prohibit the payment by the Borrower of the principal of or
interest on any Note or any other amount payable by the Borrower
under the Amended and Restated Credit Agreement, the Notes, or any
other Loan Document; or
(vii) any other act or omission to act or delay of
any kind by the Borrower, the Co-Agent, any Bank or any other Person
or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantors' obligations hereunder.
24
25
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement
In Certain Circumstances. The Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Amended and Restated Credit Agreement shall
have terminated or expired. If at any time any payment of the principal of or
interest on any Note or any other amount payable by the Borrower under the
Amended and Restated Credit Agreement or any other Loan Document is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Guarantors' obligations
hereunder with respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
SECTION 7. Waiver of Notice by the Guarantors. Each of the
Guarantors irrevocably waives, acceptance hereof, presentment, demand, protest
and, to the fullest extent permitted by law, any notice not provided for herein,
as well as any requirement that at any time any action be taken by any Person
against the Borrower or any other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Borrower under the Amended and Restated
Credit Agreement, any Note or any other Loan Document is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of the Amended and Restated
Credit Agreement, any Note or any other Loan Document shall nonetheless be
payable by the Guarantors hereunder forthwith on demand by the Administrative
Agent made at the request of the Required Banks.
SECTION 9. Notices. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient at
its address or telecopier number set forth on the signature pages hereof or such
other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions
of Section 9.01 of the Amended and Restated Credit Agreement. Except as
otherwise provided in this Guaranty, all such communications shall be deemed to
have been duly given when transmitted by telecopier, or personally delivered or,
in the case of a mailed notice, 3 Domestic Business Days after such
communication is deposited in the mails with first class postage prepaid, in
each case given or addressed as aforesaid.
SECTION 10. No Waivers. No failure or delay by the
Administrative Agent, the Co-Agent or any Banks in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
provided in this Guaranty, the
25
26
Amended and Restated Credit Agreement, the Notes, and the other Loan Documents
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for the
benefit of the Administrative Agent, the Co-Agent and the Banks and their
respective successors and assigns and in the event of an assignment of any
amounts payable under the Amended and Restated Credit Agreement, the Notes, or
the other Loan Documents, the rights hereunder, to the extent applicable to the
indebtedness so assigned, may be transferred with such indebtedness. This
Guaranty may not be assigned by the Guarantors without the prior written consent
of the Administrative Agent and the Required Banks, and shall be binding upon
the Guarantors and its respective successors and permitted assigns.
SECTION 12. Changes in Writing. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantors and the Administrative Agent, with the
consent of the Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTORS AND THE
ADMINISTRATIVE AGENT HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY
GEORGIA STATE COURT SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH OF THE GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH OF THE GUARANTORS AND THE ADMINISTRATIVE AGENT HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by
the Guarantors hereunder shall be made without setoff or counterclaim and free
and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority pursuant
and subject to the provisions of Section 2.12(c) of the Amended and Restated
Credit Agreement, the terms of which are incorporated herein by reference as to
the Guarantors as fully as if set forth herein, and for such purposes, the
rights and obligations of the Borrower under such Section shall devolve to the
Guarantors as to payments required to be made by the Guarantors hereunder.
26
27
IN WITNESS WHEREOF, each of the Guarantors has caused this
Guaranty to be duly executed, under seal, by its authorized officer as of the
date first above written.
POST PROPERTIES, INC. (SEAL)
By:
-------------------------------------
Timothy A. Petersen
Executive Vice President
Post Corporate Services
Address:
Post Properties, Inc.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339-3363
Attention: John T. Glover,
President
Telecopier number: 770-951-1825
Confirmation number: 770-850-4400
POST GP HOLDINGS, INC. (SEAL)
By:
-------------------------------------
Title:
Address:
Post GP Holdings, Inc.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339-3363
Attention: John T. Glover,
President
Telecopier number: 770-951-1825
Confirmation number: 770-850-4400
POST LP HOLDINGS, INC. (SEAL)
By:
-------------------------------------
Title:
Address:
Post LP Holdings, Inc.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339-3363
Attention: John T. Glover,
President
Telecopier number: 770-951-1825
Confirmation number: 770-850-4400
27
28
EXHIBIT L
Form of Designation Agreement
Dated __________________, _____
Reference is made to that certain Amended and Restated Credit
Agreement dated as of April 9, 1997 (as amended prior to the date hereof and as
it may hereafter be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") by and among Post Apartment Homes, L.P., as the
Borrower, the Banks parties thereto, Wachovia Bank, N.A. (formerly Wachovia Bank
of Georgia, N.A.), as Administrative Agent (the "Administrative Agent") and
First Union National Bank (formerly First Union National Bank of Georgia), as
Co- Agent. Terms defined in the Credit Agreement are used herein with the same
meaning.
