Exhibit 10.1
UNSECURED MASTER LOAN AGREEMENT
DATED AS OF DECEMBER 13, 2005
among
RAMCO-GERSHENSON PROPERTIES, L.P.,
as Borrower,
RAMCO-GERSHENSON PROPERTIES TRUST,
as a Guarantor,
KEYBANK NATIONAL ASSOCIATION,
as a Bank,
THE OTHER BANKS WHICH ARE A PARTY TO THIS AGREEMENT,
THE OTHER BANKS WHICH MAY BECOME PARTIES TO THIS AGREEMENT,
KEYBANK NATIONAL ASSOCIATION,
as Agent,
KEYBANC CAPITAL MARKETS,
as Sole Lead Manager and Arranger,
JPMORGAN CHASE BANK, N.A.
and
BANK OF AMERICA, N.A.
as Co-Syndication Agents,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Documentation Agent
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION....................... 1
Section 1.1. Definitions............................................ 1
Section 1.2. Rules of Interpretation................................ 19
SECTION 2. THE CREDIT FACILITY........................................... 20
Section 2.1. Commitment to Lend Revolving Credit Loans.............. 20
Section 2.2. Commitment to Lend Term Loan........................... 21
Section 2.3. Unused Facility Fee.................................... 21
Section 2.4. Interest on Loans...................................... 21
Section 2.5. Requests for Revolving Credit Loans.................... 22
Section 2.6. Funds for Loans........................................ 23
Section 2.7. Optional Reduction of Revolving Credit Commitments..... 24
Section 2.8. Increase of Revolving Credit Commitment................ 24
Section 2.9. Letters of Credit...................................... 26
Section 2.10. Swing Line Loans....................................... 30
Section 2.11. Evidence of Debt....................................... 34
SECTION 3. REPAYMENT OF THE LOANS........................................ 35
Section 3.1. Stated Maturity........................................ 35
Section 3.2. Mandatory Prepayments.................................. 35
Section 3.3. Optional Prepayments................................... 35
Section 3.4. Partial Prepayments.................................... 35
Section 3.5. Effect of Prepayments.................................. 35
SECTION 4. CERTAIN GENERAL PROVISIONS.................................... 35
Section 4.1. Conversion Options..................................... 35
Section 4.2. Commitment and Syndication Fee......................... 36
Section 4.3. Agent's Fee............................................ 36
Section 4.4. Funds for Payments..................................... 36
Section 4.5. Computations........................................... 37
Section 4.6. Suspension of LIBOR Rate Loans......................... 38
Section 4.7. Illegality............................................. 38
Section 4.8. Additional Interest.................................... 38
Section 4.9. Additional Costs, Etc.................................. 38
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 4.10. Capital Adequacy....................................... 39
Section 4.11. Indemnity of Borrower.................................. 40
Section 4.12. Interest on Overdue Amounts; Late Charge............... 40
Section 4.13. Certificate............................................ 40
Section 4.14. Limitation on Interest................................. 40
Section 4.15. Extension of Revolving Credit Maturity Date............ 41
SECTION 5. UNSECURED OBLIGATION; GUARANTY................................ 42
Section 5.1. Collateral............................................. 42
Section 5.2. New Guarantors......................................... 42
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE BORROWER.. 43
Section 6.1. Corporate Authority, Etc............................... 43
Section 6.2. Governmental Approvals................................. 44
Section 6.3. Title to Properties; Lease............................. 44
Section 6.4. Financial Statements................................... 44
Section 6.5. No Material Changes.................................... 45
Section 6.6. Franchises, Patents, Copyrights, Etc................... 45
Section 6.7. Litigation............................................. 45
Section 6.8. No Materially Adverse Contracts, Etc................... 45
Section 6.9. Compliance with Other Instruments, Laws, Etc........... 46
Section 6.10. Tax Status............................................. 46
Section 6.11. No Event of Default.................................... 46
Section 6.12. Holding Company and Investment Company Acts............ 46
Section 6.13. Absence of UCC Financing Statements, Etc............... 46
Section 6.14. [Intentionally Omitted]................................ 46
Section 6.15. Certain Transactions................................... 46
Section 6.16. Employee Benefit Plans................................. 47
Section 6.17. Regulations T, U and X................................. 47
Section 6.18. Environmental Compliance............................... 47
Section 6.19. Subsidiaries and Unconsolidated Affiliates............. 49
Section 6.20. [Intentionally Omitted]................................ 49
-ii-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 6.21. Loan Documents......................................... 49
Section 6.22. Property............................................... 49
Section 6.23. Brokers................................................ 49
Section 6.24. Other Debt............................................. 49
Section 6.25. Solvency............................................... 50
Section 6.26. Contribution Agreement................................. 50
Section 6.27. No Fraudulent Intent................................... 50
Section 6.28. Transaction in Best Interests of Borrower;
Consideration....................................... 50
Section 6.29. Partners and the Trust................................. 50
Section 6.30. Tax Indemnity Agreement................................ 51
Section 6.31. Embargoed Persons...................................... 51
Section 6.32. Unencumbered Borrowing Base Properties................. 51
SECTION 7. AFFIRMATIVE COVENANTS OF THE TRUST AND THE BORROWER........... 51
Section 7.1. Punctual Payment....................................... 51
Section 7.2. Maintenance of Office.................................. 51
Section 7.3. Records and Accounts................................... 51
Section 7.4. Financial Statements, Certificates and Information..... 52
Section 7.5. Notices................................................ 54
Section 7.6. Existence; Maintenance of Properties................... 55
Section 7.7. Insurance.............................................. 56
Section 7.8. Taxes.................................................. 56
Section 7.9. Inspection of Properties and Books..................... 56
Section 7.10. Compliance with Laws, Contracts, Licenses, and
Permits............................................. 57
Section 7.11. Use of Proceeds........................................ 57
Section 7.12. Further Assurances..................................... 57
Section 7.13. Compliance............................................. 57
Section 7.14. Limiting Agreements.................................... 57
Section 7.15. Ownership of Real Estate............................... 58
Section 7.16. More Restrictive Agreements............................ 58
Section 7.17. Trust Restrictions..................................... 58
Section 7.18. Interest Rate Contract(s).............................. 59
-iii-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 7.19. Unencumbered Borrowing Base Properties.................. 59
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE TRUST AND THE BORROWER...... 63
Section 8.1. Restrictions on Indebtedness........................... 63
Section 8.2. Restrictions on Liens Etc.............................. 64
Section 8.3. Restrictions on Investments............................ 65
Section 8.4. Merger, Consolidation.................................. 67
Section 8.5. Conduct of Business.................................... 67
Section 8.6. Compliance with Environmental Laws..................... 67
Section 8.7. Distributions.......................................... 68
Section 8.8. Asset Sales............................................ 69
Section 8.9. Development Activity................................... 69
Section 8.10. Trust Preferred Equity................................. 70
SECTION 9. FINANCIAL COVENANTS OF THE TRUST AND THE BORROWER............. 71
Section 9.1. Liabilities to Assets Ratio............................ 71
Section 9.2. Fixed Charges Coverage................................. 71
Section 9.3. Consolidated Tangible Net Worth........................ 71
Section 9.4. Secured Indebtedness................................... 71
Section 9.5. Unencumbered Property Borrowing Base Tests............. 71
SECTION 10. CLOSING CONDITIONS........................................... 72
Section 10.1. Loan Documents......................................... 72
Section 10.2. Certified Copies of Organizational Documents........... 72
Section 10.3. Resolutions............................................ 72
Section 10.4. Incumbency Certificate; Authorized Signers............. 73
Section 10.5. Opinion of Counsel..................................... 73
Section 10.6. Payment of Fees........................................ 73
Section 10.7. Performance; No Default................................ 73
Section 10.8. Representations and Warranties......................... 73
Section 10.9. Proceedings and Documents.............................. 73
Section 10.10. Stockholder and Partner Consents....................... 73
Section 10.11. Compliance Certificate................................. 74
-iv-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 10.12. Satisfaction of Existing Credit Agreements............. 74
Section 10.13. Contribution Agreement................................. 74
Section 10.14. No Legal Impediment.................................... 74
Section 10.15. Governmental Regulation................................ 74
Section 10.16. Appraisals............................................. 74
Section 10.17. Other.................................................. 74
SECTION 11. CONDITIONS TO ALL BORROWINGS................................. 74
Section 11.1. Prior Conditions Satisfied............................. 74
Section 11.2. Representations True; No Default....................... 74
Section 11.3. Borrowing Documents.................................... 75
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; ETC......................... 75
Section 12.1. Events of Default and Acceleration..................... 75
Section 12.2. Limitation of Cure Periods............................. 78
Section 12.3. Termination of Commitments............................. 78
Section 12.4. Remedies............................................... 79
Section 12.5. Distribution of Proceeds............................... 79
SECTION 13. SETOFF....................................................... 80
SECTION 14. THE AGENT.................................................... 80
Section 14.1. Authorization.......................................... 80
Section 14.2. Employees and Agents................................... 80
Section 14.3. No Liability........................................... 81
Section 14.4. No Representations..................................... 81
Section 14.5. Payments............................................... 82
Section 14.6. Holders of Notes....................................... 83
Section 14.7. Indemnity.............................................. 83
Section 14.8. Agent as Bank.......................................... 83
Section 14.9. Resignation............................................ 83
Section 14.10. Duties in the Case of Enforcement...................... 84
Section 14.11. Bankruptcy............................................. 84
Section 14.12. Approvals.............................................. 85
Section 14.13. Borrower not Beneficiary............................... 85
-v-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 15. EXPENSES..................................................... 85
SECTION 16. INDEMNIFICATION.............................................. 86
SECTION 17. SURVIVAL OF COVENANTS, ETC................................... 87
SECTION 18. ASSIGNMENT AND PARTICIPATION................................. 87
Section 18.1. Conditions to Assignment by Banks...................... 87
Section 18.2. Register............................................... 88
Section 18.3. New Notes.............................................. 88
Section 18.4. Participations......................................... 88
Section 18.5. Pledge by Bank......................................... 89
Section 18.6. No Assignment by Borrower or the Trust................. 89
Section 18.7. Disclosure............................................. 89
Section 18.8. Amendments to Loan Documents........................... 89
Section 18.9. Mandatory Assignment................................... 89
Section 18.10. Titled Agents.......................................... 90
SECTION 19. NOTICES...................................................... 90
SECTION 20. RELATIONSHIP................................................. 91
SECTION 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE........... 92
SECTION 22. HEADINGS..................................................... 92
SECTION 23. COUNTERPARTS................................................. 92
SECTION 24. ENTIRE AGREEMENT, ETC........................................ 92
SECTION 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS............... 92
SECTION 26. DEALINGS WITH THE BORROWER OR THE GUARANTORS................. 93
SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC........................... 93
SECTION 28. SEVERABILITY................................................. 94
SECTION 29. TIME OF THE ESSENCE.......................................... 94
SECTION 30. NO UNWRITTEN AGREEMENTS...................................... 94
SECTION 31. REPLACEMENT OF NOTES......................................... 94
SECTION 32. TRUST EXCULPATION............................................ 95
SECTION 33. PATRIOT ACT.................................................. 95
SECTION 34. OPTION TO COLLATERALIZE OBLIGATIONS.......................... 96
-vi-
EXHIBITS AND SCHEDULES
EXHIBIT A FORM OF REVOLVING CREDIT NOTE
EXHIBIT B FORM OF TERM LOAN NOTE
EXHIBIT C FORM OF SWING LINE NOTE
EXHIBIT D FORM OF JOINDER AGREEMENT
EXHIBIT E FORM OF LOAN REQUEST
EXHIBIT F FORM OF SWING LINE LOAN NOTICE
EXHIBIT G LETTER OF CREDIT APPLICATION
EXHIBIT H FORM OF EXTENSION REQUEST
EXHIBIT I FORM OF COMPLIANCE CERTIFICATE
EXHIBIT J FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
SCHEDULE 1.1 BANKS AND COMMITMENTS
SCHEDULE 1.2 INITIAL UNENCUMBERED BORROWING BASE PROPERTIES
SCHEDULE 2.9 EXISTING LETTERS OF CREDIT
SCHEDULE 6.5 MARKETED PROPERTIES
SCHEDULE 6.7 LITIGATION
SCHEDULE 6.15 AFFILIATE TRANSACTIONS
SCHEDULE 6.18 ENVIRONMENTAL MATTERS
SCHEDULE 6.19 SUBSIDIARIES OF THE BORROWER AND GUARANTOR
SCHEDULE 6.29 PROPERTY OF GUARANTOR
-vii-
UNSECURED MASTER LOAN AGREEMENT
This UNSECURED MASTER LOAN AGREEMENT is made as of the 13th day of
December, 2005 by and among RAMCO-GERSHENSON PROPERTIES, L.P. (the "Borrower"),
a Delaware limited partnership, RAMCO-GERSHENSON PROPERTIES TRUST (the "Trust"),
a Maryland real estate investment trust, KEYBANK NATIONAL ASSOCIATION, a
national banking association ("KeyBank"), and the other lending institutions
that are a party hereto, and the other lending institutions which may become
parties hereto pursuant to Section 18 (the "Banks"), and KEYBANK NATIONAL
ASSOCIATION, a national banking association, as Administrative Agent for the
Banks (the "Agent").
RECITALS
WHEREAS, the Borrower has requested that the Banks provide a revolving and
term loan facility to Borrower; and
WHEREAS, the Agent and the Banks are willing to provide such facility to
the Borrower 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 heretofore, now or hereafter made
to or for the benefit of the Borrower by the Banks, the parties hereto 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 interest,
partnership interests, member interests or other interests having voting power
for the election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise, or (b) the ownership
of (i) a general partnership interest, (ii) a managing member's interest in a
limited liability company or (iii) a limited partnership interest or preferred
stock (or other ownership interest) representing ten percent (10%) or more of
the outstanding limited partnership interests, preferred stock or other
ownership interests of such Person.
Agent. KeyBank National Association, 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.
Aggregate Unencumbered Property Borrowing Base Value. As of any date of
determination, the sum of the Unencumbered Property Borrowing Base Value and the
Non-Stabilized Unencumbered Property Borrowing Base Value; provided that the
Non-Stabilized Unencumbered Property Borrowing Base Value shall be reduced (with
a corresponding reduction in the Aggregate Unencumbered Property Borrowing Base
Value) to the extent necessary so that the Non-Stabilized Unencumbered Property
Borrowing Base Value shall not exceed twenty percent (20%) of the Aggregate
Unencumbered Property Borrowing Base Value.
Agreement. This Unsecured Master Loan Agreement, including the Schedules
and Exhibits hereto.
Appraisal. An MAI appraisal of the value of a parcel of Real Estate,
determined on a fair value basis, performed by an independent appraiser selected
by the Agent who is not an employee of the Borrower, the Guarantors or any of
their Subsidiaries, the Agent or a Bank, the form and substance of such
appraisal and the identity of the appraiser to be in compliance with the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended,
the rules and regulations adopted pursuant thereto and all other regulatory laws
applicable to the Banks and otherwise acceptable to the Agent.
Appraised Value. The as-is value of an Unencumbered Borrowing Base Property
determined by the Appraisal of such property obtained pursuant to Section 7.19,
subject, however, to such changes or adjustments to the value determined thereby
as may be required by the appraisal department of the Agent.
Applicable Margin. On any date, the applicable margin set forth below based
on the ratio of the Consolidated Total Liabilities of the Borrower to the
Consolidated Total Adjusted Asset Value of the Borrower (expressed as a
percentage):
Revolving Credit Loans Term Loans
---------------------------------- ----------------------------------
Ratio Base Rate Loans LIBOR Rate Loans Base Rate Loans LIBOR Rate Loans
----- --------------- ---------------- --------------- ----------------
Pricing Level 1 Less than 40% 0% 1.15% 0% 1.30%
Pricing Level 2 Equal to or greater than 40%, but 0% 1.25% 0% 1.40%
less than 50%
Pricing Level 3 Equal to or greater than 50%, but 0% 1.35% 0% 1.50%
less than 60%
Pricing Level 4 Equal to or greater than 60% 0% 1.50% 0% 1.65%
2
The initial Applicable Margin shall be at Pricing Level 3. The Applicable Margin
shall be adjusted based upon such ratio, if at all, on the first day of the
first month following the delivery by the Borrower to the Agent of the
Compliance Certificate at the end of each fiscal quarter. In the event that
Borrower shall fail to deliver to the Agent a quarterly Compliance Certificate
on or before the date required by Section 7.4(e), then without limiting any
other rights of the Agent and the Banks under this Agreement, the Applicable
Margin shall be at Pricing Level 4 until such failure is cured within any
applicable cure period.
Arranger. KeyBanc Capital Markets.
Assignment and Acceptance Agreement. See Section 18.1.
Balance Sheet Date. September 30, 2005.
Banks. KeyBank, the other Banks a party hereto, and any other Person who
becomes an assignee of any rights of a Bank pursuant to Section 18; and
collectively, the Revolving Credit Banks, the Term Loan Banks and the Swing Line
Lender. The Issuing Bank shall be a Bank, as applicable.
Base Rate. The greater of (a) the variable annual rate of interest
announced from time to time by Agent at Agent's Head Office as its "prime rate"
or (b) one-half of one percent (0.5%) 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. Collectively, the Revolving Credit Base Rate Loans and the
Term Base Rate Loans.
Board. See the definition of Change of Control.
Borrower. As defined in the preamble hereto.
Building. With respect to each parcel of Real Estate, all of the buildings,
structures and improvements now or hereafter located thereon.
Business Day. Any day on which banking institutions located in the same
city and state as the Agent's Head Office and in New York 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 any Person or property,
a reserve for replacements and capital expenditures equal to $.10 per square
foot of building space located on all Real Estate owned by such Person, other
than Real Estate subject to long term leases which provide that the tenant is
responsible for all building maintenance.
3
Capital Improvement Project. With respect to any Real Estate now or
hereafter owned by the Borrower or any of its Approved Subsidiaries which is
utilized principally for shopping centers, capital improvements consisting of
rehabilitation, refurbishment, replacement, expansions and improvements
(including related amenities) to the existing Buildings on such Real Estate and
capital additions, repairs, resurfacing and replacements in the common areas of
such Real Estate all of which may be properly capitalized under generally
accepted accounting principles.
Capitalized Lease. A lease under which a Person is the lessee or obligor,
the discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
generally accepted accounting principles.
CERCLA. See Section 6.18.
Change of Control. The occurrence of any one of the following events:
(a) during any twelve month period on or after the date hereof,
individuals who at the beginning of such period constituted the Board of
Directors or Trustees of the Trust (the "Board") (together with any new
directors whose election by the Board or whose nomination for election by the
shareholders of the Trust was approved by a vote of at least a majority of the
members of the Board then in office who either were members of the Board 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 then in office; or
(b) any Person or group (as that term is understood under Section
13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and the rules and regulations thereunder) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a
percentage (based on voting power, in the event different classes of stock shall
have different voting powers) of the voting stock of the Trust equal to at least
thirty percent (30%);
(c) the Borrower or Trust consolidates with, is acquired by, or merges
into or with any Person (other than a merger permitted by Section 8.4); or
(d) the Borrower fails to own, free of any lien, encumbrance or other
adverse claim, at least one hundred percent (100%) of the economic interest in
the Voting Interest of each Subsidiary Guarantor.
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.
Commitment. With respect to each Bank, the aggregate of (a) the Revolving
Credit Commitment of such Bank and (b) the Term Loan Commitment of such Bank.
4
Commitment Percentage. With respect to each Bank, the percentage set forth
on Schedule 1.1 hereto as such Bank's percentage of the aggregate Commitments of
all of the Banks, as the same may be changed from time to time in accordance
with the terms of this Agreement.
Compliance Certificate. See Section 7.4(e).
Consolidated or combined. With reference to any term defined herein, that
term as applied to the accounts of a Person and its Subsidiaries, consolidated
or combined in accordance with generally accepted accounting principles.
Consolidated Operating Cash Flow. With respect to any period of a Person,
an amount equal to the Operating Cash Flow of such Person and its Subsidiaries
for such period consolidated in accordance with generally accepted accounting
principles.
Consolidated Tangible Net Worth. The amount by which Consolidated Total
Adjusted Asset Value exceeds Consolidated Total Liabilities, and less the sum
of:
(a) the total book value of all assets of a Person and its
Subsidiaries properly classified as intangible assets under generally accepted
accounting principles, including such items as good will, the purchase price of
acquired assets in excess of the fair market value thereof, trademarks, trade
names, service marks, brand names, copyrights, patents and licenses, and rights
with respect to the foregoing; and
(b) all amounts representing any write-up in the book value of any
assets of such Person or its Subsidiaries resulting from a revaluation thereof
subsequent to the Balance Sheet Date; and
(c) all amounts representing minority interests as of such date which
are applicable to third parties in Investments of the Borrower.
Consolidated Total Adjusted Asset Value. With respect to any Person, the
sum of all assets of such Person and its Subsidiaries determined on a
Consolidated basis in accordance with generally accepted accounting principles,
provided that all Real Estate that is improved and not Under Development shall
be valued at an amount equal to (A) the Operating Cash Flow of such Person and
its Subsidiaries and Unconsolidated Affiliates described in Section 8.3(i) from
such Real Estate for the period covered by the four previous consecutive fiscal
quarters (treated as a single accounting period) divided by (B) 0.0825 (an 8.25%
capitalization rate), provided that (i) prior to such time as the Borrower or
any of its Subsidiaries or such Unconsolidated Affiliates has owned and operated
any parcel of Real Estate for four full fiscal quarters (or with respect to any
Redevelopment Property that has been valued at cost as permitted below and has
recommenced operations for less than four full fiscal quarters), the Operating
Cash Flow with respect to such parcel of Real Estate for the number of full
fiscal quarters which the Borrower or any of its Subsidiaries or such
Unconsolidated Affiliates has owned and operated such parcel of Real Estate (or,
with respect to a Redevelopment Property that has recommenced operations, the
Operating Cash Flow for such Redevelopment Property for the number of full
fiscal quarters which the Borrower or its Subsidiary or such Unconsolidated
Affiliate has recommenced operations) as annualized shall be utilized, (ii) the
Operating Cash Flow for any parcel of Real
5
Estate (or Redevelopment Property that has recommenced operations) without a
full quarter of performance shall be annualized in such manner as the Agent
shall approve, such approval not to be unreasonably withheld, (iii) prior to
being capitalized, the Operating Cash Flow with respect to any parcel of Real
Estate owned by an Unconsolidated Affiliate of such Person shall be reduced by
the amount of all Debt Service of such Unconsolidated Affiliate, and (iv) to the
extent that the capitalized Operating Cash Flow with respect to any parcel of
Real Estate owned by an Unconsolidated Affiliate of such Person is included in
the calculation of Consolidated Total Adjusted Asset Value for such Person, such
Person's interest in the Unconsolidated Affiliate shall not be included in the
calculation of Consolidated Total Adjusted Asset Value for such Person.
Notwithstanding the foregoing, Borrower may elect to value a Redevelopment
Property at cost as determined in accordance with generally accepted accounting
principles, as set forth in the first sentence of this definition, for a period
of up to twenty-four (24) months which twenty-four (24) month period shall
commence upon the date which Agent receives written notice from Borrower of such
election. For the purpose of calculating Operating Cash Flow under this
definition as to any parcel of Real Estate, the Operating Cash Flow Rental
Adjustment shall be applied to any parcel of Real Estate affected by any of the
events described in the definition of Operating Cash Flow Rental Adjustment. The
assets of the Borrower and its Subsidiaries on the consolidated financial
statements of the Borrower and its Subsidiaries shall be adjusted to reflect the
Borrower's allocable share of such asset (including Borrower's interest in any
Unconsolidated Affiliate whose asset value is determined by application of the
capitalization rate above), for the relevant period or as of the date of
determination, taking into account (a) the relative proportion of each such item
derived from assets directly owned by the Borrower and from assets owned by its
respective Subsidiaries and Unconsolidated Affiliates, and (b) the Borrower's
respective ownership interest in its Subsidiaries and Unconsolidated Affiliates.
Consolidated Total Liabilities. All liabilities of a Person and its
Subsidiaries determined on a Consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of such Person and its
Subsidiaries, whether or not so classified, including any liabilities arising in
connection with sale and leaseback transactions. Consolidated Total Liabilities
shall not include Trust Preferred Equity. Amounts undrawn under this Agreement
shall not be included in Indebtedness for purposes of this definition.
Notwithstanding anything to the contrary contained herein, Indebtedness (a) of
Borrower and its Subsidiaries consisting of environmental indemnities and
guarantees with respect to customary exceptions to exculpatory language with
respect to Non-recourse Indebtedness and (b) of Borrower with respect to the TIF
Guaranty shall not be included in the calculation of Consolidated Total
Liabilities of Borrower and its Subsidiaries unless a claim shall have been made
against Borrower or a Subsidiary of Borrower on account of any such guaranty or
indemnity.
Contribution Agreement. That certain Contribution Agreement dated of even
date herewith among the Borrower, the Trust and the Subsidiary Guarantors.
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.
Co-Syndication Agents. JPMorgan Chase Bank, N.A. and Bank of America, N.A.
6
Debt Offering. The issuance and sale by the Borrower or any Guarantor of
any debt securities of the Borrower or such Guarantor.
Debt Service. For any period, the sum of all interest, including
capitalized interest not paid in cash, bond related expenses, and mandatory
principal/sinking fund payments due and payable during such period excluding any
balloon payments due upon maturity of any Indebtedness.
Default. See Section 12.1.
Defaulting Bank. See Section 14.5(c).
Directions. See Section 14.12.
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, partnership interest, membership interest 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, partnership
interest, membership interest 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, members 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.
Documentation Agent. Deutsche Bank Trust Company Americas.
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 1.1 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 Revolving Credit Maturity Date
or Term Loan Maturity Date, as applicable, is converted or combined in
accordance with Section 4.1.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower, a Guarantor
or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 6.18(a).
Equity Offering. The issuance and sale by the Borrower or any Guarantor of
any equity securities of the Borrower or such Guarantor.
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
7
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower or any 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.
Existing Letters of Credit. The Letters of Credit issued by Bank of
America, N.A. and described on Schedule 2.9 hereto.
Extension Request. See Section 4.15.
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.
Fixed Charges. With respect to the Trust and its Subsidiaries for any
fiscal period, an amount equal to the sum of (a) the Debt Service of the Trust
and its Subsidiaries, plus (b) the Preferred Distributions of the Trust and its
Subsidiaries, all determined on a consolidated basis in accordance with
generally accepted accounting principles.
Funds from Operations. With respect to any Person for any fiscal period,
the Net Income (or Deficit) of such Person computed in accordance with generally
accepted accounting principles, excluding losses from sales of property, plus
depreciation and amortization, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures will be calculated to reflect funds from operations on the same
basis.
generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Person
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied. Notwithstanding the foregoing, for
the purposes of the financial calculations hereunder, any amount otherwise
included therein from a mark-up or mark-down of a derivative product of a Person
shall be excluded.
8
Ground Lease. A ground lease as to which no default or event of default has
occurred and containing the following terms and conditions: (a) a remaining term
(exclusive of any unexercised extension options) of forty (40) years or more
from the Closing Date; (b) the right of the lessee to mortgage and encumber its
interest in the leased property without the consent of the lessor; (c) the
obligation of the lessor to give the holder of any mortgage lien on such leased
property written notice of any defaults on the part of the lessee and agreement
of such lessor that such lease will not be terminated until such holder has had
a reasonable opportunity to cure or complete foreclosure, and fails to do so;
(d) reasonable transferability of the lessee's interest under such lease,
including the ability to sublease; and (e) such other rights customarily
required by mortgagees making a loan secured by the interest of the holder of
the leasehold estate demised pursuant to a ground lease.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
any 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.
Guarantors. Collectively, the Trust and each Subsidiary Guarantor, and
individually, any one such Guarantor.
Guaranty. The Unconditional Guaranty of Payment and Performance dated of
even date herewith made by the Guarantors in favor of the Agent and the Banks,
as the same may be modified or amended, such Guaranty to be in form and
substance satisfactory to the Agent.
Hazardous Substances. See Section 6.18(b).
Implied Unsecured Debt Service. Implied Unsecured Debt Service shall be an
amount equal to the principal and interest that would be payable on the
Unsecured Indebtedness of Borrower, the Guarantors and their Subsidiaries as of
any date of determination when bearing interest at a rate equal to the greater
of (a) 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 on a 25-year mortgage-style amortization schedule (expressed as a
mortgage constant percentage), and (b) 7.5%.
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
9
or otherwise; (d) any obligation as a lessee or obligor under a Capitalized
Lease; (e) all subordinated debt (other than Trust Preferred Equity); (f) all
obligations to purchase under agreements to acquire (but excluding agreements
which provide that the seller's remedies thereunder are limited to market
liquidated damages in the event the purchaser defaults thereunder), or otherwise
to contribute money with respect to, properties under "development" within the
meaning of Section 8.9; and (g) all obligations, contingent or deferred or
otherwise, of any Person, including, without limitation, any such obligations as
an account party under acceptance, letter of credit or similar facilities
including, without limitation, obligations to reimburse the issuer in respect of
a letter of credit except for contingent obligations (but excluding any
guarantees or similar obligations) that 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.
Interest Payment Date. As to each Base Rate Loan, the first day of each
calendar month during the term of such Base Rate Loan and as to each LIBOR Rate
Loan, the first day of each calendar month during the term of such LIBOR Rate
Loan and the last day of the Interest Period relating thereto.
Interest Period. With respect to each LIBOR Rate Loan (a) initially, the
period commencing on the Drawdown Date of such Loan and ending one, two, three
or six months (or, with the consent of the Banks, a period of less than one (1)
month) thereafter and (b) thereafter, each period commencing on the day
following the last day of the next preceding Interest Period applicable to such
Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, that Interest
Period shall end and the next Interest Period shall commence on the next
preceding or succeeding LIBOR Business Day as determined conclusively by the
Agent in accordance with the then current bank practice in the London Interbank
Market;
(ii) if the Borrower shall fail to give notice as provided in
Section 4.1, the Borrower shall be deemed to have requested a conversion of the
affected LIBOR Rate Loan to a Base Rate Loan on the last day of the then current
Interest Period with respect thereto; and
(iii) no Interest Period relating to any LIBOR Rate Loan shall
extend beyond the applicable 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,
10
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.
Issuing Bank. KeyBank in its capacity as the Bank issuing Letters of
Credit, or any successor issuing bank hereunder. Bank of America, N.A. shall be
the Issuing Bank with respect to the Existing Letters of Credit.
Joinder Agreement. The joinder agreement with respect to the Guaranty and
the Contribution Agreement to be executed and delivered pursuant to Section 5.2
by any additional Guarantor, substantially in the form of Exhibit D hereto.
KeyBank. As defined in the preamble hereto.
Letter of Credit. Any standby letter of credit issued at the request of the
Borrower and for the account of the Borrower in accordance with Section 2.9.
Letter of Credit Application. See Section 2.9(b).
Letter of Credit Sublimit. An amount equal to $25,000,000.00, as such
amount may increase as provided in Section 2.9 or may reduce as provided in
Section 2.7.
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 1.1 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 rate so reported no
11
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. Collectively, the Revolving Credit LIBOR Rate Loans and
the Term LIBOR Rate Loans.
Lien. See Section 8.2.
