EXHIBIT 10.48
FOURTH AMENDED AND RESTATED MASTER
REVOLVING CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT is made
as of the 30th day of December, 2002 by and among RAMCO-GERSHENSON PROPERTIES,
L.P. (the "Borrower"), a Delaware limited partnership, RAMCO-GERSHENSON
PROPERTIES TRUST (the "Guarantor"), a Maryland real estate investment trust,
FLEET NATIONAL BANK, a national banking association ("Fleet"), DEUTSCHE BANK
TRUST COMPANY AMERICAS, BANK ONE, NA, STANDARD FEDERAL BANK N.A., HUNTINGTON
NATIONAL BANK, KEYBANK NATIONAL ASSOCIATION, and the other lending institutions
that are a party hereto and the other lending institutions which may become
parties hereto pursuant to Section 18 (the "Banks"), and FLEET NATIONAL BANK, a
national banking association, as Agent for the Banks (the "Agent").
RECITALS
WHEREAS, the Borrower, Guarantor, Fleet and Agent are parties to that
certain Third Amended and Restated Master Revolving Credit Agreement dated as of
September 29, 2000, as amended by that certain First Amendment to Third Amended
and Restated Master Revolving Credit Agreement and Other Loan Documents dated as
of February 22, 2001 (as amended, the "Prior Credit Agreement");
WHEREAS, the Borrower is indebted to Fleet and certain other banks (the
"Prior Banks") in respect of loans made to the Borrower pursuant to the Prior
Credit Agreement;
WHEREAS, the Borrower has requested that the maturity date of such loans
be extended;
WHEREAS, the Borrower, the Guarantor, Fleet, the other Banks and the Agent
desire to amend and restate the Prior Credit Agreement, it being understood that
the loans heretofore made to the Borrower and the letters of credit issued for
the benefit of the Borrower under the Prior Credit Agreement shall continue to
remain outstanding and that this Agreement is an amendment and restatement of
the Prior Credit Agreement which shall remain in full force and effect, as
amended and restated in its entirety hereby;
NOW, THEREFORE, in consideration of the terms and conditions herein, and
of any loans, advances, or extensions of credit heretofore, now or hereafter
made to or for the benefit of the Borrower by the Banks, the parties hereto
hereby amend and restate the Prior Credit Agreement in its entirety and agree as
follows:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1 DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
Affiliate. An Affiliate, as applied to any Person, shall mean any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person. For purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as applied to
any Person, means (a) the possession, directly or indirectly, of the power to
vote ten percent (10%) or more of the stock, shares, voting trust certificates,
beneficial interest, partnership interests, member interests or other interests
having voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise,
or (b) the ownership of (i) a general partnership interest, (ii) a managing
member's interest in a limited liability company or (iii) a limited partnership
interest or preferred stock (or other ownership interest) representing ten
percent (10%) or more of the outstanding limited partnership interests,
preferred stock or other ownership interests of such Person.
Agent. Fleet National Bank, acting as agent for the Banks, its successors
and assigns.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time by notice to the Borrower and the Banks.
Agent's Special Counsel. McKenna Long & Aldridge LLP or such other counsel
as may be approved by the Agent.
Agreement. This Fourth Amended and Restated Master Revolving Credit
Agreement, including the Schedules and Exhibits hereto.
Applicable Margin. On any date, the applicable margin set forth below
based on the ratio of the Consolidated Total Liabilities of the Borrower to the
Consolidated Total Adjusted Asset Value of the Borrower (expressed as a
percentage):
Ratio Base Rate Loans LIBOR Rate Loans
----- --------------- ----------------
Pricing Level 1 Less than 40% 0.00% 1.500%
Pricing Level 2 Equal to or greater than 40%, but
less than 50% 0.00% 1.625%
Pricing Level 3 Equal to or greater than 50%, but
less than 60% 0.00% 1.75%
Pricing Level 4 Equal to or greater than 60% 0.25% 2.00%
The initial Applicable Margin shall be at Pricing Level 3. The Applicable Margin
shall be adjusted based upon such ratio, if at all, on the first day of the
first month following the delivery by the Borrower to the Agent of the
Compliance Certificate at the end of each fiscal quarter. In the event that
Borrower shall fail to deliver to the Agent a quarterly Compliance Certificate
on or before the date required by Section 7.4(e), then without limiting any
other rights of the Agent and the Banks under this Agreement, the Applicable
Margin shall be at Pricing Level 4 until such failure is cured within any
applicable cure period.
Appraisal. An MAI appraisal of the value of a parcel of Real Estate,
determined on a fair value basis, performed by an independent appraiser selected
by the Agent who is not an
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employee of the Borrower, the Guarantor or any of their Subsidiaries, the Agent
or a Bank, the form and substance of such appraisal and the identity of the
appraiser to be in compliance with the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as amended, the rules and regulations adopted
pursuant thereto and all other regulatory laws and policies (both regulatory and
internal) applicable to the Banks and otherwise acceptable to the Agent.
Appraised Value. The fair value of a parcel of Mortgaged Property
determined by the most recent Appraisal of such parcel or update obtained
pursuant to Section 5.2 or Section 10.16, subject, however, to such changes or
adjustments to the value determined thereby as may be required by the appraisal
department of the Agent.
Approved Subsidiary. A wholly-owned Subsidiary of the Borrower, the
formation and organizational structure of which and the ownership of real estate
assets by which has been approved in writing by the Majority Banks.
Arranger. Fleet Securities, Inc.
Assignment of Hedge. An Assignment of Hedge Agreement by the Borrower to
the Agent for the benefit of the Banks pursuant to which the Interest Rate
Contract described in Section 7.15 is pledged as security for the Obligations,
as the same may be modified or amended, such assignment to be in form and
substance satisfactory to the Agent, and any consents, acknowledgments or
financing statements that may be delivered in connection therewith as required
by Agent.
Assignment of Leases and Rents. Each of the collateral assignments of
leases and rents from the Borrower or any of its Subsidiaries to the Agent, as
the same may be modified or amended, pursuant to which there shall be assigned
to the Agent for the benefit of the Banks a security interest in the interest of
the Borrower or any of its Subsidiaries as lessor with respect to all Leases of
all or any part of a Mortgaged Property, each such collateral assignment to be
in form and substance satisfactory to the Agent.
Agreement of Management Company. An agreement, in form and substance
satisfactory to Agent, whereby Ramco Gershenson, Inc. (the "Management Company")
agrees that (a) upon foreclosure of any Mortgaged Property, the Management
Agreement between Borrower and Management Company (the "Ramco Management
Agreement") will terminate as to such Mortgaged Property, (b) the Management
Company's rights under the Ramco Management Agreement with respect to any
Mortgaged Property are subordinate to the lien of the Security Deeds and all
other Loan Documents, and (c) upon foreclosure of any Mortgaged Property or
delivery of a deed in lieu thereof, Agent shall have no obligations or
liabilities under the Ramco Management Agreement.
Balance Sheet Date. September 30, 2002.
Banks. Fleet and any other Person who becomes an assignee of any rights of
a Bank pursuant to Section 18.
Base Rate. The greater of (a) the variable annual rate of interest
announced from time to time by Agent at Agent's Head Office as its "prime rate"
or (b) one-half of one percent (0.5%)
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above the Federal Funds Effective Rate (rounded upwards, if necessary, to the
next one-eighth of one percent). The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer. Any
change in the rate of interest payable hereunder resulting from a change in the
Base Rate shall become effective as of the opening of business on the day on
which such change in the Base Rate becomes effective, without notice or demand
of any kind.
Base Rate Loans. Those Loans bearing interest calculated by reference to
the Base Rate.
Borrower. As defined in the preamble hereto.
Borrowing Base. At any time with respect to the Borrower and any Approved
Subsidiary, the Borrowing Base shall be the Borrowing Base for Eligible Real
Estate included in the Mortgaged Property owned by the Borrower or any Approved
Subsidiary. The Borrowing Base for Eligible Real Estate included in the
Mortgaged Property shall be the amount which is the lesser of (a) sixty-five
percent (65%) of the sum of the Appraised Values of each Mortgaged Property as
most recently determined as provided under Section 5.2 or Section 10.16; and (b)
the sum of the Debt Service Coverage Amounts for each Mortgaged Property, and
the amount which is the lesser of (a) and (b) shall be the Borrowing Base for
Eligible Real Estate included in the Mortgaged Property; and provided, however,
that the portion of the Borrowing Base attributable to Regular Real Estate shall
at no time be less than sixty-five percent (65%) of the entire Borrowing Base.
Notwithstanding the foregoing, the Borrowing Base attributable to a Mortgaged
Property shall not exceed the amount to which recovery under the applicable
Security Deed is limited, unless such Security Deed is amended to increase any
such limit.
Building. With respect to each parcel of Mortgaged Property, all of the
buildings, structures and improvements now or hereafter located thereon.
Building Service Equipment. All apparatus, fixtures and articles of
personal property owned by the Borrower or any Approved Subsidiary now or
hereafter attached to or used or procured for use in connection with the
operation or maintenance of any building, structure or other improvement located
on or included in the Mortgaged Property, including, but without limiting the
generality of the foregoing, all engines, furnaces, boilers, stokers, pumps,
heaters, tanks, dynamos, motors, generators, switchboards, electrical equipment,
heating, plumbing, lifting and ventilating apparatus, air-cooling and
air-conditioning apparatus, gas and electric fixtures, elevators, escalators,
fittings, and machinery and all other equipment of every kind and description,
used or procured for use in the operation of a Building and located on the
Mortgaged Property (except apparatus, fixtures or articles of personal property
belonging to lessees or other occupants of such building or to persons other
than the Borrower or any Approved Subsidiary unless the same be abandoned by any
such lessee or other occupant or person and shall become the Borrower's or
Approved Subsidiary's property by reason of such abandonment), together with any
and all replacements thereof and additions thereto.
Business Day. Any day on which banking institutions located in the same
city and state as the Agent's Head Office are open for the transaction of
banking business and, in the case of LIBOR Rate Loans, which also is a LIBOR
Business Day.
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Capital Expenditure Reserve Amount. With respect to any Person or
property, a reserve for replacements and capital expenditures equal to $.10 per
square foot of building space located on all Real Estate owned by such Person,
other than Real Estate subject to long term leases having a remaining term of at
least five (5) years, exclusive of unexpired options, which provide that the
tenant is responsible for all building maintenance.
Capital Improvement Project. With respect to any Real Estate now or
hereafter owned by the Borrower or any of its Approved Subsidiaries which is
utilized principally for shopping centers, capital improvements consisting of
rehabilitation, refurbishment, replacement, expansions and improvements
(including related amenities) to the existing Buildings on such Real Estate and
capital additions, repairs, resurfacing and replacements in the common areas of
such Real Estate all of which may be properly capitalized under generally
accepted accounting principles.
Capitalized Lease. A lease under which a Person is the lessee or obligor,
the discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
generally accepted accounting principles.
CERCLA. See Section 6.18.
Change of Control. The occurrence of any one of the following events:
(a) during any twelve month period on or after the date hereof,
individuals who at the beginning of such period constituted the Board of
Directors of the Guarantor (together with any new directors whose election by
the Board of Directors or whose nomination for election by the shareholders of
the Guarantor was approved by a vote of at least a majority of the members of
the Board of Directors then in office who either were members of the Board of
Directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office; or
(b) there occurs a change of control of the Guarantor of a nature
that would be required to be reported in response to Item 1a of Form 8-K filed
pursuant to Section 13 or 15 under the Securities Exchange Act of 1934, or in
any other filing by the Guarantor with the Securities and Exchange Commission;
or
(c) the Borrower or Guarantor consolidates with, is acquired by, or
merges into or with any Person (other than a merger permitted by Section 8.4).
Closing Date. The first date on which all of the conditions set forth in
Section 10 and Section 11 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended.
Collateral. All of the property, rights and interests of the Borrower, the
Guarantor or any of their Subsidiaries which are or are intended to be subject
to the security interests, liens and mortgages created by the Security
Documents, including, without limitation, the Mortgaged Property, the Guaranty
and the Subsidiary Guaranty.
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Commitment. With respect to each Bank, the amount set forth on Schedule 1
hereto as the amount of such Bank's Commitment to make or maintain Loans to the
Borrower and to participate in Letters of Credit for the account of the
Borrower, as the same may be changed from time to time in accordance with the
terms of this Agreement.
Commitment Percentage. With respect to each Bank, the percentage set forth
on Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of
all of the Banks, as the same may be changed from time to time in accordance
with the terms of this Agreement..
Compliance Certificate. See Section 7.4(e).
Consolidated or Combined. With reference to any term defined herein, that
term as applied to the accounts of a Person and its Subsidiaries, consolidated
or combined in accordance with generally accepted accounting principles.
Consolidated Operating Cash Flow. With respect to any period of a Person,
an amount equal to the Operating Cash Flow of such Person and its Subsidiaries
for such period consolidated in accordance with generally accepted accounting
principles.
Consolidated Tangible Net Worth. The amount by which Consolidated Total
Adjusted Asset Value exceeds Consolidated Total Liabilities, and less the sum
of:
(a) the total book value of all assets of a Person and its
Subsidiaries properly classified as intangible assets under generally accepted
accounting principles, including such items as good will, the purchase price of
acquired assets in excess of the fair market value thereof, trademarks, trade
names, service marks, brand names, copyrights, patents and licenses, and rights
with respect to the foregoing; and
(b) all amounts representing any write-up in the book value of any
assets of such Person or its Subsidiaries resulting from a revaluation thereof
subsequent to the Balance Sheet Date.
Consolidated Total Adjusted Asset Value. With respect to any Person, the
sum of all assets of such Person and its Subsidiaries determined on a
Consolidated basis in accordance with generally accepted accounting principles,
provided that all Real Estate that is improved and not Under Development, shall
be valued at an amount equal to (A) the Operating Cash Flow of such Person and
its Subsidiaries and joint ventures described in Section 8.3(k) from such Real
Estate for the period covered by the four previous consecutive fiscal quarters
(treated as a single accounting period) divided by (B) nine and one half percent
(9.5%) capitalization rate, provided that (i) prior to such time as the Borrower
or any of its Subsidiaries or such joint ventures has owned and operated any
parcel of Real Estate for four full fiscal quarters (or with respect to any
Redevelopment Property that has been valued at cost as permitted below and has
recommenced operations for less than four full fiscal quarters), the Operating
Cash Flow with respect to such parcel of Real Estate for the number of full
fiscal quarters which the Borrower or any of its Subsidiaries or such joint
ventures has owned and operated such parcel of Real Estate (or, with respect to
a Redevelopment Property that has recommenced operations, the Operating Cash
Flow for such Redevelopment Property for the number of full fiscal quarters
which the Borrower or its Subsidiary has recommenced operations) as annualized
shall be utilized, (ii) the Operating Cash
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Flow for any parcel of Real Estate (or Redevelopment Property that has
recommenced operations) without a full quarter of performance shall be
annualized in such manner as the Agent shall approve, such approval not to be
unreasonably withheld, (iii) prior to being capitalized, the Operating Cash Flow
with respect to any parcel of Real Estate owned by a joint venture of such
Person shall be reduced by the amount of all Debt Service of such joint venture,
and (iv) to the extent that the capitalized Operating Cash Flow with respect to
any parcel of Real Estate owned by a joint venture of such Person is included in
the calculation of Consolidated Total Adjusted Asset Value for such Person, such
Person's interest in the joint venture shall not be included in the calculation
of Consolidated Total Adjusted Asset Value for such Person. Notwithstanding the
foregoing, Borrower may elect to value a Redevelopment Property at cost as
determined in accordance with generally accepted accounting principles, as set
forth in the first sentence of this definition, for a period of up to twelve
(12) months which twelve (12) month period shall commence upon the date which
Agent receives written notice from Borrower of such election. For the purpose of
calculating Operating Cash Flow under this definition as to any parcel of Real
Estate, the Operating Cash Flow Rental Adjustment shall be applied to any parcel
of Real Estate affected by any of the events described in the definition of
Operating Cash Flow Rental Adjustment. The assets of the Borrower and its
Subsidiaries on the consolidated financial statements of the Borrower and its
Subsidiaries shall be adjusted to reflect the Borrower's allocable share of such
asset (including Borrower's interest in any joint venture whose asset value is
determined by application of the capitalization rate above), for the relevant
period or as of the date of determination, taking into account (a) the relative
proportion of each such item derived from assets directly owned by the Borrower
and from assets owned by its respective Subsidiaries and joint ventures, and (b)
the Borrower's respective ownership interest in its Subsidiaries and joint
ventures.
Consolidated Total Liabilities. All liabilities of a Person and its
Subsidiaries determined on a Consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of such Person and its
Subsidiaries, whether or not so classified, including any liabilities arising in
connection with sale and leaseback transactions. Amounts undrawn under this
Agreement shall not be included in Indebtedness for purposes of this definition.
Notwithstanding anything to the contrary contained herein, Indebtedness of
Borrower and its Subsidiaries consisting of environmental indemnities and
guarantees with respect to customary exceptions to exculpatory language with
respect to Non-recourse Indebtedness shall not be included in the calculation of
Consolidated Total Liabilities of Borrower and its Subsidiaries unless a claim
shall have been made against Borrower or a Subsidiary of Borrower on account of
any such guaranty or indemnity.
Contribution Agreement (Revolver). That certain Contribution Agreement
(Revolver) dated of even date herewith among the Borrower, the Guarantor and the
Subsidiary Guarantors.
Construction Inspector. A firm of professional engineers or architects
selected by the Borrower and reasonably acceptable to the Agent.
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 4.1.
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Debt Offering. The issuance and sale by the Borrower or the Guarantor of
any debt securities of the Borrower or the Guarantor.
Debt Service. For any period, the sum of all interest, including
capitalized interest not paid in cash, bond related expenses, and mandatory
principal/sinking fund payments due and payable during such period excluding the
mandatory amortization payments required pursuant to Section 3.5 of the
Unsecured Revolving Loan Agreement and any balloon payments due upon maturity of
any Indebtedness.
Debt Service Coverage Amount. At any time determined by the Agent, an
amount equal to the maximum principal loan amount which, when bearing interest
at a rate per annum equal to the greater of (i) the then-current annual yield on
seven (7) year obligations issued by the United States Treasury most recently
prior to the date of determination plus 2.0% payable based on a 25 year mortgage
style amortization schedule (expressed as a mortgage constant percentage) and
(ii) eight and one half percent (8.5%), would be payable by the monthly
principal and interest payment amount resulting from dividing (a) the Operating
Cash Flow from an individual Mortgaged Property for the preceding four fiscal
quarters divided by 1.60 by (b) 12. Attached hereto as Schedule 2 is an example
of the calculation of Debt Service Coverage Amount (such example is meant only
as an illustration based upon the assumptions set forth in such example, and
shall not be interpreted so as to limit the Agent in its good faith
determination of the Debt Service Coverage Amount hereunder as hereinafter
provided). The determination of the Debt Service Coverage Amount and the
components thereof by the Agent shall, so long as the same shall be determined
in good faith, be conclusive and binding absent manifest error. In the event
that the Borrower or any Approved Subsidiary shall have owned a Mortgaged
Property for less than four consecutive fiscal quarters, then for the purpose of
determining the Debt Service Coverage Amount, the Operating Cash Flow with
respect to such Mortgaged Property shall be annualized in such manner as the
Agent shall reasonably determine. For the purpose of calculating Operating Cash
Flow under this definition as to any Mortgaged Property, the Operating Cash Flow
Rental Adjustment shall be applied to any Mortgaged Property affected by any of
the events described in the definition of Operating Cash Flow Rental Adjustment.
Default. See Section 12.1. In addition, any "Default" (as defined in the
Unsecured Revolving Loan Agreement) shall also be a Default hereunder.
Defaulting Bank. Any Bank which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Business Days after notice
from the Agent.
Distribution. With respect to any Person, the declaration or payment of
any cash, cash flow, dividend or distribution on or in respect of any shares of
any class of capital stock or other beneficial interest of such Person other
than dividends or distributions payable solely in equity securities of such
Person; the purchase, redemption, exchange or other retirement of any shares of
any class of capital stock or other beneficial interest of such Person, directly
or indirectly through a Subsidiary of such Person or otherwise; the return of
capital by such Person to its shareholders, partners or other owners as such; or
any other distribution on or in respect of any shares of any class of capital
stock or other beneficial interest of such Person.
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Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which any Loan which is made prior to the Maturity Date is converted
or combined in accordance with Section 4.1.
Eligible Real Estate. Real Estate:
(i) which is owned in fee by the Borrower or any Approved Subsidiary
or which is leased by the Borrower or any such Approved Subsidiary pursuant to a
ground lease which has been approved by the Majority Banks at their sole
discretion;
(ii) which is located within the contiguous 48 States of the
continental United States, excluding those States which prescribe a
"single-action" or similar rule limiting the rights of creditors secured by real
property, which exclusion shall apply, without limitation, to the States of
California and Washington except to the extent such exclusion is waived in
writing by the Majority Banks with respect to a specific parcel of Real Estate;
(iii) which is utilized principally for shopping centers or retail
facilities;
(iv) which is approved by the Majority Banks after the date hereof
in their sole judgment;
(v) as to which all of the representations set forth in Section 6 of
this Agreement concerning Mortgaged Property are true and correct; and
(vi) as to which the Agent has received all Eligible Real Estate
Qualification Documents, so long as all of such documents remain in full force
and effect.
Eligible Real Estate Qualification Documents. With respect to any parcel
of Real Estate of the Borrower or any Approved Subsidiary which is proposed to
be included in the Collateral, each of the following:
(a) Security Documents. Such Security Documents relating to such
Real Estate as the Agent shall require, in form and substance satisfactory
to the Agent and duly executed and delivered by the respective parties
thereto.
(b) Enforceability Opinion. The favorable legal opinion of counsel
to the Borrower, the Guarantor and any Approved Subsidiary reasonably
acceptable to the Agent qualified to practice in the State in which such
Real Estate is located, addressed to the Banks and the Agent and in form
and substance satisfactory to the Agent as to the enforceability of such
Security Documents (including the opinion that the Special Security
Documents and the agreement herein for the future recording thereof are
enforceable between the parties thereto, with appropriate qualifications
acceptable to the
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Agent as to the enforceability against third parties prior to recordation
thereof) and such other matters as the Agent shall reasonably request.
(c) Perfection of Liens. Except with respect to Special Real Estate,
evidence reasonably satisfactory to the Agent that the Security Documents
are effective to create in favor of the Agent a legal, valid and
enforceable first (except for Permitted Liens approved by the Agent
entitled to priority under applicable law) lien and security interest in
such Real Estate and that all filings, recordings, deliveries of
instruments and other actions necessary or desirable to protect and
preserve such lien or security interest have been duly effected.
(d) Survey and Taxes. The Survey of such Real Estate, together with
the Surveyor Certification and evidence of payment of all real estate
taxes, assessments and municipal charges on such Real Estate which on the
date of determination are required to have been paid under Section 7.8.
(e) Title Insurance; Title Exception Documents. The Title Policy
covering such Real Estate, including all endorsements thereto, and
together with proof of payment of all fees and premiums for such policy,
and true and accurate copies of all documents listed as exceptions under
such policy or any supplements thereto accepted by Agent.
(f) UCC Certification. A certification from the Title Insurance
Company or counsel satisfactory to the Agent that a search of the public
records designated by the Agent disclosed no conditional sales contracts,
security agreements, chattel mortgages, leases of personalty, financing
statements or title retention agreements which affect any property, rights
or interests of the Borrower or any Approved Subsidiary that are or are
intended to be subject to the security interest, assignments, and mortgage
liens created by the Security Documents relating to such Real Estate
except to the extent that the same are discharged and removed prior to or
simultaneously with the inclusion of the Real Estate in the Collateral.
(g) Management Agreement. A true copy of the Management Agreement,
if any, relating to such Real Estate.
(h) Standard Form Leases. True copies of sample leases and Rent
Rolls and summaries thereof satisfactory to the Agent certified by the
Borrower and any Approved Subsidiary as accurate and complete as of a
recent date.
(i) Subordination Agreements. A Subordination, Attornment and
Non-Disturbance Agreement from each tenant of such Real Estate as
reasonably required by the Agent, dated not more than sixty (60) days
prior to the inclusion of such Real Estate in the Collateral and
satisfactory in form and substance to the Agent.
(j) Estoppel Certificates. Estoppel certificates from (i) each
tenant of such parcel of Real Estate that leases space therein containing
10,000 or more square feet and (ii) unless otherwise approved by the
Agent, seventy-five percent (75%) of all other tenants of such parcel of
Real Estate; provided, however, that notwithstanding the foregoing
requirements, the Borrower or any Approved Subsidiary shall use its best
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efforts to obtain estoppel certificates from all tenants of such parcel of
Real Estate. All such estoppel certificates are to be dated not more than
sixty (60) days prior to the inclusion of such Real Estate in the
Collateral and are to be satisfactory in form and substance to the Agent.
(k) Certificates of Insurance. Each of (i) a current certificate of
insurance as to the insurance maintained by the Borrower on such Real
Estate (including flood insurance if necessary) or blanket coverage which
includes such Real Estate in accordance with the terms of this Agreement
from the insurer or an independent insurance broker dated as of the date
of determination, identifying insurers, types of insurance, insurance
limits, and policy terms; (ii) certified copies of all policies evidencing
such insurance (or certificates therefor signed by the insurer or an agent
authorized to bind the insurer); and (iii) such further information and
certificates from the Borrower, its insurers and insurance brokers as the
Agent may reasonably request, all of which shall be in compliance with the
requirements of this Agreement.
(l) Hazardous Substance Assessments. A Phase I environmental site
assessment report concerning Hazardous Substances and asbestos on such
Real Estate dated or updated not more than six (6) months prior to the
inclusion of such Real Estate in the Collateral, from an Environmental
Engineer, such report to contain no qualifications except those that are
acceptable to the Majority Banks in their sole discretion and to otherwise
be in form and substance satisfactory to the Majority Banks.
(m) Certificate of Occupancy. A copy of the certificate(s) of
occupancy issued to the Borrower or any Approved Subsidiary for such
parcel of Real Estate permitting the use and occupancy of the Building
thereon (or a copy of the certificates of occupancy issued for such parcel
of Real Estate and evidence satisfactory to the Agent that any previously
issued certificate(s) of occupancy is not required to be reissued to the
Borrower or any Approved Subsidiary), or a legal opinion or certificate
from the appropriate principality reasonably satisfactory to the Agent
that no certificates of occupancy are necessary to the use and occupancy
thereof.
(n) Appraisal. An Appraisal of such Real Estate, in form and
substance satisfactory to the Agent or the Majority Banks as provided in
Section 5.2 and dated not more than three (3) months prior to the
inclusion of such Real Estate in the Collateral.
(o) Zoning and Land Use Opinion of Counsel. A favorable opinion
concerning the Real Estate addressed to the Agent and dated the date of
the inclusion of such Real Estate in the Collateral, in form and substance
satisfactory to the Agent, from counsel approved by the Agent admitted to
practice in the State in which such parcel is located, as to zoning and
land use compliance, or such other evidence regarding zoning and land use
compliance as the Agent may approve in its reasonable discretion, provided
that a 3.1 zoning endorsement with parking from the Title Insurance
Company shall be satisfactory for this purpose.
(p) Construction Inspector Report. A report or written confirmation
from the Construction Inspector satisfactory in form and content to the
Majority Banks, dated or
11
updated not more than three (3) months prior to the inclusion of such Real
Estate in the Collateral, addressing such matters as the Majority Banks
may reasonably require, including without limitation that the Construction
Inspector has reviewed the plans and specifications or other available
materials for all Buildings on the Real Estate, that the condition of the
Buildings is good, that all Buildings were constructed and completed in a
good and workmanlike manner, that the Buildings satisfy all applicable
building, zoning, handicapped access and Environmental Laws applicable
thereto, whether or not the Real Estate and the Buildings thereon are a
conforming use under applicable zoning laws, and that utilities and public
water and sewer service are available at the lot lines of the Real Estate
through dedicated rights-of-way or through insured perpetual private
easements approved by the Agent and connected directly to the Building
with all necessary permits.
(q) Permit and Legal Compliance Assurances. Evidence satisfactory to
the Agent that all activities being conducted on such Real Estate which
require federal, state or local licenses or permits have been duly
licensed and that such licenses or permits are in full force and effect,
and that the Real Estate, the Buildings and the use and occupancy thereof
are in compliance with all applicable federal, state or local laws,
ordinances or regulations.
(r) Operating Statements. Operating statements for such Real Estate
in the form of such statements delivered to the Banks under Section 6.4(c)
covering each of the four fiscal quarters ending immediately prior to the
addition of such Mortgaged Property to the Collateral.
(s) Doing Business Opinion. An opinion, dated the date of the
inclusion of such Real Estate in the Collateral, of legal counsel to the
Borrower reasonably acceptable to the Agent qualified to practice in the
State in which such Real Estate is located to the effect that neither the
Agent nor any Bank shall be required to qualify to do business in such
State or any political subdivision thereof or to become liable to pay any
taxes in such State or any political subdivision thereof solely on account
of the receipt of the lien on such Real Estate securing the Obligations,
such opinion to be satisfactory to the Agent.
(t) Approved Subsidiary Documents. With respect to Real Estate owned
by an Approved Subsidiary, such guaranties, contribution agreements or
other documents, instruments, reports, assurances, or opinions as the
Agent may require in its sole and absolute discretion.
(u) Additional Documents. Such other documents, certificates,
reports or assurances as the Agent may reasonably require in its
discretion.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower, the
Guarantor or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Engineer. McLaren Hart or another firm of independent
professional engineers or other scientists generally recognized as expert in the
detection, analysis and
12
remediation of Hazardous Substances and related environmental matters and which
has been previously approved by the Agent, or if not previously approved by the
Agent, with respect to which the Borrower has provided to the Agent a copy of
such firm's errors and omissions insurance policy and a reliance letter both in
form and substance acceptable to the Agent.
Environmental Laws. See Section 6.18(a).
Equity Offering. The issuance and sale by the Borrower or the Guarantor of
any equity securities of the Borrower or the Guarantor.
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower or the Guarantor under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Event of Default. See Section 12.1.
Federal Funds Effective Rate. For any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent.
Fleet. As defined in the preamble hereto.
Funds from Operations. With respect to any Person for any fiscal period,
the Net Income of such Person computed in accordance with generally accepted
accounting principles, excluding gains (or losses) from sales of property, plus
depreciation and amortization, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures will be calculated to reflect funds from operations on the same
basis.
generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Person
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied. Notwithstanding the foregoing, for
the purposes of the financial calculations hereunder,
13
any amount otherwise included therein from a mark-up or mark-down of a
derivative product of a Person shall be excluded.
Government Acts. See Section 2.7(j).
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
the Guarantor or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guarantor. Ramco-Gershenson Properties Trust, a Maryland real estate
investment trust.
Guaranty. The Fourth Amended and Restated Unconditional Guaranty of
Payment and Performance dated of even date herewith made by the Guarantor in
favor of the Agent and the Banks, as the same may be modified or amended, such
Guaranty to be in form and substance satisfactory to the Agent.
Hazardous Substances. See Section 6.18(b).
Hedge Obligations. All obligations of Borrower to any Bank or an Affiliate
of a Bank to make any payments (including, without limitation, any payments due
upon a termination or default) under any agreement with respect to any Interest
Rate Contract executed in connection with the satisfaction of the condition set
forth in Section 7.15, and any confirming letter executed pursuant to such
hedging agreement, all as amended, restated or otherwise modified.
HLT Notice Date. See Section 4.13.
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, but without any double counting, including in any
event and whether or not so classified: (a) all debt and similar monetary
obligations, whether direct or indirect (including, without limitation, any
obligations evidenced by bonds, debentures, notes or similar debt instruments);
(b) all liabilities secured by any mortgage, pledge, security interest, lien,
charge or other encumbrance existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been assumed;
(c) all guarantees, endorsements and other contingent obligations whether direct
or indirect in respect of indebtedness of others, including any obligation to
supply funds to or in any manner to invest directly or indirectly in a Person,
to purchase indebtedness, or to assure the owner of indebtedness against loss
through an agreement to purchase goods, supplies or services for the purpose of
enabling the debtor to make payment of the indebtedness held by such owner or
otherwise; (d) any obligation as a lessee or obligor under a Capitalized Lease;
(e) all subordinated debt; (f) all obligations to purchase under agreements to
acquire, or otherwise to contribute money with respect to, properties under
"development" within the meaning of Section 8.9; and (g) all obligations,
contingent or deferred or otherwise, of any Person, including, without
limitation, any such obligations as an account party under acceptance, letter of
credit or similar facilities including, without limitation, obligations to
reimburse the issuer in respect of a letter of credit except for contingent
obligations (but excluding any guarantees or similar obligations) that
14
are not material and are incurred in the ordinary course of business in
connection with the acquisition or obtaining commitments for financing of Real
Estate.
Indemnity Agreement. The Fourth Amended and Restated Indemnity Agreement
Regarding Hazardous Materials made by the Borrower and the Guarantor in favor of
the Agent and the Banks, and any additional Indemnity Agreements Regarding
Hazardous Materials made by the Borrower and the Guarantor and/or any
Subsidiaries thereof in favor of the Agent and the Banks, as the same may be
modified or amended, pursuant to which the Borrower, the Guarantor and any such
Subsidiaries agree to indemnify the Agent and the Banks with respect to
Hazardous Substances and Environmental Laws, such Indemnity Agreements to be in
form and substance satisfactory to the Majority Banks.
Interest Payment Date. As to each Base Rate Loan, the first day of each
calendar month during the term of such Base Rate Loan, and as to each LIBOR Rate
Loan, the first day of each calendar month during the term of such LIBOR Rate
Loan and the last day of the Interest Period relating thereto.
Interest Period. With respect to each LIBOR Rate Loan (a) initially, the
period commencing on the Drawdown Date of such Loan and ending one, two, three
or six months (or, with the consent of the Banks, a period of less than one (1)
month) thereafter and (b) thereafter, each period commencing on the day
following the last day of the next preceding Interest Period applicable to such
Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a LIBOR Business Day, that Interest Period
shall end and the next Interest Period shall commence on the next preceding or
succeeding LIBOR Business Day as determined conclusively by the Agent in
accordance with the then current bank practice in the London Interbank Market;
(ii) if the Borrower shall fail to give notice as provided in Section 4.1,
the Borrower shall be deemed to have requested a conversion of the affected
LIBOR Rate Loan to a Base Rate Loan on the last day of the then current Interest
Period with respect thereto; and
(iii) no Interest Period relating to any LIBOR Rate Loan shall extend
beyond the Maturity Date.
Interest Rate Contracts. Interest rate swap, collar, cap or similar
agreements providing interest rate protection.
