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EXHIBIT 10.27
SECOND AMENDMENT TO
AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT
AND OTHER LOAN DOCUMENTS
THIS SECOND AMENDMENT TO AMENDED AND RESTATED MASTER REVOLVING CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS (this "Amendment") made as of this 16th day
of June, 1997, by and among RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L. P., a Delaware
limited partnership ("Borrower"), RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST, a
Massachusetts business trust ("Guarantor"), BANKBOSTON, N.A. (formerly known as
The First National Bank of Boston), individually ("FNBB"), and NBD BANK ("NBD";
FNBB and NBD are hereinafter referred to collectively as the "Banks"), and
BANKBOSTON, N.A., (formerly known as The First National Bank of Boston), as
Agent (the "Agent").
W I T N E S E T H:
WHEREAS, Borrower, Guarantor, Agent and the Banks entered into that
certain Amended and Restated Master Revolving Credit Agreement dated as of June
24, 1996, as amended by that certain First Amendment to Amended and Restated
Master Revolving Credit Agreement and Other Loan Documents dated as of May 22,
1997 (collectively the "Credit Agreement"); and
WHEREAS, Borrower and Guarantor have executed and delivered to the Agent
and the Banks that certain Amended and Restated Indemnity Agreement Regarding
Hazardous Materials dated as of June 24, 1996 (the "Amended and Restated
Indemnity Agreement"); and
WHEREAS, in connection with the addition of certain collateral to secure
Borrower's obligations under the Credit Agreement, Borrower and Guarantor have
executed and delivered to the Agent and the Banks those certain Indemnity
Agreements Regarding Hazardous Materials dated as of June 24, 1996 and May 22,
1997 (collectively the "Supplemental Indemnity Agreement"); and
WHEREAS, Guarantor has executed and delivered to the Agent and the Banks
that certain Amended and Restated Unconditional Guaranty of Payment and
Performance dated as of June 24, 1996 (the "Guaranty"); and
WHEREAS, Borrower has requested that Agent and the Banks increase the
Total Commitment and modify and amend certain other terms and provisions of the
Credit Agreement; and
WHEREAS, as a condition to such modification, Agent and the Banks have
required that Borrower and Guarantor execute this Amendment;
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NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. Definitions. All terms used herein which are not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
2. Modification of the Credit Agreement. Borrower, Guarantor, the
Banks and Agent do hereby modify and amend the Credit Agreement as follows:
(a) By deleting in their entirety the definitions of the terms
"Borrowing Base," "Consolidated Total Adjusted Asset Value", "FNBB", "Indemnity
Agreement", "Majority Banks", "Rent Roll", "Total Commitment" and "Under
Development" appearing in Section 1.1 of the Credit Agreement, and inserting in
lieu thereof the following:
"Consolidated Total Adjusted Asset Value. With respect to any
Person, the sum of (i) an amount equal to (A) the Operating Cash
Flow of such Person 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,
(ii) the aggregate cash, Short-term Investments of such Person,
(iii) the aggregate accounts receivable for such Person minus a
deduction for straight-line rent credit and (iv) the capitalized
cost of development in progress up to an amount not to exceed ten
percent (10%) of the sum of items (i), (ii), and (iii), provided
that (i) prior to such time as the Borrower 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
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. In the event that
Borrower shall obtain a replacement tenant for vacant space in
excess of 10,000 rentable square feet, the rent from such tenant
shall be annualized immediately from the date such tenant takes
possession and begins paying rent for the purposes of calculating
Operating Cash Flow; provided, however, any income from such
space previously included in the calculation of Operating Cash
Flow shall be disregarded.
FNBB. BankBoston, N.A., formerly known as The First National
Bank of Boston.
Indemnity Agreement. The 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 in favor of the
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Agent and the Banks, as the same may be modified or amended,
pursuant to which the Borrower and the Guarantor agree to
indemnify the Agent and the Banks with respect to Hazardous
Substances and Environmental Laws, such Indemnity Agreements to
be in form and substance satisfactory to the Majority Banks.
Majority Banks. As of any date, the Bank or Banks whose
aggregate Commitment Percentage is more than sixty-six and
two-thirds percent (66 2/3%); provided, that, in determining said
percentage at any given time, all then existing Defaulting Banks
will be disregarded and excluded and the Commitment Percentages
of the Banks shall be redetermined, for voting purposes only, to
exclude the Commitment Percentages of such Defaulting Banks; 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. FNBB acknowledges and agrees that its voting
rights shall be based upon its Commitment Percentage and not upon
the face amount of its Note.
