EXHIBIT 10.50
SECOND AMENDED AND RESTATED UNSECURED REVOLVING LOAN AGREEMENT
DATED AS OF DECEMBER 30, 2002
among
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.
as Borrower,
and
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST,
as Guarantor,
and
FLEET NATIONAL BANK
as a Bank,
and
THE OTHER BANKS WHICH ARE A PARTY TO THIS AGREEMENT
and
THE OTHER BANKS WHICH MAY BECOME PARTIES TO THIS AGREEMENT
and
FLEET NATIONAL BANK
as Agent
SECOND AMENDED AND RESTATED UNSECURED REVOLVING LOAN AGREEMENT
This SECOND AMENDED AND RESTATED UNSECURED REVOLVING LOAN AGREEMENT is
made as of the 30th day of December, 2002 by and among RAMCO-▇▇▇▇▇▇▇▇▇▇
PROPERTIES, L.P. (the "Borrower"), a Delaware limited partnership,
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST (the "Guarantor"), a Maryland real estate
investment trust, FLEET NATIONAL BANK, a national banking association ("Fleet"),
KEYBANK NATIONAL ASSOCIATION, and the other lending institutions that are a
party hereto, and the other lending institutions which may become parties hereto
pursuant to Section 18 (the "Banks"), and FLEET NATIONAL BANK, a national
banking association, as Agent for the Banks (the "Agent").
RECITALS
WHEREAS, the Borrower, Guarantor, Fleet and Fleet, as Agent, entered into
that certain First Amended and Restated Unsecured Term Loan Agreement dated as
of September 29, 2000, as amended pursuant to that certain First Amendment to
First Amended and Restated Unsecured Term Loan Agreement and Other Loan
Documents dated as of February 15, 2002 and that certain Second Amendment to
First Amended and Restated Unsecured Term Loan Agreement and Other Loan
Documents dated as of October 15, 2002 (as amended, the "Prior Credit
Agreement");
WHEREAS, the Borrower is indebted to Fleet and certain other banks (the
"Prior Banks") in respect of loans made to the Borrower pursuant to the Prior
Credit Agreement;
WHEREAS, the Borrower, the Guarantor, Fleet, the other Banks and the Agent
desire to amend and restate the Prior Credit Agreement to, among other things,
convert the Prior Credit Agreement from a term loan agreement to a revolving
credit agreement, it being understood that the loans heretofore made to 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 amend and restate the Prior Credit Agreement in its entirety and agree as
follows:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of tHis Agreement
referred to below:
Affiliate. An Affiliate, as applied to any Person, shall mean any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means (a) the
possession, directly or indirectly, of the power to vote ten percent (10%) or
more of the stock, shares, voting trust certificates, beneficial interest,
partnership interests, member interests or other interests having voting power
for the election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise, or (b) the ownership
of (i) a general partnership interest, (ii) a managing member's interest in a
limited liability company or (iii) a limited partnership interest or preferred
stock (or other ownership interest) representing ten percent (10%) or more of
the outstanding limited partnership interests, preferred stock or other
ownership interests of such Person.
Agent. Fleet National Bank, acting as agent for the Banks, its successors
and assigns.
Agent's Head Office. The Agent's head office located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 & ▇▇▇▇▇▇▇▇ LLP or such other
counsel as may be approved by the Agent.
Agreement. This Second Amended and Restated Unsecured Revolving Loan
Agreement, including the Schedules and Exhibits hereto.
Amortization Payment. See Section 3.5.
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 Base Rate Loans LIBOR Rate Loans
----- --------------- ----------------
Pricing ▇▇▇▇▇ ▇ Less than 40% 1.50% 3.25%
Pricing ▇▇▇▇▇ ▇ Equal to or greater than 1.75% 3.50%
40%, but less than 50%
Pricing Level 3 Equal to or greater than 1.875% 3.625%
50%, but less than 60%
Pricing Level 4 Equal to or greater than 60% 2.0% 3.75%
The initial Applicable Margin shall be at Pricing Level 3. The Applicable Margin
shall be adjusted based upon such ratio, if at all, on the first day of the
first month following the delivery by the Borrower to the Agent of the
Compliance Certificate at the end of each fiscal quarter. In the event that
Borrower shall fail to deliver to the Agent a quarterly Compliance Certificate
on or before the date required by Section 7.4(e), then without limiting any
other rights of the Agent and the Banks under this Agreement, the Applicable
Margin shall be at Pricing Level 4 until such failure is cured within any
applicable cure period.
Arranger. Fleet Securities, Inc.