Investments. With respect to any Person, all shares of capital stock,
evidences of Indebtedness and other securities issued by any other Person, all
loans, advances, or extensions of credit to, or contributions to the capital of,
any other Person, all purchases of the securities or business or integral part
of the business of any other Person and commitments and options to make such
purchases, all interests in real property, and all other investments; provided,
however, that the term "Investment" shall not include (i) equipment, inventory
and other tangible personal property acquired in the ordinary course of
business, or (ii) current trade and customer accounts
15
receivable for services rendered in the ordinary course of business and payable
in accordance with customary trade terms. In determining the aggregate amount of
Investments outstanding at any particular time: (a) the amount of any Investment
represented as a guaranty shall be taken at not less than the principal amount
of the obligations guaranteed and still outstanding (provided that any guaranty
of the type described in Section 8.1(n) shall not be considered an Investment
for the purposes hereof, but instead shall be considered Indebtedness); (b)
there shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Leases. Leases, licenses and agreements whether written or oral, relating
to the use or occupation of space in or on the Building or on the Real Estate by
persons other than the Borrower.
Letter of Credit. Any standby letter of credit issued at the request of
the Borrower and for the account of the Borrower in accordance with Section 2.7.
Each letter of credit issued for the account of the Borrower under the Prior
Credit Agreement (which letters of credit are identified on Schedule 3 attached
hereto) shall be deemed to be a Letter of Credit under this Agreement and shall
be subject to all terms and conditions of this Agreement including, without
limitation, the obligation of the Borrower to reimburse the Agent with respect
to any amounts drawn thereunder.
Letter of Credit Application. See Section 2.7(b).
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
LIBOR Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. As applicable to any Interest Period for any LIBOR Rate Loan,
the rate per annum (rounded upwards, if necessary, to the nearest 1/32nd of one
percent) as determined on the basis of the offered rates for deposits in
Dollars, for the period of time comparable to such Interest Period which appears
on the Telerate page 3750 as of 11:00 a.m. London time on the day that is two
(2) LIBOR Business Days preceding the first day of such Interest Period;
provided, however, if the rate described above does not appear on the Telerate
System on any applicable interest determination date, the LIBOR Rate shall be
the rate (rounded upwards as described above, if necessary) for deposits in
Dollars for a period substantially equal to the Interest Period on the Reuters
Page "LIBO" (or such other page as may replace the LIBO Page on that service for
the purpose of displaying such rates), as of 11:00 a.m. (London Time), on the
day that is two (2) LIBOR Business Days prior to the beginning of such Interest
Period. If both the Telerate and
16
Reuters systems are unavailable, then the rate for that date will be determined
on the basis of the offered rates for deposits in Dollars for a period of time
comparable to such Interest Period which are offered by four major banks in the
London interbank market at approximately 11:00 a.m. London time, on the day that
is two (2) LIBOR Business Days preceding the first day of such Interest Period
as selected by Agent. The principal London office of each of the four major
London banks will be requested to provide a quotation of its U.S. dollar deposit
offered rate. If at least two such quotations are provided, the rate for that
date will be the arithmetic mean of the quotations. If fewer than two quotations
are provided, the rate for that date will be determined on the basis of the
rates quoted for loans in Dollars to leading European banks for a period of time
comparable to such Interest Period offered by major banks in New York City at
approximately 11:00 a.m. (New York City time), on the day that is two (2) LIBOR
Business Days preceding the first day of such Interest Period. In the event that
Agent is unable to obtain any such quotation as provided above, it will be
deemed that the LIBOR Rate pursuant to a LIBOR Rate Loan cannot be determined
and the provisions of Section 4.6 shall apply. In the event that the Board of
Governors of the Federal Reserve System shall impose a Reserve Percentage with
respect to LIBOR deposits of Agent, then for any period during which such
Reserve Percentage shall apply, the LIBOR Rate shall be equal to the amount
determined above divided by an amount equal to 1 minus the Reserve Percentage.
LIBOR Rate Loans. Loans bearing interest calculated by reference to a
LIBOR Rate.
Loan Documents. This Agreement, the Notes, the Letters of Credit, the
Letter of Credit Applications, the Security Documents and all other documents,
instruments or agreements now or hereafter executed or delivered by or on behalf
of the Borrower, the Guarantor or any of their Subsidiaries in connection with
the Loans. The Loan Documents include the Special Security Documents.
Loan Request. See Section 2.5.
Loans. See Section 2.1.
Majority Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is more than fifty percent (50%); provided,
that, in determining said percentage at any given time, all then existing
Defaulting Banks will be disregarded and excluded and the Commitment Percentages
of the Banks shall be redetermined for voting purposes only, to exclude the
Commitment Percentages of such Defaulting Banks.
Management Agreements. Agreements, whether written or oral, providing for
the management of the Mortgaged Properties or any of them.
Master Agreement. The Amended and Restated Master Agreement dated as of
December 27, 1995, by and among RPS Realty Trust, Ramco-Gershenson, Inc. and
certain other parties as set forth therein, as amended by First Amendment to
Amended and Restated Master Agreement dated as of March 19, 1996.
Maturity Date. December 29, 2005, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
17
Mortgaged Property or Mortgaged Properties. The Eligible Real Estate owned
by the Borrower or any Approved Subsidiary which is conveyed to and accepted by
the Agent as security for the Obligations of the Borrower pursuant to the
Security Deeds. Notwithstanding anything herein to the contrary, the property
encumbered by the Security Documents executed by the Subsidiary Guarantors shall
not constitute separate Mortgaged Properties for the purpose of determining the
Borrowing Base.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower, the Guarantor or
any ERISA Affiliate.
Net Income (or Deficit). With respect to any Person (or any asset of any
Person) for any fiscal period, the net income (or deficit) of such Person (or
attributable to such asset), after deduction of all expenses, taxes and other
proper charges, determined in accordance with generally accepted accounting
principles.
Net Offering Proceeds. The gross cash proceeds received by the Borrower or
the Guarantor as a result of a Debt Offering or an Equity Offering less the
customary and reasonable costs, fees, expenses, underwriting commissions and
discounts incurred by the Borrower or the Guarantor in connection therewith.
Non-recourse Indebtedness. Indebtedness of a Person which is secured by
one or more parcels of Real Estate (other than Mortgaged Property) and related
personal property or interests therein and Short-term Investments and is not a
general obligation of such Person, the holder of such Indebtedness having
recourse solely to the parcels of Real Estate securing such Indebtedness, the
Building and Leases thereon and the rents and profits thereof and the Short-term
Investments securing such Indebtedness.
Non-Consenting Bank. See Section 18.9.
Notes. See Section 2.3.
Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the Borrower
to any of the Banks and the Agent, individually or collectively, under this
Agreement or any of the other Loan Documents or in respect of any of the Loans,
the Letters of Credit or the Notes, or other instruments at any time evidencing
any of the foregoing, whether existing on the date of this Agreement or arising
or incurred hereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise.
Operating Cash Flow. With respect to any Person (or any asset of any
Person) for any period, an amount equal to the sum of (a) the Net Income of such
Person (or attributable to such asset) for such period plus (b) depreciation and
amortization, interest expense, and any extraordinary or nonrecurring losses
deducted in calculating such Net Income, minus (c) any extraordinary or
nonrecurring gains included in calculating such Net Income, minus (d) the
Capital Expenditure Reserve Amount, all as determined in accordance with
generally accepted accounting principles.
18
Operating Cash Flow Rental Adjustment. For the purposes of calculating
Operating Cash Flow, (a) with respect to any parcel of Real Estate as to which
the Borrower or any Subsidiary or joint venture described in Section 8.3(k)
shall obtain a replacement tenant for vacant space in excess of 10,000 rentable
square feet, the rent from such tenant shall from the date such tenant takes
possession and begins paying rent be included for one-half of the period for
which such space was vacant during the period for which Operating Cash Flow is
being calculated, and (b) with respect to any parcel of Real Estate as to which
the Borrower or any Subsidiary or joint venture shall obtain a lease renewal
from a tenant leasing in excess of 10,000 rentable square feet that provides for
a higher base rent than previously paid by such tenant, the rent from such
tenant from the date such tenant begins paying rent at the higher rate shall be
included for the current and all prior periods for which Operating Cash Flow is
then being calculated.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination. With respect to Letters of Credit, the
aggregate undrawn face amount of issued Letters of Credit.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, limited liability
company, trust, unincorporated association, business, or other legal entity, and
any government or any governmental agency or political subdivision thereof.
Potential Collateral. Any property of the Borrower which is not at the
time included in the Collateral and which consists of (i) Eligible Real Estate
and (ii) Real Estate which is capable of becoming Eligible Real Estate through
the approval of the Majority Banks and the completion and delivery of Eligible
Real Estate Qualification Documents.
Principal Documents. The Master Agreement, the RPS Contribution Agreements
and the Ramco Agreements.
Prior Credit Agreement. As defined in the recitals hereof.
Ramco Agreements. As defined in the Master Agreement.
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to any Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by Agent
with respect to any Loan referred to in such Note.
Redevelopment Property. Any Real Estate which is not Under Development and
(1) is undergoing a significant Capital Improvement Project and (2) is
designated as a Redevelopment Property by Borrower and approved by Agent, such
approval not to be unreasonably withheld.
19
Register. See Section 18.2.
Regular Real Estate. All of those certain parcels of Real Estate which are
not Special Real Estate.
REIT Status. With respect to the Guarantor, its status as a real estate
investment trust as defined in Section 856(a) of the Code.
Release. See Section 6.18(c)(iii).
Releasing Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is thirty-three and one-third percent (33.33%);
provided that in determining said percentage at any given time, all the existing
Defaulting Banks will be disregarded and excluded and the Commitment Percentages
of the Banks shall be redetermined for voting purposes only to exclude the
Commitment Percentages of such Defaulting Banks.
Rent Roll. A report prepared by the Borrower in the form customarily used
by the Borrower and approved by the Agent, such approval not to be unreasonably
withheld.
Reserve Percentage. For any day with respect to a LIBOR Rate Loan, the
maximum rate (expressed as a decimal) at which any lender subject thereto would
be required to maintain reserves (including, without limitation, all base,
supplemental, marginal and other reserves) under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D or any successor or similar regulation), if
such liabilities were outstanding. The Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Percentage.
Required Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is sixty-six and two-thirds percent (66.66%);
provided that in determining said percentage at any given time, all the existing
Defaulting Banks will be disregarded and excluded and the Commitment Percentages
of the Banks shall be redetermined for voting purposes only to exclude the
Commitment Percentages of such Defaulting Banks.
RPS Contribution Agreements. As defined in the Master Agreement.
SEC. The federal Securities and Exchange Commission.
Security Deeds. The Mortgages, Deeds to Secure Debt and Deeds of Trust
from the Borrower or any Approved Subsidiary to the Agent for the benefit of the
Banks (or to trustees named therein acting on behalf of the Agent for the
benefit of the Banks), as the same may be modified or amended, pursuant to which
the Borrower or any Approved Subsidiary has conveyed a Mortgaged Property
(including both Regular Real Estate and Special Real Estate) as security for the
Obligations of the Borrower.
Security Documents. The Security Deeds, the Assignments of Rents and
Leases, the Indemnity Agreement, the Guaranty, the Assignment of Hedge
Agreement, the Subsidiary Guaranty, any guaranty that may be executed by an
Approved Subsidiary, and any further
20
collateral assignments to the Agent for the benefit of the Banks, including,
without limitation, UCC-1 financing statements executed and delivered in
connection therewith.
Service Agreement. Service agreements with third parties, whether written
or oral, relating to the operation, maintenance, security, finance or insurance
of Mortgaged Property.
Short-term Investments. Investments described in subsections (a) through
(g), inclusive, of Section 8.3.
Special Real Estate. Those certain parcels of Real Estate which are
described on Schedule 1.1. In the event that after the date hereof any other
Real Estate shall become Special Real Estate, the Agent may unilaterally amend
Schedule 1.1 to reflect such addition.
Special Security Documents. The Security Documents relating to Special
Real Estate, which have been or may in the future be executed and delivered to
Agent for the benefit of the Banks, and which are not to be recorded until the
occurrence of the events specified in Section 5.8 (it being acknowledged that
the Guaranty and the Indemnity Agreement are not Special Security Documents).
State. A state of the United States of America.
Subordination Agreement. That certain First Amended and Restated
Subordination Agreement dated of even date herewith between Agent, for itself
and the Banks, and Fleet National Bank, as agent under the Unsecured Revolving
Loan Agreement, for itself and the other lenders that are or become parties
thereto.
Subsidiary. Any corporation, association, partnership, trust, or other
business entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes or controlling interests) of the outstanding Voting Interests.
Subsidiary Guarantors. Ramco Cox Creek LLC, a Michigan limited liability
company, being a wholly-owned Subsidiary of Borrower that has taken an
assignment of a tenant's interests under a certain lease affecting the Mortgaged
Property commonly known as Cox Creek Plaza.
Subsidiary Guaranty. The First Amended and Restated Unconditional Guaranty
of Payment and Performance dated of even date herewith made by the Subsidiary
Guarantors in favor of the Agent and the Banks, as the same may be modified or
amended, such Guaranty to be in form and substance satisfactory to the Agent.
Survey. An instrument survey of Mortgaged Property prepared by a
registered land surveyor duly licensed in the State in which such Mortgaged
Property is located which shall show the location of all buildings, structures,
easements and utility lines on such property, shall be sufficient to remove the
standard survey exception from the Title Policy, shall show that all buildings
and structures are within the lot lines of the Mortgaged Property and shall not
show any encroachments by others (or to the extent any encroachments are shown,
such encroachments shall be acceptable to the Agent in its sole discretion),
shall show rights of way,
21
adjoining sites, establish building lines and street lines, the distance to, and
names of the nearest intersecting streets and such other details as the Agent
may reasonably require; shall show the zoning district or districts in which the
Mortgaged Property is located and shall show whether or not the Mortgaged
Property is located in a flood hazard district as established by the Federal
Emergency Management Agency or any successor agency or is located in any flood
plain, flood hazard or wetland protection district established under federal,
state or local law and shall otherwise be in form and substance reasonably
satisfactory to the Agent.
Surveyor Certification. With respect to each parcel of Mortgaged Property,
a certificate executed by the surveyor who prepared the Survey with respect
thereto, dated as of a recent date and containing such information relating to
such parcel as the Agent or the Title Insurance Company may reasonably require,
such certificate to be reasonably satisfactory to the Agent in form and
substance.
Title Insurance Company. Commonwealth Land Title Insurance Company or
another title insurance company or companies approved by the Agent.
Title Policy. With respect to each parcel of Mortgaged Property, an ALTA
standard form title insurance policy (or, if such form is not available, an
equivalent form of or legally promulgated form of mortgagee title insurance
policy reasonably acceptable to the Agent) issued by a Title Insurance Company
(with such reinsurance or coinsurance as the Agent may require, any such
reinsurance to be with direct access endorsements to the extent available under
applicable law) in such amount as the Agent may require insuring the priority of
the Security Deeds and that the Borrower or an Approved Subsidiary holds
marketable fee simple title to such parcel, subject only to the encumbrances
permitted by the Security Deed and which shall not contain standard exceptions
for mechanics liens, persons in occupancy (other than tenants as tenants only
under Leases) or matters which would be shown by a survey, shall not insure over
any matter except to the extent that any such affirmative insurance is
acceptable to the Agent in their sole discretion and shall contain (a) a
revolving credit endorsement and (b) such other endorsements and affirmative
insurance as the Agent reasonably may require and is available in the State in
which the Real Estate is located, including but not limited to (i) a
comprehensive endorsement, (ii) a variable rate of interest endorsement, (iii) a
usury endorsement, (iv) a doing business endorsement, (v) in States where
available, an ALTA form 3.1 zoning endorsement, (vi) a "tie-in" endorsement and
(vii) a "first loss" endorsement; provided, however, that with respect to
Special Real Estate, the "Title Policy" shall be an owner's policy of title
insurance, in a form satisfactory to the Agent, containing only exceptions
satisfactory to the Agent, supplemented by a current "date down" or "nothing
further" certificate (or if such endorsement or certificate is not available a
current mortgagee's title commitment in favor of the Agent) provided by an
issuer satisfactory to the Agent, evidencing the state of title to the Special
Real Estate, as of a date not earlier than thirty (30) days prior to delivery
thereof to the Agent or such later date as may be required by any other
provision hereof (it being acknowledged that a Title Policy relating to Special
Real Estate shall not be considered in full force and effect if such a current
satisfactory supplement has not been delivered within a period of one year).
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time. As of the date of this Agreement, the Total Commitment is One
Hundred Twenty-Five
22
Million and No/100 Dollars ($125,000,000.00). The Total Commitment may increase
in accordance with Section 2.9.
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.
Under Development. Any Real Estate shall be considered under development
until such time as (i) certificates of occupancy permitting occupancy have been
obtained for all tenants open for business and in any event for not less than
seventy percent (70%) of the gross leasable area of such development (excluding
outlots) or the Borrower has delivered to the Agent other evidence satisfactory
to the Agent indicating that such occupancy of such development is lawful, and
(ii) the gross income from the operation of such Real Estate on an accrual basis
shall have equaled or exceeded operating costs on an accrual basis for three (3)
months.
Unsecured Revolving Loan Agreement. That certain Second Amended and
Restated Unsecured Revolving Loan Agreement among the Borrower, the Guarantor,
Fleet, the other lending institutions that are or become parties thereto, Fleet
in its capacity as agent for itself and the other lending institutions that are
or become parties thereto, and the other parties thereto, dated of even date as
this Agreement, as the same may be amended, modified, renewed, consolidated or
restated.
Unsecured Revolving Loans. All loans and other indebtedness or liabilities
arising under the Unsecured Revolving Loan Agreement and all other loan
documents related thereto.
Voting Interests. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage,
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
SECTION 1.2 RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
23
(f) The words "include", "includes" and "including" are not
limiting.
(g) The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of Michigan, have the meanings
assigned to them therein.
(i) Reference to a particular " Section ", refers to that section of
this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
SECTION 2. THE REVOLVING CREDIT FACILITY.
SECTION 2.1 COMMITMENT TO LEND. Subject to the terms and conditions set
forth in this Agreement, each of the Banks severally agrees to lend to the
Borrower (the "Loans"), and the Borrower may borrow (and repay and reborrow)
from time to time between the Closing Date and the Maturity Date upon notice by
the Borrower to the Agent given in accordance with Section 2.5, such sums as are
requested by the Borrower for the purposes set forth in Section 7.11 up to a
maximum aggregate principal amount Outstanding (after giving effect to all
amounts requested and the amount of Letters of Credit Outstanding) at any one
time equal to the lesser of (a) such Bank's Commitment minus an amount equal to
such Bank's participations in the aggregate Letters of Credit Outstanding and
(b) an amount equal to the Borrowing Base multiplied by such Bank's Commitment
Percentage minus an amount equal to such Bank's participations in the aggregate
Letters of Credit Outstanding; provided, that, in all events no Default or Event
of Default shall have occurred and be continuing; and provided, further that the
Outstanding Loans (after giving effect to all amounts requested) and the Letters
of Credit Outstanding shall not at anytime exceed the Total Commitment. The
Loans shall be made pro rata in accordance with each Bank's Commitment
Percentage. Each request for a Loan hereunder shall constitute a representation
and warranty by the Borrower that all of the conditions set forth in Section 10
and Section 11, in the case of the initial Loan, and Section 11, in the case of
all other Loans, have been satisfied on the date of such request.
SECTION 2.2 UNUSED FACILITY FEE. The Borrower agrees to pay to the Agent
for the account of the Banks in accordance with their respective Commitment
Percentages a facility fee calculated at the rate per annum as set forth below
on the average daily amount by which the Total Commitment exceeds the
Outstanding Loans during each calendar quarter or portion thereof commencing on
the date hereof and ending on the Maturity Date. The facility fee shall be
calculated based on the ratio (expressed as a percentage) of (a) the average
daily amount of the Outstanding Loans during such quarter to (b) the Total
Commitment as follows:
24
Ratio of Outstanding Principal
Balance to Total Commitment Rate
--------------------------- ----
50% or less 0.25%
Greater than 50% 0.125%
The facility fee shall be payable quarterly in arrears on the fifth day of each
calendar quarter for the immediately preceding calendar quarter or portion
thereof, or on any earlier date on which the Commitments shall be reduced or
terminated as provided in Section 2.8, with a final payment on the Maturity
Date.
SECTION 2.3 NOTES. The Loans shall be evidenced by separate promissory
notes of the Borrower in substantially the form of Exhibit A hereto
(collectively, the "Notes"), dated of even date as this Agreement and completed
with appropriate insertions. One Note shall be payable to the order of each Bank
in the principal amount equal to such Bank's Commitment or, if less, the
outstanding amount of all Loans made by such Bank, plus interest accrued thereon
as set forth below. The Borrower irrevocably authorizes Agent to make or cause
to be made, at or about the time of the Drawdown Date of any Loan or at the time
of receipt of any payment of principal thereof, an appropriate notation on
Agent's Record reflecting the making of such Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the Loans set forth on
Agent's Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to each Bank, but the failure to record, or any error in so
recording, any such amount on Agent's Record shall not limit or otherwise affect
the obligations of the Borrower hereunder or under any Note to make payments of
principal of or interest on any Note when due. By delivery of the Notes, there
shall not be deemed to have occurred, and there has not otherwise occurred, any
payment, satisfaction or novation of the indebtedness evidenced by the "Notes"
(as defined in the Prior Credit Agreement), which indebtedness is instead
allocated among the Banks as of the date hereof and evidenced by the Notes in
accordance with their respective Commitment Percentages.
SECTION 2.4 INTEREST ON LOANS.
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on which such
Base Rate Loan is repaid or is converted to a LIBOR Rate Loan at the per annum
rate equal to the sum of the Applicable Margin plus the Base Rate.
(b) Each LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to the sum of
the Applicable Margin plus the LIBOR Rate determined for such Interest Period.
(c) The Borrower promises to pay interest on each Loan to it in
arrears on each Interest Payment Date with respect thereto, or on any earlier
date on which the Commitments shall terminate as provided in Section 2.8. In the
event that any additional interest becomes due and payable for any period with
respect to a Loan as a result of the Applicable Margin being determined based on
the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset
Value or any change in such ratio, and the interest for such period has
25
previously been paid by the Borrower, the Borrower shall pay to the Agent for
the account of the Banks the amount of such increase within ten (10) days of
demand.
(d) Base Rate Loans and LIBOR Rate Loans may be converted to Loans
of the other Type as provided in Section 4.1.
SECTION 2.5 REQUESTS FOR LOANS. The Borrower (i) shall notify the Agent of
a potential request for a Loan as soon as possible prior to the Borrower's
proposed Drawdown Date, and (ii) shall give to the Agent written notice in the
form of Exhibit B hereto (or telephonic notice confirmed in writing in the form
of Exhibit B hereto) of each Loan requested hereunder (a "Loan Request") no less
than three (3) Business Days prior to the proposed Drawdown Date. Each such
notice shall specify with respect to the requested Loan the proposed principal
amount, Drawdown Date, Interest Period (if applicable) and Type. Each such
notice shall also contain (i) a statement as to the purpose for which such
advance shall be or has been used (which purpose shall be in accordance with the
terms of Section 7.11), and (ii) a certification by the chief financial or chief
accounting officer of the general partner of the Borrower and the chief
financial or chief accounting officer of the Guarantor that the Borrower and
Guarantor are and will be in compliance with all covenants under the Loan
Documents after giving effect to the making of such Loan. Notwithstanding
anything in this Section 2.5 to the contrary, the Borrower shall be permitted to
use the proceeds of a Loan to reimburse the Borrower for amounts paid from its
own funds to acquire Real Estate, to develop undeveloped Real Estate (subject to
the restrictions set forth in Section 8.9) or for Capital Improvement Projects
with respect thereto. Promptly upon receipt of any such notice, the Agent shall
notify each of the Banks thereof. Except as provided in this Section 2.5, each
such Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Loan requested from the Banks on the
proposed Drawdown Date, provided that, in addition to the Borrower's other
remedies against any Bank which fails to advance its proportionate share of a
requested Loan, such Loan Request may be revoked by the Borrower by notice
received by the Agent no later than the Drawdown Date if any Bank fails to
advance its proportionate share of the requested Loan in accordance with the
terms of this Agreement, provided further, that the Borrower shall be liable in
accordance with the terms of this Agreement to any Bank which is prepared to
advance its proportionate share of the requested Loan for any costs, expenses or
damages actually incurred by such Bank as a result of the Borrower's election to
revoke such Loan Request. Nothing herein shall prevent the Borrower from seeking
recourse against any Bank that fails to advance its proportionate share of a
requested Loan as required by this Agreement. The Borrower may without cost or
penalty revoke a Loan Request by delivering notice thereof to each of the Banks
no later than three (3) Business Days prior to the Drawdown Date. Each Loan
Request shall be (a) for a Base Rate Loan in the minimum aggregate amount of
$500,000 or an integral multiple of $100,000 in excess thereof, or (b) for a
LIBOR Rate Loan in a minimum aggregate amount of $500,000.00 or an integral
multiple of $100,000 in excess thereof; provided, however, that there shall be
no more than ten (10) LIBOR Rate Loans outstanding at any one time.
SECTION 2.6 FUNDS FOR LOANS.
(a) Not later than 11:00 a.m. (Boston time) on the proposed Drawdown
Date of any Loans, each of the Banks will make available to the Agent, at the
Agent's Head Office, in immediately available funds, the amount of such Bank's
Commitment Percentage of the amount
26
of the requested Loans which may be disbursed pursuant to Section 2.1. Upon
receipt from each Bank of such amount, and upon receipt of the documents
required by Section 10 and Section 11 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Agent will make
available to the Borrower the aggregate amount of such Loans made available to
the Agent by the Banks by crediting such amount to the account of the Borrower
maintained at the Agent's Head Office. The failure or refusal of any Bank to
make available to the Agent at the aforesaid time and place on any Drawdown Date
the amount of its Commitment Percentage of the requested Loans shall not relieve
any other Bank from its several obligation hereunder to make available to the
Agent the amount of such other Bank's Commitment Percentage of any requested
Loans, including any additional Loans that may be requested subject to the terms
and conditions hereof to provide funds to replace those not advanced by the Bank
so failing or refusing, provided that the Borrower may by notice received by the
Agent no later than the Drawdown Date refuse to accept any Loan which is not
fully funded in accordance with the Borrower's Loan Request subject to the terms
of Section 2.5. In the event of any such failure or refusal, the Banks not so
failing or refusing shall be entitled to a priority secured position as against
the Bank or Banks so failing or refusing for such Loans as provided in Section
12.6.
(b) Unless the Agent shall have been notified by any Bank prior to
the applicable Drawdown Date that such Bank will not make available to the Agent
such Bank's pro rata share of a proposed Loan, the Agent may in its discretion
assume that such Bank has made such share of the proposed Loan available to
Agent in accordance with the provisions of this Agreement and the Agent may, if
it chooses, in reliance upon such assumption make such Loan available to
Borrower, and such Bank shall be liable to the Agent for the amount of such
advance. If such Bank does not pay such corresponding amount upon the Agent's
demand therefor, the Agent will promptly notify the Borrower, and the Borrower
shall promptly pay such corresponding amount to the Agent. The Agent shall also
be entitled to recover from the Bank or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to the date
such corresponding amount is recovered by the Agent at a per annum rate equal to
(i) from the Borrower at the applicable rate for such Loan or (ii) from a Bank
at the Federal Funds Effective Rate.
SECTION 2.7 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof and provided that all
of the conditions contained in Sections 10 and 11 have been satisfied, the Agent
agrees to issue Letters of Credit for the account of the Borrower, from the date
of this Agreement to, but not including, the Maturity Date at such times as the
Borrower may request; provided, however, that the aggregate amount of Letters of
Credit (including such requested Letter of Credit) at any one time Outstanding
shall not exceed the lesser of (i) the lesser of (A) the Total Commitment or (B)
the amount of the Borrowing Base, in each case, minus the aggregate amount of
Outstanding Loans (including any amounts drawn under any Letters of Credit and
not yet reimbursed by the Borrower), or (ii) $10,000,000.00. The issuance of a
Letter of Credit pursuant to this Section 2.7(a) shall be deemed to reduce the
aggregate of the unborrowed Commitments of the Banks then in effect by an amount
equal to the undrawn face amount of such Letter of Credit as set forth herein.
In no event shall any amount drawn under a Letter of Credit be available for
reinstatement or a subsequent drawing under a Letter of Credit. Each Bank
severally agrees to
27
participate in each such Letter of Credit issued by the Agent in an amount equal
to its Commitment Percentage of the total amount of the Letter of Credit
requested by the Borrower; provided, however, that no Bank shall be required to
participate in any Letter of Credit to the extent that its participation therein
plus (x) such Bank's participation in the aggregate of all other Letters of
Credit Outstanding, and (y) such Bank's Commitment Percentage of the amount of
any Loans Outstanding (including any amounts drawn under any Letters of Credit
and not yet reimbursed by the Borrower), would exceed an amount equal to such
Bank's Commitment as then in effect. Each Bank agrees with the Agent that it
will participate in each Letter of Credit issued by the Agent to the extent
required by the preceding sentence. No Bank's obligation to participate in a
Letter of Credit shall be affected by any other Bank's failure to participate in
the same or any other Letter of Credit.
(b) The Borrower shall deliver to the Agent at least five (5)
Business Days (or such shorter period as may be agreed to by the Agent in any
particular instance) prior to the proposed issuance date or amendment date of
any Letter of Credit, a Letter of Credit Application signed by the chief
executive, chief financial or chief accounting officer of the general partner of
the Borrower in the form of Exhibit D hereto (a "Letter of Credit Application")
together with a certification by the chief financial or chief accounting officer
of the general partner of the Borrower and the chief financial or chief
accounting officer of Guarantor that the Borrower and Guarantor are and will be
in compliance with all covenants under the Loan Documents after giving effect to
the issuance of such Letter of Credit. Subject to the terms and conditions set
forth in Section 2.7(a) and, unless the Agent is aware that the conditions
precedent to such issuance of a Letter of Credit set forth in Section 11 have
not been satisfied, the Agent will make the requested Letter of Credit available
at the Agent's principal office not later than 4:00 p.m. (Boston time) on the
issuance date, and, immediately upon the issuance of each Letter of Credit, each
Bank shall be deemed to participate in such Letter of Credit to the extent set
forth in Section 2.7(a). Not more than two (2) Business Days after the issuance
of any Letter of Credit, the Agent shall notify each Bank of the amount and
other contents of such Letter of Credit and of the date of issuance. The Agent
shall notify each Bank at least monthly, or at the request of such Bank, of the
amount of all outstanding Letters of Credit.
(c) The chief executive, chief financial or chief accounting officer
of the general partner of the Borrower may request a Letter of Credit on behalf
of the Borrower. The Agent shall be entitled to rely conclusively on such
authorized officer's authority to request a Letter of Credit on behalf of the
Borrower until the Agent receives written notice to the contrary. The Agent
shall have no duty to verify the authenticity of the signature appearing on any
Letter of Credit Application.
(d) Each Letter of Credit Application shall be irrevocable and the
Borrower shall be bound to accept the issuance of a Letter of Credit in
accordance therewith.
(e) All Letters of Credit shall be stated to expire no more than
twelve (12) months from the date of issuance.
(f) In the event that any amount is drawn under a Letter of Credit
by the beneficiary thereof, the Borrower shall reimburse the Agent by having
such amount drawn treated as an outstanding Base Rate Loan under this Agreement
and the Agent shall promptly
28
notify each Bank by telex, telecopy, telegram, telephone (confirmed in writing)
or other similar means of transmission, and each Bank shall promptly and
unconditionally pay to the Agent, for the Agent's own account, an amount equal
to such Bank's Commitment Percentage of such Letter of Credit (to the extent of
the amount drawn). If and to the extent any Bank shall not make such amount
available on the Business Day on which such draw occurs, such Bank agrees to pay
such amount to the Agent forthwith on demand, together with interest thereon,
for each day from the date on which such draw occurred until the date on which
such amount is paid to the Agent, at the Federal Funds Effective Rate until
three (3) days after the date on which the Agent gives notice of such draw and
at the Federal Funds Effective Rate plus 1% for each day thereafter. Further,
such Bank shall be deemed to have assigned any and all payments made of
principal and interest on its Loans, amounts due with respect to its
participations in Letters of Credit and any other amounts due to it hereunder to
the Agent to fund the amount of any drawn Letter of Credit which such Bank was
required to fund pursuant to this Section 2.7(f) until such amount has been
funded (as a result of such assignment or otherwise). In the event of any such
failure or refusal, the Banks not so failing or refusing shall be entitled to a
priority secured position for such amounts as provided in Section 12.6. The
failure of any Bank to make funds available to the Agent in such amount shall
not relieve any other Bank of its obligation hereunder to make funds available
to the Agent pursuant to this Section 2.7(f).
(g) The obligation of the Borrower to reimburse the Agent, and of
the Banks to make payments to the Agent with respect to Letters of Credit, shall
be irrevocable and shall not be subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) Any lack of validity or enforceability of this Agreement,
any Letter of Credit or any of the other Loan Documents;
(ii) The existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting),
the Agent, any Bank or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transactions between the Borrower or any Subsidiary of the Borrower
and the beneficiary named in any Letter of Credit);
(iii) Any draft, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect in the absence of gross negligence or
willful misconduct on the part of the Agent;
(iv) The surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(v) Payment by the Agent under any Letter of Credit against
presentation of a demand, draft or certificate or other document
which does not
29
comply with the terms of such Letter of Credit, provided that such
payment does not constitute gross negligence or willful misconduct
of the Agent;
(vi) Any other circumstance or happening whatsoever which is
similar to any of the foregoing; or
(vii) The occurrence of any Event of Default or Default.
(h) Whenever the Agent receives a reimbursement payment from the
Borrower on account of an amount drawn under a Letter of Credit, as to which the
Agent has received for its own account any payment from the Banks pursuant to
this Section 2.7, then the Agent shall promptly pay to each Bank which has
funded its participation in such Letter of Credit in accordance with this
Section 2.7, in Dollars and in the kind of funds so received, such Bank's share
of such reimbursement payment based on its Commitment Percentage of such Letter
of Credit.
(i) The Borrower shall pay to the Agent for the account of the Banks
(based on their respective Commitment Percentage of Letters of Credit), a fee
equal to the Applicable Margin (expressed as a per annum rate) for LIBOR Rate
Loans then in effect on the face amount of the Letter of Credit calculated
quarterly and payable on the first (1st) day of each January, April, July and
October during the term of such Letter of Credit, with a final payment on the
expiry of termination thereof. The fee for any Letter of Credit with a term of
less than one year (or part of a year) shall be calculated on a pro-rata basis.
In addition, the Borrower shall pay the standard service charges for Letters of
Credit issued from time to time by the Agent including an issuance fee of
$150.00 for each Letter of Credit. Such additional fees shall be paid to the
Agent for its own account. All such fees shall be payable when due in
immediately available funds and shall be nonrefundable.
(j) In addition to amounts payable as elsewhere provided in this
Section 2.7, the Borrower hereby agrees to pay, and to protect, indemnify and
save harmless the Agent and the Banks from and against, any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal counsel) which the
Agent and the Banks may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of or participations in the Letters of Credit,
other than as a result of the gross negligence or willful misconduct of the
Agent or any Bank as determined by a court of competent jurisdiction, or (ii)
the failure of the Agent to honor a drawing under any Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future government or governmental authority (all such acts or omissions herein
called "Government Acts"). The obligations of the Borrower under this Section
2.7 shall survive the termination of this Agreement and the discharge of the
Borrower's other obligations hereunder, including the Obligations.