Loan Documents. This Agreement, the Notes (if any), the Letters of Credit,
the Letter of Credit Applications, the Guaranty and all other documents,
instruments or agreements now or hereafter executed or delivered by or on behalf
of the Borrower or the Guarantors in connection with the Loans.
Loan Request. See Section 2.5.
Loans. The Revolving Credit Loans and the Term Loans. Swing Line Loans
shall constitute "Revolving Credit Loans" for all purposes under this Agreement
(provided that only the Swing Line Lender shall be obligated to make a Swing
Line Loan), but shall not be considered the utilization of a Revolving Credit
Bank's Revolving Credit Commitment (except to the extent of such Revolving
Credit Bank's participation in Swing Line Loans).
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.
Majority Revolving Credit Banks. As of any date, any Revolving Credit Bank
or collection of Revolving Credit Banks whose aggregate Revolving Credit
Commitment Percentage is greater than fifty percent (50%); provided that in
determining said percentage at any given time, all the existing Revolving Credit
Banks that are Defaulting Banks will be disregarded and excluded and the
Revolving Credit Commitment Percentages of the Revolving Credit Banks shall be
redetermined for voting purposes only to exclude the Revolving Credit Commitment
Percentages of such Defaulting Banks.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower, a Guarantor or any
ERISA Affiliate.
Net Income (or Deficit). With respect to any Person (or any asset of any
Person) for any fiscal period, the net income (or deficit) of such Person (or
attributable to such asset), after deduction of all expenses, taxes and other
proper charges, determined in accordance with generally accepted accounting
principles.
Net Offering Proceeds. The gross cash proceeds received by the Borrower or
any Guarantor as a result of a Debt Offering or an Equity Offering less the
customary and reasonable
12
costs, fees, expenses, underwriting commissions and discounts incurred by the
Borrower or such Guarantor in connection therewith.
Net Rentable Area. With respect to any Real Estate, the floor area of any
buildings, structures or improvements available (or to be available upon
completion) for leasing to tenants determined in accordance with the Rent Roll
for such Real Estate, the manner of such determination to be consistent for all
Real Estate unless otherwise approved by the Agent.
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 holder of such Indebtedness having
recourse solely to the parcels of Real Estate securing such Indebtedness, the
Building and any leases thereon and the rents and profits thereof.
Non-Consenting Bank. See Section 18.9.
Non-Stabilized Properties. Any Real Estate designated by Borrower as a
Non-Stabilized Property pursuant to Section 7.19 and which is a Redevelopment
Property.
Non-Stabilized Unencumbered Property Borrowing Base Value. The
Non-Stabilized Unencumbered Property Borrowing Base Value of the Unencumbered
Borrowing Base Properties that are Non-Stabilized Properties shall be an amount
equal to sixty-five percent (65%) of the Appraised Value of such Unencumbered
Borrowing Base Properties as most recently determined under this Agreement or,
with approval of the Majority Banks, as to any Non-Stabilized Property,
sixty-five percent (65%) of the undepreciated book value of such Non-Stabilized
Property determined in accordance with generally accepted accounting principles.
Notes. Collectively, the Revolving Credit Notes, Term Loan Notes, and the
Swing Line Note, if any.
Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the Borrower
and the Guarantors to any of the Banks and the Agent, individually or
collectively, under this Agreement or any of the other Loan Documents or in
respect of any of the Loans, the Letters of Credit or the Notes, or other
instruments at any time evidencing any of the foregoing, whether existing on the
date of this Agreement or arising or incurred hereafter, direct or indirect,
joint or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise.
OFAC. Office of Foreign Asset Control of the Department of the Treasury of
the United States of America.
Operating Cash Flow. With respect to any Person (or any asset of any
Person) for any period, an amount equal to the sum of (a) the Net Income of such
Person (or attributable to such asset) for such period plus (b) depreciation and
amortization, interest expense, and any extraordinary or nonrecurring losses
deducted in calculating such Net Income, minus (c) any extraordinary or
nonrecurring gains included in calculating such Net Income, minus (d) the
13
Capital Expenditure Reserve Amount, minus (e) to the extent not already deducted
in calculating Net Income, a management fee of 3% of minimum rents attributable
to any Real Estate of such Person, all as determined in accordance with
generally accepted accounting principles.
Operating Cash Flow Rental Adjustment. For the purposes of calculating
Operating Cash Flow, (a) with respect to any parcel of Real Estate as to which
the Borrower or any Subsidiary or Unconsolidated Affiliate described in Section
8.3(i) shall obtain a replacement tenant for vacant space in excess of 10,000
rentable square feet, the rent from such tenant shall from the date such tenant
takes possession and begins paying rent be included for one-half of the period
for which such space was vacant during the period for which Operating Cash Flow
is being calculated, and (b) with respect to any parcel of Real Estate as to
which the Borrower or any Subsidiary or Unconsolidated Affiliate shall obtain a
lease renewal from a tenant leasing in excess of 10,000 rentable square feet
that provides for a higher base rent than previously paid by such tenant, the
rent from such tenant from the date such tenant begins paying rent at the higher
rate shall be included for the current and all prior periods for which Operating
Cash Flow is then being calculated.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination. With respect to Letters of Credit, the
aggregate undrawn face amount of issued Letters of Credit
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. Liens, security interests and other encumbrances permitted
by Section 8.2.
Person. Any individual, corporation, partnership, limited liability
company, trust, unincorporated association, business, or other legal entity, and
any government or any governmental agency or political subdivision thereof.
Preferred Distributions. For any period, the amount of any and all
Distributions (but excluding any repurchase of Preferred Equity) paid, declared
but not yet paid or otherwise due and payable to the holders of Preferred
Equity.
Preferred Equity. Any form of preferred stock or partnership interest
(whether perpetual, convertible or otherwise) or other ownership or beneficial
interest in the Trust or any Subsidiary of the Trust (including any Trust
Preferred Equity) that entitles the holders thereof to preferential payment or
distribution priority with respect to dividends, distributions, assets or other
payments over the holders of any other stock, partnership interest or other
ownership or beneficial interest in such Person.
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
14
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.
Recourse Indebtedness. Any Indebtedness (whether secured or unsecured) that
is recourse to the Borrower or the Trust. Guaranties with respect to customary
exceptions to Non-recourse Indebtedness of Borrower's Subsidiaries or
Unconsolidated Affiliates shall not be deemed to be Recourse Indebtedness;
provided that if a claim is made against Borrower or the Trust with respect
thereto, the amount so claimed shall be considered Recourse Indebtedness.
Redevelopment Property. Any Real Estate which is not Under Development and
(1) is undergoing a significant Capital Improvement Project and (2) is
designated as a Redevelopment Property by Borrower and approved by Agent, such
approval not to be unreasonably withheld.
Register. See Section 18.2.
REIT Status. With respect to the Trust, its status as a real estate
investment trust as defined in Section 856(a) of the Code.
Related Fund. With respect to any Bank which is a fund that invests in
loans, any Affiliate of such Bank or any other fund that invests in loans that
is managed by the same investment advisor as such Bank or by an Affiliate of
such Bank or such investment advisor.
Release. See Section 6.18(c)(iii).
Required Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is equal to or greater than sixty-six and
two-thirds percent (66.66%); 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.
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.
Revolving Credit Banks. Collectively, the Banks which have a Revolving
Credit Commitment, the initial Revolving Credit Banks being identified on
Schedule 1.1 hereto.
Revolving Credit Base Rate Loans. The Revolving Credit Loans bearing
interest by reference to the Base Rate.
15
Revolving Credit Commitment. With respect to each Revolving Credit Bank,
the amount set forth on Schedule 1.1 hereto as the amount of such Revolving
Credit Bank's Revolving Credit Commitment to make or maintain Revolving Credit
Loans to Borrower or to participate in Swing Line Loans and Letters of Credit,
as the same may be changed from time to time in accordance with the terms of
this Agreement.
Revolving Credit Commitment Percentage. With respect to each Revolving
Credit Bank, the percentage set forth on Schedule 1.1 hereto as such Revolving
Credit Bank's percentage of the aggregate Revolving Credit Commitments of all of
the Revolving Credit Banks, as the same may be changed from time to time in
accordance with the terms of this Agreement.
Revolving Credit Loan or Loans. An individual Revolving Credit Loan or the
aggregate Revolving Credit Loans, as the case may be, made by the Revolving
Credit Banks hereunder to Borrower, as more particularly described in Section
2.1.
Revolving Credit Note. A promissory note made by the Borrower in favor of a
Revolving Credit Bank in the principal face amount equal to such Revolving
Credit Bank's Revolving Credit Commitment, or if less, the outstanding amount of
all Revolving Credit Loans made by such Revolving Credit Bank, in substantially
the form of Exhibit A hereto.
Revolving Credit LIBOR Rate Loans. Revolving Credit Loans bearing interest
calculated by reference to the LIBOR Rate.
Revolving Credit Maturity Date. December 13, 2008, as such date may be
extended as provided in Section 4.15, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
SEC. The federal Securities and Exchange Commission.
Secured Indebtedness. Indebtedness of a Person that is pursuant to a
Capitalized Lease or is directly or indirectly secured by a Lien.
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.
Subsidiary Guarantor. Collectively, Rossford Development LLC, Ramco
Roseville Plaza LLC and each Subsidiary of Borrower or the Trust which becomes a
Guarantor pursuant to Section 5.2.
Swing Line. The revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.10.
16
Swing Line Borrowing. A borrowing of a Swing Line Loan pursuant to Section
2.10.
Swing Line Lender. KeyBank, in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.
Swing Line Loan. See Section 2.10(a).
Swing Line Loan Notice. A notice of a Swing Line Borrowing pursuant to
Section 2.10(b), which, if in writing, shall be substantially in the form of
Exhibit F attached hereto.
Swing Line Note. See Section 2.10(g).
Swing Line Sublimit. An amount equal to $15,000,000, as such amount may
increase as provided in Section 2.10 or may reduce as provided in Section 2.7.
The Swing Line Sublimit is part of, and not in addition to, the Total Revolving
Credit Commitments.
Tax Indemnity Agreement. That certain Tax Agreement dated as of May 10,
1996 between Atlantic Realty Trust and RPS Realty Trust (now known as the
Trust).
Term Base Rate Loans. The Term Loans bearing interest by reference to the
Base Rate.
Term LIBOR Rate Loans. The Term Loans bearing interest by reference to the
LIBOR Rate.
Term Loan or Term Loans. An individual Term Loan or the aggregate Term
Loans, as the case may be, in the maximum principal amount of $100,000,000.00
made by the Term Loan Banks hereunder.
Term Loan Banks. Collectively, the Banks which have a Term Loan Commitment,
the initial Term Loan Banks being identified on Schedule 1.1 hereto.
Term Loan Commitment. As to each Term Loan Bank, the amount equal to such
Term Loan Bank's Term Loan Commitment Percentage of the aggregate principal
amount of the Term Loans from time to time outstanding to Borrower.
Term Loan Commitment Percentage. With respect to each Term Loan Bank, the
percentage set forth on Schedule 1.1 hereto as such Term Loan Bank's percentage
of the aggregate Term Loan to Borrower, as the same may be changed from time to
time in accordance with the terms of this Agreement.
Term Loan Maturity Date. December 13, 2010, or such earlier date on which
the Loans shall become due and payable pursuant to the terms hereof.
Term Loan Note. A promissory note made by the Borrower in favor of a Term
Loan Bank in the principal face amount equal to such Term Loan Bank's Term Loan
Commitment, in substantially the form of Exhibit B hereto.
17
TIF Guaranty. That certain Guaranty dated as of March 11, 2005 made by
Borrower and the Trust in favor of the City of Jacksonville relating to the
development by Ramco Jacksonville LLC.
Titled Agents. The Arranger, the Co-Syndication Agents and the
Documentation Agent.
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 Two
Hundred Fifty Million and No/100 Dollars ($250,000,000.00). The Total Commitment
may increase in accordance with Section 2.8.
Total Revolving Credit Commitment. The sum of the Revolving Credit
Commitments of the Revolving Credit Banks, as in effect from time to time. As of
the date of this Agreement, the Total Revolving Credit Commitment is One Hundred
Fifty Million and No/100 Dollars ($150,000,00.00). The Total Revolving Credit
Commitment may increase in accordance with Section 2.8.
Trust. Ramco-Gershenson Properties Trust, a Maryland real estate investment
trust.
Trust Preferred Equity. Any preferred equity interest (and related note)
issued by the Trust (or a subsidiary trust created to issue such securities) (a)
which has a minimum remaining term of not less than five (5) years (b) which is
unsecured and which is not guaranteed by any other Person, (c) which imposes no
financial or negative covenants (or other covenants, representations or defaults
which have the same practical effect thereof) on the Trust, the Borrower or
their respective Subsidiaries, (d) pursuant to which all claims and liabilities
of the Trust, Borrower and its Subsidiary with respect thereto are subordinate
to the payment of the Obligations of the Borrower, the Trust and their
respective Subsidiaries on terms acceptable to the Agent, and as to which
subordination provisions the Agent and the Banks shall be third party
beneficiaries, (e) which provides that, upon the non-payment of the note and any
dividends or other distributions that are required to be paid or made with
respect thereto, the only available remedies to the holders thereof or any
trustee or agent acting on their behalf are (x) the assumption of one or more
seats on the Board of the Trust and/or (y) the blockage of (A) payments of any
dividends or other distributions to the holders of the common shares of the
Trust or other securities ranking on a parity with or subordinate to such Trust
Preferred Equity, or (B) payments of amounts in redemption of or to repurchase
common shares of the Trust or other securities ranking on a parity with or
subordinate to such Trust Preferred Equity, and (f) which does not violate the
terms of Section 8.10.
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.
Unconsolidated Affiliate. As to any Person, any other Person in which it
owns an interest which is not a Subsidiary.
Under Development. Any Real Estate shall be considered under development
until such time as (i) certificates of occupancy permitting occupancy have been
obtained for all tenants open for business and in any event for not less than
fifty percent (50%) of the gross leasable area of such development (excluding
outlots) (it being agreed that Borrower shall receive a credit against such
occupancy requirement for any space to be occupied by an anchor that has been
18
conveyed to such anchor) or the Borrower has delivered to the Agent other
evidence satisfactory to the Agent indicating that such occupancy of such
development is lawful, and (ii) the gross income from the operation of such Real
Estate on an accrual basis shall have equaled or exceeded operating costs on an
accrual basis for three (3) months.
Unencumbered Borrowing Base Properties. Unencumbered Borrowing Base
Properties shall mean Real Estate which satisfies all of the conditions set
forth in Section 7.19. The initial properties designated by Borrower to be
Unencumbered Borrowing Base Properties are described on Schedule 1.2 hereto.
Unencumbered Borrowing Base Property Certificate. See Section 7.4(e).
Unencumbered Property Borrowing Base Value. The Unencumbered Property
Borrowing Base Value of the Unencumbered Borrowing Base Properties that are not
Non-Stabilized Properties shall be an amount equal to the product of (a) 0.65
times (b) the sum of (i) the aggregate Operating Cash Flow from the Unencumbered
Borrowing Base Properties that are not Non-Stabilized Properties divided by (ii)
0.0825 (the capitalization rate). For the purposes of calculating Operating Cash
Flow under this definition as to any Unencumbered Borrowing Base Property, the
Operating Cash Flow Rental Adjustment shall be applied to any Unencumbered
Borrowing Base Property affected by any of the events described in the
definition of Operating Cash Flow Rental Adjustment.
Unsecured Indebtedness. Indebtedness of the Borrower, the Trust and their
respective Subsidiaries outstanding at any time which is not Secured
Indebtedness.
Variable Rate Debt. Indebtedness that is payable by reference to a rate of
interest that may vary, float or change during the term of such Indebtedness
(that is, a rate of interest that is not fixed for the entire term of such
Indebtedness).
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.
Wholly Owned Subsidiary. Any Subsidiary of Borrower or the Trust in which
all of the equity interests (other than in the case of a corporation, director's
qualifying shares) are at the time directly or indirectly owned by Borrower or
the Trust.
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.
19
(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. THE CREDIT FACILITY.
SECTION 2.1. COMMITMENT TO LEND REVOLVING CREDIT LOANS. Subject to the
terms and conditions set forth in this Agreement, each of the Revolving Credit
Banks severally agrees to lend to the Borrower (the "Revolving Credit Loans"),
and the Borrower may borrow (and repay and reborrow) from time to time between
the Closing Date and the Revolving Credit Maturity Date upon notice by the
Borrower to the Agent given in accordance with Section 2.5, such sums as are
requested by the Borrower for the purposes set forth in Section 7.11 up to a
maximum aggregate principal amount Outstanding (after giving effect to all
amounts requested and the amount of Swing Line Loans and aggregate Letters of
Credit Outstanding) not to exceed such Revolving Credit Bank's Revolving Credit
Commitment minus an amount equal to such Revolving Credit Bank's participations
in the Swing Line Loans and the aggregate Letters of Credit Outstanding
(including any amounts drawn thereunder and not yet reimbursed by the Borrower);
provided, that, in all events no Default or Event of Default shall have occurred
and be continuing; and provided, further that the Outstanding Revolving Credit
Loans (after giving effect to all amounts requested) and the Outstanding Swing
Line Loans and the Letters of Credit Outstanding (including any amounts drawn
thereunder and not yet reimbursed by the Borrower) shall not at any time exceed
the Total Revolving Credit Commitment. The Revolving Credit Loans shall be made
pro rata in accordance with each Revolving Credit Bank's Revolving Credit
Commitment Percentage. Each request for a Revolving Credit Loan hereunder shall
constitute a representation
20
and warranty by the Borrower that all of the conditions set forth in Section 10
and Section 11, in the case of the initial Revolving Credit Loan, and Section
11, in the case of all other Revolving Credit Loans, have been satisfied on the
date of such request.
SECTION 2.2. COMMITMENT TO LEND TERM LOAN. Subject to the terms and
conditions set forth in this Agreement, each of the Term Loan Banks severally
agrees to lend to Borrower on the Closing Date such Term Loan Bank's Term Loan
Commitment.
SECTION 2.3. UNUSED FACILITY FEE. The Borrower agrees to pay to the Agent
for the account of the Revolving Credit Banks in accordance with their
respective Revolving Credit Commitment Percentages a facility fee calculated at
the rate per annum as set forth below on the daily amount by which the Total
Revolving Credit Commitment exceeds the Outstanding Revolving Credit Loans
during each day of a calendar quarter or portion thereof commencing on the date
hereof and ending on the Revolving Credit Maturity Date. The facility fee shall
be calculated for each day based on the ratio (expressed as a percentage) of (a)
the daily amount of the Outstanding Revolving Credit Loans during each day of
such quarter to (b) the Total Revolving Credit Commitment as follows (the fee
payable being the sum of such calculations for each day during the applicable
period):
Ratio of Outstanding Principal Balance of Revolving
Credit Loans to Total Revolving Credit Commitment Rate
- --------------------------------------------------- -----
50% or less 0.20%
Greater than 50% 0.125%
The facility fee shall be payable quarterly in arrears on the fifth day of each
calendar quarter for the immediately preceding calendar quarter or portion
thereof, or on any earlier date on which the Revolving Credit Commitments shall
be reduced or terminated as provided in Section 2.7, with a final payment on the
Revolving Credit Maturity Date.
SECTION 2.4. INTEREST ON LOANS.
(a) Each Revolving Credit Base Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the date on which
such Revolving Credit Base Rate Loan is repaid or is converted to a Revolving
Credit LIBOR Rate Loan at the per annum rate equal to the sum of the Applicable
Margin for Revolving Credit Base Rate Loans plus the Base Rate.
(b) Each Revolving Credit LIBOR Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the date such
Revolving Credit LIBOR Loan is repaid or is converted to a Revolving Credit Base
Rate Loan at the rate per annum equal to the sum of the Applicable Margin for
Revolving Credit LIBOR Rate Loans plus the LIBOR Rate determined for such
Interest Period.
(c) Each Term Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on which such
Term Base Rate Loan is
21
repaid or is converted to a Term LIBOR Rate Loan at a rate per annum equal to
the sum of the Applicable Margin for Term Base Rate Loans plus the Base Rate.
(d) Each Term LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on which such
Term LIBOR Rate Loan is repaid or is converted to a Term Base Rate Loan at the
rate per annum equal to the sum of the Applicable Margin for Term LIBOR Rate
Loans plus the LIBOR Rate determined for such Interest Period.
(e) 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 Revolving Credit Commitments shall terminate as provided in
section 2.7. In the event that any additional interest becomes due and payable
for any period with respect to a Loan as a result of the Applicable Margin being
determined based on the ratio of Consolidated Total Liabilities to Consolidated
Total Adjusted Asset Value or any change in such ratio, and the interest for
such period has previously been paid by the Borrower, the Borrower shall pay to
the Agent for the account of the Banks the amount of such increase within ten
(10) days of demand.
(f) 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 REVOLVING CREDIT LOANS. The Borrower (i) shall
notify the Agent of a potential request for a Revolving Credit 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 E hereto (or telephonic notice
confirmed in writing in the form of Exhibit E hereto) of each Revolving Credit
Loan requested hereunder (a "Loan Request") no later than 11:00 a.m. (Cleveland
time) three (3) Business Days prior to the proposed Drawdown Date if such Loan
is to be a Revolving Credit LIBOR Rate Loan or no later than 2:00 p.m.
(Cleveland time) one (1) Business Day prior to the proposed Drawdown Date if
such Loan is to be a Revolving Credit Base Rate Loan. Each such notice shall
specify with respect to the requested Revolving Credit Loan the proposed
principal amount, Drawdown Date, Interest Period (if applicable) and Type. Each
such notice shall also contain (i) a statement as to the purpose for which such
advance shall be or has been used (which purpose shall be in accordance with the
terms of Section 7.11), and (ii) a certification by the chief executive officer,
chief financial or chief accounting officer of the general partner of the
Borrower and the chief executive officer, chief financial or chief accounting
officer of the Trust that the Borrower and Guarantors are and will be in
compliance with all covenants under the Loan Documents after giving effect to
the making of such Revolving Credit Loan. Promptly upon receipt of any such
notice, the Agent shall notify each of the Revolving Credit 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 Revolving Credit Loan requested from the Revolving Credit Banks on
the proposed Drawdown Date, provided that, in addition to the Borrower's other
remedies against any Revolving Credit Bank which fails to advance its
proportionate share of a requested Revolving Credit Loan, such Loan Request may
be revoked by the Borrower by notice received by the Agent no later than the
Drawdown Date if any Revolving Credit Bank fails to advance its proportionate
share of the requested Revolving Credit 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
22
Revolving Credit Bank which is prepared to advance its proportionate share of
the requested Revolving Credit Loan for any costs, expenses or damages actually
incurred by such Revolving Credit 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 Revolving Credit Bank that fails to advance its
proportionate share of a requested Revolving Credit 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 Revolving Credit Banks no later than
three (3) Business Days prior to the Drawdown Date. Each Loan Request shall be
(a) for a Revolving Credit Base Rate Loan in the minimum aggregate amount of
$500,000 or an integral multiple of $100,000 in excess thereof, or (b) for a
Revolving Credit LIBOR Rate Loan in a minimum aggregate amount of $500,000.00 or
an integral multiple of $100,000 in excess thereof; provided, however, that
there shall be no more than twelve (12) Revolving Credit 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 Revolving Credit Loans or Term Loans, each of the Revolving
Credit Banks or Term Loan Banks, as applicable, 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 or Section 2.2, as applicable. Upon receipt
from each such 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 Revolving Credit Loans or Term Loans, as
applicable, made available to the Agent by the Revolving Credit Banks or Term
Loan Banks, as applicable, by crediting such amount to the account of the
Borrower maintained at the Agent's Head Office or by transferring such amount to
an account designated by Borrower. The failure or refusal of any Revolving
Credit Bank or Term Loan 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 Revolving Credit Bank or Term
Loan 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 Revolving Credit Loans that may be requested subject to
the terms and conditions hereof to provide funds to replace those not advanced
by the Revolving Credit Bank so failing or refusing. The Borrower may by notice
received by the Agent no later than the Drawdown Date refuse to accept any
Revolving Credit 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 position as against the Bank or Banks so failing or refusing for
such Loans as provided in Section 12.5.
(b) Unless the Agent shall have been notified by any Bank prior to the
applicable Drawdown Date that such Bank will not make available to the Agent
such Bank's pro rata share of a proposed Loan, the Agent may in its discretion
assume that such Bank has made such share of the proposed Loan available to
Agent in accordance with the provisions of this Agreement and the Agent may, if
it chooses, in reliance upon such assumption make such Loan available to
Borrower, and such Bank shall be liable to the Agent for the amount of such
advance. If such Bank does not pay such corresponding amount upon the Agent's
demand
23
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. OPTIONAL REDUCTION OF REVOLVING CREDIT COMMITMENTS. The
Borrower shall have the right at any time and from time to time upon three
Business Days' prior written notice to the Agent to reduce by $5,000,000.00 or
an integral multiple of $1,000,000.00 in excess thereof (provided that in no
event shall the aggregate Revolving Credit Commitments be reduced to an amount
less than $75,000,000.00) or to terminate entirely the unborrowed portion of the
Revolving Credit Commitments (which shall include the aggregate amount of
Outstanding Letters of Credit and Swing Line Loans), whereupon the Revolving
Credit Commitments of the Revolving Credit Banks shall be reduced pro rata in
accordance with their respective Revolving Credit 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 2.7, the Agent will notify the
Revolving Credit Banks of the substance thereof. Upon the effective date of any
such termination in full, the Borrower shall pay to the Agent for the respective
accounts of the Revolving Credit Banks the full amount of any facility fee under
Section 2.3 then accrued. No reduction or termination of the Revolving Credit
Commitments may be reinstated. Any reduction of the Revolving Credit Commitments
pursuant to this Agreement shall be allocated pro rata among the Revolving
Credit Banks in accordance with their Revolving Credit Commitment Percentages.
Notwithstanding the foregoing, the Revolving Credit Commitments shall not be
reduced below an amount equal to the Outstanding Revolving Credit Loans
(including the aggregate amount of Outstanding Letters of Credit and Swing Line
Loans). Any reduction of the Revolving Credit Commitments shall also result in a
proportionate reduction (rounded to the next lowest integral multiple of
$100,000.00) in the maximum amount of Swing Line Loans and the Letter of Credit
Sublimit.
SECTION 2.8. INCREASE OF REVOLVING CREDIT COMMITMENT.
(a) Provided that no Default or Event of Default shall have occurred
and be continuing, the Borrower shall have the option, by giving written notice
to the Agent (the "Increase Notice"), subject to the terms and conditions set
forth in this Agreement, to increase the Total Revolving Credit Commitment in
increments of $10,000,000.00 by an amount up to $100,000,000 (the amount of the
requested increase to be set forth in the Increase Notice) (which, assuming no
previous reduction in the Revolving Credit Commitments, would result in a
maximum Total Revolving Credit Commitment of $250,000,000). The execution and
delivery of the Increase Notice by Borrower shall constitute a representation
and warranty by the Borrower that all the conditions set forth in this Section
2.8 shall have been satisfied on the date of such Increase Notice.
(b) The obligation of the Agent and the Revolving Credit Banks to
increase the Total Revolving Credit Commitment pursuant to this Section 2.8
shall be conditioned upon
24
satisfaction of the following conditions precedent which must be satisfied prior
to the effectiveness of any increase of the Total Revolving Credit Commitment.
(i) Payment of Activation Fee. The Borrower shall pay to the
Agent such fees as Agent and the Revolving Credit Banks acquiring such increase
may require to increase the aggregate Revolving Credit Commitment, which fees
shall, when paid, be fully earned and non-refundable under any circumstances.
The Agent shall pay to the Revolving Credit Banks acquiring the increased
Revolving Credit Commitment certain fees pursuant to their separate agreement;
and
(ii) No Default. On the date such Increase Notice is given and on
the date such increase becomes effective, both immediately before and after the
Revolving Credit Commitment is increased, there shall exist no Default or Event
of Default; and
(iii) Representations and Warranties. The representations and
warranties made by the Borrower or Guarantors in the Loan Documents or otherwise
made by or on behalf of the Borrower, Guarantors or any of their respective
Subsidiaries in connection therewith or after the date thereof shall have been
true and correct in all material respects, when made and shall also be true and
correct in all material respects on the date of such Increase Notice and on the
date the Total Revolving Credit Commitment is increased, both immediately before
and after the Total Revolving Credit Commitment is increased; and
(iv) Additional Documents and Fees. The Borrower shall also
execute and deliver to Agent and the Revolving Credit Banks such additional
documents, instruments, certifications and opinions as the Agent may require in
its sole and absolute discretion, including, without limitation, a Compliance
Certificate, demonstrating compliance with all covenants, representations and
warranties set forth in the Loan Documents after giving effect to the increase,
as Agent may request; and
(v) Assignments. One or more Revolving Credit Banks or potential
assignees reasonably acceptable to Agent shall have agreed to acquire the
portion of the Revolving Credit Commitment that Borrower desires to activate,
provided, however, no Revolving Credit Bank (including, specifically, but
without limitation, KeyBank) shall be obligated to acquire such increase without
the express written consent of such Revolving Credit Bank, which consent may be
withheld in such Revolving Credit Bank's sole and absolute discretion. The
allocation of any such increase shall be reasonably acceptable to the Agent; and
(vi) Other. The Borrower shall satisfy such other conditions to
such increase as Agent may require in its reasonable discretion.
(c) Upon satisfaction of the terms and conditions set forth above, the
amount set forth in the Increase Notice shall become a part of the Revolving
Credit Commitment and the Total Revolving Credit Commitment and be available to
be disbursed subject to the terms of this Agreement, and, subject to the payment
of any breakage costs pursuant to Section 4.8, the Revolving Credit Banks shall
make such adjustments to the outstanding Revolving Credit Loans of such
Revolving Credit Banks, so that, after giving effect to such increase, the
outstanding Revolving Credit Loans are consistent with their pro-rata share.
25
SECTION 2.9. LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof and provided that all
of the conditions contained in Sections 10 and 11 have been satisfied, the
Issuing Bank agrees to issue Letters of Credit for the account of the Borrower,
from the date of this Agreement to, but not including, the Revolving Credit
Maturity Date at such times as the Borrower may request; provided, however, that
the aggregate amount of Letters of Credit (including such requested Letter of
Credit) at any one time Outstanding shall not exceed the lesser of (i) the Total
Revolving Credit Commitment minus the aggregate amount of Outstanding Revolving
Credit Loans (including any Swing Line Loans and amounts drawn under any Letters
of Credit and not yet reimbursed by the Borrower), or (ii) the Letter of Credit
Sublimit. The issuance of a Letter of Credit pursuant to this Section 2.9(a)
shall be deemed to reduce the aggregate of the unborrowed Revolving Credit
Commitments of the Revolving Credit Banks then in effect by an amount equal to
the undrawn face amount of such Letter of Credit as set forth herein. In no
event shall any amount drawn under a Letter of Credit be available for
reinstatement or a subsequent drawing under a Letter of Credit. Each Revolving
Credit Bank severally agrees to participate in each such Letter of Credit issued
by the Issuing Bank in an amount equal to its Revolving Credit Commitment
Percentage of the total amount of the Letter of Credit requested by the
Borrower; provided, however, that no Revolving Credit Bank shall be required to
participate in any Letter of Credit to the extent that its participation therein
plus (x) such Revolving Credit Bank's participation in the aggregate of all
other Letters of Credit and Swing Line Loans Outstanding, and (y) such Revolving
Credit Bank's Revolving Credit Commitment Percentage of the amount of any
Revolving Credit Loans and Swing Line Loans Outstanding (including any amounts
drawn under any Letters of Credit and not yet reimbursed by the Borrower), would
exceed an amount equal to such Revolving Credit Bank's Revolving Credit
Commitment as then in effect. Each Revolving Credit Bank agrees with the Agent
that it will participate in each Letter of Credit issued by the Issuing Bank to
the extent required by the preceding sentence. No Revolving Credit Bank's
obligation to participate in a Letter of Credit shall be affected by any other
Revolving Credit Bank's failure to participate in the same or any other Letter
of Credit. The Existing Letters of Credit shall upon the Closing Date be deemed
to be a Letter of Credit under this Agreement. Within ten (10) Business Days of
the date of this Agreement, Borrower shall obtain replacement Letters of Credit
issued by KeyBank as Issuing Bank to replace the Existing Letters of Credit.
