EXHIBIT 10. 19
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment") is
dated as of the 23rd day of November, 1999 among GABLES REALTY LIMITED
PARTNERSHIP (the "Borrower"), WACHOVIA BANK, N.A., as Administrative Agent (the
"Administrative Agent"), FIRST UNION NATIONAL BANK, as Syndication Agent, CHASE
BANK OF TEXAS, NATIONAL ASSOCIATION, as Documentation Agent and WACHOVIA BANK,
N.A., FIRST UNION NATIONAL BANK, CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, PNC BANK, NATIONAL
ASSOCIATION, AMSOUTH BANK OF ALABAMA and GUARANTY FEDERAL BANK, F.S.B.
(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 Amended and Restated Credit Agreement, dated as of
May 13, 1998, as amended by First Amendment to Credit Agreement dated as of June
14, 1999 (as so amended, the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent and
the Banks have agreed to certain amendments to the Credit Agreement to permit
Gables-Tennessee Properties ("Gables-TN") to bc released as a Guarantor and to
become a joint and several co-Borrower with Gables Realty Limited Partnership
(the "Parent"; Gables-TN and the Parent being referred to collectively as the
"Borrower"), 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. Assumption, Release and Global Amendments.
(a) Gables-TN hereby assumes all rights and obligations as a "Borrower"
under the Credit Agreement, on a joint and several basis with the Parent,
including all obligations to make payments on the Notes as and when due, and all
other payment and indemnification obligations of a Borrower under the Credit
Agreement and the Notes, as fully as if it had executed and delivered each such
document as an original Borrower, and the Parent and Gables-TN hereby agree to
execute and deliver to the Administrative Agent replacement Notes for each of
the Banks, jointly executed by them.
(b) Gables-TN hereby is released from all of its rights and obligations
as a "Guarantor" under the Guaranty.
(c) The Administrative Agent and the Banks hereby consent to the
foregoing, and release Gables-TN as a Guarantor, substituting Gables-TN as an
additional joint and several Borrower.
(d) The term "Borrower", wherever used in the definitions of the terms
set forth below and in (or for purposes of) the Sections referenced below, in
all references to the Credit Agreement in each of the Loan Documents, and in the
Borrowing Base Certificate and the Compliance Certificate, hereby is deleted,
and the term "Parent" is substituted therefor (but the Borrowing Base
Certificates and the Compliance Certificates submitted hereafter need not
actually be revised accordingly, but shall be deemed to have been so revised):
Definition Section
---------- -------
Change in Control 1.02
Consolidated Debt 4.04
Consolidated Fixed Charges 4.06
Consolidated Fixed Charges Coverage Ratio 4.08
Consolidated Interest Expense 5.01
Consolidated Income Available for Debt Service 5.03
Consolidated Income Available for Distribution 5.04
Consolidated Total Assets 5.05
Debt Rating 5.06
Fiscal Year 5.07 (clause (v) only)
General Partner 5.09 (clause (E) only)
Joint Venture 5.22
Joint Venture Share 5.27
Material Adverse Effect 5.28
Subsidiary
Total Assets Value
Total Debt (clauses (iii) and (vi) only)
Wholly Owned Subsidiary
(e) The term Borrower, wherever used in the Credit Agreement, other
than in the definitions and Sections listed above in paragraph (d), hereby is
changed to "Borrowers".
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3. AMENDMENTS TO SECTION 1.01. Section 1.01 of the Credit Agreement
hereby is amended by deleting the definition of "Borrower" and adding the
following definitions of "Borrowers", "Gables-TN" and "Parent" in the
appropriate alphabetical sequence:
"Borrowers" means, individually and collectively, as
the context shall require, the Parent and Gables-TN, as joint
and several obligors for all purposes under this Agreement and
the Notes.
"Gables-TN" means Gables-Tennessee Properties, a
Tennessee general partnership, and its successors and
permitted assigns.
"Parent" means Gables Realty Limited Partnership, a
Delaware limited partnership, and its successors and permitted
assigns.
4. AMENDMENT TO SECTION 4.01. Section 4.01 of the Credit Agreement
hereby is deleted, and the following is substituted therefor:
SECTION 4.01. PARTNERSHIP OR CORPORATE EXISTENCE AND
POWER. The Parent is a limited partnership duly created and
validly existing under the laws of Delaware, Gables-TN is a
general partnership duly created and validly existing under
the laws of Tennessee, GBP is a trust duly created, validly
existing and in good standing under the laws of Maryland, the
General Partner is a corporation duly organized, validly
existing and in good standing under the laws of Texas, and
each of the foregoing is duly qualified to transact business
in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all partnership
powers and all governmental licenses, authorizations, consents
and approvals required to carry on its business as now
conducted, except where any such failure does not have and is
not reasonably expected to cause a Material Adverse Effect.