(k) As between (i) the Borrower and (ii) the Agent and the Banks,
the Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by the Agent by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Agent nor any Bank shall be responsible: (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of such Letters of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or
30
forged; (ii) for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or the right
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) for failure of the
beneficiary of any Letter of Credit to comply fully with conditions required in
order to draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for
errors in interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of any Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Agent or any Bank, including, without
limitation, any Government Acts; provided, however, that the Agent will be
responsible for grossly negligent actions or willful misconduct on its part.
None of the above shall affect, impair, or prevent the vesting of any of the
Agent's or any Bank's rights or powers hereunder.
(l) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Agent under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith shall not put the Agent
or any Bank under any resulting liability to the Borrower other than as a result
of gross negligence or willful misconduct by the Agent as determined by a court
of competent jurisdiction.
(m) If after the issuance of a Letter of Credit, but prior to the
funding of any portion thereof by a Bank, one of the events described in Section
12.1(g), (h) or (i) shall have occurred, each Bank will, on the date such Loan
pursuant to Section 2.7(f) was to have been made, purchase an undivided
participating interest in the Letter of Credit in an amount equal to its
Commitment Percentage of the amount of such Letter of Credit. Each Bank will
immediately transfer to the Agent in immediately available funds the amount of
its participation and upon receipt thereof the Agent will deliver to such Bank a
Letter of Credit participation certificate dated the date of receipt of such
funds and in such amount.
(n) If any Letter of Credit shall be outstanding at the Maturity
Date, the Borrower shall immediately cash collateralize such Letters of Credit
or obtain replacement letters of credit for such Letter of Credit (and return to
Agent such outstanding Letters of Credit), all in a manner satisfactory to the
Agent.
SECTION 2.8 OPTIONAL REDUCTION OF COMMITMENTS. The Borrower shall have the
right at any time and from time to time upon three Business Days' prior written
notice to the Agent to reduce by $5,000,000.00 or an integral multiple of
$1,000,000.00 in excess thereof (provided that in no event shall the aggregate
Commitments be reduced to an amount less than $75,000,000.00) or to terminate
entirely the unborrowed portion of the Commitments, whereupon the Commitments of
the Banks shall be reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or, as the case
may be, terminated, any such reduction to be without penalty. Promptly after
receiving any notice of the Borrower delivered pursuant to this Section 2.8, the
Agent will notify the Banks of the substance thereof. Upon the effective date of
any such termination in full, the Borrower shall pay to the Agent for the
respective accounts of
31
the Banks the full amount of any facility fee under Section 2.2 then accrued. No
reduction or termination of the Commitments may be reinstated. Any reduction of
the Commitments pursuant to this Agreement shall be allocated pro rata among the
Banks in accordance with their Commitment Percentages.
SECTION 2.9 INCREASE OF COMMITMENT.
(a) Provided that no Default or Event of Default shall have occurred
and be continuing, the Borrower shall have the option, by giving written notice
to the Agent on or before June 30, 2004 (the "Increase Notice"), subject to the
terms and conditions set forth in this Agreement, to increase the Total
Commitment by an amount up to $25,000,000 (the amount of the requested increase
to be set forth in the Increase Notice) (which, assuming no previous reduction
in the Commitments, would result in a maximum Total Commitment of $150,000,000).
The execution and delivery of the Increase Notice by Borrower shall constitute a
representation and warranty by the Borrower that all the conditions set forth in
this Section 2.9 shall have been satisfied on the date of such Increase Notice.
(b) The obligation of the Agent and the Banks to increase the Total
Commitment pursuant to this Section 2.9 shall be conditioned upon satisfaction
of the following conditions precedent which must be satisfied prior to the
effectiveness of any increase of the Total Commitment.
(i) Payment of Activation Fee. The Borrower shall pay to the Agent
such fees as Agent and the Banks may require to increase the aggregate
Commitment, which fees shall, when paid, be fully earned and non-refundable
under any circumstances. The Agent shall pay to the Banks acquiring the
increased Commitment certain fees pursuant to their separate agreement; and
(ii) No Default. On the date such Increase Notice is given and on
the date such increase becomes effective, both immediately before and after the
Commitment is increased, there shall exist no Default or Event of Default; and
(iii) Representations and Warranties. The representations and
warranties made by the Borrower, Guarantor, or the Subsidiary Guarantors in the
Loan Documents or otherwise made by or on behalf of the Borrower, Guarantor, or
the Subsidiary Guarantors or any of their respective Subsidiaries in connection
therewith or after the date thereof shall have been true and correct in all
material respects, when made and shall also be true and correct in all material
respects on the date of such Increase Notice and on the date the Total
Commitment is increased, both immediately before and after the Total Commitment
is increased; and
(iv) Additional Documents and Fees. The Borrower shall also execute
and deliver to Agent and the Banks such additional documents, instruments,
certifications and opinions as the Agent may require in its sole and absolute
discretion, including, without limitation, a Compliance Certificate,
demonstrating compliance with all covenants, representations and warranties set
forth in the Loan Documents after giving effect to the increase, and any Special
Security Documents or amendments to Security Documents, as Agent may request,
and the Borrower shall upon demand pay the cost of any mortgagee's title
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insurance policy or any endorsement or update thereto or any updated UCC
searches, all recording costs and fees, and any and all intangible taxes or
other documentary or mortgage taxes, assessments or charges or any similar fees,
taxes or expenses which are demanded in connection with such increase; and
(v) Assignments. One or more Banks or potential assignees shall have
agreed to acquire the portion of the Commitment that Borrower desires to
activate, provided, however, no Bank (including, specifically, but without
limitation, Fleet) shall be obligated to acquire such increase without the
express written consent of such Bank, which consent may be withheld in such
Bank's sole and absolute discretion; and
(vi) Other. The Borrower shall satisfy such other conditions to such
increase as Agent may require in its reasonable discretion.
(c) Upon satisfaction of the terms and conditions set forth above,
the amount set forth in the Increase Notice shall become a part of the
Commitment and Total Commitment and be available to be disbursed subject to the
terms of this Agreement, and, subject to the payment of any breakage costs
pursuant to Section 4.8, the Banks shall make such adjustments to the
outstanding Loans of such Banks, so that, after giving effect to such increase,
the outstanding Loans are consistent with their pro-rata share.
SECTION 3. REPAYMENT OF THE LOANS.
SECTION 3.1 STATED MATURITY. The Borrower promises to pay on the Maturity
Date and there shall become absolutely due and payable on the Maturity Date all
of the Loans outstanding on such date, together with any and all accrued and
unpaid interest thereon.
SECTION 3.2 MANDATORY PREPAYMENTS. If at any time the aggregate of the
Outstanding Loans and Letters of Credit Outstanding exceeds (a) the Total
Commitment, or (b) the Borrowing Base, then the Borrower shall pay the amount of
such excess to the Agent for the respective accounts of the Banks for
application to the Loans within the time period provided for in Section 12.3,
subject to the Borrower's right to provide additional Collateral pursuant to
Section 12.2.
SECTION 3.3 OPTIONAL PREPAYMENTS. The Borrower shall have the right, at
its election, to prepay the outstanding amount of the applicable Loans, as a
whole or in part, at any time without penalty or premium; provided, that the
full or partial prepayment of the outstanding amount of any LIBOR Rate Loans
pursuant to this Section 3.3 may be made only on the last day of the Interest
Period relating thereto except as otherwise required pursuant to Section 4.7.
The Borrower shall give the Agent, no later than 10:00 a.m., Boston time, at
least five (5) Business Days' prior written notice of any prepayment pursuant to
this Section 3.3, in each case specifying the proposed date of payment of Loans
and the principal amount to be paid.
SECTION 3.4 PARTIAL PREPAYMENTS. Each partial prepayment of the Loans
under Section 3.2 and Section 3.3 shall be an integral multiple of $100,000,
shall be accompanied by the payment of accrued interest on the principal prepaid
to the date of payment and, after payment of such interest, shall be applied, in
the absence of instruction by the Borrower, first to the principal of Base Rate
Loans and then to the principal of LIBOR Rate Loans.
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SECTION 3.5 EFFECT OF PREPAYMENTS. Amounts of the Loans prepaid under
Section 3.2, Section 3.3 and Section 3.6 or out of any casualty or condemnation
proceeds prior to the Maturity Date may be reborrowed as provided in Section 2.
SECTION 3.6 PROCEEDS FROM DEBT OR EQUITY OFFERING. At the option of the
Majority Banks, the Borrower shall cause any Net Offering Proceeds to be paid by
the Borrower or the Guarantor to the Agent for the account of the Banks as a
prepayment of the Loans to the Borrower or which are guaranteed by the Guarantor
within ten (10) days of the date of such offering to the extent of the
outstanding balance of such Loans; provided that so long as no Default or Event
of Default has occurred and is continuing or would occur as a result of such
payment, the Net Offering Proceeds of any Equity Offering may be used to prepay
the Unsecured Revolving Loans.
SECTION 4. CERTAIN GENERAL PROVISIONS.
SECTION 4.1 CONVERSION OPTIONS.
(a) The Borrower may elect from time to time to convert any of its
outstanding Loans to a Loan of another Type and such Loan shall thereafter bear
interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable; provided that
(i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the Borrower shall give the Agent at least three (3) Business Days' prior
written notice of such election, and such conversion shall only be made on the
last day of the Interest Period with respect to such LIBOR Rate Loan; (ii) with
respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan the
Borrower shall give the Agent at least four (4) LIBOR Business Days' prior
written notice of such election and the Interest Period requested for such Loan,
the principal amount of the Loan so converted shall be in a minimum aggregate
amount of $2,000,000 or an integral multiple of $100,000 in excess thereof and,
after giving effect to the making of such Loan there shall be no more than ten
(10) LIBOR Rate Loans outstanding at any one time; and (iii) no Loan may be
converted into a LIBOR Rate Loan when any Default or Event of Default has
occurred and is continuing. All or any part of the outstanding Loans of any Type
may be converted as provided herein, provided that no partial conversion shall
result in a Base Rate Loan in an aggregate principal amount of less than
$1,000,000 or a LIBOR Rate Loan in an aggregate principal amount of less than
$2,000,000 and that the aggregate principal amount of each Loan shall be in an
integral multiple of $100,000. On the date on which such conversion is being
made, each Bank shall take such action as is necessary to transfer its
Commitment Percentage of such Loans to its Domestic Lending Office or its LIBOR
Lending Office, as the case may be. Each Conversion Request relating to the
conversion of a Base Rate Loan to a LIBOR Rate Loan shall be irrevocable by the
Borrower.
(b) Any Loan may be continued as such Type upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with the
terms of Section 4.1(a); provided that no LIBOR Rate Loan may be continued as
such when any Default or Event of Default has occurred and is continuing, but
shall be automatically converted to a Base Rate Loan on the last day of the
Interest Period relating thereto ending during the continuance of any Default or
Event of Default.
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(c) In the event that the Borrower does not notify the Agent of its
election hereunder with respect to any Loan to it, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
SECTION 4.2 COMMITMENT AND SYNDICATION FEE. The Borrower shall pay to
Fleet, the other Banks and Arranger certain fees for services rendered or to be
rendered in connection with the Loan as provided pursuant to the Agreement
Regarding Fees dated of even date herewith between the Borrower and Fleet.
SECTION 4.3 AGENT'S FEE. The Borrower will pay to the Agent, for the
Agent's own account, an annual Agent's fee calculated at the rate, and payable
at such times as are, set forth in the Agreement Regarding Fees referred to in
Section 4.2.
SECTION 4.4 FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, unused facility fees,
Agent's fees, Letter of Credit fees, closing fees and any other amounts due
hereunder or under any of the other Loan Documents shall be made to the Agent,
for the respective accounts of the Banks and the Agent, as the case may be, at
the Agent's Head Office, not later than 1:00 p.m. (Boston time) on the day when
due, in each case in lawful money of the United States in immediately available
funds. The Agent is hereby authorized to charge the accounts of the Borrower
with Fleet designated by the Borrower, on the dates when the amount thereof
shall become due and payable, with the amounts of the principal of and interest
on the Loans and all fees, charges, expenses and other amounts owing to the
Agent and/or the Banks under the Loan Documents.
(b) All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, restrictions or conditions of
any nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If any such
obligation is imposed upon the Borrower with respect to any amount payable by
them hereunder or under any of the other Loan Documents, the Borrower will pay
to the Agent, for the account of the Banks or (as the case may be) the Agent, on
the date on which such amount is due and payable hereunder or under such other
Loan Document, such additional amount in Dollars as shall be necessary to enable
the Banks or the Agent to receive the same net amount which the Banks or the
Agent would have received on such due date had no such obligation been imposed
upon the Borrower. The Borrower will deliver promptly to the Agent certificates
or other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under such other Loan
Document.
SECTION 4.5 COMPUTATIONS. All computations of interest on the Loans and of
other fees to the extent applicable shall be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to LIBOR Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such
35
extension. The outstanding amount of the Loans as reflected on the records of
the Agent from time to time shall be considered prima facie evidence of such
amount.
SECTION 4.6 INABILITY TO DETERMINE LIBOR RATE. In the event that, prior to
the commencement of any Interest Period relating to any LIBOR Rate Loan, the
Agent shall reasonably determine that adequate and reasonable methods do not
exist for ascertaining the LIBOR Rate for such Interest Period, the Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower and the Banks) to the Borrower and the Banks. In such
event (a) any Loan Request with respect to LIBOR Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans and
(b) each LIBOR Rate Loan will automatically, on the last day of the then current
Interest Period thereof, become a Base Rate Loan, and the obligations of the
Banks to make LIBOR Rate Loans shall be suspended until the Agent determines
that the circumstances giving rise to such suspension no longer exist, whereupon
the Agent shall so notify the Borrower and the Banks.
SECTION 4.7 ILLEGALITY. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the interpretation
or application thereof shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over a Bank or its LIBOR Lending
Office shall assert that it is unlawful, for any Bank to make or maintain LIBOR
Rate Loans, such Bank shall forthwith give notice of such circumstances to the
Agent and the Borrower and thereupon (a) the commitment of the Banks to make
LIBOR Rate Loans or convert Loans of another type to LIBOR Rate Loans shall
forthwith be suspended and (b) the LIBOR Rate Loans then outstanding shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law.
SECTION 4.8 ADDITIONAL INTEREST. If any LIBOR Rate Loan or any portion
thereof is repaid, reapportioned as a result of an increase in the Total
Commitment as contemplated in Section 2.9(c) or converted to a Base Rate Loan
for any reason on a date which is prior to the last day of the Interest Period
applicable to such LIBOR Rate Loan, or if repayment of the Loans has been
accelerated as provided in Section 12.1, the Borrower will pay to the Agent upon
demand (and, if any payment is required as a result of an increase in the Total
Commitment, prior to the effectiveness of any such increase) for the account of
the Banks in accordance with their respective Commitment Percentages, in
addition to any amounts of interest otherwise payable hereunder, any amounts
required to compensate the Banks for any losses, costs or expenses which may
reasonably be incurred as a result of such payment, reapportionment or
conversion, including, without limitation, an amount equal to daily interest for
the unexpired portion of such Interest Period on the LIBOR Rate Loan or portion
thereof so repaid, reapportioned or converted at a per annum rate equal to the
excess, if any, of (a) the interest rate calculated on the basis of the LIBOR
Rate applicable to such LIBOR Rate Loan minus (b) the yield obtainable by the
Agent upon the purchase of debt securities customarily issued by the Treasury of
the United States of America which have a maturity date most closely
approximating the last day of such Interest Period (it being understood that the
purchase of such securities shall not be required in order for such amounts to
be payable and that a Bank shall not be obligated or required to have actually
obtained funds at the LIBOR Rate or to have actually reinvested such amounts as
described above). Such amount shall be reduced to present value by using the
rate on the United States
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Treasury securities described in the foregoing sentence and the number of days
remaining in the unexpired portion of the Interest Period in question.
SECTION 4.9 ADDITIONAL COSTS, ETC. Notwithstanding anything herein to the
contrary, if any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any governmental or other
regulatory body or official with appropriate jurisdiction charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment, the Loans or the
Letters of Credit (other than taxes based upon or measured by the income or
profits of such Bank or the Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or the
interest on any Loans or any other amounts payable to any Bank under this
Agreement or the other Loan Documents, or
(c) impose or increase or render applicable any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or deposits in
or for the account of, or loans by, or commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, the Letters of Credit, such Bank's Commitment, or any class of loans or
commitments of which any of the Loans or such Bank's Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans, the
Letters of Credit or such Bank's Commitment, or
(ii) to reduce the amount of principal, interest or other
amount payable to such Bank or the Agent hereunder on account of
such Bank's Commitment or any of the Loans or the Letters of Credit,
or
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or other sum payable hereunder, the amount of
which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed
received by such Bank or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will within fifteen (15) days after
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent such additional amounts as such
37
Bank or the Agent shall determine in good faith to be sufficient to compensate
such Bank or the Agent for such additional cost, reduction, payment or foregone
interest or other sum. Each Bank and the Agent in determining such amounts may
use any reasonable averaging and attribution methods, generally applied by such
Bank or the Agent.
SECTION 4.10 CAPITAL ADEQUACY. If after the date hereof any Bank
determines that (a) the adoption of or change in any law, rule, regulation or
guideline regarding capital requirements for banks or bank holding companies or
any change in the interpretation or application thereof by any governmental
authority charged with the administration thereof, or (b) compliance by such
Bank or its parent bank holding company with any guideline, request or directive
of any such entity regarding capital adequacy (whether or not having the force
of law), has the effect of reducing the return on such Bank's or such holding
company's capital as a consequence of such Bank's commitment to make Loans or
participate in Letters of Credit hereunder to a level below that which such Bank
or holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or such holding company's then
existing policies with respect to capital adequacy and assuming the full
utilization of such entity's capital) by any amount deemed by such Bank to be
material, then such Bank may notify the Borrower thereof. The Borrower agrees to
pay to such Bank the amount of such reduction in the return on capital as and
when such reduction is determined, upon presentation by such Bank of a statement
of the amount and setting forth such Bank's calculation thereof. In determining
such amount, such Bank may use any reasonable averaging and attribution methods.
SECTION 4.11 INDEMNITY OF BORROWER. The Borrower agrees to indemnify each
Bank and to hold each Bank harmless from and against any loss, cost or expense
that such Bank may sustain or incur as a consequence of (a) default by the
Borrower in payment of the principal amount of or any interest on any LIBOR Rate
Loans as and when due and payable, including any such loss or expense arising
from interest or fees payable by such Bank to lenders of funds obtained by it in
order to maintain its LIBOR Rate Loans, or (b) default by the Borrower in making
a borrowing or conversion after the Borrower has given (or is deemed to have
given) a Loan Request or a Conversion Request.
SECTION 4.12 INTEREST ON OVERDUE AMOUNTS; LATE CHARGE. Overdue principal
on the Loans and all other overdue amounts payable hereunder or under any of the
other Loan Documents (other than interest on the Loans) shall, following the
expiration of any applicable cure period expressly provided for in this
Agreement, bear interest payable on demand at a rate per annum equal to two
percent (2.0%) above the rate that would otherwise be applicable at such time
until such amount shall be paid in full (after as well as before judgment).
Overdue interest on the Loans shall, following the expiration of any applicable
cure period expressly provided for in this Agreement, bear interest payable on
demand at a rate equal to the lesser of (i) a per annum rate equal to two
percent (2.0%) above the rate that would otherwise be applicable at such time or
(ii) the maximum annual rate of interest permitted by applicable law until such
amount shall be paid in full (after as well as before judgment). In addition,
the Borrower shall pay a late charge equal to four percent (4.0%) of any amount
of interest and/or principal payable on the Loans or any other amounts payable
hereunder or under the Loan Documents, which is not paid by the Borrower within
fifteen (15) days after the same shall become due and payable.
38
SECTION 4.13 HLT CLASSIFICATION. The Banks acknowledge that as of the date
hereof neither the Commitments nor the Loans are classified as "highly leveraged
transactions". Notwithstanding the foregoing, if after the date hereof, the
Agent determines, or is advised by any Bank that such Bank has determined or has
received notice from any governmental authority, central bank or comparable
agency having jurisdiction over such Bank, that any of the Commitments or Loans
are classified as a "highly leveraged transaction" (an "HLT Classification")
pursuant to any existing regulations regarding "highly leveraged transactions"
or any modification, amendment or interpretation thereof, or the adoption of new
regulations regarding "highly leveraged transactions" after the date hereof by
any governmental authority, central bank or comparable agency, the Agent shall
promptly give notice of such HLT Classification to the Borrower and the Banks
(which date is hereafter referred to as the "HLT Notice Date"). The Agent, the
Banks and the Borrower shall thereupon commence negotiations in good faith to
agree on the extent to which fees, interest rates and/or margins hereunder
should be increased so as to reflect such HLT Classification. If the Borrower
and the Majority Banks agree on the amount of such increase or increases, this
Agreement shall be promptly amended to give effect to such increase or
increases. If the Borrower and the Majority Banks fail to so agree and the
Borrower has failed to refinance the Loans within ninety (90) days after the HLT
Notice Date, then the Agent shall, if so requested by the Majority Banks, by
notice to the Borrower terminate the Commitments and accelerate the maturity
date of the Loans and the Loans shall become due and payable in full on the date
specified in such notice, which date shall be not earlier than one hundred
eighty (180) days after the HLT Notice Date. The Agent and the Banks acknowledge
that an HLT Classification is not a Default or an Event of Default.
SECTION 4.14 CERTIFICATE. A certificate setting forth any amounts payable
pursuant to Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section 4.12
or Section 4.13 and a brief explanation of such amounts which are due, submitted
by any Bank or the Agent to the Borrower, shall be conclusive in the absence of
manifest error.
SECTION 4.15 LIMITATION ON INTEREST. Notwithstanding anything in this
Agreement to the contrary, all agreements between the Borrower and the Banks and
the Agent, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of
acceleration of the maturity of any of the Obligations or otherwise, shall the
interest contracted for, charged or received by the Banks exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Banks in excess of the maximum lawful
amount, the interest payable to the Banks shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance the Banks shall
ever receive anything of value deemed interest by applicable law in excess of
the maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal balance of the Obligations of the
Borrower and to the payment of interest or, if such excessive interest exceeds
the unpaid balance of principal of the Obligations of the Borrower, such excess
shall be refunded to the Borrower. All interest paid or agreed to be paid to the
Banks shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full period until payment in full of the
principal of the Obligations of the Borrower (including the period of any
renewal or extension thereof) so that the interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law. This section
shall control all agreements between the Borrower and the Banks and the Agent.
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SECTION 5. COLLATERAL SECURITY.
SECTION 5.1 COLLATERAL. The Obligations of the Borrower and the Hedge
Obligations shall be secured by (i) a perfected first priority lien or security
title to be held by the Agent for the benefit of the Banks in the Mortgaged
Property, Building Service Equipment and other personal property of the Borrower
and any Approved Subsidiary, pursuant to the terms of the Security Deeds, (ii) a
perfected first priority security interest to be held by the Agent for the
benefit of the Banks in the Leases pursuant to the Assignments of Rents and
Leases from the Borrower and any Approved Subsidiary and (iii) the Indemnity
Agreement; provided, however, that the security interest in Special Real Estate
and rents generated therefrom shall be perfected only as provided in Section
5.8. The Obligations shall also be guaranteed pursuant to the terms of the
Guaranty and the Subsidiary Guaranty.
SECTION 5.2 APPRAISALS.
(a) The Agent on behalf of the Banks shall require biennial
Appraisals of each of the Mortgaged Properties, which will be ordered by the
Agent and reviewed and approved by the appraisal department of the Agent, in
order to determine the current Appraised Value and Borrowing Base of the
Mortgaged Property, and the Borrower shall pay to the Agent on demand all
reasonable costs of all such Appraisals relating to the Mortgaged Property of
the Borrower; provided, however, that so long as (i) no Default or Event of
Default shall have occurred and be continuing, (ii) regulatory requirements of
any Bank generally applicable to real estate loans of the category made under
this Agreement as reasonably interpreted by such Bank shall not require more
frequent Appraisals and (iii) there has been no material change in the market
for the leasing of any of the Mortgaged Properties as reasonably determined by
the Agent, the Borrower shall not be required to pay for Appraisals for a
particular Mortgaged Property more often than once in any twenty-four (24) month
period, with the result that unless any such condition shall occur the first
Appraisals of a Mortgaged Property for which the Borrower shall be financially
responsible shall not be required prior to the date which is twenty-four (24)
months from the date of the Appraisal for such Mortgaged Property delivered to
the Agent pursuant to this Agreement or the Prior Credit Agreement.
Notwithstanding the foregoing provisions, however, in the event of a material
change of the type referred to in clause (iii), the Borrower shall not be
required to pay for Appraisals of the affected Mortgaged Property or Mortgaged
Properties more often than once in any twelve (12) month period.
(b) Notwithstanding the provisions of Section 5.2(a), the Agent may,
for the purpose of determining the current Appraised Value and Borrowing Base of
the applicable Mortgaged Properties, perform annual internal studies updating
and revising prior Appraisals with respect to the Mortgaged Properties or such
portion thereof as the Agent shall determine at any time (including, without
limitation, following a release of a Mortgage Property) following (i) the
occurrence of an event or condition which, in the reasonable judgment of the
Agent, constitutes a material adverse change with respect to a Mortgaged
Property or presents a reasonable likelihood that such a change shall occur in
the future or (ii) a condemnation of or uninsured casualty to a Mortgaged
Property (provided that any such Appraisal as a result of an event or condition
described in clause (i) or (ii) shall be limited to the affected Mortgaged
Property). The expense of such Appraisals and updates performed pursuant to this
Section 5.2(b) shall be borne by the
40
Borrower, provided that the Borrower shall not be required to pay for any update
pursuant to Section 5.2(b)(i) more often than once in any twelve (12) month
period.
(c) In the event that the Agent shall advise the Borrower, on the
basis of any Appraisal or update pursuant to Section 5.2, that the Borrower's
Borrowing Base is insufficient to comply with the requirements of Section 9.1,
then until such Borrowing Base shall be restored to compliance with Section 9.1
the Banks shall not be required to make advances under Section 2.1 or
participate in any Letters of Credit under Section 2.7.
SECTION 5.3 RELEASE OF COLLATERAL.
(a) Upon termination of this Agreement and the Commitment of the
Banks to make Loans and to participate in Letters of Credit hereunder, the
payment in full of all of the Obligations and compliance by the Borrower with
the terms of Section 2.7(n), the Agent, on behalf of the Banks, shall release
the Collateral, provided that Agent has not received notice from a
"Representative" (as defined in Section 14.12) or the holder of the Hedge
Obligations that any Hedge Obligation is then due and payable to the holder
thereof (or in the event any Hedge Obligation is then due and payable, Agent has
received from the holder of such Hedge Obligation notice that such holder has
obtained other collateral for such Hedge Obligation satisfactory to such
holder), and shall execute such instruments of release as the Borrower and its
counsel may reasonably request.
(b) Provided no Default or Event of Default shall have occurred
hereunder and be continuing (or would exist immediately after giving effect to
the transactions contemplated by this Section 5.3), the Agent shall release a
Mortgaged Property from the lien or security title of the Security Documents
encumbering the same upon the request of the Borrower subject to and upon the
following terms and conditions:
(i) the Borrower shall deliver to the Agent written notice of
its desire to obtain such release no later than ten (10) days prior
to the date on which such release is to be effected;
(ii) the Borrower shall submit to the Agent with such request
a Compliance Certificate prepared using the financial statements of
the Borrower and Guarantor most recently provided or required to be
provided to the Agent under Section 6.4 or Section 7.4 adjusted in
the best good faith estimate of the Borrower to give effect to the
proposed release and demonstrating that no Default or Event of
Default with respect to the covenants in this Agreement shall exist
after giving effect to such release;
(iii) all release documents to be executed by the Agent shall
be in form and substance reasonably satisfactory to the Agent;
(iv) the Borrower shall pay all reasonable costs and expenses
of the Agent in connection with such release, including without
limitation, reasonable attorney's fees;
41
(v) the Borrower shall pay to the Agent for the account of the
Banks a release price, which payment shall be applied to reduce the
outstanding principal balance of the Loans, in an amount equal to
the amount which is necessary to reduce the outstanding principal
balance of the Loans so that no Default or Event of Default shall
exist under Section 9 following such release; and
(vi) Agent has received the prior written consent of the
Releasing Banks;
provided, however, in the event that Agent does not receive the prior written
consent of the Releasing Banks but all other conditions set forth in this
Section 5.3(b) have been satisfied and both (A) at the time of the Borrower's
request for such release and after giving effect to the requested release the
aggregate Appraised Values of the remaining Mortgaged Properties is equal to or
greater than $160,000,000 and (B) after giving effect to the requested release
the remaining Mortgaged Properties would have an aggregate occupancy level of at
least eighty-five percent (85%) on a pro forma basis based on bona fide arm's
length Leases requiring current rental payments which are not in default and the
premises to which such Leases relate are being operated by the original tenants
under such Leases, the Borrower shall be entitled to obtain the release of such
Mortgaged Property.
SECTION 5.4 SUBSTITUTION OF MORTGAGED PROPERTY. Any requested substitution
by the Borrower of any Real Estate for any Mortgaged Property shall require the
consent of the Majority Banks and shall require the completion and delivery to
the Agent, for the benefit of the Banks, of the Eligible Real Estate
Qualification Documents and, from and after July 1, 2003, the payment to the
Agent, for the benefit of the Banks, of a substitution fee of $10,000 to be
split equally by the Banks, without regard to their respective Commitment
Percentages. It is acknowledged and agreed that the foregoing fee is intended to
compensate the Banks for their travel and internal due diligence review, and
that the Borrower shall remain liable for the payment of all of the Agent's
other costs associated with such substitution, including, but not limited to,
appraisal fees, legal costs and costs of environmental, engineering and
structural studies. No substitution fee shall be payable with respect to the
substitution of any Mortgaged Property occurring on or before June 30, 2003.
SECTION 5.5 ADDITION OF MORTGAGED PROPERTIES.
(a) The Borrower shall have the right, subject to the consent of the
Majority Banks which may be withheld by the Majority Banks in their sole and
absolute discretion, to add to the Collateral, any other Real Estate which is
owned by the Borrower or an Approved Subsidiary and which is not security for
any other Indebtedness. Such addition shall be completed by the completion and
delivery to the Agent for the benefit of the Banks of each of the Eligible Real
Estate Qualification Documents. Such Real Estate shall be Eligible Real Estate,
shall be satisfactory to the Majority Banks in all respects and shall have a
Borrowing Base amount attributable thereto by the Agent so as to cause the
Borrower to continue to be in compliance with all covenants contained in this
Agreement. In the event that the Borrower desires for such Real Estate to be
Special Real Estate, the Borrower shall deliver such evidence as the Agent may
require indicating that it is not feasible for such Real Estate to be Regular
Real Estate upon the transfer and amendment and restatement of any existing loan
documents which
42
may encumber such Real Estate, and such Real Estate may not be Special Real
Estate without the approval of the Agent.
(b) From and after July 1, 2003, in connection with each such
addition to increase the Borrowing Base or to replace a Mortgaged Property
except for the reasons set forth in Section 5.6, the Borrower, within fifteen
(15) days of the Borrower's request to add such Real Estate to the Collateral,
shall pay to the Agent for the account of the Banks a review fee of $10,000.00
for each parcel of Real Estate to be added to be split equally by the Banks,
without regard to their respective Commitment Percentages. No review fee shall
be payable with respect to the addition or replacement of a Mortgaged Property
occurring on or before June 30, 2003.
(c) In the event that Borrower shall desire to convert any Special
Real Estate to Regular Real Estate, as a condition to such conversion, Borrower
shall deliver to Agent such additional or updated Eligible Real Estate
Qualification Documents as Agent may request.
SECTION 5.6 MANDATORY INCREASE IN BORROWING BASE. At all times when the
portion of the Borrowing Base attributable to Regular Real Estate (without
taking into account any Borrowing Base attributable to Special Real Estate) is
less than the Total Commitment (including any increase in such Total
Commitment), all Real Estate located outside of New York, Florida, Maryland or
such other states in which Special Real Estate is located with the approval of
the Agent which is purchased or developed with proceeds of Loans or any Equity
Offering or which has been encumbered by Indebtedness which is repaid with
proceeds of Loans shall be immediately mortgaged or conveyed to the Agent for
the benefit of the Banks, and the Borrower shall promptly cause the same to
become Eligible Real Estate; provided that the Borrower shall take commercially
reasonable steps to cause any lender holding a lien on Real Estate located in
New York, Florida, Maryland or such other states in which Special Real Estate is
located with the approval of the Agent that is acquired by the Borrower to
transfer such Indebtedness and related loan documents to the Agent, and to amend
and restate the same to allow the Agent to record a Security Deed against such
Real Estate, and in such event such Real Estate may not be Special Real Estate.
SECTION 5.7 NON-ENCUMBRANCE. Without implying any limitation upon the
generality of Section 8.2, the Borrower will not, and will not permit any other
Person to, create or incur or suffer to be created or incurred or to exist any
lien, encumbrance, mortgage, pledge, negative pledge, change, restriction or
other security interest of any kind upon any Special Real Estate encumbered by
any Special Security Documents (whether now owned or hereafter acquired), except
for matters set forth in Title Policies relating to such Special Real Estate
submitted to and approved by the Agent.
SECTION 5.8 SPECIAL SECURITY DOCUMENTS. The Special Security Documents
have been delivered and are effective or shall be effective upon the future
delivery thereof, but shall not be recorded until the occurrence of an Event of
Default. Upon the occurrence of an Event of Default, the Agent may, and upon the
direction of the Majority Banks, shall, record the Special Security Documents in
the public records without any further action of or notice to the Borrower or
any other party and without waiving such Event of Default; provided, however,
that if such Event of Default exists solely as a result of default described in
Section 12.1(b), the Agent shall give the Borrower two (2) Business Days notice
prior to the recordation of the Security Documents. In
43
addition, the Borrower shall promptly deliver or cause to be delivered to the
Agent such further documents as may be reasonably requested by the Agent
relating to such Real Estate, including without limitation, owner's affidavits,
updated legal opinions and copies of leases and such changes to the Special
Security Documents as may be necessary or desirable to comply with changes in
applicable law. In connection with the recording of the Special Security
Documents, the Agent may obtain, at the Borrower's sole cost and expense, a
mortgagee's title insurance policy with respect to each parcel of Special Real
Estate encumbered by such Special Security Documents in such amount as is
determined by the Agent. The Borrower shall upon demand pay the cost of any such
mortgagee's title insurance policy, the cost of any updated UCC searches, all
recording costs and fees, and any and all intangible taxes or other documentary
or mortgage taxes, assessments or charges which are demanded in connection with
the recording of any of the Special Security Documents. In addition, the
Borrower shall pay within five (5) days after demand any and all costs, fees,
intangible tax, documentary or mortgage tax, assessments or charges as are
demanded by any governmental authority by reason of the Special Security
Documents prior to the recording of the same. In the event that the Borrower
fails to pay such amounts as provided in this section, then the Banks may
advance such amounts as are required to be paid as Loans hereunder, which Loans
shall bear interest at the rate for overdue payments set forth in this
Agreement. The Agent and the Banks agree that, provided no Default or Event of
Default shall have theretofore occurred hereunder or under any of the other Loan
Documents, Agent shall, within five (5) days of the receipt of written request
from the Borrower, release the Special Real Estate from the lien of the Special
Security Documents and return the Special Security Documents to the Borrower;
provided, however, the Agent shall not be obligated to release the Special Real
Estate or return the Special Security Documents if, as a result of the release
of the Special Real Estate, a Default or Event of Default shall exist hereunder
or under any of the other Loan Documents.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE BORROWER.
