1
EXHIBIT 10.4
SECOND AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT
DATED AS OF OCTOBER 30, 1997
among
RAMCO-GERSHENSON PROPERTIES, L.P.
as Borrower,
and
RAMCO-GERSHENSON PROPERTIES TRUST,
as Guarantor,
and
BANKBOSTON, N.A. (formerly known as The
First National Bank of Boston)
as a Bank,
and
THE OTHER BANKS WHICH MAY BECOME
PARTIES TO THE AGREEMENT
and
BANKBOSTON, N.A. (formerly known as The
First National Bank of Boston)
as Agent
2
TABLE OF CONTENTS
PAGE
----
Section 1. DEFINITIONS AND RULES OF INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Rules of Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2. THE REVOLVING CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.1. Commitment to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.2. Unused Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.3. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.4. Interest on Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.5. Requests for Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.6. Funds for Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.7. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.8. Optional Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3. REPAYMENT OF THE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.1. Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.2. Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.3. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.4. Partial Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.5. Effect of Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.6. Proceeds from Debt or Equity Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 4. CERTAIN GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.1. Conversion Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.2. Commitment and Syndication Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.3. Agent's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.4. Funds for Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.5. Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.6. Inability to Determine LIBOR Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.7. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.8. Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.9. Additional Costs, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.10. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.11. Indemnity of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.12. Interest on Overdue Amounts; Late Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.13. HLT Classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.14. Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.15. Limitation on Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.16. Extension of Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5. COLLATERAL SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.1. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.2. Appraisals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
-i-
3
PAGE
----
Section 5.3. Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.4. Substitution of Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.5. Addition of Mortgaged Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.6. Mandatory Increase in Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.7. Non-Encumbrance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.8. Special Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE
BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.1. Corporate Authority, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.2. Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.3. Title to Properties; Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.5. No Material Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.6. Franchises, Patents, Copyrights, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.7. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.8. No Materially Adverse Contracts, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.9. Compliance with Other Instruments, Laws, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.10. Tax Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.11. No Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.12. Holding Company and Investment Company Acts . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.13. Absence of UCC Financing Statements, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.14. Setoff, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.15. Certain Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.16. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.17. Regulations U and X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.18. Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.19. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.20. Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.21. Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.22. Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.23. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.24. Other Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.25. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.26. Contribution Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.27. No Fraudulent Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.28. Transaction in Best Interests of Borrower; Consideration . . . . . . . . . . . . . . . . . . . . 55
Section 6.29. Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.30. Stock Purchase Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7. AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE
BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.1. Punctual Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.2. Maintenance of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.3. Records and Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
-ii-
4
PAGE
----
Section 7.4. Financial Statements, Certificates and Information . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 7.6. Existence; Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.7. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.9. Inspection of Properties and Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.11. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.12. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.13. Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.14. Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.15. Interest Collar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.16. Ownership of Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.17. More Restrictive Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8. CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE
BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8.1. Restrictions on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 8.2. Restrictions on Liens Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.3. Restrictions on Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 8.4. Merger, Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 8.5. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 8.6. Compliance with Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 8.7. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 8.8. Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.9. Development Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 9. FINANCIAL COVENANTS OF THE GUARANTOR AND THE
BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.1. Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.2. Liabilities to Assets Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.3. Debt Service Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.4. Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.5. Mortgaged Property Operating Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10. CLOSING CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.1. Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.2. Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.3. Incumbency Certificate; Authorized Signers . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.4. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.5. Performance; No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.6. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.7. Proceedings and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.8. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.9. Stockholder and Partner Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
-iii-
5
PAGE
----
Section 10.10. Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.11. No Condemnation/Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.12. Principal Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.13. Title Insurance Updates82
Section 10.14. Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.15. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.16. Maintenance of Interest Rate Collar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.17. Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.18. Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11. CONDITIONS TO ALL BORROWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.1. Prior Conditions Satisfied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.2. Representations True; No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.3. No Legal Impediment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.4. Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.5. Proceedings and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.6. Borrowing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.7. Endorsement to Title Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.8. Future Advances Tax Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 12.1. Events of Default and Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 12.2. Limitation of Cure Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 12.3. Certain Cure Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 12.4. Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 12.5. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 12.6. Distribution of Collateral Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 13. SETOFF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 14. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.1. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.2. Employees and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.3. No Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.4. No Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.5. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 14.6. Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 14.7. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 14.8. Agent as Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 14.9. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 14.10. Duties in the Case of Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 14.11. Removal of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 15. EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
-iv-
6
PAGE
----
Section 16. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 17. SURVIVAL OF COVENANTS, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 18. ASSIGNMENT AND PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 18.1. Conditions to Assignment by Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 18.2. Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 18.3. New Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 18.4. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 18.5. Pledge by Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 18.6. No Assignment by Borrower or Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 18.7. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 18.8. Amendments to Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 19. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 20. RELATIONSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 22. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 23. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 24. ENTIRE AGREEMENT, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 26. DEALINGS WITH THE BORROWER OR THE GUARANTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 28. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 29. TIME OF THE ESSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 30. NO UNWRITTEN AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 31. TRUST EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
-v-
7
SECOND AMENDED AND RESTATED MASTER
REVOLVING CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT is made
as of the 30th day of October, 1997 by and among RAMCO-GERSHENSON PROPERTIES,
L.P. (the "Borrower"), a Delaware limited partnership, RAMCO-GERSHENSON
PROPERTIES TRUST (the "Guarantor"), a Massachusetts business trust, BANKBOSTON,
N.A., a national banking association (formerly known as The First National Bank
of Boston) ("BankBoston"), and the other lending institutions which may become
parties hereto pursuant to Section 18 (the "Banks"), and BANKBOSTON, N.A., a
national banking association (formerly known as The First National Bank of
Boston), as Agent for the Banks (the "Agent").
RECITALS
WHEREAS, the Borrower, the Guarantor, BankBoston and the Agent are parties
to that certain Master Revolving Credit Agreement dated as of May 6, 1996, as
amended and restated pursuant to that certain Amended and Restated Master
Revolving Credit Agreement among the Borrower, the Guarantor, BankBoston, NBD
Bank and the Agent dated as of June 24, 1996, as amended by a First Amendment to
Amended and Restated Master Revolving Credit Agreement and other Loan Documents
dated as of May 22, 1997, a Second Amendment to Amended and Restated Master
Revolving Credit Agreement and other Loan Documents dated as of June 16, 1997,
and a Third Amendment to Amended and Restated Master Revolving Credit Agreement
and other Loan Documents dated as of July 18, 1997 (the "Prior Credit
Agreement");
WHEREAS, the Borrower is indebted to BankBoston, and certain other banks
(the "Prior Banks") in respect of loans made to the Borrower, pursuant to the
Prior Credit Agreement;
WHEREAS, the Borrower has requested that BankBoston increase the Total
Commitment, which will be used in part to repay the loans held by the Prior
Banks;
WHEREAS, the Borrower, the Guarantor, BankBoston, and the Agent desire to
amend and restate the Prior Credit Agreement, it being understood that the loans
heretofore made to the Borrower and the letters of credit issued for the benefit
of the Borrower under the Prior Credit Agreement shall continue to remain
outstanding and that this Agreement is an amendment and restatement of the Prior
Credit Agreement which shall remain in full force and effect, as amended and
restated in its entirety hereby;
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 hereby
agree as follows:
8
U1. DEFINITIONS AND RULES OF INTERPRETATION.
U1.1. 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:
Additional REMIC Properties. The Mortgaged Properties identified as the
Additional REMIC Properties on Schedule 4 attached hereto.
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. BankBoston, N.A., acting as agent for the Banks, its successors and
assigns.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, 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. Long Aldridge & Norman LLP or such other counsel
as may be approved by the Agent.
Agreement. This Second Amended and Restated Master Revolving Credit
Agreement, including the Schedules and Exhibits hereto.
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):
Ratio LIBOR Rate Loans
----- ----------------
less than 40% 1.375%
equal to or greater than 40%, but less than 55% 1.500%
equal to or greater than 55% 1.625%
-2-
9
The Applicable Margin shall not be reduced to any percentage based upon such
ratio until five (5) Business Days following the delivery by the Borrower to
the Agent of such evidence as the Agent may require (including without
limitation, the delivery of the Compliance Certificate to the Agent) that such
ratio corresponds to the percentage as would justify such lesser percentage of
Applicable Margin. In the event of any change in such ratio that would cause
the Applicable Margin to increase, the Borrower shall notify the Agent within
five (5) Business Days of such event, and regardless of whether the Agent has
received notice of such event, such event shall effect a change in the
Applicable Margin on the first to occur of (a) the first Business Day after the
delivery of such notice to the Agent of such event or (b) six (6) Business Days
following any such increase of such ratio.
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 Guarantor 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
and policies (both regulatory and internal) applicable to the Banks and
otherwise acceptable (i) to the Agent in the case of such appraisals delivered
by the Borrower on or before the date of this Agreement, and (ii) the Majority
Banks, in the case of any such appraisals delivered by the Borrower after the
date of this Agreement, provided that if the Agent's appraisal department has
determined that the value of any parcel of Real Estate is within five percent
(5%) of the value for such parcel of Real Estate as set forth in the MAI
appraisal delivered to the Agent by the Borrower, the Banks shall accept such
appraised value.
Appraised Value. The fair value of a parcel of Mortgaged Property
determined by the most recent Appraisal of such parcel or update obtained
pursuant to Section 5.2 or Section 10.7, subject, however, to such changes or
adjustments to the value determined thereby as may be required by (i) the
appraisal department of the Agent, in the case of such appraisals delivered by
the Borrower on or before the date of this Agreement, and (ii) the appraisal
departments of the Majority Banks, in the case of any such appraisals delivered
by the Borrower after the date of this Agreement, in their good faith business
judgment, provided that if the Agent's appraisal department has determined that
the value of any parcel of Mortgaged Property is within five percent (5%) of the
value for such Mortgaged Property as set forth in the MAI appraisal delivered to
the Agent by the Borrower, the Banks shall accept such appraised value.
Approved Subsidiary. A wholly-owned Subsidiary of the Borrower, the
formation and organizational structure of which and the ownership of real estate
assets by which has been approved in writing by the Majority Banks. The REMIC
Subsidiary is an Approved Subsidiary; provided, however, that if the REMIC
Transaction is not consummated within sixty (60) days of the date of this
Agreement, the REMIC Subsidiary shall cease to be an Approved Subsidiary.
Assignment of Leases and Rents . Each of the collateral assignments of
leases and rents from the Borrower or any of its Subsidiaries to the Agent, as
the same may be modified or
-3-
10
amended, pursuant to which there shall be assigned to the Agent for the benefit
of the Banks a security interest in the interest of the Borrower or any of its
Subsidiaries as lessor with respect to all Leases of all or any part of a
Mortgaged Property, each such collateral assignment to be in form and substance
satisfactory to the Agent.
Balance Sheet Date . June 30, 1997.
BankBoston. As defined in the preamble hereto.
Banks. BankBoston and any other Person who becomes an assignee of any
rights of a Bank pursuant to Section 18.
Base Rate. The annual rate of interest announced from time to time by
the Agent at the Agent's Head Office as its "base rate". 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 date on which such
change in the Base Rate becomes effective.
Base Rate Loans. Those Loans bearing interest calculated by reference
to the Base Rate.
Borrower. As defined in the preamble hereto.
Borrowing Base. At any time with respect to the Borrower and any
Approved Subsidiary, the Borrowing Base shall be the Borrowing Base for
Eligible Real Estate included in the Mortgaged Property owned by the Borrower
or any Approved Subsidiary. The Borrowing Base for Eligible Real Estate
included in the Mortgaged Property shall be the amount which is the lesser of
(a) sixty percent (60%) of the sum of the Appraised Values of each Mortgaged
Property as most recently determined as provided under Section 5.2 or Section
10.7; and (b) the sum of the Debt Service Coverage Amounts for each Mortgaged
Property, and the amount which is the lesser of (a) and (b) shall be the
Borrowing Base for Eligible Real Estate included in the Mortgaged Property; and
provided, however, that the portion of the Borrowing Base attributable to
Regular Real Estate shall at no time be less than sixty-five percent (65%) of
the entire Borrowing Base. 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 amended to increase any such limit.
Building. With respect to each parcel of Mortgaged Property, all of
the buildings, structures and improvements now or hereafter located thereon.
Building Service Equipment. All apparatus, fixtures and articles of
personal property owned by the Borrower or any Approved Subsidiary now or
hereafter attached to or used or procured for use in connection with the
operation or maintenance of any building, structure or other improvement located
on or included in the Mortgaged Property, including, but without limiting the
generality of the foregoing, all engines, furnaces, boilers, stokers, pumps,
heaters, tanks, dynamos, motors, generators, switchboards, electrical
equipment, heating, plumbing, lifting
-4-
11
and ventilating apparatus, air-cooling and air-conditioning apparatus, gas and
electric fixtures, elevators, escalators, fittings, and machinery and all other
equipment of every kind and description, used or procured for use in the
operation of a Building and located on the Mortgaged Property (except
apparatus, fixtures or articles of personal property belonging to lessees or
other occupants of such building or to persons other than the Borrower or any
Approved Subsidiary unless the same be abandoned by any such lessee or other
occupant or person and shall become the Borrower's or Approved Subsidiary's
property by reason of such abandonment), together with any and all replacements
thereof and additions thereto.
Business Day . Any day on which banking institutions located in the
same city and state as the Agent's Head Office 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 having a remaining term of
at least five years, exclusive of unexpired options, which provide that the
tenant is responsible for all building maintenance.
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.
Closing Date . The first date on which all of the conditions set
forth in Section 10 and Section 11 have been satisfied.
Code . The Internal Revenue Code of 1986, as amended.
Collateral. All of the property, rights and interests of the
Borrower, the Guarantor or any of their Subsidiaries which are or are intended
to be subject to the security interests, liens and mortgages created by the
Security Documents, including, without limitation, the Mortgaged Property, the
Guaranty and the REMIC Subsidiary Guaranty (Revolver).
Commitment. With respect to each Bank, the amount set forth on
Schedule 1 hereto as the amount of such Bank's Commitment to make or maintain
Loans to the Borrower and to
-5-
12
participate in Letters of Credit for the account of the Borrower, as the same
may be changed from time to time in accordance with the terms of this Agreement
including, without limitation, Section 8.8(c).
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
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.
Consolidated Total Adjusted Asset Value. With respect to any Person,
the sum of (i) 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 from such Real Estate for the period covered by the four
previous consecutive fiscal quarters (treated as a single accounting period)
divided by (B) a ten percent (10%) capitalization rate, plus (ii) the Stock
Purchase Commitment Allowance provided that (i) prior to such time as the
Borrower or any of its Approved Subsidiaries has owned and operated any parcel
of Real Estate for 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 Approved Subsidiaries has owned and operated
such parcel of Real Estate as annualized shall be utilized, and (ii) the
Operating Cash Flow for any parcel of Real Estate without a full quarter of
performance shall be annualized in such manner as the Agent shall approve, such
approval not to be unreasonably withheld. For the purpose of calculating
-6-
13
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, 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 (b) the
Borrower's respective ownership interest in its Subsidiaries.
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. Amounts undrawn under this
Agreement shall not be included in Indebtedness for purposes of this definition.
Contribution Agreement (Revolver) . That certain Contribution
Agreement (Revolver) dated of even date herewith among the Borrower, the
Guarantor and the REMIC Subsidiary.
Construction Inspector. A firm of professional engineers or
architects selected by the Borrower and reasonably acceptable to the Agent.
Conversion Request. A notice given by the Borrower to the Agent of
its election to convert or continue a Loan in accordance with Section 4. 1.
Debt Offering. The issuance and sale by the Borrower or the Guarantor
of any debt securities of the Borrower or the 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.
Debt Service Coverage Amount. At any time determined by the Agent, an
amount equal to the maximum principal loan amount which, when bearing interest
at a rate per annum equal to 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 1.625% payable based on a 25 year mortgage style
amortization schedule (expressed as a mortgage constant percentage), would be
payable by the monthly principal and interest payment amount resulting from
dividing (a) the Operating Cash Flow from an individual Mortgaged Property for
the preceding four fiscal quarters divided by 1.5 by (b) 12. Attached hereto
as Schedule 2 is an example of the calculation of Debt Service Coverage Amount
(such example is meant only as an illustration based upon the assumptions set
forth in such example, and shall not be interpreted so as to limit the Agent in
its good faith determination of the Debt Service Coverage Amount hereunder as
hereinafter
-7-
14
provided). The determination of the Debt Service Coverage Amount and the
components thereof by the Agent shall, so long as the same shall be determined
in good faith, be conclusive and binding absent manifest error. In the event
that the Borrower or any Approved Subsidiary shall have owned a Mortgaged
Property for less than four consecutive fiscal quarters, then for the purpose
of determining the Debt Service Coverage Amount, the Operating Cash Flow with
respect to such Mortgaged Property shall be annualized in such manner as the
Agent shall reasonably determine. For the purpose of calculating Operating
Cash Flow under this definition as to any Mortgaged Property, the Operating
Cash Flow Rental Adjustment shall be applied to any Mortgaged Property affected
by any of the events described in the definition of Operating Cash Flow Rental
Adjustment.
Default. See Section 12.1. In addition, any "Default" (as defined
in the Unsecured Term Loan Agreement) shall also be a Default hereunder.
Defaulting Bank. Any Bank which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Business Days after
notice from the Agent.
Distribution. With respect to any Person, the declaration or payment
of any cash, cash flow, dividend or distribution on or in respect of any shares
of any class of capital stock or other beneficial interest of such Person other
than dividends or distributions payable solely in equity securities of such
Person; the purchase, redemption, exchange or other retirement of any shares of
any class of capital stock or other beneficial interest of such Person, directly
or indirectly through a Subsidiary of such Person or otherwise; the return of
capital by such Person to its shareholders or partners as such; or any other
distribution on or in respect of any shares of any class of capital stock or
other beneficial interest of such Person.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office of such
Bank, if any, located within the United States that will be making or
maintaining Base Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made,
and the date on which any Loan which is made prior to the Maturity Date is
converted or combined in accordance with Section 4.1.
Eligible Real Estate. Real Estate:
(i) which is owned in fee by the Borrower or any Approved
Subsidiary or which is leased by the Borrower or any such Approved Subsidiary
pursuant to a ground lease which has been approved by the Majority Banks at
their sole discretion;
-8-
15
(ii) which is located within the contiguous 48 States of
the continental United States, excluding those States which prescribe a
"single-action" or similar rule limiting the rights of creditors secured by
real property, which exclusion shall apply, without limitation, to the States
of California and Washington except to the extent such exclusion is waived in
writing by the Majority Banks with respect to a specific parcel of Real Estate;
(iii) which is utilized principally for shopping centers or
retail facilities;
(iv) which is approved by the Majority Banks after the
date hereof in their sole judgment;
(v) as to which all of the representations set forth in
Section 6 of this Agreement concerning Mortgaged Property are true and correct;
and
(vi) as to which the Agent has received all Eligible Real
Estate Qualification Documents, so long as all of such documents remain in full
force and effect.
Eligible Real Estate Qualification Documents. With respect to any
parcel of Real Estate of the Borrower or any Approved Subsidiary which is
proposed to be included in the Collateral, each of the following:
(c) Security Documents. Such Security Documents relating
to such Real Estate as the Agent shall require, in form and substance
satisfactory to the Agent and duly executed and delivered by the
respective parties thereto.
(d) Enforceability Opinion. The favorable legal opinion
of counsel to the Borrower, the Guarantor and any Approved Subsidiary
reasonably acceptable to the Agent qualified to practice in the State
in which such Real Estate is located, addressed to the Banks and the
Agent and in form and substance satisfactory to the Agent as to the
enforceability of such Security Documents (including the opinion that
the Special Security Documents and the agreement herein for the future
recording thereof are enforceable between the parties thereto, with
appropriate qualifications acceptable to the Agent as to the
enforceability against third parties prior to recordation thereof) and
such other matters as the Agent shall reasonably request.
(e) Perfection of Liens. Except with respect to Special
Real Estate, evidence reasonably satisfactory to the Agent that the
Security Documents are effective to create in favor of the Agent a
legal, valid and enforceable first (except for Permitted Liens
approved by the Agent entitled to priority under applicable law) lien
and security interest in such Real Estate and that all filings,
recordings, deliveries of instruments and other actions necessary or
desirable to protect and preserve such lien or security interest have
been duly effected.
-9-
16
(f) Survey and Taxes. The Survey of such Real
Estate, together with the Surveyor Certification and evidence of
payment of all real estate taxes, assessments and municipal charges on
such Real Estate which on the date of determination are required to
have been paid under Section 7.8.
(g) Title Insurance; Title Exception Documents. The
Title Policy covering such Real Estate, including all endorsements
thereto, and together with proof of payment of all fees and premiums
for such policy, and true and accurate copies of all documents listed
as exceptions under such policy or any supplements thereto accepted by
Agent.
(h) UCC Certification. A certification from the Title
Insurance Company or counsel satisfactory to the Agent that a search
of the public records designated by the Agent disclosed no conditional
sales contracts, security agreements, chattel mortgages, leases of
personalty, financing statements or title retention agreements which
affect any property, rights or interests of the Borrower or any
Approved Subsidiary that are or are intended to be subject to the
security interest, assignments, and mortgage liens created by the
Security Documents relating to such Real Estate except to the extent
that the same are discharged and removed prior to or simultaneously
with the inclusion of the Real Estate in the Collateral.
(i) Management Agreement. A true copy of the Management
Agreement, if any, relating to such Real Estate.
(j) Standard Form Leases. True copies of sample leases
and Rent Rolls and summaries thereof satisfactory to the Agent
certified by the Borrower and any Approved Subsidiary as accurate and
complete as of a recent date.
(k) Subordination Agreements. A Subordination,
Attornment and Non-Disturbance Agreement from each tenant of such Real
Estate as reasonably required by the Agent, dated not more than sixty
(60) days prior to the inclusion of such Real Estate in the Collateral
and satisfactory in form and substance to the Agent.
(l) Estoppel Certificates. Estoppel certificates from
(i) each tenant of such parcel of Real Estate that leases space
therein containing 10,000 or more square feet and (ii) unless
otherwise approved by the Agent, seventy-five percent (75%) of all
other tenants of such parcel of Real Estate; provided, however, that
notwithstanding the foregoing requirements, the Borrower or any
Approved Subsidiary shall use its best efforts to obtain estoppel
certificates from all tenants of such parcel of Real Estate. All such
estoppel certificates are to be dated not more than sixty (60) days
prior to the inclusion of such Real Estate in the Collateral and are
to be satisfactory in form and substance to the Agent.
(m) Certificates of Insurance. Each of (i) a current
certificate of insurance as to the insurance maintained by the
Borrower on such Real Estate (including flood
-10-
17
insurance if necessary) or blanket coverage which includes such Real
Estate in accordance with the terms of this Agreement from the insurer
or an independent insurance broker dated as of the date of
determination, identifying insurers, types of insurance, insurance
limits, and policy terms; (ii) certified copies of all policies
evidencing such insurance (or certificates therefor signed by the
insurer or an agent authorized to bind the insurer); and (iii) such
further information and certificates from the Borrower, its insurers
and insurance brokers as the Agent may reasonably request, all of which
shall be in compliance with the requirements of this Agreement.
(n) Hazardous Substance Assessments. A Phase I
environmental site assessment report concerning Hazardous Substances
and asbestos on such Real Estate dated or updated not more than six
(6) months prior to the inclusion of such Real Estate in the
Collateral, from an Environmental Engineer, such report to contain no
qualifications except those that are acceptable to the Majority Banks
in their sole discretion and to otherwise be in form and substance
satisfactory to the Majority Banks.
(o) Certificate of Occupancy. A copy of the
certificate(s) of occupancy issued to the Borrower or any Approved
Subsidiary for such parcel of Real Estate permitting the use and
occupancy of the Building thereon (or a copy of the certificates of
occupancy issued for such parcel of Real Estate and evidence
satisfactory to the Agent that any previously issued certificate(s) of
occupancy is not required to be reissued to the Borrower or any
Approved Subsidiary), or a legal opinion or certificate from the
appropriate principality reasonably satisfactory to the Agent that no
certificates of occupancy are necessary to the use and occupancy
thereof.
(p) Appraisal. An Appraisal of such Real Estate, in form
and substance satisfactory to the Agent or the Majority Banks as
provided in Section 5.2 and dated not more than three (3) months prior
to the inclusion of such Real Estate in the Collateral.
(q) Zoning and Land Use Opinion of Counsel. A favorable
opinion concerning the Real Estate addressed to the Agent and dated
the date of the inclusion of such Real Estate in the Collateral, in
form and substance satisfactory to the Agent, from counsel approved by
the Agent admitted to practice in the State in which such parcel is
located, as to zoning and land use compliance, or such other evidence
regarding zoning and land use compliance as the Agent may approve in
its reasonable discretion, provided that a 3.1 zoning endorsement
with parking from the Title Insurance Company shall be satisfactory
for this purpose.
(r) Construction Inspector Report. A report or written
confirmation from the Construction Inspector satisfactory in form and
content to the Majority Banks, dated or updated not more than three
(3) months prior to the inclusion of such Real Estate in the
Collateral, addressing such matters as the Majority Banks may
reasonably require, including without limitation that the Construction
Inspector has reviewed the plans and specifications or other available
materials for all Buildings on the Real Estate, that the
-11-
18
condition of the Buildings is good, that all Buildings were constructed
and completed in a good and workmanlike manner, that the Buildings
satisfy all applicable building, zoning, handicapped access and
Environmental Laws applicable thereto, whether or not the Real Estate
and the Buildings thereon are a conforming use under applicable zoning
laws, and that utilities and public water and sewer service are
available at the lot lines of the Real Estate through dedicated
rights-of-way or through insured perpetual private easements approved
by the Majority Banks and connected directly to the Building with all
necessary permits.
(s) Permit and Legal Compliance Assurances. Evidence
satisfactory to the Agent that all activities being conducted on such
Real Estate which require federal, state or local licenses or permits
have been duly licensed and that such licenses or permits are in full
force and effect, and that the Real Estate, the Buildings and the use
and occupancy thereof are in compliance with all applicable federal,
state or local laws, ordinances or regulations.
(t) Operating Statements. Operating statements for such
Real Estate in the form of such statements delivered to the Banks
under Section 6.4(c) covering each of the four fiscal quarters ending
immediately prior to the addition of such Mortgaged Property to the
Collateral.
(u) Doing Business Opinion. An opinion, dated the date
of the inclusion of such Real Estate in the Collateral, of legal
counsel to the Borrower reasonably acceptable to the Agent qualified
to practice in the State in which such Real Estate is located to the
effect that neither the Agent nor any Bank shall be required to
qualify to do business in such State or any political subdivision
thereof or to become liable to pay any taxes in such State or any
political subdivision thereof solely on account of the receipt of the
lien on such Real Estate securing the Obligations, such opinion to be
satisfactory to the Agent.
(v) Approved Subsidiary Documents. With respect to Real
Estate owned by an Approved Subsidiary, such guaranties, contribution
agreements or other documents, instruments, reports, assurances, or
opinions as the Majority Banks may require in their sole and absolute
discretion.
(w) Additional Documents. Such other documents,
certificates, reports or assurances as the Majority Banks may
reasonably require in their discretion.
Employee Benefit Plan . Any employee benefit plan within the meaning
of Section 3(3) of ERISA maintained or contributed to by the Borrower, the
Guarantor or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Engineer. McLaren Hart or another firm of independent
professional engineers or other scientists generally recognized as expert in
the detection, analysis and remediation of Hazardous Substances and related
environmental matters and which has been
-12-
19
previously approved by the Agent, or if not previously approved by the Agent,
with respect to which the Borrower has provided to the Agent a copy of such
firm's errors and omissions insurance policy and a reliance letter both in form
and substance acceptable to the Agent.
Environmental Laws. See Section 6.18(a).
Equity Offering. The issuance and sale by the Borrower or the
Guarantor of any equity securities of the Borrower or the Guarantor.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer
with the Borrower or the Guarantor under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has
not been waived.
Event of Default . See Section 12.1.
Federal Funds Effective Rate. For any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers,
as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, 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
Federal funds brokers of recognized standing selected by the Agent.
Funds from Operations . With respect to any Person for any fiscal
period, the Net Income of such Person computed in accordance with generally
accepted accounting principles, excluding financing costs and gains (or losses)
from debt restructuring and sales of property, plus depreciation (other than
non-real estate depreciation) and amortization (other than amortization of
deferred financing costs) and other noncash items.
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.
Government Acts. See Section 2.7(j).
-13-
20
Guaranteed Pension Plan. Any employee pension benefit plan within
the meaning of Section 3(2) of ERISA maintained or contributed to by the
Borrower, the 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.
Guarantor. Ramco-Gershenson Properties Trust.
Guaranty. The Second Amended and Restated Unconditional Guaranty of
Payment and Performance dated of even date herewith made by the Guarantor in
favor of the Agent and the Banks, as the same may be modified or amended, such
Guaranty to be in form and substance satisfactory to the Agent.
Hazardous Substances. See Section 6.18(b).
HLT Notice Date. See Section 4.13.
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, but without any double counting, including in any
event and whether or not so classified: (a) all debt and similar monetary
obligations, whether direct or indirect (including, without limitation, any
obligations evidenced by bonds, debentures, notes or similar debt instruments);
(b) all liabilities secured by any mortgage, pledge, security interest, lien,
charge or other encumbrance existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been assumed;
(c) all guarantees, endorsements and other contingent obligations whether direct
or indirect in respect of indebtedness of others, including any obligation to
supply funds to or in any manner to invest directly or indirectly in a Person,
to purchase indebtedness, or to assure the owner of indebtedness against loss
through an agreement to purchase goods, supplies or services for the purpose of
enabling the debtor to make payment of the indebtedness held by such owner or
otherwise; (d) any obligation as a lessee or obligor under a Capitalized Lease;
(e) all subordinated debt; (f) all obligations to purchase under agreements to
acquire, 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.
Indemnity Agreement. The Second Amended and Restated Indemnity
Agreement Regarding Hazardous Materials made by the Borrower and the Guarantor
in favor of the Agent and the Banks, and any additional Indemnity Agreements
Regarding Hazardous Materials made by the Borrower and the Guarantor and/or any
Subsidiaries thereof in favor of the Agent and the Banks, as the same may be
modified or amended, pursuant to which the Borrower, the Guarantor
-14-
21
and any such Subsidiaries agree to indemnify the Agent and the Banks with
respect to Hazardous Substances and Environmental Laws, such Indemnity
Agreements to be in form and substance satisfactory to the Majority Banks.
Initial REMIC Properties . The Mortgaged Properties identified as the
Initial REMIC Properties on Schedule 4 attached hereto.
Interest Collar. See Section 10.16.
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 Reference Bank 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 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,
-15-
22
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.
Leases. Leases, licenses and agreements whether written or oral,
relating to the use or occupation of space in or on the Building or on the Real
Estate by persons other than the Borrower.
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
2.7. Each letter of credit issued for the account of the Borrower under the
Prior Credit Agreement (which letters of credit are identified on Schedule 3
attached hereto) shall be deemed to be a Letter of Credit under this Agreement
and shall be subject to all terms and conditions of this Agreement including,
without limitation, the obligation of the Borrower to reimburse the Agent with
respect to any amounts drawn thereunder.
Letter of Credit Application. See Section 2.7(b).
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
LIBOR Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate
Loan, the rate per annum as determined by the Reference Bank's LIBOR Lending
Office to be the rate (rounded upwards to the nearest 1/16 of one percent) at
which Dollar deposits are offered to prime banks, by such banks in the London
Interbank Market as are selected in good faith by the Reference Bank, at
approximately 11:00 a.m. London time two (2) LIBOR Business Days prior to the
beginning of such Interest Period for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the LIBOR Rate Loan to which such Interest Period
applies.
-16-
23
LIBOR Rate Loans. Loans bearing interest calculated by reference to
a LIBOR Rate.
Loan Documents. This Agreement, the Notes, the Letters of Credit, the
Letter of Credit Applications, the Security Documents and all other documents,
instruments or agreements now or hereafter executed or delivered by or on
behalf of the Borrower, the Guarantor or any of their Subsidiaries in
connection with the Loans. The Loan Documents include the Special Security
Documents.
Loan Request. See Section 2.5.
Loans. See Section 2.1.
Majority Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is more than fifty percent (50%); provided,
that, in determining said percentage at any given time, all then existing
Defaulting Banks will be disregarded and excluded and the Commitment
Percentages of the Banks shall be redetermined for voting purposes only, to
exclude the Commitment Percentages of such Defaulting Banks; and provided,
further that the Agent must always be among the Majority Banks except that
after an Event of Default described in Section 12.1 (a) or (b) decisions of the
Majority Banks to accelerate and/or exercise remedies pursuant to Section 12.5
shall be made without regard to whether the Agent is among the Majority Banks.
Management Agreements. Agreements, whether written or oral, providing
for the management of the Mortgaged Properties or any of them.
Maryland REIT. See Section 8.4(b).
Master Agreement. The Amended and Restated Master Agreement dated as
of December 27, 1995, by and among RPS Realty Trust, Ramco- Gershenson, Inc.
and certain other parties as set forth therein, as amended by First Amendment
to Amended and Restated Master Agreement dated as of March 19, 1996.
Maturity Date. May 1, 1999, as the same may be extended by the
Borrower as provided in Section 4.16, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
Mortgaged Property or Mortgaged Properties. The Eligible Real Estate
owned by the Borrower or any Approved Subsidiary which is conveyed to and
accepted by the Agent as security for the Obligations of the Borrower pursuant
to the Security Deeds.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower, the
Guarantor or any ERISA Affiliate.
-17-
24
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 the Guarantor as a result of a Debt Offering or an Equity Offering
less the customary and reasonable costs, fees, expenses, underwriting
commissions and discounts incurred by the Borrower or the Guarantor in
connection therewith.
Non-recourse Indebtedness. Indebtedness of a Person which is secured
by one or more parcels of Real Estate (other than Mortgaged Property) and
related personal property or interests therein and Short-term Investments 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 Leases thereon and the rents and profits thereof
and the Short-term Investments securing such Indebtedness.
Notes. See Section 2.3.
Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the
Borrower 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.
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
Capital Expenditure Reserve Amount, all as determined in accordance with
generally accepted accounting principles.
Operating Cash Flow Rental Adjustment. For the purposes of
calculating Operating Cash Flow, with respect to any parcel of Real Estate as to
which the Borrower or any Approved Subsidiary 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 (1/2) of the period for which such space was vacant
during the period for which Operating Cash Flow is being calculated.
-18-
25
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.
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, trust,
unincorporated association, business, or other legal entity, and any government
or any governmental agency or political subdivision thereof.
Potential Collateral. Any property of the Borrower which is not at
the time included in the Collateral and which consists of (i) Eligible Real
Estate and (ii) Real Estate which is capable of becoming Eligible Real Estate
through the approval of the Majority Banks and the completion and delivery of
Eligible Real Estate Qualification Documents.
Principal Documents. The Master Agreement, the RPS Contribution
Agreements and the Ramco Agreements.
Prior Credit Agreement. As defined in the recitals hereof.
Pro Forma Debt Service Charges. For any period of four consecutive
fiscal quarters the sum of principal and interest which would have been payable
during such period on a loan in the original principal amount equal to the
outstanding principal balance of the Loans as of the date of such determination
bearing interest at a rate per annum equal to the greater of (i) the sum of the
then current annual yield on seven (7) year obligations issued by the United
States Treasury most recently prior to the date of such determination plus one
and five-eights percent (1.625%) and (ii) the then applicable interest rate on
the Loans (if Loans of different Types are Outstanding as of the date of
determination of the Pro Forma Debt Service Charges, then for purposes of this
definition, the applicable interest rate on the Loans shall be the rate that is
a blend of those interest rates then applicable to the Loans based upon the
weighted average of the principal amounts of the Types of Loans then
Outstanding), both being payable based on a 25 year mortgage style amortization
schedule (expressed as a mortgage constant percentage). Such determination of
the Pro Forma Debt Service Charges by the Agent shall be conclusive and binding
absent manifest error.
Purchase Agreement. Those certain Sales Contracts, between the
Borrower and various entities relating to the purchase by the Borrower of
certain retail properties managed by D.R.A. Advisors, Inc.
Ramco Agreements. As defined in the Master Agreement.
-19-
26
Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to any Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by
any Bank with respect to any Loan referred to in such Note.
Reference Bank. BankBoston.
Register. See Section 18.2.
Regular Real Estate. All of those certain parcels of Real Estate
which are not Special Real Estate.
REIT Status. With respect to the Guarantor, its status as a real
estate investment trust as defined in Section 856(a) of the Code.
Release. See Section 6.18(c)(iii).
REMIC Properties. The Initial REMIC Properties and the Additional
REMIC Properties.
REMIC Subsidiary. Ramco Properties Associates Limited Partnership, a
Michigan limited partnership.
REMIC Subsidiary Guaranty (Revolver) . The Unconditional Guaranty of
Payment and Performance (Revolver) dated of even date herewith and made by the
REMIC Subsidiary in favor of the Agent and the Banks, as the same may be
modified or amended, such REMIC Subsidiary Guaranty (Revolver) to be in form and
substance satisfactory to the Agent.
REMIC Transaction. See Section 8.8(b).
Rent Roll. A report prepared by the Borrower in the form customarily
used by the Borrower and approved by the Agent, such approval not to be
unreasonably withheld.
RPS Contribution Agreements. As defined in the Master Agreement.
SEC. The federal Securities and Exchange Commission.
Security Deeds. The Mortgages, Deeds to Secure Debt and Deeds of
Trust from the Borrower or any Approved Subsidiary to the Agent for the benefit
of the Banks (or to trustees named therein acting on behalf of the Agent for
the benefit of the Banks), as the same may be modified or amended, pursuant to
which the Borrower or any Approved Subsidiary has conveyed a Mortgaged Property
(including both Regular Real Estate and Special Real Estate) as security for
the Obligations of the Borrower.
-20-
27
Security Documents. The Security Deeds, the Assignments of Rents and
Leases, the Indemnity Agreement, the Guaranty, the REMIC Subsidiary Guaranty
(Revolver) and any further collateral assignments to the Agent for the benefit
of the Banks, including, without limitation, UCC-1 financing statements
executed and delivered in connection therewith.
Service Agreement. Service agreements with third parties, whether
written or oral, relating to the operation, maintenance, security, finance or
insurance of Mortgaged Property.
Short-term Investments. Investments described in subsections (a)
through (g), inclusive, of Section 8.3.
Special Real Estate. Those certain parcels of Real Estate which are
described on Schedule 1.1. In the event that after the date hereof any other
Real Estate shall become Special Real Estate, the Agent may unilaterally amend
Schedule 1.1 to reflect such addition.
Special Security Documents. The Security Documents relating to
Special Real Estate, which have been or may in the future be executed and
delivered to Agent for the benefit of the Banks, and which are not to be
recorded until the occurrence of the events specified in Section 5.8 (it being
acknowledged that the Guaranty and the Indemnity Agreement are not Special
Security Documents).
State. A state of the United States of America.
Stock Purchase Commitment. That certain Preferred Units and Stock
Purchase Agreement dated as of September 30, 1997, among Borrower, Guarantor,
Stichting Bedrijspensioenfonds Voor de Metaalnijrerheid, Stichting Pensionfonds
ABP, MS Real Estate Special Situations Inc., The Morgan Stanley Real Estate
Special Situations Fund I, L.P., The Morgan Stanley Real Estate Special
Situations Fund II, L.P., The Morgan Stanley Real Estate Special Situations
Fund III, L.P. and Special Situations RG REIT, Inc.
Stock Purchase Commitment Allowance. At any time, an amount equal to
the amount then unpaid and available to be funded or paid pursuant to the
Stock Purchase Commitment including any amounts which may be paid under the
"Buyer/Kimco Stock Purchase Agreement" (as defined in the Stock Purchase
Commitment; provided that (a) no Stock Purchase Buyer has notified the Borrower
or the Guarantor of a refusal to pay all or any portion of the purchase price
pursuant to the Stock Purchase Commitment, or notice of its intention to so
refuse to pay all or any portion of the purchase price, (b) no Stock Purchase
Buyer has claimed that a default or event of default by Borrower or Guarantor
has occurred under the Stock Purchase Commitment such that such Stock Purchase
Buyer is not obligated to pay amounts pursuant to the Stock Purchase
Commitment, (c) none of the events described in Section 12.1(g), (h) or (i)
have occurred with respect to any Stock Purchase Buyer, (d) no Stock Purchase
Buyer (i) has denied that it has any liability or obligation under the Stock
Purchase Commitment, (ii) has notified the Borrower or the Guarantor of such
Stock Purchase Buyer's intention to attempt to cancel or terminate the Stock
Purchase Commitment, or (iii) has failed to observe or comply with any term,
covenant,
-21-
28
condition or agreement under the Stock Purchase Commitment, (e) no event has
occurred which would permit any Stock Purchase Buyer to refuse to pay amounts
pursuant to the Stock Purchase Commitment, or (f) the Stock Purchase Commitment
has not expired or been terminated.
Stock Purchase Buyer. Any one or more of Stichting
Bedrijspensioenfonds Voor de Metaalnijrerheid, Stichting Pensionfonds ABP, MS
Real Estate Special Situations Inc., The Morgan Stanley Real Estate Special
Situations Fund I, L.P., The Morgan Stanley Real Estate Special Situations Fund
II, L.P., The Morgan Stanley Real Estate Special Situations Fund III, L.P.,
Special Situations RG REIT, Inc. or Kimco Realty Corporation.
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. The REMIC Subsidiary is a wholly-owned Subsidiary of the Borrower.
Survey. An instrument survey of Mortgaged Property prepared by a
registered land surveyor duly licensed in the State in which such Mortgaged
Property is located which shall show the location of all buildings, structures,
easements and utility lines on such property, shall be sufficient to remove the
standard survey exception from the Title Policy, shall show that all buildings
and structures are within the lot lines of the Mortgaged Property and shall not
show any encroachments by others (or to the extent any encroachments are shown,
such encroachments shall be acceptable to the Agent in its sole discretion),
shall show rights of way, adjoining sites, establish building lines and street
lines, the distance to, and names of the nearest intersecting streets and such
other details as the Agent may reasonably require; shall show the zoning
district or districts in which the Mortgaged Property is located and shall show
whether or not the Mortgaged Property is located in a flood hazard district as
established by the Federal Emergency Management Agency or any successor agency
or is located in any flood plain, flood hazard or wetland protection district
established under federal, state or local law and shall otherwise be in form
and substance reasonably satisfactory to the Agent.
Surveyor Certification. With respect to each parcel of Mortgaged
Property, a certificate executed by the surveyor who prepared the Survey with
respect thereto, dated as of a recent date and containing such information
relating to such parcel as the Agent or the Title Insurance Company may
reasonably require, such certificate to be reasonably satisfactory to the Agent
in form and substance.
Title Insurance Company. Commonwealth Land Title Insurance Company
or another title insurance company or companies approved by the Agent.
Title Policy. With respect to each parcel of Mortgaged Property, an
ALTA standard form title insurance policy (or, if such form is not available, an
equivalent form of or legally promulgated form of mortgagee title insurance
policy reasonably acceptable to the Agent) issued by a Title Insurance Company
(with such reinsurance or coinsurance as the Agent may require, any such
reinsurance to be with direct access endorsements to the extent available under
-22-
29
applicable law) in such amount as the Agent may require insuring the priority
of the Security Deeds and that the Borrower or an Approved Subsidiary holds
marketable fee simple title to such parcel, subject only to the encumbrances
permitted by the Security Deed and which shall not contain standard exceptions
for mechanics liens, persons in occupancy (other than tenants as tenants only
under Leases) or matters which would be shown by a survey, shall not insure
over any matter except to the extent that any such affirmative insurance is
acceptable to the Agent in their sole discretion and shall contain (a) a
revolving credit endorsement and (b) such other endorsements and affirmative
insurance as the Agent reasonably may require and is available in the State in
which the Real Estate is located, including but not limited to (i) a
comprehensive endorsement, (ii) a variable rate of interest endorsement, (iii)
a usury endorsement, (iv) a doing business endorsement, (v) in States where
available, an ALTA form 3.1 zoning endorsement, (vi) a "tie-in" endorsement and
(vii) a "first loss" endorsement; provided, however, that with respect to
Special Real Estate, the "Title Policy" shall be an owner's policy of title
insurance, in a form satisfactory to the Agent, containing only exceptions
satisfactory to the Agent, supplemented by a current "date down" or "nothing
further" certificate (or if such endorsement or certificate is not available a
current mortgagee's title commitment in favor of the Agent) provided by an
issuer satisfactory to the Agent, evidencing the state of title to the Special
Real Estate, as of a date not earlier than thirty (30) days prior to delivery
thereof to the Agent or such later date as may be required by any other
provision hereof (it being acknowledged that a Title Policy relating to Special
Real Estate shall not be considered in full force and effect if such a current
satisfactory supplement has not been delivered within a period of one year).
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 One Hundred Sixty Million and No/100 Dollars ($160,000,000.00).
Upon consummation of the REMIC Transaction in accordance with the terms of this
Agreement, the Total Commitment shall be One Hundred Ten Million and No/100
Dollars ($110,000,000.00).
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate
Loan.
Under Development. Any Real Estate shall be considered under
development until such time as (i) a Certificate of Occupancy has been obtained
or the Borrower has delivered to the Agent other evidence satisfactory to the
Agent indicating that 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.
Unsecured Term Loan Agreement. That certain Unsecured Term Loan
Agreement among the Borrower, the Guarantor, BankBoston, the other lending
institutions that are or become parties thereto and BankBoston, N.A. in its
capacity as agent for itself and the other lending institutions that are or
become parties thereto, dated of even date as this Agreement, as the same may be
amended, modified or restated.
Unsecured Term Loans. All loans and other indebtedness or liabilities
arising under the Unsecured Term Loan Agreement and all other loan documents
related thereto.
-23-
30
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.
U1.2.Rules of Interpretation
(a) A reference to any document or agreement shall
include such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have
the meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are
not limiting.
(g) The words "approval" and "approved", as the context
so determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined in the
Uniform Commercial Code as in effect in the State of Michigan, have the
meanings assigned to them therein.
(i) Reference to a particular "Section", refers to
that section of this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words
of like import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement.
-24-
31
U2.THE REVOLVING CREDIT FACILITY U1.3.Commitment to LendSubject to the terms
and conditions set forth in this Agreement, each of the Banks severally agrees
to lend to the Borrower (the "Loans"), and the Borrower may borrow (and repay
and reborrow) from time to time between the Closing Date and the 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 Letters of Credit
Outstanding) at any one time equal to the lesser of (a) such Bank's Commitment
minus an amount equal to such Bank's participations in the aggregate Letters of
Credit Outstanding and (b) an amount equal to the Borrowing Base multiplied by
such Bank's Commitment Percentage minus an amount equal to such Bank's
participations in the aggregate Letters of Credit Outstanding; provided, that,
in all events no Default or Event of Default shall have occurred and be
continuing; and provided, further that the Outstanding Loans (after giving
effect to all amounts requested) and the Letters of Credit Outstanding shall
not at anytime exceed the Total Commitment. The Loans shall be made pro rata
in accordance with each Bank's Commitment Percentage. Each request for a Loan
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in Section 10 and Section 11, in the case of
the initial Loan, and Section 11, in the case of all other Loans, have been
satisfied on the date of such request.
U2.2.Unused Facility FeeThe Borrower agrees to pay to the Agent for the
account of the Banks in accordance with their respective Commitment Percentages
a facility fee calculated at the rate per annum as set forth below on the
average daily amount by which the Total Commitment exceeds the Outstanding
Loans during each calendar quarter or portion thereof commencing on the date
hereof and ending on the Maturity Date. The facility fee shall be calculated
based on the ratio (expressed as a percentage) of (a) the average daily amount
of the Outstanding Loans during such quarter to (b) the Total Commitment as
follows:
Ratio of Outstanding Principal
Balance to Total Commitment Rate
------------------------------ ----
50% or less 0.25%
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 Commitments shall be reduced or
terminated as provided in Section 2.8, with a final payment on the Maturity
Date.
U2.3.NotesThe Loans shall be evidenced by separate promissory notes of the
Borrower in substantially the form of Exhibit A hereto (collectively, the
"Notes"), dated of even date as this Agreement and completed with appropriate
insertions. One Note shall be payable to the order of each Bank in the
principal amount equal to such Bank's Commitment or, if less, the outstanding
amount of all Loans made by such Bank, plus interest accrued thereon as set
forth below. The Borrower irrevocably authorizes each Bank to make or cause to
be made, at or about
-25-
32
the time of the Drawdown Date of any Loan or at the time of receipt of any
payment of principal thereof, an appropriate notation on such Bank's Record
reflecting the making of such Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Loans set forth on such Bank's Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in so recording, any such
amount on such Bank's Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any Note to make payments of
principal of or interest on any Note when due. By delivery of the Notes, there
shall not be deemed to have occurred, and there has not otherwise occurred, any
payment, satisfaction or novation of the indebtedness evidenced by the "Notes"
(as defined in the Prior Credit Agreement), which indebtedness is instead
allocated among the Banks as of the date hereof and evidenced by the Notes in
accordance with their respective Commitment Percentages.
