EXHIBIT 10.61
FIRST MODIFICATION AGREEMENT
THIS FIRST MODIFICATION AGREEMENT ("MODIFICATION") is made this ______
day of January, 2004, by BEN MAR, LLC, an Indiana limited liability company (the
"OLD BORROWER"), having its principal place of business c/o The Linder Company,
8555 North River Road, Suite 375, Indianapolis, Indiana 46240, Attn: Gary I.
Linder, RAMCO-MERCHANTS SQUARE LLC, a Delaware limited liability company, having
its principal place of business c/o Ramco-Gershenson Properties Trust, 27600
Northwestern Highway, Suite 200, Southfield, Michigan 48034 (the "NEW
BORROWER"), for the benefit of TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA ("TIAA"), a New York corporation, having an address at 730 Third Avenue,
New York, New York 10017 (the "LENDER").
RECITALS:
WHEREAS, Lender has made a loan (the "LOAN") to Old Borrower in the
maximum amount of $25,000,000.00. To evidence the Loan, Old Borrower executed
and delivered to Lender a Promissory Note (the "NOTE"), dated July 29, 1999 in
the original principal amount of Twenty-Five Million and No/100 Dollars
($25,000,000.00) to order of TIAA (this amount or so much as is outstanding from
time to time is referred to as the "PRINCIPAL"). The Note, among other things,
evidences the Old Borrower's current obligation to repay to the Lender with
interest those amounts described in the Note. In order to secure the Note, Old
Borrower executed and delivered to Lender,
(i) a certain Mortgage, Assignment of Leases and
Rents, Security Agreement and Fixture Filing Statement, dated
July 29, 1999, and recorded with Hamilton County, Indiana (the
"RECORDER'S OFFICE") on August 2, 1999 as Document No.
199909945462, (the "MORTGAGE"), which currently encumbers Old
Borrower's fee simple interest in the property and
improvements located at 2160 East 166th Street, Carmel,
Indiana as more particularly described therein and other
property of Old Borrower (as further defined in the Mortgage,
the "PROPERTY");
(ii) a certain Assignment of Rents and Leases,
dated July 29, 1999, and recorded with the Recorder's Office
on August 2, 1999, as Document No. 199909945463 (the
"ASSIGNMENT OF RENTS AND LEASES"); and
(iii) those certain UCC-1 Financing Statements
filed with the Secretary of State of Indiana and the
Recorder's Office (the "FINANCING STATEMENTS").
The Note is further evidenced and secured by that certain (a) Environmental
Indemnity dated July 29, 1999 executed by Gary I. Linder, (b) Guaranty dated
July 29, 1999
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executed by Gary I. Linder, and (c) Escrow and Security Agreement dated July 29,
1999 (the foregoing documents are collectively referred to herein as the "LOAN
DOCUMENTS");
WHEREAS, as of the date of this Modification, the Loan Documents have
not been modified or amended;
WHEREAS, immediately prior to the execution and delivery of this
Modification, Old Borrower has conveyed (the "TRANSACTION") to New Borrower the
Property;
WHEREAS, New Borrower's sole member is Ramco-Gershenson Properties,
L.P., a Delaware limited partnership ("RGPLP"), the general partner is
Ramco-Gershenson Properties Trust, a Maryland real estate investment trust (the
"GENERAL PARTNER"), which General Partner is a publicly traded company listed on
the New York Stock Exchange and RGPLP's limited partners are comprised of
various individuals and entities, including General Partner, which owns a
majority of the limited partnership interests in RGPLP;
WHEREAS, the parties hereto desire to amend the Loan Documents to
reflect the Transaction and to modify the Mortgage in certain other respects;
and
WHEREAS, to induce Lender to consent to the Transaction, New Borrower
desires to reaffirm its obligations under the Loan Documents.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The foregoing Recitals are incorporated in this Modification
as if fully set forth therein. Any initially capitalized term not otherwise
defined herein shall have the meaning ascribed to such term in the Mortgage.
