EXHIBIT 10.1
100,000,000 (EXPANDABLE TO $150,000,000)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
MAY 29, 2002
AMONG
IRT PROPERTY COMPANY
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
AMSOUTH BANK AND XXXXX FARGO COMPANY,
AS DOCUMENTATION AGENTS
THE BANKS LISTED HEREIN
AND
FIRST UNION SECURITIES, INC. D/B/A
WACHOVIA SECURITIES,
AS ARRANGER
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment and
Restatement") is dated as of May 29, 2002 among IRT PROPERTY COMPANY (the
"Borrower"), FIRST UNION SECURITIES, INC. d/b/a WACHOVIA SECURITIES, as Arranger
(the "Arranger"), WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent
(the "Administrative Agent"), AMSOUTH BANK AND XXXXX FARGO COMPANY, as
Documentation Agents and the BANKS listed on the signature pages hereof
(collectively, the "Banks");
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Banks, and the Administrative Agent executed and
delivered that certain Credit Agreement, dated as of November 1, 1999, as
amended by that certain First Amended and Restated Credit Agreement, dated as of
November 1, 2000 (the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent, the
Arranger and the Banks have agreed to amend and restate the Credit Agreement in
accordance with 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
Arranger 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 and restated hereby.
2. Restatement. The Credit Agreement as in effect on the date hereof
hereby is incorporated and restated in its entirety, together with the
amendments set forth herein.
3. Amendment to Section 1.01. Section 1.01 of the Credit Agreement
hereby is amended by (i) deleting the definitions of "Borrowing Base",
"Commitment", "Consolidated Total Asset Value", "Consolidated Total
Liabilities", "Consolidated Unsecured Interest Expense", "Consolidated Unsecured
Senior Debt", "Consolidated Unencumbered Real Estate Assets", "Year 2000
Compliant and Ready" and "Y2K Plan", and substituting the following definitions
of certain of such terms set forth below and (ii) adding the following
definitions of "Anchor Tenant", "Assets Under Development", "Consolidated Total
Liabilities", "Consolidated Unsecured Debt" , "Consolidated Unsecured Interest
Expense", "Minimum Aggregate Occupancy Requirement", "Third Party Development
Property" and "Third Party Development Property Purchase Obligations", all of
such definitions to be substituted and added in the appropriate alphabetical
order.
"Anchor Tenant" means any supermarket, drug store, national value retailer,
department store or other tenant leasing in excess of 10,000 square feet which
has the traffic generating qualities necessary to be considered an anchor
tenant.
"Assets Under Development" shall mean, at any time, an amount equal to the
sum of (A) 100% of the aggregate amount of cash expenditures made to acquire
each unimproved Property then held for development, (B) an amount equal to the
Joint Venture Share of 100% of the aggregate amount of cash expenditures made to
acquire each unimproved Joint Venture Property then held for development, plus
(C) as to Third Party Development Properties, the aggregate amount of all Third
Party Development Property Purchase Obligations, plus (D) the sum of the
following items, in each case with respect to each Property or Joint Venture
Property, as the case may be, as to which (x) actual construction or other
physical development or redevelopment activities have commenced (excluding the
preparation of land and utilities and other predevelopment activities), and (y)
no certificate of occupancy (or comparable regulatory certification, permit, or
approval, whether temporary or permanent, which permits lawful occupancy of such
Property or Joint Venture Property (any such certificate or comparable
certification, permit, or approval being referred to herein as a "Certificate of
Occupancy")) shall have been issued or received:
(i) costs then budgeted to develop such unimproved Property, plus
(ii) without duplication, where any such Property is being developed or
redeveloped in phases, as to any phase which is still being developed or
redeveloped and for which a Certificate of Occupancy has not been received, the
cash expenditures made and costs then budgeted for development or redevelopment
of such phase, plus
(iii) an amount equal to the Joint Venture Share of costs then budgeted
to develop such unimproved Joint Venture Property, plus
(iv) without duplication, where any such Joint Venture Property is
being developed or redeveloped in phases, as to any phase which is still being
developed or redeveloped and for which a Certificate of Occupancy has not been
received, an amount equal to the Joint Venture Share of the cash expenditures
made and costs then budgeted for development or redevelopment of such phase
(including indirect costs internally allocated in accordance with GAAP).
"Borrowing Base" means the sum of each of the following, as determined by
reference to the most recent Borrowing Base Certificate furnished pursuant to
Section 3.01(h) or Section 5.01(k), as applicable (and with respect to any
Eligible Property which consists of phases, each phase thereof shall be
separately categorized into clause (i), (ii) or (iii) below, as appropriate, so
long as such phase could be separately financed on a stand-alone basis).