(b) The Borrower shall deliver to the Agent and the Issuing Bank at
least five (5) Business Days (or such shorter period as may be agreed to by the
Agent and the Issuing Bank in any particular instance) prior to the proposed
issuance date or amendment date of any Letter of Credit, a Letter of Credit
Application signed by the chief executive, chief financial or chief accounting
officer of the general partner of the Borrower in the form of Exhibit G hereto
(a "Letter of Credit Application") together with a certification by the chief
financial or chief accounting officer of the general partner of the Borrower and
the chief financial or chief accounting officer of the Trust that the Borrower
and Guarantors are and will be in compliance with all covenants under the Loan
Documents after giving effect to the issuance of such Letter of Credit. Subject
to the terms and conditions set forth in Section 2.9(a) and, unless the Issuing
Bank has received written notice from a Revolving Credit Bank that the
conditions precedent to such issuance of a Letter of Credit set forth in Section
11 have not been satisfied, the Issuing Bank will make the requested Letter of
Credit available at the Issuing Bank's principal office not later than 4:00 p.m.
(Cleveland time) on the issuance date, and, immediately upon the issuance of
each Letter of
26
Credit, each Revolving Credit Bank shall be deemed to participate in such Letter
of Credit to the extent set forth in Section 2.9(a). Not more than two (2)
Business Days after the issuance of any Letter of Credit, the Issuing Bank shall
notify each Revolving Credit Bank of the amount and other contents of such
Letter of Credit and of the date of issuance. The Issuing Bank shall notify each
Revolving Credit Bank at least monthly, or at the request of such Revolving
Credit Bank, of the amount of all Outstanding Letters of Credit.
(c) The chief executive, chief financial or chief accounting officer
of the general partner of the Borrower may request a Letter of Credit on behalf
of the Borrower. The Issuing Bank shall be entitled to rely conclusively on such
authorized officer's authority to request a Letter of Credit on behalf of the
Borrower until the Issuing Bank receives written notice to the contrary. The
Issuing Bank shall have no duty to verify the authenticity of the signature
appearing on any Letter of Credit Application.
(d) Each Letter of Credit Application shall be irrevocable and the
Borrower shall be bound to accept the issuance of a Letter of Credit in
accordance therewith.
(e) All Letters of Credit shall be stated to expire no more than
twelve (12) months from the date of issuance, provided that at the option of the
Issuing Bank such Letter of Credit may contain renewal options.
(f) In the event that any amount is drawn under a Letter of Credit by
the beneficiary thereof, the Issuing Bank shall notify the Agent thereof and the
Borrower shall reimburse the Issuing Bank on the same day of such draw,
including by having such amount drawn treated as an outstanding Revolving Credit
Base Rate Loan under this Agreement and the Agent shall promptly notify each
Revolving Credit Bank by telex, telecopy, telegram, telephone (confirmed in
writing) or other similar means of transmission, and each Revolving Credit Bank
shall promptly and unconditionally pay to the Agent, for the Issuing Bank's own
account, an amount equal to such Revolving Credit Bank's Revolving Credit
Commitment Percentage of such Letter of Credit (to the extent of the amount
drawn). If and to the extent any Revolving Credit Bank shall not make such
amount available on the Business Day on which such draw occurs, such Revolving
Credit Bank agrees to pay such amount to the Agent forthwith on demand, together
with interest thereon, for each day from the date on which such draw occurred
until the date on which such amount is paid to the Agent, at the Federal Funds
Effective Rate until three (3) days after the date on which the Agent gives
notice of such draw and at the Federal Funds Effective Rate plus 1% for each day
thereafter. Further, such Revolving Credit Bank shall be deemed to have assigned
any and all payments made of principal and interest on its Revolving Credit
Loans, amounts due with respect to its participations in Letters of Credit and
Swing Line Loans and any other amounts due to it hereunder to the Agent for the
account of the Issuing Bank to fund the amount of any drawn Letter of Credit
which such Revolving Credit Bank was required to fund pursuant to this Section
2.9(f) until such amount has been funded (as a result of such assignment or
otherwise). In the event of any such failure or refusal, the Revolving Credit
Banks not so failing or refusing shall be entitled to a priority position for
such amounts as provided in Section 12.5. The failure of any Revolving Credit
Bank to make funds available to the Agent in such amount shall not relieve any
other Revolving Credit Bank of its obligation hereunder to make funds available
to the Agent pursuant to this Section 2.9(f).
27
(g) The obligation of the Borrower to reimburse the Issuing Bank, and
of the Revolving Credit Banks to make payments to the Agent for the account of
the Issuing Bank with respect to Letters of Credit, shall be irrevocable and
shall not be subject to any qualification or exception whatsoever and shall be
made in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) Any lack of validity or enforceability of this Agreement, any
Letter of Credit or any of the other Loan Documents;
(ii) The existence of any claim, setoff, defense or other right
which the Borrower may have at any time against a beneficiary named in a Letter
of Credit or any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Agent, the Issuing Bank, any Bank or any
other Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions (including
any underlying transactions between the Borrower or any Subsidiary of the
Borrower and the beneficiary named in any Letter of Credit);
(iii) Any draft, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect in the absence of gross negligence or willful misconduct on the part of
the Agent;
(iv) The surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents;
(v) Payment by the Issuing Bank under any Letter of Credit
against presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit, provided that such
payment does not constitute gross negligence or willful misconduct of the
Issuing Bank;
(vi) Any other circumstance or happening whatsoever which is
similar to any of the foregoing; or
(vii) The occurrence of any Event of Default or Default.
(h) Whenever the Agent for the account of the Issuing Bank receives a
reimbursement payment from the Borrower on account of an amount drawn under a
Letter of Credit, as to which the Issuing Bank has received for its own account
any payment to acquire a participation interest therein from the Revolving
Credit Banks pursuant to Section 2.9(m), then the Agent shall promptly pay to
each Revolving Credit Bank which has funded its participation in such Letter of
Credit in accordance with this Section 2.9, in Dollars and in the kind of funds
so received, such Revolving Credit Bank's share of such reimbursement payment
based on its Revolving Credit Commitment Percentage of such Letter of Credit. If
any payment received by the Issuing Bank in respect of principal or interest on
any reimbursement obligation with respect to a Letter of Credit is required to
be returned by the Issuing Bank (including pursuant to any settlement entered
into by the Issuing Bank in its discretion), each Revolving Credit Bank that has
acquired a participation interest in such Letter of Credit shall pay to the
Issuing Bank its
28
Revolving Credit Commitment Percentage thereof on demand of the Agent, plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Effective Rate. The
Agent will make such demand upon the request of the Issuing Bank. The
obligations of the Revolving Credit Banks under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.
(i) The Borrower shall pay to the Agent for the account of the
Revolving Credit Banks (based on their respective Revolving Credit Commitment
Percentage of Letters of Credit), a fee equal to the Applicable Margin
(expressed as a per annum rate) for Revolving Credit LIBOR Rate Loans then in
effect on the face amount of the Letter of Credit calculated quarterly and
payable in arrears on the first (1st) day of each January, April, July and
October during the term of such Letter of Credit, with a final payment on the
expiry of termination thereof. The fee for any Letter of Credit with a term of
less than one year (or part of a year) shall be calculated on a pro-rata basis.
In addition, the Borrower shall pay the standard service charges for Letters of
Credit issued from time to time by the Issuing Bank including an issuance fee of
$150.00 for each Letter of Credit. Such additional fees shall be paid to the
Issuing Bank for its own account. All such fees shall be payable when due in
immediately available funds and shall be nonrefundable.
(j) In addition to amounts payable as elsewhere provided in this
Section 2.9, the Borrower hereby agrees to pay, and to protect, indemnify and
save harmless the Agent and the Banks from and against, any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal counsel) which the
Agent and the Banks may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of or participations in the Letters of Credit,
other than as a result of the gross negligence or willful misconduct of the
Agent or any Bank as determined by a court of competent jurisdiction, or (ii)
the failure of the Issuing Bank to honor a drawing under any Letter of Credit as
a result of any act or omission, whether rightful or wrongful, of any present or
future government or governmental authority (all such acts or omissions herein
called "Government Acts"). The obligations of the Borrower under this Section
2.9 shall survive the termination of this Agreement and the discharge of the
Borrower's other obligations hereunder, including the Obligations.
(k) As between (i) the Borrower and (ii) the Agent and the Banks, the
Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by the Issuing Bank by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Agent nor any Bank shall be responsible: (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of such Letters of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the right or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) for failure of the beneficiary of any Letter
of Credit to comply fully with conditions required in order to draw upon such
Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any
29
loss or delay in the transmission or otherwise of any document required in order
to make a drawing under any Letter of Credit or of the proceeds thereof; (vii)
for the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the Agent or any Bank,
including, without limitation, any Government Acts; provided, however, that the
Issuing Bank will be responsible for grossly negligent actions or willful
misconduct on its part. None of the above shall affect, impair, or prevent the
vesting of any of the Agent's or any Bank's rights or powers hereunder.
(l) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuing
Bank under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith shall not put the Agent
or any Bank under any resulting liability to the Borrower other than as a result
of gross negligence or willful misconduct by the Issuing Bank as determined by a
court of competent jurisdiction.
(m) If after the issuance of a Letter of Credit, but prior to the
funding of any portion thereof by a Revolving Credit Bank, for any reason a
drawing under a Letter of Credit cannot be refinanced as a Revolving Credit
Loan, each Revolving Credit Bank will, on the date such Revolving Credit Loan
pursuant to Section 2.9(f) was to have been made, purchase an undivided
participating interest in the Letter of Credit in an amount equal to its
Revolving Credit Commitment Percentage of the amount of such Letter of Credit.
Each Revolving Credit Bank will immediately transfer to the Agent for the
account of the Issuing Bank in immediately available funds the amount of its
participation and upon receipt thereof the Issuing Bank will deliver to such
Revolving Credit Bank a Letter of Credit participation certificate dated the
date of receipt of such funds and in such amount.
(n) If any Letter of Credit shall be outstanding at the Revolving
Credit Maturity Date, the Borrower shall immediately cash collateralize such
Letters of Credit or obtain replacement letters of credit for such Letter of
Credit (and return to Issuing Bank such outstanding Letters of Credit), all in a
manner satisfactory to the Issuing Bank.
(o) Increase of Commitment. In the event that the Total Revolving
Credit Commitment is increased pursuant to Section 2.8, then the Letter of
Credit Sublimit shall increase by an amount equal to ten percent (10%) of the
increase in the Total Revolving Credit Commitment (rounded to the next lowest
$100,000), subject to the terms hereof; provided that in no event shall the
Letter of Credit Sublimit exceed $35,000,000.00.
SECTION 2.10. SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other Revolving Credit Banks set forth in this Section 2.10, to make loans (each
such loan, a "Swing Line Loan") to the Borrower from time to time on any
Business Day prior to the Revolving Credit Maturity Date (or, if earlier, the
date of termination of Revolving Credit Commitments pursuant to Section 12.3
hereof) in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Revolving
30
Credit Commitment Percentage of the Outstanding Revolving Credit Loans and
Letters of Credit Outstanding (including any amounts drawn thereunder and not
yet reimbursed by the Borrower) of the Revolving Credit Bank acting as Swing
Line Lender, may exceed the amount of such Revolving Credit Bank's Revolving
Credit Commitment; provided, however, that after giving effect to any Swing Line
Loan, (i) the Outstanding Revolving Credit Loans, Letters of Credit Outstanding
(including any amounts drawn thereunder and not yet reimbursed by the Borrower)
and Swing Line Loans Outstanding shall not exceed the Total Revolving Credit
Commitment, and (ii) the aggregate Outstanding Revolving Credit Loans of any
Revolving Credit Bank (other than the Swing Line Lender), plus such Revolving
Credit Bank's Revolving Credit Commitment Percentage of the Letters of Credit
Outstanding (including any amounts drawn thereunder and not yet reimbursed by
the Borrower), plus such Revolving Credit Bank's Revolving Credit Commitment
Percentage of the amount of all Swing Line Loans Outstanding shall not exceed
such Revolving Credit Bank's Revolving Credit Commitment; provided, further,
that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any Outstanding Swing Line Loan; and provided, further, that in all events no
Default or Event of Default shall have occurred and be continuing. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.10, prepay under Section 3 hereof, and
reborrow under this Section 2.10. Each Swing Line Loan shall be a Revolving
Credit Base Rate Loan. Immediately upon the making of a Swing Line Loan, each
Revolving Credit Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Revolving Credit Bank's Revolving Credit Commitment Percentage times the amount
of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the Agent, which
may be given by telephone. Each such notice must be received by the Swing Line
Lender and the Agent not later than 1:00 p.m. (Cleveland time) on the requested
borrowing date, and shall specify (i) the amount to be borrowed, which shall be
a minimum of $500,000, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery
to the Swing Line Lender and the Agent of a written Swing Line Loan Notice,
appropriately completed and signed by the Borrower. Promptly after receipt by
the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Agent (by telephone or in writing) that the Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Agent (including at the request of any Revolving Credit Bank) prior to
2:00 p.m. (Cleveland time) on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of Section
2.10(a), or (B) that one or more of the applicable conditions specified in
Section 11 is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. (Cleveland time) on
the borrowing date specified in such Swing Line Loan Notice, make the amount of
its Swing Line Loan available to the Borrower at its office by crediting the
account of the Borrower on the books of the Swing Line Lender in immediately
available funds.
31
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Revolving Credit Bank make a Revolving Credit Base Rate Loan in an amount equal
to such Revolving Credit Bank's Revolving Credit Commitment Percentage of the
amount of Swing Line Loans then Outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Loan Request for purposes
hereof) and in accordance with the requirements of Section 2.5, without regard
to the minimum and multiples specified therein for the principal amount of
Revolving Credit Base Rate Loans, but subject to the unutilized portion of the
Total Revolving Credit Commitments and the conditions set forth in Section 11.
The Swing Line Lender shall furnish the Borrower with a copy of the applicable
Loan Request promptly after delivering such notice to the Agent. Each Revolving
Credit Bank shall make an amount equal to its Revolving Credit Commitment
Percentage of the amount specified in such Loan Request available to the Agent
in immediately available funds for the account of the Swing Line Lender at the
Agent's Head Office not later than 1:00 p.m. (Cleveland time) on the day
specified in such Loan Request, whereupon, subject to Section 2.10(c)(ii), each
Revolving Credit Bank that so makes funds available shall be deemed to have made
a Revolving Credit Base Rate Loan to the Borrower in such amount. The Agent
shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced
by such a Revolving Credit Loan in accordance with Section 2.10(c)(i), the
request for Base Rate Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that each of the
Revolving Credit Banks fund its risk participation in the relevant Swing Line
Loan and each Revolving Credit Bank's payment to the Agent for the account of
the Swing Line Lender pursuant to Section 2.10(c)(i) shall be deemed payment in
respect of such participation.
(iii) If any Revolving Credit Bank fails to make available to the
Agent for the account of the Swing Line Lender any amount required to be paid by
such Revolving Credit Bank pursuant to the foregoing provisions of this Section
2.10(c) by the time specified in Section 2.10(c)(i), the Swing Line Lender shall
be entitled to recover from such Revolving Credit Bank (acting through the
Agent), on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is immediately
available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Effective Rate and a rate determined by the Swing Line Lender
in accordance with banking industry rules on interbank compensation. A
certificate of the Swing Line Lender submitted to any Revolving Credit Bank
(through the Agent) with respect to any amounts owing under this clause (iii)
shall be conclusive absent manifest error.
(iv) Each Revolving Credit Bank's obligation to make Revolving
Credit Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.10(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Revolving Credit Bank may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default or Event of Default,
or
32
(C) any other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Revolving Credit Bank's obligation
to make Revolving Credit Loans pursuant to this Section 2.10(c) is subject to
the conditions set forth in Section 11. No such funding of risk participations
shall relieve or otherwise impair the obligation of the Borrower to repay Swing
Line Loans, together with interest as provided herein.
(v) The Borrower shall repay each Swing Line Loan on the earlier
to occur of (i) the date three (3) Business Days after such Swing Line Loan is
made and (ii) the Revolving Credit Maturity Date.
(d) Repayment of Participations.
(i) At any time after any Revolving Credit Bank has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line Lender
will distribute to such Revolving Credit Bank its Revolving Credit Commitment
Percentage of such payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit
Bank's risk participation was funded) in the same funds as those received by the
Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Revolving Credit Bank funds its Revolving Credit Base Rate
Loan or risk participation pursuant to this Section 2.10 to refinance such
Revolving Credit Bank's Revolving Credit Commitment Percentage of any Swing Line
Loan, interest in respect of such Revolving Credit Commitment Percentage shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
(g) Swing Line Note. At the Swing Line Lender's option, the Swing Line
Loans shall be evidenced by a separate promissory note of the Borrower in
substantially the form of Exhibit C hereto (the "Swing Line Note"), dated the
date of this Agreement and completed with appropriate insertions. The Swing Line
Note shall be payable to the order of the Swing Line Lender in the principal
face amount equal to the Swing Line Loan and shall be subject to mandatory
prepayment in the amounts and under the circumstances set forth in Section 3 of
this Agreement, and may be prepaid in whole or from time to time in part, all as
set forth in Section 3 of this Agreement. The Borrower irrevocably authorizes
the Swing Line Lender to make or cause to be made, at or about the time of the
Drawdown Date of any Swing Line Loan or at the time of receipt of any payment of
principal thereof, an appropriate notation on the Swing Line Lender's Record
reflecting the making of such Swing Line Loan or (as the case may be) the
receipt of such payment. The amount of the Swing Line Loans Outstanding set
forth on the Swing Line Lender's Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to the Swing Line Lender, but the
failure to record, or any error in so recording, any such amount on the Swing
Line Lender's Record shall not limit or otherwise affect the obligations of the
33
Borrower hereunder or under the Swing Line Note to make payments of principal of
or interest on any Swing Line Note when due.
(h) Increase of Commitment. In the event that the Total Revolving
Credit Commitment is increased pursuant to Section 2.8, then the Swing Line
Sublimit shall increase by an amount equal to ten percent (10%) of the increase
in the Total Revolving Credit Commitment (rounded to the next lowest $100,000),
subject to the terms hereof; provided that in no event shall the Swing Line
Sublimit exceed $25,000,000.00. As a condition to such increase, Borrower shall
deliver to the Swing Line Lender a replacement Swing Line Note, and execute and
deliver such other amendments to the Loan Documents as may be reasonably
required by Swing Line Lender or Agent (it being acknowledged that the
requirements of this sentence may be satisfied in connection with and as a part
of the satisfaction of the requirements of Section 2.8(b)(iv) with respect to
the corresponding increase of the Total Revolving Credit Commitment).
(i) Swing Line Lender. The Swing Line Lender shall be deemed a
"Revolving Credit Bank" for all purposes under this Agreement.
SECTION 2.11. EVIDENCE OF DEBT. The indebtedness of the Borrower resulting
from the Loans made by each Bank from time to time shall be evidenced by one or
more accounts or records maintained by such Bank and the Agent in the ordinary
course of business, including, without limitation, the amounts of principal and
interest payable and paid to such Bank from time to time hereunder. The Borrower
hereby irrevocably authorizes Agent and the Banks 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 thereof, an appropriate notation on Agent's and the Bank's
records reflecting the making of such Loan or (as the case may be) the receipt
of such payment. The Agent shall maintain accounts or records in accordance with
its usual practice in which it shall record: (i) the date and the amount of each
Loan made hereunder, the Type of Loan and, if appropriate, the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Bank hereunder, and (iii)
the amount of any sum received by the Agent hereunder from the Borrower and each
Bank's share thereof. The accounts or records maintained by the Agent and each
Bank shall be prima facie evidence of the existence and amounts of the
Obligations recorded therein and shall be conclusive absent manifest error of
the amount of the Loans made by the Banks to the Borrower and the interest and
payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder or
under the Notes, if any, to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Bank and the accounts and records of the Agent in respect of
such matters, the accounts and records of the Agent shall control in the absence
of manifest error. The Borrower agrees that upon the request of any Bank made
through the Agent (whether for purposes of pledge, enforcement or otherwise),
the Borrower shall promptly execute and deliver to such Bank (through the Agent)
a Revolving Credit Note, a Term Loan Note and/or a Swing Line Loan Note, as
applicable, payable to the order of such Bank, which shall evidence such Bank's
Loans in addition to such accounts or records. Each Bank may attach schedules to
its Notes and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto. All references to Notes
in the Loan Documents shall mean Notes, if any, to the extent issued hereunder.
34
SECTION 3. REPAYMENT OF THE LOANS.
SECTION 3.1. STATED MATURITY. The Borrower promises to pay on the Revolving
Credit Maturity Date and there shall become absolutely due and payable on the
Revolving Credit Maturity Date all of the Revolving Credit Loans and Swing Line
Loans outstanding on such date, together with any and all accrued and unpaid
interest thereon. The Borrower promises to pay on the Term Loan Maturity Date
and there shall become absolutely due and payable on the Term Loan Maturity Date
all of the Term Loans Outstanding on such date, together with any and all
accrued and unpaid interest thereon.
SECTION 3.2. MANDATORY PREPAYMENTS. If at any time the sum of the aggregate
of the Outstanding Revolving Credit Loans, the Outstanding Swing Line Loans and
the Outstanding Letters of Credit exceeds the Total Revolving Credit Commitment,
the Borrower shall immediately upon demand pay the amount of such excess to the
Agent for the respective accounts of the Revolving Credit Banks for application
to the Revolving Credit Loans, except that the amount of any Swing Line Loan
shall be paid solely to the Swing Line Lender.
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 if any
full or partial prepayment of the outstanding amount of any LIBOR Rate Loan is
made other than on the last day of the Interest Period relating thereto, such
prepayment shall be accompanied by the payment of any amounts due pursuant to
Section 4.8. 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; provided that no
prior notice shall be required in connection with a prepayment of Swing Line
Loans.
SECTION 3.4. PARTIAL PREPAYMENTS. Each partial prepayment of the Loans
under Section 3.2 and Section 3.3 shall be in a minimum amount 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 any
Outstanding Swing Line Loans, then to the principal of the Revolving Credit
Loans and then to the principal of the Term Loans, and within each category,
first to the principal of the Base Rate Loans and then to the principal of the
LIBOR Rate Loans.
SECTION 3.5. EFFECT OF PREPAYMENTS. Amounts of the Revolving Credit Loans
prepaid under Section 3.2 or Section 3.3 may be reborrowed as provided in
Section 2. Any portion of the Term Loans that is prepaid may not be reborrowed.
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 Revolving Credit Loans or Term Loans to a Revolving Credit Loan or
Term Loan, respectively, of another Type and such Revolving Credit Loan or Term
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
35
Agent at least one (1) Business Day's 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
three (3) 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 (A) no more than twelve (12) Revolving Credit LIBOR
Rate Loans outstanding at any one time and (B) no more than eight (8) Term 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 Revolving Credit Loans or Term
Loans of any Type may be converted as provided herein, provided that no partial
conversion shall result in a Revolving Credit Base Rate Loan or a Term Base Rate
Loan in an aggregate principal amount of less than $500,000 or a Revolving
Credit LIBOR Rate Loan or a Term 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 Revolving Credit Loan or Term Loan may be continued as such
Type upon the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the terms of Section 4.1(a); provided that no
LIBOR Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the Interest Period relating thereto ending during
the continuance of any Default or Event of Default.
(c) In the event that the Borrower does not notify the Agent of its
election hereunder with respect to any Loan to it, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
SECTION 4.2. COMMITMENT AND SYNDICATION FEE. The Borrower shall pay to
KeyBank and Arranger certain fees for services rendered or to be rendered in
connection with the Loan as provided pursuant to the Agreement Regarding Fees
dated of even date herewith between the Borrower and KeyBank.
SECTION 4.3. AGENT'S FEE. The Borrower will pay to Agent, for the Agent's
own account, an annual Agent's Fee calculated at the rate, and payable at such
times as are, set forth in the Agreement Regarding Fees referred to in Section
4.2.
SECTION 4.4. FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, unused facility fees, Agent's
fees, Letter of Credit fees, closing fees and any other amounts due hereunder or
under any of the other Loan Documents shall be made to the Agent, for the
respective accounts of the Banks and the Agent, as the case may be, at the
Agent's Head Office, not later than 1:00 p.m. (Cleveland time)
36
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.
(c) Each Bank organized under the laws of a jurisdiction outside the
United States shall provide the Borrower with such duly executed form(s) or
statement(s) which may, from time to time, be prescribed by law and, which,
pursuant to applicable provisions of (i) an income tax treaty between the United
States and the country of residence of such Bank, (ii) the Code, or (iii) any
applicable rules or regulations in effect under (i) or (ii) above, indicates the
withholding status of such Bank; provided that nothing herein (including without
limitation the failure or inability to provide such form or statement) shall
relieve the Borrower of its obligations under Section 4.4(b). Each Bank shall
deliver photocopies of such forms or other appropriate certifications on or
before the date that any such form shall expire or become obsolete and after the
occurrence of any event requiring a change in the most recent form delivered to
the Borrower for the Agent. Any Bank which sells a participation in any of its
Commitments shall be required to obtain such forms from any participant, and
shall be required to withhold any amounts from such participant as required by
the Code or Treasury Regulations issued pursuant thereto.
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.
37
SECTION 4.6. SUSPENSION OF LIBOR RATE LOANS. 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, or the Agent
shall reasonably determine that the LIBOR Rate will not adequately and fairly
reflect the cost to the Banks of making or maintaining LIBOR Rate Loans for such
Interest Period, the Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower and the Banks) to the
Borrower and the Banks. In such event (a) any Loan Request with respect to LIBOR
Rate Loans shall be automatically withdrawn and shall be deemed a request for
Base Rate Loans and (b) each LIBOR Rate Loan will automatically, on the last day
of the then current Interest Period thereof, become a Base Rate Loan, and the
obligations of the Banks to make LIBOR Rate Loans shall be suspended until the
Agent determines that the circumstances giving rise to such suspension no longer
exist, whereupon the Agent shall so notify the Borrower and the Banks.
SECTION 4.7. ILLEGALITY. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the interpretation
or application thereof shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over a Bank or its LIBOR Lending
Office shall assert that it is unlawful, for any Bank to make or maintain LIBOR
Rate Loans, such Bank shall forthwith give notice of such circumstances to the
Agent and the Borrower and thereupon (a) the commitment of the Banks to make
LIBOR Rate Loans or convert Loans of another type to LIBOR Rate Loans shall
forthwith be suspended and (b) the LIBOR Rate Loans then outstanding shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law.
SECTION 4.8. ADDITIONAL INTEREST. If any LIBOR Rate Loan or any portion
thereof is repaid, reapportioned as a result of an increase in the Total
Revolving Credit Commitment as contemplated in Section 2.8(c), or converted to a
Base Rate Loan for any reason on a date which is prior to the last day of the
Interest Period applicable to such LIBOR Rate Loan, or if repayment of the Loans
has been accelerated as provided in Section 12.1, the Borrower will pay to the
Agent upon demand (and, if any payment is required as a result of an increase in
the Total Revolving Credit Commitment, prior to the effectiveness of any such
increase) for the account of the Banks in accordance with their respective
Commitment Percentages, in addition to any amounts of interest otherwise payable
hereunder, any amounts required to compensate the Banks for any losses, costs or
expenses which may reasonably be incurred as a result of such payment,
reapportionment or conversion.
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:
38
(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment, the Loans or the
Letters of Credit (other than taxes based upon or measured by the income or
profits or gross receipts of such Bank or the Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or the
interest on any Loans or any other amounts payable to any Bank under this
Agreement or the other Loan Documents, or
(c) impose or increase or render applicable any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or deposits in
or for the account of, or loans by, or commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, the Letters of Credit, such Bank's Commitment, or any class of loans or
commitments of which any of the Loans or such Bank's Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding, issuing,
renewing, extending or maintaining any of the Loans, the Letters of Credit or
such Bank's Commitment, or
(ii) to reduce the amount of principal, interest or other amount
payable to such Bank or the Agent hereunder on account of such Bank's Commitment
or any of the Loans or the Letters of Credit, or
(iii) to require such Bank or the Agent to make any payment or to
forego any interest or other sum payable hereunder, the amount of which payment
or foregone interest or other sum is calculated by reference to the gross amount
of any sum receivable or deemed received by such Bank or the Agent from the
Borrower hereunder,
then, and in each such case, the Borrower will within fifteen (15) days after
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent such additional amounts as such Bank or the Agent shall determine
in good faith to be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or other sum. Each Bank
and the Agent in determining such amounts may use any reasonable averaging and
attribution methods, generally applied by such Bank or the Agent.
SECTION 4.10. CAPITAL ADEQUACY. If after the date hereof any Bank
determines that (a) the adoption of or change in any law, rule, regulation or
guideline regarding capital requirements for banks or bank holding companies or
any change in the interpretation or application thereof by any governmental
authority charged with the administration thereof, or (b) compliance by such
Bank or its parent bank holding company with any guideline, request or directive
of any such entity regarding capital adequacy (whether or not having the force
of law), has the effect of reducing the return on such Bank's or such holding
company's capital as a consequence of such Bank's commitment to make Loans or
participate in Swing Line Loans or Letters of Credit
39
hereunder to a level below that which such Bank or holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's or such holding company's then existing policies with respect to
capital adequacy and assuming the full utilization of such entity's capital) by
any amount deemed by such Bank to be material, then such Bank may notify the
Borrower thereof. The Borrower agrees to pay to such Bank the amount of such
reduction in the return on capital as and when such reduction is determined,
upon presentation by such Bank of a statement of the amount and setting forth
such Bank's calculation thereof. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
SECTION 4.11. INDEMNITY OF BORROWER. The Borrower agrees to indemnify each
Bank and to hold each Bank harmless from and against any loss, cost or expense
that such Bank may sustain or incur as a consequence of (a) default by the
Borrower in payment of the principal amount of or any interest on any LIBOR Rate
Loans as and when due and payable, including any such loss or expense arising
from interest or fees payable by such Bank to lenders of funds obtained by it in
order to maintain its LIBOR Rate Loans, or (b) default by the Borrower in making
a borrowing or conversion after the Borrower has given (or is deemed to have
given) a Loan Request or a Conversion Request.