2. Lender acknowledges and consents to the Transaction as
contemplated hereby in this Modification.
3. Lender acknowledges the receipt of the one percent (1%) of the
Note's principal balance as required under that certain letter from Lender's
loan servicer to Ms. Catherine Clark, Vice President Acquisitions/Dispositions,
Ramco-Gershenson Properties Trust dated November 7, 2003 (the "TRANSFER FEE"),
and the payment of Lender's expenses in connection with the Transfer, including
Lender's administrative fees.
4. Lender certifies to New Borrower that as of the date hereof,
the Loan Documents are in full force and effect; neither the Borrower or any
guarantor or indemnitor is in default thereunder; and the Loan Documents have
not been modified, supplemented or amended and constitute all of the material
documents relating to the Note and the transaction contemplated thereby.
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5. As of the date hereof, the outstanding balance of the Note is
$_______________. Old Borrower acknowledges that it has no existing and asserted
(and no basis for any unasserted) claims, counterclaims, defenses or rights of
setoff whatsoever with respect to any payment obligations under the Note or any
other obligations under the Mortgage or any other document evidencing or
securing the Note, and any such claims, counterclaims, defenses and rights of
setoff are hereby waived and relinquished. New Borrower acknowledges that it has
no existing and asserted (and no basis for any unasserted) claims,
counterclaims, defenses or rights of setoff whatsoever with respect to any
payment obligations under the Note or any other obligations under the Mortgage
or any other document evidencing or securing the Note, and any such claims,
counterclaims, defenses and rights of setoff are hereby waived and relinquished.
The Loan Documents are ratified and confirmed hereby and are in full force and
effect. New Borrower hereby assumes the obligations of Old Borrower under the
Loan Documents.
6. New Borrower represents, warrants and covenants that following
the date of this Modification, the Property be managed by Ramco-Gershenson, Inc.
(the "PROPERTY MANAGER"), a wholly owned subsidiary of RGPLP, and the Property
shall continue to be managed by Property Manager unless as otherwise permitted
by the Lender. Lender hereby approves Property Manager as the manager of the
Property.
7. New Borrower represents and warrants that the Transaction
shall not result in the violation of Section 8.3 of the Mortgage.
8. Section 12.1(b) of the Mortgage is hereby deleted in its
entirety and shall be replaced by the following:
"(b) Borrower represents, warrants and covenants that:
(i) Borrower is a Delaware limited liability
company, the sole member of which is RGPLP.
(ii) RGPLP is a Delaware limited partnership
whose sole general partner is the General Partner,
owning one percent (1%) of the partnership interests
in RGPLP as a general partner and ____ percent (__%)
of the partnership interests in RGPLP as a limited
partner (as of the date hereof). The balance of the
partnership interests in RGPLP are all limited
partnership interests and are held by numerous
individuals and entities.
(The sole general partner and the limited partners of RGPLP
are referred to as the "EXISTING PARTNERS".)
(iii) The General Partner is a publicly traded
real estate investment trust currently traded on the
New York Stock Exchange and is currently thousands of
individual and entity shareholders.
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9. Section 12.2(b) of the Mortgage is hereby deleted in its
entirety and replaced by the following:
"(b) Upon compliance with the conditions set forth in the
preceding subsection, the following Transfers (the "PERMITTED
TRANSFERS") may occur without Lender's prior consent:
(i) Transfers of limited partnership interests
in RGPLP, provided that subsequent to the Transfer,
the General Partner (or a transferee pursuant to a
Permitted Transfer hereunder) remains as the sole
general partner of RGPLP,
(ii) Transfers by the shareholders of General
Partner, provided that subsequent to such transfer,
the General Partner (or a transferee pursuant to a
Permitted Transfer hereunder) is the sole general
partner of RGPLP, and
(iii) Transfers of interests in the General
Partner by means of merger, whether or not the
General Partner is the surviving entity, so long as
following such merger, the surviving entity having at
least equivalent or better net worth and retail
shopping center ownership and management experience
to the General Partner."
