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EXHIBIT 10.31
THIRD AMENDMENT TO
AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT
AND OTHER LOAN DOCUMENTS
THIS THIRD AMENDMENT TO AMENDED AND RESTATED MASTER REVOLVING CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS (this "Amendment") made as of this 18th day
of July, 1997, by and among RAMCO-GERSHENSON PROPERTIES, L. P., a Delaware
limited partnership ("Borrower"), RAMCO-GERSHENSON PROPERTIES TRUST, a
Massachusetts business trust ("Guarantor"), BANKBOSTON, N.A. (formerly known as
The First National Bank of Boston), individually ("FNBB"), and NBD BANK ("NBD";
FNBB and NBD are hereinafter referred to collectively as the "Banks"), and
BANKBOSTON, N.A., (formerly known as The First National Bank of Boston), as
Agent (the "Agent").
W I T N E S E T H:
WHEREAS, Borrower, Guarantor, Agent and the Banks entered into that
certain Amended and Restated Master Revolving Credit Agreement dated as of June
24, 1996, as amended by that certain First Amendment to Amended and Restated
Master Revolving Credit Agreement and Other Loan Documents dated as of May 22,
1997 (the "First Amendment") and that certain Second Amendment to Amended and
Restated Master Revolving Credit Agreement dated as of June 16, 1997 (the
"Second Amendment"; such Amended and Restated Master Revolving Credit
Agreement, as amended by the First Amendment and the Second Amendment, is
hereinafter referred to collectively as the "Credit Agreement"); and
WHEREAS, Guarantor has executed and delivered to the Agent and the Banks
that certain Amended and Restated Unconditional Guaranty of Payment and
Performance dated as of June 24, 1996 (the "Guaranty"); and
WHEREAS, the parties hereto desire to enter into the Amendment to modify
and amend certain terms and provisions of the Credit Agreement; and
WHEREAS, as a condition to such modification, Agent and the Banks have
required that Borrower and Guarantor execute this Amendment;
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. Definitions. All terms used herein which are not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
2. Modification of the Credit Agreement. Borrower, Guarantor, the
Banks and Agent do hereby modify and amend the Credit Agreement as follows:
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(a) The parties hereto acknowledge that the references to
"Borrowing Base" appearing in Paragraph 2(a) of the Second Amendment was
inadvertent and is hereby deleted from the Second Amendment;
(b) By inserting the following sentence at the end of the
definition of the term "Borrowing Base" appearing in Section 1.1 of the Credit
Agreement: "Notwithstanding the foregoing, the Borrowing Base attributable to a
Mortgaged Property shall not exceed the amount to which recovery under the
applicable Security Deed is limited unless such Security Deed is modified to
increase the recovery limit to the Borrowing Base amount.";
(c) By deleting in its entirety the definition of the term
"Majority Banks" appearing in Section 1.1 of the Credit Agreement, and
inserting in lieu thereof the following:
"Majority Banks. As of any date, the Bank or Banks whose
aggregate Commitment Percentage is more than sixty-six and
two-thirds percent (66 2/3%); 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.