SECTION 4.12. INTEREST ON OVERDUE AMOUNTS; LATE CHARGE. Overdue principal
on the Loans and all other overdue amounts payable hereunder or under any of the
other Loan Documents (other than interest on the Loans) shall, following the
expiration of any applicable cure period expressly provided for in this
Agreement, bear interest payable on demand at a rate per annum equal to two
percent (2.0%) above the rate that would otherwise be applicable at such time
until such amount shall be paid in full (after as well as before judgment).
Overdue interest on the Loans shall, following the expiration of any applicable
cure period expressly provided for in this Agreement, bear interest payable on
demand at a rate equal to the lesser of (i) a per annum rate equal to two
percent (2.0%) above the rate that would otherwise be applicable at such time or
(ii) the maximum annual rate of interest permitted by applicable law until such
amount shall be paid in full (after as well as before judgment), provided that
in no event shall such rate exceed ten percent (10%) per annum. 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. CERTIFICATE. A certificate setting forth any amounts payable
pursuant to Section 4.8, Section 4.9, Section 4.10, Section 4.11 or Section 4.12
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 4.14. LIMITATION ON INTEREST. Notwithstanding anything in this
Agreement to the contrary, all agreements between the Borrower and the Banks and
the Agent, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of
acceleration of the maturity of any of the Obligations or otherwise, shall the
interest contracted for, charged or received by the Banks exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Banks in excess of the maximum lawful
amount, the interest payable to the Banks shall be reduced to the maximum amount
permitted under
40
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 4.15. EXTENSION OF REVOLVING CREDIT MATURITY DATE.
(a) Provided that no Default or Event of Default shall have occurred
and be continuing, the Borrower shall have the option, to be exercised by giving
written notice to the Agent in the form of Exhibit H hereto not more than one
hundred twenty (120) days and not less than sixty (60) days prior to the initial
scheduled Revolving Credit Maturity Date (an "Extension Request"), subject to
the terms and conditions set forth in this Agreement, to extend the Revolving
Credit Maturity Date by one (1) year to December 13, 2009. The request by the
Borrower for extension of the Revolving Credit Maturity Date shall constitute a
representation and warranty by the Borrower that all of the conditions set forth
in this Section shall have been satisfied on the date of such request.
(b) The obligations of the Agent and the Revolving Credit Banks to
extend the Revolving Credit Maturity Date as provided in Section 4.15(a) shall
be subject to the satisfaction of the following conditions precedent on the then
effective Revolving Credit Maturity Date (without regard to such extension
request):
(i) Payment of Extension Fee. The Borrower shall pay to the Agent
on or before the then effective Revolving Credit Maturity Date for the pro rata
account of the Revolving Credit Banks in accordance with their respective
Revolving Credit Commitment Percentages an extension fee equal to .20% of the
then Total Revolving Credit Commitment, which fee shall, when paid, be fully
earned and non-refundable under any circumstances.
(ii) No Default. On the date the Extension Request is given there
shall exist no Event of Default, and on the Revolving Credit Maturity Date (as
determined without regard to such extension) there shall exist no Default or
Event of Default.
(iii) Representations and Warranties. The representations and
warranties made by the Borrower, the Guarantors or any of their respective
Subsidiaries in the Loan Documents or otherwise made by or on behalf of such
Persons 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 Revolving Credit Maturity Date (as
determined without regard to such extension), 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
41
materially adverse, except to the extent that such representations and
warranties relate expressly to an earlier date, and except as disclosed to the
Agent and the Revolving Credit Banks in writing and approved by the Agent and
the Majority Revolving Credit Banks in writing.
(iv) Additional Documents. The Borrower and Guarantors shall also
execute and deliver to Agent and the Banks such additional documents,
instruments and certifications as the Agent may reasonably require.
(c) In the event that the Revolving Credit Maturity Date has been
extended as provided in Section 4.15(a) and (b), then provided that no Default
or Event of Default shall have occurred and be continuing, the Borrower shall
have the option to be exercised by giving an Extension Request to the Agent not
more than one hundred twenty (120) days and not less than sixty (60) days prior
to the scheduled Revolving Credit Maturity Date, subject to the terms and
conditions set forth in this Agreement, to extend the Revolving Credit Maturity
Date by one (1) additional year to December 13, 2010. The request by the
Borrower for extension of the Revolving Credit Maturity Date shall constitute a
representation and warranty by the Borrower that all of the conditions set forth
in this Section shall have been satisfied on the date of such request. The
obligation of the Agent and the Revolving Credit Banks to extend the Revolving
Credit Maturity Date as provided in this Section 4.15(c) shall be subject to the
satisfaction again of each and every condition set forth in Section 4.15(a) and
(b).
(d) The Agent shall notify each of the Banks in the event that the
Revolving Credit Maturity Date is extended as provided in this Section 4.15.
SECTION 5. UNSECURED OBLIGATION; GUARANTY.
SECTION 5.1. COLLATERAL. The Banks have agreed to make the Loans to the
Borrower and issue Letters of Credit for the account of Borrower on an unsecured
basis. Notwithstanding the foregoing, the Obligations shall be guaranteed
pursuant to the terms of the Guaranty.
SECTION 5.2. NEW GUARANTORS.
(a) Requirement to Become Guarantor. In the event that any Wholly
Owned Subsidiary of Borrower or the Trust, whether presently existing or
hereafter formed or acquired, which is not a Guarantor at such time, shall own
or be the lessee under a Ground Lease of an Unencumbered Borrowing Base Property
or otherwise have a leasehold or other interest in an Unencumbered Borrowing
Base Property, then Borrower shall cause such Subsidiary to execute and deliver
to the Agent each of the following items, each in form and substance
satisfactory to the Agent: (i) a Joinder Agreement and (ii) the items that would
have been delivered under Section 10.2 through Section 10.5 if such Subsidiary
had been a Guarantor as of the date hereof. The organizational agreements of
each such Subsidiary created after the Closing Date shall specifically authorize
each such Subsidiary to guarantee the Obligations.
(b) Release of a Guarantor. The Borrower may request in writing that
the Agent release, and upon receipt of such request the Agent shall release
(subject to the terms hereof), a Guarantor from the Guaranty so long as: (i) no
Default or Event of Default shall then be in existence or would occur as a
result of such release; (ii) the Agent shall have received such written request
at least ten (10) Business Days prior to the requested date of release;
42
(iii) Borrower shall deliver to Agent evidence reasonably satisfactory to Agent
either that (A) the Trust and/or the Borrower has disposed of or simultaneously
with such release will dispose of its entire interest in such Guarantor or that
all of the assets of such Guarantor will be disposed of in compliance with the
terms of this Agreement, and if such transaction involves the disposition by
such Guarantor of all of its assets, the net cash proceeds from such disposition
are being distributed to the Trust and/or the Borrower in connection with such
disposition, (B) such Guarantor will be the borrower with respect to Secured
Indebtedness permitted under this Agreement, which Indebtedness will be secured
by a Lien on the assets of such Guarantor, or (C) the Trust and/or the Borrower
has contributed or simultaneously with such release will contribute its entire
direct or indirect interest in such Guarantor to an Unconsolidated Affiliate or
a Subsidiary which is not a Wholly Owned Subsidiary or that such Guarantor will
be contributing all of its assets to an Unconsolidated Affiliate or a Subsidiary
which is not a Wholly Owned Subsidiary in compliance with the terms of this
Agreement. Delivery by the Borrower to the Agent of any such request for a
release shall constitute a representation by the Borrower that the matters set
forth in the preceding sentence (both as of the date of the giving of such
request and as of the date of the effectiveness of such request) are true and
correct with respect to such request. Notwithstanding the foregoing, the
foregoing provisions shall not apply to the Trust, which may only be released
upon the written approval of Agent and all of the Banks.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE BORROWER.
The Borrower and the Trust, 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. The Trust 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 Subsidiary Guarantor is a
limited partnership, limited liability company or other entity duly organized
and validly existing and in good standing under the laws of its respective State
of organization. Each of the Borrower and the Guarantors (i) has all requisite
power to own its respective property and conduct its respective business as now
conducted and as presently contemplated, and (ii) as to the Borrower and the
Guarantors are in good standing as a foreign entity and is duly authorized to do
business in the jurisdictions where the Unencumbered Borrowing Base Properties
are located and 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. The Trust is a real estate
investment trust in full compliance with and entitled to the benefits of Section
856 of the Code, and has elected to be treated as a real estate investment trust
pursuant to the Code.
43
(b) Subsidiaries. Each of the Subsidiaries of the Borrower and the
Trust (i) is a corporation, limited partnership, limited liability company or
trust duly organized under the laws of its State of organization and is validly
existing and in good standing under the laws thereof, (ii) has all requisite
power to own its property and conduct its business as now conducted and as
presently contemplated and (iii) is in good standing and is duly authorized to
do business in each jurisdiction where Real Estate held by it is located and in
each other jurisdiction where a failure to be so qualified could have a
materially adverse effect on the business, assets or financial condition of the
Borrower, the Trust, or such Subsidiary.
(c) Authorization. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower, the Guarantors or
any of their respective Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (i) are within the authority of
such Person, (ii) have been duly authorized by all necessary proceedings on the
part of such Person, (iii) do not and will not conflict with or result in any
breach or contravention of any provision of law, statute, rule or regulation to
which such Person is subject or any judgment, order, writ, injunction, license
or permit applicable to such Person, (iv) do not and will not conflict with or
constitute a default (whether with the passage of time or the giving of notice,
or both) under any provision of the articles of incorporation, partnership
agreement, declaration of trust or other charter documents or bylaws of, or any
agreement or other instrument binding upon, such Person or any of its
properties, and (v) do not and will not result in or require the imposition of
any lien or other encumbrance on any of the properties, assets or rights of such
Person.
(d) Enforceability. The execution and delivery of this Agreement and
the other Loan Documents to which the Borrower, the Guarantors 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 Guarantors 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.
SECTION 6.3. TITLE TO PROPERTIES; LEASE. The Borrower, the Guarantors and
their respective Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and the Trust 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 Trust and its respective
Subsidiaries as of the Balance Sheet
44
Date, and (b) certain other financial information relating to the Borrower, the
Guarantors, the Unencumbered Borrowing Base Properties and the Real Estate. Such
balance sheet and other information have been prepared in accordance with
generally accepted accounting principles and fairly present the financial
condition of the Borrower, the Guarantors and their respective Subsidiaries as
of such dates and the results of the operations of the Borrower, the Guarantors
and their respective Subsidiaries for such periods. There are no liabilities,
contingent or otherwise, of the Borrower, the Guarantors 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 Guarantors, and their respective Subsidiaries taken as a whole
as shown on or reflected in the consolidated balance sheet of the Borrower and
the Trust 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. The Borrower hereby discloses that it is in the process of marketing the
properties described on Schedule 6.5 hereto.
SECTION 6.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower, the
Guarantors and their respective Subsidiaries possess all franchises, patents,
copyrights, trademarks, trade names, service marks, 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 Guarantors 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
Guarantors to pay and perform the Obligations in the manner contemplated by this
Agreement and the other Loan Documents. Except as set forth on Schedule 6.7, as
of the date of this Agreement, there are no judgments outstanding against or
adversely affecting any of the Borrower, the Guarantors or any of their
respective Subsidiaries.
SECTION 6.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrower,
the Guarantors 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 Guarantors 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.
45
SECTION 6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrower, the Guarantors 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 Guarantors 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. Except as noted in item 5 on Schedule
6.7 hereto, 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 Guarantors or any of their respective Subsidiaries is or after
giving effect to any Loan will be, subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940 or to any federal or state statute or regulation limiting
its ability to incur indebtedness for borrowed money.
SECTION 6.13. ABSENCE OF UCC FINANCING STATEMENTS, ETC. Except with respect
to Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry, or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
or security title in, any property of the Borrower, the Guarantors or any of
their respective Subsidiaries or rights thereunder.
SECTION 6.14. [INTENTIONALLY OMITTED].
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
Guarantors or any of their respective Subsidiaries is a party to any transaction
with either or both of the Borrower, any 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.
46
SECTION 6.16. EMPLOYEE BENEFIT PLANS. The Borrower, the Guarantors and each
ERISA Affiliate have fulfilled their respective 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 Guarantors 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.
Neither the Borrower nor any Guarantor is engaged, and neither the Borrower nor
any Guarantor will engage, principally or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying any
"margin security" or "margin stock" as such terms are used in Regulations T, U
and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
220, 221 and 224.
SECTION 6.18. ENVIRONMENTAL COMPLIANCE. The Borrower and the Trust each has
taken all commercially reasonable steps to investigate the past and present
conditions and usage of the Real Estate and the operations conducted thereon
and, based upon such investigation makes the following representations and
warranties.
(a) With respect to the Unencumbered Borrowing Base Properties, and to
the best of the Borrower's and the Trust's knowledge with respect to any other
Real Estate, none of the Borrower, the Guarantors 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 any state or local statute, regulation,
ordinance, order or decree relating to the environment (hereinafter
"Environmental Laws"), which violation involves the Real Estate and would have a
material adverse effect on the business, assets or financial condition of the
Borrower, any Guarantor or any of their respective Subsidiaries.
(b) None of the Borrower, the Guarantors 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
47
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, any 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 Unencumbered Borrowing Base Properties, and to
the best of the Borrower's and the Trust's knowledge with respect to any other
Real Estate, except as set forth on Schedule 6.18 hereto: (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 Real
Estate; (ii) in the course of any activities conducted by either the Borrower,
the Guarantors, 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
Real Estate, or, to the best of the Borrower's or the Trust's knowledge, on,
upon, into or from the other properties of the Borrower, the Guarantors 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 Trust'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 Trust's knowledge, operating in compliance with
such permits and applicable Environmental Laws.
(d) None of the Borrower, the Guarantors, their respective
Subsidiaries, or the 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
48
of an environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby.
SECTION 6.19. SUBSIDIARIES AND UNCONSOLIDATED AFFILIATES. Schedule 6.19
sets forth all of the Subsidiaries and Unconsolidated Affiliates of the Borrower
and the Trust. The form and jurisdiction of organization of each of the
Subsidiaries and Unconsolidated Affiliates, and the Borrower's and the Trust's
ownership interest therein, is set forth in said Schedule 6.19.
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 Guarantors, 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 Guarantors 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. PROPERTY. All of the Borrower's, the Guarantors' and their
respective Subsidiaries' Real Estate is in good condition and working order
subject to ordinary wear and tear, except where such failure would not
individually or in the aggregate have any material adverse affect on the
business or financial condition of the Borrower or any Guarantor. There are no
unpaid or outstanding real estate or other taxes or assessments on or against
any property of the Borrower, the Guarantors or any of their respective
Subsidiaries which are payable by the Borrower, the Guarantors or any of their
respective Subsidiaries (except only real estate or other taxes or assessments,
that are not yet due and payable or are being protested as permitted by this
Agreement). There are no pending eminent domain proceedings against any property
of the Borrower, the Guarantors or any of their respective Subsidiaries or any
part thereof, and, to the knowledge of the Borrower, no such proceedings are
presently threatened or contemplated by any taking authority which may
individually or in the aggregate have any materially adverse effect on the
business or financial condition of the Borrower or any Guarantor. None of the
property of the Borrower, the Guarantors or any of their respective Subsidiaries
is now damaged as a result of any fire, explosion, accident, flood or other
casualty in any manner which individually or in the aggregate would have any
materially adverse effect on the business or financial condition of the Borrower
or any Guarantor.
SECTION 6.23. BROKERS. None of the Borrower, the Guarantors 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 Guarantors 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. Neither the
Borrower nor any Guarantor is 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
or such Guarantor. The Borrower, the Guarantor has provided to the Agent a
schedule, and upon the request of the Agent
49
will provide copies, of all agreements, mortgages, deeds of trust, financing
agreements or other material agreements binding upon the Borrower, the
Guarantors or their respective properties and entered into by the Borrower or
any Guarantor as of the date of this Agreement with respect to any Indebtedness
of the Borrower or any Guarantor.
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
Guarantors nor any of their Subsidiaries is insolvent on a balance sheet basis
such that the sum of such Person's assets exceeds the sum of such Person's
liabilities, such Person is able to pay its debts as they become due, and such
Person has sufficient capital to carry on its business.
SECTION 6.26. CONTRIBUTION AGREEMENT. Borrower has delivered or made
available to the Agent a true, correct and complete copy of the Contribution
Agreement. The Contribution Agreement is in full force and effect in accordance
with its terms, there are no material claims resulting from non-performance of
the terms thereof or otherwise or any basis for a material claim by any party to
the Contribution Agreement, nor has there been any waiver of any material terms
thereunder.
SECTION 6.27. NO FRAUDULENT INTENT. Neither the execution and delivery of
this Agreement or any of the other Loan Documents nor the performance of any
actions required hereunder or thereunder is being undertaken by the Borrower,
any 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 Guarantors, each of their respective
Subsidiaries and the creditors of such Persons. The direct and indirect benefits
to inure to the Borrower, the Guarantors 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 Guarantors and each of their respective Subsidiaries pursuant to
this Agreement and the other Loan Documents, and but for the willingness of the
Guarantors to guaranty the Loan, Borrower would be unable to obtain the
financing contemplated hereunder which financing will enable the Borrower and
its Subsidiaries to have available financing to refinance existing indebtedness
and to conduct and expand their business.
SECTION 6.29. PARTNERS AND THE TRUST. The Trust is the sole general partner
of the Borrower and owns a 1% general partnership interest and as of the Closing
Date not less than a 84.17% limited partnership interest in the Borrower. The
Trust owns no assets other than its interest in the Borrower as a general
partner and limited partner, cash, Short-term Investments and the property
described in Schedule 6.29 hereto.
50
SECTION 6.30. TAX INDEMNITY AGREEMENT. The Tax Indemnity Agreement has not
been voluntarily terminated by Borrower or the Trust and there has been no
waiver of any material terms thereunder by Borrower or the Trust.
SECTION 6.31. EMBARGOED PERSONS. None of the Borrower, the Guarantors or
their respective Subsidiaries, are (and none of the Borrower, the Guarantors or
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 6.32. UNENCUMBERED BORROWING BASE PROPERTIES. As of the Closing
Date, Schedule 1.2 is a correct and complete list of all Unencumbered Borrowing
Base Properties. Each of the Unencumbered Borrowing Base Properties included by
the Borrower in calculation of the compliance of the covenants set forth in
Section 9 satisfies all of the requirements contained in this Agreement for the
same to be included therein.
SECTION 7. AFFIRMATIVE COVENANTS OF THE TRUST AND THE BORROWER.
The Trust (to the extent hereinafter provided) and the Borrower covenant
and agree that, so long as any Loan, Letter of Credit or Note is outstanding or
any Bank has any obligation to make any Loans or to issue any Letter of Credit:
SECTION 7.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans and all interest and
fees provided for in this Agreement, all in accordance with the terms of this
Agreement and the Notes as well as all other sums owing pursuant to the Loan
Documents.
SECTION 7.2. MAINTENANCE OF OFFICE. The Borrower will maintain its chief
executive office at 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 and the Trust will (a)
keep, and cause each of their respective 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 their
respective Subsidiaries, contingencies and other reserves. Neither the Borrower
nor the Guarantors 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
51
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 the Trust will deliver or cause to be delivered to each of the
Banks:
(a) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each fiscal year of the Trust, the audited
Consolidated balance sheet of the Trust 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 another nationally recognized
accounting firm, the Form 10-K of the Trust filed with the SEC (unless the SEC
has approved an extension, in which event the Trust will deliver to the Agent
and each of the Banks a copy of the Form 10-K simultaneously with delivery to
the SEC), a statement of the Trust's taxable net income for the prior fiscal
year, and any other information the Banks may need to complete a financial
analysis of the Trust 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 the Trust, respectively, copies of the unaudited Consolidated
balance sheet of the Borrower and its Subsidiaries and the Trust and its
Subsidiaries, respectively, as at the end of such quarter, and the related
unaudited Consolidated statements of income, changes in shareholder's equity and
cash flows for the portion of the Borrower's and the Trust's, respectively,
fiscal year then elapsed, all in reasonable detail and prepared in accordance
with generally accepted accounting principles (which, as to the Trust, may be
provided by inclusion in the Form 10-Q of the Trust for such period provided
pursuant to subsection (c) below), together with a certification by the
principal financial or accounting officer of the Borrower and the Trust,
respectively, that the information contained in such financial statements fairly
presents the financial position of such Person and its Subsidiaries on the date
thereof (subject to year-end adjustments); provided, however, that unless
otherwise requested by the Agent or the Majority Banks, the Borrower shall not
be required to deliver the balance sheets, statements or other matters required
by this Section 7.4(b) to the extent the same are incorporated in the balance
sheets, statements and other matters delivered to the Banks by the Trust;
(c) as soon as practicable, but in any event not later than fifty-five
(55) days after the end of each of the first three (3) fiscal quarters of the
Trust in each year, copies of Form 10-Q filed with the SEC (unless the SEC has
approved an extension in which event the Trust will deliver such copies of the
Form 10-Q to the Agent and each of the Banks simultaneously with delivery to the
SEC);
(d) as soon as practicable, but in any event not later than fifty-five
(55) days after the end of the first three (3) fiscal quarters of the Borrower,
copies of a Consolidated statement of Operating Cash Flow for such fiscal
quarter for the Borrower and its Subsidiaries and a statement of Operating Cash
Flow for such fiscal quarter for the Borrower, prepared on a basis consistent
with the statement furnished pursuant to Section 6.4 together with a
certification by the
52
chief financial or chief accounting officer of the general partner of the
Borrower, that the information contained in such statement fairly presents the
Operating Cash Flow of the Borrower and its Subsidiaries 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
Trust and of the general partner of the Borrower in the form of Exhibit I hereto
(or in such other form as the Agent may approve from time to time) setting forth
in reasonable detail computations evidencing compliance with the covenants
contained in Section 9 and the other covenants described therein, and (if
applicable) reconciliations to reflect changes in generally accepted accounting
principles since the Balance Sheet Date. With each Compliance Certificate, the
Borrower shall also deliver a certificate (an "Unencumbered Borrowing Base
Property Certificate") executed by the chief financial officer of the general
partner of the Borrower that (i) lists each of the Unencumbered Borrowing Base
Properties, and certifies that all Unencumbered Borrowing Base Properties so
listed fully qualify as such under the applicable criteria in this Agreement,
lists any sales, acquisitions, dispositions or removals of Unencumbered
Borrowing Base Properties during such accounting period, the acquisition costs
of any Unencumbered Borrowing Base Properties acquired during such period, lists
any Non-Stabilized Properties included within the Unencumbered Borrowing Base
Properties and the book value or Appraised Value thereof, as appropriate, and
includes such information as Agent may reasonably require to determine the
economic and physical occupancy of said Unencumbered Borrowing Base Properties
and the Aggregate Unencumbered Borrowing Base Property Value and the Operating
Cash Flow from such Unencumbered Borrowing Base Properties during such period.
(f) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the SEC or sent to the
stockholders of the Trust or the partners of the Borrower;
(g) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, the following with respect to each
acquisition of an interest in Real Estate having a fair market value in excess
of $50,000,000.00 by the Borrower, the Guarantors or any of their respective
Subsidiaries (which for the purposes of this Section 7.4(g) shall include the
Investments described in Section 8.3(i), provided that with respect to the
Investments described in Section 8.3(i), the Borrower shall provide a
description of the property acquired;
(h) 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 Trust;
(i) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, each of the following with respect
to each acquisition of an interest in a Subsidiary: (i) the name and structure
of the Subsidiary, (ii) a description of the property owned by such Subsidiary,
and (iii) such other information as the Agent may reasonably request;
(j) 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, the
53
Guarantors or their respective Subsidiaries and Unconsolidated Affiliates (or in
which the Borrower, the Guarantors or their respective Subsidiaries owns an
interest) and stating the location thereof, the date acquired and the
acquisition cost, (ii) listing the Indebtedness of the Borrower, the Guarantors
or their respective Subsidiaries and Unconsolidated Affiliates (excluding
Indebtedness of the type described in Section 8.1(b)-(e)), which statement shall
include, without limitation, a statement of the original principal amount of
such Indebtedness and the current amount outstanding, the holder thereof, the
maturity date and any extension options, the interest rate, the collateral
provided for such Indebtedness and whether such Indebtedness is recourse or
non-recourse, and (iii) listing the properties of the Borrower, the Guarantors
or their respective Subsidiaries or Unconsolidated Affiliates which are under
"development" (as used in Section 8.9) and providing a brief summary of the
status of such development;
(k) not later than thirty (30) days prior to the end of each fiscal
year of the Borrower a budget and business plan for the next fiscal year;
(l) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each fiscal year of the Borrower, the
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries at the
end of such year, and the related unaudited consolidated statements of income,
changes in shareholder's equity and cash flows for such year, each setting forth
in comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by a certification by the
principal financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial position of
the Borrower and its Subsidiaries on the date thereof (provided, however, the
Borrower shall not be required to provide such statements in the event that such
statements would be substantially similar to the consolidated statements
provided by the Trust); and
(m) from time to time such other financial data and information in the
possession of the Borrower, the Guarantors or their respective Subsidiaries
(including without limitation auditors' management letters and other legal and
regulatory changes affecting the Borrower or the Guarantors) as the Agent may
reasonably request.
Any material to be delivered pursuant to this Section 7.4 may be delivered
electronically directly to Agent and the Banks provided that such material is in
a format reasonably acceptable to Agent, and such material shall be deemed to
have been delivered to Agent and the Banks upon Agent's receipt thereof. Upon
the request of Agent, Borrower and the Trust shall deliver paper copies thereof
to Agent and the Banks. Borrower and the Trust authorize Agent and Arranger to
disseminate any such materials through the use of Intralinks, SyndTrak or any
other electronic information dissemination system, and the Borrower and the
Trust release Agent and the Banks from any liability in connection therewith.
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
54
to which or with respect to which the Borrower, the Guarantors 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 either cause a Default or Event of Default or would have a material
adverse effect on the Borrower or any 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.
(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 Real Estate; (ii) of any
violation of any Environmental Law that the Borrower, the Guarantors or any of
their respective 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 Real Estate or has the potential to materially affect the
assets, liabilities, financial conditions or operations of the Borrower, any
Guarantor or any Subsidiary.
(c) 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 Guarantors or any of their respective
Subsidiaries or to which the Borrower, the Guarantors or any of their respective
Subsidiaries is or is to become a party involving an uninsured claim against the
Borrower, the Guarantors or any of their respective Subsidiaries that could
reasonably be expected to have a materially adverse effect on the Borrower or
any 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, any Guarantor or any of their
respective Subsidiaries in an amount in excess of $10,000,000.
(d) Notification of Banks. Promptly after receiving any notice under
this Section 7.5, the Agent will forward a copy thereof to each of the Banks,
together with copies of any certificates or other written information that
accompanied such notice.
SECTION 7.6. EXISTENCE; MAINTENANCE OF PROPERTIES.
(a) The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Delaware limited
partnership. The Trust 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 Trust 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 Guarantors 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 and the Trust will, and will
55
cause each of their respective Subsidiaries to, continue to engage primarily in
the businesses now conducted by it and in related businesses.
(b) The Borrower and the Trust (i) will cause all of their properties
and those of their respective Subsidiaries used or useful in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment, and (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof
in all cases in which the failure so to do the foregoing pursuant to clause (i)
or (ii) would have a material adverse effect on the financial condition, assets
or operations of the Borrower, any Guarantor and their respective Subsidiaries.
(c) The common stock of the Trust shall at all times be listed for
trading and be traded on the New York Stock Exchange.
SECTION 7.7. INSURANCE. The Borrower will procure and maintain or cause to
be procured and maintained insurance covering the Borrower and the Guarantors
and their respective Subsidiaries and their respective properties (the cost of
such insurance to be borne by the insured thereunder) in such amounts and
against such risks and casualties as are customary for properties of similar
character and location, due regard being given to the type of improvements
thereon, their construction, location, use and occupancy.
SECTION 7.8. TAXES. The Borrower, the Guarantors and each of their
respective Subsidiaries 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 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, such Guarantor or such Subsidiary shall have set aside on
its books adequate reserves with respect thereto; and provided, further that
forthwith upon the commencement of proceedings to foreclose any lien that may
have attached as security therefor, the Borrower, the Guarantor or such
Subsidiary 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 the Trust
shall permit the Banks at such Bank's expense to visit and inspect any of the
properties of the Borrower, the Guarantors or any of their respective
Subsidiaries, and at the Borrower's expense to examine the books of account of
the Borrower, the Guarantors or any of their respective Subsidiaries (and to
make copies thereof and extracts therefrom) and to discuss the affairs, finances
and accounts of the Borrower, the Guarantors or any of 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
examinations more often than once in any twelve (12) month period. The Banks
shall use good faith efforts to coordinate
56
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 and the Trust will comply with, and will cause each of their respective
Subsidiaries to comply in all respects with, (i) all applicable laws and
regulations now or hereafter in effect wherever its business is conducted,
including all Environmental Laws, (ii) the provisions of its corporate charter,
partnership agreement or declaration of trust, as the case may be, and other
charter documents and bylaws, (iii) all agreements and instruments to which it
is a party or by which it or any of its properties may be bound, (iv) all
applicable decrees, orders, and judgments, and (v) all licenses and permits
required by applicable laws and regulations for the conduct of its business or
the ownership, use or operation of its properties. If at any time while any
Loan, Note or Letter of Credit is outstanding or the Banks have any obligation
to make Loans or issue Letters of Credit hereunder, any authorization, consent,
approval, permit or license from any officer, agency or instrumentality of any
government shall become necessary or required in order that the Borrower or the
Guarantors may fulfill any of its obligations hereunder or under the other Loan
Documents, the Borrower will immediately take or cause to be taken all steps
necessary to obtain or cause such Guarantor or Subsidiary to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Banks with evidence thereof.
SECTION 7.11. USE OF PROCEEDS. Subject to the terms, covenants and
conditions set forth herein, the Borrower will use the proceeds of the Loans and
Letters of Credit to the Borrower solely to provide financing for general
corporate purposes including working capital and to repay outstanding
Indebtedness.
SECTION 7.12. FURTHER ASSURANCES. Each of the Borrower and the Trust will
cooperate with, and will cause each of their respective 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 the Trust shall operate their
respective businesses, 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. The Trust shall at all times comply with
all requirements of applicable laws necessary to maintain REIT Status, shall
elect to be treated as a real estate investment trust and shall operate its
business in compliance with the terms and conditions of this Agreement and the
other Loan Documents.
SECTION 7.14. LIMITING AGREEMENTS.
(a) Neither Borrower, the Guarantors nor any of their respective
Subsidiaries shall enter into, any agreement, instrument or transaction which
has or may have the effect of prohibiting or limiting Borrower's, the
Guarantors' or any of their respective Subsidiaries' ability to pledge to Agent
any Unencumbered Borrowing Base Properties as security for the Loans. Borrower
shall take, and shall cause the Guarantors and their respective Subsidiaries to
take, such actions as are necessary to preserve the right and ability of
Borrower, the Guarantors
57
and their respective Subsidiaries to pledge such assets as security for the
Loans without any such pledge after the date hereof causing or permitting the
acceleration (after the giving of notice or the passage of time, or otherwise)
of any other Indebtedness of Borrower, the Guarantors or any of their respective
Subsidiaries.