10. The Borrower's principal place of business shall be c/o
Ramco-Gershenson Properties Trust, 27600 Northwestern Highway, Suite 200,
Southfield, Michigan 48034. The address for Borrower provided under Notice
provisions under Section 17.1 of the Mortgage shall be replaced by the
following:
"If to Old Borrower: Ben Mar, LLC
The Linder Company
8555 North River Road, Suite 375
Indianapolis, Indiana 46240
Attn: Gary I. Linder
If to New Borrower: Ramco-Merchants Square LLC
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Attn: Chief Financial Officer
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With courtesy copies to: Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Attn: Managing Director,
Portfolio-Midwest/Southwest
Mortgage and Real Estate
TIAA Appl. #IN-223
TIAA Mtge. #000453100
and:
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Attn: Vice President and Chief
Counsel,
Investment Management Law
TIAA Appl. #IN-223
TIAA Mtge. #000453100
11. New Borrower hereby certifies as follows as of the date hereof
and at all times while the Loan is outstanding:
(a) New Borrower or its respective constituents or
affiliates are in violation of any Laws relating to
terrorism or money laundering, including Executive
Order No. 13224 on Terrorist Financing (effective
September 24, 2001) (the "EXECUTIVE ORDER"), and the
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Public Law 107-56, the
"PATRIOT ACT").
(b) None of New Borrower or its respective constituents
or affiliates, any of their respective brokers or
other agents acting or benefiting in any capacity in
connection with the Loan is a "Prohibited Person"
which is defined as follows:
(i) a person or entity that is listed in the
Annex to, or is otherwise subject to the
provisions of, the Executive Order No. 13224
on Terrorist Financing, effective September
24, 2001 and relating to Blocking Property
and Prohibiting Transactions With Persons
Who Commit, Threaten to Commit, or Support
Terrorism the Executive Order;
(ii) a person or entity owned or controlled by,
or acting for or on behalf of, any person or
entity that is listed in the Annex
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to, or is otherwise subject to the
provisions of, the Executive Order;
(iii) a person or entity with whom Lender is
prohibited from dealing or otherwise
engaging in any transaction by any terrorism
or money laundering law, including the
Executive Order and the Patriot Act;
(iv) a person or entity who commits, threatens or
conspires to commit or supports "terrorism"
as defined in the Executive Order;
(v) a person or entity that is named as a
"specially designated national and blocked
person" on the most current list published
by the U.S. Treasury Department Office of
Foreign Assets Control at its official
website, http://www.treas.gov/ofac/tllsdn.pdf
or at any replacement website or other
replacement official publication of such
list; and
(vi) a person or entity who is affiliated with a
person or entity listed above.
(c) None of New Borrower or its respective affiliates or
constituents, any of their respective brokers or
other agents acting in any capacity in connection
with the Loan is or will (i) conduct any business or
engage in any transaction or dealing with any
Prohibited Person, including the making or receiving
any contribution of funds, goods or services to or
for the benefit of any Prohibited Person, (ii) deal
in, or otherwise engage in any transaction relating
to, any property or interests in property blocked
pursuant to the Executive Order; or (iii) engage in
or conspire to engage in any transaction that evades
or avoids, or has the purpose of evading or avoiding,
or attempts to violate any of the prohibitions sets
forth in the Executive Order or the Patriot Act.
12. New Borrower assumes all of the obligations under the Escrow
and Security Agreement dated July 29, 1999.
13. Lender acknowledges that, anything to the contrary set forth
in the Loan Documents notwithstanding, New Borrower shall not be liable for any
breach of warranty or misrepresentation made by Old Borrower under the Loan
Documents, nor shall same be a default under the Loan Documents with respect to
New Borrower; provided, however, the foregoing shall not release Old Borrower
nor the guarantors or indemnitors of Old Borrower's obligations with respect to
any such breach or misrepresentation.