(i) an amount equal to the product of: (x) the quotient of (1) the Net
Operating Income (but for the Non-Wholly Owned Eligible Property, include only
the Non-Wholly Owned Eligible Property Percentage thereof) for the 3 month
period ending on the last day of the Fiscal Quarter just ended prior to the date
of determination, from each Eligible Unencumbered Stabilized Property (excluding
percentage rents received during such 3 month period, but including an amortized
value for percentage rents received during the current Fiscal Year), divided by
(2) 0.0950 (which is the capitalization rate); times (y) 4 (which is the
annualization factor); times (z) 0.60 (which is the advance rate); plus
(ii) an amount equal to the lesser of: (A) the product of (x) 0.50
(which is the advance rate), times (y) the book value of Construction in
Progress on the last day of the Fiscal Quarter just ended on all Eligible
Properties not subject to a Mortgage and (B) $25,000,000; plus
(iii) an amount equal to the product of (x) 0.60 (which is the advance
rate), times (y) the acquisition cost of all Eligible Unencumbered Stabilized
Property not owned for the entire 3 month period ending on the last day of the
Fiscal Quarter just ended prior to the date of determination.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof or in a Bank
Joinder Agreement executed and delivered to the Administrative Agent pursuant to
Section 2.15, and (ii) as to any Bank which enters into any Assignment and
Acceptance (whether as transferor Bank or as Assignee thereunder), the amount of
such Bank's Commitment after giving effect to such Assignment and Acceptance, in
each case as such amount may be reduced from time to time pursuant to Sections
2.09 and 2.10.
"Consolidated Total Asset Value" means, on a consolidated basis for the
Borrower/Parent and each Consolidated Entity, the sum of:
(i) the amount equal to the product of: (x) the quotient of (1) the
Net Operating Income for the 3 month period ending on the last day of the Fiscal
Quarter just ended prior to the date of determination (excluding percentage
rents received during such 3 month period, but including an amortized value for
percentage rents received during the current Fiscal Year), from each Property
(other than Property owned by Borrower or any Consolidated Entity for less than
three months), divided by (2) 0.0950 (which is the capitalization rate); times
(y) 4 (which is the annualization factor); plus
(ii) an amount equal to the book value of (x) Construction in Progress
plus (y) Properties consisting of unimproved land, as determined on the last day
of the Fiscal Quarter just ended; plus
(iii) an amount equal to the acquisition cost of improved Properties
owned by Borrower or any Consolidated Entity less than three months, as
determined on the last day of the Fiscal Quarter just ended; plus
(iv) an amount equal to the sum of all unrestricted balances on deposit
with banks or other financial institutions and all restricted cash held by a
Qualified intermediary on behalf of the Borrower/Parent or any Guarantor; plus
(v) for any Subsidiary which is not a Wholly Owned Subsidiary, an
amount equal to the book value of the Ownership Percentage of such Subsidiary,
as shown on the Borrower/parent's balance sheet; plus
(vi) without duplication, the book value of all other C onsolidated
Tangible Assets, plus
(vii) the amount equal to the product of: (x) the quotient of the
Joint Venture Share of (1) Joint Venture Net Operating Income for the 3 month
period ending on the last day of the Fiscal Quarter just ended prior to the date
of determination (excluding percentage rents received during such 3 month
period, but including an amortized value for percentage rents received during
the current Fiscal Year), from each Joint Venture Property (other than Property
owned by Borrower or any Consolidated Entity for less than three months),
divided by (2) 0.0950 (which is the capitalization rate); times (y) 4 (which is
the annualization factor); plus
(viii) an amount equal to the Joint Venture Share of book value of (A)
Joint Venture Construction In Progress plus (B) Joint Venture Properties
consisting of unimproved land, as determined on the last day of the Fiscal
Quarter just ended; plus
(ix) an amount equal to the Joint Venture Share of the acquisition cost
of improved Joint Venture Properties owned by Borrower or any Consolidated
Entity less than three months, as determined on the last day of the Fiscal
Quarter just ended; plus
(x) only for purposes of calculating Consolidated Total Asset Value
under Sections 5.16 and 5.20, and without duplication, Third Party Development
Property and amounts described in clause (D) of the definition of Assets Under
Development; plus
(xi) without duplication, an amount equal to the Joint Venture Share of
the book value of the sum of the following: (a) the total assets of each Joint
Venture, as set forth or reflected on the most recent balance sheet of each
Joint Venture, prepared in accordance with GAAP, less (b) all assets which would
be treated as intangible assets for balance sheet presentation purposes under
GAAP, including, without limitation, goodwill (whether representing the excess
of cost over book value of assets acquired, or otherwise), trademarks,
tradenames, copyrights, patents and technologies, and unamortized debt discount
and expense.
