Amendment No. 1 to Amended and Restated Credit Agreement among Summit Properties Partnership, L.P., Summit Properties, Inc., and Lenders
Summary
This amendment updates the existing credit agreement between Summit Properties Partnership, L.P., Summit Properties, Inc., and a group of lenders. The main change is the extension of the loan termination date by one year, from September 26, 2003, to September 26, 2004. The amendment also allows for the transfer of commitments from Commerzbank to other lenders and waives certain assignment requirements. The agreement becomes effective once all required documents and payments are completed. All other terms of the original credit agreement remain in effect.
EX-10.4 6 g70838ex10-4.txt AMENDMENT #1/AMENDED & RESTATED CREDIT AGREEMENT 1 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 2 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; 2 3 (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] 3 4 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/ Gregg Adzema ---------------------------------- Name: Gregg Adzema Title: Senior Vice President PARENT GUARANTOR: SUMMIT PROPERTIES, INC. By:/s/ Gregg Adzema ----------------------------------------- Name: Gregg Adzema Title: Senior Vice President FIRST UNION NATIONAL BANK, as Administrative Agent By:/s/ Rex E. Rudy ----------------------------------------- Name: Rex E. Rudy Title: Director FIRST UNION SECURITIES, INC., as Arranger By:/s/ David Blackman ----------------------------------------- Name: David Blackman Title: Director S-1 5 WACHOVIA BANK, N.A., as Syndication Agent By:/s/ Wayne A. Osella ----------------------------------------- Name: Wayne A. Osella Title: Senior Vice President BANK OF AMERICA, N.A., as Documentation Agent By:/s/ Gregg Higson ------------------------------------------ Name: Gregg Higson Title: Vice President S-2 6 THE LENDERS: FIRST UNION NATIONAL BANK By:/s/ Rex E. Rudy ---------------------------------------- Name: Rex E. Rudy Title: Director S-3 7 THE LENDERS: WACHOVIA BANK, N.A. By:/s/ Wayne A. Osella ----------------------------------------- Name: Wayne A. Osella Title: Senior Vice President S-4 8 THE LENDERS: BANK OF AMERICA, N.A. By:/s/ Gregg Higson ------------------------------------------- Name: Gregg Higson Title: Vice President S-5 9 THE LENDERS: AMSOUTH BANK By:/s/ Lawrence Clark ----------------------------------------- Name: Lawrence Clark Title: Vice President S-6 10 THE LENDERS: CHEVY CHASE BANK, F.S.B. By:/s/ J. Jordan O'Neill, III ------------------------------------------ Name: J. Jordan O'Neill, III Title: Vice President S-7 11 THE LENDERS: SOUTHTRUST BANK By:/s/ Sam Boroughs ------------------------------------------- Name: Sam Boroughs Title: Vice President S-8 12 THE LENDERS: CITIZENS BANK OF RHODE ISLAND By:/s/ Craig E. Schermerhorn ------------------------------------------ Name: Craig E. Schermerhorn Title: Vice President S-9 13 THE LENDERS: EASTERN BANK By:/s/ Robert W. Kershaw ----------------------------------------- Name: Robert W. Kershaw Title: Assistant Vice President S-10
