Exhibit 10.67
BRIDGE LOAN AGREEMENT
Dated as of September 9, 2005
among
RAMCO-GERSHENSON PROPERTIES, L.P.
as Borrower,
and
RAMCO-GERSHENSON PROPERTIES TRUST,
as Guarantor
and
KEYBANK NATIONAL ASSOCIATION,
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
KEYBANK NATIONAL ASSOCIATION,
as Agent
and
KEYBANC CAPITAL MARKETS,
as Sole Lead Manager and Arranger
BRIDGE LOAN AGREEMENT
This BRIDGE LOAN AGREEMENT is made as of the 9th day of September, 2005, by
and among RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership (the
"Borrower"), RAMCO-GERSHENSON PROPERTIES TRUST, a Maryland real estate
investment trust ("Guarantor"), KEYBANK NATIONAL ASSOCIATION, the other lenders
that are a party to this Agreement, and the other lending institutions which may
become parties hereto pursuant to Section 18 (the "Banks"), and KEYBANK NATIONAL
ASSOCIATION, a national banking association, as Administrative Agent for the
Banks (the "Agent").
RECITALS
WHEREAS, Borrower has obtained a loan (the "Original Loan") as evidenced by
those certain agreements and instruments more particularly described in the
Assignment of Loan Documents (the "Original Loan Documents"); and
WHEREAS, Borrower has requested that the Banks provide a bridge loan to
Borrower by acquiring the documents evidencing the Original Loan and by amending
and restating the Original Loan and certain of the Original Loan Documents in
their entirety; and
WHEREAS, Agent and the Banks are willing to amend and restate the Original
Loan and certain of the Original Loan Documents in their entirety on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions herein, and of
any loans, advances, or extensions of credit now or hereafter made to or for the
benefit of the Borrower by the Banks, the parties hereto hereby amend and
restate the loan agreements included in the Original Loan Documents and covenant
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 interests,
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 or general partnership interests, preferred stock or
other ownership interests of such Person.
Agent. KeyBank, acting as Administrative Agent for the Banks, its
successors and assigns.
Agent's Head Office. The Agent's head office located at 127 Public Square,
Cleveland, Ohio 44114-1306, 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 Bridge Loan Agreement, including the Schedules and Exhibits
hereto.
Assignment of Leases and Rents. Each of the collateral assignments of
leases and rents from the Borrower 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 as lessor with
respect to all Leases of all or any part of a Collateral Property, each such
collateral assignment to be in form and substance satisfactory to the Agent.
Assignment of Loan Documents. [THE TRANSFER AND ASSIGNMENT OF PROMISSORY
NOTE AND OTHER LOAN DOCUMENTS] from the holder or holders of the Original Loan
Documents to the Agent.
Balance Sheet Date. June 30, 2005.
Banks. KeyBank 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 per annum 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%) 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.
Building. With respect to each Collateral 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 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
Collateral Properties, 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 Collateral
Properties (except apparatus, fixtures or articles of personal property
belonging to lessees or other occupants of such building or to persons other
than the Borrower unless the same be abandoned by any such lessee or other
occupant or person and shall become the Borrower's property by reason of such
abandonment), together with any and all replacements thereof and additions
thereto.
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Business Day. Any day on which banking institutions located in Cleveland,
Ohio are open for the transaction of banking business and, in the case of LIBOR
Rate Loans, which also is a LIBOR Business Day.
Capital Expenditure Reserve Amount. With respect to the Collateral
Properties, a reserve for replacements and capital expenditures equal to $.10
per square foot of building space located on such Collateral Properties.
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 Guarantor (together with any new directors whose election by the
Board of Directors or whose nomination for election by the shareholders of
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 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 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 Borrower which are
or are intended to be subject to the security interests and liens created by the
Security Documents, including, without limitation, the Guaranty.
Collateral Operating Cash Flow. With respect to the Collateral Properties
as of any date of determination, an amount equal to the sum of (a) the Net
Income of Borrower attributable to the Collateral Properties for the preceding
four (4) fiscal quarters 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.
Collateral Property or Collateral Properties. The Real Estate owned by the
Borrower which is encumbered by the Security Deeds.
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Collateral Value. As of any date of determination for any Collateral
Property, an amount equal to the Collateral Operating Cash Flow from such
Collateral Property divided by 0.085.
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 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.
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.
Debt Offering. The issuance and sale by the Borrower or Guarantor of any
debt securities of the Borrower or Guarantor.
Default. See Section 12.1. In addition, any "Default" (as defined in the
Secured Revolving Credit 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.
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 Qualification Documents. With respect to any
Collateral Property, each of the following:
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(a) Security Documents. Such Security Documents as Agent shall require
relating to such Real Estate, 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 and the Guarantor reasonably acceptable to the Agent qualified to
practice in the State of Michigan addressed to the Banks and the Agent and in
form and substance satisfactory to the Agent as to the enforceability of such
Security Documents and such other matters as the Agent shall reasonably request.
(c) Perfection of Liens. 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) Taxes. 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 (including an endorsement
reflecting the assignment of the Original Loan Documents to Agent, and the
amendment thereof pursuant to this Agreement), 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
other Person 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 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) 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 the Loan Documents 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 the Loan Documents.
(h) Additional Documents. Such other documents, certificates, reports or
assurances as the Agent may reasonably require in its discretion.
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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. Environmental Services, Inc., or another firm of
independent professional engineers or other scientists generally recognized as
expert in the detection, analysis and 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 Guarantor of any
equity securities of the Borrower or 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 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 (rounded to
the nearest one hundredth of one percent (1/100 of 1%)) announced by the Federal
Reserve Bank of Cleveland on such day as being the weighted average of the rates
on overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve Bank in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate", 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 (3) Federal funds brokers of recognized standing selected by
the Agent.
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, any amount otherwise
included therein from a mark-up or mark-down of a derivative product of a Person
shall be excluded.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
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.
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Guarantor. As defined in the preamble hereto.
Guaranty. The 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).
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; and (f) 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 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 Indemnity Agreement Regarding Hazardous Materials
made by the Borrower and the Guarantor in favor of the Agent and the Banks, as
the same may be modified or amended, pursuant to which the Borrower and the
Guarantor agree to indemnify the Agent and the Banks with respect to Hazardous
Substances and Environmental Laws, such Indemnity Agreement 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 or three
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;
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(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 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; (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.
KeyBank. KeyBank National Association, a national banking association, and
its successors by merger.
Lead Arranger. KeyBanc Capital Markets.
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 any Affiliate of Borrower.
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. For any LIBOR Rate Loan for any Interest Period, the average
rate (rounded to the nearest 1/100th) as shown in Dow Jones Markets (formerly
Telerate) (Page 3750) at which deposits in U.S. dollars are offered by first
class banks in the London Interbank Market at approximately 11:00 a.m. (London
time) on the day that is two (2) LIBOR Business Days prior to the first day of
such Interest Period with a maturity approximately equal to such Interest Period
and in an amount approximately equal to the amount to which such Interest Period
relates, adjusted for reserves and taxes if required by future regulations. If
Dow Jones Markets no longer reports such rate or Agent determines in good faith
that the
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rate so reported no longer accurately reflects the rate available to Agent in
the London Interbank Market, Agent may select a replacement index. For any
period during which a Reserve Percentage shall apply, the LIBOR Rate with
respect to LIBOR Rate Loans 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 Security Documents and all
other documents, instruments or agreements now or hereafter executed or
delivered by or on behalf of the Borrower or the Guarantor in connection with
the Loans.
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. Any agreements, whether written or oral, providing
for the management of the Collateral Properties or any of them, as the same may
be modified or amended from time to time.
Management Company Agreement and Consent. An agreement, in form and
substance satisfactory to Agent, whereby the applicable management company, if
any, agrees that (a) upon foreclosure of any of the Collateral or transfer in
lieu thereof, the Management Agreements will terminate as to such Collateral
Property, and (b) upon foreclosure of any of the Collateral or transfer in lieu
thereof, Agent shall have no obligations or liabilities under any Management
Agreement.
Maturity Date. December 29, 2005, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower, Guarantor or any
ERISA Affiliate.
