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EXHIBIT (10)(h.1)
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT dated as of the 30th day of June,
1997 (the "Amendment") by and among IRT PROPERTY COMPANY, a Georgia corporation
(the "Borrower"), NATIONSBANK, N.A. (formerly NationsBank of Georgia, N.A. and
NationsBank, N.A. (South)), CORESTATES BANK, N.A., AMSOUTH BANK OF ALABAMA,
SIGNET BANK\VIRGINIA and SOUTHTRUST BANK, NATIONAL ASSOCIATION, as banks
(collectively, and with any financial institution which subsequently becomes a
'Bank' under the Loan Agreement, as such term is defined therein, the "Banks");
and NATIONSBANK, N.A. (formerly NationsBank of Georgia, N.A. and NationsBank,
N.A. (South)), as administrative agent for the Banks (the "Administrative
Agent"),
WITNESSETH:
WHEREAS, the Borrower, the Banks and the Administrative Agent are parties
to that certain Loan Agreement dated as of December 15, 1995 (as heretofore and
hereafter amended, the "Loan Agreement"); and
WHEREAS, the Borrower, the Banks and the Administrative Agent have agreed
to amend the Loan Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Loan Agreement, and further agree as follows:
1. Amendments to Article 1.
(a) Article 1 of the Loan Agreement, Definitions, is hereby
amended by deleting the definitions of "Available Commitment," "LIBOR," "LIBOR
Advance," "Majority Banks," and "Obligations" in their entireties and by
substituting the following definitions in lieu thereof:
"'Available Commitment' shall mean, as of any particular time, (a)
the lesser of (i) the Commitment and (ii) the Availability Restriction
minus (b) the sum of (i) the Loans then outstanding and (ii) the Swing
Line Loans then outstanding; provided, however, that the Available
Commitment may not at any time exceed the Availability Restriction."
"'LIBOR' shall mean, for any Interest Period, the rate per annum
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If
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for any reason such rate is not available, the term LIBOR shall mean, for
any LIBOR Advance for any Interest Period therefor, the rate per annum
appearing on the Reuters Screen LIBO Page as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period for
a term comparable to such Interest Period; provided, however, if more
than one rate is specified on the Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates."
"'LIBOR Advance' shall mean an Advance which the Borrower requests
to be made as a LIBOR Advance or which is deemed to be a LIBOR Advance in
accordance with the provisions of Section 2.2 hereof, and which shall be
in a principal amount of at least $1,000,000 and in an integral multiple
of $1,000,000."
"'Majority Banks' shall mean, at any time, Banks the total of
whose Commitment Ratios exceeds sixty-six and two-thirds percent
(66-2/3%) of the Commitment Ratios of all Banks entitled to vote with
respect thereto."
"'Obligations' shall mean (a) all payment and performance
obligations of the Borrower and all other obligors to the Banks, the
Swing Line Lender and the Administrative Agent under this Agreement and
the other Loan Documents, as they may be amended from time to time, or as
a result of making the Loans and the Swing Line Loans, and (b) the
obligation to pay an amount equal to the amount of any and all damages
which the Banks, the Swing Line Lender and the Administrative Agent, or
any of them, may suffer by reason of a breach by either the Borrower or
any obligor of any obligation, covenant or undertaking with respect to
this Agreement or any other Loan Document."
(b) Article 1 of the Loan Agreement, Definitions, is hereby
further amended by amending the definitions of "Administrative Agent," "Loan
Documents," "Prime Rate Advance" and "Request for Advance" and as follows:
(i) The definition of "Administrative Agent" is hereby
amended by adding thereto the phrase "and the Swing Line Lender" before
the period at the end of the definition.
(ii) The definition of "Loan Documents" is hereby amended
by adding thereto the phrase ", Swing Line Note" immediately after the
phrase "the Notes."
(iii) The definition of "Prime Rate Advance" is hereby
amended by adding thereto the following sentence at the end of the
definition:
"Prime Rate Advances may be in any amount designated by the
Borrower, provided that such amount is a whole dollar amount."
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(iv) The definition of "Request for Advance" is hereby
amended (A) by adding thereto the phrase "and the Swing Line Loans
outstanding" immediately after the phrase therein "the Loans outstanding"
in the first sentence of the definition; (B) by deleting the "and" before
subsection (f) thereof; and (C) by adding the following subsection (g)
before the period at the end of the definition:
"and (g) certify that the aggregate amount of the Swing Line Loans
and the Loans, together with the requested Advance (or Swing Line
Advance), does not exceed the Available Commitment."