The Borrower and the Guarantor, jointly and severally, represent and
warrant to the Agent and the Banks as follows.
SECTION 6.1 CORPORATE AUTHORITY, ETC.
(a) Incorporation; Good Standing. The Borrower is a Delaware limited
partnership duly organized pursuant to its first amended and restated limited
partnership agreement dated May 10, 1996, as amended by amendments one through
eighteen, and a Certificate of Limited Partnership and amendments thereto filed
with the Secretary of the State of Delaware and is validly existing and in good
standing under the laws of the State of Delaware. The Guarantor is a Maryland
real estate investment trust duly organized pursuant to its trust declaration
dated October 2, 1997, as amended and supplemented, and a Certificate of Trust
filed with the Secretary of the State of Maryland and is validly existing and in
good standing under the laws of the State of Maryland. Each of the Borrower and
the Guarantor (i) has all requisite power to own its respective property and
conduct its respective business as now conducted and as presently contemplated,
and (ii) as to the Borrower is in good standing as a foreign entity and is duly
authorized to do business in the jurisdictions where the Mortgaged Property of
the Borrower is located and in each other jurisdiction where a failure to be so
44
qualified in such other jurisdiction could have a materially adverse effect on
the business, assets or financial condition of such Person. The Guarantor is a
real estate investment trust in full compliance with and entitled to the
benefits of Section 856 of the Code.
(b) Subsidiaries. Each of the Subsidiaries of the Borrower and the
Guarantor (i) is a corporation, limited partnership, limited liability company
or trust duly organized under the laws of its State of organization and is
validly existing and in good standing under the laws thereof, (ii) has all
requisite power to own its property and conduct its business as now conducted
and as presently contemplated and (iii) is in good standing and is duly
authorized to do business in each jurisdiction where Mortgaged Property held by
it is located and in each other jurisdiction where a failure to be so qualified
could have a materially adverse effect on the business, assets or financial
condition of the Borrower, the Guarantor, or such Subsidiary. The Subsidiary
Guarantors are wholly-owned direct Subsidiaries of the Borrower.
(c) Authorization. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower, the Guarantor or
any of their respective Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (i) are within the authority of
such Person, (ii) have been duly authorized by all necessary proceedings on the
part of such Person, (iii) do not and will not conflict with or result in any
breach or contravention of any provision of law, statute, rule or regulation to
which such Person is subject or any judgment, order, writ, injunction, license
or permit applicable to such Person, (iv) do not and will not conflict with or
constitute a default (whether with the passage of time or the giving of notice,
or both) under any provision of the articles of incorporation, partnership
agreement, declaration of trust or other charter documents or bylaws of, or any
agreement or other instrument binding upon, such Person or any of its
properties, and (v) do not and will not result in or require the imposition of
any lien or other encumbrance on any of the properties, assets or rights of such
Person.
(d) Enforceability. The execution and delivery of this Agreement and
the other Loan Documents to which the Borrower, the Guarantor or any of their
respective Subsidiaries is or is to become a party are valid and legally binding
obligations of such Person enforceable in accordance with the respective terms
and provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
SECTION 6.2 GOVERNMENTAL APPROVALS. The execution, delivery and
performance of this Agreement and the other Loan Documents to which the
Borrower, the Guarantor or any of their respective Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained and the filing of the Security
Documents in the appropriate records office with respect thereto.
SECTION 6.3 TITLE TO PROPERTIES; LEASE. The Borrower, the Guarantor and
their Subsidiaries own all of the assets reflected in the consolidated balance
sheet of the Borrower and the Guarantor as of the Balance Sheet Date or acquired
since that date (except property and assets
45
sold or otherwise disposed of in the ordinary course of business since that
date), subject to no rights of others, including any mortgages, leases,
conditional sales agreements, title retention agreements, liens or other
encumbrances except Permitted Liens.
SECTION 6.4 FINANCIAL STATEMENTS. The Borrower has delivered to each of
the Banks: (a) the consolidated balance sheet of the Guarantor and its
Subsidiaries as of the Balance Sheet Date, (b) an unaudited statement of
Operating Cash Flow for each of the Mortgaged Properties for the fiscal years
ended December 31, 2000, and December 31, 2001 and for the period of January 1,
2002 through September 30, 2002, to the extent available, satisfactory in form
to the Agent and certified by the chief financial or accounting officer of the
general partner of the Borrower as fairly presenting the operating income for
such parcels for such periods, provided that such certification need only be
made with respect to any Mortgaged Property for the period such Mortgaged
Property has been owned and operated by the Borrower, if such period is less
than three (3) fiscal years, and (c) certain other financial information
relating to the Borrower, the Guarantor and the Real Estate. Such balance sheet
and statements have been prepared in accordance with generally accepted
accounting principles and fairly present the financial condition of the
Borrower, the Guarantor and their respective Subsidiaries as of such dates and
the results of the operations of the Borrower, the Guarantor and the Mortgaged
Properties for such periods. There are no liabilities, contingent or otherwise,
of the Borrower, the Guarantor or any of their respective Subsidiaries involving
material amounts not disclosed in said financial statements and the related
notes thereto.
SECTION 6.5 NO MATERIAL CHANGES. Since the Balance Sheet Date, there has
occurred no materially adverse change in the financial condition or business of
the Borrower, the Guarantor, and their respective Subsidiaries taken as a whole
as shown on or reflected in the consolidated balance sheet of the Borrower and
the Guarantor as of the Balance Sheet Date, or its consolidated statement of
income or cash flows for the fiscal year then ended, other than changes in the
ordinary course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial condition
of such Person.
SECTION 6.6 FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower, the
Guarantor and their respective Subsidiaries possess all franchises, patents,
copyrights, trademarks, trade names, servicemarks, licenses and permits, and
rights in respect of the foregoing, adequate for the conduct of their business
substantially as now conducted without known conflict with any rights of others.
SECTION 6.7 LITIGATION. Except as stated on Schedule 6.7 there are no
actions, suits, proceedings or investigations of any kind pending or to the
knowledge of such person threatened against the Borrower, the Guarantor or any
of their respective Subsidiaries before any court, tribunal, arbitrator,
mediator or administrative agency or board that, if adversely determined, might,
either in any case or in, the aggregate, materially adversely affect the
properties, assets, financial condition or business of such Person or materially
impair the right of such Person to carry on business substantially as now
conducted by it, or result in any liability not adequately covered by insurance,
or for which adequate reserves are not maintained on the balance sheet of such
Person, or which question the validity of this Agreement or any of the other
Loan Documents, any action taken or to be taken pursuant hereto or thereto or
any lien or security interest created or intended to be created pursuant hereto
or thereto, or which will adversely
46
affect the ability of the Borrower or the Guarantor to pay and perform the
Obligations in the manner contemplated by this Agreement and the other Loan
Documents.
SECTION 6.8 NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrower,
the Guarantor or any of their respective Subsidiaries is subject to any charter,
corporate or other legal restriction, or any judgment, decree, order, rule or
regulation that has or is expected in the future to have a materially adverse
effect on the business, assets or financial condition of such Person. None of
the Borrower, the Guarantor, nor any of their respective Subsidiaries is a party
to any contract or agreement that has or is expected, in the judgment of the
partners or officers of such Person, to have any materially adverse effect on
the business of any of them.
SECTION 6.9 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrower, the Guarantor or any of their respective Subsidiaries is in violation
of any provision of its charter or other organizational documents, bylaws, or
any agreement or instrument to which it may be subject or by which it or any of
its properties may be bound or any decree, order, judgment, statute, license,
rule or regulation, in any of the foregoing cases in a manner that could result
in the imposition of substantial penalties or materially and adversely affect
the financial condition, properties or business of such Person.
SECTION 6.10 TAX STATUS. The Borrower, the Guarantor and each of their
respective Subsidiaries (a) has made or filed all federal and state income and
all other tax returns, reports and declarations required by any jurisdiction to
which it is subject, (b) has paid all taxes and other governmental assessments
and charges shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and by appropriate
proceedings and (c) has set aside on its books provisions reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction,
and the partners or officers of such Person know of no basis for any such claim.
SECTION 6.11 NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
SECTION 6.12 HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrower, the Guarantor, or any of their respective Subsidiaries is or after
giving effect to any Loan will be, subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940 or to any federal or state statute or regulation limiting
its ability to incur indebtedness for borrowed money.
SECTION 6.13 ABSENCE OF UCC FINANCING STATEMENTS, ETC. Except with respect
to Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry, or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
or security title in, any property of the Borrower, the Guarantor or any of
their respective Subsidiaries or rights thereunder.
47
SECTION 6.14 SETOFF, ETC. The Collateral and the rights of the Agent and
the Banks with respect to the Collateral are not subject to any setoff, claims,
withholdings or other defenses. The Borrower is the owner of the Collateral free
from any lien, security interest, encumbrance or other claim or demand, except
those encumbrances permitted in the Security Deeds.
SECTION 6.15 CERTAIN TRANSACTIONS. Except as set forth on Schedule 6.15,
none of the officers, trustees, directors, or employees of the Borrower, the
Guarantor or any of their respective Subsidiaries is a party to any transaction
with either or both of the Borrower, the Guarantor or any of their respective
Subsidiaries (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
trustee, director or such employee or, to the knowledge of the Borrower, the
Guarantor, or any corporation, partnership, trust or other entity in which any
officer, trustee, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
SECTION 6.16 EMPLOYEE BENEFIT PLANS. The Borrower, the Guarantor and each
ERISA Affiliate has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Employee Benefit Plan,
Multiemployer Plan or Guaranteed Pension Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the Code
with respect to each Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan. Neither the Borrower, the Guarantor nor any ERISA Affiliate has
(a) sought a waiver of the minimum funding standard under Section 412 of the
Code in respect of any Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan, (b) failed to make any contribution or payment to any Employee
Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, or made any
amendment to any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension
Plan, which has resulted or could result in the imposition of a lien or the
posting of a bond or other security under ERISA or the Code, or (c) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA. None of the Real Estate constitutes a
"plan asset" of any Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan.
SECTION 6.17 REGULATIONS T, U AND X. No portion of any Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations T, U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224.
SECTION 6.18 ENVIRONMENTAL COMPLIANCE. The Borrower and the Guarantor each
has taken all commercially reasonable steps to investigate the past and present
conditions and usage of the Real Estate and the operations conducted thereon
and, based upon such investigation makes the following representations and
warranties.
(a) With respect to the Mortgaged Properties, and to the best of the
Borrower's and the Guarantor's knowledge with respect to any other Real Estate,
none of the Borrower, the Guarantor or their respective Subsidiaries or any
operator of the Real Estate, or any operations thereon is in violation, or
alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including, without limitation,
48
those arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation, ordinance,
order or decree relating to the environment (hereinafter "Environmental Laws"),
which violation involves any of the Mortgaged Properties or involves other Real
Estate and would have a material adverse effect on the business, assets or
financial condition of the Borrower, the Guarantor or any of their respective
Subsidiaries.
(b) None of the Borrower, the Guarantor or any of their respective
Subsidiaries has received notice from any third party including, without
limitation, any federal, state or local governmental authority, (i) that it has
been identified by the United States Environmental Protection Agency ("EPA") as
a potentially responsible party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that
any hazardous waste, as defined by 42 U.S.C. Section 9601(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) or any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Substances") which it has generated, transported
or disposed of have been found at any site at which a federal, state or local
agency or other third party has conducted or has ordered that the Borrower, the
Guarantor or any of their respective Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any Environmental
Law; or (iii) that it is or shall be a named party to any claim, action, cause
of action, complaint, or legal or administrative proceeding (in each case,
contingent or otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Substances.
(c) With respect to the Mortgaged Properties, and to the best of the
Borrower's and the Guarantor's knowledge with respect to any other Real Estate,
except as specifically set forth in the written environmental site assessment
reports provided to the Agent on or before the date hereof or as set forth on
Schedule 6.18 attached hereto or, in the case of Real Estate acquired after the
date hereof, the environmental site assessment reports with respect thereto
provided to the Agent under Section 7.4(h): (i) no portion of the Real Estate
has been used for the handling, processing, storage or disposal of Hazardous
Substances except in accordance with applicable Environmental Laws in all
material respects, and no underground tank or other underground storage
receptacle for Hazardous Substances is located on any portion of the Mortgaged
Property; (ii) in the course of any activities conducted by either the Borrower,
the Guarantor, their Subsidiaries or the operators of its properties, no
Hazardous Substances have been generated or are being used on the Real Estate
except in the ordinary course of business and in accordance with applicable
Environmental Laws in all material respects; (iii) there has been no past or
present releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (a "Release") or
threatened Release of Hazardous Substances on, upon, into or from any of the
Mortgaged Properties, or, to the best of the Borrower's or the Guarantor's
knowledge, on, upon, into or from the other properties of the Borrower, the
Guarantor or their respective Subsidiaries, which Release would have a material
adverse effect on the value of any of the Real Estate or adjacent properties or
the environment; (iv) to the best of the Borrower's or the Guarantor's
knowledge, there have been no Releases on, upon, from or into any real property
in the vicinity of any of the Real Estate which through soil
49
or groundwater contamination, may have come to be located on, and which would
have a material adverse effect on the value of, the Real Estate; and (v) any
Hazardous Substances that have been generated on any of the Real Estate have
been transported off-site only by carriers having an identification number
issued by the EPA or approved by a state or local environmental regulatory
authority having jurisdiction regarding the transportation of such substance and
treated or disposed of only by treatment or disposal facilities maintaining
valid permits as required under all applicable Environmental Laws, which
transporters and facilities have been and are, to the best of the Borrower's or
the Guarantor's knowledge, operating in compliance with such permits and
applicable Environmental Laws.
(d) None of the Borrower, the Guarantor, their respective
Subsidiaries, the Mortgaged Properties or any other Real Estate is subject to
any applicable Environmental Law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the recording
or delivery to other Persons of an environmental disclosure document or
statement by virtue of the transactions set forth herein and contemplated
hereby, or as a condition to the recording of the Security Deeds or to the
effectiveness of any other transactions contemplated hereby.
SECTION 6.19 SUBSIDIARIES AND JOINT VENTURES. Schedule 6.19 sets forth all
of the Subsidiaries and joint ventures of the Borrower and the Guarantor. The
form and jurisdiction of organization of each of the Subsidiaries and joint
ventures, and the Borrower's and the Guarantor's ownership interest therein, is
set forth in said Schedule 6.19.
SECTION 6.20 LEASES. The Borrower has delivered to the Agent (i) true
copies of the forms of the Leases used by the Borrower at the Mortgaged
Properties as of the date hereof and (ii) true, correct and complete copies of
the Leases and any amendments thereto relating to the Mortgaged Properties as of
the date hereof.
SECTION 6.21 LOAN DOCUMENTS. All of the representations and warranties
made by or on behalf of the Borrower, the Guarantor, and their respective
Subsidiaries in this Agreement and the other Loan Documents or any document or
instrument delivered to the Agent or the Banks pursuant to or in connection with
any of such Loan Documents are true and correct in all material respects, and
neither the Borrower, the Guarantor nor any of their respective Subsidiaries has
failed to disclose such information as is necessary to make such representations
and warranties not misleading.
SECTION 6.22 MORTGAGED PROPERTY. The Borrower and the Guarantor each makes
and shall cause each Approved Subsidiary to make, the following representations
and warranties concerning each Mortgaged Property:
(a) Off-Site Utilities. All water, sewer, electric, gas, telephone
and other utilities necessary for the use and operation of the Mortgaged
Property are installed to the property lines of the Mortgaged Property through
dedicated public rights of way or through perpetual private easements approved
by the Agent with respect to which the applicable Security Deed creates a valid
and enforceable first lien and, except in the case of drainage facilities, are
50
connected to the Building located thereon with valid permits and are adequate to
service the Building in compliance with applicable law.
(b) Access, Etc. The streets abutting the Mortgaged Property are
dedicated and accepted public roads, to which the Mortgaged Property has direct
access by trucks and other motor vehicles and by foot, or are perpetual private
ways (with direct access by trucks and other motor vehicles and by foot to
public roads) to which the Mortgaged Property has direct access approved by the
Agent and with respect to which the applicable Security Deed creates a valid and
enforceable first lien. All private ways providing access to the Mortgaged
Property are zoned in a manner which will permit access to the Building over
such ways by trucks and other commercial and industrial vehicles.
(c) Independent Building. The Building is fully independent in all
respects including, without limitation, in respect of structural integrity,
heating, ventilating and air conditioning, plumbing, mechanical and other
operating and mechanical systems, and electrical, sanitation and water systems,
all of which are connected directly to off-site utilities located in public
streets or ways or through insured perpetual private easements approved by the
Agent. The Building is located on a lot which is separately assessed for
purposes of real estate tax assessment and payment. The Building, all Building
Service Equipment and all paved or landscaped areas related to or used in
connection with the Building are located wholly within the perimeter lines of
the lot or lots on which the Mortgaged Property is located, except as may be
specifically shown on the Survey for such Mortgaged Property.
(d) Condition of Building; No Asbestos. The Building is, in all
material respects, structurally sound, in good repair and free of defects in
materials and workmanship. All major building systems located within the
Building, including without limitation heating, ventilating and air
conditioning, electrical, sprinkler, plumbing or other mechanical systems, are
in good working order and condition. Except as set forth in the Phase I
environmental site assessments delivered by the Borrower to the Agent, no
asbestos is located in or on the Building, except for nonfriable asbestos or
contained friable asbestos which is being monitored and/or remediated in
accordance with the recommendations of an Environmental Engineer.
(e) Building Compliance with Law. The Building as presently
constructed, used, occupied and operated does not, in any material respect,
violate any applicable federal or state law or governmental regulation or any
local ordinance, order or regulation, including but not limited to laws,
regulations, or ordinances relating to zoning, building use and occupancy,
subdivision control, fire protection, health, sanitation, safety, handicapped
access, historic preservation and protection, tidelands, wetlands, flood control
and Environmental Laws. The Building complies, in all material respects, with
applicable zoning laws and regulations and is not a so-called non-conforming
use. The zoning laws permit use of the Building for its current use. There is
such number of parking spaces on the lot or lots on which the Mortgaged Property
is located as is adequate under the zoning laws and regulations to permit use of
the Building for its current use. Each Mortgaged Property constitutes a separate
parcel which has been properly subdivided in accordance with all applicable
state and local laws, regulations and ordinances to the extent required thereby,
and neither the execution and delivery of the Security Deeds nor the exercise of
any remedies thereunder by the Agent shall violate any such law or regulation
relating to the subdivision of real property.
51
(f) No Required Mortgaged Property Consents, Permits, Etc. Neither
the Borrower, the Guarantor nor any Approved Subsidiary has received any notice
of, and has no knowledge of, any approvals, consents, licenses, permits, utility
installations and connections (including, without limitation, drainage
facilities), curb cuts and street openings, required by applicable laws, rules,
ordinances or regulations or any agreement affecting the Mortgaged Property for
the maintenance, operation, servicing and use of the Mortgaged Property or the
Building for its current use which have not been granted, effected, or performed
and completed (as the case may be), or any fees or charges therefor which have
not been fully paid, or which are no longer in full force and effect. No such
approvals, consents, permits or licenses (including, without limitation, any
railway siding agreements) will terminate, or become void or voidable or
terminable on any foreclosure sale of the Mortgaged Property pursuant to the
Security Deed. To the best knowledge of the Borrower, the Guarantor and each
Approved Subsidiary, there are no outstanding notices, suits, orders, decrees or
judgments relating to zoning, building use and occupancy, fire, health,
sanitation or other violations affecting, against, or with respect to, the
Mortgaged Property or any part thereof.
(g) Insurance. Neither the Borrower, the Guarantor nor any Approved
Subsidiary has received any outstanding notice from any insurer or its agent
requiring performance of any work with respect to the Mortgaged Property or
canceling or threatening to cancel any policy of insurance, and the Mortgaged
Property complies with the requirements of all of the Borrower's and the
Guarantor's insurance carriers.
(h) Real Property Taxes; Special Assessments. There are no unpaid or
outstanding real estate or other taxes or assessments on or against the
Mortgaged Property or any part thereof which are payable by the Borrower or the
Guarantor (except only real estate or other taxes or assessments, that are not
yet due and payable). The Borrower has delivered to the Agent true and correct
copies of real estate tax bills for the Mortgaged Property for the past three
(3) fiscal years. No abatement proceedings are pending with reference to any
real estate taxes assessed against the Mortgaged Property, other than with
respect to taxes which have been paid under protest and which are being
contested in good faith. Except as set forth in the Title Policies delivered to
the Agent, there are no betterment assessments or other special assessments
presently pending with respect to any portion of the Mortgaged Property, and
neither the Borrower nor the Guarantor has received any notice of any such
special assessment being contemplated.
(i) Historic Status. The Building is not a historic structure or
landmark and neither the Building or the Mortgaged Property is located within
any historic district pursuant to any federal, state or local law or
governmental regulation.
(j) Eminent Domain; Casualty. There are no pending eminent domain
proceedings against the Mortgaged Property or any part thereof, and, to the
knowledge of the Borrower or the Guarantor, no such proceedings are presently
threatened or contemplated by any taking authority. Neither the Mortgaged
Property, the Building or any part thereof is now damaged or injured as a result
of any fire, explosion, accident, flood or other casualty.
(k) Leases. An accurate and complete Rent Roll and summary thereof
in a form reasonably satisfactory to the Agent as of the date of inclusion of
the Mortgaged Property
52
in the Collateral (or such other recent date as may be acceptable to the Agent)
with respect to all Leases of any portion of the Mortgaged Property has been
provided to the Agent. The Leases reflected on such Rent Roll constitute as of
the date thereof the sole agreements and understandings relating to leasing or
licensing of space at the Mortgaged Property and in the Building relating
thereto. Each of the Leases was entered into as the result of arms-length
negotiation and has not been modified, changed, altered, assigned, supplemented
or amended in any respect, except as reflected on the Rent Roll, and no tenant
is entitled to any free rent, partial rent, rebate of rent payments, credit,
offset or deduction in rent, including, without limitation, lease support
payments or lease buy-outs, except as reflected in the Rent Roll. There are no
occupancies, rights, privileges or licenses in or to the Mortgaged Property or
portion thereof other than pursuant to the Leases reflected in Rent Rolls
previously furnished to the Agent for the Mortgaged Property. Except as set
forth in each Rent Roll, the Leases reflected therein are in full force and
effect in accordance with their respective terms, without any payment default or
any other material default thereunder, nor are there any defenses,
counterclaims, offsets, concessions or rebates available to any tenant
thereunder, and neither the Borrower, the Guarantor nor any of their respective
Subsidiaries has given or made, any notice of any payment or other material
default, or any claim, which remains uncured or unsatisfied, with respect to any
of the Leases. The Rent Rolls furnished to the Banks accurately and completely
set forth all rents payable by and security, if any, deposited by tenants, no
tenant having paid more than one month's rent in advance. All tenant
improvements or work to be done for tenants on the Rent Roll, furnished or paid
for by the Borrower, the Guarantor or any of their respective Subsidiaries, or
credited or allowed to a tenant, for, or in connection with, the Building
pursuant to any Lease has been completed and paid for or provided for in a
manner satisfactory to the Agent. No material leasing, brokerage or like
commissions, fees or payments are due from the Borrower, the Guarantor or any of
their respective Subsidiaries in respect of the Leases.
(l) Service Agreements; Management Agreements. Except as listed on
Schedule 6.22, there are no material Service Agreements relating to the
operation and maintenance of the Building, the Mortgaged Property, or any
portion thereof that are not cancelable at any time. The Borrower has no
Management Agreements for the Mortgaged Properties. To the best knowledge of the
Borrower, there are no material claims or any bases for material claims in
respect of the Mortgaged Property or its operation by any party to any Service
Agreement or Management Agreement.
(m) Other Material Real Property Agreements: No Options. There are
no material agreements pertaining to the Mortgaged Property, any Building
thereon or the operation or maintenance of either thereof other than as
described in this Agreement (including the Schedules hereto), the Title Policies
or otherwise disclosed in writing to the Agent and the Banks by the Borrower;
and no person or entity has any right or option to acquire the Mortgaged
Property or any Building thereon or any portion thereof or interest therein.
SECTION 6.23 BROKERS. None of the Borrower, the Guarantor, or any of their
respective Subsidiaries has engaged or otherwise dealt with any broker, finder
or similar entity in connection with this Agreement or the Loans contemplated
hereunder.
SECTION 6.24 OTHER DEBT. None of the Borrower, the Guarantor, or any of
their respective Subsidiaries is in default of the payment of any Indebtedness
or any other agreement, mortgage,
53
deed of trust, security agreement, financing agreement, indenture or lease to
which any of them is a party. The Borrower is not a party to or bound by any
agreement, instrument or indenture that may require the subordination in right
or time or payment of any of the Obligations to any other indebtedness or
obligation of the Borrower. The Borrower has provided to the Agent a schedule,
and upon the request of the Agent will provide copies, of all agreements,
mortgages, deeds of trust, financing agreements or other material agreements
binding upon the Borrower or its properties and entered into by the Borrower as
of the date of this Agreement with respect to any Indebtedness of the Borrower.
SECTION 6.25 SOLVENCY. As of the Closing Date and after giving effect to
the transactions contemplated by this Agreement and the other Loan Documents,
including all Loans made or to be made hereunder, neither the Borrower, the
Guarantor nor any of their Subsidiaries is insolvent on a balance sheet basis
such that the sum of such Person's assets exceeds the sum of such Person's
liabilities, such Person is able to pay its debts as they become due, and such
Person has sufficient capital to carry on its business.
SECTION 6.26 CONTRIBUTION AGREEMENT. Borrower has delivered or made
available to the Agent a true, correct and complete copy of the Contribution
Agreement (Revolver). The Contribution Agreement (Revolver) is in full force and
effect in accordance with its terms, there are no material claims resulting from
non-performance of the terms thereof or otherwise or any basis for a material
claim by any party to the Contribution Agreement (Revolver), nor has there been
any waiver of any material terms thereunder.
SECTION 6.27 NO FRAUDULENT INTENT. Neither the execution and delivery of
this Agreement or any of the other Loan Documents nor the performance of any
actions required hereunder or thereunder is being undertaken by the Borrower,
Guarantor or any of their respective Subsidiaries with or as a result of any
actual intent by any of such Persons to hinder, delay or defraud any entity to
which any of such Persons is now or will hereafter become indebted.
SECTION 6.28 TRANSACTION IN BEST INTERESTS OF BORROWER; CONSIDERATION. The
transaction evidenced by this Agreement and the other Loan Documents is in the
best interests of the Borrower, the Guarantor, each of their respective
Subsidiaries and the creditors of such Persons. The direct and indirect benefits
to inure to the Borrower, the Guarantor and each of their respective
Subsidiaries pursuant to this Agreement and the other Loan Documents constitute
substantially more than "reasonably equivalent value" (as such term is used in
Section 548 of the Bankruptcy Code) and "valuable consideration," "fair value,"
and "fair consideration," (as such terms are used in any applicable state
fraudulent conveyance law), in exchange for the benefits to be provided by the
Borrower, the Guarantor and each of their respective Subsidiaries pursuant to
this Agreement and the other Loan Documents, and but for the willingness of the
Guarantor and the Subsidiary Guarantors to guaranty the Loan, Borrower would be
unable to obtain the financing contemplated hereunder which financing will
enable the Borrower and its Subsidiaries to have available financing to conduct
and expand their business.
SECTION 6.29 PARTNERS AND THE GUARANTOR. Guarantor is the sole general
partner of the Borrower and owns a 1% general partnership interest and a 79.714%
limited partnership interest in the Borrower. Guarantor owns no assets other
than its interest in the Borrower as a general
54
partner and limited partner, cash, Short-term Investments and the property
described on Schedule 6.29 hereto.
SECTION 6.30 PRINCIPAL DOCUMENTS. All obligations of the parties under
each of the Principal Documents has been satisfied, and there are no surviving
benefits or obligations under any of the Principal Documents.
SECTION 7. AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER.
The Guarantor (to the extent hereinafter provided) and the Borrower
covenant and agree that, so long as any Loan, Letter of Credit or Note is
outstanding or any Bank has any obligation to make any Loans or to participate
in any Letters of Credit:
SECTION 7.1 PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans and all interest and
fees provided for in this Agreement, all in accordance with the terms of this
Agreement and the Notes as well as all other sums owing pursuant to the Loan
Documents.
SECTION 7.2 MAINTENANCE OF OFFICE. The Borrower will maintain its chief
executive office at 27600 Northwestern Highway, Suite 200, Southfield, Michigan,
48034, or at such other place in the United States of America as the Borrower
shall designate upon prior written notice to the Agent and the Banks, where
notices, presentations and demands to or upon the Borrower in respect of the
Loan Documents may be given or made.
SECTION 7.3 RECORDS AND ACCOUNTS. The Borrower will (a) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with
generally accepted accounting principles and (b) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation and amortization
of its properties and the properties of its Subsidiaries, contingencies and
other reserves. Neither the Borrower nor the Guarantor nor any of their
respective Subsidiaries shall, without the prior written consent of the Majority
Banks, (x) make any material changes to the accounting principles used by such
Person in preparing the financial statements and other information described in
Section 6.4 or (y) change its fiscal year.
SECTION 7.4 FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower and Guarantor will deliver or cause to be delivered to each of the
Banks:
(a) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each fiscal year of the Guarantor, the
audited Consolidated balance sheet of the Guarantor and its Subsidiaries at the
end of such year, and the related audited Consolidated statements of income,
changes in shareholder's equity and cash flows for such year, each setting forth
in comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by an auditor's report prepared
without qualification by Deloitte & Touche, or by another "Big Five" accounting
firm, the Form 10-K filed with the SEC (unless the SEC has approved an
extension, in which event the Guarantor will deliver to the Agent and each of
the Banks a copy of the Form 10-K simultaneously with delivery to the SEC), a
statement of the
55
Borrower's taxable net income for the prior fiscal year, and any other
information the Banks may need to complete a financial analysis of the Guarantor
and its Subsidiaries;
(b) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower and Guarantor, respectively, copies of the unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries and the
Guarantor and its Subsidiaries, respectively, as at the end of such quarter, and
the related unaudited Consolidated statements of income, changes in
shareholder's equity and cash flows for the portion of the Borrower's and the
Guarantor's, respectively, fiscal year then elapsed, and a statement showing the
aging of the receivables and payables for the Mortgaged Properties, all in
reasonable detail and prepared in accordance with generally accepted accounting
principles (which, as to the Guarantor, may be provided by inclusion in the Form
10-Q of the Guarantor for such period provided pursuant to subsection (c)
below), together with a certification by the principal financial or accounting
officer of the Borrower and the Guarantor, respectively, that the information
contained in such financial statements fairly presents the financial position of
such Person and its Subsidiaries on the date thereof (subject to year-end
adjustments); provided, however, that unless otherwise requested by the Agent or
the Majority Banks, the Borrower shall not be required to deliver the balance
sheets, statements or other matters required by this Section 7.4(b) to the
extent the same are incorporated in the balance sheets, statements and other
matters delivered to the Banks by the Guarantor;
(c) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Guarantor in each year, copies of Form 10-Q filed with the SEC
(unless the SEC has approved an extension in which event the Guarantor will
deliver such copies of the Form 10-Q to the Agent and each of the Banks
simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of the first three (3) fiscal quarters of the
Borrower, copies of a Consolidated statement of Operating Cash Flow for such
fiscal quarter for the Borrower and its Subsidiaries and a statement of
Operating Cash Flow for such fiscal quarter for the Borrower and each of the
Mortgaged Properties, prepared on a basis consistent with the statement
furnished pursuant to Section 6.4(c) together with a certification by the chief
financial or chief accounting officer of the general partner of the Borrower,
that the information contained in such statement fairly presents the Operating
Cash Flow of the Borrower and its Subsidiaries and the Mortgaged Properties for
such period;
(e) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement (a "Compliance
Certificate") certified by the principal financial or accounting officer of the
Guarantor and of the general partner of the Borrower in the form of Exhibit C
hereto (or in such other form as the Agent may approve from time to time)
setting forth in reasonable detail computations evidencing compliance with the
covenants contained in Section 9 and the other covenants described therein, and
(if applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
56
(f) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the SEC or sent to the
stockholders of the Guarantor or the partners of the Borrower;
(g) as soon as practicable but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower, an updated Rent Roll aggregating information for the
Mortgaged Properties and operating statements and tenant sales reports with
respect to the Mortgaged Properties with respect to such fiscal quarter, such
statements and reports to be in form reasonably satisfactory to the Agent;
(h) as soon as practicable but in any event not later than one
hundred (100) days after the end of the fourth fiscal quarter of the Borrower,
an updated Rent Roll aggregating information for the Mortgaged Properties and
rolling four (4) quarter operating statements and tenant sales reports with
respect to the Mortgaged Properties, such statements and reports to be in form
reasonably satisfactory to the Agent;
(i) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, the following with respect to each
acquisition of an interest in Real Estate having a fair market value in excess
of $10,000,000.00 by the Borrower or any of its Subsidiaries (which for the
purposes of this Section 7.4(h) shall include the Investments described in
Section 8.3(i), provided that with respect to the Investments described in
Section 8.3(i), the following items shall be provided to the extent reasonably
available to the Borrower or its Subsidiaries): (i) the closing statement
relating to such acquisition, (ii) a description of the property acquired, (iii)
a certificate from the chief financial or accounting officer of the Borrower
stating that (A) an environmental site assessment has been prepared by an
Environmental Engineer and such assessment contains no material qualifications
with respect to such Real Estate and (B) a statement of condition of such Real
Estate has been prepared by a construction engineer and such statement contains
no material qualifications, and (iv) a historical operating statement of such
Real Estate for such period as may be available to the Borrower and a current
rent roll for such Real Estate;
(j) promptly after they are filed with the Internal Revenue Service,
copies of all annual federal income tax returns and amendments thereto of the
Borrower and the Guarantor;
(k) promptly upon completion, copies of such market studies relating
to the Mortgaged Property and the other Eligible Real Estate as are from time to
time prepared by or on behalf of the Borrower or its Subsidiaries;
(l) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, each of the following with respect
to each acquisition of an interest in a Subsidiary: (i) the name and structure
of the Subsidiary, (ii) a description of the property owned by such Subsidiary,
and (iii) such other information as the Agent may reasonably request;
(m) simultaneously with the delivery of the financial statement
referred to in subsection (a) above, a statement (i) listing the Real Estate
owned by the Borrower and its
57
Subsidiaries (or in which the Borrower or its Subsidiaries owns an interest) and
stating the location thereof, the date acquired and the acquisition cost, (ii)
listing the Indebtedness of the Borrower and its Subsidiaries (excluding
Indebtedness of the type described in Section 8.1(b)-(e)), which statement shall
include, without limitation, a statement of the original principal amount of
such Indebtedness and the current amount outstanding, the holder thereof, the
maturity date and any extension options, the interest rate, the collateral
provided for such Indebtedness and whether such Indebtedness is recourse or
non-recourse, and (iii) listing the properties of the Borrower and its
Subsidiaries which are under "development" (as used in Section 8.9) and
providing a brief summary of the status of such development;
(n) not later than thirty (30) days prior to the end of each fiscal
year of the Borrower a budget and business plan for the next fiscal year;
(o) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each fiscal year of the Borrower, the
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries at the
end of such year, and the related unaudited consolidated statements of income,
changes in shareholder's equity and cash flows for such year, each setting forth
in comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by a certification by the
principal financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial position of
the Borrower and its Subsidiaries on the date thereof (provided, however, that
the Borrower shall not be required to provide such statements in the event that
such statements would be substantially similar to the consolidated statements
provided by the Guarantor); and
(p) from time to time such other financial data and information in
the possession of the Borrower, the Guarantor or their respective Subsidiaries
(including without limitation auditors' management letters, property inspection
and environmental reports and information as to zoning and other legal and
regulatory changes affecting the Borrower or the Guarantor) as the Agent may
reasonably request.
SECTION 7.5 NOTICES.
(a) Defaults. The Borrower will promptly notify the Agent in writing
of the occurrence of any Default or Event of Default. If any Person shall give
any notice or take any other action in respect of a claimed default (whether or
not constituting an Event of Default) under this Agreement or under any note,
evidence of indebtedness, indenture or other obligation to which or with respect
to which the Borrower, the Guarantor or any of their respective Subsidiaries is
a party or obligor, whether as principal or surety, and such default would
permit the holder of such note or obligation or other evidence of indebtedness
to accelerate the maturity thereof, which acceleration would have a material
adverse effect on the Borrower or the Guarantor, the Borrower shall forthwith
give written notice thereof to the Agent and each of the Banks, describing the
notice or action and the nature of the claimed default.
(b) Environmental Events. The Borrower will promptly give notice to
the Agent (i) upon the Borrower obtaining knowledge of any potential or known
Release of any
58
Hazardous Substances at or from the Mortgaged Property; (ii) of any violation of
any Environmental Law that the Borrower or any of its Subsidiaries reports in
writing or is reportable by such Person in writing (or for which any written
report supplemental to any oral report is made) to any federal, state or local
environmental agency; and (iii) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a notice from any agency
of potential environmental liability, of any federal, state or local
environmental agency or board, that in either case involves the Mortgaged
Property or has the potential to materially affect the assets, liabilities,
financial conditions or operations of the Borrower or any Subsidiary or the
Agent's liens on the Collateral pursuant to the Security Documents.
(c) Notification of Claims Against Collateral. The Borrower will,
immediately upon becoming aware thereof, notify the Agent in writing of any
setoff, claims (including, with respect to any Mortgaged Property, environmental
claims), withholdings or other defenses to which any of the Collateral, or the
rights of the Agent or the Banks with respect to the Collateral, are subject.
(d) Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting the Borrower, the Guarantor or any of their respective
Subsidiaries or to which the Borrower, the Guarantor or any of their respective
Subsidiaries is or is to become a party involving an uninsured claim against the
Borrower, the Guarantor or any of their respective Subsidiaries that could
reasonably be expected to have a materially adverse effect on the Borrower or
the Guarantor and stating the nature and status of such litigation or
proceedings. The Borrower will give notice to the Agent, in writing, in form and
detail satisfactory to the Agent and each of the Banks, within ten (10) days of
any judgment not covered by insurance, whether final or otherwise, against the
Borrower, the Guarantor or any of their respective Subsidiaries in an amount in
excess of $100,000.
(e) Notice of Proposed Sales, Encumbrances, Refinance or Transfer of
Non-Mortgaged Property. The Borrower will give notice to the Agent of any
proposed or completed sale, encumbrance, refinance or transfer of any Real
Estate other than Mortgaged Property or other Investment described in Section
8.3(i) of the Borrower, the Guarantor or their respective Subsidiaries within
any fiscal quarter of the Borrower, such notice to be submitted, in the case of
any such sale, encumbrance, refinance or transfer in an amount in excess of
$10,000,000.00, together with the Compliance Certificate provided or required to
be provided to the Banks under Section 7.4 with respect to such fiscal quarter.
The Compliance Certificate shall with respect to any proposed or completed sale,
encumbrance, refinance or transfer be adjusted in the best good faith estimate
of the Borrower to give effect to such sale, encumbrance, refinance or transfer
and demonstrate that no Default or Event of Default with respect to the
covenants referred to therein shall exist after giving effect to such sale,
encumbrance, refinance or transfer. Notwithstanding the foregoing, in the event
of any sale, encumbrance, refinance or transfer of any Real Estate other than
the Mortgaged Property or other Investment described in Section 8.3(i) of the
Borrower, the Guarantor or their respective Subsidiaries, the Borrower shall
promptly give notice to the Agent of such transaction, which notice shall be
accompanied by a Compliance Certificate prepared using the financial statements
of the Borrower most recently provided or required to be provided to the Banks
under Section 6.4 or Section 7.4 adjusted as provided in the preceding sentence.
59
(f) New Leases. The Borrower and each Approved Subsidiary will give
notice to the Agent of any proposed new Lease at any Mortgaged Property for the
lease of space therein of more than 7500 square feet and shall provide to the
Agent a copy of the proposed lease and any and all agreements or documents
related thereto, current financial information for the proposed tenant and any
guarantor of the proposed lease and such other information as the Agent may
request. The Agent shall be deemed to have consented to such new Lease if the
Agent has not within ten (10) Business Days of the receipt by the Agent of the
initial notification from the Borrower or the Approved Subsidiary notified the
Borrower or the Approved Subsidiary of either the Agent's refusal to consent
thereto or the Agent's need for further information in connection with such
proposed new Lease. Agent shall be authorized to enter into subordination,
non-disturbance and attornment agreements with any tenant under a Lease upon
such terms as Agent in its good faith judgment determines are appropriate.
(g) Notification of Banks. Promptly after receiving any notice under
this Section 7.5, the Agent will forward a copy thereof to each of the Banks,
together with copies of any certificates or other written information that
accompanied such notice.
SECTION 7.6 EXISTENCE; MAINTENANCE OF PROPERTIES.
(a) The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Delaware limited
partnership. The Guarantor will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Maryland real
estate investment trust. The Borrower and the Guarantor will cause each of their
respective Subsidiaries to do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence. The Borrower
shall continue to own directly or indirectly one hundred percent (100%) of the
Voting Interests and economic interests in the Subsidiary Guarantors. The
Borrower and the Guarantor will do or cause to be done all things necessary to
preserve and keep in full force all of their respective rights and franchises
and those of their Subsidiaries. The Borrower will, and will cause each of its
Subsidiaries to, continue to engage primarily in the businesses now conducted by
it and in related businesses.
(b) The Borrower (i) will cause all of its properties and those of
its Subsidiaries used or useful in the conduct of its business or the business
of its Subsidiaries to be maintained and kept in good condition, repair and
working order (ordinary wear and tear excepted) and supplied with all necessary
equipment, and (ii) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof in all cases in which the
failure so to do would have a material adverse effect on the condition of the
applicable Mortgaged Property or on the financial condition, assets or
operations of the Borrower and its Subsidiaries.
(c) The common stock of Guarantor shall at all times be listed for
trading and be traded on the New York Stock Exchange.
SECTION 7.7 INSURANCE.
(a) The Borrower will, at its expense, procure and maintain for the
benefit of the Borrower and the Agent, insurance policies issued by such
insurance companies, in such amounts, in such
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form and substance, and with such coverages, endorsements, deductibles and
expiration dates as are acceptable to the Agent, providing the following types
of insurance covering the Mortgaged Property:
(i) "All Risks" property insurance (including broad form
flood, broad form earthquake and comprehensive boiler and machinery
coverages) on each Building and the contents therein of the Borrower
and its Subsidiaries in an amount not less than one hundred percent
(100%) of the full replacement cost of each Building and the
contents therein of the Borrower and its Subsidiaries or such other
amount as the Agent may approve, with deductibles not to exceed
$50,000 for any one occurrence, with a replacement cost coverage
endorsement, an agreed amount endorsement, and, if requested by the
Agent, a contingent liability from operation of building laws
endorsement in such amounts as the Agent may require. Full
replacement cost as used herein means the cost of replacing the
Building (exclusive of the cost of excavations, foundations and
footings below the lowest basement floor) and the contents therein
of the Borrower and its Subsidiaries without deduction for physical
depreciation thereof;
(ii) During the course of construction or repair of any
Building, the insurance required by clause (i) above shall be
written on a builders risk, completed value, non-reporting form,
meeting all of the terms required by clause (i) above, covering the
total value of work performed, materials, equipment, machinery and
supplies furnished, existing structures, and temporary structures
being erected on or near the Real Estate, including coverage against
collapse and damage during transit or while being stored off-site,
and containing a soft costs (including loss of rents) coverage
endorsement and a permission to occupy endorsement;
(iii) Flood insurance if at any time any Building is located
in any federally designated "special hazard area" (including any
area having special flood, mudslide and/or flood-related erosion
hazards, and shown on a Flood Hazard Boundary Map or a Flood
Insurance Rate Map published by the Federal Emergency Management
Agency as Zone A, AO, Al-30, AE, A99, AH, VO, V1-30, VE, V, M or E)
and the broad form flood coverage required by clause (i) above is
not available, in an amount equal to the full replacement cost or
the maximum amount then available under the National Flood Insurance
Program;
(iv) Rent loss insurance in an amount sufficient to recover at
least the total estimated gross receipts from all sources of income,
including without limitation, rental income, for the Real Estate for
a twelve (12) month period;
(v) Commercial general liability insurance against claims for
personal injury (to include, without limitation, bodily injury and
personal and advertising injury) and property damage liability, all
on an occurrence basis, if commercially available, with such
coverages as the Agent may reasonably request (including, without
limitation, contractual liability coverage, completed operations
coverage for a period of two (2) years following completion of
construction of any
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improvements on the Real Estate, and coverages equivalent to an ISO
broad form endorsement), with a general aggregate limit of not less
than $1,000,000, a completed operations aggregate limit of not less
than $1,000,000, and a combined single "per occurrence" limit of not
less than $1,000,000 for bodily injury, property damage and medical
payments;
(vi) During the course of construction or repair of any
improvements on the Real Estate, owner's contingent or protective
liability insurance covering claims not covered by or under the
terms or provisions of the insurance required by clause (v) above;
(vii) Employer's liability insurance with respect to the
Borrower's employees;
(viii) Umbrella liability insurance with limits of not less
than $10,000,000 to be in excess of the limits of the insurance
required by clauses (v), (vi) and (vii) above, with coverage at
least as broad as the primary coverages of the insurance required by
clauses (v), (vi) and (vii) above, with any excess liability
insurance to be at least as broad as the coverages of the lead
umbrella policy. All such policies shall be endorsed to provide
defense coverage obligations;
(ix) Workers' compensation insurance for all employees of the
Borrower or its Subsidiaries engaged on or with respect to the Real
Estate; and
(x) Such other insurance in such form and in such amounts as
may from time to time be reasonably required by the Agent against
other insurable hazards and casualties which at the time are
commonly insured against in the case of properties of similar
character and location to the Real Estate.
The Borrower shall pay all premiums on insurance policies. The insurance
policies with respect to all Mortgaged Property provided for in clauses (v),
(vi) and (viii) above shall name the Agent and each Bank as an additional
insured and shall contain a cross liability/severability endorsement. The
insurance policies provided for in clauses (i), (ii), (iii) and (iv) above shall
name the Agent as mortgagee and loss payee, shall be first payable in case of
loss to the Agent, and shall contain mortgage clauses and lender's loss payable
endorsements in form and substance acceptable to the Agent. The Borrower shall
deliver duplicate originals or certified copies of all such policies to the
Agent, and the Borrower shall promptly furnish to the Agent all renewal notices
and evidence that all premiums or portions thereof then due and payable have
been paid. At least thirty (30) days prior to the expiration date of the
policies, the Borrower shall deliver to the Banks evidence of continued
coverage, including a certificate of insurance, as may be satisfactory to the
Agent.
(b) All policies of insurance required by this Agreement shall
contain clauses or endorsements to the effect that (i) no act or omission of the
Borrower or any Subsidiary or anyone acting for the Borrower or any Subsidiary
(including, without limitation, any representations made in the procurement of
such insurance), which might otherwise result in a
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forfeiture of such insurance or any part thereof, no occupancy or use of the
Real Estate for purposes more hazardous then permitted by the terms of the
policy, and no foreclosure or any other change in title to the Real Estate or
any part thereof, shall affect the validity or enforceability of such insurance
insofar as the Agent is concerned, (ii) the insurer waives any right of set off,
counterclaim, subrogation, or any deduction in respect of any liability of the
Borrower or any Subsidiary and the Agent, (iii) such insurance is primary and
without right of contribution from any other insurance which may be available,
(iv) such policies shall not be modified, canceled or terminated prior to the
scheduled expiration date thereof without the insurer thereunder giving at least
thirty (30) days prior written notice to the Agent by certified or registered
mail, and (v) that the Agent or the Banks shall not be liable for any premiums
thereon or subject to any assessments thereunder, and shall in all events be in
amounts sufficient to avoid any coinsurance liability.
(c) The insurance required by this Agreement may be effected through
a blanket policy or policies covering additional locations and property of the
Borrower and other Persons not included in the Mortgage Property, provided that
such blanket policy or policies comply with all of the terms and provisions of
this Section 7.7 and contain endorsements or clauses assuring that any claim
recovery will not be less than that which a separate policy would provide,
including, without limitation, a priority claim provision with respect to
property insurance and an aggregate limits of insurance endorsement in the case
of liability insurance.
(d) All policies of insurance required by this Agreement shall be
issued by companies licensed to do business in the State where the policy is
issued and also in the states where the Real Estate is located and having a
rating in Best's Key Rating Guide of at least "A" and a financial size category
of at least "VIII."
(e) Neither the Borrower nor any Subsidiary shall carry separate
insurance, concurrent in kind or form or contributing in the event of loss, with
any insurance required under this Agreement unless such insurance complies with
the terms and provisions of this Section 7.7.
(f) In the event of any loss or damage to the Mortgaged Property in
excess of $50,000, the Borrower shall give immediate written notice to the
insurance carrier and the Agent, and the Agent shall furnish a copy of such
notice promptly to each of the Banks. The Borrower may make proof of loss and
adjust and compromise any claim under insurance policies which is of an amount
not more than $500,000.00 so long as no Event of Default has occurred and is
continuing and so long as the Borrower shall in good faith diligently pursue
such claim. The Borrower hereby irrevocably authorizes and empowers the Agent,
at the Agent's option in the Agent's sole discretion or at the request of the
Majority Banks in their sole discretion, as attorney in fact for the Borrower,
except as provided in the preceding sentence, to make proof of any loss, to
adjust and compromise any claim under insurance policies, to appear in and
prosecute any action arising from such insurance policies, to collect and
receive insurance proceeds, and to deduct therefrom the Agent's expenses
incurred in the collection of such proceeds, provided that the Agent agrees to
consult with the Borrower prior to taking such action. If the Mortgaged Property
is acquired by the Agent or any nominee through foreclosure, deed in lieu of
foreclosure or otherwise is acquired from the Borrower, all right, title and
interest of the Borrower in and to any insurance policies and unearned premiums
thereon and in and to the proceeds thereof resulting from loss or damage to the
Mortgaged Property prior to such sale or
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acquisition shall pass to the Agent or any other successor in interest to the
Borrower or purchaser or grantee of the Mortgaged Property.
(g) Subject to the terms of the following sentence, the Borrower
authorizes the Agent, at the Agent's option or at the request of the Majority
Banks in their sole discretion,(i) to apply the balance of such proceeds to the
payment of the Obligations of the Borrower whether or not then due, or (ii) if
the Agent or the Majority Bank shall require the reconstruction or repair of the
Mortgaged Property, to hold the balance of such proceeds to be used to pay all
taxes, charges, sewer use fees, water rates and assessments which may be imposed
upon the Mortgaged Property and the Obligations of the Borrower as they become
due during the course of reconstruction or repair of the Mortgaged Property and
to reimburse the Borrower, in accordance with such terms and conditions as Agent
may prescribe, for the cost of such reconstruction or repair of the Mortgaged
Property, and on completion of such reconstruction or repair to apply any of the
excess to the payment of the Obligations of the Borrower. Notwithstanding the
foregoing, the Agent shall make such net proceeds available to the Borrower to
reconstruct and repair the Mortgaged Property, in accordance with such terms and
conditions as the Agent may prescribe for the disbursement of such proceeds to
assure completion of such reconstruction or repair provided that (x) no Default
or Event of Default shall have occurred and be continuing, (y) the Borrower
shall have provided to the Agent additional cash security in an amount equal to
the amount reasonably estimated by the Agent to be the amount in excess of such
proceeds which will be required to complete such repair or restoration, and (z)
the Agent shall determine that such repair or reconstruction can be completed
prior to the Maturity Date.
(h) The Borrower will, at its expense, procure and maintain
insurance covering the Borrower and the Real Estate other than the Mortgaged
Property in such amounts and against such risks and casualties as are customary
for properties of similar character and location, due regard being given to the
type of improvements thereon, their construction, location, use and occupancy.
(i) The Borrower shall provide to the Agent for the benefit of the
Banks Title Policies for all of the Mortgaged Properties of the Borrower which
shall at all times be in an aggregate amount of not less than the total
Commitments for the Borrower at the time in effect. Each Title Policy shall also
contain, to the extent available, a tie-in endorsement aggregating the insurance
coverage provided under all of the policies relating to the Borrower with tie-in
endorsements.
(j) In connection with the execution by Agent of a Subordination,
Non-Disturbance and Attornment Agreement with a tenant, Agent may (but shall not
be required to) in the exercise of its good faith judgment agree to allow some
or all of the casualty, condemnation or restoration provisions of the applicable
Lease to control over the applicable provisions of the Loan Documents.
SECTION 7.8 TAXES. The Borrower and each Subsidiary will duly pay and
discharge, or cause to be paid and discharged, before the same shall become
overdue, all taxes, assessments and other governmental charges imposed upon it
and upon the Mortgaged Property and the other Real Estate, sales and activities,
or any part thereof, or upon the income or profits therefrom as well as all
claims for labor, materials, or supplies that if unpaid might by law become a
lien or
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charge upon any of its property; provided that any such tax, assessment, charge,
levy or claim need not be paid if the validity or amount thereof shall currently
be contested in good faith by appropriate proceedings and if the Borrower or
such Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided, further that forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor,
the Borrower and each Subsidiary of the Borrower either (i) will provide a bond
issued by a surety reasonably acceptable to the Agent and sufficient to stay all
such proceedings or (ii) if no such bond is provided, will pay each such tax,
assessment, charge, levy or claim.
SECTION 7.9 INSPECTION OF PROPERTIES AND BOOKS. The Borrower shall permit
the Banks, through the Agent or any representative designated by the Agent, at
the Borrower's expense to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, to examine the books of account of the
Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of the Borrower and
its Subsidiaries with, and to be advised as to the same by, its officers, all at
such reasonable times and intervals as the Agent or any Bank may reasonably
request, provided that so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower shall not be required to pay for such
visits and inspections more often than once in any twelve (12) month period. The
Banks shall use good faith efforts to coordinate such visits and inspections so
as to minimize the interference with and disruption to the Borrower's normal
business operations.
SECTION 7.10 COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Borrower will comply with, and will cause each of its Subsidiaries to comply in
all respects with, (i) all applicable laws and regulations now or hereafter in
effect wherever its business is conducted, including all Environmental Laws,
(ii) the provisions of its corporate charter, partnership agreement or
declaration of trust, as the case may be, and other charter documents and
bylaws, (iii) all agreements and instruments to which it is a party or by which
it or any of its properties may be bound, (iv) all applicable decrees, orders,
and judgments, and (v) all licenses and permits required by applicable laws and
regulations for the conduct of its business or the ownership, use or operation
of its properties. If at any time while any Loan, Note or Letter of Credit is
outstanding or the Banks have any obligation to make Loans or participate in
Letters of Credit hereunder, any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any government shall
become necessary or required in order that the Borrower may fulfill any of its
obligations hereunder, the Borrower will immediately take or cause to be taken
all steps necessary to obtain such authorization, consent, approval, permit or
license and furnish the Agent and the Banks with evidence thereof.
SECTION 7.11 USE OF PROCEEDS. Subject to the terms, covenants and
conditions set forth herein, the Borrower will use the proceeds of the Loans and
the Letters of Credit to the Borrower solely to provide short-term financing (a)
for the acquisition of fee interests by the Borrower in Real Estate which is
utilized principally for shopping centers, (b) for Capital Improvement Projects,
(c) subject to the restrictions set forth in Section 8.9 for development of new
shopping centers, the acquisition of undeveloped Real Estate, (d) for general
corporate purposes including working capital, (e) to repay outstanding
Indebtedness, and (f) for such other purposes as the Majority Banks in their
discretion from time to time may agree to in writing.
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SECTION 7.12 FURTHER ASSURANCES. Each of the Borrower and the Guarantor
will cooperate with, and will cause each of its Subsidiaries to cooperate with
the Agent and the Banks and execute such further instruments and documents as
the Banks or the Agent shall reasonably request to carry out to their
satisfaction the transactions contemplated by this Agreement and the other Loan
Documents.
SECTION 7.13 COMPLIANCE. The Borrower shall operate its business, and
shall cause each of its Subsidiaries to operate its business, in compliance with
the terms and conditions of this Agreement and the other Loan Documents. The
Guarantor shall at all times comply with all requirements of applicable laws
necessary to maintain REIT Status and shall operate its business in compliance
with the terms and conditions of this Agreement and the other Loan Documents.
SECTION 7.14 MANAGEMENT. There shall not occur, without the prior written
consent of the Agent, which consent shall not be unreasonably withheld, any
material change in management of the Mortgaged Properties (including, without
limitation, the hiring of third party managers), provided that so long as the
Mortgaged Properties are managed by the Borrower, a change in the internal
management personnel of the Borrower shall not be deemed a material change in
management.
SECTION 7.15 INTEREST RATE CONTRACT(S). The Borrower shall at all times
from and after the date hereof maintain in full force and effect, an Interest
Rate Contract(s) in form and substance satisfactory to Agent on an amount equal
to the lesser of (a) $75,000,000.00 or (b) an amount necessary to insure that
not more than twenty-five percent (25%) of all outstanding "Debt" (as
hereinafter defined) of Borrower and its Subsidiaries is variable rate Debt. The
Interest Rate Contract(s) shall be provided by any Bank which is a party to this
Agreement or a bank or other financial institution that has unsecured, uninsured
and unguaranteed long-term debt which is rated at least A-3 by Moody's Investor
Service, Inc. or at least A- by Standard & Poor's Corporation. The Borrower
shall upon the request of the Agent provide to the Agent evidence that the
Interest Rate Contract(s) is in effect. Borrower shall assign the Interest Rate
Contract(s) to Agent as additional Collateral for the Obligations pursuant to
the Assignment of Hedge. For the purposes of this Section 7.15, the term "Debt"
shall mean any indebtedness of the Borrower or any of its Subsidiaries, whether
or not contingent, and without duplication, in respect of (i) borrowed money
evidenced by bonds, notes, debentures or similar instruments or (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Borrower or any of its
Subsidiaries, to the extent that any such items would appear as a liability on
the balance sheet of the Borrower or any of its Subsidiaries in accordance with
generally accepted accounting principles (it being understood that Debt shall be
deemed to be incurred by the Borrower or any of its Subsidiaries whenever the
Borrower or any of its Subsidiaries shall create, assume or otherwise become
liable in respect thereof).
SECTION 7.16 OWNERSHIP OF REAL ESTATE. Without the prior written consent
of the Majority Banks, which consent may be withheld by the Majority Banks in
their sole discretion, all interests (whether direct or indirect) of the
Borrower or the Guarantor in real estate assets acquired after the date hereof
shall be owned directly by the Borrower; provided, however, subject to the
restrictions in Section 8.3, the Borrower shall be permitted to own Real Estate
through Subsidiaries or joint ventures.
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SECTION 7.17 MORE RESTRICTIVE AGREEMENTS. Should the Borrower, the
Guarantor or any of their respective Subsidiaries enter into or modify any
agreements or documents pertaining to any existing or future Indebtedness, Debt
Offering or Equity Offering, which agreements or documents include covenants,
whether affirmative or negative (or any other provision which may have the same
practical effect as any of the foregoing), which are individually or in the
aggregate more restrictive against the Borrower, the Guarantor or their
respective Subsidiaries than those set forth in Section 8 and Section 9 of this
Agreement or the Guaranty, the Borrower shall promptly notify the Agent and, if
requested by the Majority Banks, the Borrower, the Agent, and the Majority Banks
shall promptly amend this Agreement and the other Loan Documents to include some
or all of such more restrictive provisions as determined by the Majority Banks
in their sole discretion. Each of the Borrower and Guarantor agree to deliver to
the Agent copies of any agreements or documents (or modifications thereof)
pertaining to existing or future Indebtedness, Debt Offering or Equity Offering
of the Borrower, the Guarantor or any of their respective Subsidiaries as the
Agent from time to time may request. Notwithstanding the foregoing, this Section
7.17 shall not apply to covenants contained in any agreements or documents
evidencing or securing Non-recourse Indebtedness or covenants in agreements or
documents relating to recourse Indebtedness that relate only to specific Real
Estate that is collateral for such Indebtedness.
SECTION 7.18 GUARANTOR RESTRICTIONS. The Borrower and Guarantor covenant
and agree that: Guarantor will at all times (a) be the sole general partner of
the Borrower, (b) own not less than fifty-one percent (51%) of the partnership
interests in the Borrower, and in any event the largest percentage interest of
any partner in the Borrower and (c) be responsible for making all major and
day-to-day operational and management decisions to be made by the Borrower in
the conduct of its business. Without the prior written consent of Agent,
Guarantor shall not own any assets other than its interest in the Borrower as a
general partner and a limited partner, cash, Short-term Investments and the
property described on Schedule 6.29 hereto.
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER.
The Borrower and the Guarantor, jointly and severally, covenant and agree
that, so long as any Loan, Letter of Credit or Note is outstanding or any of the
Banks has any obligation to make any Loans or to participate in any Letters of
Credit:
SECTION 8.1 RESTRICTIONS ON INDEBTEDNESS. Except as permitted in Section
8.1(f) below, the Guarantor will not (other than solely as a result of its
status as a general partner of the Borrower) create, incur, assume, guarantee or
be or remain liable, contingently or otherwise with respect to any Indebtedness
other than the Obligations and any Indebtedness of the Borrower permitted under
the terms of this Section 8.1. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume, guarantee or be or remain liable,
contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Banks arising under any of the Loan
Documents, and Indebtedness and obligations in respect of the Interest Rate
Contract required pursuant to Section 7.15;
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(b) current liabilities of the Borrower or its Subsidiaries incurred
in the ordinary course of business but not incurred through (i) the borrowing of
money, or (ii) the obtaining of credit except for credit on an open account
basis customarily extended and in fact extended in connection with normal
purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment therefor shall not at the time be required to be made in accordance
with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the Borrower shall at
the time in good faith be prosecuting an appeal or proceedings for review and in
respect of which a stay of execution shall have been obtained pending such
appeal or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary course
of business;
(f) subject to the provisions of Section 9, (i) Non-recourse
Indebtedness of the Borrower or any of its Subsidiaries, provided that neither
the Borrower nor any of its Subsidiaries shall incur any Non-recourse
Indebtedness unless the Borrower shall have provided to the Banks a statement
that no Default or Event of Default exists and a Compliance Certificate
demonstrating that the Borrower will be in compliance with the covenants
referred to therein after giving effect to such incurrence, and environmental
indemnities and customary exceptions to exculpatory language shall be permitted
in any such Non-recourse Indebtedness, and (ii) Indebtedness of Borrower or
Guarantor under environmental indemnities and guarantees with respect to
customary exceptions to exculpatory language with respect to Non-recourse
Indebtedness of Borrower's Subsidiaries or joint ventures permitted pursuant to
Section 8.3(k) (it being agreed that any such indemnity or guaranty shall not
cause such Non-recourse Indebtedness to be deemed to be recourse Indebtedness
and provided that in the event any claim is made against Borrower, Guarantor or
any of its Subsidiaries with respect to such indemnities, guarantees or
exceptions, the amount so claimed shall be considered a recourse liability of
such Person);
(g) Indebtedness in respect of reverse repurchase agreements having
a term of not more than 180 days with respect to Investments described in
Section 8.3(d) or (e);
(h) subject to the provisions of Section 9, other unsecured recourse
Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding
principal amount (excluding the Obligations and Indebtedness (not to exceed
$50,000,000.00) arising under the Unsecured Revolving Loan Agreement), not
exceeding $5,000,000.00; provided that neither the Borrower nor any of its
Subsidiaries shall incur any recourse Indebtedness described in this Section
8.1(h) unless the Borrower shall have provided to the Banks a statement that no
Default or Event of Default exists and a Compliance Certificate demonstrating
that the Borrower will be in compliance with the covenants referred to therein
after giving effect to such incurrence;
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(i) Indebtedness in respect of purchase money financing for
equipment, computers and vehicles acquired in the ordinary course of the
Borrower's business not exceeding $1,000,000.00;
(j) subject to the provisions of Section 9, recourse debt to obtain
a construction loan or loans or obligations under completion guarantees in an
aggregate amount not exceeding $70,000,000.00; provided that the liability under
any completion guaranty shall equal the remaining costs to complete the
applicable construction project in excess of construction loan or mezzanine loan
proceeds available therefor and any equity deposited or invested for the payment
of such costs;
(k) Indebtedness of Borrower and its Subsidiaries (not to exceed
$50,000,000.00) arising under the Unsecured Revolving Loan Agreement; provided,
however, that Indebtedness permitted under this Section 8.1(k) shall not include
any Indebtedness arising out of or related to any refinancing or purported
refinancing of such Indebtedness under the Unsecured Revolving Loan Agreement;
(l) subject to the provisions of Section 9, unsecured Indebtedness
of Borrower under guarantees of loans made to employees of Guarantor to purchase
stock in Guarantor, provided that such Indebtedness does not exceed
$15,000,000.00 in the aggregate;
(m) subject to the provisions of Section 9, other unsecured recourse
Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding
principal amount not exceeding $5,000,000.00 in connection with the issuance of
letters of credit on behalf of Borrower or any of its Subsidiaries; and
(n) subject to the provisions of Section 9, unsecured Indebtedness
under guarantees to joint venture partners relating to the repurchase of
ownership interests of such joint venture partners, provided that such
Indebtedness does not exceed $15,000,000.00 in the aggregate, and provided
further that any such guaranty may at the option of Agent not be considered as
Indebtedness for the purposes of Section 9.2 of this Agreement in the event that
Agent shall determine in its sole discretion that circumstances relating to the
Real Estate to which such guaranty relates are such that it is not likely that
such guaranty would be called upon.
SECTION 8.2 RESTRICTIONS ON LIENS, ETC. Neither the Guarantor nor the
Borrower will, nor will either of them permit any of its Subsidiaries to, (a)
create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, charge, restriction or other security interest of
any kind upon any of its property or assets of any character whether now owned
or hereafter acquired, or upon the income or profits therefrom; (b) transfer any
of its property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) acquire, or
agree or have an option to acquire, any property or assets upon conditional sale
or other title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than 30 days after the
same shall have been incurred any Indebtedness or claim or demand against it
that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be
given any priority whatsoever over its general
69
creditors; or (e) sell, assign, pledge or otherwise transfer any accounts,
contract rights, general intangibles, chattel paper or instruments, with or
without recourse; provided that the Borrower, the Guarantor and any Subsidiary
of either of them may create or incur or suffer to be created or incurred or to
exist:
(i) liens in favor of the Borrower or the Guarantor on all or
part of the assets of Subsidiaries of such Person (other than
Collateral) securing Indebtedness owing by Subsidiaries of such
Person to such Person;
(ii) liens on properties to secure taxes, assessments and
other governmental charges or claims for labor, material or supplies
in respect of obligations not overdue;
(iii) deposits or pledges made in connection with, or to
secure payment of, workers' compensation, unemployment insurance,
old age pensions or other social security obligations;
(iv) liens on properties other than the Mortgaged Property or
any interest therein (including the rents, issues and profits
therefrom) in respect of judgments, awards or indebtedness, the
Indebtedness with respect to which is permitted by Section 8.1(d) or
Section 8.1(f);
(v) encumbrances on properties other than the Mortgaged
Property consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects
and irregularities in the title thereto, landlord's or lessor's
liens under leases to which the Borrower, the Guarantor or a
Subsidiary of such Person is a party, and other minor liens or
encumbrances none of which interferes materially with the use of the
property affected in the ordinary conduct of the business of the
Borrower, the Guarantor or their Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse effect on
the business of the Borrower or the Guarantor individually or of
such Person and its Subsidiaries on a Consolidated basis;
(vi) liens on the specific personal property (other than
Collateral) acquired by Indebtedness permitted under Section 8.1(i);
(vii) liens in favor of the Agent and the Banks under the Loan
Documents;
(viii) liens and encumbrances on a Mortgaged Property
expressly permitted under the terms of the Security Deed relating
thereto; and
(ix) liens and encumbrances on Real Estate (other than a
Mortgaged Property) that is the subject of a construction loan
permitted under the terms of Section 8.1(j).