5. REPLACEMENT OF NOTES. EXHIBIT A-1 and EXHIBIT A-2 to the Credit
Agreement hereby are deleted, and EXHIBIT A-1 and EXHIBIT A-2 hereto are
substituted therefor.
6. RESTATEMENT OF REPRESENTATIONS AND WARRANTIES. The Borrowers hereby
restate and renew 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 (except to the extent such representations and warranties
expressly relate to an earlier date) and with specific reference to this Second
Amendment and all other loan documents executed and/or delivered in connection
herewith.
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 Borrowers.
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8. RATIFICATION. The Borrowers hereby restate, ratify and reaffirm 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 Second 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 (which may be by telecopier pursuant to
Section 14 below) 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
Second 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 Second Amendment and to continue to make advances pursuant to
the Credit Agreement, the Borrowers hereby acknowledge and agree 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 Borrowers arising out of or with respect to
any of the Loans or other obligations of the Borrowers owed to the Banks under
the Credit Agreement.
12. FURTHER ASSURANCES. The Borrowers agree to take such further
actions as the Administrative Agent shall reasonably request in connection
herewith to evidence the amendments herein contained to the Borrowers.
13. GOVERNING LAW. This Second Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of Georgia.
14. CONDITIONS PRECEDENT. This Second Amendment shall become effective
only upon (i) execution hereof by the Administrative Agent; (ii) execution and
return to the Administrative Agent at the telecopier number set forth below of a
copy hereof by the Borrowers and the Banks; (iii) execution and return to the
Administrative Agent at the telecopier number set forth below of a copy of the
Consent and Reaffirmation of Guarantors at the end hereof and (iv) execution by
the Borrowers and delivery to the Administrative Agent or replacement Notes for
each Bank in the form attached hereto as Exhibits A-1 and A-2. Executed copies
hereof shall be sent by facsimile to counsel for the Administrative Agent,
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, at Telecopier
number ▇▇▇-▇▇▇-▇▇▇▇, Confirmation number ▇▇▇-▇▇▇-▇▇▇▇.
[SIGNATURES CONTAINED ON NEXT PAGE]
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IN WITNESS WHEREOF, the Borrower, the Administrative Agent and each of
the Banks has caused this Second Amendment to be duly executed, under seal, by
its duly authorized officer as of the day and year first above written.
GABLES-TENNESSEE PROPERTIES (SEAL) GABLES REALTY LIMITED
PARTNERSHIP
By: Gables Realty Limited Partnership,
a general partner By: Gables GP, Inc., its sole general
By: Gables GP, Inc., its sole general partner partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Sr. Vice President Sr. Vice President
WACHOVIA BANK, N.A., GUARANTY FEDERAL BANK, F.S.B.,
as Administrative Agent and as a Bank as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------- By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ---------------------------------------
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice president -----------------------------
----------------------------- Title:Vice President
-----------------------------
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, FIRST UNION NATIONAL BANK,
as Documentation Agent and as a Bank as Syndication Agent and as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------- By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ ---------------------------------------
----------------------------- Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President -----------------------------
----------------------------- Title: Director
-----------------------------
PNC BANK, NATIONAL ASSOCIATION, AMSOUTH BANK OF ALABAMA,
as a Bank as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------- By: /s/ J.R. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ---------------------------------------
----------------------------- Name: J.R. ▇▇▇▇▇▇
Title: Vice President -----------------------------
----------------------------- Title: Vice President
-----------------------------
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COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Bank
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________________
Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇
_____________________________
Title: Assistant Vice President
_____________________________
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_____________________________
Title: Assistant Treasurer
_____________________________
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EXHIBIT A-1
SYNDICATED LOAN NOTE
Atlanta, Georgia
November 23, 1999
For value received, GABLES REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership and GABLES-TENNESSEE PROPERTIES, a Tennessee general
partnership (collectively, the "Borrower"), jointly and severally promise to pay
to the order of __________________________________________ (the "Bank"), for the
account of its Lending Office, the principal sum of
_______________________________ AND NO/100 DOLLARS ($ ), or such lesser amount
as shall equal the unpaid principal amount of each Syndicated Loan made by the
Bank to the Borrowers (or either of them) pursuant to the Credit Agreement
referred to below, on the dates and in the amounts provided in the Credit
Agreement. The Borrowers promise to pay interest on the unpaid principal amount
of this Syndicated Loan Note on the dates and at the rate or rates provided for
in the Credit Agreement. 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 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., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such
other address as may be specified from time to time pursuant to the Credit
Agreement.