Net Income (or Deficit). With respect to any Collateral Property for any
fiscal period, the net income (or deficit) of Borrower attributable to such
Collateral Property, after deduction of all expenses, taxes and other proper
charges, determined in accordance with generally accepted accounting principles.
Net Proceeds. With respect to the refinance of the Collateral Properties
commonly known as Jackson West, New Towne Plaza and West Oaks, in accordance
with the provisions of Section 5.2, all gross proceeds of such refinance plus
all other consideration received in conjunction with such refinance less all
reasonable, ordinary and customary costs, expenses and commissions incurred as a
direct result of such refinance and paid to any Person that is unrelated to the
Borrower, Guarantor or any of their respective partners, members, managers,
officers or directors or any Person affiliated with the Borrower, Guarantor or
any their respective partners, members, managers, officers or directors.
Non-recourse Indebtedness. Indebtedness of a Person which is secured solely
by one or more parcels of Real Estate and related personal property and is not a
general obligation of such Person, the
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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.
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
and the Guarantor 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 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.
OFAC. Office of Foreign Asset Control of the Department of the Treasury of
the United States of America.
Original Loan. As defined in the preamble.
Original Loan Documents. As defined in the preamble.
Original Notes. The promissory notes relating to the Original Loan
described in Exhibit D attached hereto and made a part hereof.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
Patriot Act. The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, as the same may
be amended from time to time, and corresponding provisions of future laws.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Permitted Liens mean
(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 Collateral 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) of the Secured Revolving Credit
Agreement;
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(v) encumbrances on properties other than the Collateral 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 encumbrances, liens or 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) of the Secured Revolving
Credit Agreement;
(vii) liens in favor of the Agent and the Banks granted pursuant to the
Senior Revolving Credit Agreement;
(viii) liens and encumbrances on a Collateral Property expressly permitted
under the terms of the Security Deed relating thereto; and
(ix) liens and encumbrances on Real Estate (other than a Collateral
Property) that is the subject of a construction loan permitted under the terms
of Section 8.1(j) of the Secured Revolving Credit Agreement.
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.
Pro Forma Debt Service. At any time determined by the Agent, an amount
equal to the annual principal and interest payable on a loan in a principal
amount equal to the outstanding principal balance of the Loan (after giving
effect to any requested advance of the Loan) 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 1.75% payable based on a 25 year mortgage style
amortization schedule (expressed as a mortgage constant percentage) and (ii)
eight percent (8.0%). The determination of the Pro Forma Debt Service 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.
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Guarantor, Borrower or any of their respective 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.
Register. See Section 18.2.
REIT Status. With respect to 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).
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.
11
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.
SEC. The federal Securities and Exchange Commission.
Secured Revolving Credit Agreement. The Fourth Amended and Restated Master
Revolving Credit Agreement dated as of December 30, 2002, among Borrower,
Guarantor, Fleet National Bank, individually and as agent, and the other banks
that from time to time thereto, and the other parties thereto, as such agreement
exists as of the date hereof. In the event that the Secured Revolving Credit
Agreement shall be modified or any of the provisions thereof shall be waived,
and KeyBank shall have approved the amendment or waiver thereunder in writing,
then such amendment or waiver shall be deemed to be a part of the definition of
Secured Revolving Credit Agreement. In the event that the Secured Revolving
Credit Agreement shall terminate or otherwise be of no force or effect, then the
obligation of the Borrower and Guarantor hereunder to perform each and every
covenant therein shall survive notwithstanding such termination. Upon the
request of the Agent, the Borrower and Guarantor shall enter into such
amendments to the Loan Documents as Agent may reasonably request to incorporate
some or all of the representations, warranties and covenants of the Secured
Revolving Credit Agreement into the Loan Documents.
Security Deeds. The Mortgages, Deeds to Secure Debt and Deeds of Trust from
the Borrower 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 has conveyed a
Collateral Property as security for the Obligations of the Borrower.
Security Documents. The Assignment of Leases and Rents, the Security Deed,
the Indemnity Agreement, the Guaranty, and any further 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 Collateral Property.
Short-term Investments. Investments described in subsections (a) through
(g), inclusive, of Section 8.3.
State. A state of the United States of America.
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.
Title Insurance Company. Chicago Title Insurance Company or another title
insurance company or companies approved by the Agent.
Title Policy. With respect to each parcel of Collateral Property, the
mortgagee's title insurance policy issued to the holders of the Original Loan
insuring the priority of the Original Loan Documents as
12
endorsed to reflect the assignment of the Original Loan Documents to Agent and
the amendment of the Original Loan Documents.
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
Ninety-Nine Million Three Hundred Sixteen Thousand Eight Hundred Thirty and
78/100 Dollars ($99,316,830.78).
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.
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.
(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. AGREEMENT TO MAKE ADVANCES; LIMITATIONS.
SECTION 2.1 AGREEMENT TO MAKE ADVANCES. 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
13
may borrow on the Closing Date upon submission by the Borrower to the Agent of a
Loan Request given in accordance with Section 2.5, up to a maximum aggregate
principal amount equal to such Bank's Commitment Percentage of such Loan to pay
for the purchase of the Original Loan Documents by Agent; 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) shall not at anytime exceed the Total Commitment. The Loans shall be
made pro rata in accordance with each Bank's Commitment Percentage. Each Loan
Request 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. Once repaid, sums hereunder may not be
reborrowed. There shall only be a single advance of the Loan.
SECTION 2.2 [INTENTIONALLY OMITTED.]
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.
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 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 LIBOR Rate
determined for such Interest Period plus one and four-tenths percent (1.40%).
(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.
(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 (provided,
however, such three (3) Business Days prior notice shall not be required with
respect to the Loan funded on the Closing Date). Each such notice shall specify
with respect to the requested Loan the proposed principal amount, Drawdown Date,
Interest
14
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 2.1), and (ii) a
certification by 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 making of such Loan. 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
$250,000 or an integral multiple of $100,000 in excess thereof, or (b) for a
LIBOR Rate Loan in a minimum aggregate amount of $250,000 or an integral
multiple of $100,000 in excess thereof; provided, however, that there shall be
no more than three (3) LIBOR Rate Loans outstanding at any one time.
SECTION 2.6 FUNDS FOR LOANS.
(a) Not later than 11:00 a.m. (Cleveland 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 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
15
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 ADVANCES DO NOT CONSTITUTE A WAIVER. No Loan made by the Banks
shall constitute a waiver of any of the conditions to the Banks' obligation to
make further Loans nor, in the event the Borrower fails to satisfy any such
condition, shall any such Loan have the effect of precluding the Banks from
thereafter declaring such failure to satisfy a condition to be an Event of
Default.
SECTION 2.8 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 $250,000.00 or an integral multiple of $100,000.00 in
excess thereof (provided that in no event shall the aggregate Commitments be
reduced to an amount less than $25,000,000.00) 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. Additionally, upon the Agent's
and/or a Bank's receipt of any prepayments of all or a portion of the Loans
pursuant to Section 3.2, Section 3.3 or Section 5.2, the Commitments of the
Banks shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount prepaid, any such reduction to be without penalty.
Upon the effective date of any such termination in full, the Borrower shall pay
to the Agent for the respective accounts of 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 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.
(a) If at any time the aggregate of the Outstanding Loans exceeds the
Total Commitment, 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 five (5) Business Days after receipt of notice of such Default from Agent
or the Majority Banks.
(b) Except as permitted by Section 5.2, if at any time there shall
occur, whether voluntarily, involuntarily or by operation of law, a sale,
transfer, assignment, conveyance, option or other disposition of, or any
mortgage, hypothecation, encumbrance, financing or refinancing of (i) any
Collateral Property or (ii) any of the Collateral, except for Permitted Liens of
the type described in clauses (ii), (vii) and (viii) of the definition thereof,
all of the Obligations outstanding on such date, together with any and all
accrued but unpaid interest thereon and prepayment fees shall become absolutely
due and payable.
16
(c) If at any time the Secured Revolving Credit Agreement is
terminated or any of the "Commitments" (as defined in the Secured Revolving
Credit Agreement) are terminated, then all of the Obligations outstanding on
such date, together with any and all accrued but unpaid interest thereon and
other amounts due and payable under this Agreement, shall become absolutely due
and payable, and the obligation of the Banks to any other advances of the Loan
shall automatically terminate.
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., Cleveland 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.
SECTION 3.5 EFFECT OF PREPAYMENTS. Amounts of the Loans hereunder may not
be reborrowed. Except as otherwise expressly provided herein, all payments shall
first be applied to accrued but unpaid interest and then to principal as
provided above.
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 $500,000 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 three
(3) 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
$500,000 or a LIBOR Rate Loan in an aggregate principal amount of less than
$500,000 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
17
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.
(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 BREAK-UP FEE. The Borrower shall pay to KeyBank 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 KeyBank.
SECTION 4.3 [INTENTIONALLY OMITTED.]
SECTION 4.4 FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, unused facility 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. (Cleveland 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 KeyBank 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 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
18
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, or is 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 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 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 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
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, or any amendment or
modification of present 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, or the Loans (other
than taxes based upon or measured by the income or profits of such Bank or the
Agent), or
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(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, 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, 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
(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 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 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.
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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.
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,
21
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.
SECTION 5. COLLATERAL SECURITY.
SECTION 5.1 COLLATERAL. The Obligations of the Borrower shall be secured by
(i) a perfected first priority lien or security interest to be held by the Agent
for the benefit of the Banks in the Collateral Property pursuant to the terms of
the Security Deeds, (ii) the Indemnity Agreement; and (iii) such additional
collateral, if any, the Agent for the benefit of the Banks from time to time may
accept as security for the Obligations with the consent of the Majority Banks,
which consent may be given or withheld in the sole discretion of the Majority
Banks. The Obligations shall also be guaranteed pursuant to the terms of the
Guaranty.
SECTION 5.2 RELEASE OF COLLATERAL.
(a) Upon termination of this Agreement and the Commitment of the Banks
to make Loans and, the payment in full of all of the Obligations, the Agent, on
behalf of the Banks, shall release the Collateral 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 5.2), the Agent shall release the
Collateral Properties commonly known as Jackson West, New Towne Plaza and West
Oaks from the lien or security title of the Security Documents encumbering the
same in connection with the planned CMBS refinancing of such properties 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 three (3) 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;
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(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; and
(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
fifty percent (50%) of the Net Proceeds from the refinancing of such
properties.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE BORROWER.
The Borrower and Guarantor hereby reaffirm as of the date hereof each and
every representation and warranty set forth in the Secured Revolving Credit
Agreement as if the same were more fully set forth herein, and 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
twenty, 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. 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 properties and
interests 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 each other jurisdiction where a
failure to be so qualified in such other jurisdiction could have a materially
adverse effect on the business, assets or financial condition of such Person.
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 interests 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 assets held by it are
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.
(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
23
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 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 Borrower and the Guarantor and
their respective Subsidiaries as of the Balance Sheet Date, (b) an unaudited
operating statement for each of the Collateral Properties for the period of
January 1, 2005 through June 30, 2005, to the extent available, satisfactory in
form to the Agent and certified by the Borrower as fairly presenting the
operating income from such properties for such periods, and (c) certain other
financial information relating to the Borrower, the Guarantor, their
Subsidiaries 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 Collateral Properties for such periods.
Other than the bridge loan from KeyBank to Ramco River City, Inc. in the amount
of $9,000,000 closed July 11, 2005, 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,
24
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 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
25
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 or rights thereunder.
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. Borrower is the owner of the Collateral free
from any lien, security interest, encumbrance or other claim or demand, except
for Permitted Liens of the type described in clauses (ii), (vii) or (viii) of
the definition thereof.
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, Guarantor and each of
their respective Subsidiaries 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 Collateral 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,
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
26
any state or local statute, regulation, ordinance, order or decree relating to
the environment (hereinafter "Environmental Laws"), which violation involves any
of the Collateral 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 Collateral 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 10.12: (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 Collateral
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
Collateral 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 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.
27
(d) None of the Borrower, the Guarantor, their respective
Subsidiaries, the Collateral 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 effectiveness of any transactions contemplated
hereby.
SECTION 6.19 SUBSIDIARIES AND JOINT VENTURES. The organizational chart
attached as Schedule 6.19 sets forth all of the direct and indirect 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 Guarantor's ownership interest therein, is set forth in said
Schedule 6.19. No Person owns any legal, equitable or beneficial interest in any
of the Persons set forth on Schedule 6.19, or has the right to vote or exercise
control over such Person or its management, except as set forth on such
Schedule.
SECTION 6.20 [INTENTIONALLY OMITTED.]
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 COLLATERAL PROPERTY. The Borrower makes the following
representations and warranties concerning each Collateral Property, to the
extent applicable, which are true and correct except where such failure to be
true and correct individually or in the aggregate would not have a material
adverse effect on (x) the value or marketability of such Collateral Property,
(y) the business, properties, assets, condition (financial or otherwise) or
results of operations of Borrower, or (z) the ability of Borrower to perform any
of its obligations under the Loan Documents:
(a) Off-Site Utilities. All water, sewer, electric, gas, telephone and
other utilities necessary for the use and operation of the Collateral Property
are installed to the property lines of the Collateral Property through dedicated
public rights of way or through perpetual private easements approved by the
Agent and, except in the case of drainage facilities, are 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 Collateral Property are
dedicated and accepted public roads, to which the Collateral 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 Collateral Property has direct access approved by the
Agent. All private ways providing access to the Collateral 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
28
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 Collateral Property is located, except as may be
specifically shown on the Survey for such Collateral 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 and/or
Phase II, as the case may be, 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 Collateral
Property is located as is adequate under the zoning laws and regulations to
permit use of the Building for its current use. Each Collateral 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.
(f) No Required Collateral Property Consents, Permits, Etc. Neither
the Borrower nor the Guarantor 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 Collateral Property for the maintenance,
operation, servicing and use of the Collateral 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. To the best knowledge of the Borrower and the Guarantor, 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 Collateral Property or any part
thereof.
(g) Insurance. Neither the Borrower nor the Guarantor has received any
outstanding notice from any insurer or its agent requiring performance of any
work with respect to the Collateral Property or canceling or threatening to
cancel any policy of insurance, and the Collateral 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
Collateral 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). No abatement proceedings are pending with reference to any
real estate taxes
29
assessed against the Collateral 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 Collateral 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 Collateral 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 Collateral Property or any part thereof, and, to the
knowledge of the Borrower and the Guarantor, no such proceedings are presently
threatened or contemplated by any taking authority. Neither the Collateral
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
Collateral Property 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
Collateral 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 Collateral
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 Collateral Property or portion thereof other than pursuant
to the Leases reflected in Rent Rolls previously furnished to the Agent for the
Collateral 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 nor the Guarantor 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 or the
Guarantor, 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 or the Guarantor 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 Collateral Property, or any
portion thereof that are not cancelable at any time. There are no Management
Agreements for the Collateral Properties. To the best knowledge of the Borrower,
there are no material claims or any bases for material claims in respect of the
Collateral Property or its operation by any party to any Service Agreement or
Management Agreement.
(m) Other Material Real Property Agreements: No Options. Except as
listed on Schedule 6.23, There are no material agreements pertaining to the
Collateral Property, any Building thereon or the operation or maintenance of
either thereof other than as described in this Agreement
30
(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 Collateral 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, 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 any of its Subsidiaries
or their respective properties and entered into by the Borrower or any of its
Subsidiaries as of the date of this Agreement with respect to any Indebtedness
of the Borrower or any of its Subsidiaries.
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 [INTENTIONALLY OMITTED.]
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,
the 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 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 OWNERSHIP. Guarantor is the sole general partner of Borrower
and owns a 1% general partnership interest and a 84.17% limited partnership
interest in Borrower. Guarantor owns no assets other than its interest in
Borrower as a general partner and limited partner, cash, Short-term Investments
31
and the property described on Schedule 6.29 hereto. No Person other than the
Agent has any option, right of first refusal, right of first offer or other
right to acquire all or any portion of the Collateral.
SECTION 6.30 EMBARGOED PERSONS. None of the Borrower, Guarantor or their
respective Subsidiaries, are (and none of the Borrower, Guarantor of their
respective Subsidiaries will be) a Person named on OFAC's Specially Designated
and Blocked Persons list) or under any statute, executive order (including the
September 24, 2001 Executive Order Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism),
or other governmental action and is not and shall not engage in any dealings or
transactions or otherwise be associated with such persons. In addition, Borrower
hereby agrees to provide to the Banks any additional information that a Bank
deems reasonably necessary from time to time in order to ensure compliance with
all applicable laws concerning money laundering and similar activities.
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 or Note is outstanding or any Bank
has any obligation to make any Loans:
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 31500 Northwestern Highway, Suite 300, Farmington Hills,
Michigan 48334, 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 Guarantor, the audited
Consolidated balance sheet of 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 Grant Thornton LLP or by a "Big Five" accounting firm,
the Form 10-K of Guarantor filed with the SEC (unless the SEC has approved an
extension, in which event 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
32
statement of Guarantor'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 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 Guarantor's, respectively,
fiscal year then elapsed, and a statement showing the aging of the receivables
and payables for the Collateral Properties, all in reasonable detail and
prepared in accordance with generally accepted accounting principles (which, as
to Guarantor, may be provided by inclusion in the Form 10-Q of 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 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);
(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
Guarantor in each year, copies of Form 10-Q filed with the SEC (unless the SEC
has approved an extension in which event 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 an operating statement of operating cash flow for such fiscal quarter
for the Borrower and an operating statement of operating cash flow for such
fiscal quarter for the Borrower and each of the Collateral 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 Borrower, that the information contained in such statement fairly
presents the financial position of the Borrower and the Collateral 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
Guarantor and 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 of the Secured Revolving Credit Agreement and the other covenants
described therein, and (if applicable) reconciliations to reflect changes in
generally accepted accounting principles since the Balance Sheet Date;
(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 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 Collateral
Properties and operating statements and tenant sales reports with respect to the
Collateral 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 Collateral Properties and
rolling four (4) quarter operating statements and tenant sales reports with
respect
33
to the Collateral Properties, such statements and reports to be in form
reasonably satisfactory to the Agent;
(i) 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;
(j) [INTENTIONALLY OMITTED];
(k) 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 (or in which the Borrower owns an interest) and stating
the location thereof, the date acquired and the acquisition cost, and (ii)
listing the Indebtedness of the Borrower (excluding Indebtedness of the type
described in Section 8.1(b)-(e) of the Secured Revolving Credit Agreement),
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,
(l) not later than thirty (30) days prior to the end of each fiscal
year of the Borrower a budget and business plan for the Collateral Properties
for the next fiscal year;
(m) 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 balance sheet of the Borrower at the end of such year, and the related
unaudited 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 on the date thereof;
(n) to the extent not covered above, copies of the financial
statements delivered to the lenders under the Secured Revolving Credit
Agreement; and
(o) 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, the Guarantor or their respective
Subsidiaries) 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 or any of their respective
Subsidiaries, 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.
34
(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 Hazardous Substances at or from any Collateral 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 any
Collateral Property or has the potential to materially affect the assets,
liabilities, financial conditions or operations of the Borrower or of its
Subsidiary or Agent's liens on the Collateral pursuant to the Security
Documents.
(c) Notification of Claims. The Borrower will, immediately upon
becoming aware thereof, notify the Agent in writing of any setoff, claims
(including, with respect to any Collateral Property, environmental claims),
withholdings or other defenses to which any of the Collateral or the Collateral
Property, or the rights of the Agent or the Banks with respect to the Collateral
or the Collateral Property, 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, the
Guarantor or any of their respective Subsidiaries 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-Collateral 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 the Collateral Property) 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 Collateral Property) 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 and the Guarantor 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.
(f) New Leases. Following an Event of Default, the Borrower will give
notice to the Agent of any proposed new Lease at any Collateral 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
35
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
notified the Borrower of either the Agent's refusal to consent thereto or the
Agent's need for further information in connection with such proposed new Lease.
(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. 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 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 used or useful
in the conduct of its business 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 Collateral Property or on the financial condition, assets or
operations of the Borrower.
(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. With respect to the properties and businesses of
Borrower, the Borrower will procure and maintain or cause to be procured and
maintained insurance with financially sound and reputable insurers against such
casualties and contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in similar geographic
areas and in amounts, containing such terms, in such forms and for such periods
as may be reasonable and prudent, including, without limitation, "all risks"
property insurance (including broad form flood, broad form earthquake and
comprehensive boiler and machinery coverages) on each Building, if any, and the
contents therein of the Borrower in an amount not less than one hundred percent
(100%) of the full replacement cost of each such Building and the contents
therein, with a replacement cost endorsement and an agreed amount endorsement,
provided, however, that solely with respect to earthquake insurance, such
coverage may be in an amount less than one hundred percent (100%) of the full
replacement cost so long as such amount is commercially reasonable and in
accordance with general practices of businesses engaged in similar activities in
similar geographic areas.
SECTION 7.8 TAXES. The Borrower 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
Collateral 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
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 shall
have set aside on its books
36
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 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 and Guarantor
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, Guarantor or any of their respective Subsidiaries, to examine
the books of account of the Borrower, Guarantor and their respective
Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss
the affairs, finances and accounts of the Borrower, Guarantor and their
respective 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 (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 or
Note is outstanding or the Banks have any obligation to make Loans 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 or the Guarantor may fulfill any of their respective
obligations hereunder, the Borrower and the Guarantor 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
solely for the purposes indicated in Section 2.1.
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 and Guarantor shall each operate its
respective business, and shall cause each of their respective Subsidiaries to
operate its business, in compliance with the terms and conditions of this
Agreement and the other Loan Documents. 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 Collateral Properties (including, without
limitation, the hiring of third party managers), provided that so long as the
Collateral Properties are managed by Ramco-Gershenson, Inc., a change in the
internal management personnel of the Borrower shall not be deemed a material
change in management.
37
SECTION 7.15 [INTENTIONALLY OMITTED.]
SECTION 7.16 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 of this Agreement,
Section 8 and Section 9 of the Secured Revolving Credit Agreement or the
Guaranty, the Borrower shall promptly notify the Agent and, if requested by the
Majority Banks, the Borrower, the Guarantor, 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
7.16 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 7.17 GUARANTOR RESTRICTIONS. The Borrower and Guarantor covenant
and agree that: Guarantor will at all times (a) be the sole general partner of
Borrower, (b) own not less than fifty-one percent (51%) of the partnership
interests in Borrower, and in any event the largest percentage interest of any
partner in Borrower and (c) be responsible for making all major and day-to-day
operational and management decisions to be made by 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 Borrower as a general partner and a
limited partner, cash, Short-term Investments and the property described on
Schedule 6.29 hereto.
SECTION 7.18 CASUALTY. In the event of any loss or damage to any Collateral
Property in an amount in excess of $250,000.00, the Borrower shall give prompt
written notice to the insurance carrier and the Agent. The Borrower shall not
settle, adjust or compromise any claim under such insurance policies without the
prior written consent of the Agent; provided, however, that the Borrower may
make proof of loss, settle, adjust or compromise any claim under such insurance
policies which is of an amount less than $250,000.00 so long as no Default or
Event of Default has occurred and is continuing. Any proceeds of such claim
shall be paid to the Agent and applied to the payment of the Obligations whether
or not then due, less reasonable out-of-pocket expenses incurred in connection
with the settlement, adjustment or compromise of such claim.
SECTION 7.19 CONDEMNATION. In the event that all or any portion of any
Collateral Property shall be damaged or taken through condemnation (which term
shall include any damage or taking by any governmental authority,
quasi-governmental authority, any party having the power of condemnation, or any
transfer by private sale in lieu thereof), or any such condemnation shall be
threatened, which condemnation results in damage or taking or threat of taking
in amount in excess of $250,000.00 the Borrower shall give prompt written notice
to the Agent. The Borrower shall not settle or compromise any claim, action or
proceeding relating to such damage or condemnation without the prior written
consent of the Agent; provided that the Borrower may make proof of loss and
settle or compromise any such claim, action or proceeding which is of an amount
less than $250,000.00 so long as no Default or Event of Default has occurred and
is continuing. Any proceeds, award or damages from such damage or condemnation
shall be paid to the Agent and applied to the payment of the Obligations whether
or not
38
then due less reasonable out-of-pocket expenses incurred in connection with the
settlement or compromise of such claim, action or proceeding.
SECTION 7.20 [INTENTIONALLY OMITTED.]
SECTION 7.21 COMPLIANCE WITH COVENANTS IN SECURED REVOLVING CREDIT
AGREEMENT. The Borrower and Guarantor agree to perform each and every covenant,
whether affirmative or negative, of the Borrower and Guarantor set forth in the
Secured Revolving Credit Agreement and the other "Loan Documents" (as defined
therein) as if the same were more fully set forth herein.
SECTION 7.22 References to Guaranty and Environmental Indemnity Agreements.
The Borrower and Guarantor agree that all references in the Original Loan
Documents to a "Guaranty", "Limited Guaranty" or an "Environmental Indemnity
Agreement" shall be references to the Guaranty and the Indemnity Agreement.
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 or Note is outstanding or any of the Banks has any
obligation to make any Loans:
SECTION 8.1 COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower will not do
any of the following: (a) use any of the Collateral Properties or any portion
thereof as a facility for the handling, processing, storage or disposal of
Hazardous Substances, except for small quantities of Hazardous 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 Collateral
Properties 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 Collateral Properties except in
full compliance with Environmental Laws, (d) conduct any activity at any
Collateral Property or use any Collateral Property in any manner so as to cause
a Release of Hazardous Substances on, upon or into any of the Collateral
Properties 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 any
Collateral Property; and
(ii) if any Release or disposal of Hazardous Substances shall
occur or shall have occurred on any Collateral Property (including
without limitation any such Release or disposal occurring prior to the
acquisition of such Collateral Property by Borrower), cause the prompt
containment and removal of such Hazardous Substances and remediation
of the Collateral 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
39
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 Collateral Property, or that any of the Collateral 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 Collateral 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 Collateral Property and (ii) whether the use and operation of such
Collateral Property comply with all Environmental Laws. Environmental
assessments may include detailed visual inspections of such Collateral Property
including, without 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 Collateral 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 8.2 DISTRIBUTIONS. At any time when an Event of Default shall occur
and the maturity of the Obligations has been accelerated, neither the Borrower
nor Guarantor shall make any Distributions whatsoever, directly or indirectly.
SECTION 8.3 [INTENTIONALLY OMITTED.]
SECTION 8.4 [INTENTIONALLY OMITTED.]
SECTION 8.5 ADDITIONAL RESTRICTIONS CONCERNING THE COLLATERAL PROPERTIES.
Subject to the terms of Sections 3.2 and 5.2 of this Agreement and except for
Permitted Liens of the type described in clauses (ii), (vii) or (viii) of the
definition thereof, the Borrower will not, without the prior written consent of
the Banks in each instance, directly or indirectly: (i) sell, convey, assign,
transfer, contribute, option, mortgage, pledge, encumber, charge, hypothecate or
dispose of any Collateral Property or any part thereof or interest therein; or
any income or profits therefrom, or any other accounts, contract rights, general
intangibles, instruments, chattel paper or other assets or claims, whether now
owned or hereafter acquired; or (ii) create or suffer to be created or to exist
any lien, encumbrance, security interest, mortgage, pledge, restriction,
attachment or other charge of any kind upon, or any levy, seizure, attachment or
foreclosure of, any Collateral Property or any part thereof or interest therein,
or any income or profit therefrom, or any other accounts, contract rights,
general intangibles, instruments, chattel paper or other assets or claims,
whether now owned or hereafter acquired.
SECTION 9. [INTENTIONALLY OMITTED.]
SECTION 10. CLOSING CONDITIONS.
The obligation of the Agent and the Banks to make the Loans to the Borrower
is subject to the satisfaction of the following conditions precedent:
40
SECTION 10.1 LOAN DOCUMENTS. The Borrower, the Guarantor and their
respective Subsidiaries shall have duly executed and delivered to the Agent,
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.
SECTION 10.2 CERTIFIED COPIES OF ORGANIZATIONAL DOCUMENTS. The Agent shall
have received from the Borrower a copy, certified as of a recent date by the
appropriate officer of each State in which the Borrower, the Guarantor or any of
their respective Subsidiaries, as applicable, is organized or in which the
Collateral Properties are located and a duly authorized partner, member or
officer of such Person, as applicable, to be true and complete, of the
partnership agreement, corporate charter, declaration of trust or other
organization documents of the Borrower, the Guarantor, or any of their
respective subsidiaries, as applicable, or its qualification to do business, as
applicable, as in effect on such date of certification.
SECTION 10.3 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 Guarantor and Borrower 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 10.4 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 Guarantor (with respect to Borrower and
Guarantor), 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 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 10.5 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 any of their respective Subsidiaries,
as to such matters as the Agent shall reasonably request.
SECTION 10.6 [INTENTIONALLY OMITTED.]
SECTION 10.7 PERFORMANCE; NO DEFAULT. The Borrower and 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 10.8 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, 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 10.9 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
41
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 10.10 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 10.11 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 10.12 ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS. The Eligible
Real Estate Qualification Documents for each Collateral Property as of the
Closing Date shall have been delivered to Agent at Borrower's expense and shall
be in form and substance satisfactory to Agent.
SECTION 10.13 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 of their
respective Subsidiaries is a party affecting or relating to the use, operation,
development, construction or management of any Collateral Property.
SECTION 10.14 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 Collateral Property or, if
any such proceedings are pending or threatened, identifying the same and the
Collateral Property affected thereby and the Agent shall have determined that
none of such proceedings is or will be material to the Collateral Property
affected thereby.
SECTION 10.15 ASSIGNMENT OF ORIGINAL LOAN DOCUMENTS. The Agent shall have
received an assignment of the Original Loan Documents relating to the Collateral
Properties from the holder thereof pursuant to the Assignment of Loan Documents,
such assignment to be in form and substance reasonably satisfactory to the
Agent.
SECTION 10.16 MODIFICATION OF ORIGINAL LOAN DOCUMENTS. Borrower and
Guarantor shall have executed and delivered to Agent such amendments to the
Original Loan Documents as Agent may require.
SECTION 10.17 LOAN TO VALUE RATIO. The Agent shall have received evidence
satisfactory to Agent that following the initial advance of the Loan, the
outstanding principal balance of the Loan shall not exceed fifty percent (50%)
of the aggregate Collateral Value.
SECTION 10.18 DEBT SERVICE COVERAGE. The Agent shall have received evidence
satisfactory to Agent that following the closing of the Loan, the ratio of
Collateral Operating Cash Flow from the Collateral Properties as of the Closing
Date to Pro Forma Debt Service shall be greater than or equal to 1.4:1.
SECTION 10.19 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.
42
SECTION 11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, 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.
SECTION 11.2 REPRESENTATIONS TRUE; NO DEFAULT. Each of the representations
and warranties made by or on behalf of the Borrower, 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, 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 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.
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 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,
the Agent shall have received the request for a Loan required by Section 2.5 in
the form of Exhibit B hereto, fully completed.
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, 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;
43
(c) the Borrower and Guarantor shall fail to comply with any covenant
contained in Section 9 of the Secured Revolving Credit Agreement, and such
failure shall continue for thirty (30) days after written notice thereof shall
have been given to the Borrower by Agent.
(d) the Borrower or Guarantor or any of their respective 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, 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, and such Default shall
continue for thirty (30) days after written notice thereof shall have been given
to the Borrower by Agent;
(f) the Borrower, 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, however, 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;
(g) the Borrower, 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,
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, Guarantor or any of
their respective Subsidiaries bankrupt
44
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, 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,
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 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;
(m) any suit or proceeding shall be filed against the Borrower,
Guarantor or any of their respective Subsidiaries or any of their respective
assets 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, 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 or any of its Subsidiaries shall be indicted for a
federal crime, a punishment for which could include the forfeiture of any assets
of such Person, including any Collateral 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, 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) any "Event of Default" (as defined in the Secured Revolving Credit
Agreement) shall occur;
45
(r) either of the President or Chief Executive Officer of Guarantor
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 Guarantor 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; or
(s) any Event of Default, as defined in any of the other Loan
Documents, 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 declare all amounts owing with
respect to this Agreement, the Notes, 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.