70
SECTION 8.3 RESTRICTIONS ON INVESTMENTS. Neither the Borrower nor the
Guarantor will, nor will either of them permit any of its Subsidiaries to, make
or permit to exist or to remain outstanding any Investment except Investments
in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by the
Borrower or its Subsidiary;
(b) marketable direct obligations of any of the following: Federal
Home Loan Mortgage Corporation, Student Loan Marketing Association, Federal Home
Loan Banks, Federal National Mortgage Association, Government National Mortgage
Association, Bank for Cooperatives, Federal Intermediate Credit Banks, Federal
Financing Banks, Export-Import Bank of the United States, Federal Land Banks, or
any other agency or instrumentality of the United States of America;
(c) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks having total assets in excess of
$100,000,000; provided, however, that the aggregate amount at any time so
invested with any single bank having total assets of less than $1,000,000,000
will not exceed $200,000;
(d) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any State which at the time of purchase are rated by Moody's
Investors Service, Inc. or by Standard & Poor's Corporation at not less than "P
1" if then rated by Moody's Investors Service, Inc., and not less than "A1", if
then rated by Standard & Poor's Corporation;
(e) mortgage-backed securities guaranteed by the Government National
Mortgage Association, the Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation and other mortgage-backed bonds which at the time
of purchase are rated by Moody's Investors Service, Inc. or by Standard & Poor's
Corporation at not less than "Aa" if then rated by Moody's Investors Service,
Inc. and not less than "AA" if then rated by Standard & Poor's Corporation;
(f) repurchase agreements having a term not greater than 90 days and
fully secured by securities described in the foregoing subsection (a), (b) or
(e) with banks described in the foregoing subsection (c) or with financial
institutions or other corporations having total assets in excess of
$500,000,000;
(g) shares of so-called "money market funds" registered with the SEC
under the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in investments described in the foregoing subsections (a)
through (f) and have total assets in excess of $50,000,000;
(h) Investments in Subsidiaries of the Borrower or the Guarantor,
but any Investments in existing Subsidiaries that are not one hundred percent
(100%) owned by the Borrower or Guarantor or new Subsidiaries that are not one
hundred percent (100%) owned by the Borrower or Guarantor after the date hereof
in the aggregate in excess of $30,000,000.00 shall only be made with the consent
of the Required Banks. For the purposes hereof only, 28th
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Street Kentwood Associates and S-12 Associates shall be considered Subsidiaries
of the Borrower;
(i) Investments in Real Estate permitted under Section 7.11;
(j) Subject to the restrictions set forth in Section 8.9,
investments in real estate investment trusts which own real property which is
used principally for fee interests in Real Estate utilized principally for
shopping centers located within the United States, provided that in no event
shall the aggregate costs of all Investments pursuant to this Section 8.3(j)
exceed the amount set forth with respect thereto in the Borrower's annual budget
and business plan delivered to the Agent pursuant to Section 7.4(m);
(k) Investments in joint ventures of the Borrower in which the
ownership interests of the Borrower are such that such joint venture would not
constitute a Subsidiary hereunder and the accounts of which are not consolidated
with the accounts of Borrower, which joint ventures are engaged in the ownership
of Real Estate or development activity pursuant to Section 8.9, and Investments
in mortgages and notes receivables from such joint ventures, provided that in no
event shall such Investments (including the principal amount payable pursuant to
such notes) exceed $30,000,000.00 in the aggregate without the prior written
consent of the Required Banks. For the purposes of this Section 8.3(k) only,
notes receivable from joint ventures shall be valued at face value (subject to
reduction as a result of payments thereon); and
(l) Investments in any common or preferred stock issued by Guarantor
which has been repurchased by the Guarantor, Borrower or any of its
Subsidiaries, provided that in no event shall such Investments exceed in the
aggregate $15,000,000.00 (calculated based upon the consideration given for such
stock) unless the respective ratio of Borrower's and Guarantor's Consolidated
Total Liabilities to such Person's Consolidated Total Adjusted Asset Value is
less than 0.55 to 1 at the time of such Investment and would be less than 0.55
to 1 after giving effect to such Investment.
SECTION 8.4 MERGER, CONSOLIDATION. Neither the Borrower nor the Guarantor
will, nor will either of them permit any of its Subsidiaries to, become a party
to any merger or consolidation except (a) the merger or consolidation of one or
more of the Subsidiaries of the Borrower with and into the Borrower or (b) the
merger or consolidation of two or more Subsidiaries of the Borrower.
SECTION 8.5 CONDUCT OF BUSINESS. Neither the Borrower nor the Guarantor
will conduct any of its business operations other than through the Borrower and
its Subsidiaries; provided, however, that subject to Section 8.3(k) and Section
8.9, ownership of Real Estate and development activities may be conducted
through Affiliates or joint ventures of the Borrower as provided therein. No
reorganizations, spin-offs or new business lines shall be established or occur
without the prior written consent of the Majority Banks.
SECTION 8.6 COMPLIANCE WITH ENVIRONMENTAL LAWS. Neither the Borrower nor
the Guarantor will, nor will either of them permit any of its Subsidiaries, to
do any of the following: (a) use any of the Real Estate or any portion thereof
as a facility for the handling, processing, storage or disposal of Hazardous
Substances, except for small quantities of Hazardous
72
Substances used in the ordinary course of business and in compliance with all
applicable Environmental Laws, (b) cause or permit to be located on any of the
Real Estate any underground tank or other underground storage receptacle for
Hazardous Substances except in full compliance with Environmental Laws, (c)
generate any Hazardous Substances on any of the Real Estate except in full
compliance with Environmental Laws, (d) conduct any activity at any Real Estate
or use any Real Estate in any manner so as to cause a Release of Hazardous
Substances on, upon or into the Real Estate or any surrounding properties or any
threatened Release of Hazardous Substances which might give rise to liability
under CERCLA or any other Environmental Law, or (e) directly or indirectly
transport or arrange for the transport of any Hazardous Substances (except in
compliance with all Environmental Laws).
The Borrower shall:
(i) in the event of any change in Environmental Laws governing the
assessment, release or removal of Hazardous Substances, which change would
lead a prudent lender to require additional testing to avail itself of any
statutory insurance or limited liability, take all action (including,
without limitation, the conducting of engineering tests at the sole
expense of the Borrower) to confirm that no Hazardous Substances are or
ever were Released or disposed of on the Mortgaged Property; and
(ii) if any Release or disposal of Hazardous Substances shall occur
or shall have occurred on the Mortgaged Property (including without
limitation any such Release or disposal occurring prior to the acquisition
of such Mortgaged Property by the Borrower), cause the prompt containment
and removal of such Hazardous Substances and remediation of the Mortgaged
Property in full compliance with all applicable laws and regulations and
to the satisfaction of the Majority Banks; provided, that the Borrower
shall be deemed to be in compliance with Environmental Laws for the
purpose of this clause (ii) so long as it or a responsible third party
with sufficient financial resources is taking reasonable action to
remediate or manage any event of noncompliance to the satisfaction of the
Majority Banks and no action shall have been commenced by any enforcement
agency. The Majority Banks may engage their own Environmental Engineer to
review the environmental assessments and the Borrower's compliance with
the covenants contained herein.
At any time after an Event of Default shall have occurred hereunder, or,
whether or not an Event of Default shall have occurred, at any time that the
Agent or the Majority Banks shall have reasonable grounds to believe that a
Release or threatened Release of Hazardous Substances may have occurred,
relating to any Mortgaged Property, or that any of the Mortgaged Properties is
not in compliance with the Environmental Laws, the Agent may at its election
(and will at the request of the Majority Banks) obtain such environmental
assessments of such Mortgaged Property prepared by an Environmental Engineer as
may be necessary or advisable for the purpose of evaluating or confirming (i)
whether any Hazardous Substances are present in the soil or water at or adjacent
to such Mortgaged Property and (ii) whether the use and operation of such
Mortgaged Property comply with all Environmental Laws. Environmental assessments
may include detailed visual inspections of such Mortgaged Property including,
without
73
limitation, any and all storage areas, storage tanks, drains, dry wells and
leaching areas, and the taking of soil samples, as well as such other
investigations or analyses as are necessary or appropriate for a complete
determination of the compliance of such Mortgaged Property and the use and
operation thereof with all applicable Environmental Laws. All such environmental
assessments shall be at the sole cost and expense of the Borrower.
SECTION 8.7 DISTRIBUTIONS. Neither the Borrower nor the Guarantor shall
make any Distributions which would cause it to violate any of the following
covenants:
(a) The Borrower shall not pay any Distribution to its partners if
such Distribution is in excess of the amount which, when added to the amount of
all other Distributions paid in the same fiscal quarter and the preceding three
(3) fiscal quarters would exceed ninety-five percent (95%) of its Funds from
Operations for the four (4) consecutive fiscal quarters ending prior to the
quarter in which such Distribution is paid; provided, however, notwithstanding
the foregoing, Borrower and Guarantor may, subject to the limitations set forth
in this Agreement (including specifically, but without limitation, those
contained in ss.ss.8.3(l) and 8.7(b)) make Distributions in order to enable
Borrower or Guarantor to repurchase common or preferred stock of Guarantor so
long as (i) no Event of Default shall have occurred and be continuing on the
date of any such repurchase and (ii) no Default or Event of Default shall occur
as a result of any such repurchase. Notwithstanding the foregoing, the Borrower
may pay a Distribution to its partners of sums received by it pursuant to the
Tax Agreement dated as of May 10, 1996 between Atlantic Realty Trust and RPS
Realty Trust;
(b) In the event that an Event of Default shall have occurred and be
continuing, neither the Borrower nor the Guarantor shall make any Distributions
by the Borrower to the Guarantor and by the Guarantor other than the minimum
Distributions required under the Code to maintain the REIT Status of the
Guarantor, as evidenced by a certification of the principal financial or
accounting officer of the Guarantor containing calculations in reasonable detail
satisfactory in form and substance to Agent; provided, however, that neither
Borrower nor Guarantor shall be entitled to make any Distributions in connection
with the repurchase of common or preferred stock of Guarantor at any time after
an Event of Default shall have occurred and be continuing; and
(c) Notwithstanding the foregoing, at any time when an Event of
Default shall have occurred and the maturity of the Obligations has been
accelerated, neither the Borrower nor the Guarantor shall make any Distributions
whatsoever, directly or indirectly.
SECTION 8.8 ASSET SALES. Neither the Borrower, the Guarantor nor any
Subsidiary thereof shall sell, transfer or otherwise dispose of any Real Estate
(other than a Mortgaged Property) having an Appraised Value in excess of
$10,000,000.00 (except as the result of a condemnation or casualty and except
for the granting of Permitted Liens) unless there shall have been delivered to
the Agent a statement that no Default or Event of Default exists immediately
prior to such sale, transfer or other disposition or would exist after giving
effect to such sale, transfer or other disposition.
SECTION 8.9 DEVELOPMENT ACTIVITY. Neither the Borrower, the Guarantor nor
any of their respective Subsidiaries shall engage, directly or indirectly, in
any development except as
74
expressly provided in this Section 8.9. The Borrower, the Guarantor or any of
their respective Subsidiaries may engage, either directly or, in the case of the
Borrower, through any Affiliate of the Borrower, an Investment in which is
permitted under Section 8.3(k), in the development of property to be used
principally for retail shopping centers which at any time has a total cost
(including acquisition, construction and other costs), whether such total costs
are incurred directly by the Borrower, the Guarantor or such Subsidiary or
through an Investment in an Affiliate permitted under Section 8.3(k),
individually for each development project that is not in excess of ten percent
(10%) of the Consolidated Total Adjusted Asset Value of the Borrower, and in the
aggregate for all development projects that is not in excess of fifteen percent
(15%) of the Consolidated Total Adjusted Asset Value of the Borrower, without
the prior written consent of the Majority Banks. For the purposes of calculating
the cost of developments by Subsidiaries or Affiliates, the cost of such
developments shall be based upon the Borrower's interest in such Subsidiaries or
Affiliates. For purposes of this Section 8.9, the term "development" shall
include the new construction of a shopping center complex or the substantial
renovation of improvements to real property which materially change the
character or size thereof, but shall not include the addition of amenities or
other related facilities to existing Real Estate which is already used
principally for shopping centers; provided, however, that the term "development"
shall not include the addition of an anchor store to an existing shopping center
project provided that the construction of such improvements is performed by the
tenant, and the Borrower (or any Affiliate thereof), the Guarantor or its
respective Subsidiary, as applicable, is only obligated to reimburse such tenant
for a fixed amount with respect to the cost of such construction upon completion
of such construction by such tenant. The Borrower and the Guarantor each
acknowledges that the decision of the Majority Banks to grant or withhold such
consent shall be based on such factors as the Majority Banks deem relevant in
their sole discretion, including without limitation, evidence of sufficient
funds both from borrowings and equity to complete such development and evidence
that the Borrower (or any Affiliate thereof), the Guarantor or either of its
Subsidiaries has the resources and expertise necessary to complete such project.
Nothing herein shall prohibit the Borrower, the Guarantor or any of their
respective Subsidiaries thereof from entering into an agreement to acquire Real
Estate which has been developed and initially leased by another Person. Neither
the Borrower (or any Affiliate thereof), the Guarantor nor any Subsidiary shall
acquire or hold any number of undeveloped parcels of Real Estate which in the
aggregate exceed five percent (5%) of the Consolidated Total Adjusted Asset
Value of the Borrower and the Guarantor without the prior written consent of the
Majority Banks, provided that the acquisition or holding of any outlots or
property adjacent to any Real Estate owned by the Borrower (or any Affiliate
thereof), the Guarantor or any Subsidiary shall not be deemed to be an
undeveloped parcel of Real Estate for this purpose and options to acquire any
property shall not be deemed an acquisition or holding of such property.
Further, any new development project permitted under the terms of this Section
8.9 engaged in by the Borrower (or any Affiliate thereof), the Guarantor or any
Subsidiary shall be either (a) at least seventy percent (70%) pre-leased (based
on the gross leasable area of the improvements to the development, or the phase
of the development project being developed if the Borrower submits and the Agent
agrees that the development consists of more than one (1) phase, excluding
outlots), including all anchors, or under a purchase agreement and all
construction bids shall be in place and any such development shall continue to
be deemed an undeveloped parcel until such time as construction commences, or
(b) sufficiently pre-leased such that based on such leases the gross income from
such leases upon completion of such project shall equal or exceed projected
operating expenses (including reserves for expenses
75
not paid on a monthly basis). For purposes of this Section 8.9, property shall
be deemed to be in development at all times that it is Under Development.
SECTION 9. FINANCIAL COVENANTS OF THE GUARANTOR AND THE BORROWER.
The Borrower and the Guarantor, jointly and severally, covenant and agree
that, so long as any Loan, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or to participate in any Letters of Credit,
each of them will comply with the following:
SECTION 9.1 BORROWING BASE. The Borrower will not permit the Outstanding
Loans and Letters of Credit Outstanding as of the date of determination to be
greater than the Borrowing Base of the Borrower as determined as of the same
date.
SECTION 9.2 LIABILITIES TO ASSETS RATIO. Each of the Borrower and the
Guarantor will not (i) permit the ratio of its Consolidated Total Liabilities to
Consolidated Total Adjusted Asset Value to exceed 0.65 to 1.
SECTION 9.3 DEBT SERVICE COVERAGE. The Borrower will not permit the
Borrower's Consolidated Operating Cash Flow for the period covered by the four
(4) previous consecutive fiscal quarters (treated as a single accounting period)
to be less than 1.6 times the Debt Service of the Borrower for such period;
provided, however, that for purposes of determining compliance with this
covenant, prior to such time as the Borrower has owned and operated a parcel of
Real Estate for four (4) full fiscal quarters, the Operating Cash Flow with
respect to such parcel of Real Estate for the number of full fiscal quarters
which the Borrower has owned and operated such parcel of Real Estate as
annualized shall be utilized. For the purpose of calculating Consolidated
Operating Cash Flow under this Section 9.3 for any parcel of Real Estate, the
Operating Cash Flow Rental Adjustment shall be applied to any parcel of Real
Estate affected by any of the events described in the definition of Operating
Cash Flow Rental Adjustment. Additionally, for the purposes of calculating
Consolidated Operating Cash Flow under this Section 9.3, Operating Cash Flow
attributable to any Redevelopment Property shall be included even if such
Redevelopment Property is then being valued at cost for the purposes of
calculating Borrower's Consolidated Total Adjusted Asset Value. For the purposes
of this Section 9.3, the Operating Cash Flow and Debt Service attributable to
any Real Estate and the principal indebtedness repaid as a part of such sale
shall be excluded from the calculations when such Real Estate is sold.
SECTION 9.4 CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not permit
its Consolidated Tangible Net Worth to be less than $200,000,000.00 plus
seventy-five percent (75%) of any Net Offering Proceeds received by the Borrower
or the Guarantor after the date of this Agreement.
SECTION 10. CLOSING CONDITIONS.
Pursuant to the Prior Credit Agreement, the Borrower executed and
delivered various documents to the Agent as a condition to the obligations of
the Agent and Fleet to make the initial Loans under the Prior Credit Agreement.
Except to the extent expressly amended and replaced as provided in this Section
10, all such documents shall remain in full force and effect, and none of such
documents is superseded by the provisions of this Section 10 or any other
provision of its Agreement. The obligation of the Agent and the Banks to make
further Loans to the Borrower or
76
participate in further Letters of Credit for the benefit of the Borrower is
subject to the satisfaction of the following conditions precedent:
SECTION 10.1 LOAN DOCUMENTS. The Borrower, the Guarantor and the
Subsidiary Guarantors shall have duly executed and delivered to the Agent,
except that each Bank shall have received a fully executed counterpart of its
Note, each of the Loan Documents to which such Person is a party, each of which
shall be in full force and effect and shall be in form and substance
satisfactory to the Majority Banks, including, without limitation, the
following:
(a) Agreement. Two (2) duly executed copies of this Agreement.
(b) Indemnity Agreement. One (1) duly executed copy of the Indemnity
Agreement.
(c) Guaranty. One (1) duly executed copy of the Guaranty, the
Subsidiary Guaranty and the Contribution Agreement (Revolver).
(d) Amendments to Security Deeds and Assignments of Rents. One (1)
duly executed copy of an Amendment to each Security Deed and Assignment of Rents
executed and delivered in connection with the Prior Credit Agreement with
respect to the Regular Real Estate.
(e) Special Security Documents. One (1) duly executed copy of each
of the Special Security Documents relating to the properties described on
Exhibit E attached hereto.
(f) Eligible Real Estate Qualification Documents. All Eligible Real
Estate Qualification Documents with respect to each parcel of Mortgaged Property
to be included in the Collateral as of the date of this Agreement, if any.
(g) Assignment of Hedge. One (1) duly executed copy of the
Assignment of Hedge.
(h) Agreement of Management Company. One (1) duly executed copy of
the Agreement of Management Company.
SECTION 10.2 RESOLUTIONS. All action on the part of the Borrower, the
Guarantor, or any of their respective Subsidiaries as applicable, necessary for
the valid execution, delivery and performance by such Person of this Agreement
and the other Loan Documents to which such Person is or is to become a party
shall have been duly and effectively taken, and evidence thereof satisfactory to
the Agent shall have been provided to the Agent. The Agent shall have received
from the Guarantor true copies of the resolutions adopted by its board of
directors authorizing the transactions described herein, certified by its
secretary as of a recent date to be true and complete.
SECTION 10.3 INCUMBENCY CERTIFICATE; AUTHORIZED SIGNERS. The Agent shall
have received incumbency certificates, dated as of the date of this Agreement,
signed by a duly authorized officer of the Guarantor (with respect to the
Borrower and the Guarantor) and of the Subsidiary Guarantors and giving the name
and bearing a specimen signature of each individual who shall be authorized to
sign, in the name and on behalf of such Person, each of the Loan Documents to
77
which such Person is or is to become a party. The Agent shall have also received
from the Borrower a certificate, dated as of the date of this Agreement, signed
by a duly authorized officer of the Borrower and giving the name and specimen
signature of each individual who shall be authorized to make Loan and Conversion
Requests and to give notices and to take other action on behalf of the Borrower
under the Loan Documents.
SECTION 10.4 OPINION OF COUNSEL. The Agent shall have received a favorable
opinion addressed to the Banks and the Agent and dated as of the date of this
Agreement, in form and substance satisfactory to the Banks and the Agent, from
counsel of the Borrower, the Guarantor and the Subsidiary Guarantors as to such
matters as the Agent shall reasonably request.
SECTION 10.5 PERFORMANCE; NO DEFAULT. The Borrower and the Guarantor shall
have performed and complied with all terms and conditions herein required to be
performed or complied with by it on or prior to the Closing Date, and on the
Closing Date there shall exist no Default or Event of Default.
SECTION 10.6 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrower and the Guarantor in the Loan Documents or
otherwise made by or on behalf of the Borrower, the Guarantor or any of their
respective Subsidiaries in connection therewith or after the date thereof shall
have been true and correct in all material respects when made and shall also be
true and correct in all material respects on the Closing Date.
SECTION 10.7 PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory to the Agent and the Agent's Special Counsel in
form and substance, and the Agent shall have received all information and such
counterpart originals or certified copies of such documents and such other
certificates, opinions or documents as the Agent and the Agent's Special Counsel
may reasonably require.
SECTION 10.8 COMPLIANCE CERTIFICATE. A Compliance Certificate dated as of
the date of this Agreement demonstrating compliance with each of the covenants
calculated therein as of the most recent fiscal quarter end for which the
Borrower and the Guarantor has provided financial statements under Section 6.4
adjusted in the best good faith estimate of the Borrower or the Guarantor, as
applicable, shall have been delivered to the Agent.
SECTION 10.9 STOCKHOLDER AND PARTNER CONSENTS. The Agent shall have
received evidence satisfactory to the Agent that all necessary stockholder and
partner consents required in connection with the consummation of the
transactions contemplated by this Agreement and the other Loan Documents have
been obtained.
SECTION 10.10 OTHER DOCUMENTS. To the extent requested by the Agent, the
Agent shall have received executed copies of all material agreements of any
nature whatsoever to which the Borrower, the Guarantor or any Subsidiary is a
party affecting or relating to the use, operation, development, construction or
management of the Mortgaged Property.
SECTION 10.11 NO CONDEMNATION/TAKING. The Agent shall have received
written confirmation from the Borrower that no condemnation proceedings are
pending or to the Borrower's knowledge threatened against any Mortgaged Property
or, if any such proceedings are pending or
78
threatened, identifying the same and the Real Estate affected thereby and the
Agent shall have determined that none of such proceedings is or will be material
to the Mortgaged Property affected thereby.
SECTION 10.12 [Intentionally Omitted].
SECTION 10.13 TITLE INSURANCE UPDATES. The Agent shall have received a
"date down" endorsement to each Title Policy with respect to each Mortgaged
Property, or with respect to any Special Real Estate if such "date down"
endorsement is not available, a current mortgagees' title commitment for such
Special Real Estate in favor of Agent.
SECTION 10.14 PAYMENT OF FEES. The Borrower shall have paid to the Agent
the fees required by Section 4.2.
SECTION 10.15 INSURANCE. The Agent shall have received duplicate originals
or certified copies of all policies of insurance required by this Agreement.
SECTION 10.16 APPRAISALS. The Agent shall have received Appraisals of each
of the Mortgaged Properties (other than those for which the existing Appraisal
is dated less than 12 months from the date hereof) in form and substance
satisfactory to the Agent, completed no earlier than three (3) months prior to
the Closing Date, and the Agent shall have determined prior to the Closing Date
an Appraised Value for such Mortgaged Properties to assist in determining the
Borrowing Base.
SECTION 10.17 OTHER. The Agent shall have reviewed such other documents,
instruments, certificates, opinions, assurances, consents and approvals as the
Agent or the Agent's Special Counsel may reasonably have requested.
SECTION 11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan or to participate in any
Letter of Credit, whether on or after the date of this Agreement, shall also be
subject to the satisfaction of the following conditions precedent:
SECTION 11.1 PRIOR CONDITIONS SATISFIED. All conditions set forth in
Section 10 shall continue to be satisfied as of the date upon which any Loan is
to be made or any Letter of Credit to be issued.
SECTION 11.2 REPRESENTATIONS TRUE; NO DEFAULT. Each of the representations
and warranties made by or on behalf of the Borrower, the Guarantor or any of
their respective Subsidiaries contained in this Agreement, the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection with this Agreement shall be true as of the date as of which they
were made and shall also be true at and as of the time of the making of such
Loan or the issuance of such Letter of Credit, as applicable, with the same
effect as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or permitted by this Agreement and the
other Loan Documents and changes occurring in the ordinary course of business
that singly or in the aggregate are not materially adverse, and except to the
extent that such representations and warranties relate expressly to an earlier
date) and no Default or Event of Default shall have occurred and be continuing.
The Agent shall have received a certificate of the
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Borrower and the Guarantor signed by an authorized officer of the Borrower and
the Guarantor to such effect.
SECTION 11.3 NO LEGAL IMPEDIMENT. There shall be no law or regulations
thereunder or interpretations thereof that in the reasonable opinion of any Bank
would make it illegal for such Bank to make such Loan or to participate in such
Letter of Credit.
SECTION 11.4 GOVERNMENTAL REGULATION. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
SECTION 11.5 PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the Loan or the Letter of Credit, as applicable, shall be satisfactory in
substance and in form to the Agent, and the Agent shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Agent may reasonably request.
SECTION 11.6 BORROWING DOCUMENTS. In the case of any request for a Loan
and/or a Letter of Credit, as applicable, the Agent shall have received the
request for a Loan required by Section 2.5 in the form of Exhibit B hereto,
fully completed and/or the Letter of Credit Application required by Section 2.7
in the form of Exhibit D hereto fully completed.
SECTION 11.7 ENDORSEMENT TO TITLE POLICY. At such time as the Agent shall
determine in its discretion, to the extent available under applicable law, a
"date down" endorsement to each Title Policy indicating no change in the state
of title and containing no survey exceptions not approved by the Majority Banks,
which endorsement shall, expressly or by virtue of a proper "revolving credit"
clause or endorsement in the Title Policy, increase the coverage of the Title
Policy to the aggregate amount of all Loans advanced and outstanding and all
Letters of Credit issued and outstanding on or before the effective date of such
endorsement (provided that the amount of coverage under an individual Title
Policy for an individual Mortgaged Property need not equal the aggregate amount
of all Loans), or if such endorsement is not available, such other evidence and
assurances as the Agent may reasonably require (which evidence may include,
without limitation, an affidavit from the Borrower stating that there have been
no changes in title from the date of the last effective date of the Title
Policy).
SECTION 11.8 FUTURE ADVANCES TAX PAYMENT. The Borrower will pay to the
Agent any mortgage, recording, intangible, documentary stamp or other similar
taxes and charges which the Agent reasonably determines to be payable as a
result of such Loan to any state or any county or municipality thereof in which
any of the Mortgaged Properties are located and deliver to the Agent such
affidavits or other information which the Agent reasonably determines to be
necessary in connection with the payment of such tax, in order to insure that
the Security Deeds on Mortgaged Property located in such state secure the
Borrower's obligation with respect to the Loans then being requested by the
Borrower. The provisions of this Section 11.8 shall be without limitation of the
Borrower's obligations under other provisions of the Loan Documents, including,
without limitation, Section 15 hereof.
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SECTION 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
SECTION 12.1 EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "Defaults") shall
occur:
(a) the Borrower shall fail to pay any principal of the Loans after
the same shall become due and payable, whether at the stated date of maturity or
any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower shall fail to pay any interest on the Loans, any
reimbursement obligations with respect to the Letters of Credit or any other
fees or sums due hereunder or under any of the other Loan Documents, within ten
(10) days after the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other date fixed
for payment;
(c) the Borrower or the Guarantor shall fail to comply with any
covenant contained in Section 9, and such failure shall continue for thirty (30)
days after written notice thereof shall have been given to the Borrower by the
Agent;
(d) the Borrower or the Guarantor or any of its Subsidiaries shall
fail to perform any other material term, covenant or agreement contained herein
or in any of the other Loan Documents (other than those specified above in this
Section 12), and such failure shall continue for thirty (30) days after written
notice thereof shall have been given to the Borrower by the Agent; provided,
however, that in the event that such failure shall be a failure to comply with
the terms of Section 8.7(a), the Borrower shall be afforded a period of one (1)
fiscal quarter to cure such failure provided that the Distribution which caused
such failure was historically consistent with prior dividends;
(e) any representation or warranty made by or on behalf of the
Borrower, the Guarantor or any of their respective Subsidiaries in this
Agreement or any other Loan Document, or in any report, certificate, financial
statement, request for a Loan, or in any other document or instrument delivered
pursuant to or in connection with this Agreement, any advance of a Loan or any
of the other Loan Documents shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower, the Guarantor or any of their respective
Subsidiaries shall fail to pay at maturity, or within any applicable period of
grace, any obligation for borrowed money or credit received or other
Indebtedness, or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing any such borrowed money or credit received or other Indebtedness for
such period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof; provided that the events
described in this Section 12.1(f) shall not constitute an Event of Default
unless such failure to perform, together with other failures to perform as
described in this Section 12.1(f), involve singly or in the aggregate
obligations for borrowed money or credit received totaling in excess of
$5,000,000.00;
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(g) the Borrower, the Guarantor or any of their respective
Subsidiaries, (i) shall make an assignment for the benefit of creditors, or
admit in writing its general inability to pay or generally fail to pay its debts
as they mature or become due, or shall petition or apply for the appointment of
a trustee or other custodian, liquidator or receiver of any such Person or of
any substantial part of the assets of any thereof, (ii) shall commence any case
or other proceeding relating to any such Person under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, or
(iii) shall take any action to authorize or in furtherance of any of the
foregoing;
(h) a petition or application shall be filed for the appointment of
a trustee or other custodian, liquidator or receiver of any of the Borrower, the
Guarantor or any of their respective Subsidiaries or any substantial part of the
assets of any thereof, or a case or other proceeding shall be commenced against
any such Person under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, and any such Person shall indicate its
approval thereof, consent thereto or acquiescence therein or such petition,
application, case or proceeding shall not have been dismissed within sixty (60)
days following the filing or commencement thereof;
(i) a decree or order is entered appointing any trustee, custodian,
liquidator or receiver or adjudicating any of the Borrower, the Guarantor or any
of their respective Subsidiaries bankrupt or insolvent, or approving a petition
in any such case or other proceeding, or a decree or order for relief is entered
in respect of any such Person in an involuntary case under federal bankruptcy
laws as now or hereafter constituted;
(j) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than (60) days, whether or not consecutive, any uninsured
final judgment against any of the Borrower, the Guarantor or any of their
respective Subsidiaries that, with other outstanding uninsured final judgments,
undischarged, against such Persons exceeds in the aggregate $1,000,000.00;
(k) any of the Loan Documents shall be canceled, terminated, revoked
or rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Banks, or any action
at law, suit in equity or other legal proceeding to cancel, revoke or rescind
any of the Loan Documents shall be commenced by or on behalf of the Borrower,
the Guarantor, any of their respective Subsidiaries or any of their respective
holders of Voting Interests, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
in accordance with the terms thereof;
(l) any dissolution, termination, partial or complete liquidation,
merger or consolidation of the Borrower or the Guarantor or any of their
respective Subsidiaries or any sale, transfer or other disposition of the assets
of the Borrower or any of its Subsidiaries other than as permitted under the
terms of this Agreement or the other Loan Documents;
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(m) any suit or proceeding shall be filed against the Borrower, the
Guarantor or any of their respective Subsidiaries or any of the Mortgaged
Properties which in the good faith business judgment of the Majority Banks after
giving consideration to the likelihood of success of such suit or proceeding and
the availability of insurance to cover any judgment with respect thereto and
based on the information available to them if adversely determined, would have a
materially adverse effect on the ability of the Borrower, the Guarantor or any
of their respective Subsidiaries to perform each and every one of its
obligations under and by virtue of the Loan Documents and such suit or
proceeding is not dismissed within sixty (60) days following the filing or
commencement thereof;
(n) the Borrower shall be indicted for a federal crime, a punishment
for which could include the forfeiture of any assets of such Person, including
the Mortgaged Property;
(o) with respect to any Guaranteed Pension Plan, an ERISA Reportable
Event shall have occurred and the Majority Banks shall have determined in their
reasonable discretion that such event reasonably could be expected to result in
liability of the Borrower, the Guarantor or any of their respective Subsidiaries
to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$1,000,000 and such event in the circumstances occurring reasonably could
constitute grounds for the termination of such Guaranteed Pension Plan by the
PBGC or for the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee shall have been
appointed by the United States District Court to administer such Plan or the
PBGC shall have instituted proceedings to terminate such Guaranteed Pension
Plan;
(p) a Change of Control shall occur;
(q) either of the President or Chief Executive Officer of the
Borrower approved by the Majority Banks as of the date of this Agreement shall
cease to be the President or Chief Executive Officer, as applicable, of the
Borrower and a competent and experienced successor for such Person shall not be
approved by the Agent within six (6) months of such event, such approval not to
be unreasonably withheld;
(r) any Event of Default, as defined in any of the other Loan
Documents, shall occur; or
(s) any "Event of Default" (as defined in the Unsecured Revolving
Loan Agreement) shall occur;
then, and in any such event, the Agent may, and upon the request of the Majority
Banks shall, by notice in writing to the Borrower (i) declare all amounts owing
with respect to this Agreement, the Notes, the Letters of Credit and the other
Loan Documents to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower and (ii) require the
Borrower to immediately cash collateralize all outstanding Letters of Credit or
obtain replacement letters of credit for such Letters of Credit, all in a manner
satisfactory to the Majority Banks; provided that in the event of any Event of
Default specified in Section 12.l(g), Section 12.1(h) or Section 12.1(i), all
such amounts shall become immediately due and payable automatically and the
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Borrower shall be required to immediately so cash collateralize or replace all
outstanding Letters of Credit forthwith, without any requirement of notice from
any of the Banks or the Agent.
SECTION 12.2 LIMITATION OF CURE PERIODS. Notwithstanding the provisions of
subsections (b), (c) and (d) of Section 12.1, the cure periods provided therein
shall not be allowed and the occurrence of a Default thereunder immediately
shall constitute an Event of Default for all purposes of this Agreement and the
other Loan Documents if, within the period of twelve (12) months immediately
preceding the occurrence of such Default, there shall have occurred two periods
of cure or portions thereof under any one or more than one of said subsections.
SECTION 12.3 CERTAIN CURE PERIODS.
(a) In the event that there shall occur any Default under Section
12.1(c), then within five (5) Business Days after receipt of notice of such
Default from the Agent or the Majority Banks the Borrower may elect to cure such
Default by providing additional Collateral consisting of Potential Collateral,
and/or to reduce the outstanding Loans to it, in which event such actions shall
be completed not later than fifteen (15) days following the date on which the
Borrower is notified that the Majority Banks have approved the Borrower's
proposed actions (or thirty (30) days in the event that the Borrower intends to
provide additional Mortgaged Property). The Borrower's notice of its election
pursuant to the preceding sentence shall be delivered to the Agent within the
period of five (5) Business Days provided above. Within five (5) Business Days
after receipt of such advice, the Majority Banks shall advise the Borrower as to
whether in their good faith judgment the actions proposed by the Borrower are
sufficient to cure such Default without the creation of any other Default
hereunder. In the event that the Majority Banks determine the Borrower's
proposal is insufficient to cure such Default or is otherwise not in accordance
with the terms of this Agreement, the Borrower within an additional three (3)
Business Days after such negative notice may submit to the Agent an alternative
plan or evidence establishing that the Borrower's original election was
sufficient. In the event that within the times provided herein the Borrower
shall have failed to provide evidence satisfactory to the Majority Banks that
the Borrower's proposed actions are sufficient to cure such Default in
accordance with the terms hereof, the cure period shall terminate and such
Default immediately shall constitute an Event of Default.