(c) Article 1 of the Loan Agreement, Definitions, is hereby
further amended by adding thereto the following definitions of "Available Swing
Line Commitment," "Bank Loans Outstanding," "Lender's Available Commitment,"
"Request for Swing Line Advance," "Swing Line Advance," "Swing Line Commitment,"
"Swing Line Lender," "Swing Line Loans" and "Swing Line Note" in their
appropriate alphabetic order:
"'Available Swing Line Commitment' shall mean, as of any
particular time, the lesser of (i) the Swing Line Commitment minus Swing
Line Advances then outstanding, (ii) (A) the Lender's Available
Commitment of the Swing Line Lender minus (B) the sum of the Bank Loans
Outstanding of the Swing Line Lender and the aggregate principal amount
of all Swing Line Loans then outstanding, (iii) the Availability
Restriction and (iv) the Available Commitment."
"'Bank Loans Outstanding' shall mean, as of any particular time,
with respect to any Bank hereunder, the aggregate amount of the Loans
(exclusive of Swing Line Loans) then outstanding made by such Bank to the
Borrower."
"'Lender's Available Commitment' shall mean, as of any particular
time, for any Bank, such Bank's portion of the lesser of (i) the
Availability Restriction and (ii) the Commitment on such date (based on
such Bank's Commitment Ratio)."
"'Request for Swing Line Advance' shall mean any certificate
signed by an Authorized Signatory of the Borrower requesting a Swing Line
Advance hereunder which will increase the aggregate amount of the Swing
Line Loans outstanding, which certificate shall be denominated a "Request
for Swing Line Advance," and shall be in substantially the form of
Exhibit B-2 attached hereto. Each Request for Swing Line Advance shall,
among other things, (a) specify the date of the Swing Line Advance, which
shall be a Business Day, (b) specify the amount of the Swing Line Advance
and certify that the use of the proceeds thereof will be in compliance
with the terms of the Loan Agreement, (c) state that there shall not
exist, on the date of the requested Swing Line Advance and after giving
effect thereto, a Default or an Event of Default, (d) state that all
conditions precedent to the making of the Swing Line Advance have been
satisfied and (e) certify that the aggregate amount of the Swing Line
Loans and the Loans, together with the amount of the Swing Line Advance,
does not exceed the Available Commitment and the Available Swing Line
Commitment."
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"'Swing Line Advance' or 'Swing Line Advances' shall mean amounts
advanced by the Swing Line Lender to the Borrower pursuant to Section
2.15 hereof on the occasion of any borrowing. Swing Line Advances may be
in any amount designated by the Borrower, provided that such amount is a
whole dollar amount.
"'Swing Line Commitment' shall mean the obligation of the Swing
Line Lender to advance funds in the aggregate sum of up to $5,000,000 to
the Borrower pursuant to the terms hereof."
"'Swing Line Lender' shall mean NationsBank, N.A."
"'Swing Line Loans' shall mean the aggregate principal amount of
all Swing Line Advances."
"'Swing Line Note' shall mean that certain promissory note in the
principal amount of $5,000,000 issued by the Borrower to the Swing Line
Lender, substantially in the form of Exhibit E attached hereto, any other
swing line note issued pursuant to this Agreement in respect of the Swing
Line Commitment, and any extensions, renewals or amendments to any of the
foregoing."
2. Amendments to Article 2.
(a) Section 2.1 of the Loan Agreement, The Loans, is hereby
amended by deleting such Section in its entirety and by substituting the
following new Section 2.1 in lieu thereof:
"Section 2.1 The Loans.
"(a) Loans by the Banks. Subject to the terms and conditions of
this Agreement, the Banks agree, severally in accordance with their
Commitment Ratios, and not jointly, upon the terms and subject to the
conditions of this Agreement, to lend and relend to the Borrower, prior
to the Maturity Date, amounts which in the aggregate at any one time
outstanding do not exceed the Available Commitment.
"(b) Swing Line Loans by the Swing Line Lender. Subject to the
terms and conditions of this Agreement, the Swing Line Lender agrees upon
the terms and subject to the conditions of this Agreement to lend and
relend to the Borrower, prior to the Maturity Date, Swing Line Advances
which in the aggregate at any one time outstanding do not exceed the
Available Swing Line Commitment."
(b) Section 2.4(b) of the Loan Agreement, Utilization Fee, is
hereby amended by deleting the existing subsection in its entirety and by
substituting the following in lieu thereof:
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"(b) Utilization Fee. The Borrower agrees to pay to the
Administrative Agent for the benefit of the Banks, in accordance with
their respective Commitment Ratios, a utilization fee on the average
unborrowed amount which is (i) the lesser of (A) the Commitment and (B)
the Availability Restriction minus (ii) the Loans and the Swing Line
Loans then outstanding for each day from the Agreement Date through the
Maturity Date, at a rate of one-quarter of one percent (.25%) per annum.
Such utilization fee shall be computed on the basis of a year of 365/366
days for the actual number of days elapsed, shall be payable quarterly in
arrears on the first day of each calendar quarter, commencing on July 1,
1997 (for the period from and including April 1, 1997 through June 30,
1997), and if then unpaid, on the Maturity Date, and shall be fully
earned when due and nonrefundable when paid."