SECTION 12.2 LIMITATION OF CURE PERIODS. Notwithstanding the provisions of
subsections (b) 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 [INTENTIONALLY OMITTED.]
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. 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. 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 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
46
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 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 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; and
(c) Third, 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 Guarantor and any securities or other property of the Borrower or 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 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
47
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 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.
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, 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, Guarantor, any of
their respective Subsidiaries 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, Guarantor or any of their respective
Subsidiaries or the value of the Collateral, the Collateral Properties or any of
the assets of the Borrower, 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. Each Bank has been independently represented by
separate counsel on all matters regarding the Loan Documents and the granting
and perfecting of liens in the Collateral.
48
SECTION 14.5 PAYMENTS.
(a) A payment by the Borrower or 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 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 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
49
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, KeyBank 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 [INTENTIONALLY OMITTED.]
SECTION 14.12 REQUEST FOR AGENT ACTION. Agent and the Banks acknowledge
that in the ordinary course of business of the Borrower, (a) the Collateral
Properties may be subject to a condemnation or other taking and (b) the Borrower
may desire to enter into easements or other agreements affecting the Collateral
Properties, 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, (x) consent to releases of portions of the
Collateral Property in connection with any condemnation or other taking, (y)
execute consents in form and substance satisfactory to Agent in connection with
any easements, agreements, plats, dedications or similar matters affecting any
Collateral
50
Property, 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 business.
SECTION 14.13 BANKRUPTCY. In the event a bankruptcy or other insolvency
proceeding is commenced by or against Borrower or Guarantor, the Agent shall
have the sole and exclusive right to file and pursue a joint proof claim on
behalf of all Banks. Each Bank irrevocably waives its right to file or pursue a
separate proof of claim in any such proceedings.
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 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 any Collateral Property or the 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 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, all fees paid to the Construction Inspector, survey fees,
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
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 Guarantor, (f) all reasonable fees, expenses
and disbursements of the Agent incurred in connection with UCC searches, UCC
filings, title rundowns or title searches, (g) all reasonable fees, expenses and
disbursements (including reasonable attorneys' fees and costs), which may be
incurred by KeyBank and the Agent in connection with the execution and delivery
of this Agreement and the other Loan Documents, (h) all fees and expenses
payable by Agent or Lenders to the holder of the Original Loan Documents in
connection with the delivery of the same to Agent, and (i) 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 KeyBank 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.
51
SECTION 16. INDEMNIFICATION.
The Borrower and 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 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, Guarantor or any of their respective
Subsidiaries, (b) any condition of any of the Collateral Properties, (c) any
actual or proposed use by the Borrower or 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, Guarantor or
any of their respective Subsidiaries comprised in the Collateral or any of the
Collateral Properties, (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 Collateral Properties, or (g) with
respect to the Borrower, 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
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, 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 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, 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.
52
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, the Borrower or Guarantor or any of their respective Subsidiaries,
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, Guarantor
or any of their respective Subsidiaries.
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.
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, if requested by Agent,
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
53
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 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 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 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 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 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-
54
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:
If to the Agent or KeyBank:
KeyBank National Association
1200 Abernathy Road, Suite 1550
Atlanta, Georgia 30328
Attn: Dan Silbert
Telecopy No.: (770) 510-2195
With a copy to:
KeyBank National Association
1200 Abernathy Road, Suite 1550
Atlanta, Georgia 30328
Attn: Tayven Hike
Telecopy No.: (770) 510-2195
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
55
If to the Borrower or Guarantor:
Ramco-Gershenson Properties, L.P.
Ramco-Gershenson Properties Trust
Suite 300
31500 Northwestern Highway
Farmington Hills, Michigan 48334
Attn: Chief Financial 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, or it transmitted by facsimile, upon being sent and confirmation of
receipt. The time period in which a response to such Notice must be 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
facsimile (or if sent by facsimile, next Business Day if received after 5:00
p.m. (Cleveland time) or on a day that is not a business Day), 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, 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
56
GUARANTOR 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 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 GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN SECTION
19. THE BORROWER AND EACH GUARANTOR 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.
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.
57
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, 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 observance by the Borrower or 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, 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; 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,
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 of any requirement for consent by all of
the Banks; or an amendment of this Section 27. The provisions of Section 14 may
not be amended without the written consent of the Agent. The Borrower and
Guarantor each agrees to enter into such modifications or amendments of this
Agreement or the other Loan Documents as may be reasonably requested by KeyBank
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 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 Guarantor shall entitle the Borrower and 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 and 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 PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
58
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. RIGHTS OF THIRD PARTIES.
This Agreement and the other Loan Documents are made and entered into for
the sole protection and legal benefit of the Borrower, the Guarantor, the Banks
and the Agent, and their permitted successors and assigns, and no other Person
shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents. All conditions to the performance of the obligations
of the Agent and the Banks under this Agreement, including the obligation to
make Loans, are imposed solely and exclusively for the benefit of the Agent and
the Banks and no other Person shall have standing to require satisfaction of
such conditions in accordance with their terms or be entitled to assume that the
Agent and the Banks will refuse to make Loans in the absence of strict
compliance with any or all thereof and no other Person shall, under any
circumstances, be deemed to be a beneficiary of such conditions, any and all of
which may be freely waived in whole or in part by the Agent and the Banks at any
time if in their sole discretion they deem it desirable to do so. In particular,
the Agent and the Banks make no representations and assume no obligations as to
third parties concerning the quality of the construction by Borrower, Guarantor
or any of their respective Subsidiaries, as applicable, of any development or
the absence therefrom of defects.
SECTION 33. PATRIOT ACT.
Each Bank and the Agent (for itself and not on behalf of any Bank) hereby
notifies the Borrower and Guarantor that, pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies Borrower, the Guarantor and their respective Subsidiaries, which
information includes names and addresses and other information that will allow
such Bank or the Agent, as applicable, to identify Borrower, the Guarantor and
their respective Subsidiaries in accordance with the Patriot Act.
SECTION 34. TRUST EXCULPATION.
Subject to the terms of this paragraph, all persons having a claim against
Guarantor, the general partner of 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) Guarantor's interest and rights in
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 7.17, (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
59
Assets"), and in no event shall the obligation of Guarantor be enforceable
against any shareholder, trustee, officer, employee or agent of Guarantor
personally. The Agent and the Banks have agreed to the terms of this Section 34
(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 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 34
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.
[SIGNATURE PAGES FOLLOW]
60
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
BORROWER:
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust, a
Maryland real estate investment
trust, its General Partner
By: /s/ Richard J. Smith
------------------------------------
Name Richard J. Smith
Title: Chief Financial Officer
61
GUARANTOR:
RAMCO-GERSHENSON PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Richard J. Smith
------------------------------------
Name: Richard J. Smith
Title: Chief Financial Officer
62
BANKS
KEYBANK NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Daniel Silbert
------------------------------------
Name: Daniel Silbert
Title: Vice President
KeyBank National Association
1200 Abernathy Road, Suite 1550
Atlanta, Georgia 30328
Attn: Dan Silbert
Telecopy No.: (770) 510-2195
With a copy to:
KeyBank National Association
1200 Abernathy Road, Suite 1550
Atlanta, Georgia 30328
Attn: Tayven Hike
Telecopy No.: (770) 510-2195
63
EXHIBIT A
FORM OF AMENDED AND RESTATED NOTE
$99,316,830.78 September 9, 2005,
2005
FOR VALUE RECEIVED, the undersigned RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership, hereby promises to pay to ________________________
or order, in accordance with the terms of that certain Bridge Loan Agreement
dated as of September ___, 2005 (the "Loan Agreement"), as from time to time in
effect, among the undersigned, Ramco-Gershenson Properties Trust, KeyBank
National Association, for itself and as Agent, and such other Banks as may be
from time to time named therein, to the extent not sooner paid, on or before the
Maturity Date, the principal sum of ___________________________________ Dollars
($______________), or such amount as may be advanced by the payee hereof under
the Loan Agreement with daily interest from the date hereof, computed as
provided in the Loan 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 Loan 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 Loan Agreement. Interest shall be
payable on the dates specified in the Loan 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 Loan Agreement.