(b) Borrower shall, upon demand, provide to the Agent such evidence as
the Agent may reasonably require to evidence compliance with this Section 7.14,
which evidence shall include, without limitation, copies of any agreements or
instruments which would in any way restrict or limit the Borrower's, any
Guarantor's or any Subsidiary's ability to pledge assets as security for
Indebtedness, or which provide for the occurrence of a default (after the giving
of notice or the passage of time, or otherwise) if assets are pledged in the
future as security for Indebtedness of the Borrower or any Guarantor.
SECTION 7.15. OWNERSHIP OF REAL ESTATE. Without the prior written consent
of the Majority Banks, which consent may be withheld by the Majority Banks in
their sole discretion, and notwithstanding any other provision of the Loan
Documents, all interests (whether direct or indirect) of the Borrower or the
Trust in real estate assets acquired after the date hereof shall be owned
directly by the Borrower; provided, however, subject to the restrictions in
Section 8.3, the Borrower shall be permitted to own Real Estate through
Subsidiaries or Unconsolidated Affiliates.
SECTION 7.16. MORE RESTRICTIVE AGREEMENTS. Should the Borrower, the
Guarantors 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 Guarantors or their
respective Subsidiaries than those set forth in Section 8 and Section 9 of this
Agreement or the Guaranty, the Borrower shall promptly notify the Agent and, if
requested by the Majority Banks, the Borrower, the Guarantors, 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 Guarantors
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 Guarantors 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. TRUST RESTRICTIONS. The Borrower and Trust covenant and agree
that: the Trust will at all times (a) be the sole general partner of the
Borrower, (b) own not less than fifty-one percent (51%) of the partnership
interests in the Borrower, and in any event the largest percentage interest of
any partner in the Borrower and (c) be responsible for making all major and
day-to-day operational and management decisions to be made by the Borrower in
the conduct of its business. Without the prior written consent of Agent, the
Trust shall not own any
58
assets other than its interest in the Borrower as a general partner and a
limited partner, cash, Short-term Investments and the property described on
Schedule 6.29 hereto.
SECTION 7.18. INTEREST RATE CONTRACT(S). The Borrower shall at all times
from and after September 13, 2006 maintain in full force and effect, an Interest
Rate Contract(s) in form and substance satisfactory to Agent in an amount
necessary to ensure that the outstanding "Debt" (as hereinafter defined) of
Borrower, the Guarantors and their respective Subsidiaries that is Variable Rate
Debt does not exceed twenty-five percent (25%) of Consolidated Total Adjusted
Asset Value of the Borrower. The Interest Rate Contract(s) shall be provided by
any Bank which is a party to this Agreement or a bank or other financial
institution that has unsecured, uninsured and unguaranteed long-term debt which
is rated at least A-3 by Moody's Investor Service, Inc. or at least A- by
Standard & Poor's Corporation. The Borrower shall upon the request of the Agent
provide to the Agent evidence that the Interest Rate Contract(s) is in effect.
For the purposes of this Section 7.18, the term "Debt" shall mean any
indebtedness of the Borrower, the Guarantors or any their respective
Subsidiaries, whether or not contingent, and without duplication, in respect of
(i) borrowed money evidenced by bonds, notes, debentures or similar instruments
or (ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance
or any security interest existing on property owned by the Borrower, any
Guarantor or any of their respective Subsidiaries, to the extent that any such
items would appear as a liability on the balance sheet of the Borrower, the
Guarantors or any of their respective Subsidiaries in accordance with generally
accepted accounting principles, and also includes, to the extent not otherwise
included, any obligation by the Borrower, the Guarantors or any of their
respective Subsidiaries to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), indebtedness of another Person (other than the Borrower, any
Guarantor or any of their respective Subsidiaries) (it being understood that
Debt shall be deemed to be incurred by the Borrower, the Guarantors or any of
their respective Subsidiaries whenever the Borrower, any Guarantor or any of
their respective Subsidiaries shall create, assume, guarantee or otherwise
become liable in respect thereof).
SECTION 7.19. UNENCUMBERED BORROWING BASE PROPERTIES.
(a) The Unencumbered Borrowing Base Properties shall at all times
satisfy all of the following conditions:
(i) each of the Unencumbered Borrowing Base Properties shall be
owned 100% in fee simple or leased under a Ground Lease by the Borrower or,
subject to the terms of this Agreement, a Subsidiary Guarantor, free and clear
of all Liens other than the Liens permitted in Section 8.2(ii) and (v), and such
Unencumbered Borrowing Base Property does not have applicable to it any
restriction on the pledge, transfer, mortgage or assignment of such property
(including any restrictions contained in any applicable organizational
documents). If such Unencumbered Borrowing Base Property is owned or leased by a
Subsidiary Guarantor, such Subsidiary Guarantor shall not be a borrower with
respect to any other Indebtedness;
(ii) none of the Unencumbered Borrowing Base Properties shall
have any material title, survey, environmental, structural or other defects that
would give rise to a materially adverse effect as to the value, use of or
ability to sell or refinance such property;
59
(iii) such Unencumbered Borrowing Base Property is managed by the
Borrower;
(iv) prior to inclusion of Real Estate within the Unencumbered
Borrowing Base Properties, Borrower shall have delivered to Agent a physical
description of the Real Estate and current rent rolls, operating statements and
an operating and capital expenditure budget for such Real Estate reasonably
satisfactory to the Agent, and such information as Agent may reasonably require
to determine the value attributable to such Real Estate for the purposes of
Section 9.5 and compliance with this Section 7.19;
(v) each of the Unencumbered Borrowing Base Properties shall
consist solely of Real Estate (A) which is located within the contiguous 48
states of the continental United States, (B) which is utilized principally for a
shopping center or a retail facility or a use ancillary thereto and is
consistent with Borrower's business strategy on the date of this Agreement, (C)
which contains improvements that are in operating condition and available for
occupancy, and (D) except with respect to properties temporarily removed from
the occupancy calculation pursuant to Section 7.19(a)(ix), with respect to which
valid certificates of occupancy or the equivalent for all buildings thereon have
been issued and are in full force and effect;
(vi) no Person other than Borrower or a Subsidiary Guarantor has
any direct or indirect ownership of any equity interest or other Voting Interest
in such Subsidiary Guarantor if such Unencumbered Borrowing Base Property is
owned or leased under a Ground Lease by a Subsidiary Guarantor (it being
understood that no such Person shall be deemed to have any such ownership
interest for purposes of this provision solely by virtue of owning any equity
interest in the Trust or owning any limited partnership interest in the
Borrower);
(vii) such Real Estate has been designated as an "Unencumbered
Borrowing Base Property" on Schedule 1.2 hereto or in a Unencumbered Borrowing
Base Property Certificate in accordance with Section 7.4(e) or delivered
pursuant to this Section 7.19, and in any event has not been removed as an
Unencumbered Borrowing Base Property pursuant to Section 7.19(e) or Section
7.19(f);
(viii) the number of properties within the Unencumbered Borrowing
Base Properties shall not be less than ten (10);
(ix) the Unencumbered Borrowing Base Properties shall consist
solely of Real Estate which has (A) an aggregate occupancy level of tenants in
possession (but not any tenant having under lease 25,000 square feet or more on
a holdover or month-to-month basis), operating, paying rent and which are not
otherwise in default of at least seventy percent (70%) of the Net Rentable Area
within such Unencumbered Borrowing Base Properties for the previous fiscal
quarter of the Borrower based on bona fide arms-length tenant leases requiring
current rental payments and which are in full force and effect, and (B) an
aggregate level of tenants under leases in such property (but not any tenant
having under lease 25,000 square feet or more on a holdover or month-to-month
basis) which are paying rent and which are not in default of at least
seventy-five percent (75%) of the Net Rentable Area within such Unencumbered
Borrowing Base Properties for the previous fiscal quarter of the Borrower based
on bona fide arms-length tenant leases requiring current rental payments and
which are in full force and
60
effect. Notwithstanding the foregoing, Borrower may temporarily remove an
Unencumbered Borrowing Base Property from the foregoing occupancy calculations
with respect to an Unencumbered Borrowing Base Property that is (x) a
Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower
to reposition such property and (z) which Agent has approved in writing as a
property that can be excluded from such calculation. Without limiting the
foregoing, the Agent shall not be required to approve the removal of such
property from the foregoing calculation if redevelopment is as a result of a
default, insolvency, lease termination or other act or circumstance affecting a
tenant of such Unencumbered Borrowing Base Property. Such property shall be
excluded from the foregoing occupancy calculations until the date that is
twenty-four (24) months following the initial approval of such Unencumbered
Borrowing Base Property as a Redevelopment Property for the purposes of this
Section 7.19; and
(x) no more than ten percent (10%) of the Aggregate Unencumbered
Property Borrowing Base Value of the Unencumbered Borrowing Base Properties
shall be properties leased under a Ground Lease;
(b) In the event that an Unencumbered Borrowing Base Property shall
also be a Non-Stabilized Property, the Borrower may by written notice to the
Agent request that such Unencumbered Borrowing Base Property be treated as a
Non-Stabilized Property for the purposes of this Agreement. Upon receipt of such
request from Borrower, the Agent shall order an Appraisal of such Unencumbered
Borrowing Base Property for the purpose of determining the Appraised Value
thereof. The Appraisal shall be reviewed by the appraisal department of the
Agent to determine the Appraised Value thereof. The Appraised Value of such
Unencumbered Borrowing Base Property as so determined shall be the Appraised
Value thereof for the purposes of determining the Non-Stabilized Unencumbered
Property Borrowing Base Value of such property. The Borrower shall pay the Agent
within thirty (30) days of demand the reasonable costs of such Appraisals.
Alternatively, the Borrower may by written notice to the Agent request that the
Majority Banks approve the valuation of such Non-Stabilized Property based on
the undepreciated book value thereof. In connection with such request, the
Borrower shall provide such evidence of such book value as Agent may reasonably
require. An Unencumbered Borrowing Base Property shall only be considered as a
Non-Stabilized Property under this Agreement following the determination of the
Non-Stabilized Unencumbered Property Borrowing Base Value thereof. An
Unencumbered Borrowing Base Property shall only be a Non-Stabilized Property
until the first to occur of (i) five (5) Business Days following the receipt by
Agent of a written notice from Borrower requesting that such Unencumbered
Borrowing Base Property no longer be a Non-Stabilized Property together with an
updated Unencumbered Borrowing Base Property Certificate, and (ii) the date that
is twenty-four (24) months following the initial designation of such
Unencumbered Borrowing Base Property as a Non-Stabilized Property. An
Unencumbered Borrowing Base Property shall only be considered as a
Non-Stabilized Property one time during the term of this Agreement.
(c) In the event that all or any material portion of a property within
the Unencumbered Borrowing Base Properties shall be damaged or taken by
condemnation, then such property shall no longer be a part of the Unencumbered
Borrowing Base Properties unless and until (i) any damage to such Real Estate is
repaired or restored, such Real Estate becomes fully operational and the Agent
shall receive evidence satisfactory to the Agent of the Operating Cash Flow of
such Real Estate following such repair or restoration (both at such time and
61
prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent
that the Operating Cash Flow of such Real Estate (both at such time and
prospectively) shall not be materially adversely affected by such damage or
condemnation.
(d) In the event that any Subsidiary of the Borrower that is not a
Guarantor owns Real Estate which would otherwise qualify as an Unencumbered
Borrowing Base Property and the Borrower desires for the same to become an
Unencumbered Borrowing Base Property, then such property may become an
Unencumbered Borrowing Base Property but only in the event that all of the terms
and conditions of this Section 7.19(d) and Section 5.2 are satisfied:
(i) Such Subsidiary shall be a Subsidiary Guarantor;
(ii) The organizational agreements of such Subsidiary or such
other resolutions or consents satisfactory to Agent shall specifically authorize
such Subsidiary to guaranty the Obligations and to pledge the assets of such
Subsidiary as security for the Obligations and the Borrower shall certify to the
Agent that applicable law does not preclude such Subsidiary from executing such
guaranty or pledging its assets to secure the Obligations;
(iii) All covenants, agreements, and representations in the Loan
Documents herein of the Borrower and the Guarantors and their Subsidiaries shall
be true and correct with respect to such Subsidiary Guarantor;
(iv) No Default or Event of Default shall exist or might exist in
the event that such Subsidiary becomes a Subsidiary Guarantor or acquires such
assets; and
(v) The Real Estate assets acquired or owned by such Subsidiary
Guarantor shall qualify as Unencumbered Borrowing Base Properties hereunder.
(e) Upon any Unencumbered Borrowing Base Property ceasing to qualify
as an Unencumbered Borrowing Base Property, such Unencumbered Borrowing Base
Property shall no longer be included in the calculation of the Unencumbered
Property Borrowing Base Value nor shall the Operating Cash Flow from such
property be included for the purposes of Section 9.5. Within five (5) Business
Days after any such disqualification, the Borrower shall deliver to the Agent a
certificate reflecting such disqualification, together with the identity of the
disqualified Unencumbered Borrowing Base Property, a statement as to whether any
Default or Event of Default arises as a result of such disqualification, and a
calculation of the value attributable to such Unencumbered Borrowing Base
Property. Simultaneously with the delivery of the items required pursuant above,
the Borrower shall deliver to the Agent a pro forma Compliance Certificate
demonstrating, after giving effect to such removal, replacement or
disqualification, compliance with the covenants contained in Section 7.19 and
Section 9.5.
(f) In addition, the Borrower may voluntarily remove any Real Estate
from the Unencumbered Borrowing Base Properties by delivering to the Agent, no
later than five (5) Business Days prior to date on which such removal is to be
effected, notice of such removal, together with a statement that no Default or
Event of Default then exists or would, upon the occurrence of such event or with
passage of time, result from such removal, and the identity of the Unencumbered
Borrowing Base Property being removed, and a calculation of the value
attributable to such Unencumbered Borrowing Base Property. Simultaneously with
the delivery
62
of the items required pursuant above, the Borrower shall deliver to the Agent a
pro forma Compliance Certificate demonstrating, after giving effect to such
removal, replacement or disqualification, compliance with the covenants
contained in Section 7.19 and Section 9.5.
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE TRUST AND THE BORROWER.
The Borrower and the Trust, jointly and severally, covenant and agree that,
so long as any Loan, Letter of Credit or Note is outstanding or any of the Banks
has any obligation to make any Loans or to issue any Letters of Credit:
SECTION .8.1. RESTRICTIONS ON INDEBTEDNESS. Except as permitted in Section
8.1(f) below, the Trust will not (other than solely as a result of its status as
a general partner of the Borrower) create, incur, assume, guarantee or be or
remain liable, contingently or otherwise with respect to any Indebtedness other
than the Obligations and any Indebtedness of the Borrower permitted under the
terms of this Section 8.1. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume, guarantee or be or remain liable,
contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Banks arising under any of the Loan Documents,
and Indebtedness and obligations in respect of the Interest Rate Contract(s)
required pursuant to Section 7.18;
(b) current liabilities of the Borrower or its Subsidiaries incurred
in the ordinary course of business but not incurred through (i) the borrowing of
money, or (ii) the obtaining of credit except for credit on an open account
basis customarily extended and in fact extended in connection with normal
purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment therefor shall not at the time be required to be made in accordance
with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards the existence of
which does not create an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
(f) subject to the provisions of Section 9, (i) Non-recourse
Indebtedness of the Borrower or any of its Subsidiaries, and (ii) Indebtedness
of Borrower, the Trust or any of the Borrower's Subsidiaries under environmental
indemnities and guarantees with respect to customary exceptions to exculpatory
language with respect to Non-recourse Indebtedness of Borrower's Subsidiaries or
Unconsolidated Affiliates permitted pursuant to Section 8.3(i) (it being agreed
that any such indemnity or guaranty shall not cause such Non-recourse
Indebtedness to be deemed to be Recourse Indebtedness and provided that in the
event any claim is made against Borrower, the Trust or any of their respective
Subsidiaries with respect to such indemnities, guarantees or exceptions, the
amount so claimed shall be considered a recourse liability of such Person);
63
(g) Indebtedness in respect of reverse repurchase agreements having a
term of not more than one hundred eighty (180) days with respect to Investments
described in Section 8.3(d) or (e);
(h) subject to the provisions of Section 9, other unsecured Recourse
Indebtedness of the Borrower and its Subsidiaries provided that in no event may
any of such Indebtedness be in the nature of a revolving credit facility;
(i) Indebtedness in respect of purchase money financing for equipment,
computers and vehicles acquired in the ordinary course of the Borrower's
business not exceeding $5,000,000.00; and
(j) subject to the provisions of Section 9, Recourse Indebtedness
(whether secured or unsecured) (i) to obtain a construction loan or loans or
obligations under completion guarantees, (ii) obligations under the TIF
Guaranty, (iii) with respect to agreements described in clause (f) of the
definition of Indebtedness, (iv) letters of credit, (v) Interest Rate Contracts,
(vi) guarantees of completion with respect to development by Borrower's
Unconsolidated Affiliates and (vii) for such other purposes approved in writing
by the Agent, in an aggregate amount not exceeding $200,000,000.00 (provided
that the liability under any completion guaranty shall equal the remaining costs
to complete the applicable construction project in excess of construction loan
or mezzanine loan proceeds available therefor and any equity deposited or
invested for the payment of such costs).
SECTION 8.2. RESTRICTIONS ON LIENS ETC. Neither the Trust nor the Borrower
will, nor will either of them permit any of their respective Subsidiaries to,
(a) create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, charge, restriction or other security interest of
any kind upon any of its property or assets of any character whether now owned
or hereafter acquired, or upon the income or profits therefrom; (b) transfer any
of its property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) acquire, or
agree or have an option to acquire, any property or assets upon conditional sale
or other title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; (e)
sell, assign, pledge or otherwise transfer any accounts, contract rights,
general intangibles, chattel paper or instruments, with or without recourse; or
(f) incur or maintain any obligation which prohibits the creation or maintenance
of any lien securing the Obligations (collectively, "Liens"); provided that the
Borrower, the Guarantors and any Subsidiary of any of them may create or incur
or suffer to be created or incurred or to exist:
(i) liens in favor of the Borrower or the Trust on all or part of
the assets of Subsidiaries of such Person (but excluding any Unencumbered
Borrowing Base Property or any direct or indirect interest therein) securing
Indebtedness owing by Subsidiaries of such Person to such Person;
64
(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 or which are being contested as permitted by Section
7.8;
(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 or any interest therein (including the
rents, issues and profits therefrom) (but excluding any Unencumbered Borrowing
Base Property or any direct or indirect interest therein) in respect of
judgments or awards, the Indebtedness with respect to which is permitted by
Section 8.1(d);
(v) encumbrances on properties consisting of easements, rights of
way, zoning restrictions, leases and other occupancy agreements, 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, a Guarantor or
a Subsidiary of such Person is a party, and other minor non-monetary 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 Guarantors
or their Subsidiaries, which defects do not individually or in the aggregate
have a materially adverse effect on the business of the Borrower or any
Guarantor individually or of such Person and its Subsidiaries on a Consolidated
basis;
(vi) liens on the specific personal property acquired by
Indebtedness permitted by Section 8.1(i); and
(vii) liens on properties or interests therein (but excluding any
Unencumbered Borrowing Base Property or any direct or indirect interest therein)
to secure Indebtedness permitted by Section 8.1(f) or Section 8.1(j).
SECTION 8.3. RESTRICTIONS ON INVESTMENTS. Neither the Borrower nor the
Trust will, nor will either of them permit any of its Subsidiaries to, make or
permit to exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by the
Borrower or its Subsidiary;
(b) marketable direct obligations of any of the following: Federal
Home Loan Mortgage Corporation, Student Loan Marketing Association, Federal Home
Loan Banks, Federal National Mortgage Association, Government National Mortgage
Association, Bank for Cooperatives, Federal Intermediate Credit Banks, Federal
Financing Banks, Export-Import Bank of the United States, Federal Land Banks, or
any other agency or instrumentality of the United States of America;
(c) demand deposits, certificates of deposit, bankers acceptances and
time deposits of United States banks having total assets in excess of
$100,000,000; provided,
65
however, that the aggregate amount at any time so invested with any single bank
having total assets of less than $1,000,000,000 will not exceed $200,000;
(d) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any State which at the time of purchase are rated by Moody's
Investors Service, Inc. or by Standard & Poor's Corporation at not less than "P
1" if then rated by Moody's Investors Service, Inc., and not less than "A 1", if
then rated by Standard & Poor's Corporation;
(e) mortgage-backed securities guaranteed by the Government National
Mortgage Association, the Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation and other mortgage-backed bonds which at the time
of purchase are rated by Moody's Investors Service, Inc. or by Standard & Poor's
Corporation at not less than "Aa" if then rated by Moody's Investors Service,
Inc. and not less than "AA" if then rated by Standard & Poor's Corporation;
(f) repurchase agreements having a term not greater than ninety (90)
days and fully secured by securities described in the foregoing subsection (a),
(b) or (e) with banks described in the foregoing subsection (c) or with
financial institutions or other corporations having total assets in excess of
$500,000,000;
(g) shares of so-called "money market funds" registered with the SEC
under the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in investments described in the foregoing subsections (a)
through (f) and have total assets in excess of $50,000,000;
(h) the acquisition of fee interests by the Borrower or its
Subsidiaries in Real Estate which is utilized principally for shopping centers,
and, subject to the restrictions set forth in Section 8.9 for development of new
shopping centers, the acquisition of undeveloped Real Estate;
(i) Investments in Subsidiaries of the Borrower or the Trust that are
not one hundred percent (100%) owned by the Borrower or the Trust or in
Unconsolidated Affiliates, which Subsidiaries or Unconsolidated Affiliates are
engaged in the ownership of Real Estate or development activity pursuant to
Section 8.9, and Investments in mortgages and notes receivables from such
Subsidiaries or Unconsolidated Affiliates, provided that in no event shall such
Investments (including the principal amount payable pursuant to such notes)
exceed fifteen percent (15%) of Borrower's Consolidated Total Adjusted Asset
Value in the aggregate without the prior written consent of the Required Banks.
For the purposes of this Section 8.3(i) only, notes receivable from
Unconsolidated Affiliates shall be valued at face value (subject to reduction as
a result of payments thereon);
(j) Investments (i) in any preferred stock issued by Trust which has
been repurchased solely with the proceeds of a new issue of common or preferred
stock issued by Trust, or (ii) in any common stock issued by Trust which has
been repurchased by the Trust, Borrower or any of their respective Subsidiaries,
provided that in no event shall such Investments pursuant to clause (ii) exceed
in the aggregate $15,000,000.00 (calculated based upon the consideration given
for such stock) unless the respective ratio of Borrower's and
66
Guarantor's Consolidated Total Liabilities to such Person's Consolidated Total
Adjusted Asset Value is less than 0.55 to 1 at the time of such Investment and
would be less than 0.55 to 1 after giving effect to such Investment;
(k) subject to the restrictions set forth in Section 8.9, investments
in real estate investment trusts which own real property which is used
principally for fee interests in Real Estate utilized principally for shopping
centers located within the United States, provided that in no event shall the
aggregate costs of all Investments pursuant to this Section 8.3(k) exceed the
amount set forth with respect thereto in the Borrower's annual budget and
business plan delivered to the Agent pursuant to Section 7.4(k); and
(l) Investments by Borrower in Subsidiaries that are one hundred
percent (100%) owned by the Borrower.
SECTION 8.4. MERGER, CONSOLIDATION. Neither the Borrower nor the Trust
will, nor will either of them permit any of its Subsidiaries to, become a party
to any merger, consolidation or other business combination or disposition of all
or substantially all of its assets except (a) the merger or consolidation of one
or more of the Subsidiaries of the Borrower with and into the Borrower or (b)
the merger or consolidation of two or more Subsidiaries of the Borrower.
SECTION 8.5. CONDUCT OF BUSINESS. Neither the Borrower nor the Trust will
conduct any of its business operations other than through the Borrower and its
Subsidiaries; provided, however, that subject to Section 8.3(i) and Section 8.9,
ownership of Real Estate and development activities may be conducted through
Unconsolidated Affiliates of the Borrower as provided therein. No
reorganizations, spin-offs or new business lines shall be established or occur
without the prior written consent of the Majority Banks.
SECTION 8.6. COMPLIANCE WITH ENVIRONMENTAL LAWS. Neither the Borrower nor
the Trust will, nor will either of them permit any of its Subsidiaries, to do
any of the following: (a) use any of the Real Estate or any portion thereof as a
facility for the handling, processing, storage or disposal of Hazardous
Substances, except for small quantities of Hazardous Substances used in the
ordinary course of business and in compliance in all material respects with all
applicable Environmental Laws, (b) cause or permit to be located on any of the
Real Estate any underground tank or other underground storage receptacle for
Hazardous Substances except in material compliance with Environmental Laws, (c)
generate any Hazardous Substances on any of the Real Estate except in material
compliance with Environmental Laws, (d) conduct any activity at any Real Estate
or use any Real Estate in any manner so as to cause a Release of Hazardous
Substances on, upon or into the Real Estate or any surrounding properties or any
threatened Release of Hazardous Substances in any material amount 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 material compliance with all Environmental Laws); provided
that with respect to the foregoing clauses (a)-(e), with respect to Real Estate
other than the Unencumbered Borrowing Base Properties, the Borrower and the
Trust shall comply with the foregoing except to the extent such failure could
not individually or in the aggregate have any material adverse effect upon the
business or financial condition of the Borrower or the Trust.
67
The Borrower shall:
(i) in the event of any change in Environmental Laws governing
the assessment, release or removal of Hazardous Substances, which change would
lead a prudent lender to require additional testing to avail itself of any
statutory insurance or limited liability, take all action (including, without
limitation, the conducting of engineering tests at the sole expense of the
Borrower) to confirm that no Hazardous Substances are or ever were Released or
disposed of on the Unencumbered Borrowing Base Properties; and
(ii) if any Release or disposal of Hazardous Substances shall
occur or shall have occurred on the Unencumbered Borrowing Base Properties
(including without limitation any such Release or disposal occurring prior to
the acquisition of such Unencumbered Borrowing Base Properties by the Borrower),
cause the prompt containment and removal of such Hazardous Substances and
remediation of the Unencumbered Borrowing Base Properties in full compliance
with all applicable laws and regulations and to the satisfaction of the Majority
Banks; provided, that the Borrower shall be deemed to be in compliance with
Environmental Laws for the purpose of this clause (ii) so long as it or a
responsible third party with sufficient financial resources is taking reasonable
action to remediate or manage any event of noncompliance to the satisfaction of
the Majority Banks and no action shall have been commenced by any enforcement
agency. The Majority Banks may engage their own environmental consultant 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 Unencumbered Borrowing Base Property, or that any of the
Unencumbered Borrowing Base 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 Unencumbered
Borrowing Base 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
Unencumbered Borrowing Base Property and (ii) whether the use and operation of
such Unencumbered Borrowing Base Property comply with all Environmental Laws.
Environmental assessments may include detailed visual inspections of such
Unencumbered Borrowing Base 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
Unencumbered Borrowing Base Property and the use and operation thereof with all
applicable Environmental Laws. All such environmental assessments shall be at
the sole cost and expense of the Borrower.
SECTION 8.7. DISTRIBUTIONS. Neither the Borrower nor the Trust shall make
any Distributions which would cause it to violate any of the following
covenants:
(a) The Borrower shall not make any Distribution if such Distribution
is in excess of the amount which, when added to the amount of all other
Distributions paid in the
68
same fiscal quarter and the preceding three (3) fiscal quarters would exceed
ninety-five percent (95%) of its Funds from Operations for the four (4)
consecutive fiscal quarters ending prior to the quarter in which such
Distribution is paid; provided, however, notwithstanding the foregoing, Borrower
and the Trust may, subject to the limitations set forth in this Agreement
(including specifically, but without limitation, those contained in Sections
8.3(j) and 8.7(b)) (i) make Distributions in order to enable Borrower or the
Trust to repurchase common or Preferred Equity of the Trust or (ii) redeem
existing Preferred Equity with proceeds from an issuance of common equity or
Preferred Equity of the Borrower or the Trust so long as (A) no Event of Default
shall have occurred and be continuing on the date of any such repurchase and (B)
no Default or Event of Default shall occur as a result of any such repurchase.
Notwithstanding the foregoing, the Borrower may pay a Distribution to its
partners of sums received by it pursuant to the Tax Indemnity Agreement;
(b) In the event that an Event of Default shall have occurred and be
continuing, neither the Borrower nor the Trust shall make any Distributions
other than the minimum Distributions by the Borrower to the Trust and by the
Trust required under the Code to maintain the REIT Status of the Trust, as
evidenced by a certification of the principal financial or accounting officer of
the Trust containing calculations in reasonable detail satisfactory in form and
substance to Agent; provided, however, that neither Borrower nor the Trust shall
be entitled to make any Distributions in connection with the repurchase of
common or preferred stock of the Trust at any time after an Event of Default
shall have occurred and be continuing; and
(c) Notwithstanding the foregoing, at any time when an Event of
Default shall have occurred and the maturity of the Obligations has been
accelerated, neither the Borrower nor the Trust shall make any Distributions
whatsoever, directly or indirectly.
SECTION 8.8. ASSET SALES. Neither the Borrower, the Trust nor any
Subsidiary thereof shall sell, transfer or otherwise dispose of any individual
Real Estate having a sales price in excess of $75,000,000.00 unless there shall
have been delivered to the Agent a statement that no Default or Event of Default
exists immediately prior to such sale, transfer or other disposition or would
exist after giving effect to such sale, transfer or other disposition.