(c) Section 2.4(d) of the Loan Agreement, Late Payment Charge,
is hereby amended by adding thereto the phrase "or the Swing Line Lender, as the
case may be," immediately after the phrase "for the ratable benefit of the
Banks."
(d) Section 2.7(a) of the Loan Agreement, Loans Exceeding
Commitment, is hereby amended by deleting the existing Section 2.7(a) in its
entirety and by substituting the following in lieu thereof:
"(a) Loans Exceeding Commitment. If, at any time, the aggregate
amount of the Loans and the Swing Line Loans then outstanding shall
exceed the lesser of (i) the Commitment and (ii) the Availability
Restriction, the Borrower shall make a repayment of the principal amount
of the Loans and the Swing Line Loans in an amount equal to such excess
(which payment shall be applied first to the Swing Line Loans then
outstanding). If, at any time, the aggregate amount of the Swing Line
Loans then outstanding shall exceed the lesser of (x) the Swing Line
Commitment and (y) the Lender's Available Commitment for the Swing Line
Lender minus the Bank Loans Outstanding for the Swing Line Lender, the
Borrower shall make a repayment of the principal amount of the Swing Line
Loans in an amount equal to such excess (which repayment may, in
accordance with the terms hereof, be by way of an Advance in accordance
with Section 2.15 hereof)."
(e) Section 2.10 of the Loan Agreement, Application of
Payments, is hereby amended by deleting such Section in its entirety and by
substituting the following in lieu thereof:
"Section 2.10 Application of Payments. Payments made to the
Administrative Agent, the Swing Line Lender or the Banks, or any of them,
or otherwise received by the Administrative Agent, the Swing Line Lender
or the Banks, or any of them (from realization on collateral for the
Obligations or otherwise), shall be distributed (subject to Section
2.2(e) hereof) as follows: First, to the costs and expenses, if any,
incurred by the Administrative Agent, the Swing Line Lender or the Banks,
or any of them, to the extent permitted by Section 11.2 hereof in the
collection of such amounts under this Agreement or any of the other Loan
Documents, including, without limitation, any
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reasonable costs incurred in connection with the sale or disposition of
any collateral for the Obligations; Second, pro rata among the
Administrative Agent, the Swing Line Lender and the Banks based on the
total amount of fees then due and payable hereunder or under any other
Loan Document and to any other fees and commissions then due and
payable by the Borrower to the Banks, the Swing Line Lender and the
Administrative Agent under this Agreement or any Loan Document; Third,
to any unpaid interest of the Borrower which may have accrued (i) first
on the Swing Line Loans and (ii) thereafter on the Loans, pro rata
among the Banks based on the outstanding principal amount of the Loans
of the Borrower outstanding immediately prior to such payment; Fourth,
to the Swing Line Lender, to any unpaid principal of the Swing Line
Loans then outstanding; Fifth, pro rata among the Banks based on the
outstanding principal amount of the Loans of the Borrower outstanding
immediately prior to such payment, to any unpaid principal of the
Loans; Sixth, to any other Obligations not otherwise referred to in
this Section 2.10 until all such Obligations are paid in full; Seventh,
to damages incurred by the Administrative Agent, the Swing Line Lender
or the Banks, or any of them, by reason of any breach hereof or of any
other Loan Documents; and Eighth, upon satisfaction in full of all
Obligations, to the Borrower or as otherwise required by law. If any
Bank shall obtain any payment (whether involuntary or otherwise) on
account of the Loans made by it in excess of its ratable share of the
Loans then outstanding and such Bank's share of any expenses, fees and
other items due and payable to it hereunder, such Bank shall forthwith
purchase a participation in the Loans from the other Banks as shall be
necessary to cause such purchasing Bank to share the excess payment
ratably based on the Commitment Ratios with each of them; provided,
however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each
Bank shall be rescinded and such Bank shall repay to the purchasing
Bank the purchase price to the extent of such recovery. The Borrower
agrees that any Bank so purchasing a participation from another Bank
pursuant to this Section may, to the fullest extent permitted by law,
exercise all its rights of payment with respect to such participation
as fully as if such Bank were the direct creditor of the Borrower in
the amount of such participation so long as the Borrower's Obligations
are not increased. If the Swing Line Lender shall obtain any payment
(whether involuntary or otherwise) on account of the Swing Line Loans
made by it in excess of the Swing Line Loans then outstanding and the
Swing Line Lender's share of any expenses, fees and other items due and
payable to it hereunder, the Swing Line Lender shall forthwith return
such excess payment to the Administrative Agent for distribution among
the Banks based on the provisions of this Section."
(f) Section 2.12 of the Loan Agreement, Capital Adequacy, is
hereby amended by deleting such Section in its entirety and by substituting the
following in lieu thereof:
"Section 2.12 Capital Adequacy. If after the date hereof, any Bank
or the Swing Line Lender shall have determined that the adoption of any
Applicable Law regulating United States banks and regarding the capital
adequacy of banks or bank
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holding companies, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency of the U.S. charged with the
interpretation or administration thereof, or compliance by the Bank or
the Swing Line Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, has the effect
of reducing the rate of return on such Bank's or the Swing Line Lender's
capital as a consequence of its obligations hereunder to a level below
that which it could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or the Swing Line
Lender's policies with respect to capital adequacy immediately before
such adoption, change or compliance and assuming that such Bank's or the
Swing Line Lender's capital was fully utilized prior to such adoption,
change or compliance) by a material amount, then, upon the earlier of
demand by such Bank or the Swing Line Lender or the Maturity Date, the
Borrower agrees to pay immediately to such Bank or the Swing Line Lender,
as the case may be, such additional amounts as shall be sufficient to
compensate such Bank or the Swing Line Lender for such reduced return
beginning as of the date of written notice to the Borrower described
above, together with interest on such amount from the fourth (4th) day
after the date of demand or the Maturity Date, as applicable, until
payment in full thereof at the Default Rate. A certificate of such Bank
or the Swing Line Lender, as the case may be, setting forth the amount to
be paid to such Bank or the Swing Line Lender by the Borrower as a result
of any event referred to in this paragraph shall, absent manifest error,
be conclusive. Each Bank and the Swing Line Lender agree that if any
amount or any portion of any amount described in this Section is
subsequently recovered by such Bank or the Swing Line Lender, such Bank
and the Swing Line Lender, as the case may be, shall promptly reimburse
the Borrower to the extent of the amount so recovered. A certificate of
such Bank or the Swing Line Lender, as the case may be, setting forth the
amount of such recovery and the basis therefor shall be provided to the
Borrower."
(g) Section 2.14 of the Loan Agreement, Extension of the
Maturity Date, is hereby amended by deleting such Section in its entirety and by
substituting the following in lieu thereof:
"Section 2.14 Extension of the Maturity Date. Not later than June
30th of each year commencing June 30, 1997, the Borrower may request that
the Administrative Agent, the Swing Line Lender and the Banks extend the
Maturity Date for an additional twelve (12) month period beyond the
existing Maturity Date. Any decision to extend the Maturity Date shall be
in the sole and absolute discretion of the Administrative Agent, the
Swing Line Lender and the Banks and shall be evidenced in a writing
executed by each of them, as appropriate. The failure of any such Person
to respond to a request for such extension within sixty (60) days of such
request shall be presumed to be a decision not to so extend the Maturity
Date. Upon any agreement by the Administrative Agent and all of the Banks
to extend the Maturity Date as described in this Section with respect to
the Loans, the term "Maturity Date" set forth in Article 1 hereof shall
thereafter be the anniversary of the Maturity Date previously in effect
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hereunder (or such earlier date as payment of the Loans shall be due,
whether by acceleration or otherwise). Any such extension granted
hereunder with respect to the Loans shall be conditioned upon the receipt
by the Banks of the Extension Fee referenced in Section 2.4(c) hereof.
Extension of the Maturity Date with respect to the Swing Line Loans shall
be at the sole and absolute discretion of the Swing Line Lender and shall
be evidenced in a writing as described above in this Section 2.14."
(h) Article 2 of the Loan Agreement, Loans, is hereby amended
by adding thereto the following new Section 2.15, Swing Line Loans:
"Section 2.15 Swing Line Loans.
"(a) Swing Line Advances. The Borrower, prior to 12:00
p.m. (noon) (Eastern time) on the Business Day of funding any Swing Line
Advance, shall give to the Swing Line Lender an irrevocable written
notice in the form of a Request for Swing Line Advance, or notice by
telecopy followed immediately by a Request for Swing Line Advance;
provided, however, that the failure by the Borrower to confirm any notice
by telecopy with a Request for Swing Line Advance shall not invalidate
any notice so given; provided further that in no case will the Swing Line
Lender be required to fund such Request for Swing Line Advance under the
Swing Line Commitment if such funding would increase the aggregate Swing
Line Loans to an amount in excess of the Available Swing Line Commitment
or if aggregate amounts of all Loans and Swing Line Loans outstanding
exceed the lesser of the Commitment or the Availability Restriction.
"(b) Prepayment and Repayment.
"(i) Upon irrevocable prior written notice delivered to
the Swing Line Lender prior to 12:00 p.m. (noon) (Eastern time) on
the day of payment under this Section, the Borrower may repay a
Swing Line Advance. In addition, upon demand of the Swing Line
Lender, if such demand is delivered prior to 11:00 a.m. (Eastern
time) on a Business Day, the Borrower shall on the following
Business Day make a repayment of the Swing Line Loans then
outstanding in the amount so requested by the Swing Line Lender;
provided, however, that if such demand is delivered to the
Borrower at or after 11:00 a.m. (Eastern time) on a Business Day,
the Borrower shall on the second Business Day following receipt of
such demand make such repayment. In order to facilitate repayment
of the Swing Line Loans, the Borrower hereby irrevocably requests
the Banks, and the Banks hereby severally agree, on the terms and
conditions of this Agreement (other than as provided in Article 2
hereof with respect to the amounts of, the time of requests for,
and the repayment of Advances hereunder and in Article 3 hereof
with respect to conditions precedent to Advances hereunder), with
respect to Swing Line Loans outstanding, upon request of the Swing
Line Lender or the Borrower (including without limitation after
any Default or Event of Default, but prior to the occurrence of an
event
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described in clauses (g) or (h) of Section 8.1 hereof), to make an
Advance to the Borrower in the amount of such outstandings, and to
pay the proceeds of such Advance directly to the Administrative
Agent to reimburse the Swing Line Lender for the amount of the
Swing Line Loans then outstanding. Each Bank shall pay its share
of such Advance by paying its portion of such Advance to the
Administrative Agent in accordance with Section 2.2(e) hereof and
its Commitment Ratio, without reduction for any set-off or
counterclaim of any nature whatsoever and regardless of whether
any Default or Event of Default (other than with respect to an
event described in clauses (g) or (h) of Section 8.1 hereof) then
exists or would be caused thereby. If at any time that the Swing
Line Loans are outstanding, any of the events described in clauses
(g) or (h) of Section 8.1 hereof shall have occurred and be
continuing, then each Bank shall, automatically upon the
occurrence of any such event and without any action on the part of
the Swing Line Lender, the Borrower, the Administrative Agent or
the Banks, be deemed to have purchased an undivided participation
in the then outstanding principal amount of the Swing Line Loans
then outstanding in an amount equal to such Bank's Commitment
Ratio, and each Bank shall, notwithstanding such Event of Default,
immediately pay to the Administrative Agent for the account of the
Swing Line Lender, in immediately available funds, the amount of
such Bank's participation (and the Swing Line Lender shall deliver
to such Bank a written confirmation of such loan participation
dated the date of the occurrence of such event and in the amount
of such Bank's Commitment Ratio).
"(ii) If any payment under this Agreement or the Swing
Line Note shall be specified to be made upon a day which is not a
Business Day, it shall be made on the next succeeding day which is
a Business Day, and such extension of time shall in such case be
included in computing interest and fees, if any, in connection
with such payment.
"(iii) The Borrower agrees to pay principal, interest,
fees, and all other amounts due hereunder or under the Swing Line
Note without set-off or counterclaim or any deduction whatsoever.
"(iv) If the Borrower is required by Applicable Law to
deduct any taxes from or in respect of any sum payable to the
Swing Line Lender hereunder, under the Swing Line Note or under
any other Loan Document: (i) the sum payable hereunder or
thereunder, as applicable, shall be increased to the extent
necessary to provide that, after making all required deductions
(including deductions applicable to additional sums payable under
this Section 2.15(e)), the Swing Line Lender receives an amount
equal to the sum it would have received had no such deductions
been made; (ii) the Borrower shall make such deductions from such
sums payable hereunder or thereunder, as applicable, and pay the
amount so deducted to the relevant taxing authority as required by
Applicable Law; and (iii) the Borrower shall provide the Swing
Line Lender with evidence
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satisfactory to the Swing Line Lender that such deducted amounts
have been paid to the relevant taxing authority. Before making any
such deductions, the Swing Line Lender shall designate a different
lending office and shall take such alternative courses of action
if such designation or alternative courses of action will avoid
the need for such deductions and will not in the good faith
judgment of the Swing Line Lender be otherwise disadvantageous to
the Swing Line Lender.
"(c) Interest and Payments on Swing Line Advances. Interest on
each Swing Line Advance shall be computed in the same manner and shall be
payable on the same terms as interest on each Prime Rate Advance;
provided, however, that Swing Line Advances may be repaid without notice
(and payments received after 12:00 noon eastern time will be deemed
received on the next Business Day).
"(d) Amendment to Section 2.15. Notwithstanding anything to the
contrary contained herein, the parties hereto hereby agree that the
provisions of this Section 2.15 may be modified or waived only by a
writing signed by the Borrower, the Administrative Agent and the Swing
Line Lender and that the terms "Swing Line Commitment" and "Available
Swing Line Commitment" may only be modified or amended by a writing
signed by the Borrower, the Swing Line Lender and the Majority Banks."
3. Amendments to Section 3.2. Section 3.2 of the Loan Agreement,
Conditions Precedent to Each Advance, is hereby amended by deleting such Section
in its entirety and by substituting the following in lieu thereof:
"Section 3.2 Conditions Precedent to Each Advance. The obligation
of each Bank to make each Advance, including the initial Advance
hereunder, and the Swing Line Lender to make a Swing Line Advance is
subject to the fulfillment of each of the following conditions
immediately prior to or contemporaneously with such Advance or Swing Line
Advance:
"(a) All of the representations and warranties of the
Borrower under this Agreement, which, in accordance with Section 4.2
hereof, are made at and as of the time of the Advance or Swing Line
Advance, as the case may be, shall be true and correct in all material
respects at such time, both before and after giving effect to the
application of the proceeds of the Advance or the Swing Line Advance;
"(b) The incumbency of the Authorized Signatories shall
be as stated in the applicable certificate of incumbency contained in the
certificate of the Borrower delivered pursuant to Section 3.1(a) hereof
or as subsequently modified and reflected in a certificate of incumbency
delivered to the Administrative Agent and the Banks and, in the case of a
Swing Line Advance, to the Swing Line Lender;
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"(c) There shall not exist, on the date of the making of
the Advance or the Swing Line Advance, as the case may be, and after
giving effect thereto, a Default or an Event of Default hereunder, and
the Administrative Agent shall have received a Request for Advance so
certifying; and
"(d) The Administrative Agent shall have received all
such other certificates, reports, statements, opinions of counsel or
other documents as they may reasonably request."
4. Amendments to Article 5.
(a) Section 5.9 of the Loan Agreement, Use of Proceeds, is
hereby amended by deleting such existing Section in its entirety and by
substituting the following in lieu thereof:
"Section 5.9 Use of Proceeds. The Borrower will use the proceeds
of the Loans and the Swing Line Loans solely for (a) property
acquisitions, (b) rehabilitation of existing retail centers and (c)
general business purposes; provided, however, that no Loans or Swing Line
Loans in excess of twenty percent (20%) of the Commitment may be used for
new property development (whether through joint ventures or self-
developed)."
(b) Section 5.11 of the Loan Agreement, Indemnity, is hereby
amended by deleting such existing Section in its entirety and by substituting
the following in lieu thereof:
"Section 5.11 Indemnity. The Borrower will indemnify and hold
harmless each Bank, the Swing Line Lender and the Administrative Agent,
and each of their respective employees, representatives, officers and
directors from and against any and all claims, liabilities, losses,
damages, actions, attorneys' fees and demands by any party, (a) resulting
from any breach by the Borrower of any representation or warranty made
hereunder, or (b) arising out of (i) the Commitment and the Swing Line
Commitment or the making or administration of the Loans and the Swing
Line Loans, or (ii) allegations of any participation by the Banks, the
Swing Line Lender or the Administrative Agent, or any of them, in the
affairs of the Borrower or allegations that the Banks, the Swing Line
Lender or the Administrative Agent, or any of them, has any joint
liability of the Borrower for any reason whatsoever; unless, in any case
referred to above, the Person seeking indemnification hereunder is
determined in such case to have acted or failed to act with gross
negligence or willful misconduct by a non-appealable judicial order. The
provisions of this Section shall survive the termination of this
Agreement."
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5. Amendment to Article 7. Section 7.11 of the Loan Agreement,
Collateral Value, is hereby amended by deleting such Section in its entirety and
by substituting the following in lieu thereof:
"Section 7.11 Collateral Value. The Borrower will not at any time
permit the aggregate amount of the outstanding Loans and the Swing Line
Loans to exceed sixty- five percent (65%) of the Value of Negative Pledge
Property."
6. Amendments to Article 8.
(a) Subsection 8.1(b) of the Loan Agreement is hereby amended
by deleting such existing subsection in its entirety and by substituting the
following in lieu thereof:
"(b) The Borrower shall default in the payment of any
principal, interest or fees payable hereunder, under the Notes or under
the Swing Line Note, or any of them, or under the other Loan Documents
and such default shall continue for a period of ten (10) days;"
(b) Section 8.2(a) of the Loan Agreement is hereby amended by
deleting such existing subsection in its entirety and by substituting the
following in lieu thereof:
"(a) With the exception of an Event of Default, specified
in Sections 8.1(g) or (h), the Administrative Agent shall at the request,
or may with the consent, of the Majority Banks, by notice to the Borrower
(i) declare the Notes and the Swing Line Note, all interest thereon and
all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes and the
Swing Line Note, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
the Borrower and/or (ii) terminate the Commitment and the Swing Line
Commitment."