Rent Roll. A rent roll prepared by the Borrower in the form
customarily used by the Borrower and approved by the Agent, such
approval not to be unreasonably withheld.
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 Fifty-Six Million Dollars ($56,000,000.00),
with FNBB having a Commitment of $31,000,000.00 and NBD having a
Commitment of $25,000,000.00, provided that the Total Commitment
shall increase up to a maximum of $75,000,000.00 as and when one
or more Banks acquires all or a portion of the remaining
available Commitment of $19,000,000.00.
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.";
(b) By inserting the words "(or, with the consent of the
Banks, a period of less than one (1) month)" following the words "six months"
appearing in the second (2nd) line of the definition of the term "Interest
Period" appearing in Section 1.1 of the Credit Agreement;
(c) By inserting the following sentence at the end of Section
2.1 of the Credit Agreement:
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"Notwithstanding anything herein to the contrary, FNBB shall have no
obligation to make Loans to the Borrower in the maximum aggregate
principal amount outstanding of more than $31,000,000.00, and no other
Bank shall have any obligation to make Loans to the Borrower in the
maximum aggregate principal amount outstanding of more than the face
amount of its Note, provided that the Total Commitment shall be
increased up to a maximum of $75,000,000.00 as and when one or more
Banks shall acquire all or a portion of the remaining Commitment of
$19,000,000.00 as provided herein. In connection with the increase in
FNBB's Commitment and at such time as the Total Commitment is increased,
the Banks shall reallocate the outstanding principal balance of the
Loans among themselves to be consistent with the Commitment Percentage
of each Bank."
(d) By deleting the second sentence of Section 2.3 of the
Credit Agreement in its entirety, and inserting in lieu thereof the following:
"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 (provided that, without increasing the Commitment of
FNBB, the Note delivered to FNBB shall be in the principal amount equal
to the sum of FNBB's Commitment (that amount being $31,000,000.00), the
remaining Commitment of $19,000,000.00, and an additional amount of
$25,000,000.00. The parties hereto acknowledge that although the
aggregate face amount of the Notes equals $100,000,000.00, the Banks
have no obligation to increase the Total Commitment above $75,000,000.00
after one or more Banks acquires all or a portion of the remaining
available Commitment of $19,000,000.00. The excess $25,000,000.00
component has been included within the FNBB Note at the request of the
Borrower in order to facilitate the increase of the Total Commitment at
a later date in the event that the Banks approve such increase in their
sole discretion. In the event that the Borrower desires to obtain an
increase in the Total Commitment to $100,000,000.00 the Borrower shall
provide written notice of such request to the Agent, and the Agent shall
promptly notify the Banks of such request. The Borrower acknowledges
that the Banks have no agreement to increase the Total Commitment to
$100,000,000.00, and that any such increase shall be subject to such
terms and conditions as the Agent and the Banks may require.";
(e) By deleting Section 2.5 of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"Section 2.5. Requests for Loans. The Borrower (i) shall notify the
Agent of a potential request for a Loan as soon as possible prior to the
Borrower's proposed Drawdown Date, and (ii) shall give to the Agent written
notice in the form of Exhibit B hereto (or telephonic notice confirmed in
writing in the form of Exhibit B hereto) of each Loan requested hereunder (a
"Loan Request") no less than three (3) Business Days prior to the proposed
Drawdown Date. 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
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(i) a statement as to the purpose for which such advance shall be or has been
used (which purpose shall be in accordance with the terms of Section 7.11),
(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 Majority Banks 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 of 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 six (6) LIBOR Rate
Loans outstanding at any one time (or eight (8) in the event that the Total
Commitment is increased to $100,000,000.00). 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 Majority Banks shall reasonably require to
evidence that such funds have been used for such purpose (which evidence may
include, without limitation, a closing statement).";
(f) By deleting the words "four (4) LIBOR Rate Loans
outstanding at any one time" appearing in the twelfth (12th) line of Section
4.1 of the Credit Agreement and inserting in lieu thereof the words "six (6)
LIBOR Rate Loans outstanding at any one time (or eight (8) in the event that
the Total Commitment is increased to $100,000,000.00)";
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(g) By inserting the following sentence at the end of Section
4.2 of the Credit Agreement: "Borrower shall also pay to FNBB certain fees for
services rendered or to be rendered in connection with the Loan as provided
pursuant to the Agreement Regarding Fees dated as of June 16, 1997 between the
Borrower and FNBB.";
(h) By inserting the following sentence at the end of Section
5.4 of the Credit Agreement:
"It is acknowledged and agreed that the foregoing fee is intended to
compensate the Banks for their travel and internal due diligence review,
provided 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.";
(i) By deleting Section 7.4 of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"Section 7.4. Financial Statements, Certificates and Information. The
Borrower and Guarantor will deliver or cause to be delivered to each of the
Banks:
(a) as soon as practicable, but in any event not later than
one hundred (100) days after the end of each fiscal year of 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 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 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
