1
EXHIBIT 10.22
LOAN AGREEMENT
BY AND BETWEEN
RAMCO-GERSHENSON PROPERTIES, L.P.
AND
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
Loan No. 157670
2
TABLE OF CONTENTS
Page #
ARTICLE I
DEFINITIONS
1
ARTICLE II
THE LOAN
2
Section 2.1. Loan 2
Section 2.2. Loan Documents 2
ARTICLE III
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
2
Section 3.1. No Consent Required 2
Section 3.2. No Conflicting Law or Agreement 2
Section 3.3. Binding Obligations 3
Section 3.4. Filing Fees 3
Section 3.5. Further Assurances 3
Section 3.6. Name 3
Section 3.7. Chief Executive Office 3
Section 3.8. Notice of Certain Events 3
Section 3.9. Full and Faithful Disclosure 3
Section 3.10. Financial Statements and Reports 3
Section 3.11. Impairment of Business or Property 3
Section 3.12. Maintenance of Premises 3
Section 3.13. Utilities 4
Section 3.14. No Defaults 4
Section 3.15. Disclosure of Litigation 4
Section 3.16. Payment of Obligations 4
Section 3.17. Certifications by Borrower 4
Section 3.18. Use of Lender's Name 4
Section 3.19. Notice to Lender Upon Perceived Breach 4
Section 3.20. Prohibition Against Removal or Material Alteration 4
ARTICLE IV
TAXES AND INSURANCE
4
Section 4.1. Taxes; Governmental Charges 4
Section 4.2. Taxes and Other Encumbrances 4
Section 4.3. Tax and Insurance Deposits 4
Section 4.4. Insurance Coverages 5
ARTICLE V
DAMAGE OR DESTRUCTION; INSURANCE PROCEEDS
5
Section 5.1. Notice 5
Section 5.2. Assignment of Insurance Proceeds; Authority to Settle Claims 5
Section 5.3. Lender's Election Regarding Insurance Proceeds 6
Section 5.4. Destruction 6
Section 5.5. Application of Proceeds 6
Section 5.6. Restoration 6
Section 5.7. Payment of Deposited Funds 6
Section 5.8. Application of Insurance Proceeds in Event of Default 6
ARTICLE VI
EMINENT DOMAIN; CONDEMNATION AWARDS
7
Section 6.1. Notice 7
Section 6.2. Assignment of Condemnation Awards 7
Section 6.3. Total Taking 7
Section 6.4. Partial Taking - Lender's Election 7
Section 6.5. Abandonment; Failure of Borrower to Respond to Offer, etc 7
Section 6.6. Application of Proceeds 7
Section 6.7. Expenses 7
Section 6.8. Application of Condemnation Awards in Event of Default 7
ARTICLE VII
ENVIRONMENTAL MATTERS
7
Section 7.1. Environmental Indemnity Agreements 7
Section 7.2. Entry Upon Premises 7
i
3
ARTICLE VIII
DEFAULTS AND REMEDIES
8
Section 8.1. Events of Default 8
Section 8.2. Remedies 8
Section 8.3. Additional Amount Due After Acceleration 8
Section 8.4. Remedies Not Exclusive 8
ARTICLE IX
MISCELLANEOUS PROVISIONS
8
Section 9.1. Right to Inspect; Right to Require Management Agent 8
Section 9.2. No Effect on Liability 8
Section 9.3. Renewal, Extension or Rearrangement 8
Section 9.4. No Marshalling of Assets 8
Section 9.5. Transfer of Loan 9
Section 9.6. Notices 9
Section 9.7. Joint and Several Liability 9
Section 9.8. Severability 9
Section 9.9. Binding Effect; No Assignment 9
Section 9.10. Entire Agreement 9
Section 9.11. Counterparts 9
Section 9.12. Negotiated Document 9
Section 9.13. Not Partners; No Third Party Beneficiaries 9
Section 9.14. Governing Law 9
Section 9.15. Modification Procedure 9
Section 9.16. No Waiver 9
Section 9.17. Captions 10
Section 9.18. Incorporation of Exhibits 10
Section 9.19. Time of Essence 10
Section 9.20. Gender and Number 10
Section 9.21. Maximum Interest Payable 10
Section 9.22. Payment by any Party 10
Section 9.23. Fee for Services Rendered 10
Section 9.24. Indemnity; Lender's Expenses 10
Section 9.25. Jurisdiction 10
Section 9.26. Waiver of Trial by Jury 10
Section 9.27. Additional Provisions 10
ii
4
Loan No. 15760
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Loan Agreement") is entered into as of the 1ST
day of May 1996, by and between RAMCO-GERSHENSON PROPERTIES, L.P.
("Borrower"), A DELAWARE LIMITED PARTNERSHIP, and THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY ("Lender"), an Indiana corporation.
W I T N E S S E T H:
WHEREAS, Lender has agreed to extend credit to Borrower, on certain
terms and conditions; and
WHEREAS, one condition to Lender's agreement to extend credit to
Borrower is that Lender and Borrower must enter into a comprehensive loan
agreement setting forth the terms and conditions of the extension of credit to
Borrower;
NOW, THEREFORE, as an inducement to cause Lender to extend credit to
Borrower, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Lender and Borrower agree as follows:
ARTICLE I
DEFINITIONS
As used in this Loan Agreement or in any Collateral Loan Document, the
following capitalized terms shall have the following meanings, unless the
context expressly requires otherwise:
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as it may
be amended from time to time.
"Collateral" means any and all Property now or hereafter securing the
Obligations.
"Collateral Loan Documents" means, collectively, the Commitment, this
Loan Agreement, the Environmental Indemnity Agreements and the other documents
(except for the Note and the Mortgage) listed in Section 2.2 hereof, and each
writing furnished Lender in connection with this Loan Agreement, whenever
delivered. SEE EXHIBIT A, ADDITIONAL PROVISIONS, SECTION 1.
"Commitment" means that certain letter of application dated APRIL 12,
1995,submitted by Borrower with respect to the Loan and accepted by Lincoln
National Investment Management Company on behalf of Lender on APRIL 18, 1995,
AS FURTHER MODIFIED BY BORROWER'S LETTERS DATED JULY 14, 1995, AUGUST 14, 1995,
AUGUST 18, 1995 AND DECEMBER 4, 1995, AND LENDER'S LETTERS DATED AUGUST 4,
1995, AUGUST 18, 1995, AUGUST 25, 1995, SEPTEMBER 22, 1995, OCTOBER 17, 1995,
NOVEMBER 17, 1995, DECEMBER 1, 1995 AND DECEMBER 28, 1995.
"Debt" means, with respect to any Person, all liabilities and
obligations, contingent or otherwise, of that Person including, but not limited
to, any nonrecourse obligations secured by Property of that Person.
"Default" means the occurrence of any of the events specified in
Section 8.1 hereof, as to which any requirement for notice or lapse of time (or
both) has been satisfied.
"Default Condition" means the occurrence of any of the events
specified in Section 8.1 hereof, in the Note, the Mortgage, or in any of the
Collateral Loan Documents which, with the giving of notice or passage of time
(or both) would constitute a Default hereunder.
"Default Rate" means an interest rate equal to the lesser of four
percentage points (4%) in excess of the Interest Rate (as defined in the Note)
or the maximum rate of interest permissible under applicable law.
"Encumbrance" means any interest in any Property in favor of one not
the owner thereof, whether voluntary or involuntary, including, but not limited
to, (i) the lien or security interest arising from deed of trust, mortgage,
pledge, security agreement, conditional sale, capital lease, consignment, or
bailment for security purposes, and (ii) reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases, and other title exceptions.
"Environmental Indemnity Agreements" means, collectively, those
certain environmental indemnity agreements described in Sections 2.2 and 7.1
hereof.
"Financial Statements" means all balance sheets, income statements,
and statements of cash flow for Borrower and any guarantors, delivered by
Borrower and any guarantors of the Secured Indebtedness or of Borrower's
obligations hereunder, to Lender prior to the date hereof or pursuant to the
requirements hereof or of any Collateral Loan Document.
"Hazardous Substances" shall have the meaning ascribed to that term in
the Environmental Indemnity Agreements.
"Improvements" means all structures, buildings and other improvements
now upon or which may hereafter be put upon the Real Property (as more
particularly defined in the Mortgage).
"Lease" shall have the same meaning ascribed to that term in the
Assignment of Leases, Rents and Profits of even date herewith.
"Lender" means The Lincoln National Life Insurance Company, its
successors and assigns.
1
5
"Loan" means the loan to be made by Lender to Borrower pursuant to the
Note and this Loan Agreement.
"Mortgage" or "Mortgages", as the context requires, means those
certain mortgage and security agreements described in Section 2.2.
"Note" means that certain note described in Section 2.2.