U2.4.Interest on Loans
(a) Each Base Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the date on
which such Base Rate Loan is converted to a LIBOR Rate Loan at the per annum
rate equal to the Base Rate.
(b) Each LIBOR Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to the sum
of the Applicable Margin plus the LIBOR Rate determined for such Interest
Period.
(c) The Borrower promises to pay interest on each Loan to
it in arrears on each Interest Payment Date with respect thereto, or on any
earlier date on which the Commitments shall terminate as provided in Section
2.8. 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.
(d) Base Rate Loans and LIBOR Rate Loans may be converted
to Loans of the other Type as provided in Section 4.1.
U2.5.Requests for LoansThe Borrower (i) shall notify the Agent of a potential
request for a Loan as soon as possible prior to the Borrower's proposed
Drawdown Date, and (ii) shall give to the Agent written notice in the form of
Exhibit B hereto (or telephonic notice confirmed in writing in the form of
Exhibit B hereto) of each Loan requested hereunder (a "Loan Request") no less
than three (3) Business Days prior to the proposed Drawdown Date. Each such
notice shall specify with respect to the requested 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
-26-
33
accordance with the terms of Section 7.11), (ii) in the case of any advance
relating to any Capital Improvement Project to a Mortgaged Property and if
requested by the Agent, delivery to the Agent within thirty (30) days
thereafter of affidavits, lien waivers or other evidence reasonably
satisfactory to the Agent showing that all materialmen, laborers,
subcontractors and any other parties who might or could claim statutory or
common law liens and are furnishing or have furnished material or labor to the
Mortgaged Property have been paid all amounts due for such labor and materials,
and (iii) a certification by the chief financial or chief accounting officer of
the general partner of the Borrower that the Borrower is and will be in
compliance with all covenants under the Loan Documents after giving effect to
the making of such Loan. Notwithstanding anything in this Section 2.5 to the
contrary, the Borrower shall be permitted to use the proceeds of a Loan to
reimburse the Borrower for amounts paid from its own funds to acquire Real
Estate, to develop undeveloped Real Estate (subject to the restrictions set
forth in Section 8.9) or for Capital Improvement Projects with respect thereto.
Promptly upon receipt of any such notice, the Agent shall notify each of the
Banks thereof. Except as provided in this Section 2.5, each such Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept the Loan requested from the Banks on the proposed Drawdown
Date, provided that, in addition to the Borrower's other remedies against any
Bank which fails to advance its proportionate share of a requested Loan, such
Loan Request may be revoked by the Borrower by notice received by the Agent no
later than the Drawdown Date if any Bank fails to advance its proportionate
share of the requested Loan in accordance with the terms of this Agreement,
provided further, that the Borrower shall be liable in accordance with the
terms of this Agreement to any Bank which is prepared to advance its
proportionate share of the requested Loan for any costs, expenses or damages
actually incurred by such Bank as a result of the Borrower's election to revoke
such Loan Request. Nothing herein shall prevent the Borrower from seeking
recourse against any Bank that fails to advance its proportionate share of a
requested Loan as required by this Agreement. The Borrower may without cost or
penalty revoke a Loan Request by delivering notice thereof to each of the Banks
no later than three (3) Business Days prior to the Drawdown Date. Each Loan
Request shall be (a) for a Base Rate Loan in the minimum aggregate amount of
$500,000 or an integral multiple of $100,000 in excess thereof, or (b) for a
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 ten (10) LIBOR Rate Loans outstanding at any one time. In the
event that the proceeds from such Loan have been or are to be used for a
purpose other than a Capital Improvement Project, then the Borrower shall
provide to the Agent as soon as practicable such evidence as the Agent shall
reasonably require to evidence that such funds have been used for such purpose
(which evidence may include, without limitation, a closing statement).
U2.6.Funds for Loans
(a) Not later than 11:00 a.m. (Boston time) on the
proposed Drawdown Date of any Loans, each of the Banks will make available to
the Agent, at the Agent's Head Office, in immediately available funds, the
amount of such Bank's Commitment Percentage of the amount of the requested
Loans which may be disbursed pursuant to Section 2.1. Upon receipt from each
Bank of such amount, and upon receipt of the documents required by Section 10
and Section 11 and the
-27-
34
satisfaction of the other conditions set forth therein, to the extent
applicable, the Agent will make available to the Borrower the aggregate amount
of such Loans made available to the Agent by the Banks by crediting such amount
to the account of the Borrower maintained at the Agent's Head Office. The
failure or refusal of any Bank to make available to the Agent at the aforesaid
time and place on any Drawdown Date the amount of its Commitment Percentage of
the requested Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Agent the amount of such other
Bank's Commitment Percentage of any requested Loans, including any additional
Loans that may be requested subject to the terms and conditions hereof to
provide funds to replace those not advanced by the Bank so failing or refusing,
provided that the Borrower may by notice received by the Agent no later than
the Drawdown Date refuse to accept any Loan which is not fully funded in
accordance with the Borrower's Loan Request subject to the terms of Section
2.5. In the event of any such failure or refusal, the Banks not so failing or
refusing shall be entitled to a priority secured position as against the Bank
or Banks so failing or refusing for such Loans as provided in Section 12.6.
(b) Unless the Agent shall have been notified by any Bank
prior to the applicable Drawdown Date that such Bank will not make available to
the Agent such Bank's pro rata share of a proposed Loan, the Agent may in its
discretion assume that such Bank has made such share of the proposed Loan
available to Agent in accordance with the provisions of this Agreement and the
Agent may, if it chooses, in reliance upon such assumption make such Loan
available to Borrower, and such Bank shall be liable to the Agent for the
amount of such advance.
U2.7.Letters of Credit
(a) Subject to the terms and conditions hereof and
provided that all of the conditions contained in Section Section 10 and 11 have
been satisfied, the Agent agrees to issue Letters of Credit for the account of
the Borrower, from the date of this Agreement to, but not including, a date 90
days prior to the 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 lesser of (A) the Total Commitment or (B) the amount of
the Borrowing Base, in each case, minus the aggregate amount of Outstanding
Loans (including any amounts drawn under any Letters of Credit and not yet
reimbursed by the Borrower), or (ii) $10,000,000.00. The issuance of a Letter
of Credit pursuant to this Section 2.7(a) shall be deemed to reduce the
aggregate of the unborrowed Commitments of the 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 Bank severally agrees to participate in each such Letter of Credit issued
by the Agent in an amount equal to its Commitment Percentage of the total
amount of the Letter of Credit requested by the Borrower; provided, however,
that no Bank shall be required to participate in any Letter of Credit to the
extent that its participation therein plus (x) such Bank's participation in the
aggregate of all other Letters of Credit Outstanding, and (y) such Bank's
Commitment Percentage of the amount of any Loans Outstanding (including any
amounts drawn under any Letters of Credit and not yet
-28-
35
reimbursed by the Borrower), would exceed an amount equal to such Bank's
Commitment as then in effect. Each Bank agrees with the Agent that it will
participate in each Letter of Credit issued by the Agent to the extent required
by the preceding sentence. No Bank's obligation to participate in a Letter of
Credit shall be affected by any other Bank's failure to participate in the same
or any other Letter of Credit.
(b) The Borrower shall deliver to the Agent at least five
(5) Business Days (or such shorter period as may be agreed to by the Agent 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 D 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 that the Borrower is
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 2.7(a) and, unless the Agent is aware that
the conditions precedent to such issuance of a Letter of Credit set forth in
Section 11 have not been satisfied, the Agent will make the requested Letter of
Credit available at the Agent's principal office not later than 4:00 p.m.
(Boston time) on the issuance date, and, immediately upon the issuance of each
Letter of Credit, each Bank shall be deemed to participate in such Letter of
Credit to the extent set forth in Section 2.7(a). Not more than two (2)
Business Days after the issuance of any Letter of Credit, the Agent shall
notify each Bank of the amount and other contents of such Letter of Credit and
of the date of issuance. The Agent shall notify each Bank at least monthly, or
at the request of such 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 Agent 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 Agent receives written notice to the
contrary. The Agent 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, however, that
no Letter of Credit shall be stated to expire after, or be extended for a
period that ends after, the Maturity Date.
(f) In the event that any amount is drawn under a Letter
of Credit by the beneficiary thereof, the Borrower shall reimburse the Agent by
having such amount drawn treated as an outstanding Base Rate Loan under this
Agreement and the Agent shall promptly notify each Bank by telex, telecopy,
telegram, telephone (confirmed in writing) or other similar means of
transmission, and each Bank shall promptly and unconditionally pay to the
Agent, for the Agent's own account, an amount equal to such Bank's Commitment
Percentage of such Letter of Credit (to the extent of the amount drawn). If
and to the extent any Bank shall not make such amount
-29-
36
available on the Business Day on which such draw occurs, such 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 Bank shall be deemed to have assigned any and all payments made
of principal and interest on its Loans, amounts due with respect to its
participations in Letters of Credit and any other amounts due to it hereunder
to the Agent to fund the amount of any drawn Letter of Credit which such Bank
was required to fund pursuant to this Section 2.7(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 Banks not so failing or refusing shall be entitled to a
priority secured position for such amounts as provided in Section 12.6. The
failure of any Bank to make funds available to the Agent in such amount shall
not relieve any other Bank of its obligation hereunder to make funds available
to the Agent pursuant to this Section 2.7(f).
(g) The obligation of the Borrower to reimburse the
Agent, and of the Banks to make payments to the Agent 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, 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 Agent under any Letter of
Credit against presentation of a demand, draft or certificate
or other document which does not
-30-
37
comply with the terms of such Letter of Credit, provided that
such payment does not constitute gross negligence or willful
misconduct of the Agent;
(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 receives a reimbursement payment
from the Borrower on account of an amount drawn under a Letter of Credit, as to
which the Agent has received for its own account any payment from the Banks
pursuant to this Section 2.7, then the Agent shall promptly pay to each Bank
which has funded its participation in such Letter of Credit in accordance with
this Section 2.7, in Dollars and in the kind of funds so received, such Bank's
share of such reimbursement payment based on its Commitment Percentage of such
Letter of Credit.
(i) The Borrower shall pay to the Agent for the account
of the Banks (based on their respective Commitment Percentage of Letters of
Credit), a fee equal to one and three quarters percent (1.75%) per annum on the
face amount of such Letter of Credit calculated quarterly and payable in
advance. 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 Agent including an issuance fee of $150.00 for each
Letter of Credit. Such additional fees shall be paid to the Agent 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 2.7, 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 Agent 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 2.7 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 Agent 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
-31-
38
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
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
Agent 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 Agent 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 Agent 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 Bank, one of the events
described in Section 12.1(g), (h) or (i) shall have occurred, each Bank will,
on the date such Loan pursuant to Section 2.7(f) was to have been made,
purchase an undivided participating interest in the Letter of Credit in an
amount equal to its Commitment Percentage of the amount of such Letter of
Credit. Each Bank will immediately transfer to the Agent in immediately
available funds the amount of its participation and upon receipt thereof the
Agent will deliver to such Bank a Letter of Credit participation certificate
dated the date of receipt of such funds and in such amount.
U2.8.Optional Reduction of CommitmentsThe 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 $500,000.00
in excess thereof (provided that in no event shall the aggregate Commitments be
reduced to an amount less than $75,000,000.00) or to terminate entirely the
unborrowed portion of the Commitments, whereupon the Commitments of the Banks
shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated, any such reduction to be without penalty. Promptly after receiving
any notice of the Borrower delivered pursuant to this Section 2.8, the Agent
will notify the Banks of the substance thereof. Upon the effective date of any
such termination in full, the Borrower shall pay to the Agent for the
respective accounts of the Banks the full amount of any facility fee under
Section 2.2 then accrued. No reduction or termination of the Commitments may
be reinstated. Any reduction of the Commitments pursuant
-32-
39
to this Agreement shall be allocated pro rata among the Banks in accordance
with their Commitment Percentages.
U3.REPAYMENT OF THE LOANS U3.1.Stated MaturityThe Borrower promises to pay on
the Maturity Date and there shall become absolutely due and payable on the
Maturity Date all of the Loans outstanding on such date, together with any and
all accrued and unpaid interest thereon.
U3.2.Mandatory PrepaymentsIf at any time the aggregate of the Outstanding
Loans and Letters of Credit Outstanding exceeds (a) the Total Commitment, or
(b) the Borrowing Base, then the Borrower shall pay the amount of such excess
to the Agent for the respective accounts of the Banks for application to the
Loans within the time period provided for in Section 12.3, subject to the
Borrower's right to provide additional Collateral pursuant to Section 12.2.
U3.3.Optional PrepaymentsThe Borrower shall have the right, at its election,
to prepay the outstanding amount of the applicable Loans, as a whole or in
part, at any time without penalty or premium; provided, that the full or
partial prepayment of the outstanding amount of any LIBOR Rate Loans pursuant
to this Section 3.3 may be made only on the last day of the Interest Period
relating thereto except as otherwise required pursuant to Section 4.7. The
Borrower shall give the Agent, no later than 10:00 a.m., Boston 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.
U3.4.Partial PrepaymentsEach partial prepayment of the Loans under Section 3.2
and Section 3.3 shall be in an integral multiple of $100,000, shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of payment and, after payment of such interest, shall be applied, in the
absence of instruction by the Borrower, first to the principal of Base Rate
Loans and then to the principal of LIBOR Rate Loans.
U3.5.Effect of PrepaymentsAmounts of the Loans prepaid under Section 3.2,
Section 3.3 and Section 3.6 or out of any casualty or condemnation proceeds
prior to the Maturity Date may be reborrowed as provided in Section 2.
U3.6.Proceeds from Debt or Equity OfferingAt the option of the Majority Banks,
the Borrower shall cause any Net Offering Proceeds (excluding proceeds received
in connection with the Stock Purchase Commitment) to be paid by the Borrower or
the Guarantor to the Agent for the account of the Banks as a prepayment of the
Loans to the Borrower or which are guaranteed by the Guarantor within ten (10)
days of the date of such offering to the extent of the outstanding balance of
such Loans; provided that so long as no Default or Event of Default has
occurred and is continuing or would occur as a result of such payment, the Net
Offering Proceeds of any Equity Offering (excluding proceeds received in
connection with the Stock Purchase Commitment) may be used to prepay the
Unsecured Term Loans.
-33-
40
U4.CERTAIN GENERAL PROVISIONS U2.7.Conversion Options
(a) The Borrower may elect from time to time to convert
any of its outstanding Loans to a Loan of another Type and such Loan shall
thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as
applicable; provided that (i) with respect to any such conversion of a LIBOR
Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at least three
(3) Business Days' prior written notice of such election, and such conversion
shall only be made on the last day of the Interest Period with respect to such
LIBOR Rate Loan; (ii) with respect to any such conversion of a Base Rate Loan
to a LIBOR Rate Loan the Borrower shall give the Agent at least four (4) LIBOR
Business Days' prior written notice of such election and the Interest Period
requested for such Loan, the principal amount of the Loan so converted shall be
in a minimum aggregate amount of $2,000,000 or an integral multiple of $100,000
in excess thereof and, after giving effect to the making of such Loan there
shall be no more than ten (10) LIBOR Rate Loans outstanding at any one time;
and (iii) no Loan may be converted into a LIBOR Rate Loan when any Default or
Event of Default has occurred and is continuing. All or any part of the
outstanding Loans of any Type may be converted as provided herein, provided
that no partial conversion shall result in a Base Rate Loan in an aggregate
principal amount of less than $1,000,000 or a LIBOR Rate Loan in an aggregate
principal amount of less than $2,000,000 and that the aggregate principal
amount of each Loan shall be in an integral multiple of $100,000. On the date
on which such conversion is being made, each Bank shall take such action as is
necessary to transfer its Commitment Percentage of such Loans to its Domestic
Lending Office or its LIBOR Lending Office, as the case may be. Each
Conversion Request relating to the conversion of a Base Rate Loan to a LIBOR
Rate Loan shall be irrevocable by the Borrower.
(b) Any Loan may be continued as such Type upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the terms of Section 4.1(a); provided that no 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.
U4.2.Commitment and Syndication FeeThe Borrower has paid to BankBoston 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 BankBoston.
U4.3.Agent's FeeThe Borrower will pay to the 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.
-34-
41
U4.4.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. (Boston time) on the
day when due, in each case in immediately available funds. The Agent is hereby
authorized to charge the accounts of the Borrower with BankBoston 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.
U4.5.ComputationsAll 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.
U4.6.Inability to Determine LIBOR RateIn the event that, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the Agent
shall reasonably determine that adequate and reasonable methods do not exist
for ascertaining the LIBOR Rate for such Interest Period, the Agent 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
-35-
42
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.
U4.7.IllegalityNotwithstanding 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.
U4.8.Additional InterestIf any LIBOR Rate Loan or any portion thereof is
repaid or is converted to a Base Rate Loan for any reason on a date which is
prior to the last day of the Interest Period applicable to such LIBOR Rate
Loan, the Borrower will pay to the Agent upon demand for the account of the
Banks in accordance with their respective Commitment Percentages, in addition
to any amounts of interest otherwise payable hereunder, any amounts required to
compensate the Banks for any losses, costs or expenses which may reasonably be
incurred as a result of such payment or conversion, including, without
limitation, an amount equal to daily interest for the unexpired portion of such
Interest Period on the LIBOR Rate Loan or portion thereof so repaid or
converted at a per annum rate equal to the excess, if any, of (a) the interest
rate calculated on the basis of the LIBOR Rate applicable to such LIBOR Rate
Loan minus (b) the yield obtainable by the Agent upon the purchase of debt
securities customarily issued by the Treasury of the United States of America
which have a maturity date most closely approximating the last day of such
Interest Period (it being understood that the purchase of such securities shall
not be required in order for such amounts to be payable and that a Bank shall
not be obligated or required to have actually obtained funds at the LIBOR Rate
or to have actually reinvested such amounts as described above).
U4.9.Additional Costs, EtcNotwithstanding anything herein to the contrary, if
any present or future applicable law, which expression, as used herein,
includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any governmental or other
regulatory body or official with appropriate jurisdiction charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon
or otherwise issued to any Bank or the Agent by any central bank or other
fiscal, monetary or other authority (whether or not having the force of law),
shall:
(a) subject any Bank or the Agent to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with respect
to this Agreement, the other Loan
-36-
43
Documents, such Bank's Commitment, the Loans or the Letters of Credit (other
than taxes based upon or measured by the income or profits 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.
U4.10.Capital AdequacyIf 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
-37-
44
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 Letters
of Credit 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.
U4.11.Indemnity of BorrowerThe 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.
U4.12.Interest on Overdue Amounts; Late ChargeOverdue 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 five percent (5.0%)
above the Base Rate 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 five percent (5.0%) above the Base Rate or (ii) the
maximum annual rate of interest permitted by applicable law until such amount
shall be paid in full (after as well as before judgment). In addition, the
Borrower shall pay a late charge equal to four percent (4.0%) of any amount of
interest and/or principal payable on the Loans or any other amounts payable
hereunder or under the Loan Documents, which is not paid by the Borrower within
fifteen (15) days after the same shall become due and payable.
U4.13.HLT ClassificationThe Banks acknowledge that as of the date hereof
neither the Commitments nor the Loans are classified as "highly leveraged
transactions". Notwithstanding the foregoing, if after the date hereof, the
Agent determines, or is advised by any Bank that such Bank has determined or
has received notice from any governmental authority, central bank or comparable
agency having jurisdiction over such Bank, that any of the Commitments or Loans
are classified as a "highly leveraged transaction" (an "HLT Classification")
pursuant to any existing regulations regarding "highly leveraged transactions"
or any modification, amendment or interpretation thereof, or the adoption of
new regulations regarding "highly leveraged transactions" after the date hereof
by any governmental authority, central bank or comparable
-38-
45
agency, the Agent shall promptly give notice of such HLT Classification to the
Borrower and the Banks (which date is hereafter referred to as the "HLT Notice
Date"). The Agent, the Banks and the Borrower shall thereupon commence
negotiations in good faith to agree on the extent to which fees, interest rates
and/or margins hereunder should be increased so as to reflect such HLT
Classification. If the Borrower and the Majority Banks agree on the amount of
such increase or increases, this Agreement shall be promptly amended to give
effect to such increase or increases. If the Borrower and the Majority Banks
fail to so agree and the Borrower has failed to refinance the Loans within
ninety (90) days after the HLT Notice Date, then the Agent shall, if so
requested by the Majority Banks, by notice to the Borrower terminate the
Commitments and accelerate the maturity date of the Loans and the Loans shall
become due and payable in full on the date specified in such notice, which date
shall be not earlier than one hundred eighty (180) days after the HLT Notice
Date. The Agent and the Banks acknowledge that an HLT Classification is not a
Default or an Event of Default.
U4.14.CertificateA certificate setting forth any amounts payable pursuant to
Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section 4.12 or Section
4.13 and a brief explanation of such amounts which are due, submitted by any
Bank or the Agent to the Borrower, shall be conclusive in the absence of
manifest error.
U4.15.Limitation on InterestNotwithstanding 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 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.
U4.16.Extension of 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 E hereto
at least 90 days prior to the initial scheduled Maturity Date of May 1, 1999,
subject to the terms and conditions set forth in this Agreement, to extend the
-39-
46
Maturity Date to October 1, 2000. The request by the Borrower for extension of
the 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 Banks to extend
the Maturity Date as provided in Section 4.16(a) shall be subject to the
satisfaction of the following conditions precedent on or prior to the scheduled
Maturity Date of May 1, 1999:
(i) Payment of Extension Fee. The Borrower shall
pay to the Agent for the pro rata accounts of the Banks in accordance with
their respective Commitment Percentages an extension fee equal to 0.15% of the
Total Commitment as of May 1, 1999, which fee shall, when paid, be fully earned
and non-refundable under any circumstances.
(ii) No Default. On the date of the exercise of
such extension option and on May 1, 1999, there shall exist no Default or Event
of Default.
(iii) Representations and Warranties. The
representations and warranties made by the Borrower, the Guarantor or any of
their respective Subsidiaries in the Loan Documents or otherwise made by or on
behalf of the Borrower, the Guarantor or any of their respective Subsidiaries
in connection therewith or after the date thereof shall be true and correct in
all material respects on May 1, 1999.
(iv) Interest Rate Protection. The Borrower shall
have obtained or extended prior to May 1, 1999, an Interest Collar satisfying
the requirements of this Agreement or such other Interest Rate Contract as the
Agent may approve in its discretion (and which shall not expire before October
1, 2000) and shall have provided evidence thereof to the Agent.
(v) Additional Documents. The Borrower, the
Guarantor and each Subsidiary shall execute and deliver to the Agent and the
Banks such additional documents, instruments, certifications and opinions as
the Agent or the Banks may reasonably require.
U5.COLLATERAL SECURITY U3.1.CollateralThe Obligations of the Borrower shall be
secured by (i) a perfected first priority lien or security title to be held by
the Agent for the benefit of the Banks in the Mortgaged Property, Building
Service Equipment and other personal property of the Borrower and any Approved
Subsidiary, pursuant to the terms of the Security Deeds, (ii) a perfected first
priority security interest to be held by the Agent for the benefit of the Banks
in the Leases pursuant to the Assignments of Rents and Leases from the Borrower
and any Approved Subsidiary and (iii) the Indemnity Agreement; provided,
however, that the security interest in Special Real Estate and rents generated
therefrom shall be perfected only as provided in Section 5.8. The Obligations
shall also be guaranteed pursuant to the terms of the Guaranty and the REMIC
Subsidiary Guaranty (Revolver).
-40-
47
U5.2.Appraisals
(a) The Agent on behalf of the Banks shall require
biennial Appraisals of each of the Mortgaged Properties, which will be ordered
by the Agent and reviewed and approved by the appraisal department of the
Agent, or, if the Agent's appraisal department has determined that the value of
any Mortgaged Property is more than five percent (5%) different from the value
for such Mortgaged Property as set forth in the Appraisal delivered to the
Agent by the Borrower, by the appraisal departments of the Majority Banks, in
order to determine the current Appraised Value and Borrowing Base of the
Mortgaged Property, and the Borrower shall pay to the Agent on demand all
reasonable costs of all such Appraisals relating to the Mortgaged Property of
the Borrower; provided, however, that so long as (i) no Default or Event of
Default shall have occurred and be continuing, (ii) regulatory requirements of
any Bank generally applicable to real estate loans of the category made under
this Agreement as reasonably interpreted by such Bank shall not require more
frequent Appraisals and (iii) there has been no material change in the market
for the leasing of any of the Mortgaged Properties as reasonably determined by
the Agent, the Borrower shall not be required to pay for Appraisals for a
particular Mortgaged Property more often than once in any twenty-four (24)
month period, with the result that unless any such condition shall occur the
first Appraisals of a Mortgaged Property for which the Borrower shall be
financially responsible shall not be required prior to the date which is
twenty-four (24) months from the date of the Appraisal for such Mortgaged
Property delivered to the Agent pursuant to this Agreement. Notwithstanding
the foregoing provisions, however, in the event of a material change of the
type referred to in clause (iii), the Borrower shall not be required to pay for
Appraisals of the affected Mortgaged Property or Mortgaged Properties more
often than once in any twelve (12) month period.
