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EXHIBIT 10.1
$100,000,000 (EXPANDIBLE TO $150,000,000)
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
NOVEMBER 1, 2000
AMONG
IRT PROPERTY COMPANY
THE BANKS LISTED HEREIN
AND
WACHOVIA BANK, N.A.,
AS ADMINISTRATIVE AGENT
FIRST UNION NATIONAL BANK,
AS SYNDICATION AGENT
AND
WACHOVIA SECURITIES, INC., AS ARRANGER
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment and
Restatement") is dated as of November 1, 2000 among IRT PROPERTY COMPANY (the
"Borrower"), WACHOVIA BANK, N.A., as Administrative Agent (the "Administrative
Agent"), FIRST UNION NATIONAL BANK, as Syndication Agent (the "Syndication
Agent") 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, the Administrative Agent and the
Syndication Agent executed and delivered that certain Credit Agreement, dated as
of November 1, 1999 (the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent, the
Syndication Agent and the Banks have agreed to amend and restated 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 Syndication 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 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 "Commitment",
"Consolidated Fixed Charges", "Consolidated EBITDA", "Consolidated Interest
Expense", "Consolidated Total Asset Value", "Consolidated Total Liabilities" and
"Consolidated Total Secured Debt", and substituting the following definitions of
such terms set forth below, and (ii) adding the following definitions of "Bank
Joinder Agreement", "Commitment", "Joint Venture", "Joint Venture Construction
in Progress", "Joint Venture EBITDA", "Joint Venture Net Operating Income",
"Joint Venture Property", "Joint Venture Share" and "New Bank", all of such
definitions to be substituted and added in the appropriate alphabetical order.
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"Bank Joinder Agreement" means an agreement in
substantially the form of Exhibit R, pursuant to which a New Bank
becomes a Bank hereunder in accordance with the provisions of Section
2.15.
"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 EBITDA" means at any time the sum of
the following, determined on a consolidated basis for the
Borrower/Parent and each Consolidated Entity, at the end of each Fiscal
Quarter, for the applicable measuring period: (i) Consolidated Net
Income (but excluding equity in, and income and losses of, Joint
Ventures); plus (ii) Consolidated Interest Expense; plus (iii) taxes on
income; plus (iv) depreciation; plus (v) amortization; plus (vi) other
non-cash charges, plus Borrower/Parent's Joint Venture Share of Joint
Venture EBITDA.
"Consolidated Fixed Charges" means at any time the
sum of the following, determined on a consolidated basis for the
Borrower/Parent and each Consolidated Entity, at the end of each Fiscal
Quarter, for the Fiscal Quarter just ended: (I) Consolidated Interest
Expense plus (ii) all Dividends paid, or declared but not yet paid, by
the Borrower/Parent on a preferred stock; plus (iii) the aggregate
amount of scheduled principal amortization paid, as reflected on the
Borrower/Parent's most recent quarterly financial statement submitted
to the Banks, but excluding any principal payments under this Agreement
or any other agreement pertaining to revolving Debt permitted under
Section 5.19 (iii), and excluding any balloon, bullet or similar
payments on other Debt and (iv) payments on ground leases, plus (iv)
Borrower's Joint Venture Share of scheduled principal payments of Joint
Ventures, excluding any balloon, bullet or similar payments on other
Debt.
"Consolidated Interest Expense" for any period means
interest, whether expensed or capitalized, in respect of Debt of the
Borrower/Parent and each Consolidated Entity outstanding during such
period, determined on a consolidated basis for the Borrower or any of
its Subsidiaries, plus the Borrower's Joint Venture share of interest
expense of Joint Ventures.
"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
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(other than Property owned by Borrower or any Consolidated
Entity for less than three months), divided by (2) 0.0975
(which is the capitalization rate); times (y) 4 (which is the
annualization factor); plus
(ii) an amount equal to the book value of (A)
Construction in Progress plus (B) 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 ore 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 Consolidated 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) 0.0975 (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) 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
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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 unamorized 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), 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 Total Secured Debt" shall mean all Debt
of the Borrowers/Parent and the Consolidated Entities consisting of (i)
capitalized leases, (ii) money borrowed or the deferred purchase price
of real property which is also secured by a Mortgage on any real
property owned by the Borrower/parent or any Consolidated Entity; and
(iii) Guarantees of the Borrower/parent or any Consolidated Entity of
Debt of any other Person which is secured by a Mortgage on an asset of
the Borrower/Parent or such Consolidated Entity, plus the
Borrower/Parent's Joint Venture Share of the aggregate amount of Debt
of all Joint Ventures which is secured by a Mortgage on any real
property owned by such Joint Venture.
"Joint Venture" means a Person (i) whose primary
business is the development or ownership of Shopping Center Properties,
(ii) in which the Borrower or any of its Consolidated Subsidiaries owns
a legal and beneficial ownership interest and (iii) whose accounts at
any date are not consolidated with those of the Borrower in its
consolidated financial statements as of such date in accordance with
GAAP.
"Joint Venture Construction In Progress" means
Construction In Progress with respect to any Joint Venture Property.
"Joint Venture EBITDA" means at any time the sum of
the following, determined for each Joint Venture, at the end of each
Fiscal Quarter, for the applicable measuring period: (i) Joint Venture
Net Income; plus (ii) interest expense (whether expensed or
capitalized); plus (iii) taxes on income; plus (iv) depreciation; plus
(v) amortization; plus (vi) other non-cash charges.
"Joint Venture Net Operating Income" means Net
Operating Income, but determined solely with respect to Joint Venture
Properties.
"Joint Venture Property" means a Property which is
owned by a Joint Venture.
"Joint Venture Share" means, with respect to any
Joint Venture, the percentage of legal and beneficial ownership
interest in such Joint Venture held by the Parent or by any of its
Consolidated Subsidiaries.
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"New Bank" has the meaning set forth in Section 2.15.
4. New Section 2.15. A new Section 2.15 hereby is added to the
Credit Agreement, as follows:
SECTION 2.15 EXPANSION OF FACILITY.
At the request of the Borrower, the aggregate amount
of the Commitments may be increased at any time prior to the
Termination Date to an aggregate amount not in excess of $150,000,000
without any amendment to this Agreement and without consent of the
Banks, by an increase in the Commitment of any existing Bank and/or the
execution and delivery by any new Bank which has been approved by the
Borrower and the Administrative Agent (a "New Bank") of a Bank Joinder
Agreement. On the effective date of such increase by an existing Bank
or such joinder: (i) the Administrative Agent shall notify all other
Banks thereof, including the name, notice address and amount of
Commitment of each New Bank, if applicable; (ii) if a New Bank is being
added, the Borrower shall execute and deliver to the Administrative
Agent, for re-delivery to the New Banks, as appropriate, a Syndicated
Loan Note payable to each New Bank in the amount of its Commitment, and
a new Money Market Loan Note payable to each New Bank in the amount of
the Money Market Facility Limit, after giving effect to such joinder;
and (iii) if a New Bank is being added, each New Bank shall purchase
from each other Bank a pro rata participation in such other Bank's
existing Syndicated Loans (but not its Money Market Loans), including
in any right of payment pursuant to Section 8.05 with respect thereto,
so that, after giving effect thereto, each Bank (including each New
Bank) will have risk for such existing Loans equal to its pro rata
share of the Commitments, after giving effect to the Commitment of each
New Bank. Loans made after the effective date of such joinder shall not
be subject to the foregoing, and the New Bank shall fund its ratable
share thereof in accordance with its commitment.
5. Amendment to Section 9.06(a). Section 9.06(a) hereby is
deleted in its entirety and the following is substituted therefor:
(a) Any provision of this Agreement, the Notes
or any other Loan Documents may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed
by the Borrower and the Required Banks (and, if the rights or
duties of the Administrative Agent are affected thereby, by
the Administrative Agent); provided that, no such amendment or
waiver shall, unless signed by all Banks, (i) change the
Commitment of any Bank or subject any Bank to any additional
obligation, (ii) reduce the principal of or the rate of
interest on any Loan or any fees (other than fees payable to
the Administrative Agent) hereunder, (iii) change the date
fixed for any payment of principal of or interest on any Loan
or any fees hereunder, (iv) reduce the amount of principal,
interest or fees due on any date fixed for the payment
thereof, (v) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Notes, or the
percentage of Banks, which shall be required for the Banks or
any of them to take any action under this Section or any other
provision of this Agreement, (vi)
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change the manner of application of any payments made under
this Agreement or the Notes, (vii) release or substitute all
or any substantial part of the collateral (if any) held as
security for the Loans, (viii) release any Guarantee given to
support payment of the Loans, (ix) change the definition of
"Borrowing Base" or (x) change the provisions of Section
6.01(l)(i).