"Obligations" means all present and future Debts of Borrower to
Lender, whether arising by contract, tort, guaranty, overdraft, or otherwise;
whether or not the advances or events creating such Debts are presently
foreseen; whether such Debt was originally payable to Lender or are acquired by
Lender from another Person; and regardless of the class of the Debts, be they
otherwise secured or unsecured. Without limiting the foregoing, the
"Obligations" specifically include the obligation of Borrower under the Note,
the Mortgage, and the Collateral Loan Documents to perform the covenants and
agreements contained therein and in any modification, extension or amendment
thereof.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated organization, government, or any agency or political subdivision
thereof, or any other form of entity.
"Personal Property" means all fixtures and articles of property now or
hereafter attached to or used or adopted for use in the operation of the Real
Property or the Improvements (as more particularly defined in the Mortgage).
"Premises" means the Real Property and any Improvements, Personal
Property or Property located thereon.
"Property" or "Properties" means any interest in any kind of property,
whether real, personal, or mixed, or tangible or intangible.
"Real Property" means that certain real property described on Exhibit
A to the Mortgage and all present and future fixtures, leases, rents, and other
appurtenant rights.
"Restoration" shall have the meaning ascribed to that term in Section
5.6 hereof.
"Secured Indebtedness" means the indebtedness, now or hereafter
secured by the Mortgage (as more particularly defined in the Mortgage).
ARTICLE II
THE LOAN
Section 2.1. Loan. Concurrently with the execution of this Loan
Agreement, Lender shall make the Loan to Borrower on the terms set forth in the
Note, the Mortgage, and the Collateral Loan Documents.
Section 2.2. Loan Documents. Concurrently with the execution hereof,
and as a condition to this Loan, Borrower shall deliver to Lender the following
documents, all fully executed by the appropriate parties and in form and
substance acceptable to Lender:
(a) This Loan Agreement.
(b) THAT CERTAIN NOTE OF EVEN DATE HEREWITH IN THE AMOUNT OF
SEVENTY-SEVEN MILLION FIVE HUNDRED EIGHTY FIVE THOUSAND FIVE HUNDRED
TWENTY-FOUR DOLLARS AND SEVENTY-THREE CENTS ($77,585,524.73) (THE "NOTE"),
payable to the order of Lender.
(c) THOSE certain Mortgage and Security AGREEMENTS conveying to a
mortgagee thereunder, the Premises described on Exhibit A thereto.
(d) All U.C.C. Financing Statements to be filed with the
appropriate governmental offices to perfect the security interests granted
under the Mortgage and the Collateral Loan Documents.
(e) One or more Environmental Indemnity Agreements executed by
Borrower and Ramco-Gershenson Properties Trust, dated May 1, 1996,
respectively.
(f) Such other documents, assignments, certificates, agreements,
opinions, title insurance policies, environmental assessments, and indemnities
as are required by Lender pursuant to the Commitment or as Lender may
reasonably require, including without limitation, those documents, if any,
shown on Exhibit A attached hereto and incorporated herein by this reference.
ARTICLE III
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
Borrower represents and warrants that, as of the date hereof, and
Borrower covenants and agrees that during the term of this Loan Agreement while
any portion of the Obligations remain unpaid or unsatisfied (and thereafter
where expressly stated herein):
Section 3.1. No Consent Required. Borrower's execution, delivery, and
performance of the Note, the Mortgage, and the Collateral Loan Documents do not
require the consent or approval of or the giving of notice to any Person which
approval has not been duly obtained or which notice has not been duly given.
Section 3.2. No Conflicting Law or Agreement. Borrower's execution,
delivery and performance of the Note, the Mortgage, and the Collateral Loan
Documents do not constitute a breach of or default under, and will not violate
or conflict with, any provisions of the organizational or governing documents of
Borrower; any contract, financing agreement, Lease, or other agreement to which
Borrower is a party or by which its Properties may be affected; or any law,
regulation, order, injunction, judgment, decree, or writ to which Borrower is
subject or by which its Properties may be affected; nor will the same result in
the creation or imposition of any Encumbrance upon any Properties of Borrower,
other than those contemplated by the Note, the Mortgage, and the Collateral Loan
Documents. Borrower shall not enter into any agreement which would be violated
or breached by the performance by Borrower of its Obligations.
2
6
Section 3.3. Binding Obligations. This Loan Agreement is, and the
Note, the Mortgage, and the Collateral Loan Documents, when executed and
delivered to Lender, will be, legal, valid and binding upon Borrower,
enforceable in accordance with their respective terms.
Section 3.4. Filing Fees. Borrower shall pay all filing, registration
or recording fees, and all expenses incident to the execution and acknowledgment
of the Note, the Mortgage, and the Collateral Loan Documents and any extension,
amendment or renewal thereof.
Section 3.5. Further Assurances. Borrower shall promptly cure, and
ratify the cure of, any defects in the creation, issuance, and delivery of the
Note, the Mortgage, and the Collateral Loan Documents. Borrower at its expense
will execute (or cause to be executed) and deliver to Lender upon request all
such other and further documents, agreements, and instruments in compliance with
or accomplishment of the covenants and agreements of Borrower in the Note, the
Mortgage, or any of the Collateral Loan Documents, or to evidence further and to
describe more fully any Collateral intended as security for the Obligations, or
to correct any omissions in the Note, the Mortgage, or any of the Collateral
Loan Documents, or to state more fully the Obligations and agreements set out in
the Note, the Mortgage, or any of the Collateral Loan Documents, or to perfect,
protect, or preserve any Encumbrances created pursuant to the Note, the
Mortgage, or any of the Collateral Loan Documents, or to make any recordings, to
file any notices, or to obtain any consents, all as may be reasonably necessary
or appropriate in connection therewith.
Section 3.6. Name. Borrower has not existed, been known under or done
business under, nor shall Borrower exist, be known under or do business under
any name other than the name used by Borrower in executing this Loan Agreement.
Borrower has not registered or applied for registration nor shall Borrower
register under any fictitious name statute of any state.
Section 3.7. Chief Executive Office. Borrower's chief executive office
is located at the address listed in Section 9.6 hereof and shall not be
transferred to any other location OUTSIDE OF THE COUNTY IN WHICH IT IS PRESENTLY
LOCATED without Lender's prior written consent.
Section 3.8. Notice of Certain Events. Borrower shall promptly notify
Lender if Borrower learns of the occurrence of (i) any event that constitutes a
Default or a Default Condition together with a detailed statement of the steps
being taken as a result thereof; (ii) any legal, judicial, or regulatory
proceedings affecting Borrower which, if adversely determined, would have a
material adverse effect on the business or the financial condition of Borrower;
(iii) any dispute between Borrower and any governmental or regulatory authority
or any other Person which, if adversely determined, might interfere with the
normal business operations of Borrower or otherwise have a material adverse
effect on Borrower, its business or Properties; (iv) any labor dispute to which
Borrower may become a party, any strikes or walkouts affecting its operations,
any demand for collective bargaining, and the expiration of any labor contract
by which it may be bound; (v) any material change in the management of Borrower;
(vi) any material adverse changes, either individually or in the aggregate, in
the assets, liabilities, financial condition, business, operations, affairs, or
circumstances of Borrower from those reflected in the Financial Statements or
from the facts warranted or represented in any of the Collateral Loan Documents,
or (vii) any material Default by Borrower under Debt to any party other than
Lender.
Section 3.9. Full and Faithful Disclosure. Borrower has fully advised
Lender of all matters involving Borrower's financial condition, operations,
Properties or industry that would be reasonably expected to have a material
adverse effect on the financial condition, operations, Properties or prospects
of Borrower. No information, exhibit, or report furnished or to be furnished by
Borrower to Lender in connection with the Note, the Mortgage, or any of the
Collateral Loan Documents contains, as of the date thereof, any
misrepresentation of fact or fails to state any material fact, the omission of
which would render the statements therein materially false or misleading.
Section 3.10. Financial Statements and Reports.
(a) The Financial Statements are complete and correct,
have been prepared in accordance with recognized financial accounting standards
which are consistently applied, and present fairly the financial condition and
results of operations of Borrower, and any guarantors, of the Secured
Indebtedness as of the date and for the period stated therein. No material
adverse change in the financial condition of Borrower or any guarantors of the
Secured Indebtedness has occurred since the date of the Financial Statements.
Borrower acknowledges that Lender has advanced (or shall advance) the Loan in
reliance upon the Financial Statements.
(b) Borrower shall furnish to the Lender or cause the
Lender to receive all of the following, all of which must be in form and
substance satisfactory to the Lender:
(i) Annual Reports. Within ONE HUNDRED TWENTY
(120) days after the end of each calendar year, Borrower shall furnish to
Lender an annual financial and operating statement covering the Premises in
such detail as may be required by Lender, such statements to be prepared by a
CERTIFIED PUBLIC ACCOUNTANT APPROVED BY LENDER (who need not be independent)
and certified as true and correct by the Chief Financial Officer of Guarantor,
including therein (i) current rent roll, (ii) gross income received, (iii)
operating expenses (taxes, assessments, insurance premiums, repairs and
maintenance, salaries and wages), and (iv) the net operating income and
depreciation for federal income tax purposes, AND STATED TO HAVE BEEN PREPARED
ON A BASIS CONSISTENT WITH PRIOR YEARS EXCEPT AS OTHERWISE NOTED.