[NAME OF DESIGNATING BANK] (the "Designating Bank") and [NAME OF
DESIGNEE] (the "Designee") agree as follows:
1. Pursuant to Section 9.08(g) of the Credit Agreement, the
Designating Bank hereby designates the Designee, and the Designee hereby accepts
such designation, to have a right to make Money Market Loans pursuant to Section
2.03(g) of the Credit Agreement. Any assignment by Designating Bank to Designee
of its rights to make a Money Market Loan pursuant to such Section 2.03(g) shall
be effective at the time of the funding of such Money Market Loan and not before
such time.
2. Except as set forth in Section 7, below, the Designating Bank
makes no representation or warranty and assumes no responsibility pursuant to
this Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Sections 4.04 and 5.01(a) and (b) (for periods for which such financial
statements are available) of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will
independently and without reliance upon the Administrative Agent, the Co-Agent,
the Designating Bank or any other Bank and based on such documents and
28
29
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under any Loan Document; (c)
confirms that it is a Designated Bank; (d) appoints and authorizes the
Administrative Agent to take such action as the Administrative Agent on its
behalf and to exercise such powers and discretion under any Loan Document as are
delegated to the Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; and (e) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of any Loan Document are required to be performed by it as a Bank.
4. The Designee hereby appoints the Designating Bank as Designee's
agent and attorney in fact and grants to the Designating Bank an irrevocable
power of attorney, coupled with an interest, to receive payments made for the
benefit of Designee under the Credit Agreement, to deliver and receive all
communications and notices under the Credit Agreement and other Loan Documents
and to exercise on Designee's behalf all rights to vote and to grant and make
approvals, waivers, consents, releases and amendments to or under the Credit
Agreement or other Loan Documents. Any document executed by such agent on the
Designee's behalf in connection with the Credit Agreement or other Loan
Documents shall be binding on the Designee. The Borrower, the Administrative
Agent, the Co-Agent and each of the Banks may rely on and are beneficiaries of
the preceding provisions.
5. Following the execution of this Designation Agreement by the
Designating Bank and its Designee, it will be delivered to the Borrower for
acknowledgment and to the Administrative Agent for acknowledgment and recording
by the Administrative Agent. The effective date for this Designation Agreement
(the "Effective Date") shall be the date of acknowledgment hereof by the
Administrative Agent, unless otherwise specified on the signature page thereto.
6. The Designating Bank and, by execution of their respective
acknowledgments below, the Borrower and the Administrative Agent, each hereby
(i) acknowledges that the Designee is relying on the non-petition provisions of
Section 9.18 of the Credit Agreement as agreed to by all signatories thereto and
(ii) reaffirms that it will not institute against the Designee or join any other
Person in instituting against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any federal or state
bankruptcy or similar law for one year and done day after the payment in full of
the latest maturing commercial paper note issued by the Designee.
7. The Designating Bank unconditionally agrees to pay or reimburse
the Designee and save the Designee harmless against all liabilities,
obligations, losses, damages, penalties, actions,
29
30
judgments, suits, costs, expenses or disbursements of any kind or mature
whatsoever which may be imposed or asserted by any of the parties to the Loan
Documents against the Designee, in its capacity as such, in any way relating to
or arising out of this Agreement or any other Loan Documents or any action taken
or omitted by the Designee hereunder or thereunder, provided that the
Designating Bank shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements if the same results from the Designee's gross
negligence or willful misconduct.
8. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make Money Market Loans as a Designated Bank pursuant to Section
2.03(g) of the Credit Agreement and the rights and obligations of a Designated
Bank related thereto; provided, however, that the Designee shall not be required
to make payments with respect to such obligations except to the extent of excess
cash flow of the Designee which is not otherwise required to repay obligations
of the Designee Bank which are then due and payable. Notwithstanding the
foregoing, the Designating Bank shall be and remain obligated to the Borrower,
the Administrative Agent, the Co-Agent and the Banks for each and every of the
obligations of the Designee and the Designating Bank with respect to the Credit
Agreement, including, without limitation, any indemnification obligations under
Section 7.05 of the Credit Agreement and any sums otherwise payable to the
Borrower by the Designee.
9. This Designation Agreement shall be governed by and construed in
accordance with the laws of the State of [GEORGIA][NEW YORK][OTHER JURISDICTION
CHOSEN BY DESIGNATING BANK AND DESIGNATED BANK].
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designating Bank and the Designee intending
to be legally bound, have caused this Designation Agreement to be executed by
their officers thereunto duly authorized as of the date first above written.
[NAME OF DESIGNATING BANK]
as Designating Bank
30
31
By:
Title:
[NAME OF DESIGNEE], as Designee
By:
Title:
Lending Office (and address for
notices):
Acknowledged this _____ day Acknowledged this _____ day
of ________________, ____ of ________________, ____
(the "Effective Date")
WACHOVIA BANK, N.A. POST APARTMENT HOMES, L.P.
as the Administrative Agent as the Borrower
By: By: Post GP Holdings, Title:
Inc., its sole
general partner
By:
-------------------------
Timothy A. Petersen
Executive Vice
President
31