SECTION 8.9. DEVELOPMENT ACTIVITY. Neither the Borrower, the Trust nor any
of their respective Subsidiaries shall engage, directly or indirectly, in any
development except as expressly provided in this Section 8.9. The Borrower, the
Trust or any of their respective Subsidiaries may engage, either directly or, in
the case of the Borrower, through any Subsidiary or Unconsolidated Affiliate of
the Borrower, an Investment in which is permitted under Section 8.3(i), in the
development of property to be used principally for retail shopping centers or a
use ancillary thereto which at any time has a total cost (including acquisition,
construction and other costs), whether such total costs are incurred directly by
the Borrower, the Trust or such Subsidiary or through an Investment in an
Unconsolidated Affiliate permitted under Section 8.3(i), individually for each
development project that is not in excess of ten percent (10%) of the
Consolidated Total Adjusted Asset Value of the Borrower, and in the aggregate
for all development projects that is not in excess of fifteen percent (15%) of
the Consolidated Total Adjusted Asset Value of the Borrower, without the prior
written consent of the Majority Banks. For the purposes of calculating the cost
of developments by Subsidiaries or Unconsolidated Affiliates, the cost of such
developments shall be based upon the Borrower's interest in such Subsidiaries or
69
Unconsolidated Affiliates. For purposes of this Section 8.9, the term
"development" shall include the new construction of a shopping center complex or
the substantial renovation of improvements to real property which materially
change the character or size thereof, but shall not include the addition of
amenities or other related facilities to existing Real Estate which is already
used principally for shopping centers; provided, however, that the term
"development" shall not include demolition of existing structures performed by
Borrower or the addition of an anchor store to an existing shopping center
project provided that the construction of such improvements is performed by the
tenant, and the Borrower (or any Subsidiary or Unconsolidated Affiliate
thereof), the Trust or its respective Subsidiary, as applicable, is only
obligated to reimburse such tenant for a fixed amount with respect to the cost
of such construction upon completion of such construction by such tenant. The
Borrower and the Trust each acknowledges that the decision of the Majority Banks
to grant or withhold such consent shall be based on such factors as the Majority
Banks deem relevant in their sole discretion, including without limitation,
evidence of sufficient funds both from borrowings and equity to complete such
development and evidence that the Borrower (or any Subsidiary or Unconsolidated
Affiliate thereof), the Trust or either of its Subsidiaries has the resources
and expertise necessary to complete such project. Nothing herein shall prohibit
the Borrower, the Trust or any of their respective Subsidiaries thereof from
entering into an agreement to acquire Real Estate which has been developed and
initially leased by another Person. Neither the Borrower (or any Subsidiary or
Unconsolidated Affiliate thereof), the Trust nor any Subsidiary thereof shall
acquire or hold any number of undeveloped parcels of Real Estate which in the
aggregate exceed five percent (5%) of the Consolidated Total Adjusted Asset
Value of the Borrower without the prior written consent of the Majority Banks,
provided that the acquisition or holding of any outlots or property adjacent to
any Real Estate owned by the Borrower (or any Subsidiary or Unconsolidated
Affiliate thereof), the Trust or any Subsidiary thereof shall not be deemed to
be an undeveloped parcel of Real Estate for this purpose and options and
purchase agreements to acquire any property shall not be deemed an acquisition
or holding of such property. Further, any new development project permitted
under the terms of this Section 8.9 engaged in by the Borrower (or any
Subsidiary or Unconsolidated Affiliate thereof), the Trust or any Subsidiary
thereof shall be either (a) at least fifty percent (50%) pre-leased (based on
the gross leasable area of the improvements to the development, or the phase of
the development project being developed if the Borrower submits and the Agent
agrees that the development consists of more than one (1) phase, excluding
outlots), including all anchors (it being agreed that Borrower shall receive a
credit against such occupancy requirement for any space to be occupied by an
anchor that has been conveyed to such anchor), or under a purchase agreement to
sell and all construction bids shall be in place, and any such development shall
continue to be deemed an undeveloped parcel until such time as construction
commences, or (b) sufficiently pre-leased such that based on such leases the
gross income from such leases upon completion of such project shall equal or
exceed projected operating expenses (including reserves for expenses not paid on
a monthly basis). For purposes of this Section 8.9, property shall be deemed to
be in development at all times that it is Under Development.
SECTION 8.10. TRUST PREFERRED EQUITY. The Borrower and the Trust shall not
permit the Trust Preferred Equity to exceed in the aggregate $150,000,000
(provided that to the extent any such Trust Preferred Equity exceeds such limit,
such excess shall be considered Indebtedness for the purposes of this
Agreement). The Borrower and the Trust will not make or permit any amendment or
modification to the indenture, note or other agreements evidencing or governing
any Trust Preferred Equity, or directly or indirectly pay, prepay, defease or in
substance defease,
70
purchase, redeem, retire or otherwise acquire any Trust Preferred Equity if any
Event of Default has occurred and is continuing.
SECTION 9. FINANCIAL COVENANTS OF THE TRUST AND THE BORROWER.
The Borrower and the Trust, jointly and severally, covenant and agree that,
so long as any Loan, Letter of Credit or Note is outstanding or any Bank has any
obligation to make any Loans or issue any Letters of Credit, each of them will
comply with the following:
SECTION 9.1. LIABILITIES TO ASSETS RATIO. Each of the Borrower and the
Trust will not permit the ratio of its Consolidated Total Liabilities to
Consolidated Total Adjusted Asset Value to exceed 0.65 to 1.
SECTION 9.2. FIXED CHARGES COVERAGE. The Borrower will not permit the
Borrower's Consolidated Operating Cash Flow for the period covered by the four
(4) previous consecutive fiscal quarters (treated as a single accounting period)
to be less than 1.50 times the Fixed Charges of the Borrower and the Trust for
such period; provided, however, that for purposes of determining compliance with
this covenant, prior to such time as the Borrower has owned and operated a
parcel of Real Estate for four (4) full fiscal quarters, the Operating Cash Flow
with respect to such parcel of Real Estate for the number of full fiscal
quarters which the Borrower has owned and operated such parcel of Real Estate as
annualized shall be utilized. For the purpose of calculating Consolidated
Operating Cash Flow under this Section 9.2 for any parcel of Real Estate, the
Operating Cash Flow Rental Adjustment shall be applied to any parcel of Real
Estate affected by any of the events described in the definition of Operating
Cash Flow Rental Adjustment. Additionally, for the purposes of calculating
Consolidated Operating Cash Flow under this Section 9.2, Operating Cash Flow
attributable to any Redevelopment Property shall be included even if such
Redevelopment Property is then being valued at cost for the purposes of
calculating Borrower's Consolidated Total Adjusted Asset Value. For the purposes
of this Section 9.2, the Operating Cash Flow and Debt Service attributable to
any Real Estate and the principal indebtedness repaid as a part of such sale
shall be excluded from the calculations when such Real Estate is sold.
SECTION 9.3. CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not permit
its Consolidated Tangible Net Worth to be less than $450,000,000.00 plus
seventy-five percent (75%) of any Net Offering Proceeds from Equity Offerings
received by the Borrower or the Trust after the date of this Agreement (except
to the extent of any of such Net Offering Proceeds from an issuance of common
equity or Preferred Equity of the Borrower or the Trust which are used to retire
an existing issue of preferred equity of Borrower or the Trust, respectively).
SECTION 9.4. SECURED INDEBTEDNESS. The Borrower will not permit the Secured
Indebtedness of the Borrower, Guarantors and their respective Subsidiaries to
exceed forty-five percent (45%) of the Consolidated Total Adjusted Asset Value
of the Borrower.
SECTION 9.5. UNENCUMBERED PROPERTY BORROWING BASE TESTS.
(a) Each of the Borrower and the Trust will not permit (i) the
Unsecured Indebtedness of the Borrower, the Guarantors and their respective
Subsidiaries to exceed (ii) the Aggregate Unencumbered Property Borrowing Base
Value.
71
(b) If there are any Non-Stabilized Properties included in the
Unencumbered Borrowing Base Properties, the Borrower and the Trust will not
permit (i) the Unsecured Indebtedness of the Borrower, the Guarantors and their
respective Subsidiaries to exceed (ii) the sum of (A) the Non-Stabilized
Unencumbered Property Borrowing Base Value plus (B) the principal amount of
Unsecured Indebtedness which would cause the Operating Cash Flow from the
Unencumbered Borrowing Base Properties (excluding those that are Non-Stabilized
Properties) for the period covered by the four (4) previous consecutive fiscal
quarters (treated as a single accounting period) to equal 1.5 times the amount
of principal and interest that would be payable on a loan bearing interest at
the rate equal to the greater of (1) 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 on a 25-year mortgage-style
amortization schedule (expressed as a mortgage constant percentage), and (2)
7.5%.
(c) If there are any Non-Stabilized Properties included in the
Unencumbered Borrowing Base Properties, the Borrower and the Trust shall not
permit the Operating Cash Flow from the Unencumbered Borrowing Base Properties
for the period covered by the four (4) previous consecutive fiscal quarters
(treated as a single accounting period) to be less than 1.45 times the Implied
Unsecured Debt Service of the Borrower and the Trust for such period (provided
that for the purposes of this Section 9.5(c), any negative Operating Cash Flow
from an Unencumbered Borrowing Base Property shall be excluded and the Operating
Cash Flow from such Unencumbered Borrowing Base Property shall instead be deemed
to be zero).
SECTION 10. CLOSING CONDITIONS.
The obligations of the Agent and the Banks to enter into this Agreement and
to make the Loans or to issue Letters of Credit shall be subject to the
satisfaction of the following:
SECTION 10.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance reasonably satisfactory to
the Agent. The Agent shall have received a fully executed copy of each such
document, except that each Bank shall have received a fully executed counterpart
of its Note, if any.
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 Guarantors or any
of their respective Subsidiaries, as applicable, is organized or in which the
Real Estate is 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 organizational documents of the
Borrower, the Guarantors, or any Subsidiary, 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
Guarantors, 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
72
from the Trust true copies of the resolutions adopted by its board of directors
authorizing the transactions described herein, each 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 the Trust (with respect to the Borrower
and the Guarantors) and giving the name and bearing a specimen signature of each
individual who shall be authorized to sign, in the name and on behalf of the
Borrower and the Guarantors, 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 and the Guarantors as to such matters as the Agent shall
reasonably request.
SECTION 10.6. PAYMENT OF FEES. The Borrower shall have paid to KeyBank the
fees required to be paid at closing pursuant to Section 4.2.
SECTION 10.7. PERFORMANCE; NO DEFAULT. The Borrower and Guarantors 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, the Guarantors and their Subsidiaries in the
Loan Documents or otherwise made by or on behalf of the Borrower, the Guarantors
or any of their respective Subsidiaries in connection therewith or after the
date thereof shall have been true and correct in all material respects when made
and shall also be true and correct in all material respects on the 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 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. STOCKHOLDER AND PARTNER CONSENTS. The Agent shall have
received evidence satisfactory to the Agent that all necessary stockholder,
member and partner consents required in connection with the consummation of the
transactions contemplated by this Agreement and the other Loan Documents have
been obtained.
73
SECTION 10.11. 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 or the Trust has provided financial statements under Section 6.4,
adjusted in the best good faith estimate of the Borrower or the Guarantor, as
applicable, dated as of the date of this Agreement shall have been delivered to
the Agent.
SECTION 10.12. SATISFACTION OF EXISTING CREDIT AGREEMENTS. The outstanding
Indebtedness of the Borrower (as a borrower or guarantor) under the Fourth
Amended and Restated Master Revolving Credit Agreement dated as of December 30,
2002, as amended, the Second Amended and Restated Unsecured Revolving Loan
Agreement dated as of December 30, 2002, as amended, the Bridge Loan Agreement
dated as of September 9, 2005, as amended, and the Bridge Loan Agreement dated
as of July 11, 2005, as amended, shall be paid in full on the Closing Date, the
credit agreements relating thereto shall be terminated and any collateral
therefor shall be released.
SECTION 10.13. CONTRIBUTION AGREEMENT. The Agent shall have received a
fully executed counterpart of the Contribution Agreement.
SECTION 10.14. NO LEGAL IMPEDIMENT. No change shall have occurred in any
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 10.15. 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 10.16. APPRAISALS. The Agent shall have determined the Appraised
Value of each of the Unencumbered Borrowing Base Properties designated by
Borrower as of the Closing Date as Non-Stabilized Properties.
SECTION 10.17. OTHER. The Agent shall have reviewed such other documents,
instruments, certificates, opinions, assurances, consents and approvals as the
Agent or the Agent's Special Counsel may reasonably have requested.
SECTION 11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan or to issue Letters of
Credit, whether on or after the date of this Agreement, shall also be subject to
the satisfaction of the following conditions precedent:
SECTION 11.1. PRIOR CONDITIONS SATISFIED. All conditions set forth in
Section 10 shall continue to be satisfied as of the date upon which any Loan is
to be made or any Letter of Credit is to be issued.
SECTION 11.2. REPRESENTATIONS TRUE; NO DEFAULT. Each of the representations
and warranties made by or on behalf of the Borrower, the Guarantors 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
74
which they were made and shall also be true at and as of the time of the making
of such Loan or the issuance of such Letter of Credit 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 Trust signed by an
authorized officer of the Borrower and the Trust to such effect.
SECTION 11.3. BORROWING DOCUMENTS. In the case of any request for a Loan
and/or a Letter of Credit, as applicable, the Agent (and Issuing Bank with
respect to a request for a Letter of Credit) shall have received the request for
a Revolving Credit Loan required by Section 2.5 in the form of Exhibit E hereto,
fully completed and/or the Letter of Credit Application required by Section 2.9
in the form of Exhibit G 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 any of the Loans
after the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the Loans, any
reimbursement obligations with respect to the Letters of Credit, or any other
fees or sums due hereunder or under any of the other Loan Documents, within ten
(10) days after the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other date fixed
for payment;
(c) the Borrower or the Trust shall fail to comply with any covenant
contained in Section 9, and such failure shall continue for thirty (30) days
after written notice thereof shall have been given to the Borrower by the Agent;
provided, however, that in the event that Borrower or the Trust shall fail to
comply with the covenants set forth in Section 9.5, then the same shall not
constitute a Default hereunder in the event that Borrower prepays the Loans in
an amount sufficient such that Borrower and the Trust would be fully in
compliance with the covenants set forth in Section 9.5 within five (5) days of
the earlier to occur of (i) Borrower obtaining knowledge of such noncompliance,
(ii) Borrower reporting any such noncompliance, or (iii) receipt by Borrower of
written notice of such noncompliance from Agent; provided further, that during
any period in which Borrower or the Trust shall fail to be in compliance of any
covenant in Section 9.5, then the Banks shall have no obligation to make Loans
or to issue Letters of Credit;
(d) the Borrower or any 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 in this Section 12), and such failure shall continue for
75
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, any Guarantor or any of their respective Subsidiaries in this
Agreement or any other Loan Document, or in any report, certificate, financial
statement, request for a Loan, or in any other document or instrument delivered
pursuant to or in connection with this Agreement, any advance of a Loan or any
of the other Loan Documents shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower, any 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 or require the prepayment or
purchase thereof, provided that the events described in this Section 12.1(f)
shall not constitute an Event of Default unless such failure to perform,
together with other failures to perform as described in this Section 12.1(f),
involve singly or in the aggregate obligations for borrowed money or credit
received totaling in excess of $10,000,000.00;
(g) the Borrower, any 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, any
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, any Guarantor or any
of their respective Subsidiaries bankrupt or insolvent, or approving a petition
in any such case or other proceeding,
76
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 sixty (60) days, whether or not consecutive, any
uninsured final judgment against any of the Borrower, any Guarantor or any of
their respective Subsidiaries that, with other outstanding uninsured final
judgments, undischarged, against such Persons exceeds in the aggregate
$10,000,000.00;
(k) any of the Loan Documents or the Contribution Agreement 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 or the Contribution
Agreement shall be commenced by or on behalf of the Borrower, any 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 or the Contribution Agreement is illegal, invalid or
unenforceable in accordance with the terms thereof;
(l) any dissolution, termination, partial or complete liquidation,
merger or consolidation of the Borrower or the Trust or any of their respective
Subsidiaries or any sale, transfer or other disposition of the assets of the
Borrower, the Trust or any of their respective 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 or any
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, any 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, any Guarantor, any of their respective Subsidiaries
or any Person so connected with them shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any assets of Borrower, any
Guarantor or any of their respective Subsidiaries, including the Real Estate;
(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, any 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
77
PBGC or for the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee shall have been
appointed by the United States District Court to administer such Plan or the
PBGC shall have instituted proceedings to terminate such Guaranteed Pension
Plan;
(p) a Change of Control shall occur;
(q) either of the President or Chief Executive Officer of the Trust
approved by the Majority Banks as of the date of this Agreement shall cease to
be the President or Chief Executive Officer, as applicable, of the Trust and a
competent and experienced successor for such Person shall not be approved by the
Majority Banks within six (6) months of such event, such approval not to be
unreasonably withheld; or
(r) 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 (i) declare all amounts owing
with respect to this Agreement, the Notes, the Letters of Credit and the other
Loan Documents to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower, and (ii) require the
Borrower to immediately cash collateralize all outstanding Letters of Credit or
obtain replacement letters of credit for such Letters of Credit, all in a manner
satisfactory to the Issuing Bank and the Majority Banks; provided that in the
event of any Event of Default specified in Section 12.1(g), Section 12.1(h) or
Section 12.1(i), all such amounts shall become immediately due and payable
automatically without any requirement of presentment, demand, protest or other
notice of any kind from any of the Banks or the Agent.
SECTION 12.2. LIMITATION OF CURE PERIODS. Notwithstanding the provisions of
subsections (b), (c) and (d) of Section 12.1, the cure periods provided therein
shall not be allowed and the occurrence of a Default thereunder immediately
shall constitute an Event of Default for all purposes of this Agreement and the
other Loan Documents if, within the period of twelve (12) months immediately
preceding the occurrence of such Default, there shall have occurred two (2)
periods of cure or portions thereof under any one or more than one of said
subsections.
SECTION 12.3. TERMINATION OF COMMITMENTS. If any one or more Events of
Default specified in Section 12.1(g), Section 12.1(h) or Section 12.1(i) shall
occur, then immediately and without any action on the part of the Agent or any
Bank any unused portion of the credit hereunder shall terminate and the Banks
shall be relieved of all obligations to make Loans to the Borrower or to issue
Letters of Credit for the account of the Borrower. If any other Event of Default
shall have occurred, the Agent, upon the election of the Majority Revolving
Credit Banks, may by notice to the Borrower terminate the obligation to make
Revolving Credit Loans to the Borrower or to issue Letters of Credit for the
account of the Borrower or upon the election of the Swing Line Bank may
terminate the obligation to make Swing Line Loans to the Borrower. No
termination under this Section 12.3 shall relieve the Borrower of its
obligations to the Banks arising under this Agreement or the other Loan
Documents.
78
SECTION 12.4. REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, the Agent on
behalf of the Banks may, with the consent of the Majority Banks but not
otherwise, proceed to protect and enforce their rights and remedies under this
Agreement, the Notes, the Letters of Credit or any of the other Loan Documents
by suit in equity, action at law or other appropriate proceeding, whether for
the specific performance of any covenant or agreement contained in this
Agreement and the other Loan Documents or any instrument pursuant to which the
Obligations are evidenced, including to the full extent permitted by applicable
law the obtaining of the ex parte appointment of a receiver, and, if such amount
shall have become due, by declaration or otherwise, proceed to enforce the
payment thereof or any other legal or equitable right. No remedy herein
conferred upon the Agent or the holder of any of the Obligations 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 12.5. DISTRIBUTION OF PROCEEDS. In the event that, following the
occurrence or during the continuance of any Event of Default, any monies are
received in connection with the enforcement of any of the Loan Documents, or
otherwise with respect to the realization upon any of the assets of the Borrower
or the Guarantors, 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 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 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) Swing Line Loans
shall be repaid first, (ii) 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, (iii) in the event that any
Bank shall have wrongfully failed or refused to make an advance under Section
2.6, Section 2.9(f) or Section 2.10(c) 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), (iv)
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 as between Revolving Credit Loans and Term Loans shall be made pro rata, and
(v) 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
79
(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 any Guarantor and any securities or other property of the Borrower or any
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; provided that no Bank shall
exercise such right of setoff without the prior approval of the Agent. Each of
the Banks agrees with each other Bank that if such Bank shall receive from the
Borrower or any Guarantor, whether by voluntary payment, exercise of the right
of setoff, or otherwise, and shall retain and apply to the payment of the
Obligations owed to such Bank (but excluding any Swing Line Note) any amount in
excess of its ratable portion of the payments received by all of the Banks with
respect to the Obligations 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 Obligations
held by it its proportionate payment as contemplated by this Agreement; provided
that if all or any part of such excess payment is thereafter recovered from such
Bank, such disposition and arrangements shall be rescinded and the amount
restored to the extent of such recovery, but without interest.
SECTION 14. THE AGENT.
SECTION 14.1. AUTHORIZATION. The Agent is authorized to take such action on
behalf of each of the Banks and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto, provided
that no duties or responsibilities not expressly assumed herein or therein shall
be implied to have been assumed by the Agent. The obligations of the Agent
hereunder are primarily administrative in nature, and nothing contained in this
Agreement or any of the other Loan Documents shall be construed to constitute
the Agent as a trustee for any Bank or to create any agency or fiduciary
relationship. Agent shall act as the contractual representative of the Banks
hereunder, and notwithstanding the use of the term "Agent" it is understood and
agreed that Agent shall not have any fiduciary duties or 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 rights and duties of which are limited
to those expressly set forth in this Loan Agreement and the other Loan
Documents. The Borrower and any other Person shall be entitled to conclusively
rely on a statement from the Agent that it has the authority to act for and bind
the Banks pursuant to this Agreement and the other Loan Documents.
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
80
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. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Banks, unless the Agent
has received notice from a Bank or the Borrower referring to the Loan Documents
and describing with reasonable specificity such Default or Event of Default and
stating that such notice is a "notice of default".
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 Obligations, 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 Obligations, or for any recitals
or statements, warranties or representations made herein or any agreement,
instrument or certificate delivered in connection therewith or in any of the
other Loan Documents or in any certificate or instrument hereafter furnished to
it by or on behalf of the Borrower, the Guarantor or any of their respective
Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or in
any other of the Loan Documents. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to it by the Borrower,
the Guarantor, any of their respective Subsidiaries or any holder of any of the
Obligations shall have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it now make any representations or warranties,
express or implied, nor does it assume any liability to the Banks, with respect
to the creditworthiness or financial condition of the Borrower, the Guarantors
or any of their respective Subsidiaries or the value of any of the assets of the
Borrower, the Guarantors 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. Agent's Special Counsel has only represented Agent and
KeyBank in connection with the Loan Documents and the only attorney-client
relationship or duty of care is between Agent's Special Counsel and Agent or
KeyBank. Each Bank has been independently represented by separate counsel on all
matters regarding the Loan Documents.
81
SECTION 14.5. PAYMENTS.
(a) A payment by the Borrower or the Guarantors 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 Borrower makes payments to Agent in immediately available funds on
or before the time required in this Agreement for such payment, and Agent fails
to distribute such amounts on the same Business Day as received, 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, (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, or (iii) to perform any other
obligation within the time period specified for performance, or if no time
period is specified, if such failure continues for a period of five (5) Business
Days after notice from the Agent, shall be deemed a defaulting Bank (a
"Defaulting Bank") and shall be deemed a Defaulting Bank until such time as such
delinquency is satisfied. In addition to the rights and remedies that may be
available to the Agent at law and in equity, a Defaulting Bank's right to
participate in the administration of the Loan Documents, including, without
limitation, any rights to consent to or direct any action or inaction of the
Agent pursuant to this Agreement or otherwise, or to be taken into account in
the calculation of Required Banks, Majority Banks or Majority Revolving Credit
Banks or any matter requiring approval of all of the Banks, shall be suspended
while such Bank is a Defaulting Bank. A Defaulting Bank shall be deemed to have
assigned any and all payments due to it from the Borrower and the Guarantors,
whether on account of outstanding Loans, interest, fees or otherwise, to the
remaining non-defaulting Banks for application to, and reduction of, their
respective pro rata shares of all outstanding Loans. The Defaulting Bank hereby
authorizes the
82
Agent to distribute such payments to the non-defaulting Banks in proportion to
their respective pro rata shares of all outstanding Loans. The provisions of
this Section shall apply and be effective regardless of whether an Event of
Default occurs and is then continuing, and notwithstanding (i) any other
provision of this Agreement to the contrary or (ii) any instruction of Borrower
as to its desired application of payments. The Agent shall be entitled to (i)
withhold or set off, and to apply to the payment of the obligations of any
Defaulting Bank any amounts to be paid to such Defaulting Bank under this
Agreement, (ii) to collect interest from such Bank for the period from the date
on which the payment was due at the rate per annum equal to the Federal Funds
Effective Rate plus two percent (2%), for each day during such period, and (iii)
bring an action or suit against such Defaulting Bank in a court of competent
jurisdiction to recover the defaulted obligations of such Defaulting Bank. A
Defaulting 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 non-defaulting Banks or as a result of other payments by the Defaulting
Banks to the non-defaulting 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 Obligation and 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 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, the Bank acting as
the Agent 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 Obligations and 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.
The Majority Banks may remove the Agent from its capacity as Agent in the event
of the Agent's willful misconduct or gross negligence. Any such removal or
resignation shall also constitute Agent's resignation as Swing Line Lender and
may, at such Agent's option, also constitute its resignation as Issuing Bank.
The Commitment Percentage of the Bank which is acting as Agent shall not be
taken into account in the calculation of Majority Banks for the purposes of
removing Agent in the event of the Agent's willful misconduct or gross
negligence. Upon any such resignation, the Majority Banks shall have the right
to appoint as a successor Agent, Swing Line Lender, and if applicable, Issuing
Bank, 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
83
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, Swing Line Lender and Issuing Bank shall be
reasonably acceptable to the Borrower. If no successor Agent, Swing Line Lender
and, if applicable, Issuing Bank shall have been so appointed by the Majority
Banks and shall have accepted such appointment within thirty (30) days after the
retiring Agent's giving of notice of resignation or the Majority Bank's removal
of the Agent, 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, Swing Line Lender and Issuing Bank, as applicable,
hereunder by a successor Agent, such successor Agent, Swing Line Lender and, if
applicable, Issuing Bank shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring or removed Agent,
Swing Line Lender and, if applicable, Issuing Bank, and the retiring or removed
Agent shall be discharged from its duties and obligations hereunder as Agent,
Swing Line Lender and, if applicable, Issuing Bank. If the resigning Agent shall
also resign as the Issuing Bank, such successor Agent shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or shall make other arrangements satisfactory to the
current Issuing Bank, in either case, to assume effectively the obligations of
the current Agent with respect to such Letters of Credit. After any retiring
Agent's resignation or removal, 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, Swing
Line Lender and Issuing Bank.
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 if so
requested by the Majority Banks and the Banks have provided to the Agent such
additional indemnities and assurances in accordance with their respective
Commitment Percentages against expenses and liabilities as the Agent may
reasonably request, shall proceed to exercise all or any legal and equitable and
other rights or remedies as it may have. The Majority Banks may direct the Agent
in writing as to the method and the extent of any such exercise, the Banks
hereby agreeing to indemnify and hold the Agent harmless in accordance with
their respective Commitment Percentages 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. BANKRUPTCY. In the event a bankruptcy or other insolvency
proceeding is commenced by or against Borrower or any Guarantor with respect to
the Obligations, the Agent shall have the sole and exclusive right to file and
pursue a joint proof claim on behalf of all Banks. Any votes with respect to
such claims or otherwise with respect to such proceedings shall be subject to
the vote of the Majority Banks, the Required Banks or all of the Banks as
required by this Agreement. Each Bank irrevocably waives its right to file or
pursue a separate proof of claim in any such proceedings unless Agent fails to
file such claim within thirty (30) days after receipt of written notice from the
Banks requesting that Agent file such proof of claim.
84
SECTION 14.12. APPROVALS. If consent is required for some action under this
Agreement, or except as otherwise provided herein an approval of the Banks, the
Required Banks, the Majority Banks or the Majority Revolving Credit Banks is
required or permitted under this Agreement, each Bank agrees to give the Agent,
within ten (10) Business Days of receipt of the request for action together with
all reasonably requested information related thereto (or such lesser period of
time required by the terms of the Loan Documents), notice in writing of approval
or disapproval (collectively "Directions") in respect of any action requested or
proposed in writing pursuant to the terms hereof. If consent is required for the
requested action, any Bank's failure to respond to a request for Directions
within the required time period shall be deemed to constitute a Direction to
take such requested action. In the event that any recommendation is not approved
by the requisite number of Banks and a subsequent approval on the same subject
matter is requested by Agent, then for the purposes of this paragraph each Bank
shall be required to respond to a request for Directions within five (5)
Business Days of receipt of such request. Agent and each Bank shall be entitled
to assume that any officer of the other Banks delivering any notice, consent,
certificate or other writing is authorized to give such notice, consent,
certificate or other writing unless Agent and such other Banks have otherwise
been notified in writing.
SECTION 14.13. BORROWER NOT BENEFICIARY. Except for the provisions of
Section 14.9 relating to the appointment of a successor Agent, the provisions of
this Section 14 are solely for the benefit of the Agent and the Banks, may not
be enforced by Borrower or any Guarantor, and except for the provisions of
Section 14.9, may be modified or waived without the approval or consent of
Borrower and Guarantors.
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), (c) the
reasonable fees, expenses and disbursements of the counsel to the Agent and any
local counsel to the Agent incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein (excluding, however, the preparation of agreements evidencing
participation granted under Section 18.4), each closing hereunder, and
amendments, modifications, approvals, consents or waivers hereto or hereunder,
(d) the reasonable fees, expenses and disbursements of the Agent incurred by the
Agent in connection with the preparation or interpretation of the Loan Documents
and other instruments mentioned herein, and the making of each advance
hereunder, (e) all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and costs, which attorneys may be employees of any Bank or the
Agent and the fees and costs of appraisers, engineers, investment bankers or
other experts retained by any Bank or the Agent) incurred by any Bank or the
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrower or the Guarantors or the
administration thereof after the occurrence of a Default or Event of Default and
(ii) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to the Agent's or any of the Bank's relationship
with the Borrower or the Guarantors, (f) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, UCC
filings, title rundowns, title searches or mortgage recordings, (g) all
reasonable fees, expenses and
85
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 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, and (i) all expenses relating to the use of Intralinks, SyndTrak
or any other similar system for the dissemination and sharing of documents and
information in connection with the syndication of the Loans. The covenants of
this Section 15 shall survive payment or satisfaction of payment of the
Obligations.
SECTION 16. INDEMNIFICATION.
The Borrower and the Trust, 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 brokerage, finders or similar fees
asserted against any Person indemnified under this Section 16 based upon any
agreement, arrangement or action made or taken, or alleged to have been made or
taken, by the Borrower, the Guarantors or any of their respective Subsidiaries,
(b) any condition of the Real Estate, (c) any actual or proposed use by the
Borrower or the Guarantors of the proceeds of any of the Loans or the Letters of
Credit, (d) any actual or alleged infringement of any patent, copyright,
trademark, service mark or similar right of any of the Borrower, the Guarantors
or any of their respective Subsidiaries, (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 Real Estate, (g) with
respect to the Borrower, the Guarantors 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), and (h) any use of
Intralinks, SyndTrak or any other system for the dissemination and sharing of
documents and information (other than any ongoing usage fees following the
closing of the transactions contemplated by this Agreement), in each case
including, without limitation, the reasonable fees and disbursements of counsel
and allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding; provided, however, that neither
the Borrower nor the Trust 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 Trust 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 Trust under this Section 16 are unenforceable for any reason,
the Borrower and the Trust 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.
86
SECTION 17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower, the Guarantors 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 or the issuance of any Letter of Credit, 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 or issue Letters of
Credit. The indemnification obligations of the Borrower and the Trust provided
herein and the other Loan Documents shall survive the full repayment of amounts
due and the termination of the obligations of the Banks hereunder and thereunder
to the extent provided herein and therein. All statements contained in any
certificate or other paper delivered to any Bank or the Agent at any time by or
on behalf of the Borrower, the Guarantors 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.
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 and the Issuing Bank shall have given their 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 Related
Fund of such Lender, 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 or Related Fund 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 with respect to the
Revolving Credit Commitment in the event an interest in the Revolving Credit
Loans is assigned, or of a constant, and not a varying, percentage of all of the
assigning Bank's rights and obligations under this Agreement with respect to the
Term Loan Commitment in the event an interest in the Term Loan is assigned, (c)
the parties to such assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter defined), an Assignment and Acceptance
Agreement (an "Assignment and Acceptance Agreement") in the form of Exhibit J
hereto, together with any Notes subject to such assignment, (d) in no event
shall any assignment be to any Person controlling, controlled by or under common
control with, or which is not otherwise free from influence or control by, any
of the Borrower or the Guarantors, (e) such assignee of a portion of the
Revolving Credit Loan shall have a net worth or unfunded capital commitments 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 Revolving Credit Loans of not less than $5,000,000 or in the Term Loans of
not less than $5,000,000 unless such assignment is to another Bank or a Related
Fund or unless such requirement is waived by the Borrower and the Agent, 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,
87
acceptance and recording, of such notice of assignment, (i) the assignee
thereunder shall be a party hereto and all other Loan Documents executed by the
Banks and, to the extent provided in such assignment, have the rights and
obligations of a Bank hereunder, and (ii) the assigning Bank shall, to the
extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in Section 18.2, be released from its obligations
under this Agreement. In connection with each assignment, the assignee shall
represent and warrant to the Agent, the assignor and each other Bank as to
whether such assignee is controlling, controlled by, under common control with
or is not otherwise free from influence or control by, the Borrower or the
Guarantors. Upon any such assignment, the Agent may unilaterally amend Schedule
1.1 to reflect any such assignment.