(ii) Other Reports. From time to time, as may be
reasonably requested by Lender, Borrower shall, with reasonable promptness,
deliver to Lender interim rent rolls certified as true and correct by an
officer or other authorized party of the Borrower, together with other
pertinent information and data regarding Borrower, its business operations and
Properties, including without limitation, reports of tenant sales within ten
business days of receipt by the Borrower. SEE EXHIBIT A, ADDITIONAL
PROVISIONS, SECTION A4.
Section 3.11. Impairment of Business or Property. Neither the business
nor the Property of Borrower is impaired as a result of any fire, explosion,
earthquake, flood, drought, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of property, cancellation of
contracts, permits, concessions by any domestic or foreign government or any
agency thereof, riot, activities of armed forces or acts of God or of any public
enemy.
Section 3.12. Maintenance of Premises. Borrower shall maintain the
Premises in good and workable condition at all times and make all repairs,
replacements, additions, and improvements to the Premises reasonably necessary
and proper to ensure that the business carried on in connection with the
Premises may be conducted properly and efficiently at all times, including,
without limitation, repairing, restoring, replacing or rebuilding any part of
the Premises now or hereafter subject to the lien of the Mortgage which may be
damaged or destroyed by any casualty whatsoever or which may be affected by any
eminent domain or similar proceeding. Borrower shall not in any manner commit
or suffer any waste of the Premises. Borrower shall complete and pay, within a
reasonable time, for any structure at any time in the process of construction on
the Premises and shall not initiate, join in, or consent to any change in any
private restrictive covenant, zoning ordinance or other public or private
restrictions, limiting or defining the uses which may be made of the Premises or
any part thereof.
3
7
Section 3.13. Utilities. Borrower agrees to pay, or cause to be paid,
when due all utility charges which are incurred for the benefit of the Premises
or which may become a charge or lien against the Premises for energy, fuel, gas,
electricity, water, or sewer services furnished to the Premises and all other
assessments or charges of a similar nature, whether public or private, affecting
the Premises or any portion thereof, whether or not such assessments or charges
are liens thereon.
Section 3.14. No Defaults. Borrower is not in default in any respect
that affects its business, Properties, operations, or condition, financial or
otherwise, under any indenture, mortgage, deed of trust, credit agreement, note,
agreement, Lease, sale agreement or other instrument to which Borrower is a
party or by which its Properties are bound. To the best of Borrower's
knowledge, information and belief, no other party to any contract with Borrower
is in default or breach thereof and no circumstances exist which, with the
giving of notice and/or the passing of time would constitute such default or
breach. As of the date hereof, no Default or Default Condition exists under the
Note, the Mortgage, or any of the Collateral Loan Documents.
Section 3.15. Disclosure of Litigation. There is no litigation OTHER
THAN PERSONAL INJURY CLAIMS, THE DEFENSE OF WHICH HAS BEEN ASSUMED BY BORROWER'S
LIABILITY INSURER AND WHICH CAN BE RESOLVED WITHIN APPLICABLE POLICY LIMITS,
arbitration, legal or administrative proceeding, tax audit, investigation, or
other action of any nature pending or, to the knowledge of Borrower, threatened
against, likely to be instituted against or affecting Borrower, any guarantor of
the Secured Indebtedness or any of their respective Properties. Neither
Borrower nor any guarantor of the Secured Indebtedness is subject to any
outstanding court or administrative order, writ or injunction. To the best of
Borrower's knowledge, information and belief, no facts exist that give claims to
third parties against Borrower or any guarantor of the Secured Indebtedness,
except as disclosed in the Financial Statements.
Section 3.16. Payment of Obligations. The Borrower shall pay, in
lawful money of the United States, all sums due the Lender at the time and in
the manner as set forth in the Note, the Mortgage, and in the Collateral Loan
Documents.
Section 3.17. Certifications by Borrower. Borrower, within ten (10)
BUSINESS days of request, made either personally or by mail, shall certify, by a
writing duly acknowledged, to the Lender, or to any proposed assignee of this
Loan Agreement, (1) the balance of the Obligations, including a breakdown of the
principal and interest then owing on the Loan, (2) any offsets or defenses to
payment of the Obligations, (3) a then current list of lessees of the Premises,
if any, with beginning date and the term, minimum annual rent, amount of square
footage and status of each Lease, and (4) a copy of each current Lease of the
Premises.
Section 3.18. Use of Lender's Name. Borrower shall not, without the
prior written consent of Lender, use the name of Lender or the name of any
affiliates of Lender in connection with any of Borrower's business or
activities, except in connection with internal business matters, as required in
making required securities law disclosure, in dealings with governmental
agencies and financial institutions and to trade creditors of Borrower solely
for credit reference purposes.
Section 3.19. Notice to Lender Upon Perceived Breach. Borrower agrees
to give Lender prompt written notice of any action or inaction by Lender in
connection with this Loan Agreement or the Obligations that Borrower believes
may be actionable against Lender or a defense to payment of Obligations for any
reason, including, but not limited to, commission of a tort or violation of any
contractual duty or duty implied by law.
Section 3.20. Prohibition Against Removal or Material Alteration. No
Improvements or other Property now or hereafter covered by the lien of the
Mortgage or otherwise constituting the Premises shall be removed, demolished or
materially altered or enlarged, nor shall any new Improvements be constructed
thereon, without the prior written consent of Lender, except TO THE EXTENT
BORROWER'S TENANTS ARE ENTITLED TO DO SO UNDER THE TERMS OF THEIR LEASES, AND
EXCEPT that Borrower shall have the right, without such consent, to remove and
dispose of, free from the lien of the Mortgage, such Personal Property as from
time to time may become worn out or obsolete, provided that either
simultaneously with or prior to such removal any such Personal Property shall be
replaced with other Personal Property of a value at least equal to that of the
replaced Personal Property and free from any title retention or other security
agreement or other encumbrance and from any reservation of title, and by such
removal and replacement Borrower shall be deemed to have subjected such new
Personal Property to the lien of the Mortgage and to have granted a security
interest therein to Lender.* *NOTWITHSTANDING THE FOREGOING, BORROWER SHALL HAVE
THE RIGHT TO MAKE IMPROVEMENTS OR ALTERATIONS TO ANY ONE OF THE PREMISES
PROVIDED THE AGGREGATE COST OF ANY PARTICULAR RELATED IMPROVEMENTS OR
ALTERATIONS MADE BY THE BORROWER (HEREINAFTER, A "PROJECT") DOES NOT EXCEED
$500,000 FOR EACH OF THE JACKSON CROSSING AND TEL-TWELVE TRACTS AND $100,000 FOR
THE REMAINING TRACTS COMPRISING THE PREMISES. Borrower agrees to accept
Lender's reasonable determination as to which improvements or alterations are
sufficiently related in scope or in time so as to constitute a Project.
ARTICLE IV
TAXES AND INSURANCE
Section 4.1. Taxes; Governmental Charges. Borrower has filed or caused
to be filed all tax returns and reports required to be filed. Borrower has
paid, or made adequate provision for the payment of, all taxes that have or may
have become due pursuant to such returns or otherwise, or pursuant to any
assessment received by Borrower, except such taxes, if any, as are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided. Borrower knows of no proposed material tax
assessment against it or any guarantor of the Secured Indebtedness and no
extension of time for the assessment of federal, state or local taxes of
Borrower or any guarantor of the Secured Indebtedness that is in effect or has
been requested, except as disclosed in the Financial Statements. Borrower has
made all required withholding deposits.
Section 4.2. Taxes and Other Encumbrances. Borrower shall make due and
timely payment or deposit of all federal, state and local taxes (including but
not limited to FICA payments and withholding taxes), impositions, assessments
(general or special) or contributions required of it by law, or levied on or
assessed against the Premises, the Mortgage, the Note, the Obligations, or any
interest of the Lender therein and execute and deliver to Lender, on demand,
appropriate certificates attesting to the payment or deposit thereof. It is
understood that, to the extent Borrower makes deposits with Lender for taxes and
insurance, as provided in Section 4.3, Borrower shall be in compliance with this
Section with respect to the deposited sums.
Borrower may, in good faith and with due diligence, contest the
validity or amount of such taxes or impositions; provided that (i) Borrower
either pays in full the amount under protest in the manner allowed by law, or
withholds payment thereof so long as such contest has the effect of preventing
the sale or foreclosure of the Premises or any portion thereof; OR (ii)
Borrower notifies Lender in writing at least forty-five (45) days prior to the
date such imposition will be increased by reason of penalties or interest of
its intent to contest the same; and Borrower furnishes Lender with A LETTER OF
CREDIT OR SUCH OTHER security, bond or indemnification as Lender may, in good
faith, require for the final payment and discharge thereof. In the event of a
ruling adverse to Borrower, Borrower shall promptly pay such tax or imposition,
together with all interest and penalties.