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,
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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 that the Borrower
shall not be required to provide such consolidated statements in the event that
such statements would be substantially similar to the consolidated statements
provided by Guarantor);
(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 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 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 fiscal quarter of the Borrower
(including the fourth fiscal quarter in each year), an updated Rent Roll
aggregating information for the Mortgaged Properties and rolling four 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 Majority Banks;
(h) 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
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its Subsidiaries (which for the purposes of this Section 7.4(h) shall include
the Investments described in 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;
(i) promptly after they are filed with the Internal Revenue
Service, copies of all annual federal income tax returns and amendments thereto
of the Borrower and the Guarantor;
(j) 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;
(k) 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;
(l) 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;
(m) 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;
(n) 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
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consolidated statements of income, changes in shareholder's equity and cash
flows for such year, each setting forth in comparative form the figures for the
previous fiscal year and all such statements to be in reasonable detail,
prepared in accordance with generally accepted accounting principles, and
accompanied by a certification by the principal financial or accounting officer
of the Borrower that the information contained in such financial statements
fairly presents the financial position of the Borrower and its Subsidiaries on
the date thereof (provided, however, that 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 Guarantor);
and
(o) from time to time such other financial data and
information in the possession of the Borrower, 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 Guarantor) as the
Agent may reasonably request;
(j) By deleting the number A$1,000,000.00" appearing in the
seventh (7th) line of Section 7.5(e) of the Credit Agreement, and inserting in
lieu thereof the number A$10,000,000.00";
(k) By deleting the number A$1,000,000.00" appearing in the
third (3rd) line of Section 8.8 of the Credit Agreement, and inserting in lieu
thereof the number A$10,000,000.00";
(l) By deleting Section 8.9 of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"Neither the Borrower, the Guarantor nor any of their respective
Subsidiaries shall engage, directly or indirectly, in any development other
than 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) individually for each development project not in excess of ten
percent (10%) of the Consolidated Total Adjusted Asset Value of the Borrower
and the Guarantor and in the aggregate for all development projects not in
excess of fifteen percent (15%) of the Consolidated Total Adjusted Asset Value
of the Borrower and the Guarantor, without the prior written consent of the
Majority Banks. 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, 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
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without limitation, evidence of sufficient funds both from borrowings and
equity to complete such development and evidence that the Borrower, 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, the Guarantor nor
any Subsidiary shall acquire or hold any number of undeveloped parcels of Real
Estate which in the aggregate exceed five percent (5%) of the Consolidated
Total Adjusted Asset Value of the Borrower 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,
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 engaged in by the Borrower, 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).;"
(m) By deleting Section 12.1(c) of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"(n) 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);";
(o) By deleting Section 12.1(d) of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"(p) 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;"
(q) By deleting Section 12.1(p) of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
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"(r) Without the prior written approval of the Agent, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇, their family members or estate planning trusts established for their
benefit, shall in the aggregate own, directly or indirectly, less than fifty
percent (50%) of the issued and outstanding partnership interests or shares of
the Borrower and the Guarantor, as applicable, on a consolidated basis, owned
by such Persons in the aggregate as of June 16, 1997;";
(q) By inserting the following paragraph as Section 12.1(s) of
the Credit Agreement:
"(r) 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 of 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 Banks shall have no obligation to
advance proceeds of the Loan;";
"(s) By inserting the following sentence at the end of Section
18.1 of the Credit Agreement: "Upon any such assignment, the Agent may
unilaterally amend Schedule 1 to reflect any such assignment;";
(t) By deleting Exhibit B attached to the Credit Agreement in
its entirety and inserting in lieu thereof Exhibit B attached to this
Amendment;
(s) By deleting Appendix A attached to Exhibit C of the Credit
Agreement in its entirety, and inserting in lieu thereof Appendix A attached to
this Amendment; and
(t) By deleting Schedule 1 attached to the Credit Agreement in
its entirety and inserting in lieu thereof Schedule 1 attached to this
Amendment.
3. Restated Notes. In connection with the modification of the
Credit Agreement described herein, the Borrower shall execute and deliver to
each of the Banks a separate amended and restated promissory note in
substantially the form of Exhibit A hereto, dated as of the date hereof and
completed with appropriate insertions, which notes shall be the "Notes"
described in the Credit Agreement. One Note shall be payable to the order of
each Bank in the principal amount equal to such Bank's Commitment, except as
provided in this Amendment with respect to the Note payable to FNBB.
4. Modification of the Guaranty. Guarantor, the Banks and the Agent
do hereby modify and amend the Guaranty by deleting in its entirety the fourth
paragraph appearing on page 1 of the Guaranty, and inserting in lieu thereof
the following:
AWHEREAS, Debtor, Guarantor, the Banks and Agent entered into that
certain Amended and Restated Master Revolving Credit Agreement dated as of June
24, 1996, as
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amended by that certain First Amendment to Amended and Restated Master
Revolving Credit Agreement and other Loan Documents dated as of May 22, 1997
among Debtor, Guarantor, the Banks and Agent, as amended by that certain Second
Amendment to Amended and Restated Master Revolving Credit Agreement and Other
Loan Documents dated as of June 16, 1997 among Debtor, Guarantor, the Banks and
Agent (as the same may hereafter be amended, supplemented or modified from time
to time, the "Credit Agreement"); and
WHEREAS, Guarantor executed that certain Amended and Restated
Unconditional Guaranty of Payment and Performance (the "Amended and Restated
Guaranty") dated June 24, 1996, whereby Debtor will become liable for the
Obligations (as defined in the Credit Agreement) including, without
limitation, loans and other financial accommodations from the Banks under the
Credit Agreement of up to $100,000,000 (all Obligations being hereinafter
referred to as the "Indebtedness"); and".
5. Modification of the Amended and Restated Indemnity Agreement.
Borrower, Guarantor, the Banks and the Agent do hereby modify and amend the
Amended and Restated Indemnity Agreement as follows:
(a) By deleting the words "(the ACredit Agreement")" appearing
in the sixth (6th) line of the introductory paragraph of the Amended and
Restated Indemnity Agreement, and inserting in lieu thereof the words A, as
amended by that certain First Amendment to Amended and Restated Master
Revolving Credit Agreement and Other Loan Documents dated as of May 22, 1997
among Borrower, Guarantor, Agent and the Banks, and that certain Second
Amendment to Amended and Restated Master Revolving Credit Agreement and Other
Loan Documents dated as of June 16, 1997 among Borrower, Guarantor, Agent and
the Banks (as the same may be now or hereafter amended, supplemented or
modified, the "Credit Agreement")"; and
(b) By deleting the fifth and sixth "WHEREAS" paragraphs
appearing on page 1 of the Amended and Restated Indemnity Agreement in their
entirety, and inserting in lieu thereof the following:
"WHEREAS, the Banks have increased their commitment to provide loans to
Borrower on a revolving credit basis pursuant to the terms and conditions of
the Credit Agreement (the "Loans");
"WHEREAS, the Loans are or will be evidenced by certain Amended and
Restated Notes from Borrower to the Banks in the aggregate face amount of
$100,000,000 (the "Notes") and secured by, among other things, those certain
mortgages, deeds of trust or deeds to secure debt and security agreements from
Borrower to Agent, on behalf of the Banks, conveying the Properties and to be
recorded in the public records of the counties where such Properties are
located (together with all amendments, modifications, consolidations,
increases, supplements and extensions thereof, collectively the "Mortgages" and
individually, a "Mortgage");".
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6. Modification of the Supplemental Indemnity Agreement. Borrower,
Guarantor, the Banks and the Agent do hereby modify and amend the Supplemental
Indemnity Agreement as follows:
(a) All references in the Supplemental Indemnity Agreement to
the Credit Agreement shall be a reference to the Credit Agreement, as amended
by that certain First Amended to Amended and Restated Master Revolving Credit
Agreement and Other Loan Documents dated as of May 22, 1997 among Borrower,
Guarantor, Agent and the Banks, and that certain Second Amendment to Amended
and Restated Master Revolving Credit Agreement and Other Loan Documents dated
as of June 16, 1997 among Borrower, Guarantor, Agent and the Banks; and
(b) By deleting the number A$50,000,000" appearing in the
first (1st) line of the third (3rd) "WHEREAS" paragraph appearing on page 1 of
the Supplemental Indemnity Agreement and in the second (2nd) line of the fourth
(4th) "WHEREAS" paragraph appearing on page 1 of the Supplemental Indemnity
Agreement, and inserting in lieu thereof the number "100,000,000.00".