SECTION 18.2. REGISTER. The Agent for itself and on behalf of the Borrower
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
$3,500. Contemporaneous assignments by a Bank to multiple Related Funds will be
treated as a single assignment for the purposes of such registration fee.
SECTION 18.3. NEW NOTES. Upon its receipt of an assignment executed by the
parties to such assignment, together with each Note, if any, 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 if requested 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. Such new Notes shall
provide that they are replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such assignment and
shall otherwise be in substantially the form of the assigned Notes. The
surrendered Notes shall be canceled and returned to the Borrower.
SECTION 18.4. PARTICIPATIONS. Each Bank may sell participations to one or
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
any such sale or participation shall not affect the rights and duties of the
selling Bank hereunder to the Borrower, (b) such participation shall not entitle
such participant to any rights or privileges under this Agreement or any Loan
Documents, including without limitation, the right to approve waivers,
amendments or modifications, (c) such participant shall have no direct rights
against the Borrower or the Guarantors 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
88
or the Guarantors. 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. Any Term Loan Bank may with the consent of the
Agent pledge all or any portion of its rights and interests under this Agreement
(including all or any portion of its Term Loan Note) to a Person approved by
Agent.
SECTION 18.6. NO ASSIGNMENT BY BORROWER OR THE TRUST. Neither the Borrower
nor the Trust shall assign or transfer any of its rights or obligations under
any of the Loan Documents without the prior written consent of each of the
Banks.
SECTION 18.7. DISCLOSURE. The Borrower and the Trust 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.
In addition, the Banks may make disclosure of such information to any
contractual counterparty in swap agreements or such contractual counterparty's
professional advisors.
SECTION 18.8. AMENDMENTS TO LOAN DOCUMENTS. Upon any such assignment or
participation, the Borrower and the Trust 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-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,
89
without limitation, an Assignment and Acceptance Agreement 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 18.10. TITLED AGENTS. The Titled Agents shall not have any
additional rights or obligations under the Loan Documents, except for those
rights, if any, as a Bank.
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") 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, N.E.
Suite 1550
Atlanta, Georgia 30328
Attn: Daniel Silbert
Telecopy No.: (770) 510-2195
With a copy to:
McKenna Long & Aldridge LLP
5300 SunTrust Plaza
303 Peachtree Street
Atlanta, Georgia 30308
Attn: William F. Timmons, Esq.
Telecopy No.: (404) 527-4198
90
If to the Borrower or the 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 100
38500 Woodward Avenue
Bloomfield Hills, Michigan 48304-5048
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 if 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 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, or if sent by facsimile, upon receipt or the next Business Day if
received after 5:00 p.m. (Cleveland time) or on a day that is not a Business
Day. 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, the Trust, a Bank or Agent shall have the right from time to time and
at any time during the term of this Agreement to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
SECTION 20. RELATIONSHIP.
Neither the Agent nor any Bank has any fiduciary relationship with or
fiduciary duty to the Borrower, the Guarantors 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.
91
SECTION 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF
MICHIGAN AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE
OF LAW). THE BORROWER AND THE TRUST EACH AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
IN THE COURTS OF THE STATE OF OHIO OR THE STATE OF MICHIGAN OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR THE
TRUST BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 19. THE BORROWER AND THE TRUST
EACH HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
SECTION 22. HEADINGS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
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 TRUST, 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 TRUST
92
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
TRUST EACH (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK
OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE
AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (B) ACKNOWLEDGES THAT THE AGENT AND THE BANKS HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES
BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION
25.
SECTION 26. DEALINGS WITH THE BORROWER OR THE GUARANTORS.
The Agent, the Banks and their affiliates may accept deposits from, extend
credit to, invest in, act as trustee under indentures of, serve as financial
advisor of, and generally engage in any kind of banking, trust or other business
with the Borrower, the Guarantors and their respective Subsidiaries or any of
their affiliates regardless of the capacity of the Agent or the Bank hereunder.
The Banks acknowledge that, pursuant to such activities, the Agent, a Bank or
its affiliates may receive information regarding such Persons (including
information that may be subject to confidentiality obligations in favor of such
Person) and acknowledge that the Agent or such Bank, as applicable, shall be
under no obligation to provide such information to them.
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 the Guarantors
of any terms of this Agreement or such other instrument or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Majority Banks. Notwithstanding the foregoing,
(a) none of the following may occur without the written consent of each Bank: a
decrease in the rate of interest on the Loans; except as otherwise provided
herein, a change in the Maturity Date of the Loans; an increase or a non-pro
rata reduction in the amount of the Commitments of the Banks except pursuant to
Section 2.8 or 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 or the Guarantors 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, Required Banks or the Majority
Revolving Credit Banks or of any requirement for consent by the Majority Banks,
the Required Banks, the Majority Revolving Credit Banks or all of the Banks; or
an amendment of this Section 27, and (b) the provisions of Section 9 and any of
the definitions used therein may not be modified, amended or waived without the
written consent of the Required Banks. The amount of the Agent's fee payable for
the Agent's account and the provisions of Section 14 may not be amended or
waived without the
93
written consent of the Agent. The amount of the fees payable to the Issuing Bank
and the provisions relating to the Issuing Bank and the Letters of Credit may
not be amended or waived without the written consent of the Issuing Bank. The
provisions relating to Swing Line Loans or the Swing Line Lender may not be
amended or waived without the written consent of the Swing Line Lender. The
Borrower and the Guarantors 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 the Guarantors hereunder. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent or any Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower or the Guarantors
shall entitle the Borrower and the Guarantors to other or further notice or
demand in similar or other circumstances.
SECTION 28. SEVERABILITY.
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 29. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant, agreement
and obligation of the Borrower or the Trust 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 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.
94
SECTION 32. TRUST EXCULPATION.
Subject to the terms of this paragraph, all persons having a claim against
the Trust (as a Guarantor or general partner of Borrower), the general partner
of the Borrower whose signature is affixed hereto as said general partner,
hereunder or in connection with any matter that is the subject hereof, shall
look solely to (i) the Trust's interest and rights in the Borrower (as a general
partner or limited partner), (ii) the amount of any Net Offering Proceeds not
contributed to the Borrower, (iii) all accounts receivable, including the amount
of any Distributions received by the Trust from the Borrower and not distributed
to shareholders of the Trust as permitted by this Agreement, (iv) all rights and
claims (including amounts paid under) the Tax Indemnity Agreement, (v) all cash
and Short-term Investments in an amount in excess of $500,000.00, (vi) any other
assets which the Trust may now own or hereafter acquire with the consent of
Agent pursuant to Section 7.17, (vii) all documents and agreements in favor of
the Trust iN connection with any of the foregoing, (viii) 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 (ix) all extensions, additions, renewals and
replacements, substitutions, products or proceeds of any of the foregoing (the
"Attachable Assets"), and in no event shall the obligation of the Trust be
enforceable against any shareholder, trustee, officer, employee or agent of the
Trust personally. In no event shall any person have any claim against: (i) the
cash, Short-term Investments of the Trust and the property described in Schedule
6.29 hereto, all under the heading of "Other Permitted Assets", (ii) all
documents and agreements in favor of the Trust in connection with any of the
foregoing, (iii) 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 (iv) all
extensions, additions, renewals and replacements, substitutions, products or
proceeds of any of the foregoing (the "Other Permitted Assets"). The Agent and
the Banks have agreed to the terms of this Section 32 solely based upon thE
representation and covenant of Borrower and the Trust that the Trust does not
and will not own any assets other than the Attachable Assets and the Other
Permitted Assets. Notwithstanding anything in this Section 32 to the contrary,
the foregoing limitation on liabilitY and recourse to the Trust (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 the Trust,
individually as a Guarantor and in its capacity as general partner of Borrower,
and to all of its assets (including, without limitation, the Other Permitted
Assets) in the event that the Trust shall now or at any time hereafter own any
asset other than or in addition to the Other Permitted Assets and the Attachable
Assets. Nothing herein shall limit the rights of the Agent and the Banks against
the Borrower.
SECTION 33. PATRIOT ACT.
Each Bank and the Agent (for itself and not on behalf of any Bank) hereby
notifies the Borrower and Guarantors that, pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies Borrower, the Guarantors 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 Guarantors and
their respective Subsidiaries in accordance with the Patriot Act.
95
SECTION 34. OPTION TO COLLATERALIZE OBLIGATIONS.
The Borrower may, upon written notice to Agent, elect to grant liens on the
Unencumbered Borrowing Base Properties, the leases and rents therefrom and all
associated personal property and rights to the Agent for the benefit of the
Banks to secure the Obligations. In connection with such election, Borrower and
Guarantors shall deliver to Agent such mortgages, deeds of trust, deeds to
secure debt, assignments of leases and rents, assignments of management
agreements, UCC financing statements and other documents as Agent may reasonably
require, and Borrower shall provide such due diligence items (including, without
limitation, title insurance commitments and policies, surveys, subordination,
nondisturbance and attornment agreements, tenant estoppels, UCC searches and
legal opinions) as Agent may reasonably require. Borrower shall pay all costs
and expenses associated with the foregoing, including all reasonable fees and
expenses of Agent. Provided no Default or Event of Default shall have occurred
under the Loan Documents and be continuing (or be existing immediately after
giving effect to any release), the Agent shall release an Unencumbered Borrowing
Base Property from the lien or security title of such documents upon the request
of the Borrower and subject to such terms and conditions as Agent may reasonably
impose, provided that Agent shall not be permitted to release such liens until
Borrower shall pay to Agent for the account of the Banks a release price, which
payment shall be applied to reduce the outstanding principal balance of the
loans as provided in Section 3.3, such that Borrower and the Trust would not be
in violation of the covenants set forth in Section 7.19 or Section 9. In
connection with the granting of such liens and security interests, Borrower and
Guarantors shall enter into such amendments to the Loan Documents as Agent may
reasonably require to reflect the granting of such liens.
[SIGNATURE PAGES FOLLOW]
96
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST, a
Maryland real estate investment trust
By: /s/ Richard J. Smith
------------------------------------
Richard Smith
Chief Financial Officer
RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership
By: Ramco-Gershenson Properties Trust, a
Maryland real estate investment trust,
its General Partner
By: /s/ Richard J. Smith
------------------------------------
Richard Smith
Chief Financial Officer
KEYBANK NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Daniel L. Silbert
------------------------------------
Name: Daniel L. Silbert
Title: Vice President
JPMORGAN CHASE BANK, N.A.,
individually and as Co- Syndication
Agent
By: /s/ Elizabeth D. Lilley
------------------------------------
Name: Elizabeth D. Lilley
Title: First Vice President
[signature page to unsecured master loan agreement]
BANK OF AMERICA, N.A.
individually and as Co-Syndication Agent
By: /s/ Michael W. Edwards
------------------------------------
Name: Michael W. Edwards
Title: Senior Vice President
DEUTSCHE BANKTRUST COMPANY
individually and as Documentation Agent
By: /s/ Alexander B.V. Johnson
------------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Joanna Soliman
------------------------------------
Name: Joanna Soliman
Title: Associate
LASALLE BANK MIDWEST NATIONAL
ASSOCIATION
By: /s/ Scott. M. McLean
------------------------------------
Name: Scott. M. McLean
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ James A. Harmann
------------------------------------
Name: James A. Harmann
Title: Vice President
COMMERZBANK AG NEW YORK AND GRAND CAYMAN
BRANCHES
By: /s/ Christian Betry
------------------------------------
Name: Christian Betry
Title: Vice President
By: /s/ Judy Tam
------------------------------------
Name: Judy Tam
Title: Assistant Vice President
2
COMERICA BANK
By: /s/ Jessica Kempf
------------------------------------
Name: Jessica Kempf
Title: Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ Michael S. Vieregge
------------------------------------
Name: Michael S. Vieregge
Title: Senior Vice President
FIFTH THIRD BANK, A MICHIGAN
BANKING CORPORATION
By: /s/ Timothy J. Kalil
------------------------------------
Name: Timothy J. Kalil
Title: Vice President
3
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$18,000,000.00 December 13, 2005
FOR VALUE RECEIVED, the undersigned RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership, hereby promises to pay to JPMORGAN CHASE BANK,
N.A.or order, in accordance with the terms of that certain Unsecured Master Loan
Agreement dated as of December 13, 2005 (the "Loan Agreement"), as from time to
time in effect, among the undersigned, 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 Revolving Credit Maturity Date, the
principal sum of EIGHTEEN MILLION AND NO/100__ Dollars ($18,000,000.00), or such
amount as may be advanced by the payee hereof under the Loan Agreement as
Revolving Credit Loans 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 Revolving Credit 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
A-1
or, if such excessive interest exceeds the unpaid balance of principal of the
Obligations of the undersigned Borrower, such excess shall be refunded to the
undersigned Borrower. All interest paid or agreed to be paid to the Banks shall,
to the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations of the undersigned Borrower (including the period of any renewal or
extension thereof) so that the interest thereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between the undersigned Borrower and the Banks and the
Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said 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.
Recourse to the general partner of the Borrower shall be limited as
provided in Section 32 of the Loan Agreement.
IN WITNESS WHEREOF the undersigned has by its duly authorized officers,
executed this Note under seal as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
a Maryland real estate investment
trust, its General Partner
By:
------------------------------------
Title:
---------------------------------
A-2
EXHIBIT B
FORM OF TERM LOAN NOTE
$_________________ __________, 2005
FOR VALUE RECEIVED, the undersigned RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership, hereby promises to pay to
__________________________________or order, in accordance with the terms of that
certain Unsecured Master Loan Agreement dated as of December 13, 2005 (the "Loan
Agreement"), as from time to time in effect, among the undersigned, KeyBank
National Association, for itself and as Agent, and such other Banks as may be
from time to time named therein, to the extent not sooner paid, on or before the
Term Loan Maturity Date, the principal sum of __________________________ Dollars
($_____________), 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 Term Loan 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
B-1
paid or agreed to be paid to the Banks shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
period until payment in full of the principal of the Obligations of the
undersigned Borrower (including the period of any renewal or extension thereof)
so that the interest thereon for such full period shall not exceed the maximum
amount permitted by applicable law. This paragraph shall control all agreements
between the undersigned Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said 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.
Recourse to the general partner of the Borrower shall be limited as
provided in Section 32 of the Loan Agreement.
IN WITNESS WHEREOF the undersigned has by its duly authorized officers,
executed this Note under seal as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
a Maryland real estate investment
trust, its General Partner
By:
------------------------------------
Title:
---------------------------------
B-2
EXHIBIT C
FORM OF SWING LINE NOTE
$____________ _____________, 2005
FOR VALUE RECEIVED, the undersigned, RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership ("Maker"), hereby promises to pay to KEYBANK
NATIONAL ASSOCIATION ("Payee"), or order, in accordance with the terms of that
certain Unsecured Master Loan Agreement, dated as of December 13, 2005, as from
time to time in effect, among Maker, KeyBank National Association, for itself
and as Agent, such other Banks as may be from time to time named therein (the
"Loan Agreement"), and certain other parties, to the extent not sooner paid, on
or before the Revolving Credit Maturity Date, the principal sum of
_________________ ($__________), or such amount as may be advanced by the Payee
under the Loan Agreement as a Swing Line Loan with daily interest from the date
thereof, 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 the Agent for the Payee at 127 Public
Square, Cleveland, Ohio 44114-1306, or at such other address as Agent may
designate from time to time.
This Note is one of one or more Swing Line 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 Revolving Credit Maturity Date 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 Maker 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 Maker and to the payment
of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations of the
C-1
undersigned Maker, such excess shall be refunded to the undersigned Maker. 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 Maker (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 Maker and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Loan Agreement.
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).
Recourse to the general partner of Borrower shall be limited as provided in
Section 32 of the Loan Agreement.
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.
IN WITNESS WHEREOF, the undersigned has duly executed this Note under seal
on the day and year first above written.
BORROWER:
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership, by its
sole general partner
By: Ramco-Gershenson Properties Trust,
a Maryland real estate investment
trust
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-2
EXHIBIT D
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT ("Joinder Agreement") is executed as of
__________________, 20__, by _______________________________, a
__________________________ ("Joining Party"), and delivered to KeyBank National
Association, as Agent, pursuant to Section 5.2 of the Unsecured Master Loan
Agreement dated as of December 13, 2005, as from time to time in effect (the
"Credit Agreement"), among Ramco-Gershenson Properties, L.P. (the "Borrower"),
Ramco-Gershenson Properties Trust (the "Trust"), KeyBank National Association,
for itself and as Agent, and the other Banks from time to time party thereto.
Terms used but not defined in this Joinder Agreement shall have the meanings
defined for those terms in the Credit Agreement.
RECITALS
A. Joining Party is required, pursuant to Section 5.2 of the Credit
Agreement, to become an additional Subsidiary Guarantor under the Guaranty and
the Contribution Agreement.
B. Joining Party expects to realize direct and indirect benefits as a
result of the availability to Borrower of the credit facilities under the Credit
Agreement.
NOW, THEREFORE, Joining Party agrees as follows:
AGREEMENT
1. Joinder. By this Joinder Agreement, Joining Party hereby becomes a
"Subsidiary Guarantor" and a "Guarantor" under the Credit Agreement, the
Guaranty and the other Loan Documents with respect to all the Obligations of
Borrower now or hereafter incurred under the Credit Agreement and the other Loan
Documents, and a "Subsidiary Guarantor" under the Contribution Agreement.
Joining Party agrees that Joining Party is and shall be bound by, and hereby
assumes, all representations, warranties, covenants, terms, conditions, duties
and waivers applicable to a Subsidiary Guarantor and a Guarantor under the
Credit Agreement, the Guaranty, the other Loan Documents and the Contribution
Agreement.
2. Representations and Warranties of Joining Party. Joining Party
represents and warrants to Agent that, as of the Effective Date (as defined
below), except as disclosed in writing by Joining Party to Agent on or prior to
the date hereof and approved by the Agent in writing (which disclosures shall be
deemed to amend the Schedules and other disclosures delivered as contemplated in
the Credit Agreement), the representations and warranties contained in the
Credit Agreement and the other Loan Documents are true and correct in all
material respects as applied to Joining Party as a Subsidiary Guarantor and a
Guarantor on and as of the Effective Date as though made on that date. As of the
Effective Date, all covenants and agreements in the Loan Documents and the
Contribution Agreement of the Subsidiary Guarantors are true and correct with
respect to Joining Party and no Default or Event of Default shall exist or might
exist upon the Effective Date in the event that Joining Party becomes a
Subsidiary Guarantor.
D-1
3. Joint and Several. Joining Party hereby agrees that, as of the Effective
Date, the Guaranty and the Contribution Agreement heretofore delivered to the
Agent and the Banks shall be a joint and several obligation of Joining Party to
the same extent as if executed and delivered by Joining Party, and upon request
by Agent, will promptly become a party to the Guaranty and the Contribution
Agreement to confirm such obligation.
4. Further Assurances. Joining Party agrees to execute and deliver such
other instruments and documents and take such other action, as the Agent may
reasonably request, in connection with the transactions contemplated by this
Joinder Agreement.
5. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL
OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF MICHIGAN (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES OF ANY JURISDICTION).
6. Counterparts. This Agreement may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
7. The effective date (the "Effective Date") of this Joinder Agreement is
_________________, 20__.
IN WITNESS WHEREOF, Joining Party has executed this Joinder Agreement under
seal as of the day and year first above written.
"JOINING PARTY"
_______________________________________,
a______________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[SEAL]
ACKNOWLEDGED:
KEYBANK NATIONAL ASSOCIATION, as Agent
By:
---------------------------------
Its:
--------------------------------
[Printed Name and Title]
D-2
EXHIBIT E
FORM OF REQUEST FOR LOAN
KeyBank National Association, as Agent
1200 Abernathy Road, N.E.
Suite 1550
Atlanta, Georgia 30328
Attn: Mr. Daniel L. Silbert
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.5 of the Unsecured Master Loan
Agreement dated as of December 13, 2005, as from time to time in effect (the
"Credit Agreement"), among Ramco-Gershenson Properties, L.P. (the "Borrower"),
Ramco-Gershenson Properties Trust (the "Trust"), KeyBank National Association,
for itself and as Agent, and the other Banks from time to time party thereto,
the undersigned Borrower and the Trust hereby request and certify as follows:
1. Loan. The undersigned Borrower hereby requests a Revolving Credit Loan
under Section 2.1 of the Credit Agreement:
Principal Amount: $___________________________
Type (LIBOR, Base Rate): _____________________
Drawdown Date: _______________________, 200___
Interest Period: _____________________________
by credit to the general account of the undersigned Borrower with the Agent at
the Agent's Head Office.
2. Use of Proceeds. Such Loan shall be used for purposes permitted by
Section 7.11 of the Credit Agreement.
3. No Default. The undersigned chief executive officer, chief financial or
chief accounting officer of the Trust and the general partner of the Borrower
certifies that each of the Borrower and the Guarantors is and will be in
compliance with all covenants under the Loan Documents after giving effect to
the making of the Loan requested hereby.
4. Representations True. Each of the representations and warranties made by
or on behalf of the Borrower, the Guarantors and their respective Subsidiaries
contained in the Credit Agreement, in the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with the Credit
Agreement was true as of the date as of which it was made and
E-1
shall also be true at and as of the Drawdown Date for the Loan requested hereby,
with the same effect as if made at and as of such Drawdown Date (except to the
extent of changes resulting from transactions contemplated or permitted by the
Credit Agreement and the other Loan Documents and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, and except to the extent that such representations and warranties
relate expressly to an earlier date) and no Default or Event of Default has
occurred and is continuing.
5. Other Conditions. All other conditions to the making of the Loan
requested hereby set forth in Section 11 of the Credit Agreement have been
satisfied.
6. Drawdown Date. Except to the extent, if any, specified by notice
actually received by the Agent prior to the Drawdown Date specified above, the
foregoing representations and warranties shall be deemed to have been made by
the Borrower on and as of such Drawdown Date.
7. Definitions. Terms defined in the Credit Agreement are used herein with
the meanings so defined.
IN WITNESS WHEREOF, we have hereunto set our hands this ___ day of
_____________, 200___.
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
its General Partner
By: /s/
------------------------------------
Title:
---------------------------------
RAMCO-GERSHENSON PROPERTIES TRUST
By:
------------------------------------
Title:
---------------------------------
E-2
EXHIBIT F
FORM OF SWING LINE LOAN NOTICE
Date: December 13, 2005
To: KeyBank National Association, as Swing Line Lender
KeyBank National Association, as Agent
1200 Abernathy Road, N.E.
Suite 1550
Atlanta, Georgia 30328
Attn: Daniel L. Silbert
Ladies and Gentlemen:
Reference is made to that certain Unsecured Master Loan Agreement, dated as of
December 13, 2005 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among RAMCO-GERSHENSON
PROPERTIES, L.P. (the "Borrower"), RAMCO-GERSHENSON PROPERTIES TRUST (the
"Trust") the Banks from time to time party thereto, and KeyBank National
Association, as Agent, Swing Line Lender, and certain other parties.
The undersigned hereby requests a Swing Line Loan:
1. On ____________________________ (a Business Day).
2. In the amount of $__________________.
The Swing Line Borrowing requested herein complies with the requirements of the
provisos to the first sentence of Section 2.10(a) of the Agreement.
BORROWER:
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership, by
its sole general partner
By: Ramco-Gershenson Properties Trust,
a Maryland real estate investment
trust
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1
EXHIBIT G
LETTER OF CREDIT APPLICATION
G-1
EXHIBIT H
FORM OF REQUEST FOR EXTENSION OF LOANS
KeyBank National Association, as Agent
1200 Abernathy Road, N.E.
Suite 1550
Atlanta, Georgia 30328
Attention: Daniel L. Silbert
Ladies and Gentlemen:
Pursuant to the provisions of Section 4.15 of the Unsecured Master Loan
Agreement, dated as of December 13, 2005, as amended, restated, extended,
supplemented or otherwise modified from time to time (the "Loan Agreement"),
among RAMCO-GERSHENSON PROPERTIES, L. P., a Delaware limited partnership
("Borrower"), RAMCO-GERSHENSON PROPERTIES TRUST, a Maryland real estate
investment trust (the "Trust") and KeyBank National Association, as a Bank and
as Agent, and the other Banks from time to time party thereto, Borrower hereby
requests and certifies as follows:
1. Extension Request. Borrower hereby irrevocably requests that the
Revolving Credit Maturity Date be extended to December ___, 20___.
2. No Default. The undersigned chief financial or chief accounting officer
of Borrower certifies that no Default or Event of Default has occurred and is
continuing.
3. Other Conditions. All other conditions to the extension to the Revolving
Credit Maturity Date requested hereby set forth in Section 4.15 of the Loan
Agreement have been satisfied.
4. Definitions. Terms defined in the Loan Agreement are used herein with
the meanings so defined.
[remainder of page intentionally left blank]
H-1
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
______________, 200___.
BORROWER:
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership, by
its sole general partner
By: Ramco-Gershenson Properties Trust,
a Maryland real estate investment
trust
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
H-2
EXHIBIT I
FORM OF COMPLIANCE CERTIFICATE
KeyBank National Association, as Agent
1200 Abernathy Road, N.E.
Suite 1550
Atlanta, Georgia 30328
Attn: Mr. Daniel L. Silbert
Ladies and Gentlemen:
Reference is made to the Unsecured Master Loan Agreement dated as of
December 13, 2005 (the "Loan Agreement") by and among Ramco-Gershenson
Properties, L.P. (the "Borrower"), Ramco-Gershenson Properties Trust (the
"Trust"), 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 is furnishing to you herewith
(or have most recently furnished to you) the financial statements of the
Borrower, the Trust 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 Trust
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) or Section 10.11 of the Loan Agreement or such other provision of the
Loan Agreement requiring the delivery of a Compliance Certificate. 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 Trust and their respective Subsidiaries as of the Balance Sheet
Date adjusted in the best good-faith estimate of the Borrower and the Trust to
give effect to the making of a Loan, acquisition or disposition of property or
other event that occasions the preparation of this certificate; and the nature
of such event and the Borrower's and the Guarantor's estimate of its effects are
set forth in reasonable detail in an attachment hereto. The undersigned officer
is the chief financial or chief accounting officer of the Trust and of the
general partner of the Borrower.
The undersigned officers have caused the provisions of the Loan Documents
to be reviewed and have no knowledge of any Default or Event of Default. [Note:
If the signers do have knowledge of any Default or Event of Default, the form of
certificate should be revised to specify the Default or Event of Default, the
nature thereof and the actions taken, being taken or proposed to be taken by the
Borrower and the Trust with respect thereto.]
The Borrower and the Trust are attaching hereto the Unencumbered Borrowing
Base Property Certificate and supporting information.
I-1
The Borrower and the Trust are providing the attached information to
demonstrate compliance as of the date hereof with the covenants described in the
attachment hereto.
IN WITNESS WHEREOF, we have hereunto set our hand this ____ day of
_____________, 200__.
RAMCO-GERSHENSON PROPERTIES, L.P.
By: Ramco-Gershenson Properties Trust,
its General Partner
By:
------------------------------------
Title:
---------------------------------
RAMCO-GERSHENSON PROPERTIES TRUST
By:
------------------------------------
Title:
---------------------------------
I-2
APPENDIX A
TO
COMPLIANCE CERTIFICATE
[TO BE ATTACHED]
I-3
EXHIBIT J
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement") dated
_____________, _____, by and between _________________________________
("Assignor"), and ____________________________ ("Assignee").
WITNESETH:
WHEREAS, Assignor is a party to that certain Unsecured Master Loan
Agreement, dated December 13, 2005, by and among Ramco-Gershenson Properties,
L.P., a Delaware limited partnership ("Borrower"), Ramco-Gershenson Properties
Trust (the "Trust"), KeyBank National Association, the other Banks that are or
may become a party thereto, and KeyBank National Association, as Agent (the
"Loan Agreement"); and
WHEREAS, Assignor desires to transfer to Assignee a [REVOLVING CREDIT]
[TERM LOAN] Commitment under the Loan Agreement and its rights with respect to
the Commitment assigned and its Outstanding Loans with respect thereto;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
1. Definitions. Terms defined in the Loan Agreement and used herein without
definition shall have the respective meanings assigned to such terms in the Loan
Agreement.
2. Assignment.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by Assignee to Assignor pursuant to
Paragraph 5 of this Agreement, effective as of the "Assignment Date" (as defined
in Paragraph 7 below), Assignor hereby irrevocably sells, transfers and assigns
to Assignee, without recourse, a $_______________ [REVOLVING CREDIT] [TERM LOAN]
Commitment, and a ____________________ percent (_____%) [REVOLVING CREDIT] [TERM
LOAN] Commitment Percentage, and a corresponding interest in and to all of the
other rights and obligations under the Loan Agreement and the other Loan
Documents (the assigned interests being hereinafter referred to as the "Assigned
Interests"), including Assignor's share of all outstanding [REVOLVING CREDIT]
[TERM] Loans with respect to the Assigned Interests and the right to receive
interest and principal on and all other fees and amounts with respect to the
Assigned Interests, all from and after the Assignment Date, all as if Assignee
were an original Bank under and signatory to the Loan Agreement having a
[REVOLVING CREDIT] [TERM LOAN] Commitment Percentage equal to the amount of the
respective Assigned Interests.
(b) Assignee, subject to the terms and conditions hereof, hereby
assumes all obligations of Assignor with respect to the Assigned Interests from
and after the Assignment Date as if Assignee were an original Bank under and
signatory to the Loan Agreement, which obligations shall include, but shall not
be limited to, the obligation to make [REVOLVING CREDIT] [TERM] Loans to the
Borrower with respect to the Assigned Interests and to indemnify the Agent
J-1
as provided therein (such obligations, together with all other obligations set
forth in the Loan Agreement and the other Loan Documents are hereinafter
collectively referred to as the "Assigned Obligations"). Assignor shall have no
further duties or obligations with respect to, and shall have no further
interest in, the Assigned Obligations or the Assigned Interests.
3. Representations and Requests of Assignor.
(a) Assignor represents and warrants to Assignee (i) that it is
legally authorized to, and has full power and authority to, enter into this
Agreement and perform its obligations under this Agreement; (ii) that as of the
date hereof, before giving effect to the assignment contemplated hereby the
amount of Assignor's [REVOLVING CREDIT] [TERM LOAN] Commitment is $____________
and the aggregate outstanding principal balance of the [REVOLVING CREDIT] [TERM]
Loans made by it equals $____________, and (iii) that it has forwarded to the
Agent the [REVOLVING CREDIT] [TERM LOAN] Note held by Assignor, if any. Assignor
makes no representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Documents or the execution, legality,
validity, enforceability, genuineness or sufficiency of any Loan Document or any
other instrument or document furnished pursuant thereto or in connection with
the Loan, the collectability of the Loans, the continued solvency of the
Borrower or the Guarantors or the continued existence, sufficiency or value of
any assets of the Borrower or the Guarantors which may be realized upon for the
repayment of the Loans, or the performance or observance by the Borrower or the
Guarantors of any of their respective obligations under the Loan Documents to
which it is a party or any other instrument or document delivered or executed
pursuant thereto or in connection with the Loan; other than that it is the legal
and beneficial owner of, or has the right to assign, the interests being
assigned by it hereunder and that such interests are free and clear of any
adverse claim.