Section 4.3. Tax and Insurance Deposits. Borrower will pay to Lender,
on the installment payment dates of the Note, until the Note and all other sums
secured by the Mortgage are fully paid or until notification from Lender to the
contrary, an amount equal to one-twelfth of the estimated annual insurance
premiums, AD VALOREM PROPERTY TAXES AND ANY SPECIAL ASSESSMENTS ("IMPOUND
PAYMENTS") due during the succeeding calendar year. Nothing contained herein
shall cause Lender to be deemed a trustee of said funds,
4
8
and no interest shall be allowed to Borrower on account of any deposit or
deposits made hereunder and said deposits need not be kept separate and apart
from any other funds of Lender. Borrower shall furnish to Lender at least
thirty (30) days before the date on which the same shall become due, insurance
premium invoices and an official statement of the amount of said taxes and
assessments next due, and Lender shall be entitled to rely on such invoices and
statements, tax bills, etc. without inquiry into their accuracy or validity,
and Lender shall pay said premium and charges but only if the amounts received
from Borrower are sufficient. An official receipt therefor shall be conclusive
evidence of such payment and of the validity of such charges. IF SUCH AMOUNTS
RECEIVED FROM BORROWER ARE DETERMINED IN GOOD FAITH BY LENDER TO EXCEED WHAT IS
NECESSARY TO FULLY PAY ESTIMATED IMPOUND PAYMENTS AS THEY BECOME DUE, UPON
BORROWER'S WRITTEN REQUEST BUT NOT MORE OFTEN THAN ANNUALLY, LENDER SHALL
REDUCE THE MONTHLY PAYMENTS REQUIRED HEREUNDER BY AN AMOUNT REASONABLY
CALCULATED TO REDUCE THE SURPLUS FUNDS ON HAND TO AN INSIGNIFICANT AMOUNT
WITHIN THE ENSUING TWELVE (12) MONTHS. If such amounts received from Borrower
are insufficient, Lender shall notify Borrower of the shortage whereupon
Borrower will deposit (with Lender) such needed funds WITHIN FIVE (5) DAYS
AFTER RECEIPT OF SUCH NOTICE. IF BORROWER SHALL FAIL TO MAKE SUCH PAYMENT,
Lender may elect to advance any needed funds and any sums so advanced shall
become immediately due and payable to Lender, become part of the Secured
Indebtedness, and bear interest at the Default Rate from the date of such
advance. If Borrower is in Default hereunder or under the Mortgage, the Note,
or any of the Collateral Loan Documents, Lender, at its option, may instead
apply such amounts to the Secured Indebtedness in such priority as it may
determine, with any excess held by it over the amount of the Secured
Indebtedness to be returned to Borrower or any party entitled thereto without
interest. The amount of the existing credit hereunder at the time of any
transfer of the Premises shall, without assignment thereof, inure to the
benefit of the successor-owner of the Premises, and shall be applied under and
subject to all of the provisions hereof. Upon payment in full of the Secured
Indebtedness, the amount of any unused credit shall be paid over to the then
owner of record.
In satisfaction of the foregoing, so long as no Default has occurred,
Lender shall accept either (i) an unconditional (not standby) letter of credit
from a financial institution reasonably satisfactory to the Lender or (ii)
written acknowledgement that a reserve of funds exists which is sufficient to
meet the obligations hereunder, whose form and arrangement shall be acceptable
to Lender in its sole discretion.
Section 4.4 Insurance Coverages.
(a) Borrower will keep the Improvements insured for the benefit of
the Lender and Borrower under 1) "All Risk" type Property Insurance to include
as a minimum the perils of fire and extended coverage, vandalism, water damage,
collapse, earthquake and Law and Ordinance (demolition and increased cost of
construction) coverage in an amount equal to 100% of the full insurable
replacement value of the Improvements (i.e., total cost less value of land and
nondestructibles such as foundations, underground utilities, etc.), which
replacement shall be subject to annual adjustment based on reconstruction
indices published by national appraisal organizations such as Marshall & Swift
or E.H. Boeckh; 2) Personal Property Insurance as required by Lender in an
amount equal to 100% of the full insurable replacement value of the Personal
Property; 3) Business Income Insurance in an amount equal to (i) annual net
income plus continuing normal operating expenses, or (ii) one year's rental
value including, but not limited to, rental income from all Leases or subleases
which are assigned to Lender (and in an amount to be adjusted annually to
reflect current rental values); 4) Flood Insurance in an amount equal to 100%
of the full insurable replacement value unless Lender is furnished a surveyor's
certificate indicating that the Premises are not located inside the special
flood hazard Boundary Map (FHBM) or in Flood Insurance Rate Map (FIRM) Zones A,
AE, A1-A30, AH, AO, A99, VE, V1-V30 or M); 5) Boiler and Machinery Insurance in
an amount equal to 25% of the full insurable replacement value of the
Improvements or One Million Dollars ($1,000,000), whichever is greater, when
boilers or other pressure vessels or significant air conditioning equipment or
electrical switchgear are located on Premises; and 6) Premises Liability
Insurance including the Broad Form endorsement in the amount of One Million
Dollars ($1,000,000) CSL (combined single limit for bodily injury and property
damage) per occurrence and no policy general aggregate, or for policies
containing aggregate limits, One Million Dollars ($1,000,000) each occurrence,
One Million Dollars ($1,000,000) products/completed operations aggregate, Two
Million Dollars ($2,000,000) general aggregate per location, and One Million
Dollars ($1,000,000) personal and advertising injury aggregate, or in such
amount as required in any collateralized Leases, whichever is greater, with
defense appearance cost coverage and naming Lender as an additional insured.
All insurance herein provided for shall be in form and content and be issued by
carriers approved by Lender (minimum Best's rating of A-, V). Borrower shall
deliver to the Lender all policies of insurance which insure against any loss
or damage to the Premises, as collateral and further security for the payment
of the Secured Indebtedness, with (i) a Standard Mortgage Clause giving Lender
thirty (30) days' written notice prior to cancellation of any of said policies,
(ii) a replacement cost or restoration endorsement, (iii) a provision stating
that a waiver of subrogation rights by the insured does not void coverage, and
(iv) such special endorsements as may be required by the terms of any Leases
assigned as a source for repayment of the Loan. If Borrower defaults in so
insuring the Premises or in so delivering the policies, Lender may at its
option (but without any obligation to do so) effect such insurance from year to
year, and pay the premiums therefor, and Borrower will reimburse Lender for any
premiums so paid, on demand, with interest at the Default Rate from the time of
payment and the same shall be deemed a part of the Secured Indebtedness.
Lender, upon receipt of any money for loss or damage pursuant to such
insurance, may, at its option, (a) retain and apply such monies toward payment
of the Secured Indebtedness, with any excess held by it over the amount of the
Secured Indebtedness to be returned to Borrower or any party entitled thereto
without interest, or (b) pay such monies in whole or in part to Borrower for
the repair or restoration of the Improvements or for the erection of new
Improvements in their place, or for any other purpose or object satisfactory to
Lender, but Lender shall not be obligated to see to the proper application of
any amount paid over to Borrower. Not less than ten (10) days prior to the
expiration dates of each policy required of Borrower, Borrower will deliver to
Lender a paid renewal or replacement policy. Borrower shall not take out
separate insurance concurrent in form or contributing in the event of loss
separate from that insurance required to be maintained hereunder unless Lender
is included thereon under a standard mortgagee's clause acceptable to Lender.
Borrower shall immediately notify Lender whenever any such separate insurance
is taken out and shall promptly deliver to Lender the policy or policies of
such insurance; and SEE EXHIBIT A, ADDITIONAL PROVISIONS, SECTION A8.
(b) In the event of a foreclosure of the Mortgage, or deed in lieu
of foreclosure, or other transfer of title of the Premises in extinguishment,
in whole or in part, of the indebtedness secured thereby, all right, title and
interest of Borrower in and to all policies of insurance on the Premises,
including any right to unearned premiums, are hereby assigned to and shall
inure to the benefit of Lender or the purchaser of the Premises.
ARTICLE V
DAMAGE OR DESTRUCTION; INSURANCE PROCEEDS
Section 5.1. Notice. In case of casualty to the Premises resulting in
damage or destruction, Borrower shall promptly give written notice thereof to
Lender.
Section 5.2. Assignment of Insurance Proceeds; Authority to Settle
Claims. Borrower hereby grants, transfers and assigns to Lender any insurance
proceeds which Borrower is otherwise entitled to receive in connection with any
damages to the Premises or part thereof and the same shall be paid to Lender.
Borrower hereby authorizes and directs any affected insurance carrier to make
payment of such proceeds directly to Lender. Provided no Default or Default
Condition exists under the Note, the Mortgage, or any Collateral Loan Document,
Borrower and Lender shall both have the right to participate in the settlement,
adjustment or compromise of any claims for loss, damage or destruction under any
policy or policies of insurance, but in the event such Default or Default
Condition exists, only
5
9
Lender shall have the right to settle, adjust, and compromise insurance claims.
No interest shall be allowed to Borrower on any insurance proceeds paid to and
held by the Lender.