"Consolidated Total Liabilities" means the total liabilities of the
Borrower/Parent and the Consolidated Subsidiaries, on a consolidated basis
(including liabilities on account of Dividends, whether paid or declared but not
yet paid, and all Third Party Development Property Purchase Obligations), plus
the aggregate amount of Debt Guaranteed by the Borrower/Parent, the Guarantors
and the Subsidiaries (other than the debt of any of them), plus (iii) the
Borrower/Parent's Joint Venture Share of the aggregate amount of Debt of all
Joint Ventures at the end of the Borrower's most recent Fiscal Quarter.
"Consolidated Unencumbered Real Estate Assets" means at any time, for the
Borrower and each Consolidated Entity, determined on a consolidated basis, the
sum of the amounts determined below (without duplication with respect to any
Property), but only for retail shopping center Properties that are located in
the continental United States of America, are of a type substantially consistent
with the Borrower's portfolio as of March 31, 2002 (except that the Property
known as "Industrial Property" or "I-85 Charlotte Industrial Property", located
in Charlotte, NC, and the Property known as "Venice Plaza", located in Venice,
FL, shall be included) and are either owned or as to which the land is ground
leased by the Borrower or by a Subsidiary which is a Guarantor (including those
that pursuant to Section 5.27 were required to become or have elected to become
a Guarantor):
(i) an amount equal to the product of: (1) 4 (which is the
annualization factor); times (2) the quotient of (x) the Net Operating Income
for the 3 month period ending on the last day of the Fiscal Quarter just ended
prior to the date of determination, from each such Property not subject to a
Mortgage and owned by the Borrower or any Guarantor for at least one Fiscal
Quarter, divided by (y) 0.0950 (which is the capitalization rate); provided,
that such Properties shall be included only to the extent that they, together
with all other such Properties included in the calculation pursuant to this
clause (i), satisfy the Minimum Aggregate Occupancy Requirement; plus
(ii) an amount equal to the acquisition cost of improved Properties not
subject to a Mortgage owned by Borrower or any Guarantor less than three months,
as determined on the last day of the Fiscal Quarter just ended provided, that
such Properties shall be included only to the extent that they, together with
all other such Properties included in the calculation pursuant to this clause
(ii), satisfy the Minimum Aggregate Occupancy Requirement; plus
(iii) an amount equal to the lesser of (1) the sum of the book value
of owned Properties not subject to a Mortgage and consisting of unimproved land
for which there is an executed lease with an Anchor Tenant, as determined on the
last day of the Fiscal Quarter just ended, plus the book value of Construction
in Progress of owned Properties not subject to a Mortgage and (2) 15% of the sum
of clauses (i) (ii) and (iii) without giving effect to this subclause (iii)(2);
provided, however, that, in determining Consolidated Unencumbered Real
Estate Assets, the aggregate amount attributable to all Properties as to which
the land is ground leased by the Borrower or a Guarantor pursuant to the
foregoing shall not exceed 7.5% of the sum of clauses (i), (ii) and (iii)
without giving effect to this proviso.
"Consolidated Unsecured Interest Expense" means at any time that portion of
Consolidated Interest Expense attributable to Consolidated Unsecured Debt.
"Consolidated Unsecured Debt" means Consolidated Debt (including
Consolidated Debt that is expressly made subordinate to any other Consolidated
Debt) that is not subject to a Mortgage or any other Lien on any Property of the
Borrower or any Consolidated Entity.
"Minimum Aggregate Occupancy Requirement" means, with respect to owned
or ground leased Properties included in the calculation of Consolidated
Unencumbered Real Estate Assets, such owned or ground leased Properties that in
the aggregate are at least 80% leased and under which rent is being recognized
(pursuant to written leases which have been signed by both landlord and tenant,
but including any month to month occupancy by any such tenant after the
expiration of such written lease).
"Third Party Development Property" means any property that is under
development by a third party but which will become a Property or a Joint Venture
Property upon the payment by the Borrower, any Consolidated Entity or any Joint
Venture of the portion of the Third Party Development Property Purchase
Obligations that pertains to such property.
"Third Party Development Property Purchase Obligations" means, with respect
to all written contracts for the purchase of a Third Party Development Property
as to which all conditions precedent to the Borrower's, or any Consolidated
Entity's or any Joint Venture's obligation to purchase such property have been
satisfied, the sum of (i) the aggregate purchase price under all such purchase
contracts payable by the Borrower or any Consolidated Entity and (ii) the Joint
Venture Share of the aggregate purchase price under all such purchase contracts
payable by a Joint Venture.
4. Amendment to Section 2.07(a)(ii). The table in Section 2.07(a)(ii)
of the Credit Agreement is deleted in its entirety and the following is
substituted therefor:
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
>=BBB >=BBB-
>=BBB+ =A- or Baa1 or
but but
but Baa3
=BB >=BBB-
>=BBB+ =A- or Baa1 or
but but
Debt Rating but Baa3