(b) In the event that the Borrower shall elect in whole or in part
under Section 12.3(a) to provide additional Mortgaged Property, (i) the Real
Estate to be added to the Collateral shall be Eligible Real Estate and on or
prior to the expiration of the 30-day period each of the Eligible Real Estate
Qualification Documents shall have been completed at the Borrower's expense and
provided to the Agent for the benefit of the Banks, and (ii) the Borrower, in
addition to any other amounts payable under this Agreement, shall pay to the
Agent within fifteen (15) days following the commencement of such 30-day period
a review fee in the amount of $10,000.00, which fee shall be nonrefundable under
any circumstances, to be split equally by the Banks without regard to their
respective Commitment Percentages.
SECTION 12.4 TERMINATION OF COMMITMENTS. If any one or more Events of
Default specified in Section 12.1(g), Section 12.1(h) or Section 12.1(i) shall
occur, then immediately and without any action on the part of the Agent or any
Bank any unused portion of the credit hereunder shall terminate and the Banks
shall be relieved of all obligations to make Loans to the Borrower or to
participate in Letters of Credit for the account of the Borrower. If any other
Event of Default shall have occurred, the Agent, upon the election of the
Majority Banks, may by notice to the Borrower terminate the obligation to make
Loans to the Borrower or to participate in
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Letters of Credit for the account of the Borrower. No termination under this
Section 12.4 shall relieve the Borrower of its obligations to the Banks arising
under this Agreement or the other Loan Documents.
SECTION 12.5 REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, the Agent on
behalf of the Banks may, with the consent of the Majority Banks but not
otherwise, proceed to protect and enforce their rights and remedies under this
Agreement, the Notes, the Letters of Credit or any of the other Loan Documents
by suit in equity, action at law or other appropriate proceeding, whether for
the specific performance of any covenant or agreement contained in this
Agreement and the other Loan Documents or any instrument pursuant to which the
Obligations are evidenced, including to the full extent permitted by applicable
law the obtaining of the ex parte appointment of a receiver, and, if such amount
shall have become due, by declaration or otherwise, proceed to enforce the
payment thereof or any other legal or equitable right. No remedy herein
conferred upon the Agent or the holder of any Note is intended to be exclusive
of any other remedy and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or any other provision of law. In the event
that all or any portion of the Obligations is collected by or through an
attorney-at-law, the Borrower shall pay all costs of collection including, but
not limited to, reasonable attorneys' fees.
SECTION 12.6 DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that,
following the occurrence or during the continuance of any Event of Default, any
monies are received in connection with the enforcement of any of the Security
Documents, or otherwise with respect to the realization upon any of the
Collateral, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent to protect or preserve the collateral or in connection with the collection
of such monies by the Agent, for the exercise, protection or enforcement by the
Agent of all or any of the rights, remedies, powers and privileges of the Agent
under this Agreement or any of the other Loan Documents or in respect of the
Collateral or in support of any provision of adequate indemnity to the Agent
against any taxes or liens which by law shall have, or may have, priority over
the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or preference as
the Majority Banks shall determine; provided, however, that (i) distributions in
respect of such Obligations shall be made pari passu among Obligations with
respect to the Agent's fee payable pursuant to Section 4.3 and all other
Obligations, (ii) in the event that any Bank shall have wrongfully failed or
refused to make an advance under Section 2.6 or Section 2.7(f) and such failure
or refusal shall be continuing, advances made by other Banks during the pendency
of such failure or refusal shall be entitled to be repaid as to principal and
accrued interest in priority to the other Obligations described in this
subsection (b), (iii) Obligations owing to the Banks with respect to each type
of Obligation such as interest, principal, fees and expenses, shall be made
among the Banks pro rata, and (iv) amounts received or realized from the
Borrower shall be applied against the
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Obligations of the Borrower; and provided, further that the Majority Banks may
in their discretion make proper allowance to take into account any Obligations
not then due and payable;
(c) Third, to the Hedge Obligations; and
(d) Fourth, the excess, if any, shall be returned to the Borrower or
to such other Persons as are entitled thereto.
SECTION 13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch of where
such deposits are held) or other sums credited by or due from any of the Banks
to the Borrower or the Guarantor and any securities or other property of the
Borrower or the Guarantor in the possession of such Bank may be applied to or
set off against the payment of Obligations of such Person and any and all other
liabilities, direct, or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, of such Person to such Bank. Each of the
Banks agrees with each other Bank that if such Bank shall receive from the
Borrower or the Guarantor, whether by voluntary payment, exercise of the right
of setoff, or otherwise, and shall retain and apply to the payment of the Note
or Notes held by such Bank any amount in excess of its ratable portion of the
payments received by all of the Banks with respect to the Notes held by all of
the Banks, such Bank will make such disposition and arrangements with the other
Banks with respect to such excess, either by way of distribution, pro tanto
assignment of claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Notes held by it its proportionate payment as
contemplated by this Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
SECTION 14. THE AGENT.
SECTION 14.1 AUTHORIZATION. The Agent is authorized to take such action on
behalf of each of the Banks and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto, provided
that no duties or responsibilities not expressly assumed herein or therein shall
be implied to have been assumed by the Agent. The obligations of the Agent
hereunder are primarily administrative in nature, and nothing contained in this
Agreement or any of the other Loan Documents shall be construed to constitute
the Agent as a trustee for any Bank or to create any agency or fiduciary
relationship. Agent shall act as the contractual representative of the Banks
hereunder, and notwithstanding the use of the term "Agent" it is understood and
agreed that Agent shall not have any fiduciary duties or fiduciary
responsibilities to any Bank or by reason of this Agreement or any of the other
Loan Documents and is acting as an independent contractor, the duties of which
are limited to those expressly set forth in this Loan Agreement and the other
Loan Documents. The Borrower and any other Person shall be entitled to
conclusively rely on a statement from the Agent that it has the authority to act
for and bind the Banks pursuant to this Agreement and the other Loan Documents.
The Banks authorize the Agent to enter into the Subordination Agreement on
behalf of the Banks.
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SECTION 14.2 EMPLOYEES AND AGENTS. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent may reasonably determine,
and all reasonable fees and expenses of any such Persons shall be paid by the
Borrower.
SECTION 14.3 NO LIABILITY. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent, or employee thereof, shall be liable to any of the Banks
for any waiver, consent or approval given or any action taken, or omitted to be
taken, in good faith by it or them hereunder or under any of the other Loan
Documents, or in connection herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment whatsoever, except that the
Agent or such other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
SECTION 14.4 NO REPRESENTATIONS. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any of
the other Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower, the Guarantor or any of their respective Subsidiaries, or be bound
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any other of the Loan
Documents. The Agent shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrower, the Guarantor or any
holder of any of the Notes shall have been duly authorized or is true, accurate
and complete. The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Banks,
with respect to the creditworthiness or financial condition of the Borrower, the
Guarantor or any of their respective Subsidiaries or the value of the Collateral
or any of the assets of the Borrower, the Guarantor or their respective
Subsidiaries. Each Bank acknowledges that it has, independently and without
reliance upon the Agent or any other Bank, and based upon such information and
documents as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank, based upon
such information and documents as it deems appropriate at the time, continue to
make its own credit analysis and decisions in taking or not taking action under
this Agreement and the other Loan Documents.
SECTION 14.5 PAYMENTS.
(a) A payment by the Borrower or the Guarantor to the Agent
hereunder or under any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees to distribute to each
Bank not later than one Business Day after the Agent's receipt of good funds,
determined in accordance with the Agent's customary practices, such Bank's pro
rata share of payments received by the Agent for the account of the
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Banks except as otherwise expressly provided herein or in any of the other Loan
Documents. In the event the Agent fails to distribute such amounts within one
Business Day as provided above, the Agent shall pay interest on such amount at a
rate per annum equal to the Federal Funds Effective Rate from time to time in
effect.
(b) If in the opinion of the Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under any of the
other Loan Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been adjudicated by
a court of competent jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the Agent is to be repaid,
each Person to whom any such distribution shall have been made shall either
repay to the Agent its proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and to such Persons as shall be
determined by such court. In the event that the Agent shall refrain from making
any distribution of any amount received by it as provided in this Section
14.5(b), the Agent shall endeavor to hold such amounts in an interest bearing
account and at such time as such amounts may be distributed to the Banks, the
Agent shall distribute to each Bank, based on their respective Commitment
Percentages, its pro rata share of the interest or other earnings from such
deposited amount.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Bank that fails (i) to make
available to the Agent its pro rata share of any Loan or (ii) to comply with the
provisions of Section 13 with respect to making dispositions and arrangements
with the other Banks, where such Bank's share of any payment received, whether
by setoff or otherwise, is in excess of its pro rata share of such payments due
and payable to all of the Banks, in each case as, when and to the full extent
required by the provisions of this Agreement, shall be deemed delinquent (a
"Delinquent Bank") and shall be deemed a Delinquent Bank until such time as such
delinquency is satisfied. A Delinquent Bank shall be deemed to have assigned any
and all payments due to it from the Borrower, whether on account of outstanding
Loans, interest, fees or otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective pro rata shares of all
outstanding Loans. The Delinquent Bank hereby authorizes the Agent to distribute
such payments to the nondelinquent Banks in proportion to their respective pro
rata shares of all outstanding Loans. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of the
assigned payments to all outstanding Loans of the nondelinquent Banks or as a
result of other payments by the Delinquent Banks to the nondelinquent Banks, the
Banks' respective pro rata shares of all outstanding Loans have returned to
those in effect immediately prior to such delinquency and without giving effect
to the nonpayment causing such delinquency.
SECTION 14.6 HOLDERS OF NOTES. Subject to the terms of Article 18, the
Agent may deem and treat the payee of any Note as the absolute owner or
purchaser thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder, assignee
or transferee.
SECTION 14.7 INDEMNITY. The Banks ratably hereby agree to indemnify and
hold harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by Section 15), and liabilities of every nature and character
88
arising out of or related to this Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
the Agent's actions taken hereunder or thereunder, except to the extent that any
of the same shall be directly caused by the Agent's willful misconduct or gross
negligence.
SECTION 14.8 AGENT AS BANK. In its individual capacity, Fleet shall have
the same obligations and the same rights, powers and privileges in respect to
its Commitment and the Loans made by it, and as the holder of any of the Notes
as it would have were it not also the Agent.
SECTION 14.9 RESIGNATION. The Agent may resign at any time by giving
thirty (30) days' prior written notice thereof to the Banks and the Borrower.
Upon any such resignation, the Majority Banks shall have the right to appoint as
a successor Agent any Bank or any bank whose senior debt obligations are rated
not less than "A" or its equivalent by Moody's Investors Service, Inc. or not
less than "A" or its equivalent by Standard & Poor's Rating Group Inc. and which
has a net worth of not less than $500,000,000. Unless a Default or Event of
Default shall have occurred and be continuing, such successor Agent shall be
reasonably acceptable to the Borrower. If no successor Agent shall have been so
appointed by the Majority Banks and shall have accepted such appointment within
30 days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be any Bank or a bank whose debt obligations are rated not less than "A"
or its equivalent by Moody's Investors Service, Inc. or not less than "A" or its
equivalent by Standard & Poor's Rating Group Inc. and which has a net worth of
not less than $500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder as Agent. After any retiring Agent's resignation, the
provisions of this Agreement and the other Loan Documents shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Agent.
SECTION 14.10 DUTIES IN THE CASE OF ENFORCEMENT. In case one or more
Events of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent may and shall, if
(a) so requested by the Majority Banks and (b) the Banks have provided to the
Agent such additional indemnities and assurances against expenses and
liabilities as the Agent may reasonably request, proceed to enforce the
provisions of the Security Documents authorizing the sale or other disposition
of all or any part of the Collateral and exercise all or any such other legal
and equitable and other rights or remedies as it may have in respect of such
Collateral. The Majority Banks may direct the Agent in writing as to the method
and the extent of any such sale or other disposition, the Banks hereby agreeing
to indemnify and hold the Agent harmless from all liabilities incurred in
respect of all actions taken or omitted in accordance with such directions,
provided that the Agent need not comply with any such direction to the extent
that the Agent reasonably believes the Agent's compliance with such direction to
be unlawful or commercially unreasonable in any applicable jurisdiction.
SECTION 14.11 REMOVAL OF AGENT. The Majority Banks may remove the Agent
from its capacity as agent in the event of the Agent's willful misconduct or
gross negligence. Such removal shall be effective upon appointment and
acceptance of a successor agent selected by the Majority Banks. Any successor
Agent must satisfy the conditions set forth in Section 14.9. Upon the acceptance
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of any appointment as agent hereunder by a successor agent, such successor agent
shall thereupon succeed to and become vested with all rights, powers, privileges
and duties of the removed Agent, and the removed Agent shall be discharged from
all further duties and obligations as Agent under this Agreement and the Loan
Documents (subject to the Agent's right to be indemnified as provided in the
Loan Documents); provided that the Agent shall remain liable to the extent
provided herein or in the Loan Documents for its acts or omissions occurring
prior to such removal or resignation. The Commitment Percentage of the Bank
which is acting as Agent shall not be taken into account in the calculation of
Majority Banks for the purposes of removing Agent in the event of the Agent's
willful misconduct or gross negligence.
SECTION 14.12 RELIANCE ON HEDGE PROVIDER. For purposes of applying
payments received in accordance with Section 12.6, the Agent shall be entitled
to rely upon the trustee, paying agent or other similar representative (each, a
"Representative") or, in the absence of such a Representative, upon the holder
of the Hedge Obligations for a determination (which each holder of the Hedge
Obligations agrees (or shall agree) to provide upon request of the Agent) of the
outstanding Hedge Obligations owed to the holder thereof. Unless it has actual
knowledge (including by way of written notice from such holder) to the contrary,
the Agent, in acting hereunder, shall be entitled to assume that no Hedge
Obligations are outstanding.
SECTION 14.13 REQUEST FOR AGENT ACTION. Agent and the Banks acknowledge
that in the ordinary course of business of the Borrower, (a) Borrower or the
Approved Subsidiaries may enter into leases covering the Collateral that may
require the execution of a subordination, attornment and non-disturbance
agreement in favor of the tenant thereunder, (b) the Collateral may be subject
to a condemnation or other taking, (c) Borrower or the Approved Subsidiaries may
desire to enter into easements or other agreements affecting the Collateral,
record a subdivision plat, dedicate roads or utilities, or take other actions or
enter into other agreements in the ordinary course of business which similarly
require the consent, approval or agreement of the Agent. In connection with the
foregoing, the Banks hereby expressly authorize the Agent to take any of the
following actions which Agent in its good faith judgment determines are
appropriate (w) execute and deliver to the Borrower and the Approved
Subsidiaries subordination, attornment and non-disturbance agreements with any
tenant under a lease upon such terms as Agent in its good faith judgment
determines are appropriate (Agent in the exercise of its good faith judgment may
agree to allow some or all of the casualty, condemnation, restoration or other
provisions of the applicable lease to control over the applicable provisions of
the Loan Documents), (x) execute releases of liens of Mortgaged Property as
permitted in this Agreement or in connection with any condemnation or other
taking, (y) execute consents or subordinations in form and substance
satisfactory to Agent in connection with any easements, agreements, plats,
dedications or similar matters affecting the Collateral, or (z) execute
consents, approvals, or other agreements in form and substance satisfactory to
the Agent in connection with such other actions or agreements as may be
necessary in the ordinary course of Borrower's or the Approved Subsidiaries'
business.
SECTION 15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein, (b) any taxes (including any interest and
penalties in respect thereto) payable by the
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Agent or any of the Banks (other than taxes based upon the Agent's or any Bank's
gross or net income, except that the Agent and the Banks shall be entitled to
indemnification for any and all amounts paid by them in respect of taxes based
on income or other taxes assessed by any State in which Mortgaged Property or
other Collateral is located, such indemnification to be limited to taxes due
solely on account of the granting of Collateral under the Security Documents and
to be net of any credit allowed to the indemnified party from any other State on
account of the payment or incurrence of such tax by such indemnified party),
including any recording, mortgage, documentary or intangibles taxes in
connection with the Security Deeds and other Loan Documents, or other taxes
payable on or with respect to the transactions contemplated by this Agreement,
including any such taxes payable by the Agent or any of the Banks after the
Closing Date (the Borrower hereby agreeing to indemnify the Agent and each Bank
with respect thereto), (c) all title insurance premiums, appraisal fees,
engineer's fees, reasonable internal charges of the Agent (determined in good
faith and in accordance with the Agent's internal policies applicable generally
to its customers) for commercial finance exams and engineering and environmental
reviews and the reasonable fees, expenses and disbursements of the counsel to
the Agent and any local counsel to the Agent incurred in connection with the
preparation, administration or interpretation of the Loan Documents and other
instruments mentioned herein (excluding, however, the preparation of agreements
evidencing participation granted under Section 18.4), each closing hereunder,
and amendments, modifications, approvals, consents or waivers hereto or
hereunder, (d) the reasonable fees, expenses and disbursements of the Agent
incurred by the Agent in connection with the preparation or interpretation of
the Loan Documents and other instruments mentioned herein, and the making of
each advance hereunder, (e) all reasonable out-of-pocket expenses (including
reasonable attorneys' fees and costs, which attorneys may be employees of any
Bank or the Agent and the fees and costs of appraisers, engineers, investment
bankers or other experts retained by any Bank or the Agent) incurred by any Bank
or the Agent in connection with (i) the enforcement of or preservation of rights
under any of the Loan Documents against the Borrower or the Guarantor or the
administration thereof after the occurrence of a Default or Event of Default and
(ii) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to the Agent's or any of the Bank's relationship
with the Borrower or the Guarantor, (f) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, UCC
filings, title rundowns, title searches or mortgage recordings, (g) all
reasonable fees, expenses and disbursements (including reasonable attorneys'
fees and costs), which may be incurred by Fleet and the Agent in connection with
the execution and delivery of this Agreement and the other Loan Documents, and
(h) all reasonable fees and expenses and disbursements (including reasonable
attorneys' fees and costs), not to exceed $5,000.00 in the aggregate, which may
be incurred by Fleet in connection with each and every assignment of interests
in the Loans pursuant to Section 18.1. The covenants of this Section 15 shall
survive payment or satisfaction of payment of amounts owing with respect to the
Notes.
SECTION 16. INDEMNIFICATION.
The Borrower and the Guarantor, jointly and severally, agree to indemnify
and hold harmless the Agent, the Banks and the Arranger and each director,
officer, employee, agent and Person who controls the Agent or any Bank from and
against any and all claims, actions and suits, whether groundless or otherwise,
and from and against any and all liabilities, losses, damages and expenses of
every nature and character arising out of or relating to this Agreement
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or any of the other Loan Documents or the transactions contemplated hereby and
thereby including, without limitation, (a) any leasing fees and any brokerage,
finders or similar fees asserted against any Person indemnified under this
Section 16 based upon any agreement, arrangement or action made or taken, or
alleged to have been made or taken, by the Borrower, the Guarantor or any of
their respective Subsidiaries, (b) any condition of the Mortgaged Properties,
(c) any actual or proposed use by the Borrower or the Guarantor of the proceeds
of any of the Loans, (d) any actual or alleged infringement of any patent,
copyright, trademark, service mark or similar right of any of the Borrower, the
Guarantor or any of their respective Subsidiaries comprised in the Collateral,
(e) the Borrower entering into or performing this Agreement or any of the other
Loan Documents, (f) any actual or alleged violation of any law, ordinance, code,
order, rule, regulation, approval, consent, permit or license relating to the
Mortgaged Property, or (g) with respect to the Borrower, the Guarantor and their
respective Subsidiaries and their respective properties and assets, the
violation of any Environmental Law, the Release or threatened Release of any
Hazardous Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding;
provided, however, that neither the Borrower nor the Guarantor shall be
obligated under this Section 16 to indemnify any Person for liabilities arising
from such Person's own gross negligence or willful misconduct. In litigation, or
the preparation therefor, the Banks, the Agent and the Arranger shall be
entitled to select a single nationally recognized law firm as their own counsel
and, in addition to the foregoing indemnity, the Borrower and the Guarantor
agree to pay promptly the reasonable fees and expenses of such counsel. If, and
to the extent that the obligations of the Borrower and the Guarantor under this
Section 16 are unenforceable for any reason, the Borrower and the Guarantor
hereby agree to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law. The provisions of
this Section 16 shall survive the repayment of the Loans and the termination of
the obligations of the Banks hereunder.
SECTION 17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower, the Guarantor or any of their
respective Subsidiaries pursuant hereto or thereto shall be deemed to have been
relied upon by the Banks and the Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Banks of any of the Loans, as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Agreement or the Notes or
any of the other Loan Documents remains outstanding or any Bank has any
obligation to make any Loans. The indemnification obligations of the Borrower
and the Guarantor provided herein and the other Loan Documents shall survive the
full repayment of amounts due and the termination of the obligations of the
Banks hereunder and thereunder to the extent provided herein and therein. All
statements contained in any certificate or other paper delivered to any Bank or
the Agent at any time by or on behalf of the Borrower, the Guarantor or any of
their respective Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by such Person hereunder.
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SECTION 18. ASSIGNMENT AND PARTICIPATION.
SECTION 18.1 CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided herein,
each Bank may assign to one or more banks or other entities all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment Percentage and Commitment and the same portion of the
Loans at the time owing to it, and the Notes held by it); provided that (a) the
Agent shall have given its prior written consent to such assignment, which
consent shall not be unreasonably withheld (provided that such consent shall not
be required for any assignment to another Bank, to a bank which is under common
control with the assigning Bank or to a wholly-owned Subsidiary of such Bank
provided that such assignee shall remain a wholly-owned Subsidiary of such
Bank), (b) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and obligations under this
Agreement, (c) the parties to such assignment shall execute and deliver to the
Agent, for recording in the Register (as hereinafter defined), a notice of such
assignment in the form reasonably required by Agent, together with any Notes
subject to such assignment, (d) in no event shall any voting, consent or
approval rights of a Bank be assigned to any Person controlling, controlled by
or under common control with, or which is not otherwise free from influence or
control by, any of the Borrower or the Guarantor, which rights shall instead be
allocated pro rata among the other remaining Banks, (e) such assignee shall have
a net worth as of the date of such assignment of not less than $500,000,000
unless otherwise approved by Borrower and Agent, (f) such assignee shall acquire
an interest in the Loans of not less than $5,000,000, and (g) the assignor shall
assign its entire interest in the Loans or retain an interest in the Loans of
not less than $5,000,000. Upon such execution, delivery, acceptance and
recording, of such notice of assignment, (i) the assignee thereunder shall be a
party hereto and all other Loan Documents executed by the Banks and, to the
extent provided in such assignment, have the rights and obligations of a Bank
hereunder, and (ii) the assigning Bank shall, to the extent provided in such
assignment and upon payment to the Agent of the registration fee referred to in
Section 18.2, be released from its obligations under this Agreement. In
connection with each assignment, the assignee shall represent and warrant to the
Agent, the assignor and each other Bank as to whether such assignee is
controlling, controlled by, under common control with or is not otherwise free
from influence or control by, the Borrower or the Guarantor. Each assignee shall
acquire its interest in the Loans subject to the Subordination Agreement. In the
event that, as of result of any such assignment, the Agent in its capacity as a
Bank retains an interest in the Loans of less than $15,000,000 and such amount
is less than the retained interest of any other Bank, then the Agent shall offer
to resign as Agent for the Banks. Upon any such assignment, the Agent may
unilaterally amend Schedule 1 to reflect any such assignment.
SECTION 18.2 REGISTER. The Agent shall maintain a copy of each assignment
delivered to it and a register or similar list (the "Register") for the
recordation of the names and addresses of the Banks and the Commitment
Percentages of, and principal amount of the Loans owing to the Banks from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
and the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,500.
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SECTION 18.3 NEW NOTES. Upon its receipt of an assignment executed by the
parties to such assignment, together with each Note subject to such assignment,
the Agent shall (a) record the information contained therein in the Register,
and (b) give prompt notice thereof to the Borrower and the Banks (other than the
assigning Bank). Within five (5) Business Days after receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the order of such assignee in
an amount equal to the amount assumed by such assignee pursuant to such
assignment and, if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Bank in an
amount equal to the amount retained by it hereunder and shall cause the
Guarantor to deliver to the Agent an acknowledgment in form and substance
satisfactory to the Agent to the effect that the Guaranty extends to and is
applicable to each new Note. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such assignment and shall otherwise be in
substantially the form of the assigned Notes. The surrendered Notes shall be
canceled and returned to the Borrower.
SECTION 18.4 PARTICIPATIONS. Each Bank may sell participations to one or
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
any such sale or participation shall not affect the rights and duties of the
selling Bank hereunder to the Borrower, (b) such participation shall not entitle
such participant to any rights or privileges under this Agreement or any Loan
Documents, including without limitation, the right to approve waivers,
amendments or modifications, (c) such participant shall have no direct rights
against the Borrower or the Guarantor except the rights granted to the Banks
pursuant to Section 13, (d) such sale is effected in accordance with all
applicable laws, and (e) such participant shall not be a Person controlling,
controlled by or under common control with, or which is not otherwise free from
influence or control by the Borrower or the Guarantor. Any Bank which sells a
participation shall promptly notify the Agent of such sale and the identity of
the purchaser of such interest.
SECTION 18.5 PLEDGE BY BANK. Any Bank may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or any
portion of its Note) to any of the twelve Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341 or, with Agent's
prior written approval, to another Person. No such pledge or the enforcement
thereof shall release the pledgor Bank from its obligations hereunder or under
any of the other Loan Documents.
SECTION 18.6 NO ASSIGNMENT BY BORROWER OR GUARANTOR. Neither the Borrower
nor the Guarantor shall assign or transfer any of its rights or obligations
under any of the Loan Documents without the prior written consent of each of the
Banks.
SECTION 18.7 DISCLOSURE. The Borrower and the Guarantor each agrees that
in addition to disclosures made in accordance with standard banking practices
any Bank may disclose information obtained by such Bank pursuant to this
Agreement to assignees or participants and potential assignees or participants
hereunder.
SECTION 18.8 AMENDMENTS TO LOAN DOCUMENTS. Upon any such assignment or
participation, the Borrower and the Guarantor shall, upon the request of the
Agent, enter into such documents
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as may be reasonably required by the Agent to modify the Loan Documents to
reflect such assignment or participation.
SECTION 18.9 MANDATORY ASSIGNMENT. In the event Borrower requests that
certain amendments, modifications or waivers be made to this Agreement or any of
the other Loan Documents which request is approved by Agent but is not approved
by one or more of the Banks (any such non-consenting Bank shall hereafter be
referred to as the "Non-Consenting Bank"), then, within thirty (30) days after
Borrower's receipt of notice of such disapproval by such Non-Consenting Bank,
Borrower shall have the right as to such Non-Consenting Bank, to be exercised by
delivery of written notice delivered to the Agent and the Non-Consenting Bank
within thirty (30) days of receipt of such notice, to elect to cause the
Non-Consenting Bank to transfer its entire Commitment. The Agent shall promptly
notify the remaining Banks that each of such Banks shall have the right, but not
the obligation, to acquire a portion of the Commitment, pro rata based upon
their relevant Commitment Percentages, of the Non-Consenting Bank (or if any of
such Banks does not elect to purchase its pro rata share, then to such remaining
Banks in such proportion as approved by the Agent). In the event that the Banks
do not elect to acquire all of the Non-Consenting Bank's Commitment, then the
Agent shall endeavor to find a new Bank or Banks to acquire such remaining
Commitment. Upon any such purchase of the Commitment of the Non-Consenting Bank,
the Non-Consenting Bank's interests in the Obligations and its rights hereunder
and under the Loan Documents shall terminate at the date of purchase, and the
Non-Consenting Bank shall promptly execute and deliver any and all documents
reasonably requested by Agent to surrender and transfer such interest,
including, without limitation, an assignment and acceptance agreement in the
form and substance reasonably acceptable to Agent and such Non-Consenting Bank's
original Note. The purchase price to be paid by the acquiring Banks for the
Non-Consenting Bank's Commitment shall equal the principal owed to such
Non-Consenting Bank, and the Borrower shall pay to such Non-Consenting Bank in
addition thereto and as a condition to such sale any and all other amounts
outstanding and owed by Borrower to the Non-Consenting Bank hereunder or under
any of the other Loan Documents, including all accrued and unpaid interest or
fees which would be owed to such Non-Consenting Bank hereunder or under any of
the other Loan Documents if the Loans were to be repaid in full on the date of
such purchase of the Non-Consenting Bank's Commitment. No registration fee under
Section 18.2 shall be required in connection with such assignment.
SECTION 19. NOTICES.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Agreement (hereinafter in this Section 19 referred to as
"Notice"), but specifically excluding to the maximum extent permitted by law any
notices of the institution or commencement of foreclosure proceedings, must be
in writing and shall be deemed to have been properly given or served by personal
delivery or by sending same by overnight courier or by depositing same in the
United States Mail, postpaid and registered or certified, return receipt
requested, or as expressly permitted herein, by telegraph, telecopy, telefax or
telex, and addressed as follows:
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If to the Agent or Fleet:
Fleet National Bank
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
With a copy to:
Fleet National Bank
Suite 500
115 Perimeter Center Place, NE
Atlanta, Georgia 30346
Attn: Daniel L. Silbert
Telecopy No.: (770) 390-8434
and to:
McKenna Long & Aldridge LLP
5300 SunTrust Plaza
303 Peachtree Street
Atlanta, Georgia 30308
Attn: William F. Timmons, Esq.
Telecopy No.: (404) 527-4198
If to the Borrower or the Guarantor:
Ramco-Gershenson Properties, L.P.
Ramco-Gershenson Properties Trust
27600 Northwestern Highway
Southfield, Michigan 48034
Attn: Chief Executive Officer
Telecopy No.: (248) 350-9925
With a copy to:
Honigman Miller Schwartz & Cohn LLP
Suite 225
32270 Telegraph Road
Bingham Farms, MI 48025
Attn: Alan M. Hurvitz, Esq.
Telecopy No.: (248) 566-8455
to each other Bank a party hereto at the address for such party set forth on the
signature page for such Bank, and to each other Bank which may hereafter become
a party to this Agreement at such address as may be designated by such Bank.
Each Notice shall be effective upon being personally delivered or upon being
sent by overnight courier or upon being deposited in the United States Mail as
aforesaid. The time period in which a response to such Notice must be
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given or any action taken with respect thereto (if any), however, shall commence
to run from the date of receipt if personally delivered or sent by overnight
courier, or if so deposited in the United States Mail, the earlier of three (3)
Business Days following such deposit or the date of receipt as disclosed on the
return receipt. Rejection or other refusal to accept or the inability to deliver
because of changed address for which no notice was given shall be deemed to be
receipt of the Notice sent. By giving at least fifteen (15) days prior Notice
thereof, the Borrower, a Bank or Agent shall have the right from time to time
and at any time during the term of this Agreement to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
SECTION 20. RELATIONSHIP.
Neither the Agent nor any Bank has any fiduciary relationship with or
fiduciary duty to the Borrower, the Guarantor or their respective Subsidiaries
arising out of or in connection with this Agreement or the other Loan Documents
or the transactions contemplated hereunder and thereunder, and the relationship
between each Bank and the Borrower is solely that of a lender and borrower, and
nothing contained herein or in any of the other Loan Documents shall in any
manner be construed as making the parties hereto partners, joint venturers or
any other relationship other than lender and borrower.
SECTION 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF
MICHIGAN AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE
OF LAW). THE BORROWER AND THE GUARANTOR EACH AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR THE STATE OF MICHIGAN OR
ANY FEDERAL COURT SITTING THEREIN AND CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER OR THE GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 19. THE
BORROWER AND THE GUARANTOR EACH HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
SECTION 22. HEADINGS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
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SECTION 23. COUNTERPARTS.
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
SECTION 24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated, except as provided in Section 27.
SECTION 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE BORROWER, THE GUARANTOR, THE AGENT AND THE BANKS HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY
LAW, THE BORROWER AND THE GUARANTOR EACH HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. THE BORROWER AND THE GUARANTOR EACH (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION 25.
SECTION 26. DEALINGS WITH THE BORROWER OR THE GUARANTOR.
The Banks and their affiliates may accept deposits from, extend credit to
and generally engage in any kind of banking, trust or other business with the
Borrower, the Guarantor, their respective Subsidiaries or any of their
affiliates regardless of the capacity of the Bank hereunder.
SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement may be given and any term of
this Agreement or of any other instrument related hereto or mentioned herein may
be amended, and the performance or
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observance by the Borrower or the Guarantor of any terms of this Agreement or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Majority
Banks. Notwithstanding the foregoing, (a) none of the following may occur
without the written consent of each Bank: a decrease in the rate of interest on
the Notes; a change in the Maturity Date of the Notes; an increase in the amount
of the Commitments of the Banks except pursuant to Section 18.1 or Section 2.9;
a forgiveness, reduction or waiver of the principal of any unpaid Loan or any
interest thereon; the postponement of any datE fixed for any payment of
principal of or interest on the Loans; a decrease of the amount of any fee
(other than late fees) payable to a Bank hereunder; the release of the Borrower,
the Guarantor or any Collateral except as otherwise provided herein; a change in
the manner of distribution of any payments to the Banks or the Agent; an
amendment of the definition of Majority Banks or Required Banks or of any
requirement for consent by the Required Banks or all of the Banks; a
modification, amendment or waiver of the provisions of Section 9.1 or any of the
definitions used therein or any of the definitions used in the definition of
"Borrowing Base"; or an amendment of this Section 27 and (b) the provisions of
Sections 5.3(b)(vi) and the proviso following Section 5.3(b)(vi), 8.3(k), 9.2
and 9.3 or any of the definitions used therein may not be modified, amended or
waived without the written consent of the Required Banks. The amount of the
Agent's fee payable for the Agent's account and the provisions of Section 14 may
not be amended without the written consenT of the Agent. The Borrower and the
Guarantor each agrees to enter into such modifications or amendments of this
Agreement or the other Loan Documents as may be reasonably requested by Fleet in
connection with the acquisition by each Bank acquiring all or a portion of the
Commitment, provided that no such amendment or modification materially affects
or increases any of the obligations of the Borrower or the Guarantor hereunder.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Agent or any Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrower or the Guarantor shall entitle the Borrower and the Guarantor to
other or further notice or demand in similar or other circumstances.
SECTION 28. SEVERABILITY.
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 29. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant, agreement
and obligation of the Borrower or the Guarantor under this Agreement and the
other Loan Documents.
SECTION 30. NO UNWRITTEN AGREEMENTS.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
99
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. ANY ADDITIONAL TERMS OF THE
AGREEMENT BETWEEN THE PARTIES ARE SET FORTH BELOW.
SECTION 31. REPLACEMENT OF NOTES.
Upon receipt of evidence reasonably satisfactory to Borrower of the loss,
theft, destruction or mutilation of any Note, and in the case of any such loss,
theft or destruction, upon delivery of an indemnity agreement reasonably
satisfactory to Borrower or, in the case of any such mutilation, upon surrender
and cancellation of the applicable Note, Borrower will execute and deliver, in
lieu thereof, a replacement Note, identical in form and substance to the
applicable Note and dated as of the date of the applicable Note and upon such
execution and delivery all references in the Loan Documents to such Note shall
be deemed to refer to such replacement Note.