Section 5.3. Lender's Election Regarding Insurance Proceeds. The
insurance proceeds shall be delivered to Lender and be applied (pursuant to the
provisions of this Article) to reduction or full pay off of the Secured
Indebtedness, without prepayment premium, unless Lender elects to make such
proceeds available for restoration purposes. Within thirty (30) days after
receipt of the written notice referred to in Section 5.1, Lender shall endeavor
to advise Borrower in writing as to whether Lender elects to apply the insurance
proceeds on the Secured Indebtedness or for restoration of the Premises.
Section 5.4. Destruction. If at any time during the term of the
Mortgage all or any portion of the Premises is damaged or destroyed, and if
Lender elects to have all insurance proceeds applied to payment of the Secured
Indebtedness, as provided in Section 5.5, but such proceeds are not sufficient
to pay in full the then unpaid balance of said indebtedness, with accrued
interest thereon, Borrower shall, within SIX (6) MONTHS AFTER application of
such proceeds, pay such deficiency to Lender.
Section 5.5. Application of Proceeds. If Lender elects to have the
insurance proceeds applied to pay off or reduce the unpaid balance of the
Secured Indebtedness, such proceeds shall, promptly after receipt by Lender, be
applied by the Lender, first, to pay the actual costs, fees and expenses, if
any, incurred in connection with the adjustment of the loss, and, second, to
reduction or pay off of the Secured Indebtedness, without prepayment premium,
with any excess held by it over the amount of the Secured Indebtedness to be
returned to Borrower or any party entitled thereto without interest. IN THE
EVENT OF SUCH APPLICATION, BORROWER SHALL BE ENTITLED TO REAMORTIZE THE PAYMENT
SCHEDULE OF THE NOTE.
Section 5.6. Restoration. If the insurance proceeds are made available
for restoration by Lender in its sole discretion, Borrower shall, whether or not
the insurance proceeds, shall be sufficient for the purpose, restore, repair,
replace, and rebuild (hereinafter referred to as "Restoration") the Premises as
nearly as possible to its value, condition and character immediately prior to
such damage or destruction. In such event, all insurance money paid to Lender
on account of such damage or destruction, less the actual costs, fees and
expenses, if any, incurred in connection with adjustment of the loss, shall be
released by Lender to be applied to payment (to the extent of actual restoration
performed) of the cost of the aforesaid Restoration, including the cost of
temporary repairs or Restoration. If the insurance proceeds are so made
available by Lender for Restoration, any surplus which may remain out of such
proceeds after payment of the cost of restoration shall, at the option of
Lender, be applied to the Secured Indebtedness, without prepayment premium, or
be paid to any party entitled thereto and under the conditions that Lender may
require. NOTWITHSTANDING THE FOREGOING, HOWEVER, SO LONG AS THERE IS NO DEFAULT
AND SO LONG AS BORROWER IS PURSUING RESTORATION DILIGENTLY, BORROWER SHALL BE
ENTITLED TO RECEIVE ANY INSURANCE PROCEEDS PAID OUT UNDER A POLICY COVERING
BUSINESS INTERRUPTION. Insurance proceeds released for Restoration shall at
Lender's option be disbursed from time to time as such Restoration progresses or
at one time upon completion of such Restoration subject to the following
conditions:
(a) Borrower is not then in Default under and no Default Condition
then exists with respect to any of the terms, covenants and conditions under
the Note, the Mortgage, or any of the Collateral Loan Documents, and Borrower
is not then in default under any Leases of the Premises; and
(b) if Lender has elected to disburse such proceeds at one time
upon completion of Restoration, Lender shall first be given satisfactory proof
that all portions of the Premises affected by the loss or damage have been
fully restored in accordance with plans and specifications acceptable to
Lender, free and clear of all liens, except for any liens to be satisfied from
such proceeds and except for the lien of the Mortgage; and
(c) if Lender has elected to disburse such proceeds from time to
time as Restoration progresses, Lender shall first be given satisfactory proof
that by the expenditure of such proceeds, the Premises will be fully restored,
free and clear of all liens, except as to the lien of the Mortgage, or, if such
proceeds are insufficient to restore or rebuild the Premises, Borrower shall
either (i) deposit promptly with Lender funds which, together with such
proceeds, shall be sufficient in Lender's sole determination to complete
Restoration, or (ii) provide other assurance satisfactory to Lender that
Restoration will be completed; and
(d) in the event Borrower shall fail either to pursue Restoration
diligently to completion or to complete Restoration within a reasonable time,
Lender, at its option, may complete Restoration for or on behalf of Borrower
and for such purpose may do all necessary acts.
In the event any of the said conditions are not or cannot be
satisfied, then Lender may apply such proceeds to payment of the Secured
Indebtedness, as provided in Section 5.5. Under no circumstances shall Lender
become personally liable for the fulfillment of the terms, covenants and
conditions contained in any of the Leases with respect to the matters referred
to in this paragraph nor obligated to take any action to restore the Premises.
Lender shall not be obligated to see to the proper application of any funds
released hereunder, nor shall any amount so released or used be deemed a
payment on the Secured Indebtedness.
If any of the said conditions is not satisfied, and if Lender is
unwilling to waive that condition and thereby to make such proceeds so
available, Borrower shall have the right to prepay, without prepayment premium,
the balance of the Secured Indebtedness that remains unpaid after application
of the proceeds or awards thereto.
Section 5.7. Payment of Deposited Funds. Upon (i) completion of all
the Restoration in a good workmanlike manner and substantially in accordance
with the plans and specifications therefor, if any, approved by Lender and (ii)
receipt by Lender of satisfactory evidence of the character required by
conditions (b) and (c) of Section 5.6 hereof, that the Restoration has been
completed and paid for in full (or, if any part of such Restoration has not been
paid for, adequate security for such payment shall exist in form satisfactory to
Lender) and that there are no liens of the character referred to in said
condition (b), any balance of the insurance proceeds at the time held by Lender
shall, at Lender's option, be applied to reduce the Secured Indebtedness,
without prepayment premium, or be paid to Borrower or its designee provided
Borrower is not then in Default under and no Default Condition then exists with
respect to any of the terms or provisions of the Note, the Mortgage, or any of
the Collateral Loan Documents.
Section 5.8. Application of Insurance Proceeds in Event of Default. If,
while any insurance proceeds are being held by Lender to reimburse Borrower for
the cost of rebuilding or Restoration of the Premises, Lender shall be or become
entitled to, and shall accelerate the Secured Indebtedness upon the terms and
conditions set forth in the Note, Lender shall be entitled to apply all such
proceeds then held by it in reduction of the Secured Indebtedness and any excess
held by it over the amount of the Secured Indebtedness shall be returned to
Borrower or any party entitled thereto without interest.
6
10
ARTICLE VI
EMINENT DOMAIN; CONDEMNATION AWARDS
Section 6.1. Notice. In the event that the Premises, or any part
thereof, shall be taken in condemnation proceedings or by exercise of any right
of eminent domain or by conveyance(s) in lieu of condemnation (hereinafter
called collectively, "condemnation proceedings"), or should Borrower receive any
notice or information regarding any such proceeding, Borrower shall give prompt
written notice thereof to Lender. Borrower and Lender shall have the right to
participate in any such condemnation proceedings and the proceeds thereof shall
be deposited with Lender and be distributed in the manner set forth in this
Article VI. Borrower agrees to execute any and all further documents that may
be required in order to facilitate collection of any award or awards and the
making of any such deposit.
Section 6.2. Assignment of Condemnation Awards. Borrower hereby
grants, transfers and assigns to Lender the proceeds of any and all awards or
claims for damages, direct or consequential, which Borrower is otherwise
entitled to receive, in connection with any condemnation of or injury to the
Premises, or part thereof, or for conveyances in lieu of condemnation, and the
same shall be paid to Lender. Borrower hereby authorizes and directs any such
condemning authority to make payment of such award(s) and claim(s) directly to
Lender. No interest shall be allowed to Borrower on any such condemnation
awards paid to and held by Lender.
Section 6.3. Total Taking. If at any time during which any Secured
Indebtedness remains unpaid, title to the whole or substantially all of the
Premises shall be taken in condemnation proceedings or by agreement between
Borrower, Lender and those authorized to exercise such right, Lender shall apply
such award or proceeds which it receives pursuant to Section 6.2 hereof first to
pay the actual costs, fees and expenses, if any, incurred in connection with the
collection of the award, and second to full payment of all remaining Secured
Indebtedness, without prepayment premium, and any excess award funds then
remaining after payment of the Secured Indebtedness in full shall be paid to any
party entitled thereto. In the event that the amount of the award or proceeds
received by Lender shall not be sufficient to pay in full the then unpaid
balance of the Secured Indebtedness, with the accrued interest thereon, Borrower
shall, within ten (10) days after the application of the award or proceeds as
aforesaid pay such deficiency to Lender. For the purposes of this Section
"substantially all of the Premises" shall be deemed to have been taken if the
portion of the Premises not so taken cannot be so repaired or reconstructed as
to constitute a complete, rentable structure(s) capable of producing a fair and
reasonable net annual income sufficient, after the payment of all operating
expenses thereof, to retire the Obligations per the terms of the Note.