Balance Sheet Date. September 30, 2002.
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Banks. Fleet and any other Person who becomes an assignee of any rights of
a Bank pursuant to Section 18.
Base Rate. The greater of (a) the variable annual rate of interest
announced from time to time by Agent at Agent's Head Office as its "prime rate"
or (b) one-half of one percent (0.5%) above the Federal Funds Effective Rate
(rounded upwards, if necessary, to the next one-eighth of one percent). The Base
Rate is a reference rate and does not necessarily represent the lowest or best
rate being charged to any customer. Any change in the rate of interest payable
hereunder resulting from a change in the Base Rate shall become effective as of
the opening of business on the day on which such change in the Base Rate becomes
effective, without notice or demand of any kind.
Base Rate Loans. Those Loans bearing interest calculated by reference to
the Base Rate.
Borrower. As defined in the preamble hereto.
Building. With respect to each parcel of Real Estate, all of the
buildings, structures and improvements now or hereafter located thereon.
Business Day. Any day on which banking institutions located in the same
city and state as the Agent's Head Office 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 (5) 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.
Change of Control. The occurrence of any one of the following events:
(a) during any twelve month period on or after the date hereof,
individuals who at the beginning of such period constituted the Board of
Directors of the Guarantor (together with any new directors whose election by
the Board of Directors or whose nomination for
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election by the shareholders of the Guarantor was approved by a vote of at least
a majority of the members of the Board of Directors then in office who either
were members of the Board of Directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of the Board of Directors then in
office; or
(b) there occurs a change of control of the Guarantor of a nature
that would be required to be reported in response to Item 1a of Form 8-K filed
pursuant to Section 13 or 15 under the Securities Exchange Act of 1934, or in
any other filing by the Guarantor with the Securities and Exchange Commission;
or
(c) the Borrower or Guarantor consolidates with, is acquired by, or
merges into or with any Person (other than a merger permitted by Section 8.4).
Closing Date. The first date on which all of the conditions set forth in
Section 10 and Section 11 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Bank, the amount set forth on Schedule 1
hereto as the amount of such Bank's Commitment to make or maintain Loans to the
Borrower, as the same may be changed from time to time in accordance with the
terms of this Agreement.
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, as the same may be changed from time to time in accordance
with the terms of this Agreement.
Compliance Certificate. See Section 7.4(e).
Consolidated or combined. With reference to any term defined herein, that
term as applied to the accounts of a Person and its Subsidiaries, consolidated
or combined in accordance with generally accepted accounting principles.
Consolidated Operating Cash Flow. With respect to any period of a Person,
an amount equal to the Operating Cash Flow of such Person and its Subsidiaries
for such period consolidated in accordance with generally accepted accounting
principles.
Consolidated Tangible Net Worth. The amount by which Consolidated Total
Adjusted Asset Value exceeds Consolidated Total Liabilities, and less the sum
of:
(a) the total book value of all assets of a Person and its
Subsidiaries properly classified as intangible assets under generally accepted
accounting principles, including such items as good will, the purchase price of
acquired assets in excess of the fair market value thereof, trademarks, trade
names, service marks, brand names, copyrights, patents and licenses, and rights
with respect to the foregoing; and
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(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 all assets of such Person and its Subsidiaries determined on a
Consolidated basis in accordance with generally accepted accounting principles,
provided that all Real Estate that is improved and not Under Development shall
be valued at an amount equal to (A) the Operating Cash Flow of such Person and
its Subsidiaries and joint ventures described in Section 8.3(k) from such Real
Estate for the period covered by the four previous consecutive fiscal quarters
(treated as a single accounting period) divided by (B) nine and one-half percent
(9.5%) capitalization rate, provided that (i) prior to such time as the Borrower
or any of its Subsidiaries or such joint ventures has owned and operated any
parcel of Real Estate for four full fiscal quarters (or with respect to any
Redevelopment Property that has been valued at cost as permitted below and has
recommenced operations for less than four full fiscal quarters), the Operating
Cash Flow with respect to such parcel of Real Estate for the number of full
fiscal quarters which the Borrower or any of its Subsidiaries or such joint
ventures has owned and operated such parcel of Real Estate (or, with respect to
a Redevelopment Property that has recommenced operations, the Operating Cash
Flow for such Redevelopment Property for the number of full fiscal quarters
which the Borrower or its Subsidiary has recommenced operations) as annualized
shall be utilized, (ii) the Operating Cash Flow for any parcel of Real Estate
(or Redevelopment Property that has recommenced operations) without a full
quarter of performance shall be annualized in such manner as the Agent shall
approve, such approval not to be unreasonably withheld, (iii) prior to being
capitalized, the Operating Cash Flow with respect to any parcel of Real Estate
owned by a joint venture of such Person shall be reduced by the amount of all
Debt Service of such joint venture, and (iv) to the extent that the capitalized
Operating Cash Flow with respect to any parcel of Real Estate owned by a joint
venture of such Person is included in the calculation of Consolidated Total
Adjusted Asset Value for such Person, such Person's interest in the joint
venture shall not be included in the calculation of Consolidated Total Adjusted
Asset Value for such Person. Notwithstanding the foregoing, Borrower may elect
to value a Redevelopment Property at cost as determined in accordance with
generally accepted accounting principles, as set forth in the first sentence of
this definition, for a period of up to twelve (12) months which twelve (12)
month period shall commence upon the date which Agent receives written notice
from Borrower of such election. For the purpose of calculating Operating Cash
Flow under this definition as to any parcel of Real Estate, the Operating Cash