(b) Notwithstanding the provisions of Section 5.2(a), the
Agent may, for the purpose of determining the current Appraised Value and
Borrowing Base of the applicable Mortgaged Properties, perform annual internal
studies updating and revising prior Appraisals with respect to the Mortgaged
Properties or such portion thereof as the Agent shall determine at any time
following (i) the occurrence of an event or condition which, in the reasonable
judgment of the Agent, constitutes a material adverse change with respect to a
Mortgaged Property or presents a reasonable likelihood that such a change shall
occur in the future or (ii) a condemnation of or uninsured casualty to a
Mortgaged Property (provided that any such Appraisal as a result of an event or
condition described in clause (i) or (ii) shall be limited to the affected
Mortgaged Property). The expense of such Appraisals and updates performed
pursuant to this Section 5.2(b) shall be borne by the Borrower, provided that
the Borrower shall not be required to pay for any update pursuant to Section
5.2(b)(i) more often than once in any twelve (12) month period.
(c) In the event that the Agent shall advise the
Borrower, on the basis of any Appraisal or update pursuant to Section 5.2, that
the Borrower's Borrowing Base is insufficient to comply with the requirements
of Section 9.1, then until such Borrowing Base shall be restored to compliance
with Section 9.1 the Banks shall not be required to make advances under Section
2.1 or participate in any Letters of Credit under Section 2.7.
-41-
48
U5.3.Release of CollateralUpon termination of this Agreement and the
Commitment of the Banks to make Loans and to participate in Letters of Credit
hereunder and the payment in full of all of the Obligations, the Agent, on
behalf of the Banks, shall release the Collateral and shall execute such
instruments of release as the Borrower and its counsel may reasonably request.
In addition, Collateral may be released as provided in Section 8.8.
U5.4.Substitution of Mortgaged PropertyAny requested substitution by the
Borrower of any Real Estate for any Mortgaged Property shall require the
consent of the Majority Banks and shall require the completion and delivery to
the Agent, for the benefit of the Banks, of the Eligible Real Estate
Qualification Documents and the payment to the Agent, for the benefit of the
Banks, of a substitution fee of $10,000 to be split equally by the Banks,
without regard to their respective Commitment Percentages. It is acknowledged
and agreed that the foregoing fee is intended to compensate the Banks for their
travel and internal due diligence review, and that the Borrower shall remain
liable for the payment of all of the Agent's other costs associated with such
substitution, including, but not limited to, appraisal fees, legal costs and
costs of environmental, engineering and structural studies.
U5.5.Addition of Mortgaged Properties
(a) The Borrower shall have the right, subject to the
consent of the Majority Banks which may be withheld by the Majority Banks in
their sole and absolute discretion, to add to the Collateral, any other Real
Estate which is owned by the Borrower and which is not security for any other
Indebtedness. Such addition shall be completed by the completion and delivery
to the Agent for the benefit of the Banks of each of the Eligible Real Estate
Qualification Documents. Such Real Estate shall be Eligible Real Estate,
shall be satisfactory to the Majority Banks in all respects and shall have a
Borrowing Base amount attributable thereto by the Majority Banks so as to cause
the Borrower to continue to be in compliance with all covenants contained in
this Agreement. In the event that the Borrower desires for such Real Estate to
be Special Real Estate, the Borrower shall deliver such evidence as the Agent
may require indicating that it is not feasible for such Real Estate to be
Regular Real Estate upon the transfer and amendment and restatement of any
existing loan documents which may encumber such Real Estate, and such Real
Estate may not be Special Real Estate without the approval of the Agent.
(b) In connection with each such addition to increase the
Borrowing Base or to replace a Mortgaged Property except for the reasons set
forth in Section 5.6, the Borrower, within fifteen (15) days of the Borrower's
request to add such Real Estate to the Collateral, shall pay to the Agent for
the account of the Banks a review fee of $10,000.00 for each parcel of Real
Estate to be added to be split equally by the Banks, without regard to their
respective Commitment Percentages.
-42-
49
U5.6.Mandatory Increase in Borrowing BaseAt all times when the portion of
the Borrowing Base attributable to Regular Real Estate (without taking into
account any Borrowing Base attributable to Special Real Estate) is less than
the Total Commitment (including any increase in such Total Commitment), all
Real Estate located outside of New York, Florida and Maryland which is
purchased or developed with proceeds of Loans or any Equity Offering or which
has been encumbered by Indebtedness which is repaid with proceeds of Loans
shall be immediately mortgaged or conveyed to the Agent for the benefit of the
Banks, and the Borrower shall promptly cause the same to become Eligible Real
Estate; provided that the Borrower shall take commercially reasonable steps to
cause any lender holding a lien on Real Estate located in New York or Maryland
that is acquired by the Borrower to transfer such Indebtedness and related loan
documents to the Agent, and to amend and restate the same to allow the Agent to
record a Security Deed against such Real Estate, and in such event such Real
Estate may not be Special Real Estate.
U5.7.Non-EncumbranceWithout implying any limitation upon the generality of
Section 8.2, the Borrower will not, and will not permit any other Person to,
create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, negative pledge, change, restriction or other
security interest of any kind upon any Special Real Estate encumbered by any
Special Security Documents (whether now owned or hereafter acquired), except
for matters set forth in Title Policies relating to such Special Real Estate
submitted to and approved by the Agent.
U5.8.Special Security DocumentsThe Special Security Documents have been
delivered and are effective or shall be effective upon the future delivery
thereof, but shall not be recorded until the occurrence of an Event of Default;
provided, however, that the Special Security Documents with respect to the
Mortgaged Properties owned by the REMIC Subsidiary shall be recorded if the
REMIC Transaction has not been consummated within sixty (60) days of the date
of this Agreement. Upon the occurrence of an Event of Default, the Agent may,
and upon the direction of the Majority Banks, shall, record the Special
Security Documents in the public records without any further action of or
notice to the Borrower or any other party and without waiving such Event of
Default; provided, however, that if such Event of Default exists solely as a
result of default described in Section 12.1(b), the Agent shall give the
Borrower two (2) Business Days notice prior to the recordation of the Security
Documents. In addition, the Borrower shall promptly deliver to the Agent such
further documents as may be reasonably requested by the Agent relating to such
Real Estate, including without limitation, owner's affidavits, updated legal
opinions and copies of leases and such changes to the Special Security
Documents as may be necessary or desirable to comply with changes in applicable
law. In connection with the recording of the Special Security Documents, the
Agent may obtain, at the Borrower's sole cost and expense, a mortgagee's title
insurance policy with respect to each parcel of Special Real Estate encumbered
by such Special Security Documents in such amount as is determined by the
Agent. The Borrower shall upon demand pay the cost of any such mortgagee's
title insurance policy, the cost of any updated UCC searches, all recording
costs and fees, and any and all intangible taxes or other documentary or
mortgage taxes, assessments or charges which are demanded in connection with
the recording of any of the Special Security Documents. In addition, the
Borrower shall pay
-43-
50
within five (5) days after demand any and all costs, fees, intangible tax,
documentary or mortgage tax, assessments or charges as are demanded by any
governmental authority by reason of the Special Security Documents prior to the
recording of the same. In the event that the Borrower fails to pay such
amounts as provided in this section, then the Banks may advance such amounts as
are required to be paid as Loans hereunder, which Loans shall bear interest at
the rate for overdue payments set forth in this Agreement. The Agent and the
Banks agree that, provided no Default or Event of Default shall have
theretofore occurred hereunder or under any of the other Loan Documents, Agent
shall, within five (5) days of the receipt of written request from the
Borrower, release the Special Real Estate from the lien of the Special Security
Documents and return the Special Security Documents to the Borrower; provided,
however, the Agent shall not be obligated to release the Special Real Estate or
return the Special Security Documents if, as a result of the release of the
Special Real Estate, a Default or Event of Default shall exist hereunder or
under any of the other Loan Documents.
U6.REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE BORROWER
The Borrower and the Guarantor, jointly and severally, represent and warrant to
the Agent and the Banks as follows.
U6.1.Corporate Authority, Etc
(a) Incorporation; Good Standing. The Borrower is a
Delaware limited partnership duly organized pursuant to its limited partnership
agreement dated December 21, 1994, as amended as of January 1, 1995, and as
amended and restated on May 1, 1996, and as further amended by a first
amendment dated as of June 25, 1996, a second amendment dated as of September
29, 1997, a third amendment dated as of October 3, 1997, and a fourth amendment
dated as of October 8, 1997, 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 Guarantor is a Massachusetts business trust duly organized pursuant to its
amended and restated trust agreement dated June 14, 1988, and a Certificate of
Trust and amendments thereto filed with the Secretary of the Commonwealth of
Massachusetts and is validly existing and in good standing under the laws of
the Commonwealth of Massachusetts. Each of the Borrower and the Guarantor (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 is in good standing as a foreign entity and is duly authorized
to do business in the jurisdictions where the Mortgaged Property of the
Borrower is 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 Guarantor is a
real estate investment trust in full compliance with and entitled to the
benefits of Section 856 of the Code.
(b) Subsidiaries. Each of the Subsidiaries of the
Borrower and the Guarantor (i) is a corporation, limited partnership, limited
liability company or trust duly organized under the laws of its State of
organization and is validly existing and in good standing under the laws
thereof, (ii) has all requisite power to own its property and conduct its
business as now conducted
-44-
51
and as presently contemplated and (iii) is in good standing and is duly
authorized to do business in each jurisdiction where Mortgaged Property 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 Guarantor, or such Subsidiary. The REMIC
Subsidiary is a wholly-owned direct Subsidiary of the Borrower.
(c) Authorization. The execution, delivery and
performance of this Agreement and the other Loan Documents to which the
Borrower, the Guarantor or any of their respective Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby (i) are
within the authority of such Person, (ii) have been duly authorized by all
necessary proceedings on the part of such Person, (iii) do not and will not
conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which such Person is subject or any judgment,
order, writ, injunction, license or permit applicable to such Person, (iv) do
not and will not conflict with or constitute a default (whether with the
passage of time or the giving of notice, or both) under any provision of the
articles of incorporation, partnership agreement, declaration of trust or other
charter documents or bylaws of, or any agreement or other instrument binding
upon, such Person or any of its properties, and (v) do not and will not result
in or require the imposition of any lien or other encumbrance on any of the
properties, assets or rights of such Person.
(d) Enforceability. The execution and delivery of this
Agreement and the other Loan Documents to which the Borrower, the Guarantor or
any of their respective Subsidiaries is or is to become a party are valid and
legally binding obligations of such Person enforceable in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
U6.2.Governmental ApprovalsThe execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower, the Guarantor or
any of their respective Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any governmental agency or authority other than
those already obtained and the filing of the Security Documents in the
appropriate records office with respect thereto.
U6.3.Title to Properties; LeaseThe Borrower, the Guarantor and their
Subsidiaries own all of the assets reflected in the consolidated balance sheet
of the Borrower and the Guarantor as of the Balance Sheet Date or acquired
since that date (except property and assets sold or otherwise disposed of in
the ordinary course of business since that date), subject to no rights of
others, including any mortgages, leases, conditional sales agreements, title
retention agreements, liens or other encumbrances except Permitted Liens.
-45-
52
U6.4.Financial StatementsThe Borrower has delivered to each of the Banks:
(a) the consolidated balance sheet of the Guarantor and its Subsidiaries as of
the Balance Sheet Date, (b) an unaudited statement of Operating Cash Flow for
each of the Mortgaged Properties for the fiscal years ended December 31, 1995,
and December 31, 1996 and for the period of January 1, 1997 through June 30,
1997, to the extent available, satisfactory in form to the Majority Banks and
certified by the chief financial or accounting officer of the general partner
of the Borrower as fairly presenting the operating income for such parcels for
such periods, provided that such certification need only be made with respect
to any Mortgaged Property for the period such Mortgaged Property has been owned
and operated by the Borrower, if such period is less than three (3) fiscal
years, and (c) certain other financial information relating to the Borrower,
the Guarantor and the Real Estate. Such balance sheet and statements have been
prepared in accordance with generally accepted accounting principles and fairly
present the financial condition of the Borrower, the Guarantor and their
respective Subsidiaries as of such dates and the results of the operations of
the Borrower, the Guarantor and the Mortgaged Properties for such periods.
There are no liabilities, contingent or otherwise, of the Borrower, the
Guarantor or any of their respective Subsidiaries involving material amounts
not disclosed in said financial statements and the related notes thereto.
U6.5.No Material ChangesSince the Balance Sheet Date, there has occurred no
materially adverse change in the financial condition or business of the
Borrower, the Guarantor, and their respective Subsidiaries taken as a whole as
shown on or reflected in the consolidated balance sheet of the Borrower and the
Guarantor as of the Balance Sheet Date, or its consolidated statement of income
or cash flows for the fiscal year then ended, other than changes in the
ordinary course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial condition
of such Person.
U6.6.Franchises, Patents, Copyrights, EtcThe Borrower, the Guarantor and their
respective Subsidiaries possess all franchises, patents, copyrights,
trademarks, trade names, servicemarks, 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.
U6.7.LitigationExcept as stated on Schedule 6.7 there are no actions, suits,
proceedings or investigations of any kind pending or to the knowledge of such
person threatened against the Borrower, the Guarantor or any of their
respective Subsidiaries before any court, tribunal or administrative agency or
board that, if adversely determined, might, either in any case or in the
aggregate, materially adversely affect the properties, assets, financial
condition or business of such Person or materially impair the right of such
Person to carry on business substantially as now conducted by it, or result in
any liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the balance sheet of such Person, or which
question the validity of this Agreement or any of the other Loan Documents, any
action taken or to be taken pursuant hereto or thereto or any lien or security
interest created or intended to be created pursuant hereto or thereto, or which
will adversely affect the ability of the Borrower or the Guarantor to pay and
perform the Obligations in the manner contemplated by this Agreement and the
other Loan Documents.
-46-
53
U6.8.No Materially Adverse Contracts, Etc None of the Borrower, the Guarantor
or any of their respective Subsidiaries is subject to any charter, corporate or
other legal restriction, or any judgment, decree, order, rule or regulation
that has or is expected in the future to have a materially adverse effect on
the business, assets or financial condition of such Person. None of the
Borrower, the Guarantor, nor any of their respective Subsidiaries is a party to
any contract or agreement that has or is expected, in the judgment of the
partners or officers of such Person, to have any materially adverse effect on
the business of any of them.
U6.9.Compliance with Other Instruments, Laws, EtcNone of the Borrower, the
Guarantor or any of their respective Subsidiaries is in violation of any
provision of its charter or other organizational documents, bylaws, or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that could result in
the imposition of substantial penalties or materially and adversely affect the
financial condition, properties or business of such Person.
U6.10.Tax StatusThe Borrower, the Guarantor and each of their respective
Subsidiaries (a) has made or filed all federal and state income and all other
tax returns, reports and declarations required by any jurisdiction to which it
is subject, (b) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and by appropriate
proceedings and (c) has set aside on its books provisions reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction,
and the partners or officers of such Person know of no basis for any such
claim.
U6.11.No Event of DefaultNo Default or Event of Default has occurred and is
continuing.
U6.12.Holding Company and Investment Company ActsNone of the Borrower, the
Guarantor, or any of their respective Subsidiaries is or after giving effect to
any Loan will be, subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act or the Investment Company Act of
1940 or to any federal or state statute or regulation limiting its ability to
incur indebtedness for borrowed money.
U6.13.Absence of UCC Financing Statements, EtcExcept 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 Guarantor or any of their
respective Subsidiaries or rights thereunder.
-47-
54
U6.14.Setoff, EtcThe Collateral and the rights of the Agent and the Banks
with respect to the Collateral are not subject to any setoff, claims,
withholdings or other defenses. The Borrower is the owner of the Collateral
free from any lien, security interest, encumbrance or other claim or demand,
except those encumbrances permitted in the Security Deeds.
U6.15.Certain TransactionsExcept as set forth on Schedule 6.15, none of the
officers, trustees, directors, or employees of the Borrower, the Guarantor or
any of their respective Subsidiaries is a party to any transaction with either
or both of the Borrower, the Guarantor or any of their respective Subsidiaries
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any officer, trustee, director
or such employee or, to the knowledge of the Borrower, the Guarantor, or any
corporation, partnership, trust or other entity in which any officer, trustee,
director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.
U6.16.Employee Benefit PlansThe Borrower, the Guarantor and each ERISA
Affiliate has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.
Neither the Borrower, the Guarantor nor any ERISA Affiliate has (a) sought a
waiver of the minimum funding standard under Section 412 of the Code in respect
of any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan,
(b) failed to make any contribution or payment to any Employee Benefit Plan,
Multiemployer Plan or Guaranteed Pension Plan, or made any amendment to any
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, which has
resulted or could result in the imposition of a lien or the posting of a bond
or other security under ERISA or the Code, or (c) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA. None of the Real Estate constitutes a "plan asset" of any
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.
U6.17.Regulations U and XNo 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 U and X of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Parts 221 and 224.
U6.18.Environmental ComplianceThe Borrower and the Guarantor 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 Mortgaged Properties, and to the
best of the Borrower's and the Guarantor's knowledge with respect to any other
Real Estate, none of the Borrower, the Guarantor or their respective
Subsidiaries or any operator of the Real Estate, or any operations
-48-
55
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 any of
the Mortgaged Properties or involves other Real Estate and would have a
material adverse effect on the business, assets or financial condition of the
Borrower, the Guarantor or any of their respective Subsidiaries.
(b) None of the Borrower, the Guarantor or any of their
respective Subsidiaries has received notice from any third party including,
without limitation, any federal, state or local governmental authority, (i)
that it has been identified by the United States Environmental Protection
Agency ("EPA") as a potentially responsible party under CERCLA with respect to
a site listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B
(1986); (ii) that any hazardous waste, as defined by 42 U.S.C. Section
9601(5), any hazardous substances as defined by 42 U.S.C. Section 9601(14),
any pollutant or contaminant as defined by 42 U.S.C. Section 9601(33) or any
toxic substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which it has
generated, transported or disposed of have been found at any site at which a
federal, state or local agency or other third party has conducted or has
ordered that the Borrower, the Guarantor or any of their respective
Subsidiaries conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it is or shall be a named
party to any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise) arising out
of any third party's incurrence of costs, expenses, losses or damages of any
kind whatsoever in connection with the release of Hazardous Substances.
(c) With respect to the Mortgaged Properties, and to the
best of the Borrower's and the Guarantor's knowledge with respect to any other
Real Estate, except as specifically set forth in the written environmental site
assessment reports of McLaren Hart provided to the Agent on or before the date
hereof or, in the case of Real Estate acquired after the date hereof, the
environmental site assessment reports with respect thereto provided to the
Agent under Section 7.4(h): (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 Mortgaged Property; (ii)
in the course of any activities conducted by either the Borrower, the
Guarantor, their Subsidiaries or the operators of its properties, no Hazardous
Substances have been generated or are being used on the Real Estate except in
the ordinary course of business and in accordance with applicable Environmental
Laws in all material respects; (iii) there has been no past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (a "Release") or
threatened Release of Hazardous Substances on, upon, into or from any of the
Mortgaged Properties, or, to the best of the Borrower's or the Guarantor's
knowledge, on, upon,
-49-
56
into or from the other properties of the Borrower, the Guarantor or their
respective Subsidiaries, which Release would have a material adverse effect on
the value of any of the Real Estate or adjacent properties or the environment;
(iv) to the best of the Borrower's or the Guarantor's knowledge, there have
been no Releases on, upon, from or into any real property in the vicinity of
any of the Real Estate which through soil or groundwater contamination, may
have come to be located on, and which would have a material adverse effect on
the value of, the Real Estate; and (v) any Hazardous Substances that have been
generated on any of the Real Estate have been transported off-site only by
carriers having an identification number issued by the EPA or approved by a
state or local environmental regulatory authority having jurisdiction regarding
the transportation of such substance and treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under
all applicable Environmental Laws, which transporters and facilities have been
and are, to the best of the Borrower's or the Guarantor's knowledge, operating
in compliance with such permits and applicable Environmental Laws.
(d) None of the Borrower, the Guarantor, their respective
Subsidiaries, the Mortgaged Properties or any other Real Estate is subject to
any applicable Environmental Law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the recording
or delivery to other Persons of an environmental disclosure document or
statement by virtue of the transactions set forth herein and contemplated
hereby, or as a condition to the recording of the Security Deeds or to the
effectiveness of any other transactions contemplated hereby.
U6.19.SubsidiariesSchedule 6.19 sets forth all of the Subsidiaries of the
Borrower and the Guarantor. The form and jurisdiction of organization of each
of the Subsidiaries, and the Borrower's and the Guarantor's ownership interest
therein, is set forth in said Schedule 6.19.
U6.20.LeasesThe Borrower has delivered to the Agent (i) true copies of the
forms of the Leases used by the Borrower at the Mortgaged Properties as of the
date hereof and (ii) true, correct and complete copies of the Leases and any
amendments thereto relating to the Mortgaged Properties as of the date hereof.
U6.21.Loan DocumentsAll of the representations and warranties made by or on
behalf of the Borrower, the Guarantor, and their respective Subsidiaries in
this Agreement and the other Loan Documents or any document or instrument
delivered to the Agent or the Banks pursuant to or in connection with any of
such Loan Documents are true and correct in all material respects, and neither
the Borrower, the Guarantor nor any of their respective Subsidiaries has failed
to disclose such information as is necessary to make such representations and
warranties not misleading.
U6.22.Mortgaged PropertyThe Borrower and the Guarantor each makes and shall
cause each Approved Subsidiary to make, the following representations and
warranties concerning each Mortgaged Property:
-50-
57
(a) Off-Site Utilities. All water, sewer, electric, gas,
telephone and other utilities necessary for the use and operation of the
Mortgaged Property are installed to the property lines of the Mortgaged
Property through dedicated public rights of way or through perpetual private
easements approved by the Agent with respect to which the applicable Security
Deed creates a valid and enforceable first lien and, except in the case of
drainage facilities, are connected to the Building located thereon with valid
permits and are adequate to service the Building in compliance with applicable
law.
(b) Access, Etc. The streets abutting the Mortgaged
Property are dedicated and accepted public roads, to which the Mortgaged
Property has direct access by trucks and other motor vehicles and by foot, or
are perpetual private ways (with direct access by trucks and other motor
vehicles and by foot to public roads) to which the Mortgaged Property has
direct access approved by the Agent and with respect to which the applicable
Security Deed creates a valid and enforceable first lien. All private ways
providing access to the Mortgaged Property are zoned in a manner which will
permit access to the Building over such ways by trucks and other commercial and
industrial vehicles.
(c) Independent Building. The Building is fully
independent in all respects including, without limitation, in respect of
structural integrity, heating, ventilating and air conditioning, plumbing,
mechanical and other operating and mechanical systems, and electrical,
sanitation and water systems, all of which are connected directly to off-site
utilities located in public streets or ways or through insured perpetual
private easements approved by the Agent. The Building is located on a lot
which is separately assessed for purposes of real estate tax assessment and
payment. The Building, all Building Service Equipment and all paved or
landscaped areas related to or used in connection with the Building are located
wholly within the perimeter lines of the lot or lots on which the Mortgaged
Property is located, except as may be specifically shown on the Survey for such
Mortgaged Property.
(d) Condition of Building; No Asbestos. The Building is,
in all material respects, structurally sound, in good repair and free of
defects in materials and workmanship. All major building systems located
within the Building, including without limitation heating, ventilating and air
conditioning, electrical, sprinkler, plumbing or other mechanical systems, are
in good working order and condition. Except as set forth in the Phase I
environmental site assessments delivered by the Borrower to the Agent, no
asbestos is located in or on the Building, except for nonfriable asbestos or
contained friable asbestos which is being monitored and/or remediated in
accordance with the recommendations of an Environmental Engineer.