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14. Section 10 of the Mortgage shall be modified by providing that
all Financial Statement requirements for the Borrower shall be satisfied by
providing the consolidated financial statements of General Partner, and that
rather than a cash basis, such Financial Statements will be prepared on an
accrual (GAAP) basis, provided that Borrower shall provide Lender with
sufficient information to enable Lender to convert the accrual basis to cash
basis Financial Statements.
15. Lender hereby releases Old Borrower from its obligations under
the Loan Documents with respect to matters, which arise from and after the date
of this Modification. Lender hereby releases Gary I. Linder from his obligations
under the Environmental Indemnity and Guaranty with respect to matters which
arise from and after the date of this Modification.
16. There is a state approved remediation plan (the "SARP") for
the remediation of the contamination of the Property with the chemicals
perchloroethylene and trichloroethylene (collectively "perc"). New Borrower
agrees to perform the SARP as required by the terms hereof. Lender agrees that,
so long as New Borrower is in compliance with the SARP and environmental laws
with respect to the perc, that the presence on the Property of perc, shall not
be an Event of Default under the Mortgage.
17. This Modification does not create any new or further
indebtedness and is not intended and shall not be construed to disturb,
discharge, cancel, impair or extinguish the indebtedness and repayment
obligations evidenced by the Note or any of the Loan Documents.
18. This Modification may be executed in any number of identical
counterparts, each of which for all purposes is to be deemed an original, but
all of which constitute collectively one agreement.
19. This Modification shall be governed by and construed in
accordance with the internal laws of the State of Indiana
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IN WITNESS WHEREOF, the parties hereto have caused this Modification to
be executed by and delivered as of the day and year first above written.
OLD BORROWER:
BEN MAR, LLC,
an Indiana limited liability company
By: ________________________________
a ______________________________
its General Partner
By: _______________________
Name:
Title:
[SIGNATURES ON NEXT PAGE]
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NEW BORROWER:
RAMCO-MERCHANTS SQUARE LLC,
a Delaware limited liability company
By: ___________________________
Name:
Title:
[SIGNATURES ON NEXT PAGE]
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LENDER:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA,
a New York corporation
By: _______________________________________
Name: _______________________________________
Title:_______________________________________
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STATE OF INDIANA )
) ss
COUNTY OF ________________ )
I, _____________________, a notary public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that _________________________, the
__________________ of BEN MAR, LLC, personally known to me to be the same person
whose name is subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged that he/she signed, sealed and delivered the said
instrument in his/her capacity as ________________ of such limited liability
company as his/her free and voluntary act, for the uses and purposes therein set
forth.
GIVEN under my hand and official seal, this ______ day of ___________,
2004.
_____________________________________________
Notary Public
My commission expires:
______________________
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STATE OF ________________ )
) ss
COUNTY OF _______________ )
I, _____________________, a notary public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that _________________________, the
__________________ of RAMCO-MERCHANTS SQUARE LLC, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that he/she signed, sealed and
delivered the said instrument in his/her capacity as ________________ of such
limited partnership as his/her free and voluntary act, for the uses and purposes
therein set forth.
GIVEN under my hand and official seal, this ______ day of ___________,
2004.
____________________________________________
Notary Public
My commission expires:
______________________
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STATE OF NEW YORK )
) ss
COUNTY OF NEW YORK )
I, _____________________, a notary public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that ______________________, the
Associate Director of TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that he/she signed, sealed and delivered the said instrument in his/her capacity
as Associate Director of such corporation as his/her free and voluntary act, for
the uses and purposes therein set forth.
GIVEN under my hand and official seal, this ______ day of ____________,
2004.
______________________________________________
Notary Public
My commission expires:
______________________
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