Flow Rental Adjustment shall be applied to any parcel of Real Estate affected by
any of the events described in the definition of Operating Cash Flow Rental
Adjustment. The assets of the Borrower and its Subsidiaries on the consolidated
financial statements of the Borrower and its Subsidiaries shall be adjusted to
reflect the Borrower's allocable share of such asset (including Borrower's
interest in any joint venture whose asset value is determined by application of
the capitalization rate above), for the relevant period or as of the date of
determination, taking into account (a) the relative proportion of each such item
derived from assets directly owned by the Borrower and from assets owned by its
respective Subsidiaries and joint ventures, and (b) the Borrower's respective
ownership interest in its Subsidiaries and joint ventures.
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
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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. Notwithstanding anything to the
contrary contained herein, Indebtedness of Borrower and its Subsidiaries
consisting of environmental indemnities and guarantees with respect to customary
exceptions to exculpatory language with respect to Non-recourse Indebtedness
shall not be included in the calculation of Consolidated Total Liabilities of
Borrower and its Subsidiaries unless a claim shall have been made against
Borrower or a Subsidiary of Borrower on account of any such guaranty or
indemnity.
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 the
mandatory amortization payments required pursuant to Section 3.5 of this
Agreement and any balloon payments due upon maturity of any Indebtedness.
Default. See Section 12.1. In addition, any "Default" (as defined in the
Revolving Credit 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, partners or other owners as such; or
any other distribution on or in respect of any shares of any class of capital
stock or other beneficial interest of such Person.
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.
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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 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.
Fleet. As defined in the preamble hereto.
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 gains (or losses) from sales of property, plus
depreciation and amortization, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures will be calculated to reflect funds from operations on the same
basis.
generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Person
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied. Notwithstanding the foregoing, for
the purposes of the financial calculations hereunder, any amount otherwise
included therein from a ▇▇▇▇-up or ▇▇▇▇-down of a derivative product of a Person
shall be excluded.
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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-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a Maryland real estate
investment trust.
Guaranty. The 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.
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,
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each period commencing on the day following the last day of the next preceding
Interest Period applicable to such Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Conversion Request;
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, that Interest
Period shall end and the next Interest Period shall commence on the next
preceding or succeeding LIBOR Business Day as determined conclusively by the
Agent in accordance with the then current bank practice in the London Interbank
Market;
(ii) if the Borrower shall fail to give notice as provided in
Section 4.1, the Borrower shall be deemed to have requested A conversion of the
affected LIBOR Rate Loan to a Base Rate Loan on the last day of the then current
Interest Period with respect thereto; and
(iii) no Interest Period relating to any LIBOR Rate Loan shall
extend beyond the 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, 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 (provided that any guaranty of the
type described in Section 8.1(o) shall not be considered an Investment for the
purposes hereof, but instead shall be considered Indebtedness); (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.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
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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. As applicable to any Interest Period for any LIBOR Rate Loan,
the rate per annum (rounded upwards, if necessary, to the nearest 1/32nd of one
percent) as determined on the basis of the offered rates for deposits in
Dollars, for the period of time comparable to such Interest Period which appears
on the Telerate page 3750 as of 11:00 a.m. London time on the day that is two
(2) LIBOR Business Days preceding the first day of such Interest Period;
provided, however, if the rate described above does not appear on the Telerate
System on any applicable interest determination date, the LIBOR Rate shall be
the rate (rounded upwards as described above, if necessary) for deposits in
Dollars for a period substantially equal to the Interest Period on the Reuters
Page "LIBO" (or such other page as may replace the LIBO Page on that service for
the purpose of displaying such rates), as of 11:00 a.m. (London Time), on the
day that is two (2) LIBOR Business Days prior to the beginning of such Interest
Period. If both the Telerate and Reuters systems are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in Dollars for a period of time comparable to such Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the day that is two (2) LIBOR Business Days preceding
the first day of such Interest Period as selected by Agent. The principal London
office of each of the four major London banks will be requested to provide a
quotation of its U.S. dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean of
the quotations. If fewer than two quotations are provided, the rate for that
date will be determined on the basis of the rates quoted for loans in Dollars to
leading European banks for a period of time comparable to such Interest Period
offered by major banks in New York City at approximately 11:00 a.m. (New York
City time), on the day that is two (2) LIBOR Business Days preceding the first
day of such Interest Period. In the event that Agent is unable to obtain any
such quotation as provided above, it will be deemed that the LIBOR Rate pursuant
to a LIBOR Rate Loan cannot be determined and the provisions of Section 4.6
shall apply. In the event that the Board of Governors of the Federal Reserve
System shall impose a Reserve Percentage with respect to LIBOR deposits of
Agent, then for any period during which such Reserve Percentage shall apply, the
LIBOR Rate shall be equal to the amount determined above divided by an amount
equal to 1 minus the Reserve Percentage.