(c) Section 8.2(b) of the Loan Agreement is hereby amended by
deleting such existing subsection in its entirety and by substituting the
following in lieu thereof:
"(b) Upon the occurrence of an Event of Default under
Sections 8.1(g) and (h) hereof, the Commitment and the Swing Line
Commitment shall automatically terminate and such principal, interest
(including without limitation, interest which would have accrued but for
the commencement of a case or proceeding under the federal bankruptcy
laws) and other amounts payable under this Agreement, the Notes or the
Swing Line Note shall thereupon and concurrently therewith become due and
payable, all without any action by the Administrative Agent, or the Banks
or the holders of the Notes and Swing Line Note, and all without
presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement, in the Notes or in the
Swing Line Note to the contrary notwithstanding."
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(d) Section 8.2(d) of the Loan Agreement is hereby amended by
deleting such existing subsection in its entirety and by substituting the
following in lieu thereof:
"(d) The rights and remedies of the Administrative Agent,
the Banks and the Swing Line Lender hereunder shall be cumulative, and
not exclusive."
7. Amendments to Article 11.
(a) Subsection 11.1(a)(ii) of the Loan Agreement is hereby
amended by deleting such subsection in its entirety and by substituting the
following in lieu thereof:
"(ii) If to the Administrative Agent, to it at:
NationsBank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000"
(b) Subsection 11.1(a)(iii) of the Loan Agreement is hereby
amended by deleting the address block for NationsBank of Georgia, N.A. in its
entirety and by substituting the following in lieu thereof:
"NationsBank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000"
(c) Section 11.4 of the Loan Agreement, Set-Off, is hereby
amended by deleting the existing Section in its entirety and by substituting the
following in lieu thereof:
"Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such
rights, after the Maturity Date
14
(whether by acceleration or otherwise), the Banks, the Swing Line Lender
and any subsequent holder or holders of the Notes and the Swing Line Note
are hereby authorized by the Borrower at any time or from time to time,
without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set-off and to appropriate and apply
any and all deposits (general or special, time or demand, including, but
not limited to, Indebtedness evidenced by certificates of deposit, in
each case whether matured or unmatured) and any other Indebtedness at any
time held or owing by the Banks, the Swing Line Lender or such holder to
or for the credit or the account of the Borrower, against and on account
of the obligations and liabilities of the Borrower, to the Banks, the
Swing Line Lender or such holder under this Agreement, the Notes, the
Swing Line Note, and any other Loan Document, including, but not limited
to, all claims of any nature or description arising out of or connected
with this Agreement, the Notes, the Swing Line Note, or any other Loan
Document, irrespective of whether or not (a) the Banks, the Swing Line
Lender or the holders of the Notes and the Swing Line Note shall have
made any demand hereunder or (b) the Banks and the Swing Line Lender
shall have declared the principal of and interest on the Loans, Notes and
the Swing Line Note and other amounts due hereunder to be due and payable
as permitted by Section 8.2 hereof and although said obligations and
liabilities, or any of them, shall be contingent or unmatured. Any sums
obtained by any Bank, the Swing Line Lender or by any subsequent holder
of the Notes and the Swing Line Note shall be subject to the application
of payments provisions of Article 2 hereof. Upon direction by the
Administrative Agent, with the consent of the Majority Banks, after the
Maturity Date (whether by reason of acceleration or otherwise) each Bank
and the Swing Line Lender holding deposits of the Borrower shall exercise
its set-off rights as so directed."
(d) Section 11.5 of the Loan Agreement, Assignment, is hereby
amended by adding thereto a new subsection (f) as follows:
"(f) No assignment, participation or other transfer of any
rights under the Swing Line Note shall be effected without the consent of
both the Swing Line Lender and the Borrower, which consent shall not be
unreasonably withheld."
(e) Subsection 11.10(a) of the Loan Agreement is hereby amended
by deleting the existing subsection 11.10(a) in its entirety and by substituting
the following in lieu thereof:
"(a) In no event shall the amount of interest due or payable
hereunder or under the Notes and the Swing Line Note exceed the maximum
rate of interest allowed by Applicable Law, and in the event any such
payment is inadvertently made by the Borrower or is inadvertently
received by any Bank or the Swing Line Lender, then such excess sum shall
be returned forthwith to the Borrower; provided, however, that if an
Event of Default then exists, such amounts shall be credited to principal
of the Obligations. It is the express intent hereof that the Borrower not
pay and the Banks and Swing Line Lender not receive, directly or
indirectly in any manner whatsoever,
15
interest in excess of that which may legally be paid by the Borrower
under Applicable Law."
(f) Section 11.12 of the Loan Agreement, Amendment and Waiver,
is hereby amended by adding thereto at the end of such Section the following
sentence:
"Any amendment to any provision hereunder governing the rights,
obligations, or liabilities of the Swing Line Lender may be made only by
an instrument in writing signed by the Swing Line Lender and the
Borrower."