(b) If the applicable box is checked below, Assignor requests that the
Agent obtain replacement notes for each of Assignor and Assignee as provided in
the Loan Agreement.
[ ] Replacement Note Requested for Assignor
[ ] Replacement Note Requested for Assignee
4. Representations of Assignee. Assignee makes and confirms to the Agent,
Assignor and the other Banks all of the representations, warranties and
covenants of a Bank under Articles 14 and 18 of the Loan Agreement. Without
limiting the foregoing, Assignee (a) represents and warrants that it is legally
authorized to, and has full power and authority to, enter into this Agreement
and perform its obligations under this Agreement; (b) confirms that it has
received copies of such documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Agreement; (c)
agrees that it has and will, independently and without reliance upon Assignor,
any other Bank, the Agent or any Titled Agent and based upon such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in evaluating the Loans, the Loan Documents, the
creditworthiness of the Borrower and the Guarantors and the value of the assets
of the Borrower and the Guarantors, and taking or not taking action under the
Loan Documents; (d) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers as are reasonably incidental
thereto pursuant to the terms of the Loan Documents; (e) agrees that, by this
Assignment, Assignee has become a party to and will perform in accordance with
their terms
J-2
all the obligations which by the terms of the Loan Documents are required to be
performed by it as a Bank; (f) represents and warrants that Assignee is not a
Person controlling, controlled by or under common control with, or which is not
otherwise free from influence or control by, any of the Borrower or the
Guarantors; (g) agrees that if Assignee is not incorporated under the laws of
the United States of America or any State, it has on or prior to the date hereof
delivered to Borrower and Agent certification as to its exemption or
non-exemption from deduction or withholding of any United States federal income
taxes; and (h) if Assignee is an assignee of a portion of the Revolving Credit
Loans, it has a net worth or unfunded capital commitment as of the date hereof
of not less than $500,000,000.00 unless waived in writing by Borrower and Agent.
5. Payments to Assignor. In consideration of the assignment made pursuant
to Paragraph 1 of this Agreement, Assignee agrees to pay to Assignor on the
Assignment Date, an amount pursuant to their separate agreement representing the
aggregate principal amount outstanding of the [REVOLVING CREDIT] [TERM] Loans
owing to Assignor under the Loan Agreement and the other Loan Documents with
respect to the Assigned Interests.
6. Payments by Assignor. Assignor agrees to pay the Agent on the Assignment
Date the registration fee required by Section 18.2 of the Loan Agreement.
7. Effectiveness.
(a) The effective date for this Agreement shall be _______________
(the "Assignment Date"). Following the execution of this Agreement, each party
hereto shall deliver its duly executed counterpart hereof to the Agent for
acceptance and recording in the Register by the Agent.
(b) Upon such acceptance and recording and from and after the
Assignment Date, (i) Assignee shall be a party to the Loan Agreement and, to the
extent of the Assigned Interests, have the rights and obligations of a Bank
thereunder, and (ii) Assignor shall, with respect to the Assigned Interests,
relinquish its rights and be released from its obligations under the Loan
Agreement.
(c) Upon such acceptance and recording and from and after the
Assignment Date, the Agent shall make all payments in respect of the rights and
interests assigned hereby accruing after the Assignment Date (including payments
of principal, interest, fees and other amounts) to Assignee.
(d) All outstanding LIBOR Rate Loans shall continue in effect for the
remainder of their applicable Interest Periods and Assignee shall accept the
currently effective interest rates on its Assigned Interest of each LIBOR Rate
Loan.
8. Notices. Assignee specifies as its address for notices and its Lending
Office for all assigned Loans, the offices set forth below:
J-3
Notice Address: _________________________
_________________________
_________________________
_________________________
Attn: ___________________
Facsimile: ______________
Domestic Lending Office: Same as above
LIBOR Lending Office: Same as above
9. Payment Instructions. All payments to Assignee under the Loan Agreement
shall be made as provided in the Loan Agreement in accordance with the following
instructions:
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
10. Governing Law. THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED
INSTRUMENT FOR ALL PURPOSES AND TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF MICHIGAN (WITHOUT REFERENCE TO CONFLICT OF LAWS).
11. Counterparts. This Agreement may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
12. Amendments. This Agreement may not be amended, modified or terminated
except by an agreement in writing signed by Assignor and Assignee, and consented
to by Agent.
13. Successors. This Agreement shall inure to the benefit of the parties
hereto and their respective successors and assigns as permitted by the terms of
Loan Agreement.
[signatures on following page]
J-4
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Agreement to be executed on its behalf by its officers thereunto
duly authorized, as of the date first above written.
ASSIGNEE:
By:
------------------------------------
Title:
---------------------------------
ASSIGNOR:
By:
------------------------------------
Title:
---------------------------------
RECEIPT ACKNOWLEDGED AND
ASSIGNMENT CONSENTED TO BY:
KEYBANK NATIONAL ASSOCIATION,
as Agent
By:
------------------------------------
Title:
---------------------------------
J-5
ASSIGNMENT APPROVED BY:
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
a Maryland real estate investment
trust, its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
J-6
SCHEDULE 1.1
BANKS AND COMMITMENTS
REVOLVING CREDIT LOAN
Revolving Credit
Revolving Credit Commitment
Commitment Percentage
---------------- ----------------
KeyBank National Association $18,000,000.00 12.00%
127 Public Square
8th Floor
Cleveland, Ohio 44114-1306
LIBOR Lending Office
Same as above
JPMorgan Chase Bank, N.A. $18,000,000.00 12.00%
611 Woodward Avenue
MII-8029
Detroit, Michigan 48226
LIBOR Lending Office
Same as above
Bank of America, N.A. $18,000,000.00 12.00%
IL1-231-10-35
231 S. LaSalle Street
Chicago, Illinois 60697
LIBOR Lending Office
Same as above
Deutsche Bank Trust Company $18,000,000.00 12.00%
Americas
MS Dal 03-0550
Suite 550
200 Crescent Court
Dallas, Texas 75201-1875
LIBOR Lending Office
Same as above
SCHEDULE 1.1 - PAGE 1
Revolving Credit
Revolving Credit Commitment
Commitment Percentage
---------------- ----------------
LaSalle Bank Midwest National $15,000,000.00 10.00%
Association
Commercial Real Estate
2600 W. Big Beaver Road
Troy, Michigan 48084
LIBOR Lending Office
Same as above
PNC Bank, National Association $15,000,000.00 10.00%
201 East Fifth Street, 2nd Floor
Cincinnati, Ohio 45202
LIBOR Lending Office
Same as above
Comerica Bank $15,000,000.00 10.00%
500 Woodward Avenue
7th Floor
Detroit, Michigan 48226-3256
LIBOR Lending Office
Same as above
Commerzbank AG New York and $15,000,000.00 10.00%
Grand Cayman Branches
2 World Financial Center
New York, New York 10281
LIBOR Lending Office
Same as above
The Huntington National Bank $ 9,000,000.00 6.00%
803 W. Big Beaver Road
Suite 202
Troy, Michigan 48084
LIBOR Lending Office
Same as above
SCHEDULE 1.1 - PAGE 2
Revolving Credit
Revolving Credit Commitment
Commitment Percentage
---------------- ----------------
Fifth Third Bank $ 9,000,000.00 6.00%
1000 Town Center
Suite 1500
Mailcode MD JTWN5H
Southfield, Michigan 48075
Total $150,000,000.00 100%
SCHEDULE 1.1 - PAGE 3
TERM LOAN
Term Loan
Term Loan Commitment
Commitment Percentage
-------------- ----------
KeyBank National Association $17,000,000.00 17.00%
127 Public Square
8th Floor
Cleveland, Ohio 44114-1306
LIBOR Lending Office
Same as above
JPMorgan Chase Bank, N.A. $12,000,000.00 12.00%
611 Woodward Avenue
MII-8029
Detroit, Michigan 48226
LIBOR Lending Office
Same as above
Bank of America, N.A. $12,000,000.00 12.00%
IL1-231-10-35
231 S. LaSalle Street
Chicago, Illinois 60697
LIBOR Lending Office
Same as above
Deutsche Bank Trust Company $12,000,000.00 12.00%
Americas
MS Dal 03-0550
Suite 550
200 Crescent Court
Dallas, Texas 75201-1875
LIBOR Lending Office
Same as above
SCHEDULE 1.1 - PAGE 4
Term Loan
Term Loan Commitment
Commitment Percentage
-------------- ----------
LaSalle Bank Midwest National $10,000,000.00 10.00%
Association
Commercial Real Estate
2600 W. Big Beaver Road
Troy, Michigan 48084
LIBOR Lending Office
Same as above
PNC Bank, National Association $10,000,000.00 10.00%
201 East Fifth Street, 2nd Floor
Cincinnati, Ohio 45202
LIBOR Lending Office
Same as above
Commerzbank AG New York and $10,000,000.00 10.00%
Grand Cayman Branches
2 World Financial Center
New York, New York 10281
LIBOR Lending Office
Same as above
The Huntington National Bank $ 6,000,000.00 6.00%
803 W. Big Beaver Road
Suite 202
Troy, Michigan 48084
LIBOR Lending Office
Same as above
Fifth Third Bank $ 6,000,000.00 6.00%
1000 Town Center
Suite 1500
Mailcode MD JTWN5H
Southfield, Michigan 48075
LIBOR Lending Office
Same as above
SCHEDULE 1.1 - PAGE 5
Term Loan
Term Loan Commitment
Commitment Percentage
-------------- ----------
Comerica Bank $5,000,000.00 5.00%
500 Woodward Avenue
7th Floor
Detroit, Michigan 48226-3256
LIBOR Lending Office
Same as above
Total $ 100,000,000 100%
SCHEDULE 1.1 - PAGE 6
TOTAL COMMITMENTS
Commitment
Commitments Percentage
--------------- ----------
KeyBank National Association $ 35,000,000.00 14.00%
JPMorgan Chase Bank, N.A. $ 30,000,000.00 12.00%
Bank of America, N.A. $ 30,000,000.00 12.00%
Deutsche Bank Trust Company Americas $ 30,000,000.00 12.00%
LaSalle Bank Midwest National Association $ 25,000,000.00 10.00%
PNC Bank, National Association $ 25,000,000.00 10.00%
Commerzbank AG New York and Grand Cayman Branches $ 25,000,000.00 10.00%
Comerica Bank $ 20,000,000.00 8.00%
The Huntington National Bank $ 15,000,000.00 6.00%
Fifth Third Bank $ 15,000,000.00 6.00%
Total $250,000,000.00 100%
SCHEDULE 1.1 - PAGE 7
SCHEDULE 1.2
INITIAL UNENCUMBERED BORROWING BASE PROPERTIES
Schedule 1.2
Initial Unencumbered Borrowing Base Properties
Name of shopping center Owner Location
- ----------------------- ----- --------
Tel-Twelve Shopping Center Ramco-Gershenson Properties, L.P. Southfield, Michigan
OfficeMax Center Ramco-Gershenson Properties, L.P. Toledo, Ohio
Clinton Valley Strip Ramco-Gershenson Properties, L.P. Sterling Heights, Michigan
Eastridge Ramco-Gershenson Properties, L.P. Flint, Michigan
Jackson Crossing Ramco-Gershenson Properties, L.P. Jackson, Michigan
Roseville Plaza Ramco-Gershenson Properties, L.P. * Roseville, Michigan
Naples Towne Centre Ramco-Gershenson Properties, L.P. Naples, Florida
Southfield Plaza Ramco-Gershenson Properties, L.P. Southfield, Michigan
Clinton Mall Ramco-Gershenson Properties, L.P. Sterling Heights, Michigan
Lake Orion Ramco-Gershenson Properties, L.P. Lake Orion, Michigan
Edgewood Towne Center Ramco-Gershenson Properties, L.P. Lansing, Michigan
Northwest Crossing II Ramco-Gershenson Properties, L.P. Knoxville, Tennessee
Rossford - only Home Depot Rossford Development LLC Rossford, Ohio
Promenade - Arbys only Ramco-Gershenson Properties, L.P. Duluth, Georgia
Rivertowne Ramco-Gershenson Properties, L.P. Deerfield Beach, Florida
Crofton Shopping Center Ramco-Gershenson Properties, L.P. Crofton, Maryland
Clinton Pointe Ramco-Gershenson Properties, L.P. Clinton Township, Michigan
Horizon Village Ramco-Gershenson Properties, L.P. Suwanee, Georgia
Livonia Plaza Ramco-Gershenson Properties, L.P. Livonia, Michigan
Telegraph & Goddard Ramco-Gershenson Properties, L.P. Taylor, Michigan
The Shoppes at Lakeland Ramco-Gershenson Properties, L.P. Lakeland, Florida
Holcomb Center Ramco-Gershenson Properties, L.P. Alpharetta, Georgia
Pelican Plaza Ramco-Gershenson Properties, L.P. Sarasota, Florida
Holly Springs Ramco-Gershenson Properties, L.P. Franklin, North Carolina
Cumberland Gallery Ramco-Gershenson Properties, L.P. New Tazewell, Tennessee
Tellico Plaza Ramco-Gershenson Properties, L.P. Lenoir City, Tennessee
Edgewood Square Ramco-Gershenson Properties, L.P. North Augusta, South Carolina
Mays Crossing Ramco-Gershenson Properties, L.P. Stockbridge, Georgia
Indian Hills Ramco-Gershenson Properties, L.P. Calhoun, Georgia
Cox Creek Ramco-Gershenson Properties, L.P. Florence, Alabama
Crestview Corners Ramco-Gershenson Properties, L.P. Crestview, Florida
Village Lakes Ramco-Gershenson Properties, L.P. Land O' Lakes, Florida
Southbay Ramco-Gershenson Properties, L.P. Osprey, Florida
Conyers Crossing Ramco-Gershenson Properties, L.P. Conyers, Georgia
Auburn Hills - Wendy's/Arby's only Ramco-Gershenson Properties, L.P. Auburn Hills, Michigan
* Ramco Roseville LLC is also listed as landlord under a portion of a lease
to CVS.
SCHEDULE 1.2 - PAGE 1
SCHEDULE 2.9
EXISTING LETTERS OF CREDIT
The following Letters of Credit issued by Bank of America, N.A.:
LC# AMOUNT EXPIRATION DATE
--- ------ ---------------
1358420 $1,500,000 12/07/06
50061485 $ 476,000 04/15/06
64132910 $ 134,000 08/15/06
SCHEDULE 2.9 - PAGE 1
SCHEDULE 6.5
LIST OF PROPERTIES BEING MARKETED
1. Office Max, Lucas County, Ohio
2. West Allis Towne Center, West Allis, Wisconsin
3. Aquia Towne Center, Stafford, Virginia
4. Cox Creek Plaza, Florence, Alabama
5. Crestview Corners, Crestview, Florida
6. Edgewood Square, North Augusta, South Carolina
7. Holly Springs Plaza, Franklin, North Carolina
8. Indian Hills Shopping Center, Calhoun, Georgia
9. Tellico Plaza, Lenoir City, Tennessee
10. Cumberland Gallery, New Tazwell, Tennessee
11. Chester Springs Shopping Center, Chester, New Jersey
12. Crofton Centre, Crofton, Maryland
SCHEDULE 6.5 - PAGE 1
SCHEDULE 6.7
LITIGATION
1. Matters covered by insurance policies, except for applicable
deductibles.
2. Landlord/Tenant claims in the ordinary course of business.
3. Matters disclosed in the Form 10-K filed with the SEC, including the IRS
tax matter.
4. Alleged ADA violations at the Bagel Joint at Sunshine Plaza; Access for
the Disabled, Inc., Robert Cohen, and Patricia Kennedy v. Ramco-Gershenson
Properties, L.P. US District Court Southern District of Florida Case No.
05-61246-CIV-LENARD.
5. Internal Revenue Service Examinations:
IRS Audit Resolution for Years 1991 to 1995
We were the subject of an IRS examination of our taxable years ended December
31, 1991 through 1995. We refer to this examination as the IRS Audit. On
December 4, 2003, we reached an agreement with the IRS with respect to the IRS
Audit. We refer to this agreement as the Closing Agreement. Pursuant to the
terms of the Closing Agreement (i) our "REIT taxable income" was adjusted for
each of 1991, 1992, and 1993; (ii) our election to be taxed as a REIT was
terminated for 1994; (iii) we were not permitted to reelect REIT status for
1995; (iv) we were permitted to reelect REIT status for taxable years beginning
on or after January 1, 1996; (v) our timely filing of IRS Form 1120-REIT for
1996 was treated, for all purposes of the Code, as an election to be taxed as a
REIT; (vi) the provisions of the Closing Agreement were expressly contingent
upon our payment of "deficiency dividends" (that is, our declaration and payment
of a distribution that is permitted to relate back to the year for which the IRS
determines a deficiency in order to satisfy the requirement for REIT
qualification that we distribute a certain minimum amount of our "REIT taxable
income" for such year) in amounts not less than $1.387 million and $809 for our
1992 and 1993 taxable years respectively; (vii) we consented to the assessment
and collection, by the IRS, of $770 in tax deficiencies; (viii) we consented to
the assessment and collection, by the IRS, of interest on such tax deficiencies
and deficiency dividends and (ix) we agreed that no penalties or other
"additions to tax" would be asserted with respect to any adjustments to taxable
income required pursuant to the Closing Agreement.
In addition, because we lost our REIT status for 1994, and reelected REIT status
for the taxable year which began January 1, 1996, we were required to have
distributed to our shareholders by the close of the taxable year which began
January 1, 1996, any earnings and profits we accumulated as a subchapter C
corporation for 1994 and 1995. Because we did not accumulate (but rather
distributed) any profits we earned during the taxable years ended December 31,
1994 and 1995, we did not have any accumulated earnings and profits that we were
required to distribute by the close of the taxable year which began January 1,
1996.
In connection with the incorporation, and distribution of all of the shares, of
Atlantic, in May 1996, we entered into the Tax Agreement with Atlantic under
which Atlantic assumed all of our
SCHEDULE 6.7 - PAGE 1
tax liabilities arising out of the IRS' then ongoing examination (which
included, but is not otherwise limited to, the IRS Audit), excluding any tax
liability relating to any actions or events occurring, or any tax return
position taken, after May 10, 1996, but including liabilities for additions to
tax, interest, penalties and costs relating to covered taxes. In addition, the
Tax Agreement provides that, to the extent any tax which Atlantic is obligated
to pay under the Tax Agreement can be avoided through the declaration of a
deficiency dividend, we will make, and Atlantic will reimburse us for the amount
of, such deficiency dividend.
On December 15, 2003, our Board of Trustees declared a cash dividend in the
amount of $2.2 million, payable on January 20, 2004, to common shareholders of
record on December 31, 2003. Immediately following the payment of such dividend,
we timely filed IRS Form 976, Claim for Deficiency Dividends Deductions by a
Real Estate Investment Trust, claiming deductions in the amount of $1.387
million and $809 for our 1992 and 1993 taxable years respectively. Our payment
of the deficiency dividend was both consistent with the terms of the Closing
Agreement and necessary to retain our status as a REIT for each of the taxable
years ended December 31, 1992 and 1993. On January 21, 2004, pursuant to the Tax
Agreement, Atlantic reimbursed us $2.2 million in recognition of our payment of
the deficiency dividend.
In the notes to the consolidated financial statements of Atlantic's most recent
quarterly report on Form 10-Q filed with the Securities and Exchange Commission,
or the SEC, for the quarter ended June 30, 2005, Atlantic has disclosed its
liability under the Tax Agreement for the tax deficiencies, deficiency dividend,
and interest reflected in the Closing Agreement. As discussed above, on January
21, 2004, Atlantic reimbursed us $2.2 million in recognition of our payment of
the deficiency dividend. Atlantic has also paid all other amounts, on behalf of
the Company, assessed by the IRS to date.
Current IRS Examination
The IRS is currently conducting an examination of us for our taxable years ended
December 31, 1996 and 1997. We refer to this examination as the IRS Examination.
On April 13, 2005, the IRS issued two examination reports to us with respect to
the IRS Examination. The first examination report seeks to disallow certain
deductions and losses we took in 1996 and to disqualify us as a REIT for the
years 1996 and 1997. The second report also proposes to disqualify us as a REIT
for our taxable years ended December 31, 1998 through 2000, years we had not
previously been notified were under examination, and to not allow us to reelect
REIT status for 2001 through 2004. Insofar as the reports seek to disqualify us
as a REIT, we vigorously dispute the IRS' positions, and we have been advised by
legal counsel that the IRS' positions set forth in the reports with respect to
our disqualification as a REIT are unsupported by the facts and applicable law.
We discuss this issue in greater detail below under the subheading
"Disqualification as a REIT". We dispute the disallowance of certain deductions
and losses for 1996 and believe that amounts which may be assessed against us
with respect to any such disallowance would constitute items covered under the
Tax Agreement. We discuss this issue in greater detail below under the
subheading "Disallowance of Certain Deductions and Losses". We have contested
the reports by filing a protest with the Appeals Office of the IRS on May 31,
2005. Although Atlantic has filed a Form 8-K with the SEC stating that it has
been advised by counsel that it would not have any obligation to indemnify us
with respect to any tax, interest or penalty which may be assessed against us in
connection with the IRS Examination, we disagree with such
SCHEDULE 6.7 - PAGE 2
position and, if the need arises, intend to pursue collection of amounts related
to the 1996 tax year from Atlantic under the Tax Agreement.
Disqualification as a REIT
The examination reports propose to disqualify us as a REIT for our taxable years
1996 through 2000 for reasons relating to our ownership of stock in
Ramco-Gershenson, Inc. and for our alleged failure to meet the requirement to
demand from record holders of our shares certain information regarding the
actual ownership of those shares. The reports also propose not to allow us to
reelect REIT status for 2001 through 2004. As described below, we believe, and
have been advised by legal counsel, that the positions set forth in the
examination reports pursuant to which the IRS proposes to disqualify us as a
REIT are unsupported by the facts and applicable law.
First, the IRS asserts that a "commonality of interests and control" between us
and Ramco Gershenson, Inc., by reason of the ownership of voting stock in
Ramco-Gershenson, Inc. by certain of our trustees and members of our management,
resulted in our "deemed" prohibited ownership of more than 10% of the voting
stock in Ramco-Gershenson, Inc. We have been advised by counsel that the
structure of our ownership of stock in Ramco-Gershenson, Inc., and the
governance thereof, are consistent with the form and structure of similar
subsidiaries used by other large REITs and should not provide a valid basis for
the disqualification of the Company as a REIT for any of the tax years covered
by the examination reports.
Secondly, the IRS proposes to disqualify us as a REIT for 1996 through 2000 for
our alleged failure to meet the shareholder-record keeping requirement because
we did not request certain information from holders of interests in our
operating partnership. We have been advised by counsel that the IRS has erred in
their determination that we were required to make such a demand from our
partners merely by reason of their ownership of interests in our operating
partnership.
Finally, the IRS proposes not to allow us to reelect to be a REIT for 2001
through 2004 based on our alleged failure to qualify as a REIT for 2000. We
believe, based on the advice of counsel, that if we were disqualified for 1996,
we would be allowed to reelect REIT status for our 2001 tax year.
Disallowance of Certain Deductions and Losses
The examination reports also propose to disallow certain deductions and losses
taken in 1996. We believe that, in many material respects, the positions based
on which the IRS proposes to disallow such deductions and losses are unsupported
by the facts and applicable law.
Protest; Potential Impact
We have contested the positions taken in the examination reports through the
filing of a protest with the Appeals Office of the IRS on May 31, 2005. Pursuant
to such filing, we would expect to have a meeting with an Appeals Officer of the
IRS sometime in the future. If we cannot obtain a satisfactory result through
the administrative appeals process, we may pursue judicial review of the
determination.
SCHEDULE 6.7 - PAGE 3
If all of the positions taken (exclusive of the proposed revocation of our REIT
status for 2001 through 2004) and adjustments proposed in the examination
reports were sustained, then we would be liable for approximately $22.0 million
in combined tax, penalties and interest (as calculated by the IRS through April
13, 2005). If we were successful in opposing the positions taken in the first
examination report (which relates to 1996 and 1997) and the second examination
report (which relates to 1998 through 2000), other than the proposed increase in
our REIT taxable income resulting from disallowance of certain deductions for
1996, then we could avoid being disqualified as a REIT by paying a deficiency
dividend in the amount (if any) necessary to satisfy the requirement that we
distribute each year a certain minimum amount of our REIT taxable income for
such year. In the event we were required to pay a deficiency dividend, such
dividend would be treated as an addition to tax for the year to which it
relates, and we would be subject to the assessment and collection by the IRS of
interest on such addition to tax. The second examination report (which relates
to 1998 through 2000) does not quantify our potential liability for combined
tax, penalties and interest resulting from the proposed revocation of our REIT
status for 2001 through 2004. Such potential liability could be substantial and
could have a material adverse effect on our financial position, results of
operations and cash flows.
If we were to fail to qualify as a REIT for any taxable year, we would be
subject to federal income tax, including any applicable alternative minimum tax,
on our taxable income at regular corporate rates for such year, and
distributions to shareholders would not be deductible by us in computing our
taxable income. Any such corporate tax liability could be substantial and, to
the extent we were not indemnified against such liability by Atlantic under the
Tax Agreement, would reduce the amount of our cash available for distribution to
our shareholders, which in turn could have a material adverse impact on the
value of, and trading prices for, our common shares. In addition, we would not
be able to reelect REIT status until the fifth taxable year following the
initial year of disqualification unless we were to qualify for relief under
applicable provisions of the Code. Upon a new REIT election, we would be
required to distribute any earnings and profits that we had accumulated during
the taxable years in which we failed to qualify as a REIT. If we failed to
qualify as a REIT for more than two taxable years, we would be subject to
corporate level tax during the ten-year period beginning on the first day of our
REIT year with respect to any built-in gain we recognize on the disposition of
any asset held on such date.
Tax Agreement with Atlantic
Certain tax deficiencies, interest, and penalties, which may be assessed against
us in connection with the IRS Examination, may constitute covered items under
the Tax Agreement. Atlantic has filed a Form 8-K in which it disclosed that it
has been advised by counsel that it does not have any obligation to make any
payment to or indemnify us in any manner for any tax, interest or penalty set
forth in the examination report relating to 1996 and 1997. We disagree with this
position and believe that some or all of the amounts which may be assessed
against us with respect to the disallowance of certain deductions and losses for
1996 would constitute covered items under the Tax Agreement. If Atlantic
prevails in its position that it is not required to indemnify us under the Tax
Agreement with respect to liabilities we incur as a result of the IRS
Examination, then we would be required to pay for such liabilities out of our
own funds. Even if we prevail in our position that Atlantic is required to
indemnify us under the Tax Agreement with respect to such liabilities, Atlantic
may not have sufficient assets at the time to reimburse us for all amounts we
must pay to the IRS, and we would be required to pay the difference out of
SCHEDULE 6.7 - PAGE 4
our own funds. According to the quarterly report on Form 10-Q filed by Atlantic
for the quarter ended June 30, 2005, Atlantic had net assets of approximately
$82.6 million (as determined pursuant to the liquidation basis of accounting).
The IRS may also assess taxes against us that Atlantic is not required to pay.
Accordingly, the ultimate resolution of any tax liabilities arising pursuant to
the IRS Audit and the IRS Examination may have a material adverse effect on our
financial position, results of operations and cash flows, particularly if we are
required to distribute deficiency dividends to our shareholders and/or pay
additional taxes, interest and penalties to the IRS in amounts that exceed any
indemnification payments we receive from Atlantic.
Operating Partnership Examination Report
In connection with an ongoing IRS examination of one of our operating
partnerships we have also received an examination report, which relates to such
partnership's taxable year ended December 31, 1997, which proposes to increase
the income of certain of the operating partnership's partners other than us. As
such, the proposed adjustments would not result in our being liable for
additional tax, penalties or interest.
SCHEDULE 6.7 - PAGE 5
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, along with related Election and Option Deferral Agreements and
Notices of Option Exercises 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 along with related Election and Option Deferral Agreements and
Notice of Option Exercise 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
SCHEDULE 6.15 - PAGE 1
Exchange Rights Agreement dated May 10, 1996, between Operating Partnership and
the Ramco Principals
Assignment, Assumption and Indemnification Agreement relating to Atlantic dated
May 10, 1996, between RPS and Atlantic
The 1997 Non-employee Trustee Stock Option Plan
Management Services and Reimbursement Agreement dated May 10, 1996 between
Ramco-Gershenson, Inc. and Ramco-Gershenson Properties, L.P.
Amended and Restated Agreement of Limited Partnership of Ramco-Gershenson
Properties, L.P. (Operating Partnership") as amended which lists the following
persons as holding a partnership interest directly or by entities controlled by
them:
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson
The following officers or trustees of Ramco-Gershenson Properties Trust are
general partners, limited partners, or shareholders or members in various
entities which are provided management and/or accounting services by
Ramco-Gershenson, Inc.
Joel Gershenson
Dennis Gershenson
Michael A. Ward
Richard Gershenson
Bruce Gershenson
Joel Pashcow
The following officers of Ramco-Gershenson Properties Trust are associated with
various family trusts which control entities which are provided management and
accounting services from Ramco-Gershenson, Inc.
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.
SCHEDULE 6.15 - PAGE 2
Joel Pashcow, trustee, has an interest in Ramco/Shenandoah LLC, a joint venture
of Ramco-Gershenson Properties, L.P.
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 - PAGE 3
SCHEDULE 6.18
ENVIRONMENTAL MATTERS
[SEE ATTACHED]
SCHEDULE 6.18 - PAGE 1
SCHEDULE 6.19
SUBSIDIARIES AND UNCONSOLIDATED AFFILIATES OF THE BORROWER
[SEE ATTACHED]
SCHEDULE 6.19 - PAGE 1
SCHEDULE 6.29
PROPERTY OF GUARANTOR
The assets of the Guarantor, Ramco-Gershenson Properties Trust are comprised
solely of the following:
ATTACHABLE ASSETS
Cash and Short-term Investments in an amount in excess of $500,000.00.
Accounts receivable, including Distributions received from Ramco-Gershenson
Properties, L.P. that have not been distributed to the shareholders of the Trust
as permitted by this Agreement.
Rights and claims (including amounts paid under) the Tax Indemnity Agreement.
Investments in Ramco-Gershenson Properties, L.P.
All Net Offering Proceeds that have not been contributed to Ramco-Gershenson
Properties, L.P.
OTHER PERMITTED ASSETS
Prepaid expenses, including capitalized legal fees
Cash and Short-term Investments in an amount not to exceed $500,000.00.
Investments in the following subsidiaries:
Ramco SPC, Inc. (Related to Ramco Properties Associates Limited
Partnership)
Ramco SPC II, Inc. (Related to Ramco Virginia Properties LLC (Aquia))
SCHEDULE 6.29 - PAGE 1