Section 6.4. Partial Taking - Lender's Election. If at any time during
which any Secured Indebtedness remains unpaid, title to less than the whole or
substantially all of the Premises shall be taken as aforesaid, then Lender will
elect, within thirty (30) days after receipt of written notice of such taking,
whether to have the proceeds of the award applied to reduction of the unpaid
balance of the Secured Indebtedness, without prepayment premium, or to have such
proceeds made available to Borrower for the repair and recon struction necessary
to restore the Premises. If Lender elects to have the award or proceeds applied
to reduce the unpaid balance, said proceeds shall, promptly after receipt by
Lender, be applied by Lender, first, to pay the actual costs, fees and expenses,
if any, incurred in connection with the collection of the award, and, second, to
reduction of the Secured Indebtedness, without prepayment premium, in inverse
order of payments provided for in the Note, but if such proceeds are not
sufficient to pay in full the then unpaid balance of said indebtedness, with
accrued interest thereon, Borrower shall, within ten (10) days after application
of such proceeds, pay such deficiency to Lender. If Lender elects to have the
proceeds of the award used for repair and Restoration, all of the award or
proceeds collected by Lender shall be applied first to pay the actual costs,
fees and expenses, if any, incurred in connection with the collection of the
award, and the balance shall be paid over toward the costs of demolition, repair
and Restoration, substantially in the same manner and subject to the same
conditions as those provided in Article V hereof with respect to insurance
proceeds and other monies. Any balance of such award proceeds remaining in the
hands of Lender after payment of such costs of demolition, repair and
Restoration as aforementioned, shall be retained by Lender and applied in
reduction of the Secured Indebtedness, without prepayment premium, in inverse
order of payments as set forth in the Note. In the event that such costs shall
exceed the net award amount collected by Lender, Borrower shall pay the
deficiency, on demand.
Section 6.5. Abandonment; Failure of Borrower to Respond to Offer,
etc. If the Premises are abandoned by Borrower or if after notice to Lender
and/or Borrower that the condemnor offers to make an award or settle a claim
for damages, Borrower fails to respond to the offer and fails to advise Lender
within thirty (30) days of the date of such notice, then Lender is authorized
to collect and apply the proceeds at the Lender's option either (a) to restore
and repair the Premises, as provided in Section 6.4, or (b) to the Secured
Indebtedness, without prepayment premium, in inverse order of payments as set
forth in the Note, with any excess held by it over the amount of the Secured
Indebtedness to be returned to Borrower or any party entitled thereto without
interest.
Section 6.6. Application of Proceeds. In the event that the principal
balance secured by the Mortgage is reduced under the provisions of Sections 6.3,
6.4 or 6.5 hereof, BORROWER SHALL BE ENTITLED TO REAMORTIZE THE PAYMENT SCHEDULE
OF THE NOTE.
Section 6.7. Expenses. In the case of any taking covered by the
provisions of this Article VI, Lender shall be entitled to reimbursement from
any awards or proceeds of all reasonable costs, attorneys' fees and expenses
incurred in the negotiation, settlement, determination and collection of any
such awards or proceeds.
Section 6.8. Application of Condemnation Awards in Event of Default.
If, while any condemnation awards or proceeds are being held by the Lender,
Lender shall be or become entitled to, and shall accelerate the Secured
Indebtedness upon the terms and conditions set forth in the Note, then Lender
shall be entitled to apply all such condemnation awards then held by it in
reduction of the Secured Indebtedness and any excess held by it over the amount
of the Secured Indebtedness shall be returned to Borrower or any party entitled
thereto without interest.
ARTICLE VII
ENVIRONMENTAL MATTERS
Section 7.1. Environmental Indemnity Agreements. Borrower shall cause
itself and any other parties required by Lender, as listed in Section 2.2(e), to
execute and deliver Environmental Indemnity Agreements in favor of Lender
relating to hazardous and toxic substances and environmental laws as the same
may affect Borrower or the Premises, such agreements to be in form and content
acceptable to Lender in its sole discretion.
Section 7.2. Entry Upon Premises. SEE EXHIBIT A, ADDITIONAL
PROVISIONS, SECTION A9.
7
11
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.1. Events of Default. The occurrence of any one or more of
the following events shall be considered a Default under this Loan Agreement:
(a) Breach of Warranty. The determination by Lender that
any representation or warranty made in this Loan Agreement was incorrect in any
material respect as of the date thereof;
(b) Breach of Covenant. The failure of Borrower
punctually and properly to perform any covenant or agreement contained in this
Loan Agreement; or
(c) Other Documents. The occurrence of a Default by
Borrower or any guarantor of the Secured Indebtedness under the Note, the
Mortgage, or any other Collateral Loan Document.
Section 8.2. Remedies. Upon the happening of any Default:
(a) Acceleration. Lender may, at its option and subject
to applicable law, declare the entire principal amount of all Obligations then
outstanding, including interest accrued thereon, to be immediately due and
payable without presentment, demand, protest, notice of protest, or dishonor or
other notice of Default of any kind, all of which are hereby expressly waived.
(b) Preservation of Financing. Lender may, at its option,
take any action necessary to cure or prevent a default under any other lender's
commitment to provide financing with respect to any or all of the Premises.
(c) Preservation of Collateral. Lender may, at its
option, take any action necessary to cure or prevent any impairment of the
value or to remove any Encumbrance of the Collateral.
(d) Appointment of Managing Agent. Without limiting the
other remedies granted Lender hereunder, Lender may, at its option, require
that Borrower employ a managing agent (suitable to Lender) for the Premises at
Borrower's expense.
(e) Exercise of Remedies. Lender may, at its option,
exercise all other remedies afforded Lender under the Note, the Mortgage, and
the Collateral Loan Documents and all other rights afforded a creditor under
applicable law or principles of equity.
Section 8.3. Additional Amount Due After Acceleration. Upon the
occurrence of any Default under the Note, the Mortgage, or any Collateral Loan
Document and following the acceleration of maturity of the Secured Indebtedness,
as provided in the Mortgage, there shall be due and payable, in addition to all
other amounts due, the prepayment premium calculated as provided in the Note.
Section 8.4. Remedies Not Exclusive. The rights and remedies of Lender
arising under the Note, the Mortgage, and the Collateral Loan Documents shall be
separate, distinct and cumulative and no such right or remedy shall be exclusive
of any other right or remedy under any of such documents or at law or equity.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Right to Inspect; Right to Require Management Agent.
Lender, its officers, employees or agents, shall have the right to visit and
inspect the Premises at all reasonable times and as often as Lender may
reasonably desire AT LENDER'S EXPENSE UNLESS SUCH RIGHT IS EXERCISED DURING THE
PENDENCY OF AN UNCURED DEFAULT. Without limiting the foregoing, Lender and its
agents and consultants shall have the right to enter upon the Premises from time
to time to perform the inspections, audits, etc. referred to in Section 7.2, and
in addition to examine Borrower's books of record and accounts in regard to any
Collateral, to take copies and extracts from such books of record and accounts,
and to discuss the affairs, finances and accounts of Borrower with Borrower's
respective officers, accountants and auditors. At any time DURING Default by
the Borrower in the performance of any of the terms, covenants or provisions of
the Note, the Mortgage, or any of the Collateral Loan Documents, if the Lender
(in the exercise of reasonable business judgment) determines that the management
or maintenance of the Premises is unsatisfactory, then Lender shall have the
right at its sole option, to require that Borrower employ a managing agent for
the Premises, or replace the existing managing agent, as applicable. Such
managing agent shall be selected by Borrower (with Lender's approval) and shall
be employed at Borrower's expense. The exercise of the rights herein conferred
upon the Lender shall not be deemed an election of remedies or exclusive of any
other right or remedy available to the Lender on account of such Default, but
rather shall be in addition to all such other rights and remedies. The rights
granted Lender in this Section may be enforced by injunctive relief.
Section 9.2. No Effect on Liability. Without affecting the liability
of any other Person liable with respect to the Obligations and without affecting
the lien or charge of the Mortgage upon any portion of the Premises not then or
theretofore released as security for the Obligations, Lender may from time to
time and without notice (a) release any Person so liable, (b) extend the
maturity or alter any of the terms of any of the Obligations, (c) grant other
indulgences, (d) release or reconvey, or cause to be released or reconveyed, any
parcel, portion or all of the Premises, (e) take or release any other or
additional security for any Obligation, or (f) make compositions or other
arrangements with debtors in relation thereto. No sale of the Premises shall in
any way affect the liability of any party to the Note, or any Person liable or
to become liable with respect to the Obligations. The defenses of impairment of
Collateral and impairment of recourse and any requirement of diligence on
Lender's part in collecting the Obligations are hereby waived.
Section 9.3. Renewal, Extension or Rearrangement. All provisions of
this Loan Agreement relating to Obligations shall apply with equal force and
effect to each and all promissory notes executed hereafter which in whole or in
part represent a renewal, extension for any period, increase, or rearrangement
of any part of the Obligations originally represented by any part of such other
Obligations.
