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EXHIBIT 10.32
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
POST APARTMENT HOMES, L.P.,
THE BANKS LISTED THEREIN,
FIRST UNION NATIONAL BANK, AS SYNDICATION AGENT,
SUNTRUST BANK, ATLANTA, AS DOCUMENTATION AGENT
AND
WACHOVIA BANK, N.A., AS ADMINISTRATIVE AGENT
NOVEMBER 20, 1998
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment and
Restatement") is dated as of the 20th day of November, 1998 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. and CHASE BANK OF TEXAS,
National Association (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. (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 (as amended by that certain First Amendment
thereto dated as of December 17, 1997 and that certain Second Amendment dated as
of July 31, 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 amend and restate the Credit
Agreement in its entirety, 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:
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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 and restated hereby.
2. Restatement. The Credit Agreement as in effect on the date hereof is
hereby incorporated and restated in its entirety with the amendments specified
herein.
3. Changes to Commitments. (a) From and after the date of this
Amendment and Restatement, the Commitment of each Bank shall be the amount set
forth opposite the name of such Bank on the signature page of this Amendment and
Restatement, as such amount may be increased or reduced pursuant to Section 2.08
of the Credit Agreement.
(b) So long as the Borrower has not reduced the Commitments,
the Borrower may request that the Commitments be increased to $250,000,000 (the
"Maximum Commitment"). If the Borrower requests that the total Commitments from
the Banks then parties to this Amendment and Restatement be increased, the
Administrative Agent shall promptly give notice of such request (the "Commitment
Increase Notice") to each Bank. Within five Business Days of its receipt of a
Commitment Increase Notice from the Administrative Agent, each Bank that desires
to increase its Commitment in response to such request (each such Bank, a
"Consenting Bank") shall deliver notice to the Administrative Agent of its
election to increase its Commitment and the maximum amount of such increase to
its Commitment (for each Consenting Bank, its "Additional Commitment"), which
may not be larger than the excess of (a) the Maximum Commitment, over (b) the
Commitments then in effect. The failure of any Bank to so notify the
Administrative Agent of its election and its Additional Commitment, if any,
shall be deemed to be a refusal to increase its Commitment. If the sum of the
Commitments then in effect plus the aggregate Additional Commitments does not
exceed the Maximum Commitment, the Commitment of each Consenting Bank shall be
increased by its Additional Commitment. If the sum of the Commitments then in
effect plus the aggregate Additional Commitments exceeds the Maximum Commitment,
the Commitment of each Consenting Bank shall be increased by an amount equal to
the
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product of (i) such Consenting Bank's Additional Commitment multiplied by (ii)
the quotient of (a) the excess of (A) the Maximum Commitment, over (B) the
Commitments then in effect, divided by (b) the aggregate Additional Commitments
of all Consenting Banks. Any increase in the Commitments shall be effective as
of the tenth Business Day after the delivery of the Commitment Increase Notice;
provided, that the Commitments may not at any time exceed the Maximum
Commitment.
4. Additional Banks and Commitments. Upon (i) the execution of a
signature page to this Amendment and Restatement by a new bank or financial
institution (a "New Bank") and acceptance thereof by the Administrative
Agent,(ii) execution and delivery by the Borrower of a Syndicated Loan Note and
a Money Market Loan Note in favor of the New Bank, and (iii) delivery of notice
to the Banks by the Administrative Agent setting forth the effective date of the
addition of the New Bank hereunder and the amount of such New Bank's Commitment,
such New Bank shall be for all purposes a Bank party to this Agreement to the
same extent as if it were an original party hereto with a Commitment as set
forth on the signature page executed by the New Bank; provided, however, (i) the
total Commitments of all Banks shall not exceed in the aggregate the Maximum
Commitment, and (ii) the Commitments and obligations of all Banks party hereto
prior to the addition of any New Bank shall not be affected by the addition of
such New Bank.
5. Notes. Each reference in the Credit Agreement to any Note shall
hereafter refer to the Notes executed as of the date hereof and any additional
Notes executed in favor of Banks in respect of Additional Commitments and in
favor of any New Bank in respect of its Commitment.
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 Restatement
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
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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 and Restatement 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 and Restatement 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.
13. Governing Law. This Amendment and Restatement shall be
governed by and construed and interpreted in accordance with, the
laws of the State of Georgia.
14. Conditions Precedent. This Amendment and Restatement shall become
effective only upon the satisfaction of the conditions set forth in Section 3.02
of the Credit Agreement and 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):
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(a) from each of the parties hereto either (i) a duly executed
counterpart of this Amendment and Restatement 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 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;
(e) 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;
(f) 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 and Restatement, the Notes, and any other matters relevant
hereto, all in form and substance satisfactory to the Administrative
Agent, including, without 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
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of Directors authorizing the execution, delivery and performance of the
Loan Documents to which it is a party.
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IN WITNESS WHEREOF, the Borrower, the Administrative Agent, the
Syndication Agent, the Documentation Agent, and each of the undersigned Banks
has caused this Amendment and Restatement 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: R. Byron Carlock, Jr.
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R. Byron Carlock, Jr.
Executive Vice President
Commitments
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$70,000,000 WACHOVIA BANK, N.A.,
as Administrative Agent and
as a Bank (SEAL)
By: /s/
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Title:
$60,000,000 FIRST UNION NATIONAL BANK,
as Syndication Agent and
as a Bank (SEAL)
By: /s/
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Title:
$60,000,000 SUNTRUST BANK, ATLANTA,
as Documentation Agent and
a Bank (SEAL)
By: /s/
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Title:
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$20,000,000 COMMERZBANK AG, ATLANTA
AGENCY (SEAL)
By: /s/
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Title:
By: /s/
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Title:
FOUR WINDS FUNDING
CORPORATION (SEAL)
By: Commerzbank AG, New York
Branch, as Administrator
and Attorney-in-Fact
By: /s/
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Title:
By: /s/
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Title:
$20,000,000 BANK ONE, TEXAS, N.A. (SEAL)
By: /s/
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Title:
$10,000,000 CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION.
By: /s/
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Title: Vice President
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CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Second
Amended and Restated Credit Agreement (the "Amendment and Restatement"), (ii)
consents to the execution and delivery of the Amendment and Restatement 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 and Restatement. 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/
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Title:
POST GP HOLDINGS, INC. (SEAL)
By: /s/
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Title:
POST LP HOLDINGS, INC. (SEAL)
By: /s/
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Title: