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Exhibit 10.4
AMENDMENT NO. 1
to
Amended and Restated Credit Agreement
dated as of September 26, 2000
This AMENDMENT NO. 1 to Amended and Restated Credit Agreement is made
and entered into as of July 6, 2001 (this "Amendment") by and among SUMMIT
PROPERTIES PARTNERSHIP, L.P., a Delaware limited partnership (the "Borrower"),
SUMMIT PROPERTIES, INC., a Maryland corporation (the "Parent Guarantor"), the
financial institutions party to the Credit Agreement (hereinafter defined) from
time to time (the "Lenders"), FIRST UNION NATIONAL BANK ("FUNB"), as
Administrative Agent (in such capacity, the "Administrative Agent") for the
Lenders, FIRST UNION SECURITIES, INC. ("FUSI"), as Sole Lead Arranger and Book
Manager (in such capacity, the "Arranger"), WACHOVIA BANK, N.A. ("Wachovia"), as
Syndication Agent for the Lenders (in such capacity, the "Syndication Agent"),
and BANK OF AMERICA, N.A. ("Bank of America"), as Documentation Agent for the
Lenders (in such capacity, the "Documentation Agent").
PRELIMINARY STATEMENT
The Borrower, the Parent Guarantor, the Lenders, the Administrative
Agent, the Arranger, the Syndication Agent and the Documentation Agent are
parties to an Amended and Restated Credit Agreement, dated as of September 26,
2000 (such Amended and Restated Credit Agreement, as from time to time amended,
modified, supplemented or restated, being herein known as the "Credit
Agreement").
In accordance with Section 2.3 of the Credit Agreement, the Borrower
has requested that the Administrative Agent and the Lenders extend the
Termination Date for a period of one year. All of the Lenders other than
Commerzbank, A.G. New York and Grand Cayman Branches ("Commerzbank") have
consented to such request, and certain of the Lenders together with an Eligible
Assignee have agreed to assume all of the Commitments of Commerzbank
concurrently with the execution of this Amendment.
NOW, THEREFORE, in consideration of the Credit Agreement, the Advances
made by the Lenders and outstanding thereunder, the mutual promises hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Cross References and Definitions.
(a) Reference is made to the Credit Agreement. Upon and after
the effectiveness of this Amendment as provided in Section 3 hereof, all
references to the Credit Agreement in the Credit Agreement or in any other Loan
Document shall mean the Credit Agreement as amended by this Amendment. Except as
expressly provided in this Amendment, the execution and delivery of this
Amendment does not, and will not, amend, modify or supplement any provision of
or constitute a consent to or a waiver of any noncompliance with
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the provisions of the Credit Agreement and, except as specifically provided in
this Amendment, the Credit Agreement shall remain in full force and effect.
(b) Capitalized terms used in this Amendment without
definition shall have the meanings ascribed to such terms in the Credit
Agreement.
Section 2. Amendment to Credit Agreement. Section 1.2 of the Credit
Agreement, Certain Definitions, is hereby amended by deleting from the defined
term "Termination Date" the date "September 26, 2003" and by substituting in
lieu thereof the date "September 26, 2004."
Section 3. Conditions to Effectiveness of Amendment. This Amendment
shall become effective as of the date hereof on the date on which the
Administrative Agent shall have received:
(a) counterparts of this Amendment in sufficient copies for
each Lender and the Borrower, duly executed and delivered by all of the parties
hereto;
(b) Lender Assignments executed by Commerzbank and each of the
Lenders and the Eligible Assignee assuming the Commitments of Commerzbank;
(c) evidence satisfactory to the Administrative Agent that the
Lenders and the Eligible Assignee assuming the Commitments of Commerzbank have
made full and final payment therefor to Commerzbank;
(d) a Consent and Confirmation of Guarantors duly executed and
delivered by each of the Subsidiary Guarantors;
(e) full and final payment of the processing and recording fee
referred to in Section 12.7(a) of the Credit Agreement to be paid in connection
with the Lender Assignments referred to in clause (b) of this Section 3;
(f) full and final payment by the Borrower of the extension
fee referred to in Section 2.3(c) of the Credit Agreement; and
(g) such other documents and instruments as the Administrative
Agent or the Lenders may reasonably request.
Section 4. Waiver. In respect of the Lender Assignment from Commerzbank
to Chevy Chase Bank, the parties to this Amendment hereby waive compliance with
the minimum assignment provision contained in Section 12.7(a) of the Credit
Agreement.
Section 5. Representations and Warranties. Each Loan Party hereby makes
the following representations and warranties to the Administrative Agent and the
Lenders:
(a) After giving effect to this Amendment, each Loan Party is
in compliance with all of the terms and provisions set forth in the Credit
Agreement and in the other Loan Documents to be observed or performed by such
Loan Party, and no Event of Default exists;
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(b) The execution and delivery of this Amendment have been
duly authorized by all necessary action of each Loan Party; and
(c) All of the representations and warranties made by each
Loan Party in the Credit Agreement are true and correct on and as of the date
hereof, except for (i) representations and warranties that speak as of a
specified earlier date and which remain true and correct in all material
respects as of such earlier date and (ii) changes in facts and circumstances
permitted by the terms of the Credit Agreement.
Section 6. Expenses. The Loan Parties agree to pay or reimburse on
demand all costs and expenses, including fees and disbursements of counsel,
incurred by the Administrative Agent in connection with the negotiation,
preparation, execution and delivery of this Amendment.
Section 7. Governing Law. This Amendment shall be construed in
accordance with, and governed by, the laws of the State of North Carolina.
Section 8. Counterparts. This Amendment 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 shall be binding
upon all parties and their respective successors and assigns and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed signature page of any party hereto by facsimile transmission shall be
effective as delivery of a manually executed counterpart thereof.
[signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers in several counterparts as of the
date first above written.
BORROWER:
SUMMIT PROPERTIES PARTNERSHIP, L.P., doing
business in North Carolina as Summit
Properties Partnership, Limited Partnership,
as Borrower
By: SUMMIT PROPERTIES INC., doing
business in North Carolina as Summit
Properties Real Estate, Inc.
By:/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Senior Vice President
PARENT GUARANTOR:
SUMMIT PROPERTIES, INC.
By:/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK, as
Administrative Agent
By:/s/ Xxx X. Xxxx
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Name: Xxx X. Xxxx
Title: Director
FIRST UNION SECURITIES, INC., as Arranger
By:/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Director
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WACHOVIA BANK, N.A., as Syndication Agent
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A., as Documentation Agent
By:/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
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THE LENDERS:
FIRST UNION NATIONAL BANK
By:/s/ Xxx X. Xxxx
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Name: Xxx X. Xxxx
Title: Director
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THE LENDERS:
WACHOVIA BANK, N.A.
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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THE LENDERS:
BANK OF AMERICA, N.A.
By:/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
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THE LENDERS:
AMSOUTH BANK
By:/s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Vice President
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THE LENDERS:
CHEVY CHASE BANK, F.S.B.
By:/s/ X. Xxxxxx X'Xxxxx, III
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Name: X. Xxxxxx X'Xxxxx, III
Title: Vice President
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THE LENDERS:
SOUTHTRUST BANK
By:/s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Vice President
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THE LENDERS:
CITIZENS BANK OF RHODE ISLAND
By:/s/ Xxxxx X. Xxxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxxx
Title: Vice President
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THE LENDERS:
EASTERN BANK
By:/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
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