Section 9.4. No Marshalling of Assets. Lender may proceed against any
Collateral and against parties liable therefor in such order as it may elect,
and neither Borrower nor any surety or guarantor for Borrower nor any creditor
of Borrower shall be entitled to require Lender to marshal assets. The benefit
of any rule of law or equity to the contrary is hereby expressly waived.
Section 9.5. Transfer of Loan. Lender may, from time to time, in its
sole discretion, and without notice to Borrower, sell the Loan or participations
therein to such investors or financial institutions as it may elect. Lender may
from time to time disclose to any purchaser or prospective purchaser such
information as Lender may have regarding the financial condition, operations,
and prospects of Borrower and any guarantor of the Secured Indebtedness.
8
12
Section 9.6. Notices. Whenever Lender or Borrower desires to give or
serve any notice, demand, request or other communication with respect to the
Note, the Mortgage, or any Collateral Loan Document, each such notice, demand,
request or other communication shall be in writing and shall be effective only
if and when the same is (i) delivered by personal service; (ii) mailed by
certified mail, postage prepaid, return receipt requested, THE DELIVERY OF WHICH
SHALL BE DEEMED TO HAVE OCCURRED ON THE DAY ON WHICH SUCH MAILING IS RECEIVED OR
RECEIPT REFUSED; or (iii) delivered by nationwide overnight delivery service
(with charges prepaid). All notices must be addressed to the following
addresses:
LENDER
The Lincoln National Life Insurance Company
c/o Lincoln National Investment Management Company
200 East Berry Street
P.O. Box 2390
Fort Wayne, Indiana 46802
Attention: Loan Servicing, Financial Services
BORROWER
RAMCO-GERSHENSON PROPERTIES, L.P.
27600 NORTHWESTERN HIGHWAY
SUITE 200
SOUTHFIELD, MICHIGAN 48034
Any party may at any time change its address for such notices by
delivering or mailing to the other parties hereto, as aforesaid, a notice of
such change. However, nothing in this section shall be construed to require
Lender to give any notice of Default or notice of intent to accelerate.
Section 9.7. Joint and Several Liability. If Borrower consists of more
than one party, then such Borrowers shall be jointly and severally liable under
any and all Obligations, covenants and agreements of the Borrower.
Section 9.8. Severability. In case any one or more of the covenants,
agreements, terms or provisions in the Note, the Mortgage, or any Collateral
Loan Document shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions shall in no
way be affected, prejudiced or disturbed thereby, and to this end the provisions
of the Note, the Mortgage, and the Collateral Loan Documents are declared to be
severable.
Section 9.9. Binding Effect; No Assignment. This Loan Agreement shall
be binding upon and inure to the benefit of the respective heirs, successors and
assigns of Borrower and Lender, except that Borrower shall not assign any rights
or delegate any obligations arising hereunder without the prior written consent
of Lender, which may be withheld in Lender's sole discretion. Any attempted
assignment or delegation by Borrower without such required prior consent shall
be void.
Section 9.10. Entire Agreement. The Note, the Mortgage, and the
Collateral Loan Documents represent the entire agreement between the parties
concerning the subject matter hereof, and all oral discussions and prior
agreements are merged herein and therein. Provided, if there is a conflict among
any documents executed contemporaneously herewith with respect to the
Obligations, the provision most favorable to Lender shall control.
Section 9.11. Counterparts. This Loan Agreement may be executed by
counterpart signature pages, and it shall not be necessary that the signatures
of all parties be contained on any one counterpart. Each counterpart shall be
deemed an original, but all of them together shall constitute one and the same
instrument.
Section 9.12. Negotiated Document. The Note, the Mortgage, and the
Collateral Loan Documents have been negotiated by the parties with full benefit
of counsel and should not be construed against either party as author.
Section 9.13. Not Partners; No Third Party Beneficiaries. Nothing
contained herein or in any related document shall be deemed to render Lender a
partner of Borrower for any purpose. This Loan Agreement has been executed for
the sole benefit of Lender, and no third party is authorized to rely upon
Lender's rights hereunder or to rely upon an assumption that Lender has or will
exercise its rights under this Loan Agreement or under any document referred to
herein.
Section 9.14. Governing Law. The validity, construction and
enforcement of the Note, the Mortgage, and the Collateral Loan Documents shall
be determined according to the laws of MICHIGAN, applicable to contracts
executed and performed entirely within that state.
Section 9.15. Modification Procedure. None of the Note, the Mortgage,
or any Collateral Loan Document may be modified except by an instrument in
writing executed by the party against whom enforcement of the change is sought.
No requirement of the Note, the Mortgage, or any Collateral Loan Document may be
waived at any time except by a writing signed by both parties, nor shall any
waiver be deemed a waiver of any subsequent breach or Default of Borrower.
Section 9.16. No Waiver. Failure to accelerate the maturity of the
Obligations, or any portion thereof, upon the occurrence of any Default, or
acceptance of any sum after the same is due, or acceptance of any sum less than
the amount then due, or failure to demand strict performance by Borrower of the
provisions of the Note, the Mortgage, or any Collateral Loan Document or any
forbearance by Lender in exercising any right or remedy hereunder or otherwise
afforded by law shall not constitute a waiver by Lender of any provision of the
Note, the Mortgage, or any Collateral Loan Document nor nullify the effect of
any previous exercise of any such option to accelerate or other right or remedy.
Section 9.17. Captions. The headings or captions of the Articles,
sections, paragraphs, and subdivisions of this Loan Agreement and of the Note,
the Mortgage, and the remainder of the Collateral Loan Documents are for
convenience of reference only, are not to be construed a part hereof or thereof,
and shall not be construed as affecting the content of any such Article,
section, paragraph or subdivision.
Section 9.18. Incorporation of Exhibits. All Exhibits, if any,
referred to in this Loan Agreement are incorporated herein by this reference.
9
13
Section 9.19. Time of Essence. Time is of the essence of this Loan
Agreement, the Note, the Mortgage, and the remainder of the Collateral Loan
Documents, and all dates and time periods specified herein or therein shall be
strictly observed.
Section 9.20. Gender and Number. Words used in this Loan Agreement,
the Note, the Mortgage, or in the remainder of the Collateral Loan Documents
indicating gender or number shall be read as context may require.
Section 9.21. Maximum Interest Payable. None of the provisions of the
Mortgage, the Note, or the Collateral Loan Documents shall have the effect of,
or be construed as, requiring or permitting Borrower to pay interest in excess
of the highest rate per annum allowed by the laws of the state in which the
Premises are located on any item or items of indebtedness referred to herein. If
under any circumstances Lender shall ever receive as interest an amount which
would exceed the highest lawful rate, such amount which would be excessive
interest shall, ipso facto, be applied to the reduction of the unpaid principal
balance due hereunder and not to the payment of interest.
Section 9.22. Payment by any Party. Any payment made in accordance
with the terms of the Note, the Mortgage, or any of the Collateral Loan
Documents by any Person at any time liable for the payment of the whole or any
part of the Secured Indebtedness, or by any subsequent owner of the Premises, or
by any other Person whose interest in the Premises might be prejudiced in the
event of a failure to make such payment, or by any stockholder, officer or
director of a corporation which at any time may be liable for such payment or
may own or have such an interest in the Premises, or by any partner, limited
partner, or an affiliate of any partnership which at any time may be liable for
such payment or may own or have such an interest in the Premises shall be
deemed, as between Lender and all Persons who at any time may be liable as
aforesaid or who may own the Premises, to have been made on behalf of all such
Persons.
Section 9.23. Fee for Services Rendered. Lender further reserves the
right to assess Borrower (and the latter agrees to pay) fees for services
rendered by Lender and/or reasonable attorneys' fees in connection with the Loan
or the Premises including but not limited to modification of any documents,
matters undertaken by Lender at the request of Borrower, collection efforts
regarding mortgage payments, exercising assignments of rents or leases, and
foreclosure proceedings under the Mortgage or in pursuit of any remedies under
the Note or under any Collateral Loan Document. Said sums shall, on notice to
Borrower, become immediately due and payable to Lender. If Borrower fails to
make payment of fees pursuant to this Section, then such fees shall be added to
the outstanding principal balance and shall bear interest at the Default Rate.
Section 9.24. Indemnity; Lender's Expenses. Borrower agrees to
indemnify, defend (with counsel satisfactory to Lender) and hold harmless Lender
against any loss, liability, claim or expense, including reasonable attorneys'
fees, that Lender may incur in any manner in connection with the Secured
Indebtedness or the Premises. Without limiting the foregoing, if, in order to
(i) sustain the lien of the Mortgage or its priority, (ii) protect or enforce
any of its rights under the Note, the Mortgage, or any of the Collateral Loan
Documents, (iii) recover amounts due under the Note, the Mortgage, or any of the
Collateral Loan Documents, (iv) recover any of the Obligations, or (v) appear in
connection with any action, suit, proceeding, hearing, motion or application
before any court or administrative body in which Lender may be or become a party
by reason of the Note, this Loan Agreement, the Mortgage, or any Collateral Loan
Document (through the appellate level), including but not limited to
condemnation, bankruptcy and administrative proceedings, as well as any of the
foregoing where a proof of claim is by law required to be filed, Lender shall
incur or expend any sums including but not limited to reasonable attorneys'
fees, costs of title search, continuation of abstract(s), and preparation of
survey; then all such sums shall on notice and demand be paid by Borrower,
together with interest thereon at the Default Rate and shall be a lien on the
Premises, and shall be deemed to be secured by the Mortgage. This Section shall
remain in full effect regardless of the full payment of the Secured
Indebtedness, the purported termination of this Loan Agreement, the delivery of
the executed original of this Loan Agreement to Borrower, or the content or
accuracy of any representation made by Borrower to Lender; provided, however,
Lender may terminate this Section by executing and delivering to Borrower a
written instrument of termination specifically referring to this Section.