FNBB acknowledges and agrees that its voting rights shall be
based upon its Commitment Percentage and not upon the face amount
of its Note.";
(d) By deleting the reference to "Section 5.7," appearing in
the definition of "Special Security Documents" appearing in Section 1.1 of the
Credit Agreement and inserting in lieu thereof the reference "Section 5.8,";
(e) By inserting the words "or to issue Letters of Credit"
following the words "to advance proceeds of the Loan" appearing in the last two
(2) lines of Section 12.1(s) of the Credit Agreement;
(f) By inserting the following sentence at the end of Section
14.5(a) of the Credit Agreement: "In the event that the Agent fails to
distribute such amounts within one Business Day as provided above, the Agent
shall pay interest on such amount at a rate per annum equal to the Federal
Funds Effective Rate from time to time in effect.";
(g) By inserting the following sentence at the end of Section
14.5(b) of the Credit Agreement:
"In the event that Agent shall refrain from making any
distribution of any amount received by it as provided in this
Section 14.5(b), 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, 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."; and
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(h) By inserting the following paragraph as a new Section
14.11 of the Credit Agreement:
"Section 14.11 Removal of Agent. The Majority Banks may remove
the Agent from its capacity as agent in the event of the Agent's
willful misconduct or gross negligence. Such removal shall be
effective upon appointment and acceptance of a successor agent
selected by the Majority Banks. Any successor Agent must satisfy
the conditions set forth in Section 14.9. Upon the acceptance of
any appointment as agent hereunder by a successor agent, such
successor agent shall thereupon succeed to and become vested with
all rights, powers, privileges and duties of the removed Agent,
and the removed Agent shall be discharged from all further duties
and obligations as Agent under this Agreement and the Loan
Documents (subject to the Agent's right to be indemnified as
provided in the Loan Documents); provided that the Agent shall
remain liable to the extent provided herein or in the Loan
Documents for its acts or omissions occurring prior to such
removal or resignation. The Commitment Percentage of the Bank
which is acting as Agent shall not be taken into account in the
calculation of Majority Banks for the purposes of removing Agent
in the event of the Agent's willful misconduct or gross
negligence."
3. References to Credit Agreement, Notes, Guaranty and Indemnity
Agreement. All references in the Loan Documents to the Credit Agreement shall
be deemed a reference to the Credit Agreement as modified and amended herein.
4. Consent of Guarantor. By execution of this Amendment, Guarantor
hereby expressly consents to the modifications and amendments relating to the
Credit Agreement as set forth herein, and Guarantor hereby acknowledges,
represents and agrees that the Guaranty remains in full force and effect and
constitutes the valid and legally binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms, that the Guaranty extends to
and applies to the foregoing documents as modified and amended, and that the
execution and delivery of this Amendment does not constitute, and shall not be
deemed to constitute, a release, waiver or satisfaction of Guarantor's
obligations under the Guaranty.
5. No Default. By execution hereof, the Borrower and Guarantor
certify that the Borrower and Guarantor are and will be in compliance with all
covenants under the Loan Documents after the execution and delivery of this
Amendment, and that no Default or Event of Default has occurred and is
continuing.
6. Waiver of Claims. Borrower and Guarantor acknowledge, represent
and agree that Borrower and Guarantor have no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever with respect
to the Loan Documents, the administration or funding of the Loans or with
respect to any acts or omissions of Agent or any of the Banks, or any past or
present officers, agents or employees of Agent or any of the Banks, and each of
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Borrower and Guarantor does hereby expressly waive, release and relinquish any
and all such defenses, setoffs, claims, counterclaims and causes of action, if
any.
7. Ratification. Except as hereinabove set forth, all terms,
covenants and provisions of the Credit Agreement remain unaltered and in full
force and effect, and the parties hereto do hereby expressly ratify and confirm
the Credit Agreement as modified and amended herein. Nothing in this Amendment
shall be deemed or construed to constitute, and there has not otherwise
occurred, a novation, cancellation, satisfaction, release, extinguishment or
substitution of the indebtedness evidenced by the Notes or the other
obligations of Borrower and Guarantor under the Loan Documents.
8. Counterparts. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
9. Miscellaneous. This Amendment shall be construed and enforced in
accordance with the laws of the State of Michigan. This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors, successors-in-title and assigns as provided in
the Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of 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 Massachusetts business trust
By: /s/ Authorized Signature
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Name:
Title:
[SEAL]
GUARANTOR:
RAMCO-GERSHENSON PROPERTIES TRUST, a
Massachusetts business trust
By: /s/ Authorized Signature
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Name:
Title:
[SEAL]
BANKBOSTON, N.A. (formerly known as The
First National Bank of Boston),
individually and as Agent
By: /s/ JEFFREY L. WARWICK
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Jeffrey L. Warwick, Director
[BANK SEAL]
NBD BANK
By: /s/ Authorized Signature
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Title:
[BANK SEAL]
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