7. References to Credit Agreement, Notes, Guaranty and Indemnity
Agreement. All references in the Loan Documents to the Credit Agreement, the
Notes, the Guaranty, the Amended and Restated Indemnity Agreement and the
Supplemental Indemnity Agreement shall be deemed a reference to the Credit
Agreement, the Notes, the Guaranty, the Amended and Restated Indemnity
Agreement and the Supplemental Indemnity Agreement, as applicable, as modified
and amended herein.
8. Consent of Guarantor. By execution of this Amendment, Guarantor
hereby expressly consents to the modifications and amendments relating to the
Credit Agreement, the Notes, the Amended and Restated Indemnity Agreement and
the Supplemental Indemnity Agreement as set forth herein and the modifications
and amendments to each of the Security Deeds and Assignment of Leases and Rents
contemporaneously herewith, and Guarantor hereby acknowledges, represents and
agrees that the Guaranty remains in full force and effect and constitutes the
valid and legally binding obligation of Guarantor, enforceable against
Guarantor in accordance with its terms, that the Guaranty extends to and
applies to the foregoing documents as modified and amended, and that the
execution and delivery of this Amendment does not constitute, and shall not be
deemed to constitute, a release, waiver or satisfaction of Guarantor's
obligations under the Guaranty.
9. No Default. By execution hereof, the Borrower and Guarantor
certify that the Borrower and Guarantor are and will be in compliance with all
covenants under the Loan Documents after the execution and delivery of this
Amendment and the other amendments being delivered by the Borrower
contemporaneously herewith, and that no Default or Event of Default has
occurred and is continuing.
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10. Waiver of Claims. Borrower and Guarantor acknowledge, represent
and agree that Borrower and Guarantor have no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever with respect
to the Loan Documents, the administration or funding of the Loans or with
respect to any acts or omissions of Agent or any of the Banks, or any past or
present officers, agents or employees of Agent or any of the Banks, and each of
Borrower and Guarantor does hereby expressly waive, release and relinquish any
and all such defenses, setoffs, claims, counterclaims and causes of action, if
any.
11. Ratification. Except as hereinabove set forth, all terms,
covenants and provisions of the Credit Agreement, the Notes, the Guaranty, the
Amended and Restated Indemnity Agreement and the Supplemental Indemnity
Agreement remain unaltered and in full force and effect, and the parties hereto
do hereby expressly ratify and confirm the Credit Agreement, the Notes, the
Guaranty, the Amended and Restated Indemnity Agreement and the Supplemental
Indemnity Agreement as modified and amended herein. Nothing in this Amendment
shall be deemed or construed to constitute, and there has not otherwise
occurred, a novation, cancellation, satisfaction, release, extinguishment or
substitution of the indebtedness evidenced by the Notes or the other
obligations of Borrower and Guarantor under the Loan Documents.
12. Counterparts. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
13. Miscellaneous. This Amendment shall be construed and enforced in
accordance with the laws of the State of Michigan. This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors, successors-in-title and assigns as provided in
the Credit Agreement, the Notes, the Guaranty, the Amended and Restated
Indemnity Agreement and the Supplemental Indemnity Agreement.
IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWER:
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P., a Delaware limited
partnership, by its sole general partner
By: Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a
Massachusetts business trust
By:/s/ Authorized Signature
-----------------------------
Name:
Title:
[SEAL]
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GUARANTOR:
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST, a
Massachusetts business trust
By: /s/ Authorized Signature
----------------------------
Name:
Title:
[SEAL]
BANKBOSTON, N.A. (formerly known as
The First National Bank of Boston),
individually and as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
[BANK SEAL]
NBD BANK
By: /s/ Authorized Signature
----------------------------
Title:
[BANK SEAL]
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APPENDIX A
SCHEDULE 1
BANKS AND COMMITMENTS
Commitment
Commitment Percentage
---------- --------------
The First National Bank of Boston $31,000,000.00 55.357143%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
LIBOR Lending Office
Same as above
NBD Bank $25,000,000.00 44.642857%
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Commercial Real Estate Division
LIBOR Lending Office
Same as above
-------------- ---------
$56,000,000.00 100%