8. Amendment to Exhibit B. Exhibit B to the Loan Agreement, Form of
Request for Advance, is hereby amended by deleting the existing Exhibit B in its
entirety and by substituting the attached Exhibits B-1 and B-2, Form of Revised
Request for Advance/ Payment/Interest Rate Conversion and Form of Request for
Swing Line Advance/Payment, respectively, in lieu thereof. The parties agree
that such forms may be modified from time to time, as applicable, by the
Administrative Agent, the Borrower and, if applicable, the Swing Line Lender, so
long as the modified forms substantially conform to the requirements set forth
in Sections 2.15 and 3.2 of the Loan Agreement, as amended hereby.
9. No Other Amendment or Waiver. Notwithstanding the agreement of the
Administrative Agent and the Banks to the terms and provisions of this
Amendment, the Borrower acknowledges and expressly agrees that this Amendment is
limited to the extent expressly set forth herein and shall not constitute a
modification of the Loan Agreement or a course of dealing at variance with the
terms of the Loan Agreement (other than as expressly set forth above) so as to
require further notice by the Administrative Agent or the Banks, or any of them,
of its or their intent to require strict adherence to the terms of the Loan
Agreement in the future. All of the terms, conditions, provisions and covenants
of the Loan Agreement and the other Loan Documents shall remain unaltered and in
full force and effect except as expressly modified by this Amendment.
10. Representations and Warranties. The Borrower hereby represents and
warrants in favor of the each of the Administrative Agent, the Swing Line Lender
and each Bank as follows:
(a) Each representation and warranty set forth in Article 4 of
the Loan Agreement is hereby restated and affirmed as true and correct in all
material respects as of the date hereof, except to the extent previously
fulfilled in accordance with the terms of the Loan Agreement, as amended hereby,
and to the extent relating specifically to the Agreement Date or otherwise
inapplicable;
(b) The Borrower has the corporate power and authority to enter
into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it; and
16
(c) This Amendment has been duly authorized, validly executed
and delivered by Authorized Signatories, and constitutes the legal, valid and
binding obligation of the Borrower enforceable against it in accordance with its
terms, subject, as to enforcement of remedies, to the following qualifications:
(i) an order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are considered
an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Borrower).
11. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to the following:
(a) the truth and accuracy of the representations and
warranties contained in Section 10 hereof;
(b) receipt by the Swing Line Lender of a duly executed Swing
Line Note in the principal amount of $5,000,000, substantially in the form of
Exhibit E attached hereto;
(c) receipt by the Administrative Agent of execution pages to
this Amendment from the Majority Banks and the Borrower; and
(d) receipt by the Administrative Agent of all other documents
as the Administrative Agent shall reasonably request.
12. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
13. Loan Documents. Each reference in the Loan Agreement and in any
other Loan Document to the term "Loan Documents" shall hereafter include the
Swing Line Note; and each reference in the Loan Agreement and in any other Loan
Document to the term "Loan Agreement" shall hereafter mean and refer to the Loan
Agreement as amended hereby or as the same may hereafter be amended.
14. Governing Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of Georgia, without giving effect to
any conflict of laws principles.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto cause their respective duly
authorized officers or representatives to execute and deliver this Amendment as
of the day and year first above written, to be effective as of the day and year
first above written.
BORROWER: IRT PROPERTY COMPANY, a Georgia corporation
By:/s/Xxxxxx X. XxXxxxx
----------------------------------------------
Title:Chief Executive Officer
------------------------------------
Attest:/s/Xxxxx X. Xxxx
----------------------------------------------
Title:Vice President & Treasurer
------------------------------------
ADMINISTRATIVE AGENT, NATIONSBANK, N.A. (formerly NationsBank of
SWING LINE LENDER Georgia, N.A. and NationsBank, N.A. (South)), as
AND BANKS: Administrative Agent, Swing Line Lender and a Bank
By:/s/Xxxxx X. Xxxxxxx
----------------------------------------------
Title:Senior Vice President
------------------------------------
CORESTATES BANK, N.A., as a Bank
By:/s/Xxxxx Xxxxxxxxx
----------------------------------------------
Title:Vice President
------------------------------------
AMSOUTH BANK OF ALABAMA, as a Bank
By:/s/Xxxxxx X. Xxxxxxx, III
----------------------------------------------
Title:Vice President
------------------------------------
IRT PROPERTY COMPANY
FIRST AMENDMENT TO LOAN AGREEMENT
Signature Page 1
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SIGNET BANK\VIRGINIA, as a Bank
By:/s/Xxxx Xxxxxxxx
---------------------------------------
Title:Senior Vice President
------------------------------
SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION, as a Bank
By:/s/Xxxxx Xxxxxxx
---------------------------------------
Title:Vice President
------------------------------
IRT PROPERTY COMPANY
FIRST AMENDMENT TO LOAN AGREEMENT
Signature Page 2