Payments hereunder shall be made to KeyBank National Association, as Agent
for the payee hereof, at 127 Public Square, Cleveland, Ohio 44114-1306 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 Loan 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 Loan Agreement, and may be
prepaid in whole or from time to time in part, all as set forth in the Loan
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
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.
A-1
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 Loan Agreement. In addition to and not in limitation of
the foregoing and the provisions of the Loan 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 Loan Agreement, and assent to extensions
of time of payment or forbearance or other indulgence without notice.
This Note is issued in amendment and restatement of the Original Notes, as
assigned to Agent pursuant to the Assignment of Loan Documents.
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: /s/ Richard J. Smith
------------------------------------
Name: Richard J. Smith
Title: Chief Financial Officer
A-2
EXHIBIT B
FORM OF REQUEST FOR LOAN
KeyBank National Association,
for itself and as Agent
1200 Abernathy Road, Suite 1550
Atlanta, Georgia 30328
Attn: Dan Silbert
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.5 of the Bridge Loan Agreement
dated as of September ___, 2005, as from time to time in effect (the "Loan
Agreement"), among Ramco-Gershenson Properties, L.P. ("Borrower"),
Ramco-Gershenson Properties Trust ("Guarantor"), KeyBank National Association,
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 Loan 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 2.1 of the Loan Agreement:
[DESCRIBE]
3. No Default. The undersigned chief financial or chief accounting officer
of the Guarantor and the undersigned chief financial or chief accounting officer
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
Collateral 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 Loan Agreement, in the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with the Loan 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 Loan 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
B-1
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 Loan Agreement have been
satisfied.
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 Loan Agreement are used herein with
the meanings so defined.
IN WITNESS WHEREOF, we have hereunto set our hands this _____ day of
_____________, 2005.
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
its General Partner
By: /s/ Richard J. Smith
------------------------------------
Title: Chief Financial Officer
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Richard J. Smith
------------------------------------
Title: Chief Financial Officer
B-2
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
KeyBank National Association,
for itself and as Agent
1200 Abernathy Road, Suite 1550
Atlanta, Georgia 30328
Attn: Dan Silbert
Ladies and Gentlemen:
Reference is made to the Bridge Loan Agreement dated as of September ___,
2005 (the "Loan Agreement") by and among Ramco-Gershenson Properties, L.P.
("Borrower"), Ramco-Gershenson Properties Trust ("Guarantor"), KeyBank National
Association, for itself and as Agent, and the other Banks from time to time
party thereto. Terms defined in the Loan Agreement and not otherwise defined
herein are used herein as defined in the Loan Agreement.
Pursuant to the Loan Agreement, the Borrower and the Guarantor are
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) OR SECTION 10.10 OF THE LOAN 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
Guarantor and of the general partner of 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, THE
NATURE THEREOF AND THE ACTIONS TAKEN, BEING TAKEN OR PROPOSED TO BE TAKEN BY THE
BORROWER AND THE GUARANTOR WITH RESPECT THERETO.]
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.
C-1
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: /s/ Richard J. Smith
------------------------------------
Title: Chief Financial Officer
RAMCO-GERSHENSON PROPERTIES TRUST,
By: /s/ Richard J. Smith
------------------------------------
Title: Chief Financial Officer
C-2
[APPENDIX A
TO
COMPLIANCE CERTIFICATE]
[APPENDIX A SHALL DEMONSTRATE COMPLIANCE WITH THE COVENANTS SET FORTH IN ARTICLE
9 OF THE SECURED REVOLVING CREDIT AGREEMENT]
C-3
EXHIBIT D
ORIGINAL NOTES
D-1
SCHEDULE 1
BANKS AND COMMITMENTS
Commitment
Commitment Percentage
-------------- ----------
KeyBank National Association, $99,316,830.78 100%
for itself and as Agent
127 Public Square
Cleveland, Ohio 44114-1306
Atlanta, Georgia 30346
Attn: Real Estate Capital Services
LIBOR Lending Office
Same as above
Eurodollar Lending Office:
Same as above
-------------- ----------
$99,316,830.78 100%
SCHEDULE 1-1
SCHEDULE 6.7
LITIGATION
1. Matters covered by insurance policies, except for applicable deductibles.
2. Landlord/Tenant claims made in the normal course of business.
3. Matters disclosed in the Form 10-K filed with the SEC, including the IRS
tax matter.
SCHEDULE 6.7-1
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, June 6, 2002, June 12, 2003, June 10,
2004 and June 7, 2005 between Trust and the Board of Trustees
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
SCHEDULE 6.15-1
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.
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:
SCHEDULE 6.15-2
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.
2003 Long-Term Incentive Plan of Ramco-Gershenson Properties Trust
2003 Non-Employee Trustee Stock Option Plan of Ramco-Gershenson Properties Trust
Non-Qualified Stock Option Agreements dated March 3, 2004 between Trust and each
of the following: Dennis Gershenson, Richard Gershenson and Richard Smith
Non-Qualified Stock Option Agreements dated April 1, 2005 between Trust and each
of the following: Dennis Gershenson and Richard Smith
Employment Termination Agreement dated June 1, 2005, between the Trust and
Richard Gershenson
SCHEDULE 6.15-3
SCHEDULE 6.18
ENVIRONMENTAL MATTERS
NONE
SCHEDULE 6.18-1
SCHEDULE 6.19
SUBSIDIARIES AND JOINT VENTURES OF THE BORROWER AND GUARANTOR
SCHEDULE 6.19-1
SCHEDULE 6.22
SERVICE AND MANAGEMENT AGREEMENTS
NONE
SCHEDULE 6.22-1
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))
SCHEDULE 6.29-1
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION....................... 1
Section 1.1 Definitions............................................. 1
Section 1.2 Rules of Interpretation................................. 13
SECTION 2. AGREEMENT TO MAKE ADVANCES; LIMITATIONS....................... 13
Section 2.1 Agreement to Make Advances.............................. 13
Section 2.2 [Intentionally omitted.]................................ 14
Section 2.3 Notes................................................... 14
Section 2.4 Interest on Loans....................................... 14
Section 2.5 Requests for Loans...................................... 14
Section 2.6 Funds for Loans......................................... 15
Section 2.7 Advances Do Not Constitute a Waiver..................... 16
Section 2.8 Reduction of Commitments................................ 16
SECTION 3. REPAYMENT OF THE LOANS........................................ 16
Section 3.1 Stated Maturity......................................... 16
Section 3.2 Mandatory Prepayments................................... 16
Section 3.3 Optional Prepayments.................................... 17
Section 3.4 Partial Prepayments..................................... 17
Section 3.5 Effect of Prepayments................................... 17
SECTION 4. CERTAIN GENERAL PROVISIONS.................................... 17
Section 4.1 Conversion Options...................................... 17
Section 4.2 Break-Up Fee............................................ 18
Section 4.3 [Intentionally Omitted.]................................ 18
Section 4.4 Funds for Payments...................................... 18
Section 4.5 Computations............................................ 18
Section 4.6 Inability to Determine LIBOR Rate....................... 18
Section 4.7 Illegality.............................................. 19
Section 4.8 Additional Interest..................................... 19
Section 4.9 Additional Costs, Etc................................... 19
Section 4.10 Capital Adequacy........................................ 20
Section 4.11 Indemnity of Borrower................................... 21
Section 4.12 Interest on Overdue Amounts; Late Charge................ 21
Section 4.13 HLT Classification...................................... 21
Section 4.14 Certificate............................................. 21
Section 4.15 Limitation on Interest.................................. 21
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TABLE OF CONTENTS
(continued)
PAGE
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SECTION 5. COLLATERAL SECURITY........................................... 22
Section 5.1 Collateral.............................................. 22
Section 5.2 Release of Collateral................................... 22
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE
BORROWER...................................................... 23
Section 6.1 Corporate Authority, Etc................................ 23
Section 6.2 Governmental Approvals.................................. 24
Section 6.3 Title to Properties; Lease.............................. 24
Section 6.4 Financial Statements.................................... 24
Section 6.5 No Material Changes..................................... 24
Section 6.6 Franchises, Patents, Copyrights, Etc.................... 24
Section 6.7 Litigation.............................................. 25
Section 6.8 No Materially Adverse Contracts, Etc.................... 25
Section 6.9 Compliance with Other Instruments, Laws, Etc............ 25
Section 6.10 Tax Status.............................................. 25
Section 6.11 No Event of Default..................................... 25
Section 6.12 Holding Company and Investment Company Acts............. 25
Section 6.13 Absence of UCC Financing Statements, Etc................ 25
Section 6.14 Setoff, Etc............................................. 26