(e) Building Compliance with Law. The Building as
presently constructed, used, occupied and operated does not, in any material
respect, violate any applicable federal or state law or governmental regulation
or any local ordinance, order or regulation, including but not limited to laws,
regulations, or ordinances relating to zoning, building use and occupancy,
subdivision control, fire protection, health, sanitation, safety, handicapped
access, historic preservation and protection, tidelands, wetlands, flood
control and Environmental Laws. The Building complies, in all material
respects, with applicable zoning laws and regulations and is not
-51-
58
a so-called non-conforming use. The zoning laws permit use of the Building for
its current use. There is such number of parking spaces on the lot or lots on
which the Mortgaged Property is located as is adequate under the zoning laws
and regulations to permit use of the Building for its current use. Each
Mortgaged Property constitutes a separate parcel which has been properly
subdivided in accordance with all applicable state and local laws, regulations
and ordinances to the extent required thereby, and neither the execution and
delivery of the Security Deeds nor the exercise of any remedies thereunder by
the Agent shall violate any such law or regulation relating to the subdivision
of real property.
(f) No Required Mortgaged Property Consents, Permits,
Etc. Neither the Borrower, the Guarantor nor any Approved Subsidiary has
received any notice of, and has no knowledge of, any approvals, consents,
licenses, permits, utility installations and connections (including, without
limitation, drainage facilities), curb cuts and street openings, required by
applicable laws, rules, ordinances or regulations or any agreement affecting
the Mortgaged Property for the maintenance, operation, servicing and use of the
Mortgaged Property or the Building for its current use which have not been
granted, effected, or performed and completed (as the case may be), or any fees
or charges therefor which have not been fully paid, or which are no longer in
full force and effect. No such approvals, consents, permits or licenses
(including, without limitation, any railway siding agreements) will terminate,
or become void or voidable or terminable on any foreclosure sale of the
Mortgaged Property pursuant to the Security Deed. To the best knowledge of the
Borrower, the Guarantor and each Approved Subsidiary, there are no outstanding
notices, suits, orders, decrees or judgments relating to zoning, building use
and occupancy, fire, health, sanitation or other violations affecting, against,
or with respect to, the Mortgaged Property or any part thereof.
(g) Insurance. Neither the Borrower, the Guarantor nor
any Approved Subsidiary has received any outstanding notice from any insurer or
its agent requiring performance of any work with respect to the Mortgaged
Property or canceling or threatening to cancel any policy of insurance, and the
Mortgaged Property complies with the requirements of all of the Borrower's and
the Guarantor's insurance carriers.
(h) Real Property Taxes; Special Assessments. There are
no unpaid or outstanding real estate or other taxes or assessments on or
against the Mortgaged Property or any part thereof which are payable by the
Borrower or the Guarantor (except only real estate or other taxes or
assessments, that are not yet due and payable). The Borrower has delivered to
the Agent true and correct copies of real estate tax bills for the Mortgaged
Property for the past three (3) fiscal years. No abatement proceedings are
pending with reference to any real estate taxes assessed against the Mortgaged
Property, other than with respect to taxes which have been paid under protest
and which are being contested in good faith. Except as set forth in the Title
Policies delivered to the Agent, there are no betterment assessments or other
special assessments presently pending with respect to any portion of the
Mortgaged Property, and neither the Borrower nor the Guarantor has received any
notice of any such special assessment being contemplated.
-52-
59
(i) Historic Status. The Building is not a historic
structure or landmark and neither the Building or the Mortgaged Property is
located within any historic district pursuant to any federal, state or local
law or governmental regulation.
(j) Eminent Domain; Casualty. There are no pending
eminent domain proceedings against the Mortgaged Property or any part thereof,
and, to the knowledge of the Borrower or the Guarantor, no such proceedings are
presently threatened or contemplated by any taking authority. Neither the
Mortgaged Property, the Building or any part thereof is now damaged or injured
as a result of any fire, explosion, accident, flood or other casualty.
(k) Leases. An accurate and complete Rent Roll and
summary thereof in a form reasonably satisfactory to the Majority Banks as of
the date of inclusion of the Mortgaged Property in the Collateral (or such
other recent date as may be acceptable to the Agent) with respect to all Leases
of any portion of the Mortgaged Property has been provided to the Agent. The
Leases reflected on such Rent Roll constitute as of the date thereof the sole
agreements and understandings relating to leasing or licensing of space at the
Mortgaged Property and in the Building relating thereto. Each of the Leases
was entered into as the result of arms-length negotiation and has not been
modified, changed, altered, assigned, supplemented or amended in any respect,
except as reflected on the Rent Roll, and no tenant is entitled to any free
rent, partial rent, rebate of rent payments, credit, offset or deduction in
rent, including, without limitation, lease support payments or lease buy-outs,
except as reflected in the Rent Roll. There are no occupancies, rights,
privileges or licenses in or to the Mortgaged Property or portion thereof other
than pursuant to the Leases reflected in Rent Rolls previously furnished to the
Agent for the Mortgaged Property. Except as set forth in each Rent Roll, the
Leases reflected therein are in full force and effect in accordance with their
respective terms, without any payment default or any other material default
thereunder, nor are there any defenses, counterclaims, offsets, concessions or
rebates available to any tenant thereunder, and neither the Borrower, the
Guarantor nor any of their respective Subsidiaries has given or made, any
notice of any payment or other material default, or any claim, which remains
uncured or unsatisfied, with respect to any of the Leases. The Rent Rolls
furnished to the Banks accurately and completely set forth all rents payable by
and security, if any, deposited by tenants, no tenant having paid more than one
month's rent in advance. All tenant improvements or work to be done for
tenants on the Rent Roll, furnished or paid for by the Borrower, the Guarantor
or any of their respective Subsidiaries, or credited or allowed to a tenant,
for, or in connection with, the Building pursuant to any Lease has been
completed and paid for or provided for in a manner satisfactory to the Agent.
No material leasing, brokerage or like commissions, fees or payments are due
from the Borrower, the Guarantor or any of their respective Subsidiaries in
respect of the Leases.
(l) Service Agreements; Management Agreements. Except as
listed on Schedule 6.22, there are no material Service Agreements relating to
the operation and maintenance of the Building, the Mortgaged Property, or any
portion thereof that are not cancelable at any time. The Borrower has no
Management Agreements for the Mortgaged Properties. To the best knowledge of
the Borrower, there are no material claims or any bases
-53-
60
for material claims in respect of the Mortgaged Property or its operation by
any party to any Service Agreement or Management Agreement.
(m) Other Material Real Property Agreements: No Options.
There are no material agreements pertaining to the Mortgaged Property, any
Building thereon or the operation or maintenance of either thereof other than
as described in this Agreement (including the Schedules hereto), the Title
Policies or otherwise disclosed in writing to the Agent and the Banks by the
Borrower; and no person or entity has any right or option to acquire the
Mortgaged Property or any Building thereon or any portion thereof or interest
therein.
U6.23.BrokersNone of the Borrower, the Guarantor, or any of their respective
Subsidiaries has engaged or otherwise dealt with any broker, finder or similar
entity in connection with this Agreement or the Loans contemplated hereunder.
U6.24.Other DebtNone of the Borrower, the Guarantor, or any of their
respective Subsidiaries is in default of the payment of any Indebtedness or any
other agreement, mortgage, deed of trust, security agreement, financing
agreement, indenture or lease to which any of them is a party. The Borrower is
not a party to or bound by any agreement, instrument or indenture that may
require the subordination in right or time or payment of any of the Obligations
to any other indebtedness or obligation of the Borrower. The Borrower has
provided to the Agent a schedule, and upon the request of the Agent will
provide copies, of all agreements, mortgages, deeds of trust, financing
agreements or other material agreements binding upon the Borrower or its
properties and entered into by the Borrower as of the date of this Agreement
with respect to any Indebtedness of the Borrower.
U6.25.SolvencyAs of the Closing Date and after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents,
including all Loans made or to be made hereunder, neither the Borrower, the
Guarantor nor any of their Subsidiaries is insolvent on a balance sheet basis
such that the sum of such Person's assets exceeds the sum of such Person's
liabilities, such Person is able to pay its debts as they become due, and such
Person has sufficient capital to carry on its business.
U6.26.Contribution AgreementBorrower has delivered or made available to the
Agent a true, correct and complete copy of the Contribution Agreement
(Revolver). The Contribution Agreement (Revolver) 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 (Revolver), nor has there been
any waiver of any material terms thereunder.
U6.27.No Fraudulent IntentNeither 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, 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.
-54-
61
U6.28.Transaction in Best Interests of Borrower; ConsiderationThe transaction
evidenced by this Agreement and the other Loan Documents is in the best
interests of the Borrower, the Guarantor, each of their respective
Subsidiaries and the creditors of such Persons. The direct and indirect
benefits to inure to the Borrower, the Guarantor and each of their respective
Subsidiaries pursuant to this Agreement and the other Loan Documents constitute
substantially more than "reasonably equivalent value" (as such term is used in
Section 548 of the Bankruptcy Code) and "valuable consideration," "fair value,"
and "fair consideration," (as such terms are used in any applicable state
fraudulent conveyance law), in exchange for the benefits to be provided by the
Borrower, the Guarantor and each of their respective Subsidiaries pursuant to
this Agreement and the other Loan Documents, and but for the willingness of the
Guarantor and the REMIC Subsidiary to guaranty the Loan, Borrower would be
unable to obtain the financing contemplated hereunder which financing will
enable the Borrower and its Subsidiaries (including the REMIC Subsidiary) to
have available financing to close the transaction under the Purchase Agreement
(including the acquisition of the Initial REMIC Properties and other real
property therein described) and to conduct and expand their business.
U6.29.Purchase AgreementThe Borrower has delivered to the Agent a true and
accurate copy of the Purchase Agreement.
U6.30.Stock Purchase CommitmentThe Stock Purchase Commitment is in full force
and effect and no defaults or breaches have occurred thereunder. A "Closing"
(as defined in the Stock Purchase Commitment) has occurred under the Stock
Purchase Commitment and as of the date of this Agreement the sum of
$11,666,675.00 has been funded under the Stock Purchase Commitment.
U7.AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER The
Guarantor (to the extent hereinafter provided) and the Borrower covenant and
agree that, so long as any Loan, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or to participate in any Letters of
Credit:
U7.1.Punctual PaymentThe 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.
U7.2.Maintenance of OfficeThe Borrower will maintain its chief executive
office at 27600 Northwestern Highway, Suite 200, Southfield, Michigan, 48034,
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.
-55-
62
U7.3.Records and AccountsThe Borrower will (a) keep, and cause each of its
Subsidiaries to keep, true and accurate records and books of account in which
full, true and correct entries will be made in accordance with generally
accepted accounting principles and (b) maintain adequate accounts and reserves
for all taxes (including income taxes), depreciation and amortization of its
properties and the properties of its Subsidiaries, contingencies and other
reserves. Neither the Borrower nor the Guarantor nor any of their respective
Subsidiaries shall, without the prior written consent of the Majority Banks,
(x) make any material changes to the accounting principles used by such Person
in preparing the financial statements and other information described in
Section 6.4 or (y) change its fiscal year.
U7.4.Financial Statements, Certificates and InformationThe Borrower and
Guarantor will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later
than one hundred (100) days after the end of each fiscal year of the Guarantor,
the audited Consolidated balance sheet of the Guarantor and its Subsidiaries at
the end of such year, and the related audited Consolidated statements of
income, changes in shareholder's equity and cash flows for such year, each
setting forth in comparative form the figures for the previous fiscal year and
all such statements to be in reasonable detail, prepared in accordance with
generally accepted accounting principles, and accompanied by an auditor's
report prepared without qualification by Deloitte & Touche, or by another "Big
Six" accounting firm, the Form 10-K filed with the SEC (unless the SEC has
approved an extension, in which event the Guarantor will deliver to the Agent
and each of the Banks a copy of the Form 10-K simultaneously with delivery to
the SEC), a statement of the Borrower's taxable net income for the prior fiscal
year, and any other information the Banks may need to complete a financial
analysis of the Guarantor and its Subsidiaries;
(b) as soon as practicable, but in any event not later
than fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower and Guarantor, respectively, copies of the unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries and the
Guarantor and its Subsidiaries, respectively, as at the end of such quarter,
and the related unaudited Consolidated statements of income, changes in
shareholder's equity and cash flows for the portion of the Borrower's and the
Guarantor's, respectively, fiscal year then elapsed, and a statement showing
the aging of the receivables and payables for the Mortgaged Properties, all in
reasonable detail and prepared in accordance with generally accepted accounting
principles (which, as to the Guarantor, may be provided by inclusion in the
Form 10-Q of the Guarantor for such period provided pursuant to subsection (c)
below), together with a certification by the principal financial or accounting
officer of the Borrower and the Guarantor, respectively, that the information
contained in such financial statements fairly presents the financial position
of such Person and its Subsidiaries on the date thereof (subject to year-end
adjustments); 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 Guarantor;
-56-
63
(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 Guarantor in each year, copies of Form 10-Q filed with the SEC
(unless the SEC has approved an extension in which event the Guarantor will
deliver such copies of the Form 10-Q to the Agent and each of the Banks
simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later
than fifty-five (55) days after the end of the first three (3) fiscal quarters
of the Borrower, copies of 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 and each of the
Mortgaged Properties, prepared on a basis consistent with the statement
furnished pursuant to Section 6.4(c) together with a certification by the chief
financial or chief accounting officer of the general partner of the Borrower,
that the information contained in such statement fairly presents the Operating
Cash Flow of the Borrower and its Subsidiaries and the Mortgaged Properties for
such period;
(e) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement (a
"Compliance Certificate") certified by the principal financial or accounting
officer of the general partner of the Borrower in the form of Exhibit C hereto
(or in such other form as the Agent may approve from time to time) setting
forth in reasonable detail computations evidencing compliance with the
covenants contained in Section 9 and the other covenants described therein, and
(if applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
(f) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the SEC or sent to the
stockholders of the Guarantor or the partners of the Borrower;
(g) as soon as practicable but in any event not later
than fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower, an updated Rent Roll aggregating information for the
Mortgaged Properties and operating statements and tenant sales reports with
respect to the Mortgaged Properties with respect to such fiscal quarter, such
statements and reports to be in form reasonably satisfactory to the Agent;
(h) as soon as practicable but in any event not later
than one hundred (100) days after the end of the fourth fiscal quarter of the
Borrower, an updated Rent Roll aggregating information for the Mortgaged
Properties and rolling four (4) quarter operating statements and tenant sales
reports with respect to the Mortgaged Properties, such statements and reports
to be in form reasonably satisfactory to the Agent;
(i) 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 $10,000,000.00 by the Borrower or any of its Subsidiaries
(which for the purposes of this Section 7.4(h) shall include the Investments
described in
-57-
64
Section 8.3(i), provided that with respect to the Investments described in
Section 8.3(i), the following items shall be provided to the extent reasonably
available to the Borrower or its Subsidiaries): (i) the closing statement
relating to such acquisition, (ii) a description of the property acquired,
(iii) a certificate from the chief financial or accounting officer of the
Borrower stating that (A) an environmental site assessment has been prepared by
an Environmental Engineer and such assessment contains no material
qualifications with respect to such Real Estate and (B) a statement of
condition of such Real Estate has been prepared by a construction engineer and
such statement contains no material qualifications, and (iv) a historical
operating statement of such Real Estate for such period as may be available to
the Borrower and a current rent roll for such Real Estate;
(j) promptly after they are filed with the Internal
Revenue Service, copies of all annual federal income tax returns and amendments
thereto of the Borrower and the Guarantor;
(k) promptly upon completion, copies of such market
studies relating to the Mortgaged Property and the other Eligible Real Estate
as are from time to time prepared by or on behalf of the Borrower or its
Subsidiaries;
(l) 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;
(m) 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 and its Subsidiaries (or in which the Borrower or
its Subsidiaries owns an interest) and stating the location thereof, the date
acquired and the acquisition cost, (ii) listing the Indebtedness of the
Borrower and its Subsidiaries (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 and its Subsidiaries which are under "development"
(as used in Section 8.9) and providing a brief summary of the status of such
development;
(n) 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;
(o) 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
-58-
65
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, that 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 Guarantor);
(p) within five (5) days of the funding of any amount
pursuant to the Stock Purchase Commitment, notice of such funding and the
amount thereof;
(q) as soon as practicable, but in any event not later
than two (2) Business Days after the Borrower or the Guarantor acquires
knowledge of the same, (i) written notice that any Stock Purchase Buyer has
notified the Borrower or the Guarantor of a refusal to fund an amount pursuant
to the Stock Purchase Commitment, or notice of its intention to so refuse to
make an advance, (ii) a claim by any Stock Purchase Buyer of an event of
default or default by the Borrower or the Guarantor under the Stock Purchase
Commitment, or (iii) the occurrence of any of the events described in Section
12.1(g), (h) or (i) with respect to any Stock Purchase Buyer; and
(r) from time to time such other financial data and
information in the possession of the Borrower, the Guarantor or their
respective Subsidiaries (including without limitation auditors' management
letters, property inspection and environmental reports and information as to
zoning and other legal and regulatory changes affecting the Borrower or the
Guarantor) as the Agent may reasonably request.
U7.5.Notices
(a) Defaults. The Borrower will promptly notify the
Agent in writing of the occurrence of any Default or Event of Default. If any
Person shall give any notice or take any other action in respect of a claimed
default (whether or not constituting an Event of Default) under this Agreement
or under any note, evidence of indebtedness, indenture or other obligation to
which or with respect to which the Borrower, the Guarantor or any of their
respective Subsidiaries is a party or obligor, whether as principal or surety,
and such default would permit the holder of such note or obligation or other
evidence of indebtedness to accelerate the maturity thereof, which acceleration
would have a material adverse effect on the Borrower or the Guarantor, 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 the Mortgaged
Property; (ii) of any violation of any Environmental Law that the Borrower or
any of its Subsidiaries reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any oral report is
made) to any federal, state or local environmental agency; and (iii) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of
-59-
66
potential environmental liability, of any federal, state or local environmental
agency or board, that in either case involves the Mortgaged Property or has the
potential to materially affect the assets, liabilities, financial conditions or
operations of the Borrower or any Subsidiary or the Agent's liens on the
Collateral pursuant to the Security Documents.
(c) Notification of Claims Against Collateral. The
Borrower will, immediately upon becoming aware thereof, notify the Agent in
writing of any setoff, claims (including, with respect to any Mortgaged
Property, environmental claims), withholdings or other defenses to which any of
the Collateral, or the rights of the Agent or the Banks with respect to the
Collateral, are subject.
(d) Notice of Litigation and Judgments. The Borrower
will give notice to the Agent in writing within fifteen (15) days of becoming
aware of any litigation or proceedings threatened in writing or any pending
litigation and proceedings affecting the Borrower, the Guarantor or any of
their respective Subsidiaries or to which the Borrower, the Guarantor or any of
their respective Subsidiaries is or is to become a party involving an uninsured
claim against the Borrower, the Guarantor or any of their respective
Subsidiaries that could reasonably be expected to have a materially adverse
effect on the Borrower or the Guarantor and stating the nature and status of
such litigation or proceedings. The Borrower will give notice to the Agent, in
writing, in form and detail satisfactory to the Agent and each of the Banks,
within ten (10) days of any judgment not covered by insurance, whether final or
otherwise, against the Borrower, the Guarantor or any of their respective
Subsidiaries in an amount in excess of $100,000.
(e) Notice of Proposed Sales, Encumbrances, Refinance or
Transfer of Non-Mortgaged Property. The Borrower will give notice to the Agent
of any proposed or completed sale, encumbrance, refinance or transfer of any
Real Estate other than Mortgaged Property or other Investment described in
Section 8.3(i) of the Borrower, the Guarantor or their respective Subsidiaries
within any fiscal quarter of the Borrower, such notice to be submitted, in the
case of any such sale, encumbrance, refinance or transfer in an amount in
excess of $10,000,000.00, together with the Compliance Certificate provided or
required to be provided to the Banks under Section 7.4 with respect to such
fiscal quarter. The Compliance Certificate shall with respect to any proposed
or completed sale, encumbrance, refinance or transfer be adjusted in the best
good faith estimate of the Borrower to give effect to such sale, encumbrance,
refinance or transfer and demonstrate that no Default or Event of Default with
respect to the covenants referred to therein shall exist after giving effect to
such sale, encumbrance, refinance or transfer. Notwithstanding the foregoing,
in the event of any sale, encumbrance, refinance or transfer of any Real Estate
other than the Mortgaged Property or other Investment described in Section
8.3(i) of the Borrower, the Guarantor or their respective Subsidiaries, the
Borrower shall promptly give notice to the Agent of such transaction, which
notice shall be accompanied by a Compliance Certificate prepared using the
financial statements of the Borrower most recently provided or required to be
provided to the Banks under Section 6.4 or Section 7.4 adjusted as provided in
the preceding sentence.
(f) New Leases. The Borrower and each Approved
Subsidiary will give notice to the Agent of any proposed new Lease at any
Mortgaged Property for the lease of space therein
-60-
67
of more than 7500 square feet and shall provide to the Agent a copy of the
proposed lease and any and all agreements or documents related thereto, current
financial information for the proposed tenant and any guarantor of the proposed
lease and such other information as the Agent may request. The Agent shall be
deemed to have consented to such new Lease if the Agent has not within ten (10)
Business Days of the receipt by the Agent of the initial notification from the
Borrower or the Approved Subsidiary notified the Borrower or the Approved
Subsidiary of either the Agent's refusal to consent thereto or the Agent's need
for further information in connection with such proposed new Lease.
(g) Notification of Banks. Promptly after receiving any
notice under this Section 7.5, the Agent will forward a copy thereof to each of
the Banks, together with copies of any certificates or other written
information that accompanied such notice.
U7.6.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 Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a Massachusetts business trust; provided, however, that Guarantor may become a
Maryland real estate investment trust pursuant to the terms of Section 8.4(b),
and if Guarantor does become a Maryland real estate investment trust pursuant
to the terms of Section 8.4(b), Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a Maryland real estate investment trust. The Borrower and the Guarantor will
cause each of their respective Subsidiaries to do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence. The Borrower shall continue to own directly or indirectly one
hundred percent (100%) of the Voting Interests and economic interests in the
REMIC Subsidiary, subject to any approval rights of any independent director
appointed in order for the REMIC Subsidiary to be considered as a "bankruptcy
remote" entity. The Borrower and the Guarantor will do or cause to be done all
things necessary to preserve and keep in full force all of their respective
rights and franchises and those of their Subsidiaries. The Borrower will, and
will cause each of its Subsidiaries to, continue to engage primarily in the
businesses now conducted by it and in related businesses.
(b) The Borrower (i) will cause all of its properties and
those of its 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 would have a material adverse effect on the
condition of the applicable Mortgaged Property or on the financial condition,
assets or operations of the Borrower and its Subsidiaries.
-61-
68
U7.7.Insurance
(a) The Borrower will, at its expense, procure and
maintain for the benefit of the Borrower and the Agent, insurance policies
issued by such insurance companies, in such amounts, in such form and
substance, and with such coverages, endorsements, deductibles and expiration
dates as are acceptable to the Majority Banks, providing the following types of
insurance covering the Mortgaged Property:
(i) "All Risks" property insurance
(including broad form flood, broad form earthquake and
comprehensive boiler and machinery coverages) on each Building
and the contents therein of the Borrower and its Subsidiaries
in an amount not less than one hundred percent (100%) of the
full replacement cost of each Building and the contents
therein of the Borrower and its Subsidiaries or such other
amount as the Agent may approve, with deductibles not to
exceed $10,000 for any one occurrence, with a replacement cost
coverage endorsement, an agreed amount endorsement, and, if
requested by the Majority Banks, a contingent liability from
operation of building laws endorsement in such amounts as the
Majority Banks may require. Full replacement cost as used
herein means the cost of replacing the Building (exclusive of
the cost of excavations, foundations and footings below the
lowest basement floor) and the contents therein of the
Borrower and its Subsidiaries without deduction for physical
depreciation thereof;
(ii) During the course of construction or
repair of any Building, the insurance required by clause (i)
above shall be written on a builders risk, completed value,
non-reporting form, meeting all of the terms required by
clause (i) above, covering the total value of work performed,
materials, equipment, machinery and supplies furnished,
existing structures, and temporary structures being erected on
or near the Real Estate, including coverage against collapse
and damage during transit or while being stored off-site, and
containing a soft costs (including loss of rents) coverage
endorsement and a permission to occupy endorsement;
(iii) Flood insurance if at any time any
Building is located in any federally designated "special
hazard area" (including any area having special flood,
mudslide and/or flood-related erosion hazards, and shown on a
Flood Hazard Boundary Map or a Flood Insurance Rate Map
published by the Federal Emergency Management Agency as Zone
A, AO, Al-30, AE, A99, AH, VO, V1-30, VE, V, M or E) and the
broad form flood coverage required by clause (i) above is not
available, in an amount equal to the full replacement cost or
the maximum amount then available under the National Flood
Insurance Program;
(iv) Rent loss insurance in an amount
sufficient to recover at least the total estimated gross
receipts from all sources of income, including
-62-
69
without limitation, rental income, for the Real Estate for a
twelve (12) month period;
(v) Commercial general liability
insurance against claims for personal injury (to include,
without limitation, bodily injury and personal and advertising
injury) and property damage liability, all on an occurrence
basis, if commercially available, with such coverages as the
Majority Banks may reasonably request (including, without
limitation, contractual liability coverage, completed
operations coverage for a period of two (2) years following
completion of construction of any improvements on the Real
Estate, and coverages equivalent to an ISO broad form
endorsement), with a general aggregate limit of not less than
$1,000,000, a completed operations aggregate limit of not less
than $1,000,000, and a combined single "per occurrence" limit
of not less than $1,000,000 for bodily injury, property damage
and medical payments;
(vi) During the course of construction or
repair of any improvements on the Real Estate, owner's
contingent or protective liability insurance covering claims
not covered by or under the terms or provisions of the
insurance required by clause (v) above;
(vii) Employer's liability insurance with
respect to the Borrower's employees;
(viii) Umbrella liability insurance with
limits of not less than $10,000,000 to be in excess of the
limits of the insurance required by clauses (v), (vi) and
(vii) above, with coverage at least as broad as the primary
coverages of the insurance required by clauses (v), (vi) and
(vii) above, with any excess liability insurance to be at
least as broad as the coverages of the lead umbrella policy.