6. Substitution of Certain Schedules to Exhibit F (Compliance
Certificate). Exhibit F to the Credit Agreement hereby is amended by deleting
Schedules 2 through 6, inclusive, and Schedule 8 thereof in their entirety, and
substituting therefor Schedules 2 through 6, inclusive, and Schedule 8 attached
hereto.
7. New Exhibit R. Exhibit R attached hereto hereby is added as
Exhibit R to the Credit Agreement.
8. Extension of Termination Date. Pursuant to Section 2.06(b) of
the Credit Agreement, the Termination Date hereby is extended to November 1,
2003.
9. Restatement of Representations and Warranties. The Borrower
hereby restates and renews each and every representation and warranty heretofore
made by it in the Credit Agreement and the other Loan Documents as fully as if
made on the date hereof and with specific reference to this Amendment and
Restatement and all other loan documents executed and/or delivered in connection
herewith.
10. 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 Borrower. The amendments
contained herein shall be deemed to have prospective application only, unless
otherwise specifically stated herein.
11. Ratification. The Borrower hereby restates, ratifies and
reaffirms each and every term, covenant and condition set forth in the Credit
Agreement and the other Loan Documents effective as of the date hereof.
12. Counterparts. This Amendment and Restatement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same instrument.
13. Section References. Section titles and references used in this
Amendment and Restatement shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreements among the parties hereto
evidenced hereby.
14. No Default. To induce the Agent and the Banks to enter into
this Amendment and Restatement and to continue to make advances pursuant to the
Credit Agreement, the Borrower hereby acknowledges and agrees that, as of the
date hereof, and after giving effect to the terms hereof, there exists (i) no
Default or Event of Default and (ii) no right of offset, defense, counterclaim,
claim or objection in favor of the Borrower arising out of or with respect to
any of the Loans or other obligations of the Borrower owed to the Banks under
the Credit Agreement.
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15. Further Assurances. The Borrower agrees to take such further
actions as the Agent shall reasonably request in connection herewith to evidence
the amendments herein contained.
16. Governing Law. This Amendment and Restatement shall be
governed by and construed and interpreted in accordance with, the laws of the
State of Georgia.
17. Conditions Precedent. This Amendment and Restatement shall
become effective only upon execution and delivery (i) of this Amendment and
Restatement by each of the parties hereto, and (ii) of the Consent and
Reaffirmation of Guarantors at the end hereof by each of the Guarantors.
[SIGNATURES COMMENCE ON NEXT PAGE]
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IN WITNESS WHEREOF, the Borrower, the Administrative Agent, the
Syndication Agent and each of the Banks has caused this Amendment and
Restatement to be duly executed, under seal, by its duly authorized officer as
of the day and year first above written.
IRT PROPERTY COMPANY (SEAL)
as Borrower
By: /s/ James G. Levy
-----------------------------------------
Title: James G. Levy
Executive Vice President and
Chief Financial Officer
WACHOVIA BANK, N.A.
as Administrative Agent and as a Bank
(SEAL)
By:
-----------------------------------------
Title:
FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Bank (SEAL)
By:
-----------------------------------------
Title:
AMSOUTH BANK, as a Bank (SEAL)
By:
-----------------------------------------
Title:
SOUTHTRUST BANK, as a Bank (SEAL)
By:
-----------------------------------------
Title:
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SUNTRUST BANK (formerly SunTrust Bank,
Atlanta), as a Bank (SEAL)
By:
-----------------------------------------
Title:
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CONSENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Amendment and
Restatement to Credit Agreement (the "Amendment and Restatement"), (ii) consents
to the execution and delivery of the Amendment and Restatement by the parties
thereto and (iii) reaffirms all of its obligations and covenants under the
Guaranty Agreement dated as of November 1, 1999 executed by it, and agrees that
none of such obligations and covenants shall be affected by the execution and
delivery of the Amendment and Restatement. This Consent and Reaffirmation may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same instrument.
IRT CAPITAL CORPORATION II_____(SEAL)
By: /s/ Thomas H. McAuley
--------------------------------
Thomas H. McAuley
President
IRT PARTNERS L.P. (SEAL)
By: IRT Property Company, general partner
By: /s/ James G. Levy
--------------------------------------
James G. Levy
Executive Vice President and Chief
Financial Officer
IRT MANAGEMENT COMPANY (SEAL)
By: /s/ James G. Levy
--------------------------------------
James G. Levy
Treasurer
IRT ALABAMA, INC. (SEAL)
By: /s/ James G. Levy
--------------------------------------
James G. Levy
Treasurer