Section 9.25. JURISDICTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
BORROWER HEREBY IRREVOCABLY SUBMITS TO PERSONAL JURISDICTION IN MICHIGAN AND OF
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN FOR THE
ENFORCEMENT OF BORROWER'S OBLIGATIONS HEREUNDER, UNDER THE NOTE, THE MORTGAGE,
AND THE COLLATERAL LOAN DOCUMENTS, AND WAIVES ANY AND ALL PERSONAL RIGHTS UNDER
THE LAW OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN MICHIGAN FOR THE
PURPOSES OF LITIGATION TO ENFORCE SUCH OBLIGATIONS. FURTHERMORE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS AND COMPLAINT OR OTHER PROCESS OF THE PAPERS ISSUED THEREIN AND AGREES
THAT SERVICE MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE
BORROWER AT THE ADDRESS SET FORTH HEREIN.
Section 9.26. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE, IN ANY COURT IN WHICH AN ACTION
MAY BE COMMENCED, ARISING OUT OF OR IN CONNECTION WITH THE NOTE, THE MORTGAGE,
ANY COLLATERAL LOAN DOCUMENT, OR ANY OTHER MATTERS RELATING THERETO.
Section 9.27. Additional Provisions. The terms, conditions and
provisions of this Loan Agreement are subject, in all respects, to the
additional sections, if any, set forth on Exhibit A attached hereto and
incorporated herein by this reference.
10
14
IN WITNESS WHEREOF, the parties hereto have caused this Instrument to
be executed and delivered under seal as of the day and year first above
written.
THE UNDERSIGNED ACKNOWLEDGE A THOROUGH
UNDERSTANDING OF THE TERMS OF THIS LOAN
AGREEMENT AND AGREE TO BE BOUND HEREBY.
LENDER:
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY,
an Indiana corporation
By: Lincoln National Investment Management
Company, an Illinois corporation,
Attorney-in-Fact
By: /s/ Olin Mills
Title: Vice President
BORROWER:
RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
a Massachusetts business trust
(formerly known as RPS Realty Trust)
General Partner
By: /s/ Dennis Gershenson
Dennis Gershenson
President
11
15
EXHIBIT A
Additional Provisions to Loan Agreement
The following shall be included in the Loan Agreement, and to the
extent that there is any inconsistency between the text of the Loan Agreement
and the language hereof, the provisions set forth in this Exhibit shall
control:
Section A1. Additional Loan Documents. The following additional
documents shall be included within the Collateral Loan Documents (as defined in
Article I):
(a) That certain Limited Guaranty, made by Ramco-Gershenson
Properties Trust("Guarantor(s)"), dated May 1, 1996;
(b) That certain Assignment of Leases, Rents and Profits, of even
date herewith, made by Borrower in favor of Lender; and
(c) That certain Assignment of Contract Documents, Permits,
Licenses and Management Agreement and Security Agreement, of even date
herewith, made by Borrower in favor of Lender.
Section A2. Borrower's Authority. Borrower and the persons executing
this Loan Agreement on behalf of Borrower represent and warrant to Lender that
Borrower is a duly formed and validly existing limited partnership and has
qualified, to the extent necessary, in the state or states in which the Real
Property is located, and in all other jurisdictions in which Borrower owns
property or conducts business, and has full power and authority to borrow the
loan proceeds and to execute and deliver the Note, the Mortgage, and the
Collateral Loan Documents, and to perform all of the obligations of Borrower
under the Note, the Mortgage, and the Collateral Loan Documents.
Section A3. No Personal Liability for Debt. Notwithstanding any
provision of this Loan Agreement, the Note, the Mortgage, or Collateral Loan
Documents to the contrary, the terms and provisions set forth in Section A1 of
Exhibit A to the Note are incorporated herein by this reference and shall
supersede any inconsistent provision in the Note, the Mortgage, or any of the
Collateral Loan Documents.
Section A4. Financial Statements. In addition to the statements to
be delivered pursuant to Section 3.10:
The Borrower shall cause Guarantor to furnish to the Lender copies of
all those quarterly and annual reports Guarantor is required to file with the
Securities and Exchange Commission, including but not limited to 10-K's and
10-Q's. All such reports shall be certified to be true and correct by a
properly authorized officer, partner or other party of the Guarantor, and shall
be delivered to Lender within (30) days following the filing of such reports.
Section A5. Availability of Insurance and Condemnation Proceeds.
Notwithstanding any provision of Sections 4.4, 5.3, 5.6(b) and 6.4 of this Loan
Agreement to the contrary, Lender agrees to make available insurance proceeds
for Restoration, or condemnation proceeds for repair and reconstruction, as the
case may be, subject to the following conditions:
(a) That the Borrower is not then in Default and no Default
Condition then exists;
(b) None of the major leases in the Premises shall have been
terminated as a result of such destruction or condemnation,
and the Premises shall not have substantially changed in
character as a result of any leases which shall have been
terminated;
(c) Payout of such proceeds shall be pursuant to reasonable
construction payout arrangements established by Lender and at
the sole cost and expense of Borrower;
(d) Sufficient funds are available, from either such condemnation
or insurance proceeds or from funds provided by Borrower to
complete such Restoration or repair and reconstruction;
(e) In the case of insurance proceeds, the aggregate amount of the
estimated cost to complete such Restoration shall not exceed
90% of the then outstanding principal balance of the Loan; or
in the case of condemnation proceeds, the applicable taking
comprises less than 10% of the Premises;
(f) In Lender's judgment such Restoration or such repair and
reconstruction, as the case may be, can be completed on or
before a date which is 12 months prior to the maturity date of
the Loan; and
(g) Lender shall have received evidence satisfactory to it that
upon completing such Restoration or such repair and
reconstruction, as the case may be, the Premises will generate
sufficient cash flow to service the Loan at a ratio of 1.4 to
1.
Section A6. Installation of New Management. Lender agrees not to
exercise its right under Section 8.2(d) or 9.1 to require new management until
forty-five (45) days have elapsed following the earlier to occur of (a) a
Default or (b) a Default Condition.
Section A7. Insurance Coverages. The following is added to the end
of Section 4.4(a):
In satisfaction of the foregoing requirements, Lender will
accept (a) a Certificate of (blanket) Insurance relating to liability coverage,
and (b) evidence of blanket coverage insurance with appropriate endorsements,
as to all other coverage required hereunder.
Section A8. Entry Upon Premises. In the event of either (a) a
Default, or (b) a breach of any provision of Section 3 of the Environmental
Indemnity Agreement, upon reasonable prior notice (except that prior notice
shall not be required in case of emergency), Lender, its agents and
constituents shall have the right to enter upon the Premises from time to time
to perform such environmental inspections, audits, tests and site assessments
as Lender deems necessary, and all costs incurred by Lender shall be reimbursed
according to the Environmental Indemnity Agreement.
In all other cases, upon five (5) days' prior notice (except in the
case of emergency or if prior notice is not practicable), Lender and its agents
and consultants shall have the right to enter upon the Premises from time to
time to perform such environmental inspections, audits, tests and site
assessments as Lender deems necessary, provided that in such event, said
inspections, audits, tests and
1
16
site assessments shall be at Lender's expense, and said entry shall be
reasonably coordinated with Borrower and/or its agents so as to minimize
interference with the affairs of Borrower and its tenants.
Section A10. Non-Recourse as to Trustees. All persons having
any claim hereunder against the Ramco-Gershenson Properties Trust (the
"Trust"), or in connection with any matter that is the subject hereof shall
look solely to the trust assets of the Trust, and in no event shall such
obligations of the Trust be enforceable against any shareholder, trustee,
officer, employee or agent of the Trust personally.
This Exhibit shall not be binding and shall have no force and effect,
unless executed by both of the parties to the Loan Agreement below:
LENDER:
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY,
an Indiana corporation
By: Lincoln National Investment Management
Company, an Illinois
corporation, Attorney-in-Fact
By: /s/ Olin Mills
---------------------------------------------
Title: Vice President
------------------------------------------
BORROWER:
RAMCO-GERSHENSON PROPERTIES, L.P. a Delaware
limited partnership
By: Ramco-Gershenson Properties Trust,
a Massachusetts business trust
(formerly known as RPS Realty Trust)
General Partner
By: /s/ Dennis Gershenson
---------------------------------------------
Dennis Gershenson
President
2