LIBOR Rate Loans. The Loans bearing interest calculated by reference to a
LIBOR Rate.
Lincoln Loan. Those certain loans to Borrower from Lincoln National Life
Insurance Company, an Indiana corporation (as a lender and as agent for other
lenders, collectively "Lincoln"), in the original principal amounts of
$4,346,778.46 evidenced by Note dated May 1, 1996 from Borrower to Lincoln,
$77,585,524.73 evidenced by Note dated May 1, 1996 from Borrower to Lincoln,
$8,500,000 evidenced by Note dated December 17, 1997 from Borrower to Lincoln
and $25,000,000.00 (total amount) evidenced by separate Notes dated August 25,
2000 from Borrower to Lincoln and other lenders, and secured by the Lincoln Loan
Properties.
Lincoln Loan Properties. The parcels of Real Estate described on Schedule
1.1 attached hereto and made a part hereof.
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Loan Documents. This Agreement, the Notes, the Guaranty and all other
documents, instruments or agreements now or hereafter executed or delivered by
or on behalf of the Borrower or the Guarantor in connection with the Loans.
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 Bank(s).
Master Agreement. The Amended and Restated Master Agreement dated as of
December 27, 1995, by and among RPS Realty Trust, Ramco-▇▇▇▇▇▇▇▇▇▇, 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. December 29, 2005, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
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.
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 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 any leases thereon and
the rents and profits thereof and the Short-term Investments securing such
Indebtedness.
Non-Consenting Bank. See Section 18.9.
Notes. See Section 2.2.
Notice. See Section 19.
11
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
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, (a) with respect to any parcel of Real Estate as to which
the Borrower or any Subsidiary or joint venture described in Section 8.3(k)
shall obtain a replacement tenant for vacant space in excess of 10,000 rentable
square feet, the rent from such tenant shall from the date such tenant takes
possession and begins paying rent be included for one-half of the period for
which such space was vacant during the period for which Operating Cash Flow is
being calculated, and (b) with respect to any parcel of Real Estate as to which
the Borrower or any Subsidiary or joint venture shall obtain a lease renewal
from a tenant leasing in excess of 10,000 rentable square feet that provides for
a higher base rent than previously paid by such tenant, the rent from such
tenant from the date such tenant begins paying rent at the higher rate shall be
included for the current and all prior periods for which Operating Cash Flow is
then being calculated.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, limited liability
company, trust, unincorporated association, business, or other legal entity, and
any government or any governmental agency or political subdivision thereof.
Principal Documents. The Master Agreement, the RPS Contribution Agreements
and the Ramco Agreements.
Prior Credit Agreement. As defined in the recitals hereof.
Ramco Agreements. As defined in the Master Agreement.
12
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 Agent
with respect to any Loan referred to in such Note.
Redevelopment Property. Any Real Estate which is not Under Development and
(1) is undergoing a significant Capital Improvement Project and (2) is
designated as a Redevelopment Property by Borrower and approved by Agent, such
approval not to be unreasonably withheld.
Register. See Section 18.2.
REIT Status. With respect to the 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).
Required Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is sixty-six and two-thirds percent (66.66%);
provided that in determining said percentage at any given time, all the existing
Defaulting Banks will be disregarded and excluded and the Commitment Percentages
of the Banks shall be redetermined for voting purposes only to exclude the
Commitment Percentages of such Defaulting Banks.