All such policies shall be endorsed to provide defense
coverage obligations;
(ix) Workers' compensation insurance for
all employees of the Borrower or its Subsidiaries engaged on
or with respect to the Real Estate; and
(x) Such other insurance in such form
and in such amounts as may from time to time be reasonably
required by the Majority Banks against other insurable hazards
and casualties which at the time are commonly insured against
in the case of properties of similar character and location to
the Real Estate.
The Borrower shall pay all premiums on insurance policies. The
insurance policies with respect to all Mortgaged Property provided for in
clauses (v), (vi) and (viii) above shall name the Agent and each Bank as an
additional insured and shall contain a cross liability/severability
endorsement. The insurance policies provided for in clauses (i), (ii), (iii)
and (iv) above shall name the Agent as mortgagee and loss payee, shall be first
payable in case of loss to the Agent, and shall contain mortgage clauses and
lender's loss payable endorsements in form and substance
-63-
70
acceptable to the Agent. The Borrower shall deliver duplicate originals or
certified copies of all such policies to the Agent, and the Borrower shall
promptly furnish to the Agent all renewal notices and evidence that all
premiums or portions thereof then due and payable have been paid. At least
thirty (30) days prior to the expiration date of the policies, the Borrower
shall deliver to the Banks evidence of continued coverage, including a
certificate of insurance, as may be satisfactory to the Agent.
(b) All policies of insurance required by this Agreement
shall contain clauses or endorsements to the effect that (i) no act or omission
of the Borrower or any Subsidiary or anyone acting for the Borrower or any
Subsidiary (including, without limitation, any representations made in the
procurement of such insurance), which might otherwise result in a forfeiture of
such insurance or any part thereof, no occupancy or use of the Real Estate for
purposes more hazardous then permitted by the terms of the policy, and no
foreclosure or any other change in title to the Real Estate or any part
thereof, shall affect the validity or enforceability of such insurance insofar
as the Agent is concerned, (ii) the insurer waives any right of set off,
counterclaim, subrogation, or any deduction in respect of any liability of the
Borrower or any Subsidiary and the Agent, (iii) such insurance is primary and
without right of contribution from any other insurance which may be available,
(iv) such policies shall not be modified, canceled or terminated prior to the
scheduled expiration date thereof without the insurer thereunder giving at
least thirty (30) days prior written notice to the Agent by certified or
registered mail, and (v) that the Agent or the Banks shall not be liable for
any premiums thereon or subject to any assessments thereunder, and shall in all
events be in amounts sufficient to avoid any coinsurance liability.
(c) The insurance required by this Agreement may be
effected through a blanket policy or policies covering additional locations and
property of the Borrower and other Persons not included in the Mortgage
Property, provided that such blanket policy or policies comply with all of the
terms and provisions of this Section 7.7 and contain endorsements or clauses
assuring that any claim recovery will not be less than that which a separate
policy would provide, including, without limitation, a priority claim provision
with respect to property insurance and an aggregate limits of insurance
endorsement in the case of liability insurance.
(d) All policies of insurance required by this Agreement
shall be issued by companies licensed to do business in the State where the
policy is issued and also in the states where the Real Estate is located and
having a rating in Best's Key Rating Guide of at least "A" and a financial size
category of at least "VIII."
(e) Neither the Borrower nor any Subsidiary shall carry
separate insurance, concurrent in kind or form or contributing in the event of
loss, with any insurance required under this Agreement unless such insurance
complies with the terms and provisions of this Section 7.7.
(f) In the event of any loss or damage to the Mortgaged
Property in excess of $50,000, the Borrower shall give immediate written notice
to the insurance carrier and the Agent, and the Agent shall furnish a copy of
such notice promptly to each of the Banks. The Borrower
-64-
71
may make proof of loss and adjust and compromise any claim under insurance
policies which is of an amount not more than $500,000.00 so long as no Event of
Default has occurred and is continuing and so long as the Borrower shall in
good faith diligently pursue such claim. The Borrower hereby irrevocably
authorizes and empowers the Agent, at the Agent's option in the Agent's sole
discretion or at the request of the Majority Banks in their sole discretion, as
attorney in fact for the Borrower, except as provided in the preceding
sentence, to make proof of any loss, to adjust and compromise any claim under
insurance policies, to appear in and prosecute any action arising from such
insurance policies, to collect and receive insurance proceeds, and to deduct
therefrom the Agent's expenses incurred in the collection of such proceeds,
provided that the Agent agrees to consult with the Borrower prior to taking
such action. If the Mortgaged Property is acquired by the Agent or any nominee
through foreclosure, deed in lieu of foreclosure or otherwise is acquired from
the Borrower, all right, title and interest of the Borrower in and to any
insurance policies and unearned premiums thereon and in and to the proceeds
thereof resulting from loss or damage to the Mortgaged Property prior to such
sale or acquisition shall pass to the Agent or any other successor in interest
to the Borrower or purchaser or grantee of the Mortgaged Property.
(g) Subject to the terms of the following sentence, the
Borrower authorizes the Agent, at the Agent's option or at the request of the
Majority Banks in their sole discretion,(i) to apply the balance of such
proceeds to the payment of the Obligations of the Borrower whether or not then
due, or (ii) if the Agent or the Majority Bank shall require the reconstruction
or repair of the Mortgaged Property, to hold the balance of such proceeds to be
used to pay all taxes, charges, sewer use fees, water rates and assessments
which may be imposed upon the Mortgaged Property and the Obligations of the
Borrower as they become due during the course of reconstruction or repair of
the Mortgaged Property and to reimburse the Borrower, in accordance with such
terms and conditions as Agent may prescribe, for the cost of such
reconstruction or repair of the Mortgaged Property, and on completion of such
reconstruction or repair to apply any of the excess to the payment of the
Obligations of the Borrower. Notwithstanding the foregoing, the Agent shall
make such net proceeds available to the Borrower to reconstruct and repair the
Mortgaged Property, in accordance with such terms and conditions as the Agent
may prescribe for the disbursement of such proceeds to assure completion of
such reconstruction or repair provided that (x) no Default or Event of Default
shall have occurred and be continuing, (y) the Borrower shall have provided to
the Agent additional cash security in an amount equal to the amount reasonably
estimated by the Agent to be the amount in excess of such proceeds which will
be required to complete such repair or restoration, and (z) the Agent shall
determine that such repair or reconstruction can be completed prior to the
Maturity Date.
(h) The Borrower will, at its expense, procure and
maintain insurance covering the Borrower and the Real Estate other than the
Mortgaged Property 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.
-65-
72
(i) The Borrower shall provide to the Agent for the
benefit of the Banks Title Policies for all of the Mortgaged Properties of the
Borrower which shall at all times be in an aggregate amount of not less than
the total Commitments for the Borrower at the time in effect. Each Title
Policy shall also contain, to the extent available, a tie-in endorsement
aggregating the insurance coverage provided under all of the policies relating
to the Borrower with tie-in endorsements.
U7.8.TaxesThe Borrower and each Subsidiary 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
Mortgaged Property and the other Real Estate, sales and activities, or any part
thereof, or upon the income or profits therefrom as well as all claims for
labor, materials, or supplies that if unpaid might by law become a lien or
charge upon any of its property; provided that any such tax, assessment,
charge, levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if the
Borrower 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 and each Subsidiary of the Borrower either (i)
will provide a bond issued by a surety reasonably acceptable to the Agent and
sufficient to stay all such proceedings or (ii) if no such bond is provided,
will pay each such tax, assessment, charge, levy or claim.
U7.9.Inspection of Properties and BooksThe Borrower shall permit the Banks,
through the Agent or any representative designated by the Agent, at the
Borrower's expense to visit and inspect any of the properties of the Borrower
or any of its Subsidiaries, to examine the books of account of the Borrower and
its Subsidiaries (and to make copies thereof and extracts therefrom) and to
discuss the affairs, finances and accounts of the Borrower and its Subsidiaries
with, and to be advised as to the same by, its officers, all at such reasonable
times and intervals as the Agent or any Bank may reasonably request, provided
that so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower shall not be required to pay for such visits and
inspections more often than once in any twelve (12) month period. The Banks
shall use good faith efforts to coordinate such visits and inspections so as to
minimize the interference with and disruption to the Borrower's normal business
operations.
U7.10.Compliance with Laws, Contracts, Licenses, and PermitsThe Borrower will
comply with, and will cause each of its 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 participate in
Letters of Credit hereunder, any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of
-66-
73
any government shall become necessary or required in order that the Borrower
may fulfill any of its obligations hereunder, the Borrower will immediately
take or cause to be taken all steps necessary to obtain such authorization,
consent, approval, permit or license and furnish the Agent and the Banks with
evidence thereof.
U7.11.Use of ProceedsThe Borrower will use the proceeds of the Loans and the
Letters of Credit to the Borrower solely to provide short-term financing (a)
for the acquisition of fee interests by the Borrower in Real Estate which is
utilized principally for shopping centers, (b) for Capital Improvement
Projects, (c) subject to the restrictions set forth in Section 8.9 for
development of new shopping centers, the acquisition of undeveloped Real
Estate, (d) for general corporate purposes including working capital, (e) to
repay outstanding Indebtedness, and (f) for such other purposes as the Majority
Banks in their discretion from time to time may agree to in writing.
U7.12.Further AssurancesEach of the Borrower and the Guarantor will cooperate
with, and will cause each of its Subsidiaries to cooperate with the Agent and
the Banks and execute such further instruments and documents as the Banks or
the Agent shall reasonably request to carry out to their satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
U7.13.ComplianceThe Borrower shall operate its business, and shall cause each
of its Subsidiaries to operate its business, in compliance with the terms and
conditions of this Agreement and the other Loan Documents. The Guarantor shall
at all times comply with all requirements of applicable laws necessary to
maintain REIT Status and shall operate its business in compliance with the
terms and conditions of this Agreement and the other Loan Documents.
U7.14.ManagementThere shall not occur, without the prior written consent of
the Majority Banks, which consent shall not be unreasonably withheld, any
material change in management of the Mortgaged Properties (including, without
limitation, the hiring of third party managers), provided that so long as the
Mortgaged Properties are managed by the Borrower, a change in the internal
management personnel of the Borrower shall not be deemed a material change in
management.
U7.15.Interest CollarFrom and after the date of this Agreement, the Borrower
shall at all times maintain in full force and effect the Interest Collar. The
Borrower shall upon the request of the Agent provide to the Agent evidence that
the Interest Collar is in effect.
U7.16.Ownership of Real EstateWithout the prior written consent of the
Majority Banks, which consent may be withheld by the Majority Banks in their
sole discretion, all interests (whether direct or indirect) of the Borrower or
the Guarantor in real estate assets acquired after the date hereof shall be
owned directly by the Borrower; provided, however, that the Initial REMIC
Properties may be owned by the REMIC Subsidiary; and provided further, however,
that the Initial REMIC Properties shall be conveyed by the REMIC Subsidiary to
the Borrower (and the Borrower shall assume the obligations under the Security
Documents with respect to such Initial REMIC Properties and shall enter into
such amendments and modifications thereof as the Agent in its sole discretion
may require to reflect the ownership by the Borrower, the assumption by the
-67-
74
Borrower of the obligations thereunder and matters related thereto or arising
therefrom) if the REMIC Transaction is not consummated within sixty (60) days
of the date of this Agreement.
U7.17.More Restrictive AgreementsShould the Borrower, the Guarantor or any of
their respective Subsidiaries enter into or modify any agreements or documents
pertaining to any existing or future Indebtedness, Debt Offering or Equity
Offering, which agreements or documents include covenants, whether affirmative
or negative (or any other provision which may have the same practical effect as
any of the foregoing), which are individually or in the aggregate more
restrictive against the Borrower, the Guarantor or their respective
Subsidiaries than those set forth in Section 8 and Section 9 of this Agreement,
the Guaranty or the REMIC Subsidiary Guaranty (Revolver), the Borrower shall
promptly notify the Agent and, if requested by the Majority Banks, the
Borrower, the Agent, and the Majority Banks shall promptly amend this Agreement
and the other Loan Documents to include some or all of such more restrictive
provisions as determined by the Majority Banks in their sole discretion. Each
of the Borrower and Guarantor agree to deliver to the Agent copies of any
agreements or documents (or modifications thereof) pertaining to existing or
future Indebtedness, Debt Offering or Equity Offering of the Borrower, the
Guarantor or any of their respective Subsidiaries as the Agent from time to
time may request. Notwithstanding the foregoing, this Section 7.17 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.
U8.CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER The
Borrower and the Guarantor, jointly and severally, covenant and agree that, so
long as any Loan, Letter of Credit or Note is outstanding or any of the Banks
has any obligation to make any Loans or to participate in any Letters of
Credit:
U8.1.Restrictions on IndebtednessThe Guarantor 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
Collar;
(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;
-68-
75
(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 that
have been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the Borrower
shall at the time in good faith be prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been obtained
pending such appeal or review;
(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, Non-recourse
Indebtedness of the Borrower or any of its Subsidiaries, provided that neither
the Borrower nor any of its Subsidiaries shall incur any Non-recourse
Indebtedness unless the Borrower shall have provided to the Banks a statement
that no Default or Event of Default exists and a Compliance Certificate
demonstrating that the Borrower will be in compliance with the covenants
referred to therein after giving effect to such incurrence, and environmental
indemnities and customary exceptions to exculpatory language shall be permitted
in any such Non-recourse Indebtedness;
(g) Indebtedness in respect of reverse repurchase
agreements having a term of not more than 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 in an
aggregate outstanding principal amount (excluding the Obligations and
Indebtedness (not to exceed $45,000,000.00) arising under the Unsecured Term
Loan Agreement), not exceeding $2,500,000.00; provided that neither the
Borrower nor any of its Subsidiaries shall incur any recourse Indebtedness
described in this Section 8.1(h) unless the Borrower shall have provided to the
Banks a statement that no Default or Event of Default exists and a Compliance
Certificate demonstrating that the Borrower will be in compliance with the
covenants referred to therein after giving effect to such incurrence;
(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 $1,000,000.00;
(j) subject to the provisions of Section 9, recourse debt
to obtain a construction loan or loans in an aggregate amount not exceeding
$50,000,000.00;
(k) Indebtedness (not to exceed $45,000,000.00) arising
under the Unsecured Term Loan Agreement; provided, however, that Indebtedness
permitted under this Section 8.1(k) shall not include any Indebtedness arising
out of or related to any refinancing or purported refinancing of such
Indebtedness under the Unsecured Term Loan Agreement; and
-69-
76
(l) recourse Indebtedness existing on the date of this
Agreement and listed and described on Schedule 8.1 hereto; provided, however,
that Indebtedness permitted under this Section 8.1(l) shall not include any
Indebtedness arising out of or related to any refinancing or purported
refinancing of such existing recourse Indebtedness.
U8.2.Restrictions on Liens EtcNeither the Guarantor nor the Borrower will,
nor will either of them permit any of its 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 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; or (e) sell, assign,
pledge or otherwise transfer any accounts, contract rights, general
intangibles, chattel paper or instruments, with or without recourse; provided
that the Borrower, the Guarantor and any Subsidiary of either 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 Guarantor on all or part of the assets of Subsidiaries of
such Person (other than Collateral) securing Indebtedness
owing by Subsidiaries of such Person to such Person;
(ii) liens on properties to secure taxes,
assessments and other governmental charges or claims for
labor, material or supplies in respect of obligations not
overdue;
(iii) deposits or pledges made in
connection with, or to secure payment of, workers'
compensation, unemployment insurance, old age pensions or
other social security obligations;
(iv) liens on properties other than the
Mortgaged Property or any interest therein (including the
rents, issues and profits therefrom) in respect of judgments,
awards or indebtedness, the Indebtedness with respect to which
is permitted by Section 8.1(d) or Section 8.1(f).
(v) encumbrances on properties other
than the Mortgaged Property consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the
Borrower, the Guarantor or a Subsidiary of such Person is a
party, and other minor liens or encumbrances none of which
-70-
77
interferes materially with the use of the property affected in
the ordinary conduct of the business of the Borrower, the
Guarantor or their Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse
effect on the business of the Borrower or the Guarantor
individually or of such Person and its Subsidiaries on a
Consolidated basis;
(vi) liens on the specific personal
property (other than Collateral) acquired by Indebtedness
permitted under Section 8.1(i);
(vii) liens in favor of the Agent and the
Banks under the Loan Documents;
(viii) liens and encumbrances on a
Mortgaged Property expressly permitted under the terms of the
Security Deed relating thereto;
(ix) liens and encumbrances on Real
Estate (other than a Mortgaged Property) that is the subject
of a construction loan permitted under the terms of Section
8.1(j); and
(x) the liens described on Schedule 8.2
hereto with respect to Indebtedness permitted under Section
8.1(l).
U8.3.Restrictions on InvestmentsNeither the Borrower nor the Guarantor 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, 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
-71-
78
Corporation at not less than "P 1" if then rated by Moody's Investors Service,
Inc., and not less than "A1", 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
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) Investments in Subsidiaries of the Borrower or the
Guarantor, but only with the consent of the Majority Banks; provided, however,
that, subject to the obligation of the REMIC Subsidiary to convey the Initial
REMIC Properties to the Borrower in accordance with the provisions of Section
7.15, the REMIC Subsidiary may be formed and an Investment made therein in the
form of the transfer of the Initial REMIC Properties to the REMIC Subsidiary
upon acquisition of the Initial REMIC Properties and the transfer of the
Additional REMIC Properties to the REMIC Subsidiary in accordance with Section
8.8(b) and a cash Investment not to exceed $10,000,000.00; provided further,
however, that no additional Investments in the REMIC Subsidiary may be made
without the consent of the Majority Banks;
(i) Investments in Real Estate permitted under
Section 7.11;
(j) 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(j)
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(m); and
(k) Investments in Affiliates of the Borrower, which
Affiliates are engaged in development activity pursuant to Section 8.9, the
accounts of which Affiliate are not consolidated with the accounts of Borrower
and Investments in mortgages and notes receivables from such Affiliates,
provided that in no event shall such Investments (including the principal
amount payable pursuant to such notes) exceed fifteen percent (15%) of the
Borrower's Consolidated
-72-
79
Total Adjusted Asset Value (provided that for purposes of this Section 8.3(k),
the Borrower's Consolidated Total Adjusted Asset Value shall not include the
amount of the Stock Purchase Commitment Allowance). For the purposes hereof,
notes receivable from Affiliates shall be valued at face value (subject to
reduction as a result of payments thereon).
U8.4.Merger, Consolidation
(a) Neither the Borrower nor the Guarantor will, nor will
either of them permit any of its Subsidiaries to, become a party to any merger
or consolidation except (i) the merger or consolidation of one or more of the
Subsidiaries of the Borrower with and into the Borrower, (ii) the merger or
consolidation of two or more Subsidiaries of the Borrower or (iii) the merger
of Guarantor in accordance with the provisions of Section 8.4(b).
(b) The Borrower has advised the Agent and the Banks that
Guarantor may reincorporate under Maryland law as a Maryland real estate
investment trust. Such reincorporation shall be accomplished through a merger
of Guarantor into a newly created Maryland real estate investment trust (the
"Maryland REIT") created solely for the purpose of effectuating such merger.
Notwithstanding any other provision of this Agreement or the other Loan
Documents to the contrary, the Banks shall consent to such merger provided that
(i) the Agent receives such evidence as the Agent may reasonably require that
all representations, warranties and covenants (other than representations
relating to the organization of Guarantor as of the date hereof) of or
concerning the Borrower and the Guarantor in this Agreement or the Guaranty are
and shall remain true and correct following such merger; (ii) the Agent
receives and approves (such approval not to be unreasonably withheld) certified
copies of the chartering documents of the Maryland REIT and the merger
documents and evidence that the Maryland REIT shall assume all assets and
liabilities (including, without limitation, all liabilities of Guarantor under
the Loan Documents) of Guarantor; (iii) the Maryland REIT executes and
delivers to Agent a new Guaranty in the form of the Guaranty, with such changes
thereto as the Agent may reasonably require; (iv) such merger shall not cause
or result in a dissolution of Borrower; (v) the Agent receives such evidence as
the Agent may require that the Guarantor has received all necessary consents or
authorizations for such merger including, without limitation, shareholder and
governmental consents; (vii) the Agent receives such evidence as the Agent may
require that all necessary filings with governmental authorities with respect
to such merger have been made; (vii) such merger shall not cause a Default or
Event of Default; and (viii) the Agent receives such opinions of counsel to the
Maryland REIT as may be reasonably required by the Agent. From and after the
merger of Guarantor into the Maryland REIT, the Maryland REIT shall be the
Guarantor for all purposes of this Agreement and the other Loan Documents.
U8.5.Conduct of BusinessNeither the Borrower nor the Guarantor will conduct
any of its business operations other than through the Borrower and its
Subsidiaries; provided, however, that subject to Section 8.9, development
activities may be conducted through Affiliates of the Borrower. No
reorganizations, spin-offs or new business lines shall be established or occur
without the prior written consent of the Majority Banks.
-73-
80
U8.6.Compliance with Environmental LawsNeither the Borrower nor the Guarantor
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 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 full
compliance with Environmental Laws, (c) generate any Hazardous Substances on
any of the Real Estate except in full 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
which might give rise to liability under CERCLA or any other Environmental Law,
or (e) directly or indirectly transport or arrange for the transport of any
Hazardous Substances (except in compliance with all Environmental Laws).
The Borrower shall:
(i) in the event of any change in
Environmental Laws governing the assessment, release or
removal of Hazardous Substances, which change would lead a
prudent lender to require additional testing to avail itself
of any statutory insurance or limited liability, take all
action (including, without limitation, the conducting of
engineering tests at the sole expense of the Borrower) to
confirm that no Hazardous Substances are or ever were Released
or disposed of on the Mortgaged Property; and
(ii) if any Release or disposal of
Hazardous Substances shall occur or shall have occurred on the
Mortgaged Property (including without limitation any such
Release or disposal occurring prior to the acquisition of such
Mortgaged Property by the Borrower), cause the prompt
containment and removal of such Hazardous Substances and
remediation of the Mortgaged Property in full compliance with
all applicable laws and regulations and to the satisfaction of
the Majority Banks; provided, that the Borrower shall be
deemed to be in compliance with Environmental Laws for the
purpose of this clause (ii) so long as it or a responsible
third party with sufficient financial resources is taking
reasonable action to remediate or manage any event of
noncompliance to the satisfaction of the Majority Banks and no
action shall have been commenced by any enforcement agency.
The Majority Banks may engage their own Environmental Engineer
to review the environmental assessments and the Borrower's
compliance with the covenants contained herein.
At any time after an Event of Default shall have occurred hereunder,
or, whether or not an Event of Default shall have occurred, at any time that
the Agent or the Majority Banks shall have reasonable grounds to believe that a
Release or threatened Release of Hazardous Substances may have occurred,
relating to any Mortgaged Property, or that any of the Mortgaged Properties
-74-
81
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 Mortgaged 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 Mortgaged Property and (ii) whether the use and operation of
such Mortgaged Property comply with all Environmental Laws. Environmental
assessments may include detailed visual inspections of such Mortgaged 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 Mortgaged 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.
U8.7.DistributionsNeither the Borrower nor the Guarantor shall make any
Distributions which would cause it to violate any of the following covenants:
(a) The Borrower shall not pay any Distribution to its
partners if such Distribution is in excess of the amount which, when added to
the amount of all other Distributions paid in the 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. Notwithstanding the
foregoing, the Borrower may pay a Distribution to its partners of sums received
by it pursuant to the Tax Agreement dated as of May 10, 1996 between Atlantic
Realty Trust and RPS Realty Trust;
(b) In the event that an Event of Default shall have
occurred and be continuing, neither the Borrower nor the Guarantor shall make
any Distributions by the Borrower to the Guarantor and by the Guarantor other
than the minimum Distributions required under the Code to maintain the REIT
Status of the Guarantor, as evidenced by a certification of the principal
financial or accounting officer of the Guarantor containing calculations in
reasonable detail satisfactory in form and substance to Agent; 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 Guarantor shall make any
Distributions whatsoever, directly or indirectly.
U8.8.Asset Sales
(a) Except as provided in Section 8.8(b), neither the
Borrower nor any Approved Subsidiary shall sell, transfer or otherwise dispose
of any Mortgaged Property without the prior consent of the Majority Banks.
Neither the Borrower, the Guarantor nor any Subsidiary thereof shall sell,
transfer or otherwise dispose of any Real Estate (other than a Mortgaged
Property) having an Appraised Value in excess of $10,000,000.00 (except as the
result of a condemnation or casualty and except for the granting of Permitted
Liens) unless there shall have been delivered
-75-
82
to the Banks 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.
(b) The Additional REMIC Properties may be transferred to
the REMIC Subsidiary and in connection therewith the Agent shall release the
REMIC Properties from the Security Documents and shall mark the REMIC
Subsidiary Guaranty (Revolver) and the Indemnity Agreement executed by the
REMIC Subsidiary as canceled and return them to the REMIC Subsidiary (and
thereupon, the REMIC Subsidiary, the Borrower and the Guarantor may terminate
the Contribution Agreement (Revolver)) upon satisfaction of the following
conditions (such transfer of the Additional REMIC Properties and release of the
REMIC Properties from the Security Documents being referred to herein as the
"REMIC Transaction"):
(ii) the transfer of the Additional REMIC
Properties occurs contemporaneously with the encumbering of
the REMIC Properties by mortgages, deeds of trust or similar
instruments substantially in accordance with the terms of the
proposed transaction described in that certain Loan Commitment
dated October 13, 1997, from Morgan Stanley Mortgage Capital,
Inc. to Borrower, a true copy of which has been delivered to
the Agent;
(ii) no Default or Event of Default has occurred
and is continuing at the time of the proposed transfer of the
Additional REMIC Properties or the proposed release of the
REMIC Properties from the Security Documents, and no Default
or Event of Default will occur as a result of such transfer of
the Additional REMIC Properties or the release of the REMIC
Properties;
(ii) the Borrower shall have delivered to the
Agent not less than ten (10) days' prior written notice of the
proposed transfer of the Additional REMIC Properties, and the
transfer of the Additional REMIC Properties occurs within
sixty (60) days of the date of this Agreement;
(ii) the Borrower shall make such payments on the
Loans in immediately available funds such that the Outstanding
Loans and Letters of Credit Outstanding immediately after such
transfer of the Additional REMIC Properties and such release
of the REMIC Properties shall be (A) equal to or less than
$110,000,000.00, and (B) not in excess of the Borrowing Base;
(ii) the Borrower shall have delivered to the
Agent such documents as are in form and substance satisfactory
to the Agent to release the REMIC Properties from the Security
Documents and shall have paid all expenses of the Agent in
connection with the review thereof including, without
limitation, all fees and expenses of Agent's Special Counsel;
and
-76-
83
(ii) the Agent shall have received such other
documents as the Agent may request to evidence compliance with
the terms of this Section 8.8(b) and to ratify the Loan
Documents.
(c) Upon consummation of the REMIC Transaction, the
Commitment of each Bank shall be reduced in accordance with the separate
agreement of the Banks such that the Total Commitment shall be One Hundred Ten
Million and No/100 Dollars ($110,000,000.00). Upon such reduction of the Total
Commitment, the Agent is authorized unilaterally to amend Schedule 1 to reflect
such reduction in accordance with the separate agreement of the Banks and shall
deliver a copy of such amended Schedule 1 to the Borrower and the Banks.
U8.9.Development ActivityNeither the Borrower, the Guarantor 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 Guarantor or any of their respective Subsidiaries may engage, either
directly or, in the case of the Borrower, through any Affiliate of the
Borrower, an Investment in which is permitted under Section 8.3(k), in the
development of property to be used principally for retail shopping centers
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 Guarantor or such Subsidiary or through an Investment in an Affiliate
permitted under Section 8.3(k), 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 Affiliates, the cost of such developments shall be based upon
the Borrower's interest in such Subsidiaries or 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 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 Affiliate thereof), the Guarantor 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 Guarantor 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
Affiliate thereof), the Guarantor or either of its Subsidiaries has the
resources and expertise necessary to complete such project. Nothing herein
shall prohibit the Borrower, the Guarantor 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 Affiliate thereof), the Guarantor nor any Subsidiary shall
acquire or hold any number of undeveloped parcels of Real Estate which in the
aggregate exceed
-77-
84
five percent (5%) of the Consolidated Total Adjusted Asset Value of the
Borrower and the Guarantor 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 Affiliate thereof),
the Guarantor or any Subsidiary shall not be deemed to be an undeveloped parcel
of Real Estate for this purpose and options 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 Affiliate thereof), the Guarantor or any Subsidiary shall
be either (a) at least seventy percent (70%) pre-leased, including all anchors,
or under a purchase agreement 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,
Consolidated Total Adjusted Asset Value shall not include the amount of the
Stock Purchase Commitment Allowance.
U9.FINANCIAL COVENANTS OF THE GUARANTOR AND THE BORROWER The Borrower and
the Guarantor, 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 to participate in any Letters of Credit, each of them will
comply with the following:
U9.1.Borrowing BaseThe Borrower will not permit the Outstanding Loans and
Letters of Credit Outstanding as of the date of determination to be greater
than the Borrowing Base of the Borrower as determined as of the same date.
U9.2.Liabilities to Assets RatioEach of the Borrower and the Guarantor will
not (i) permit the ratio of its Consolidated Total Liabilities (excluding the
Unsecured Term Loans) to Consolidated Total Adjusted Asset Value to exceed 0.55
to 1, or (ii) permit the ratio of its Consolidated Total Liabilities (including
the Unsecured Term Loans) to Consolidated Total Adjusted Asset Value to exceed
0.65 to 1; provided, however, that after the Unsecured Term Loans have been
paid in full, each of the Borrower and the Guarantor will not permit the ratio
of its Consolidated Total Liabilities to Consolidated Total Adjusted Asset
Value to exceed 0.55 to 1.
U9.3.Debt Service CoverageThe 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 (i) less than 2.0 times the Debt Service (excluding the Unsecured Term
Loans) of the Borrower for such period, or (ii) less than 1.70 times the Debt
Service (including the Unsecured Term Loans) of the Borrower for such period;
provided, however, that after the Unsecured Term Loans have been paid in full,
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 2.0 times the Debt
Service of the Borrower for such period; provided further, 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
-78-
85
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 9.3 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.
U9.4.Consolidated Tangible Net WorthThe Borrower will not permit its
Consolidated Tangible Net Worth to be less than $100,000,000.00 plus
seventy-five percent (75%) of any Net Offering Proceeds received by the
Borrower or the Guarantor after the date of this Agreement.
U9.5.Mortgaged Property Operating Cash FlowThe Borrower will not permit the
sum of (a) the quotient obtained by dividing the combined Operating Cash Flow
with respect to the Mortgaged Properties for the period covered by the four (4)
previous consecutive fiscal quarters (treated as a single accounting period) by
1.5, to be less than the Pro Forma Debt Service Charges for such period,
provided that for purposes of determining compliance with this covenant prior
to such time as the Borrower has owned and operated a Mortgaged Property for
four (4) full fiscal quarters, the Operating Cash Flow with respect to such
Mortgaged Property for the number of full fiscal quarters which the Borrower
has owned and operated such Mortgaged Property as annualized shall be utilized.
For the purpose of calculating Operating Cash Flow under this Section 9.5 for
any Mortgaged Property, the Operating Cash Flow Rental Adjustment shall be
applied to any Mortgaged Property affected by any of the events described in
the definition of Operating Cash Flow Rental Adjustment.
U10.CLOSING CONDITIONS Pursuant to the Prior Credit Agreement, the Borrower
executed and delivered various documents to the Agent as a condition to the
obligations of the Agent and BankBoston to make the initial Loans under the
Prior Credit Agreement. Except to the extent expressly amended and replaced as
provided in this Section 10, all such documents shall remain in full force and
effect, and none of such documents is superseded by the provisions of this
Section 10 or any other provision of its Agreement. The obligation of the
Agent and the Banks to increase the Total Commitment to $160,000,000.00 and to
make further Loans to the Borrower or participate in further Letters of Credit
for the benefit of the Borrower is subject to the satisfaction of the following
conditions precedent:
U10.1.Loan DocumentsThe Borrower, the Guarantor and the REMIC Subsidiary shall
have duly executed and delivered to the Agent, except that each Bank shall have
received a fully executed counterpart of its Note, each of the Loan Documents
to which such Person is a party, each of which shall be in full force and
effect and shall be in form and substance satisfactory to the Majority Banks,
including, without limitation, the following:
(a) Agreement. Two (2) duly executed copies of this
Agreement.
(b) Indemnity Agreement. One (1) duly executed copy of
the Indemnity Agreement.
-79-
86
(c) Guaranty. One (1) duly executed copy of the
Guaranty, the REMIC Subsidiary Guaranty (Revolver) and the Contribution
Agreement (Revolver).
(d) Amendments to Security Deeds and Assignments of
Rents. One (1) duly executed copy of an Amendment to each Security Deed and
Assignment of Rents executed and delivered in connection with the Prior Credit
Agreement.
(e) Eligible Real Estate Qualification Documents. All
Eligible Real Estate Qualification Documents with respect to each parcel of
Mortgaged Property to be included in the Collateral as of the date of this
Agreement, including, without limitation, the Real Estate to be acquired
pursuant to the Purchase Agreement.
U10.2.ResolutionsAll action on the part of the Borrower, the Guarantor, or any
of their respective Subsidiaries as applicable, necessary for the valid
execution, delivery and performance by such Person of this Agreement and the
other Loan Documents to which such Person is or is to become a party shall have
been duly and effectively taken, and evidence thereof satisfactory to the Agent
shall have been provided to the Agent. The Agent shall have received from the
Guarantor true copies of the resolutions adopted by its board of directors
authorizing the transactions described herein, certified by its secretary as of
a recent date to be true and complete.
U10.3.Incumbency Certificate; Authorized SignersThe Agent shall have received
incumbency certificates, dated as of the date of this Agreement, signed by a
duly authorized officer of the Guarantor (with respect to the Borrower and the
Guarantor) and an authorized representative of the REMIC Subsidiary and giving
the name and bearing a specimen signature of each individual who shall be
authorized to sign, in the name and on behalf of such Person, each of the Loan
Documents to which such Person is or is to become a party. The Agent shall
have also received from the Borrower a certificate, dated as of the date of
this Agreement, signed by a duly authorized officer of the Borrower and giving
the name and specimen signature of each individual who shall be authorized to
make Loan and Conversion Requests and to give notices and to take other action
on behalf of the Borrower under the Loan Documents.
U10.4.Opinion of CounselThe Agent shall have received a favorable opinion
addressed to the Banks and the Agent and dated as of the date of this
Agreement, in form and substance satisfactory to the Banks and the Agent, from
counsel of the Borrower, the Guarantor and the REMIC Subsidiary as to such
matters as the Agent shall reasonably request.
U10.5.Performance; No DefaultThe Borrower and the Guarantor shall have
performed and complied with all terms and conditions herein required to be
performed or complied with by it on or prior to the Closing Date, and on the
Closing Date there shall exist no Default or Event of Default.
-80-
87
U10.6.Representations and WarrantiesThe representations and warranties made by
the Borrower and the Guarantor in the Loan Documents or otherwise made by or on
behalf of the Borrower, the Guarantor or any of their respective Subsidiaries
in connection therewith or after the date thereof shall have been true and
correct in all material respects when made and shall also be true and correct
in all material respects on the Closing Date.
U10.7.Proceedings and DocumentsAll 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.
U10.8.Compliance CertificateA Compliance Certificate dated as of the date of
this Agreement demonstrating compliance with each of the covenants calculated
therein as of the most recent fiscal quarter end for which the Borrower and the
Guarantor has provided financial statements under Section 6.4 adjusted in the
best good faith estimate of the Borrower or the Guarantor, as applicable, shall
have been delivered to the Agent.
U10.9.Stockholder and Partner ConsentsThe Agent shall have received evidence
satisfactory to the Agent that all necessary stockholder and partner consents
required in connection with the consummation of the transactions contemplated
by this Agreement and the other Loan Documents have been obtained.
U10.10.Other DocumentsTo the extent requested by the Majority Banks, the
Majority Banks shall have received executed copies of all material agreements
of any nature whatsoever to which the Borrower, the Guarantor or any Subsidiary
is a party affecting or relating to the use, operation, development,
construction or management of the Mortgaged Property.
U10.11.No Condemnation/TakingThe Agent shall have received written
confirmation from the Borrower that no condemnation proceedings are pending or
to the Borrower's knowledge threatened against any Mortgaged Property or, if
any such proceedings are pending or threatened, identifying the same and the
Real Estate affected thereby and the Agent shall have determined that none of
such proceedings is or will be material to the Mortgaged Property affected
thereby.
U10.12.Principal DocumentsOn the date of this Agreement: (i) the Agent shall
have received executed or conformed copies of the Master Agreement and each of
the Ramco Agreements and RPS Contribution Agreements and any amendments
thereto; (ii) the Principal Documents shall be in full force and effect and no
material term or condition thereof shall have been amended, modified or waived
after the execution thereof, except with the prior written consent of the
Agent; (iii) none of the parties to the Principal Documents shall have failed
to perform any material obligation or covenant required by the Principal
Documents to be performed or complied with by it on or before the date of this
Agreement; and (iv) the Agent shall have received a
-81-
88
certificate from the chief executive or chief financial officer of the general
partner of the Borrower to the effect set forth in clauses (i), (ii) and (iii)
above.
U10.13.Title Insurance UpdatesThe Agent shall have received a "date down"
endorsement to each Title Policy with respect to each Mortgaged Property and,
to the extent available, new tie-in endorsements with respect to all of the
Title Policies for the aggregate Commitment of $160,000,000.00.
U10.14.Payment of FeesThe Borrower shall have paid to the Agent the fees
required by Section 4.2.
U10.15.InsuranceThe Agent shall have received duplicate originals or certified
copies of all policies of insurance required by this Agreement.
U10.16.Maintenance of Interest Rate CollarThe Borrower shall have taken all
actions necessary to maintain in full force and effect the agreement providing
for an interest rate collar with respect to the loans under the Prior Credit
Agreement (with such amendments and modifications thereof as may be necessary
to ensure the applicability of such agreement to not less than $75,000,000 of
the principal amount of the Notes and Loans hereunder) (the "Interest Collar").
The term of the Interest Collar shall not expire before the Maturity Date. The
Interest Collar 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 Corporation.
The Borrower shall deliver to the Agent such documents or other information as
the Agent may require to evidence compliance with this Section 10.16.
U10.17.Purchase AgreementThe transactions contemplated by the Purchase
Agreement shall have closed in accordance with the provisions of the Purchase
Agreement.
U10.18.OtherThe 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.
U11.CONDITIONS TO ALL BORROWINGS The obligations of the Banks to make
any Loan or to participate in any Letter of Credit, whether on or after the
date of this Agreement, shall also be subject to the satisfaction of the
following conditions precedent:
U11.1.Prior Conditions SatisfiedAll 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 to be issued.
U11.2.Representations True; No DefaultEach of the representations and
warranties made by or on behalf of the Borrower, the Guarantor or any of their
respective Subsidiaries contained in this Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in connection with
this Agreement shall be true as of the date as of which they were made and
shall also be true at and as of the time of the making of such Loan or the
issuance of such Letter
-82-
89
of Credit, as applicable, 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. Each of the Banks shall have
received a certificate of the Borrower and the Guarantor signed by an
authorized officer of the Borrower and the Guarantor to such effect.
U11.3.No Legal ImpedimentThere shall be no law or regulations thereunder or
interpretations thereof that in the reasonable opinion of any Bank would make
it illegal for such Bank to make such Loan or to participate in such Letter of
Credit.
U11.4.Governmental RegulationEach 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.
U11.5.Proceedings and DocumentsAll proceedings in connection with the Loan or
the Letter of Credit, as applicable, shall be satisfactory in substance and in
form to the Majority Banks, and the Majority Banks shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Majority Banks may reasonably request.
U11.6.Borrowing DocumentsIn the case of any request for a Loan and/or a Letter
of Credit, as applicable, the Agent shall have received the request for a Loan
required by Section 2.5 in the form of Exhibit B hereto, fully completed and/or
the Letter of Credit Application required by Section 2.7 in the form of Exhibit
D hereto fully completed.
U11.7.Endorsement to Title PolicyAt such time as the Agent shall determine in
its discretion, to the extent available under applicable law, a "date down"
endorsement to each Title Policy indicating no change in the state of title and
containing no survey exceptions not approved by the Majority Banks, which
endorsement shall, expressly or by virtue of a proper "revolving credit" clause
or endorsement in the Title Policy, increase the coverage of the Title Policy
to the aggregate amount of all Loans advanced and outstanding and all Letters
of Credit issued and outstanding on or before the effective date of such
endorsement (provided that the amount of coverage under an individual Title
Policy for an individual Mortgaged Property need not equal the aggregate amount
of all Loans), or if such endorsement is not available, such other evidence and
assurances as the Agent may reasonably require (which evidence may include,
without limitation, an affidavit from the Borrower stating that there have been
no changes in title from the date of the last effective date of the Title
Policy).
-83-
90
U11.8.Future Advances Tax PaymentThe Borrower will pay to the Agent any
mortgage, recording, intangible, documentary stamp or other similar taxes and
charges which the Agent reasonably determines to be payable as a result of such
Loan to any state or any county or municipality thereof in which any of the
Mortgaged Properties are located and deliver to the Agent such affidavits or
other information which the Agent reasonably determines to be necessary in
connection with the payment of such tax, in order to insure that the Security
Deeds on Mortgaged Property located in such state secure the Borrower's
obligation with respect to the Loans then being requested by the Borrower. The
provisions of this Section 11.8 shall be without limitation of the Borrower's
obligations under other provisions of the Loan Documents, including, without
limitation, Section 15 hereof.
U12.EVENTS OF DEFAULT; ACCELERATION; ETC U12.1.Events of Default and
AccelerationIf any of the following events ("Events of Default" or, if the
giving of notice or the lapse of time or both is required, then, prior to such
notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Loans after the same shall become due and payable, whether at the stated date
of maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the
Loans, 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 Guarantor 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 no such cure period shall be
available for a failure to comply with Section 9.5 to the extent that such
Default relates to an event described in Section 12.1(s);
(d) the Borrower or the Guarantor or any of its
Subsidiaries shall fail to perform any other material term, covenant or
agreement contained herein or in any of the other Loan Documents (other than
those specified above in this Section 12), and such failure shall continue for
thirty (30) days after written notice thereof shall have been given to the
Borrower by the Agent; provided, however, that in the event that such failure
shall be a failure to comply with the terms of Section 8.7(a), the Borrower
shall be afforded a period of one (1) fiscal quarter to cure such failure
provided that the Distribution which caused such failure was historically
consistent with prior dividends;
(e) any representation or warranty made by or on behalf
of the Borrower, the 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
-84-
91
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, the Guarantor or any of their
respective Subsidiaries shall fail to pay at maturity, or within any applicable
period of grace, any obligation for borrowed money or credit received or other
Indebtedness, or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing any such borrowed money or credit received or other Indebtedness for
such period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof; provided that the events
described in this Section 12.1(f) shall not constitute an Event of Default
unless such failure to perform, together with other failures to perform as
described in this Section 12.1(f), involve singly or in the aggregate
obligations for borrowed money or credit received totaling in excess of
$5,000,000.00;
(g) the Borrower, the 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, the 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, the
Guarantor or any of their respective Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or order
for relief is entered in respect of any such Person in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;
(j) there shall remain in force, undischarged,
unsatisfied and unstayed, for more than (60) days, whether or not consecutive,
any uninsured final judgment against any of the Borrower, the Guarantor or any
of their respective Subsidiaries that, with other outstanding uninsured final
judgments, undischarged, against such Persons exceeds in the aggregate
$1,000,000.00;
-85-
92
(k) any of the Loan Documents shall be canceled,
terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Banks, or any action at law, suit in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower, the Guarantor, any of their respective Subsidiaries or
any of their respective holders of Voting Interests, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction shall
make a determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(l) any dissolution, termination, partial or complete
liquidation, merger or consolidation of the Borrower or the Guarantor or any of
their respective Subsidiaries or any sale, transfer or other disposition of the
assets of the Borrower or any of its Subsidiaries other than as permitted under
the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the
Borrower, the Guarantor or any of their respective Subsidiaries or any of the
Mortgaged Properties 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, the
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 shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any assets of such Person,
including the Mortgaged Property;
(o) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could be
expected to result in liability of the Borrower, the Guarantor or any of their
respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $1,000,000 and such event in the circumstances
occurring reasonably could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan; or a trustee shall have been appointed by the United States District
Court to administer such Plan or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
(p) without the prior written approval of the Agent, Joel
Gershenson, Dennis Gershenson, Richard Gershenson, Bruce Gershenson and Michael
Ward, their family members or estate planning trusts established for their
benefit, shall in the aggregate own, directly or indirectly, less than five
percent (5%) of the issued and outstanding partnership interests or shares of
the Borrower and the Guarantor on a Consolidated basis;
-86-
93
(q) either of the Chairman or Chief Executive Officer of
the Borrower approved by the Majority Banks as of the date of this Agreement
shall cease to be the Chairman or Chief Executive Officer, as applicable, of
the Borrower and a competent and experienced successor for such Person shall
not be approved by the Agent within six (6) months of such event, such approval
not to be unreasonably withheld;
(r) any Event of Default, as defined in any of the other
Loan Documents, shall occur;
(s) the Borrower shall fail to comply with the covenant
contained in Section 9.5 solely as a result of the loss of an anchor tenant
from a single Mortgaged Property and the Borrower shall not be in compliance
with such covenant within sixty (60) days of the occurrence of such event (it
being agreed that during such sixty (60) day period, a Default shall not have
occurred hereunder, but an Event Default shall immediately occur thereafter if
such failure is not corrected within such sixty (60) day period); provided that
during such sixty (60) day period the Bank shall have no obligation to advance
proceeds of the Loan or to issue Letters of Credit; or
(t) any "Event of Default" (as defined in the Unsecured
Term Loan Agreement) 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 Majority Banks; provided that in
the event of any Event of Default specified in Section 12.l(g), Section 12.1(h)
or Section 12.1(i), all such amounts shall become immediately due and payable
automatically and the Borrower shall be required to immediately so cash
collateralize or replace all outstanding Letters of Credit forthwith, without
any requirement of notice from any of the Banks or the Agent.
U12.2.Limitation of Cure PeriodsNotwithstanding 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 periods
of cure or portions thereof under any one or more than one of said subsections.
-87-
94
U12.3.Certain Cure Periods
(a) In the event that there shall occur any Default under
Section 12.1(c), then within five (5) Business Days after receipt of notice of
such Default from the Agent or the Majority Banks the Borrower may elect to
cure such Default by providing additional Collateral consisting of Potential
Collateral, and/or to reduce the outstanding Loans to it, in which event such
actions shall be completed not later than fifteen (15) days following the date
on which the Borrower is notified that the Majority Banks have approved the
Borrower's proposed actions (or thirty (30) days in the event that the Borrower
intends to provide additional Mortgaged Property). The Borrower's notice of
its election pursuant to the preceding sentence shall be delivered to the Agent
within the period of five (5) Business Days provided above. Within five (5)
Business Days after receipt of such advice, the Majority Banks shall advise the
Borrower as to whether in their good faith judgment the actions proposed by the
Borrower are sufficient to cure such Default without the creation of any other
Default hereunder. In the event that the Majority Banks determine the
Borrower's proposal is insufficient to cure such Default or is otherwise not
in accordance with the terms of this Agreement, the Borrower within an
additional three (3) Business Days after such negative notice may submit to the
Agent an alternative plan or evidence establishing that the Borrower's original
election was sufficient. In the event that within the times provided herein
the Borrower shall have failed to provide evidence satisfactory to the Majority
Banks that the Borrower's proposed actions are sufficient to cure such Default
in accordance with the terms hereof, the cure period shall terminate and such
Default immediately shall constitute an Event of Default.
(b) In the event that the Borrower shall elect in whole
or in part under Section 12.3(a) to provide additional Mortgaged Property, (i)
the Real Estate to be added to the Collateral shall be Eligible Real Estate and
on or prior to the expiration of the 30-day period each of the Eligible Real
Estate Qualification Documents shall have been completed at the Borrower's
expense and provided to the Agent for the benefit of the Banks, and (ii) the
Borrower, in addition to any other amounts payable under this Agreement, shall
pay to the Agent within fifteen (15) days following the commencement of such
30-day period a review fee in the amount of $10,000.00, which fee shall be
nonrefundable under any circumstances, to be split equally by the Banks without
regard to their respective Commitment Percentages.
U12.4.Termination of CommitmentsIf 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 participate in
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
Banks, may by notice to the Borrower terminate the obligation to make Loans to
the Borrower or to participate in Letters of Credit for the account of the
Borrower. No termination under this Section 12.4 shall relieve the Borrower of
its obligations to the Banks arising under this Agreement or the other Loan
Documents.
-88-
95
U12.5.RemediesIn 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 Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law. In the event that all or
any portion of the Obligations is collected by or through an attorney-at-law,
the Borrower shall pay all costs of collection including, but not limited to,
reasonable attorneys' fees.
U12.6.Distribution of Collateral ProceedsIn 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 Security Documents,
or otherwise with respect to the realization upon any of the Collateral, such
monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or sustained
by the Agent to protect or preserve the collateral or in connection with the
collection of such monies by the Agent, for the exercise, protection or
enforcement by the Agent of all or any of the rights, remedies, powers and
privileges of the Agent under this Agreement or any of the other Loan Documents
or in respect of the Collateral or in support of any provision of adequate
indemnity to the Agent against any taxes or liens which by law shall have, or
may have, priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Majority Banks shall determine; provided, however, that (i)
distributions in respect of such Obligations shall be made pari passu among
Obligations with respect to the Agent's fee payable pursuant to Section 4.3 and
all other Obligations, (ii) in the event that any Bank shall have wrongfully
failed or refused to make an advance under Section 2.6 or Section 2.7(f) and
such failure or refusal shall be continuing, advances made by other Banks
during the pendency of such failure or refusal shall be entitled to be repaid
as to principal and accrued interest in priority to the other Obligations
described in this subsection (b), (iii) Obligations owing to the Banks with
respect to each type of Obligation such as interest, principal, fees and
expenses, shall be made among the Banks pro rata, and (iv) amounts received or
realized from the Borrower shall be applied against the Obligations of the
Borrower; and provided, further that the Majority Banks may in their discretion
make proper allowance to take into account any Obligations not then due and
payable; and
-89-
96
(c) Third, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
U13.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 the Guarantor and any securities or other property
of the Borrower or the Guarantor in the possession of such Bank may be applied
to or set off against the payment of Obligations of such Person and any and all
other liabilities, direct, or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, of such Person to such Bank.
Each of the Banks agrees with each other Bank that if such Bank shall receive
from the Borrower or the Guarantor, whether by voluntary payment, exercise of
the right of setoff, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Bank any amount in excess of its ratable portion
of the payments received by all of the Banks with respect to the Notes held by
all of the Banks, such Bank will make such disposition and arrangements with
the other Banks with respect to such excess, either by way of distribution, pro
tanto assignment of claims, subrogation or otherwise as shall result in each
Bank receiving in respect of the Notes held by it its proportionate payment as
contemplated by this Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
U14.THE AGENT U14.1.AuthorizationThe 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 a
fiduciary relationship. 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.
U14.2.Employees and AgentsThe Agent may exercise its powers and execute its
duties by or through employees or agents and shall be entitled to take, and to
rely on, advice of counsel concerning all matters pertaining to its rights and
duties under this Agreement and the other Loan Documents. The Agent may
utilize the services of such Persons as the Agent may reasonably determine, and
all reasonable fees and expenses of any such Persons shall be paid by the
Borrower.
-90-
97
U14.3.No LiabilityNeither 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.
U14.4.No RepresentationsThe Agent shall not be responsible for the execution
or validity or enforceability of this Agreement, the Notes, any of the other
Loan Documents or any instrument at any time constituting, or intended to
constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of
any such amounts owing with respect to the Notes, or for any recitals or
statements, warranties or representations made herein or in any of the other
Loan Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrower, 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 or any holder of any of the Notes shall have been duly authorized
or is true, accurate and complete. The Agent has not made nor does it now make
any representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the creditworthiness or financial
condition of the Borrower, the Guarantor or any of their respective
Subsidiaries or the value of the Collateral or any of the assets of the
Borrower, the Guarantor or their respective Subsidiaries. Each Bank
acknowledges that it has, independently and without reliance upon the Agent or
any other Bank, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, based upon such information and
documents as it deems appropriate at the time, continue to make its own credit
analysis and decisions in taking or not taking action under this Agreement and
the other Loan Documents.
U14.5.Payments
(a) A payment by the Borrower or the Guarantor to the
Agent hereunder or under any of the other Loan Documents for the account of any
Bank shall constitute a payment to such Bank. The Agent agrees to distribute
to each Bank not later than one Business Day after the Agent's receipt of good
funds, determined in accordance with the Agent's customary practices, such
Bank's pro rata share of payments received by the Agent for the account of the
Banks except as otherwise expressly provided herein or in any of the other Loan
Documents. In the event the Agent fails to distribute such amounts within one
Business Day as provided above, the Agent shall pay interest on such amount at
a rate per annum equal to the Federal Funds Effective Rate from time to time in
effect.
-91-
98
(b) If in the opinion of the Agent the distribution of
any amount received by it in such capacity hereunder, under the Notes or under
any of the other Loan Documents might involve it in liability, it may refrain
from making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such distribution shall have
been made shall either repay to the Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court. In the event that the Agent
shall refrain from making any distribution of any amount received by it as
provided in this Section 14.5(b), the Agent shall endeavor to hold such amounts
in an interest bearing account and at such time as such amounts may be
distributed to the Banks, the Agent shall distribute to each Bank, based on
their respective Commitment Percentages, its pro rata share of the interest or
other earnings from such deposited amount.
(c) Notwithstanding anything to the contrary contained in
this Agreement or any of the other Loan Documents, any Bank that fails (i) to
make available to the Agent its pro rata share of any Loan or (ii) to comply
with the provisions of Section 13 with respect to making dispositions and
arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Banks, in each case as, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a "Delinquent Bank") and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A Delinquent Bank shall be deemed
to have assigned any and all payments due to it from the Borrower, whether on
account of outstanding Loans, interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction of, their respective pro
rata shares of all outstanding Loans. The Delinquent Bank hereby authorizes
the Agent to distribute such payments to the nondelinquent Banks in proportion
to their respective pro rata shares of all outstanding Loans. A Delinquent
Bank shall be deemed to have satisfied in full a delinquency when and if, as a
result of application of the assigned payments to all outstanding Loans of the
nondelinquent Banks or as a result of other payments by the Delinquent Banks to
the nondelinquent Banks, the Banks' respective pro rata shares of all
outstanding Loans have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
U14.6.Holders of NotesSubject to the terms of Article 18, the Agent may deem
and treat the payee of any Note as the absolute owner or purchaser thereof for
all purposes hereof until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder, assignee or transferee.
U14.7.IndemnityThe 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
-92-
99
thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
U14.8.Agent as BankIn its individual capacity, BankBoston shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes as
it would have were it not also the Agent.
U14.9.ResignationThe Agent may resign at any time by giving sixty (60) days'
prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint as a successor
Agent any Bank or any bank whose senior debt obligations are rated not less
than "A" or its equivalent by Moody's Investors Service, Inc. or not less than
"A" or its equivalent by Standard & Poor's Rating Group Inc. and which has a
net worth of not less than $500,000,000. Unless a Default or Event of Default
shall have occurred and be continuing, such successor Agent shall be reasonably
acceptable to the Borrower. If no successor Agent shall have been so appointed
by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent, which shall be
any Bank or a bank whose debt obligations are rated not less than "A" or its
equivalent by Moody's Investors Service, Inc. or not less than "A" or its
equivalent by Standard & Poor's Rating Group Inc. and which has a net worth of
not less than $500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder as Agent. After any retiring Agent's resignation, the
provisions of this Agreement and the other Loan Documents shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Agent.
U14.10.Duties in the Case of EnforcementIn 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 shall, if (a) so requested by the
Majority Banks and (b) the Banks have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent may
reasonably request, proceed to enforce the provisions of the Security Documents
authorizing the sale or other disposition of all or any part of the Collateral
and exercise all or any such other legal and equitable and other rights or
remedies as it may have in respect of such Collateral. The Majority Banks may
direct the Agent in writing as to the method and the extent of any such sale or
other disposition, the Banks hereby agreeing to indemnify and hold the Agent
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
-93-
100
U14.11.Removal of AgentThe 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.
U15.EXPENSES The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Agreement, the other Loan Documents and the
other agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Banks (other than taxes based upon the Agent's or any Bank's gross or net
income, except that the Agent and the Banks shall be entitled to
indemnification for any and all amounts paid by them in respect of taxes based
on income or other taxes assessed by any State in which Mortgaged Property or
other Collateral is located, such indemnification to be limited to taxes due
solely on account of the granting of Collateral under the Security Documents
and to be net of any credit allowed to the indemnified party from any other
State on account of the payment or incurrence of such tax by such indemnified
party), including any recording, mortgage, documentary or intangibles taxes in
connection with the Security Deeds and other Loan Documents, or other taxes
payable on or with respect to the transactions contemplated by this Agreement,
including any such taxes payable by the Agent or any of the Banks after the
Closing Date (the Borrower hereby agreeing to indemnify the Agent and each Bank
with respect thereto), (c) all title insurance premiums, appraisal fees,
engineer's fees, reasonable internal charges of the Agent (determined in good
faith and in accordance with the Agent's internal policies applicable generally
to its customers) for commercial finance exams and engineering and
environmental reviews and the reasonable fees, expenses and disbursements of
the counsel to the Agent and any local counsel to the Agent incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein (excluding, however, the
preparation of agreements evidencing participation granted under Section 18.4),
each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder, (d) the reasonable fees, expenses and
disbursements of the Agent incurred by the Agent in connection with the
preparation or interpretation of the Loan Documents and other instruments
mentioned herein, and the making of each advance hereunder, (e) all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent and the fees and costs of
appraisers, engineers, 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 Guarantor or the administration thereof after the
-94-
101
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 Guarantor,
(f) all reasonable fees, expenses and disbursements of any Bank or the Agent
incurred in connection with UCC searches, UCC filings, title rundowns, title
searches or mortgage recordings, (g) all reasonable fees, expenses and
disbursements (including reasonable attorneys' fees and costs), which may be
incurred by BankBoston and the other Banks in connection with the execution and
delivery of this Agreement and the other Loan Documents, and (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
BankBoston in connection with each and every assignment of interests in the
Loans pursuant to Section 18.1. The covenants of this Section 15 shall survive
payment or satisfaction of payment of amounts owing with respect to the Notes.
U16.INDEMNIFICATION The Borrower and the Guarantor, jointly and
severally, agree to indemnify and hold harmless the Agent and the Banks and
each director, officer, employee, agent and Person who controls the Agent or
any Bank from and against any and all claims, actions and suits, whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of or relating
to this Agreement or any of the other Loan Documents or the transactions
contemplated hereby and thereby including, without limitation, (a) any leasing
fees and any brokerage, finders or similar fees asserted against any Person
indemnified under this Section 16 based upon any agreement, arrangement or
action made or taken, or alleged to have been made or taken, by the Borrower,
the Guarantor or any of their respective Subsidiaries, (b) any condition of the
Mortgaged Properties, (c) any actual or proposed use by the Borrower or the
Guarantor of the proceeds of any of the Loans, (d) any actual or alleged
infringement of any patent, copyright, trademark, service mark or similar right
of any of the Borrower, the Guarantor or any of their respective Subsidiaries
comprised in the Collateral, (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 Mortgaged Property, or (g) with
respect to the Borrower, the Guarantor and their respective Subsidiaries and
their respective properties and assets, the violation of any Environmental Law,
the Release or threatened Release of any Hazardous Substances or any action,
suit, proceeding or investigation brought or threatened with respect to any
Hazardous Substances (including, but not limited to claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding; provided, however, that neither
the Borrower nor the Guarantor shall be obligated under this Section 16 to
indemnify any Person for liabilities arising from such Person's own gross
negligence or willful misconduct. In litigation, or the preparation therefor,
the Banks and the Agent shall be entitled to select a single nationally
recognized law firm as their own counsel and, in addition to the foregoing
indemnity, the Borrower and the Guarantor agree to pay promptly the reasonable
fees and expenses of such counsel. If, and to the extent that the obligations
of the Borrower and the Guarantor under this Section 16 are unenforceable for
any reason, the Borrower and the Guarantor hereby agree to make the maximum
contribution to the payment in satisfaction of such
-95-
102
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.
U17.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
Guarantor or any of their respective Subsidiaries pursuant hereto or thereto
shall be deemed to have been relied upon by the Banks and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of any of the Loans, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Agreement or the Notes or any of the other Loan Documents
remains outstanding or any Bank has any obligation to make any Loans. The
indemnification obligations of the Borrower and the Guarantor provided herein
and the other Loan Documents shall survive the full repayment of amounts due
and the termination of the obligations of the Banks hereunder and thereunder to
the extent provided herein and therein. All statements contained in any
certificate or other paper delivered to any Bank or the Agent at any time by or
on behalf of the Borrower, the Guarantor or any of their respective
Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by such
Person hereunder.
U18.ASSIGNMENT AND PARTICIPATION U18.1.Conditions to Assignment by BanksExcept
as provided herein, each Bank may assign to one or more banks or other entities
all or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment Percentage and Commitment and the
same portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent shall have given its prior written consent to such
assignment, which consent shall not be unreasonably withheld (provided that
such consent shall not be required for any assignment to another Bank, to a
bank which is under common control with the assigning Bank or to a wholly-owned
Subsidiary of such Bank provided that such assignee shall remain a wholly-owned
Subsidiary of such Bank), (b) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Bank's rights and obligations
under this Agreement, (c) the parties to such assignment shall execute and
deliver to the Agent, for recording in the Register (as hereinafter defined), a
notice of such assignment, together with any Notes subject to such assignment,
(d) in no event shall any voting, consent or approval rights of a Bank be
assigned to any Person controlling, controlled by or under common control with,
or which is not otherwise free from influence or control by, any of the
Borrower or the Guarantor, which rights shall instead be allocated pro rata
among the other remaining Banks, (e) such assignee shall have a net worth as of
the date of such assignment of not less than $500,000,000, (f) such assignee
shall acquire an interest in the Loans of not less than $10,000,000, (g) the
assignor shall assign its entire interest in the Loans or retain an interest in
the Loans of not less than $ 10,000,000 and (h) each such assignment shall be
subject to the approval of the Agent, which approval shall not be unreasonably
withheld. Upon such execution, delivery, acceptance and recording, of such
notice of assignment, (i) the assignee thereunder shall be a party hereto and
all other Loan Documents executed by the Banks and, to the extent provided in
such assignment, have the rights and obligations of a Bank hereunder, and (ii)
the assigning Bank shall, to the extent provided in such assignment and upon
payment to the Agent
-96-
103
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 Guarantor. In the event that, as of result of any such
assignment, the Agent in its capacity as a Bank retains an interest in the
Loans of less than $15,000,000 and such amount is less than the retained
interest of any other Bank, then the Agent shall offer to resign as Agent for
the Banks. Upon any such assignment, the Agent may unilaterally amend Schedule
1 to reflect any such assignment.
U18.2.RegisterThe Agent shall maintain a copy of each assignment delivered to
it and a register or similar list (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment Percentages of, and
principal amount of the Loans owing to the Banks from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and
the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,000.
U18.3.New NotesUpon its receipt of an assignment executed by the parties to
such assignment, together with each Note subject to such assignment, the Agent
shall (a) record the information contained therein in the Register, and (b)
give prompt notice thereof to the Borrower and the Banks (other than the
assigning Bank). Within five (5) Business Days after receipt of such notice,
the Borrower, at its own expense, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the order of such assignee in
an amount equal to the amount assumed by such assignee pursuant to such
assignment and, if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Bank in an
amount equal to the amount retained by it hereunder and shall cause the
Guarantor to deliver to the Agent an acknowledgment in form and substance
satisfactory to the Agent to the effect that the Guaranty extends to and is
applicable to each new Note. Such new Notes shall provide that they are
replacements for the 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.
U18.4.ParticipationsEach 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 Guarantor except the rights granted to the Banks
pursuant to Section 13, (d) such sale is effected in accordance with all
applicable
-97-
104
laws, and (e) such participant shall not be a Person controlling, controlled by
or under common control with, or which is not otherwise free from influence or
control by the Borrower or the Guarantor. Any Bank which sells a participation
shall promptly notify the Agent of such sale and the identity of the purchaser
of such interest.
U18.5.Pledge by BankAny 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. No such pledge or the
enforcement thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents.
U18.6.No Assignment by Borrower or GuarantorNeither the Borrower nor the
Guarantor shall assign or transfer any of its rights or obligations under any
of the Loan Documents without the prior written consent of each of the Banks.
U18.7.DisclosureThe Borrower and the Guarantor each agrees that in addition to
disclosures made in accordance with standard banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
U18.8.Amendments to Loan DocumentsUpon any such assignment or participation,
the Borrower and the Guarantor shall, upon the request of the Agent, enter into
such documents as may be reasonably required by the Agent to modify the Loan
Documents to reflect such assignment or participation.
U19.NOTICES Each notice, demand, election or request provided for or
permitted to be given pursuant to this Agreement (hereinafter in this Section
19 referred to as "Notice"), but specifically excluding to the maximum extent
permitted by law any notices of the institution or commencement of foreclosure
proceedings, must be in writing and shall be deemed to have been properly given
or served by personal delivery or by sending same by overnight courier or by
depositing same in the United States Mail, postpaid and registered or
certified, return receipt requested, or as expressly permitted herein, by
telegraph, telecopy, telefax or telex, and addressed as follows:
If to the Agent or BankBoston:
BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
-98-
105
With a copy to:
BankBoston, N.A.
115 Perimeter Center Place, NE
Suite 500
Atlanta, Georgia 30346
Attn: Daniel L. Silbert
Telecopy No. (770) 390-8434
and to:
Long Aldridge & Norman LLP
5300 SunTrust Plaza
303 Peachtree Street
Atlanta, Georgia 30308
Attn: William F. Timmons, Esq.
Telecopy No. (404) 527-4198
If to the Borrower or the Guarantor:
Ramco-Gershenson Properties, L.P.
Ramco-Gershenson Properties Trust
27600 Northwestern Highway
Southfield, Michigan 48034
Attn: Chief Executive Officer
Telecopy No. (248) 350-9925
With a copy to:
Honigman Miller Schwartz & Cohn
2290 First National Building
Detroit, MI 48226
Attn: Alan M. Hurvitz, Esq.
Telecopy No. (313) 962-0176
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. 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. 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
-99-
106
Notice sent. By giving at least fifteen (15) days prior Notice thereof, the
Borrower, a Bank or Agent shall have the right from time to time and at any
time during the term of this Agreement to change their respective addresses and
each shall have the right to specify as its address any other address within
the United States of America.
U20.RELATIONSHIP Neither the Agent nor any Bank has any fiduciary
relationship with or fiduciary duty to the Borrower, the Guarantor or their
respective Subsidiaries arising out of or in connection with this Agreement or
the other Loan Documents or the transactions contemplated hereunder and
thereunder, and the relationship between each Bank and the Borrower is solely
that of a lender and borrower, and nothing contained herein or in any of the
other Loan Documents shall in any manner be construed as making the parties
hereto partners, joint venturers or any other relationship other than lender
and borrower.
U21.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 GUARANTOR 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 COMMONWEALTH OF MASSACHUSETTS 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 GUARANTOR BY MAIL
AT THE ADDRESS SPECIFIED IN Section 19. THE BORROWER AND THE GUARANTOR 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.
U24.HEADINGS The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
U23.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.
-100-
107
U24.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.
U25.WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS EACH OF THE
BORROWER, THE GUARANTOR, THE AGENT AND THE BANKS HEREBY WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE
BORROWER AND THE GUARANTOR EACH HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. THE BORROWER AND THE GUARANTOR EACH (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS Section 25.
U26.DEALINGS WITH THE BORROWER OR THE GUARANTOR The Banks and their
affiliates may accept deposits from, extend credit to and generally engage in
any kind of banking, trust or other business with the Borrower, the Guarantor,
their respective Subsidiaries or any of their affiliates regardless of the
capacity of the Bank hereunder.
U27.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 Guarantor of any terms of this
Agreement or such other instrument or the continuance of any Default or Event
of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Majority Banks. Notwithstanding the foregoing, none of the following
may occur without the written consent of each Bank: a change in the rate of
interest on and the term of the Notes; the amount of the Commitments of the
Banks; a reduction or waiver of the principal of any unpaid Loan or any
interest thereon; the amount of any fee (other than late fees) payable to a
Bank hereunder; the release of the Borrower, the Guarantor or any Collateral
except as otherwise provided herein; or an amendment of the definition of
Majority Banks or of any requirement for consent by all of the Banks. The
amount of the Agent's fee payable for the Agent's account and the provisions
-101-
108
of Section 14 may not be amended without the written consent of the Agent. The
Borrower and the Guarantor each agrees to enter into such modifications or
amendments of this Agreement or the other Loan Documents as may be reasonably
requested by BankBoston 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 Guarantor hereunder. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent or any Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower or the Guarantor
shall entitle the Borrower and the Guarantor to other or further notice or
demand in similar or other circumstances.
U28.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.
U29.TIME OF THE ESSENCE Time is of the essence with respect to each and every
covenant, agreement and obligation of the Borrower or the Guarantor under this
Agreement and the other Loan Documents.
U30.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.
U31.TRUST EXCULPATION All persons having a claim against the Guarantor, the
general partner of the Borrower whose signature is affixed hereto as said
general partner, hereunder or in connection with any matter that is subject
hereof shall look solely to the trust assets of the trust, and in no event
shall the obligations of the Guarantor be enforceable against any shareholder,
trustee, officer, employee or agent of the Guarantor personally.
[signature page follows]
-102-
109
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
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, President
RAMCO-GERSHENSON PROPERTIES, L.P.
By: Ramco-Gershenson Properties Trust,
its General Partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, President
110
BANKBOSTON, N.A.,
individually and as Agent
By: /s/ Jeffrey L. Warwick
---------------------------
Jeffrey L. Warwick
Director
111
EXHIBIT A
FORM OF SECOND AMENDED AND RESTATED NOTE
EXHIBIT B
FORM OF REQUEST FOR LOAN
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
EXHIBIT D
FORM OF
LETTER OF CREDIT APPLICATION
EXHIBIT E
FORM OF REQUEST FOR EXTENSION OF LOAN
112
SCHEDULE 1
BANKS AND COMMITMENTS
Commitment
Commitment Percentage
---------- ----------
BankBoston, N.A. $160,000,000.00 100%
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
LIBOR Lending Office
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
113
SCHEDULE 1.1
SPECIAL REAL ESTATE
1. Crestview Corners, Crestview, Florida
2. Crofton Centre, Crofton, Maryland
3. Toys-R-Us, Commack, New York
4. Lantana Plaza, Lantana, Florida
5. Sunshine Plaza, Tamarac, Florida
6. The Shops at Lakeland, Lakeland, Florida
7. Trinity Corners, Pound Ridge, New York
8. Pelican Plaza, Sarasota, Florida
9. Naples Towne Center, Naples, Florida
114
SCHEDULE 2
EXAMPLES OF CALCULATION OF
DEBT SERVICE COVERAGE AMOUNT
SCHEDULE 3
EXISTING LETTERS OF CREDIT
SCHEDULE 4
REMIC PROPERTIES
SCHEDULE 6.7
LITIGATION
SCHEDULE 6.15
AFFILIATE TRANSACTIONS
SCHEDULE 6.19
SUBSIDIARIES OF THE BORROWER
SCHEDULE 6.22
AGREEMENTS