All 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 Borrowers hereunder or under the Credit Agreement.
This Syndicated Loan Note is one of the Syndicated Loan Notes referred
to in the Amended and Restated Credit Agreement dated as of even date herewith
among Gables Realty Limited Partnership, the Banks listed on the signature pages
thereof and Wachovia Bank, N.A., as Administrative Agent, as amended by First
Amendment to Credit Agreement dated as of June 14, 1999 and Second Amendment to
Credit Agreement dated of even date herewith (which added Gables-Tennessee
Properties as a Borrower) (as the same may hereafter be amended and modified
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the optional and mandatory prepayment and
the repayment hereof and the acceleration of the maturity hereof, as well as the
obligation of the Borrower to pay all costs of collection, including reasonable
attorneys fees, in the event this Syndicated Loan Note is collected by law or
through an attorney at law.
4
The Borrowers hereby waive presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in the
Credit Agreement.
IN WITNESS WHEREOF, each of the Borrowers has caused this Syndicated
Loan Note to be duly executed, under seal, by its duly authorized officer as of
the day and year first above written.
GABLES-TENNESSEE PROPERTIES (SEAL) GABLES REALTY LIMITED
By: Gables Realty Limited Partnership, PARTNERSHIP (SEAL)
a general partner By: Gables GP, Inc., its sole general partner
By: Gables GP, Inc., its sole general
partner
By: By:
--------------------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Vice President Vice President
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Syndicated Loan Note (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
BASE RATE AMOUNT AMOUNT OF
OR EURO-DOLLAR OF PRINCIPAL MATURITY NOTATION
DATE LOAN LOAN REPAID DATE MADE BY
_______________________________________________________________________________________________________
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EXHIBIT A-2
MONEY MARKET LOAN NOTE
As of November 23, 1999
For value received, GABLES REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership and GABLES-TENNESSEE PROPERTIES, a Tennessee general
partnership (collectively, the "Borrower"), jointly and severally promises to
pay to the order of _________________, a _______________ (the "Bank"), for
the account of its Lending Office, the principal sum of ONE HUNDRED TWELVE
MILLION, FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($112,500,000), or such
lesser amount as shall equal the unpaid principal amount of each Money Market
Loan made by the Bank to the Borrower (or either of them) pursuant to the
Credit Agreement referred to below, on the dates and in the amounts provided
in the Credit Agreement. The Borrowers promise 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 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 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., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as
may be specified from time to time pursuant to the 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 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 even date
herewith among Gables Realty Limited Partnership, the Banks listed on the
signature pages thereof and Wachovia Bank, N.A., as Administrative Agent, as
amended by First Amendment to Credit Agreement dated as of June 14, 1999 and
Second Amendment to Credit Agreement dated of even date herewith (which added
Gables-Tennessee Properties as a Borrower) (as the same may hereafter be amended
and modified from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made to
the Credit Agreement for provisions for the optional and mandatory prepayment
and the repayment hereof and the acceleration of the maturity hereof, as well as
the obligation of the Borrowers to pay all costs of collection, including
reasonable attorneys fees, in the event this Money Market Loan Note is collected
by law or through an attorney at law.
10
The Borrowers hereby waive presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in the
Credit Agreement.
IN WITNESS WHEREOF, each of the Borrowers 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.
GABLES-TENNESSEE PROPERTIES (SEAL) GABLES REALTY LIMITED
By: Gables Realty Limited Partnership, PARTNERSHIP (SEAL)
a general partner By: Gables GP, Inc., its sole general partner
By: Gables GP, Inc., its sole general
partner
By: By:
-------------------------------------- -------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Vice President Vice President
11
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
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
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CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Second Amendment to Credit Agreement (the "Second Amendment"), (ii) consents to
the execution and delivery of the Second Amendment by the parties thereto, the
release of Gables-TN as a Guarantor under the Guaranty and its addition as a
Borrower under the Credit Agreement and (iii) reaffirms all of its obligations
and covenants under the Guaranty Agreement dated as of May 13, 1998 executed by
it, and agrees that none of such obligations and covenants shall be affected by
the execution and delivery of the Second 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.
GABLES GP, INC. (SEAL)
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
__________________________________
Title: Senior Vice President
GABLES RESIDENTIAL TRUST (SEAL)
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
__________________________________
Title: Senior Vice President
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