Section 6.15 Certain Transactions.................................... 26
Section 6.16 Employee Benefit Plans.................................. 26
Section 6.17 Regulations T, U and X.................................. 26
Section 6.18 Environmental Compliance................................ 26
Section 6.19 Subsidiaries and Joint Ventures......................... 28
Section 6.20 [Intentionally Omitted.]................................ 28
Section 6.21 Loan Documents.......................................... 28
Section 6.22 Collateral Property..................................... 28
Section 6.23 Brokers................................................. 31
Section 6.24 Other Debt.............................................. 31
Section 6.25 Solvency................................................ 31
Section 6.26 [Intentionally Omitted.]................................ 31
Section 6.27 No Fraudulent Intent.................................... 31
Section 6.28 Transaction in Best Interests of Borrower;
Consideration........................................... 31
Section 6.29 Ownership............................................... 31
Section 6.30 Embargoed Persons....................................... 32
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TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 7. AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER....... 32
Section 7.1 Punctual Payment........................................ 32
Section 7.2 Maintenance of Office................................... 32
Section 7.3 Records and Accounts.................................... 32
Section 7.4 Financial Statements, Certificates and Information...... 32
Section 7.5 Notices................................................. 34
Section 7.6 Existence; Maintenance of Properties.................... 36
Section 7.7 Insurance............................................... 36
Section 7.8 Taxes................................................... 36
Section 7.9 Inspection of Properties and Books...................... 37
Section 7.10 Compliance with Laws, Contracts, Licenses, and Permits.. 37
Section 7.11 Use of Proceeds......................................... 37
Section 7.12 Further Assurances...................................... 37
Section 7.13 Compliance.............................................. 37
Section 7.14 Management.............................................. 37
Section 7.15 [Intentionally Omitted.]................................ 38
Section 7.16 More Restrictive Agreements............................. 38
Section 7.17 Guarantor Restrictions.................................. 38
Section 7.18 Casualty................................................ 38
Section 7.19 Condemnation............................................ 38
Section 7.20 [Intentionally Omitted.]................................ 39
Section 7.21 Compliance with Covenants in Secured Revolving Credit
Agreement............................................... 39
Section 7.22 References to Guaranty and Environmental Indemnity
Agreements.............................................. 39
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER.. 39
Section 8.1 Compliance with Environmental Laws...................... 39
Section 8.2 Distributions........................................... 40
Section 8.3 [Intentionally Omitted.]................................ 40
Section 8.4 [Intentionally Omitted.]................................ 40
Section 8.5 Additional Restrictions Concerning the Collateral
Properties.............................................. 40
SECTION 9. [INTENTIONALLY OMITTED.]...................................... 40
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TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 10. CLOSING CONDITIONS........................................... 40
Section 10.1 Loan Documents.......................................... 41
Section 10.2 Certified Copies of Organizational Documents............ 41
Section 10.3 Resolutions............................................. 41
Section 10.4 Incumbency Certificate; Authorized Signers.............. 41
Section 10.5 Opinion of Counsel...................................... 41
Section 10.6 [Intentionally omitted.]................................ 41
Section 10.7 Performance; No Default................................. 41
Section 10.8 Representations and Warranties.......................... 41
Section 10.9 Proceedings and Documents............................... 41
Section 10.10 Compliance Certificate ................................. 42
Section 10.11 Stockholder and Partner Consents........................ 42
Section 10.12 Eligible Real Estate Qualification Documents............ 42
Section 10.13 Other Documents......................................... 42
Section 10.14 No Condemnation/Taking ................................. 42
Section 10.15 Assignment of Original Loan Documents................... 42
Section 10.16 Modification of Original Loan Documents................. 42
Section 10.17 Loan to Value Ratio .................................... 42
Section 10.18 Debt Service Coverage................................... 42
Section 10.19 Other .................................................. 42
SECTION 11. CONDITIONS TO ALL BORROWINGS................................. 43
Section 11.1 Prior Conditions Satisfied.............................. 43
Section 11.2 Representations True; No Default........................ 43
Section 11.3 No Legal Impediment..................................... 43
Section 11.4 Governmental Regulation................................. 43
Section 11.5 Proceedings and Documents............................... 43
Section 11.6 Borrowing Documents..................................... 43
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; ETC......................... 43
Section 12.1 Events of Default and Acceleration...................... 43
Section 12.2 Limitation of Cure Periods.............................. 46
Section 12.3 [Intentionally Omitted.]................................ 46
Section 12.4 Termination of Commitments.............................. 46
Section 12.5 Remedies................................................ 46
Section 12.6 Distribution of Collateral Proceeds..................... 46
-iv-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 13. SETOFF....................................................... 47
SECTION 14. THE AGENT.................................................... 47
Section 14.1 Authorization........................................... 47
Section 14.2 Employees and Agents.................................... 48
Section 14.3 No Liability............................................ 48
Section 14.4 No Representations...................................... 48
Section 14.5 Payments................................................ 48
Section 14.6 Holders of Notes........................................ 49
Section 14.7 Indemnity............................................... 49
Section 14.8 Agent as Bank........................................... 50
Section 14.9 Resignation............................................. 50
Section 14.10 Duties in the Case of Enforcement....................... 50
Section 14.11 [Intentionally Omitted.]................................ 50
Section 14.12 Request for Agent Action................................ 50
Section 14.13 Bankruptcy.............................................. 51
SECTION 15. EXPENSES..................................................... 51
SECTION 16. INDEMNIFICATION.............................................. 52
SECTION 17. SURVIVAL OF COVENANTS, ETC................................... 52
SECTION 18. ASSIGNMENT AND PARTICIPATION................................. 53
Section 18.1 Conditions to Assignment by Banks....................... 53
Section 18.2 Register................................................ 53
Section 18.3 New Notes............................................... 53
Section 18.4 Participations.......................................... 54
Section 18.5 Pledge by Bank.......................................... 54
Section 18.6 No Assignment by Borrower or Guarantor.................. 54
Section 18.7 Disclosure.............................................. 54
Section 18.8 Amendments to Loan Documents............................ 54
Section 18.9 Mandatory Assignment.................................... 54
SECTION 19. NOTICES...................................................... 55
SECTION 20. RELATIONSHIP................................................. 56
SECTION 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE........... 56
SECTION 22. HEADINGS..................................................... 57
SECTION 23. COUNTERPARTS................................................. 57
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TABLE OF CONTENTS
(continued)
PAGE
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SECTION 24. ENTIRE AGREEMENT, ETC........................................ 57
SECTION 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS............... 57
SECTION 26. DEALINGS WITH THE BORROWER OR THE GUARANTOR.................. 58
SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC........................... 58
SECTION 28. SEVERABILITY................................................. 58
SECTION 29. TIME OF THE ESSENCE.......................................... 58
SECTION 30. NO UNWRITTEN AGREEMENTS...................................... 58
SECTION 31. REPLACEMENT OF NOTES......................................... 59
SECTION 32. RIGHTS OF THIRD PARTIES...................................... 59
SECTION 33. PATRIOT ACT.................................................. 59
SECTION 34. TRUST EXCULPATION............................................ 59
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EXHIBITS AND SCHEDULES
EXHIBIT A - FORM OF NOTE
EXHIBIT B - FORM OF REQUEST FOR LOAN
EXHIBIT C - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT D - ORIGINAL NOTES
SCHEDULE 1 - BANKS AND COMMITMENTS
SCHEDULE 6.7 - LITIGATION
SCHEDULE 6.15 - AFFILIATE TRANSACTIONS
SCHEDULE 6.18 - ENVIRONMENTAL MATTERS
SCHEDULE 6.19 - SUBSIDIARIES AND JOINT VENTURES OF THE BORROWER AND GUARANTOR
SCHEDULE 6.22 - AGREEMENTS
SCHEDULE 6.29 - PROPERTY OF GUARANTOR
-viii-