SECTION 32. TRUST EXCULPATION.
Subject to the terms of this paragraph, all persons having a claim against
the Guarantor, the general partner of the Borrower whose signature is affixed
hereto as said general partner, hereunder or in connection with any matter that
is the subject hereof, shall look solely to (i) Guarantors interest and rights
in the Borrower (as a general partner, limited partner or otherwise), (ii) the
cash and Short-term Investments of Guarantor and the property described in
Schedule 6.29 hereto, (iii) any other assets which Guarantor may now own or
hereafter acquire with the consent of Agent pursuant to Section 7.18, (iv) all
documents and agreements in favor of Guarantor in connection with any of the
foregoing, (v) all claims and causes of action arising from or otherwise related
to any of the foregoing, and all rights and judgments related to any legal
actions in connection with such claims or causes of action, and (vi) all
extensions, additions, renewals and replacements, substitutions, products or
proceeds of any of the foregoing (the "Existing Assets"), and in no event shall
the obligation of the Guarantor be enforceable against any shareholder, trustee,
officer, employee or agent of the Guarantor personally. The Agent and the Banks
have agreed to the terms of this Section 32 (a) solely based upon the
representation and covenant of Borrower and Guarantor that Guarantor does not
and will not own any assets other than the Existing Assets, (b) for the limited
purpose of allowing Borrower to claim that the Loans are not recourse to
Guarantor as a partner of the Borrower within the meaning of IRS Letter Ruling
199906025 (November 17, 1998), and (c) with the agreement of Borrower and
Guarantor that the Agent and the Banks shall at all times have full recourse to
all assets of Guarantor. Notwithstanding anything in this Section 32 to the
contrary, it is the intent of this Agreement and the Loan Documents that Agent
and the Banks have full recourse at all times to Guarantor, as a Guarantor and
as general partner of Borrower, and to all of its assets at all times, and the
foregoing limitation on liability and recourse to Guarantor (as a Guarantor or
general partner of Borrower) shall be null and void and of no force and effect,
and Agent and the Banks shall have full recourse against Guarantor, individually
and in its capacity as general partner of Borrower, and to all of its assets in
the event that Guarantor shall now or at any time hereafter own any asset other
than or in addition to the Existing Assets. Nothing herein shall limit the
rights of Agent and the Banks against the Borrower.
100
[SIGNATURE PAGES FOLLOW]
101
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST,
a Maryland real estate investment trust
By: ___________________________________
Richard Smith
Chief Financial Officer
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust, a
Maryland real estate investment trust,
its General Partner
By: ____________________________________
Richard Smith
Chief Financial Officer
[SIGNATURE PAGES TO UNSECURED REVOLVER]
FLEET NATIONAL BANK,
Individually and as Agent
By: ____________________________________
Daniel L. Silbert
Director
2
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: ____________________________________
Name:_______________________________
Title:______________________________
3
BANK ONE, NA, A NATIONAL BANKING
ASSOCIATION
By: ____________________________________
Name: Elizabeth D. Lilley
Title: First Vice President
4
STANDARD FEDERAL BANK N.A.
By: ____________________________________
Name:_______________________________
Title:______________________________
5
HUNTINGTON NATIONAL BANK
By: ____________________________________
Name:_______________________________
Title:______________________________
6
KEYBANK NATIONAL ASSOCIATION
By: ____________________________________
Name:_______________________________
Title:______________________________
7
EXHIBIT A
FORM OF FOURTH AMENDED AND RESTATED NOTE
$_________________ __________, 2002
FOR VALUE RECEIVED, the undersigned RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership, hereby promises to pay to
__________________________________ or order, in accordance with the terms of
that certain Fourth Amended and Restated Master Revolving Credit Agreement dated
as of December ___, 2002 (the "Credit Agreement"), as from time to time in
effect, among the undersigned, Fleet National Bank, for itself and as Agent, and
such other Banks as may be from time to time named therein, to the extent not
sooner paid, on or before the Maturity Date, the principal sum of
_______________________________________ Dollars ($______________), or such
amount as may be advanced by the payee hereof under the Credit Agreement with
daily interest from the date hereof, computed as provided in the Credit
Agreement, on the principal amount hereof from time to time unpaid, at a rate
per annum on each portion of the principal amount which shall at all times be
equal to the rate of interest applicable to such portion in accordance with the
Credit Agreement, and with interest on overdue principal and, to the extent
permitted by applicable law, on overdue installments of interest and late
charges at the rates provided in the Credit Agreement. Interest shall be payable
on the dates specified in the Credit Agreement, except that all accrued interest
shall be paid at the stated or accelerated maturity hereof or upon the
prepayment in full hereof. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
Payments hereunder shall be made to Fleet National Bank, as Agent for the
payee hereof, 100 Federal Street, Boston, Massachusetts 02110 or such other
address as may be designated by Agent.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Credit Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the maturity date stated above and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Credit Agreement, and may
be prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Borrower and the Banks and the Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of acceleration of the maturity of any
of the Obligations or otherwise, shall the interest contracted for, charged or
received by the Banks exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Banks in excess of the maximum lawful amount, the interest payable to the
Banks shall be reduced to the maximum amount permitted under applicable law; and
if from any circumstance the Banks shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
A-1
principal balance of the Obligations of the undersigned Borrower and to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations of the undersigned Borrower, such excess shall be
refunded to the undersigned Borrower. All interest paid or agreed to be paid to
the Banks shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full period until payment in full
of the principal of the Obligations of the undersigned Borrower (including the
period of any renewal or extension thereof) so that the interest thereon for
such full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between the undersigned
Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement. In addition to and not in limitation
of the foregoing and the provisions of the Credit Agreement hereinabove defined,
the undersigned further agrees, subject only to any limitation imposed by
applicable law, to pay all expenses, including reasonable attorneys' fees and
legal expenses, incurred by the holder of this Note in endeavoring to collect
any amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise.
This Note shall be governed by and construed in accordance with the laws
of the State of Michigan (without giving effect to the conflict of laws rules of
any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without notice.
Recourse to the general partner of the Borrower shall be limited as
provided in Section 32 of the Credit Agreement.
This Note is a note executed in amendment and restatement of the "Notes"
as such term is defined in the Prior Credit Agreement.
IN WITNESS WHEREOF the undersigned has by its duly authorized officers,
executed this Note under seal as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust, a
Maryland real estate investment trust,
its General Partner
By:_____________________________________
Title:______________________________
A-2
EXHIBIT B
FORM OF REQUEST FOR LOAN
Fleet National Bank, for itself and as Agent
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Mr. Daniel L. Silbert
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.5 of the Fourth Amended and
Restated Master Revolving Credit Agreement dated as of December ___, 2002, as
from time to time in effect (the "Credit Agreement"), among Ramco-Gershenson
Properties, L.P. (the "Borrower"), Ramco-Gershenson Properties Trust (the
"Guarantor"), Fleet National Bank, for itself and as Agent, and the other Banks
from time to time party thereto, the undersigned Borrower and the Guarantor
hereby request and certify as follows:
1. Loan. The undersigned Borrower hereby requests a Loan under Section 2.1
of the Credit Agreement:
Principal Amount: $
Type (LIBOR, Base Rate):
Drawdown Date: , 200_
Interest Period:
by credit to the general account of the undersigned Borrower with the Agent at
the Agent's Head Office.
2. Use of Proceeds. Such Loan shall be used for the following purposes
permitted by Section 7.11 of the Credit Agreement:
[Describe]
3. No Default. The undersigned chief financial or chief accounting officer
of the Guarantor and the general partner of the Borrower certifies that each of
the Borrower and the Guarantor is and will be in compliance with all covenants
under the Loan Documents after giving effect to the making of the Loan requested
hereby. No condemnation proceedings are pending or to the undersigned Borrower's
knowledge threatened against any Mortgaged Property.
4. Representations True. Each of the representations and warranties made
by or on behalf of the Borrower, the Guarantor and their respective Subsidiaries
contained in the Credit Agreement, in the other Loan Documents or in any
document or instrument delivered pursuant to
B-1
or in connection with the Credit Agreement was true as of the date as of which
it was made and shall also be true at and as of the Drawdown Date for the Loan
requested hereby, with the same effect as if made at and as of such Drawdown
Date (except to the extent of changes resulting from transactions contemplated
or permitted by the Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the aggregate are
not materially adverse, and except to the extent that such representations and
warranties relate expressly to an earlier date) and no Default or Event of
Default has occurred and is continuing.
5. Other Conditions. All other conditions to the making of the Loan
requested hereby set forth in Section 11 of the Credit Agreement have been
satisfied. (Reference title insurance "date down", if applicable).
6. Drawdown Date. Except to the extent, if any, specified by notice
actually received by the Agent prior to the Drawdown Date specified above, the
foregoing representations and warranties shall be deemed to have been made by
the Borrower on and as of such Drawdown Date.
7. Definitions. Terms defined in the Credit Agreement are used herein with
the meanings so defined.
IN WITNESS WHEREOF, we have hereunto set our hands this ___ day of
_____________, 2002.
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust, its
General Partner
By:_____________________________________
Title:______________________________
RAMCO-GERSHENSON PROPERTIES TRUST
By:____________________________________________
Title:_____________________________________
B-2
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
Fleet National Bank,
for itself and as Agent
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Daniel L. Silbert
Ladies and Gentlemen:
Reference is made to the Fourth Amended and Restated Master Revolving
Credit Agreement dated as of December ___, 2002 (the "Credit Agreement") by and
among Ramco-Gershenson Properties, L.P. (the "Borrower"), Ramco-Gershenson
Properties Trust (the "Guarantor"), Fleet National Bank, for itself and as
Agent, and the other Banks from time to time party thereto. Terms defined in the
Credit Agreement and not otherwise defined herein are used herein as defined in
the Credit Agreement.
Pursuant to the Credit Agreement, the Borrower is furnishing to you
herewith (or have most recently furnished to you) the financial statements of
the Borrower, the Guarantor and their respective Subsidiaries for the fiscal
period ended _____________________ (the "Balance Sheet Date"). Such financial
statements have been prepared in accordance with generally accepted accounting
principles and present fairly the financial position of the Borrower, the
Guarantor and the Subsidiaries covered thereby at the date thereof and the
results of their operations for the periods covered thereby, subject in the case
of interim statements only to normal year-end audit adjustments.
This certificate is submitted in compliance with requirements of Section
7.4(e), Section 7.5(e), Section 8.l(f), or Section 10.8 of the Credit Agreement.
If this certificate is provided under a provision other than Section 7.4(e), the
calculations provided below are made using the financial statements of the
Borrower, the Guarantor and their respective Subsidiaries as of the Balance
Sheet Date adjusted in the best good-faith estimate of the Borrower and the
Guarantor to give effect to the making of a Loan, acquisition or disposition of
property or other event that occasions the preparation of this certificate; and
the nature of such event and the Borrower's and the Guarantor's estimate of its
effects are set forth in reasonable detail in an attachment hereto. The
undersigned officer is the chief financial or chief accounting officer of the
Guarantor and of the general partner of the Borrower.
The undersigned officers have caused the provisions of the Loan Documents
to be reviewed and have no knowledge of any Default or Event of Default. [Note:
If the signers do have knowledge of any Default or Event of Default, the form of
certificate should be revised to specify the Default or Event of Default and the
General Partner, the nature thereof and the actions taken, being taken or
proposed to be taken by the Borrower and the Guarantor with respect thereto.]
C-1
The Borrower and the Guarantor are providing the attached information to
demonstrate compliance as of the date hereof with the covenants described in the
attachment hereto.
IN WITNESS WHEREOF, we have hereunto set our hand this ____ day of
_____________, 200_.
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust, its
General Partner
By: _________________________________
Title: _________________________________
RAMCO-GERSHENSON PROPERTIES TRUST,
By: ___________________________________
Title: ____________________________
C-2
APPENDIX A
to
COMPLIANCE CERTIFICATE
A. Outstanding Loans and Letters of Credit of Borrower cannot exceed the
Borrowing Base (Section 9.1)
1. Outstanding principal balance of the Loans:
2. Outstanding and undrawn amount of Letters of Credit:
3. Aggregate approved Appraised Values of Mortgaged Properties:
4. Line 3 X 65%:
5. Aggregate Debt Service Coverage Amounts of Mortgaged Properties:
6. Lesser of Line 4 or Line 5 must be > than or = to line 1.
B. Borrower and Guarantor Leverage cannot exceed 65% (Section 9.2)
Borrower
1. Consolidated Total Liabilities:
2. Consolidated Total Assets per balance sheet (excluding Real Estate
that is improved and not Under Development, but including any
Redevelopment Property held for less than twelve (12) months):
3. Rolling 4Q Operating Cash Flow from Real Estate that is improved and
not Under Development:
4. Consolidated Total Adjusted Asset Value: (line 2 plus line 3 divided
by 9.5%):
5. Company Leverage (line 1 divided by line 4):
6. Line 5 cannot exceed .65.
Guarantor
1. Consolidated Total Liabilities:
2. Consolidated Total Assets per balance sheet (excluding Real Estate
that is improved and not Under Development, but including any
Redevelopment Property held for less than twelve (12) months):
3. Rolling 4Q Operating Cash Flow from Real Estate that is improved and
not Under Development:
4. Consolidated Total Adjusted Asset Value: (line 2 plus line 3 divided
by 9.5%):
5. Company Leverage: (line 1 divided by line 4):
6. Line 5 cannot exceed .65.
C. Borrower Debt Service Coverage must exceed 1.6X - rolling 4Q's (Section
9.3)
1. Net Income:
2. Depreciation & Amortization:
3. Interest Expense:
C-3
4. Extraordinary/Non-recurring losses:
5. Extraordinary/Non-recurring gains:
6. CapX Reserve Amount ($.10 psf):
7. Operating Cash Flow: (Lines 1+2+3+4-5-6)
8. Debt Service:
9. DSC Ratio: (line 7 divided by line 8)
10. Line 9 must exceed 1.6.
D. Borrower Minimum Consolidated Tangible Net Worth (Section 9.4)
1. Consolidated Total Adjusted Asset Value:
2. Consolidated Total Liabilities:
3. Initial Consolidated Tangible Net Worth: (line 1 minus line 2)
4. Book value intangible assets:
5. Write-up of book value of any assets due to revaluation:
6. Consolidated Tangible Net Worth: (line 3 minus the sum of lines 4
and 5)
7. Net Offering Proceeds from offerings after Closing:
8. 75% of line 7:
9. Minimum Consolidated Tangible Net Worth: ($200,000,000 + line 8)
10. Line 6 must be > than or = to line 9.
E. Distributions cannot exceed 95% of Funds From Operations (Section 8.7(a))
1. Current Quarter Distributions:
2. Prior 3 Quarters Distributions:
3. Total Distributions last 4Q's:
4. GAAP Net Income for last 4Q's:
5. Adjustments to Net Income: (exclude financing costs and gains
(losses) from debt restructuring and sales of property)
6. Depreciation (other than non-real estate depreciation) and
Amortization (other than amortization of deferred financing costs):
7. Other non-cash items:
8. Funds from Operations: (lines 4-5+6+7=)
9. Distributions to Funds from Operations Ratio: (line 3 divided by
line 8)
10. Line 9 cannot exceed .95.
C-4
EXHIBIT D
FORM OF
LETTER OF CREDIT APPLICATION
D-1
SCHEDULE 1
BANKS AND COMMITMENTS
Commitment
Commitment Percentage
---------- ----------
Fleet National Bank $35,000,000 28.00%
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
Eurodollar Lending Office:
Same as above
Deutsche Bank Trust Company $10,000,000 8.00%
Americas
MS Dal 03-0550
Suite 550
200 Crescent Court
Dallas, Texas 75201-1875
Attn: Lynne Voqel
Eurodollar Lending Office:
Same as above
Bank One, NA $25,000,000 20.00%
611 Woodward Avenue
Detroit, Michigan 48226
Attn: Elizabeth D. Lilley
Eurodollar Lending Office:
Same as above
Standard Federal Bank N.A. $15,000,000 12.00%
2600 West Big Beaver
Troy, Michigan 48084
Attn: Carol Ann Arvan
Eurodollar Lending Office:
Same as above
Huntington National Bank $15,000,000 12.00%
Suite 202
803 West Big Beaver
Troy, Michigan 48084
Attn: Mike Vieregge
Eurodollar Lending Office:
Same as above
KeyBank National Association $25,000,000 20.00%
127 Public Square
8th Floor
Cleveland, Ohio 44114
Attn: Michael Kauffman
Eurodollar Lending Office:
Same as above
------------ ---
$125,000,000 100%
SCHEDULE 1.1
SPECIAL REAL ESTATE
1. Crestview Corners, Crestview, Florida
2. Crofton Centre, Crofton, Maryland
3. Lantana Plaza, Lantana, Florida
4. Pelican Plaza, Sarasota, Florida
5. Naples Towne Center, Naples, Florida
6. Village Lakes, Land O'Lakes, Florida
7. Southbay Fashion Center, Osprey, Florida
SCHEDULE 2
EXAMPLE OF DEBT SERVICE COVERAGE CALCULATION
OCF - Mortgaged Properties $19,336,336
Outstandings - Revolver $96,800,000
Greater of:
7 - year Treasury Rate plus 2.0% (_____%)
amortized over 25 years____% or 8.5%
Debt Service Coverage Amount: $ _______
Coverage: ____x
Minimum Coverage 1.60x
SCHEDULE 3
EXISTING LETTERS OF CREDIT
(1) $476,000.00 letter of credit issued by Fleet National Bank to The
Travelers Insurance Company securing real estate tax escrow obligations.
(2) $50,000.00 letter of credit issued by Fleet National Bank to Bankers
Trust.
(3) $1,500,000.00 letter of credit issued by Fleet National Bank to The
Travelers Insurance Company regarding leaseup reserve.
SCHEDULE 6.7
LITIGATION
[SEE ATTACHED]
SCHEDULE 6.15
AFFILIATE TRANSACTIONS
1996 Share Option Plan of Ramco-Gershenson Properties Trust
Non-Qualified Stock Option Agreements dated May 10, 1996, September 16, 1998 and
March 8, 2000 between Ramco-Gershenson Properties Trust (the "Trust") and each
of the following:
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson
Employment Agreements dated May 10, 1996 as amended May 10, 2001, as applicable,
between Trust and each of the following:
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson
Non-Qualified Stock Option Agreements dated June 25, 1996, September 16, 1998
and March 8, 2000 between Trust and Richard Smith
Non-Qualified Stock Option Agreements dated June 10, 1997, June 10, 1998, June
9, 1999, and June 7, 2000, June 13, 2001 and June 6, 2002 between Trust and each
of the following:
Joel Pashcow
Mark Rosenfeld
Robert Meister
Arthur Goldberg
Stephen Blank
Selwyn Isakow
Noncompetition Agreements dated May 10, 1996, between the Trust and each of the
following:
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson (collectively, the "Ramco Principals")
Registration Rights Agreements dated May 10, 1996, among Trust and the Ramco
Principals
Tax Agreement dated May 10, 1996, between Atlantic and RPS
Option Agreement and Right of First Offer/Refusal dated May 10, 1996 Memorandum
of Option Agreement and Right of First Offer/Refusal dated May 10, 1996
North Towne Option Agreement and Right of First Offer/Refusal dated May 10,
1996, between Ramco Lewis Alexis Associates and the Operating Partnership
Exchange Rights Agreement dated May 10, 1996, between Operating Partnership and
the Ramco Principals
Assignment, Assumption and Indemnification Agreement relating to Atlantic dated
May 10, 1996, between RPS and Atlantic
The 1997 Non-employee Trustee Stock Option Plan
Management Services and Reimbursement Agreement dated May 10, 1996 between
Ramco-Gershenson, Inc. and Ramco-Gershenson Properties, L.P.
Amended and Restated Agreement of Limited Partnership of Ramco-Gershenson
Properties, L.P. (Operating Partnership") as amended which lists the following
persons as holding a partnership interest directly or by entities controlled by
them:
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson
The following officers or trustees of Ramco-Gershenson Properties Trust are
general partners, limited partners, or shareholders or members in various
entities which are provided management and/or accounting services by
Ramco-Gershenson, Inc.
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson
Joel Pashcow
The following officers of Ramco-Gershenson Properties Trust are associated with
various family trusts which control entities which are provided management and
accounting services from Ramco-Gershenson, Inc.
2
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson
Ramco-Gershenson Properties Trust purchased Directors' and Officers' liability
insurance from Aon Risk Services, Inc. of New York, an insurance brokerage firm
("Aon"). In connection with such insurance purchase, Aon received brokerage
commission. Mr. Robert A. Meister, who is a member of the Trust's Board of
Trustees, is Vice Chairman of Aon Risk Services & Co., an affiliate of Aon. In
addition, Mr. Alan Mann, who is Senior Vice President of Aon, is the son-in-law
of Mr. Arthur H. Goldberg, who is also a member of the Trust's Board of
Trustees.
As holders of Operating Partnership units, the following officers of
Ramco-Gershenson Properties Trust, may suffer different and more adverse tax
consequences than the Company upon the sale or refinancing of any of the
Company's properties and, therefore, may have different objectives regarding the
appropriate pricing and timing of any sale or refinancing of such properties:
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson
Joel Pashcow, trustee, has an interest in Ramco/Shenandoah LLC, a joint venture
of Ramco-Gershenson Properties, L.P.
Lockup agreements covering 90-day period subsequent to November 5, 2002 with all
Trustees and Executive Officers of Ramco-Gershenson Properties Trust.
3
SCHEDULE 6.18
ENVIRONMENTAL MATTERS
[SEE ATTACHED]
SCHEDULE 6.19
SUBSIDIARIES AND JOINT VENTURES OF THE BORROWER
[SEE ATTACHED]
SCHEDULE 6.22
AGREEMENTS
Fire Protection Agreements at various of the Mortgaged Properties.
Management Services and Reimbursement Agreement dated May 10, 1996 between
Ramco-Gershenson, Inc. and Ramco-Gershenson Properties, L.P.
SCHEDULE 6.29
PROPERTY OF GUARANTOR
The assets of the Guarantor, Ramco-Gershenson Properties Trust are comprised
solely of the following:
Cash
Accounts receivable, including distributions received from Ramco-Gershenson
Properties, L.P.
Prepaid expenses, including capitalized legal fees
Investments in subsidiaries:
Ramco-Gershenson Properties, L.P.
Ramco SPC, Inc. (Related to Ramco Properties Associates Limited
Partnership)
Ramco SPC II, Inc. (Related to Ramco Virginia Properties LLC (Aquia))
FOURTH AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 30, 2002
among
RAMCO-GERSHENSON PROPERTIES, L.P.
as Borrower,
and
RAMCO-GERSHENSON PROPERTIES TRUST,
as Guarantor,
and
FLEET NATIONAL BANK,
as a Bank,
and
THE OTHER BANKS WHICH ARE A
PARTY TO THIS AGREEMENT
and
THE OTHER BANKS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
and
FLEET NATIONAL BANK,
as Agent
and
FLEET SECURITIES, INC.,
as Sole Lead Manager and Arranger
and
KEYBANK NATIONAL ASSOCIATION,
as Documentation Agent
and
BANK ONE, NA,
as Syndication Agent
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION .................................... 1
Section 1.1 Definitions ................................................ 1
Section 1.2 Rules of Interpretation .................................... 23
SECTION 2. THE REVOLVING CREDIT FACILITY .............................................. 24
Section 2.1 Commitment to Lend ......................................... 24
Section 2.2 Unused Facility Fee ........................................ 24
Section 2.3 Notes ...................................................... 25
Section 2.4 Interest on Loans .......................................... 25
Section 2.5 Requests for Loans ......................................... 26
Section 2.6 Funds for Loans ............................................ 26
Section 2.7 Letters of Credit .......................................... 27
Section 2.8 Optional Reduction of Commitments .......................... 31
Section 2.9 Increase of Commitment ..................................... 32
SECTION 3. REPAYMENT OF THE LOANS ..................................................... 33
Section 3.1 Stated Maturity ............................................ 33
Section 3.2 Mandatory Prepayments ...................................... 33
Section 3.3 Optional Prepayments ....................................... 33
Section 3.4 Partial Prepayments ........................................ 33
Section 3.5 Effect of Prepayments ...................................... 34
Section 3.6 Proceeds from Debt or Equity Offering ...................... 34
SECTION 4. CERTAIN GENERAL PROVISIONS ................................................. 34
Section 4.1 Conversion Options ......................................... 34
Section 4.2 Commitment and Syndication Fee ............................. 35
Section 4.3 Agent's Fee ................................................ 35
Section 4.4 Funds for Payments ......................................... 35
Section 4.5 Computations ............................................... 35
Section 4.6 Inability to Determine LIBOR Rate .......................... 36
Section 4.7 Illegality ................................................. 36
Section 4.8 Additional Interest ........................................ 36
Section 4.9 Additional Costs, Etc ...................................... 37
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TABLE OF CONTENTS
(continued)
PAGE
Section 4.10 Capital Adequacy ........................................... 38
Section 4.11 Indemnity of Borrower ...................................... 38
Section 4.12 Interest on Overdue Amounts; Late Charge ................... 38
Section 4.13 HLT Classification ......................................... 39
Section 4.14 Certificate ................................................ 39
Section 4.15 Limitation on Interest ..................................... 39
SECTION 5. COLLATERAL SECURITY ........................................................ 40
Section 5.1 Collateral ................................................. 40
Section 5.2 Appraisals ................................................. 40
Section 5.3 Release of Collateral ...................................... 41
Section 5.4 Substitution of Mortgaged Property ......................... 42
Section 5.5 Addition of Mortgaged Properties ........................... 42
Section 5.6 Mandatory Increase in Borrowing Base ....................... 43
Section 5.7 Non-Encumbrance ............................................ 43
Section 5.8 Special Security Documents ................................. 43
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE BORROWER ........... 44
Section 6.1 Corporate Authority, Etc ................................... 44
Section 6.2 Governmental Approvals ..................................... 45
Section 6.3 Title to Properties; Lease ................................. 45
Section 6.4 Financial Statements ....................................... 46
Section 6.5 No Material Changes ........................................ 46
Section 6.6 Franchises, Patents, Copyrights, Etc ....................... 46
Section 6.7 Litigation ................................................. 46
Section 6.8 No Materially Adverse Contracts, Etc ....................... 47
Section 6.9 Compliance with Other Instruments, Laws, Etc ............... 47
Section 6.10 Tax Status ................................................. 47
Section 6.11 No Event of Default ........................................ 47
Section 6.12 Holding Company and Investment Company Acts ................ 47
Section 6.13 Absence of UCC Financing Statements, Etc ................... 47
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.14 Setoff, Etc ................................................ 48
Section 6.15 Certain Transactions ....................................... 48
Section 6.16 Employee Benefit Plans ..................................... 48
Section 6.17 Regulations T, U and X ..................................... 48
Section 6.18 Environmental Compliance ................................... 48
Section 6.19 Subsidiaries and Joint Ventures ............................ 50
Section 6.20 Leases ..................................................... 50
Section 6.21 Loan Documents ............................................. 50
Section 6.22 Mortgaged Property ......................................... 50
Section 6.23 Brokers .................................................... 53
Section 6.24 Other Debt ................................................. 53
Section 6.25 Solvency ................................................... 54
Section 6.26 Contribution Agreement ..................................... 54
Section 6.27 No Fraudulent Intent ....................................... 54
Section 6.28 Transaction in Best Interests of Borrower; Consideration ... 54
Section 6.29 Partners and the Guarantor ................................. 54
Section 6.30 Principal Documents ........................................ 55
SECTION 7. AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER .................... 55
Section 7.1 Punctual Payment ........................................... 55
Section 7.2 Maintenance of Office ...................................... 55
Section 7.3 Records and Accounts ....................................... 55
Section 7.4 Financial Statements, Certificates and Information ......... 55
Section 7.5 Notices .................................................... 58
Section 7.6 Existence; Maintenance of Properties ....................... 60
Section 7.7 Insurance .................................................. 60
Section 7.8 Taxes ...................................................... 64
Section 7.9 Inspection of Properties and Books ......................... 65
Section 7.10 Compliance with Laws, Contracts, Licenses, and Permits ..... 65
Section 7.11 Use of Proceeds ............................................ 65
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TABLE OF CONTENTS
(continued)
PAGE
Section 7.12 Further Assurances ......................................... 66
Section 7.13 Compliance ................................................. 66
Section 7.14 Management ................................................. 66
Section 7.15 Interest Rate Contract(s) .................................. 66
Section 7.16 Ownership of Real Estate ................................... 66
Section 7.17 More Restrictive Agreements ................................ 67
Section 7.18 Guarantor Restrictions ..................................... 67
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER ............... 67
Section 8.1 Restrictions on Indebtedness ............................... 67
Section 8.2 Restrictions on Liens, Etc ................................. 69
Section 8.3 Restrictions on Investments ................................ 70
Section 8.4 Merger, Consolidation ...................................... 72
Section 8.5 Conduct of Business ........................................ 72
Section 8.6 Compliance with Environmental Laws ......................... 72
Section 8.7 Distributions .............................................. 74
Section 8.8 Asset Sales ................................................ 74
Section 8.9 Development Activity ....................................... 74
SECTION 9. FINANCIAL COVENANTS OF THE GUARANTOR AND THE BORROWER ...................... 76
Section 9.1 Borrowing Base ............................................. 76
Section 9.2 Liabilities to Assets Ratio ................................ 76
Section 9.3 Debt Service Coverage ...................................... 76
Section 9.4 Consolidated Tangible Net Worth ............................ 76
SECTION 10. CLOSING CONDITIONS ......................................................... 76
Section 10.1 Loan Documents ............................................. 77
Section 10.2 Resolutions ................................................ 77
Section 10.3 Incumbency Certificate; Authorized Signers ................. 77
Section 10.4 Opinion of Counsel ......................................... 78
Section 10.5 Performance; No Default .................................... 78
Section 10.6 Representations and Warranties ............................. 78
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TABLE OF CONTENTS
(continued)
PAGE
Section 10.7 Proceedings and Documents .................................. 78
Section 10.8 Compliance Certificate ..................................... 78
Section 10.9 Stockholder and Partner Consents ........................... 78
Section 10.10 Other Documents ............................................ 78
Section 10.11 No Condemnation/Taking ..................................... 78
Section 10.12 [Intentionally Omitted] .................................... 79
Section 10.13 Title Insurance Updates .................................... 79
Section 10.14 Payment of Fees ............................................ 79
Section 10.15 Insurance .................................................. 79
Section 10.16 Appraisals ................................................. 79
Section 10.17 Other ...................................................... 79
SECTION 11. CONDITIONS TO ALL BORROWINGS ............................................... 79
Section 11.1 Prior Conditions Satisfied ................................. 79
Section 11.2 Representations True; No Default ........................... 79
Section 11.3 No Legal Impediment ........................................ 80
Section 11.4 Governmental Regulation .................................... 80
Section 11.5 Proceedings and Documents .................................. 80
Section 11.6 Borrowing Documents ........................................ 80
Section 11.7 Endorsement to Title Policy ................................ 80
Section 11.8 Future Advances Tax Payment ................................ 80
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; ETC ....................................... 81
Section 12.1 Events of Default and Acceleration ......................... 81
Section 12.2 Limitation of Cure Periods ................................. 84
Section 12.3 Certain Cure Periods ....................................... 84
Section 12.4 Termination of Commitments ................................. 84
Section 12.5 Remedies ................................................... 85
Section 12.6 Distribution of Collateral Proceeds ........................ 85
SECTION 13. SETOFF ..................................................................... 86
SECTION 14. THE AGENT .................................................................. 86
Section 14.1 Authorization .............................................. 86
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TABLE OF CONTENTS
(continued)
PAGE
Section 14.2 Employees and Agents ....................................... 87
Section 14.3 No Liability ............................................... 87
Section 14.4 No Representations ......................................... 87
Section 14.5 Payments ................................................... 87
Section 14.6 Holders of Notes ........................................... 88
Section 14.7 Indemnity .................................................. 88
Section 14.8 Agent as Bank .............................................. 89
Section 14.9 Resignation ................................................ 89
Section 14.10 Duties in the Case of Enforcement .......................... 89
Section 14.11 Removal of Agent ........................................... 89
Section 14.12 Reliance on Hedge Provider ................................. 90
Section 14.13 Request for Agent Action ................................... 90
SECTION 15. EXPENSES ................................................................... 90
SECTION 16. INDEMNIFICATION ............................................................ 91
SECTION 17. SURVIVAL OF COVENANTS, ETC ................................................. 92
SECTION 18. ASSIGNMENT AND PARTICIPATION ............................................... 93
Section 18.1 Conditions to Assignment by Banks .......................... 93
Section 18.2 Register ................................................... 93
Section 18.3 New Notes .................................................. 94
Section 18.4 Participations ............................................. 94
Section 18.5 Pledge by Bank ............................................. 94
Section 18.6 No Assignment by Borrower or Guarantor ..................... 94
Section 18.7 Disclosure ................................................. 94
Section 18.8 Amendments to Loan Documents ............................... 94
Section 18.9 Mandatory Assignment ....................................... 95
SECTION 19. NOTICES .................................................................... 95
SECTION 20. RELATIONSHIP ............................................................... 97
SECTION 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE ......................... 97
SECTION 22. HEADINGS ................................................................... 97
SECTION 23. COUNTERPARTS ............................................................... 98
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TABLE OF CONTENTS
(continued)
SECTION 24. ENTIRE AGREEMENT, ETC ...................................................... 98
SECTION 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS ............................. 98
SECTION 26. DEALINGS WITH THE BORROWER OR THE GUARANTOR ................................ 98
SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC ......................................... 98
SECTION 28. SEVERABILITY ............................................................... 99
SECTION 29. TIME OF THE ESSENCE ........................................................ 99
SECTION 30. NO UNWRITTEN AGREEMENTS .................................................... 99
SECTION 31. REPLACEMENT OF NOTES ....................................................... 100
SECTION 32. TRUST EXCULPATION .......................................................... 100
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EXHIBITS AND SCHEDULES
EXHIBIT A - FORM OF FOURTH AMENDED AND RESTATED NOTE
EXHIBIT B - FORM OF REQUEST OF LOAN
EXHIBIT C - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT D - FORM OF LETTER OF CREDIT APPLICATION
SCHEDULE 1 - BANKS AND COMMITMENTS
SCHEDULE 1.1 - SPECIAL REAL ESTATE
SCHEDULE 2 - EXAMPLE OF CALCULATION OF DEBT SERVICE COVERAGE
AMOUNT
SCHEDULE 3 - EXISTING LETTERS OF CREDIT
SCHEDULE 6.7 - LITIGATION
SCHEDULE 6.15 - AFFILIATE TRANSACTIONS
SCHEDULE 6.18 - ENVIRONMENTAL MATTERS
SCHEDULE 6.19 - SUBSIDIARIES OF THE BORROWER AND GUARANTOR
SCHEDULE 6.22 - AGREEMENTS
SCHEDULE 6.29 - PROPERTY OF GUARANTOR
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