Reserve Percentage. For any day with respect to a LIBOR Rate Loan, the
maximum rate (expressed as a decimal) at which any lender subject thereto would
be required to maintain reserves (including, without limitation, all base,
supplemental, marginal and other reserves) under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D or any successor or similar regulation), if
such liabilities were outstanding. The Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Percentage.
Revolving Credit Agreement. The Fourth Amended and Restated Master
Revolving Credit Agreement dated of even date herewith among the Borrower, the
Guarantor, Fleet, individually and as agent, and the other banks that are or
become parties thereto, and the other parties thereto, as the same may be
amended, modified, renewed, consolidated or restated.
RPS Contribution Agreements. As defined in the Master Agreement.
SEC. The federal Securities and Exchange Commission.
Short-term Investments. Investments described in subsections (a) through
(g), inclusive, of Section 8.3.
State. A state of the United States of America.
13
Subordination Agreement. That certain First Amended and Restated
Subordination Agreement dated of even date herewith between Agent, for itself
and the Banks, and Fleet National Bank, as agent under the Revolving Credit
Agreement, for itself and the other banks that are or become parties thereto.
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.
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
Forty Million and No/100 Dollars ($40,000,000.00). The Total Commitment may
increase in accordance with Section 2.8. The Total Commitment shall reduce as
provided in Section 3.6.
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) certificates of occupancy permitting occupancy have been
obtained for all tenants open for business and in any event for not less than
seventy percent (70%) of the gross leasable area of such development (excluding
outlots) or the Borrower has delivered to the Agent other evidence satisfactory
to the Agent indicating that such occupancy of such development is lawful, and
(ii) the gross income from the operation of such Real Estate on an accrual basis
shall have equaled or exceeded operating costs on an accrual basis for three (3)
months.
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.
SECTION 1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(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.
14
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of Michigan, have the meanings
assigned to them therein.
(i) Reference to a particular " Section ", refers to that section of
this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
SECTION 2. THE REVOLVING CREDIT FACILITY.
SECTION 2.1. COMMITMENT TO LEND. Subject 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) not to exceed such Bank's Commitment; 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) shall not at anytime exceed the Total Commitment (as the same reduces
pursuant to Section 3.6 below). 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.
SECTION 2.2. NOTES. The 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 Agent to make or cause
to be made, at or about the time of the Drawdown Date of any Loan or at the time
of receipt of any payment of principal thereof, an appropriate notation on
Agent'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
15
Agent's Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to each Bank, but the failure to record, or any error in so
recording, any such amount on Agent'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.
SECTION 2.3. UNUSED FACILITY FEE. The 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 0.375%
Greater than 50% 0.25%
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 2.7, with a final payment on the Maturity
Date.
SECTION 2.4. 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 repaid or is converted to a LIBOR Rate Loan at the per annum
rate equal to the sum of the Applicable Margin plus 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 2.7. In the
event that any additional interest becomes due and payable for any period with
respect to a Loan as a result of the Applicable Margin being determined based on
the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset
Value or any change in such ratio, and the interest for such period has
previously been paid by the Borrower, the Borrower shall pay to the Agent for
the account of the Banks the amount of such increase within ten (10) days of
demand.
16
(d) Base Rate Loans and LIBOR Rate Loans may be converted to Loans
of the other Type as provided in Section 4.1.
SECTION 2.5. REQUESTS FOR 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 (i) a statement as to the purpose for which such
advance shall be or has been used (which purpose shall be in accordance with the
terms of Section 7.11), and (ii) a certification by the chief financial or chief
accounting officer of the general partner of the Borrower and the chief
financial or chief accounting officer of the Guarantor that the Borrower and
Guarantor are 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.
SECTION 2.6. 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
satisfaction of the other conditions set forth therein, to the extEnt
applicable, the Agent will make available to
17
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 12.5.
(b) Unless the Agent shall have been notified by any Bank prior to
the applicable Drawdown Date that such Bank will not make available to the Agent
such Bank's pro rata share of a proposed Loan, the Agent may in its discretion
assume that such Bank has made such share of the proposed Loan available to
Agent in accordance with the provisions of this Agreement and the Agent may, if
it chooses, in reliance upon such assumption make such Loan available to
Borrower, and such Bank shall be liable to the Agent for the amount of such
advance. If such Bank does not pay such corresponding amount upon the Agent's
demand therefor, the Agent will promptly notify the Borrower, and the Borrower
shall promptly pay such corresponding amount to the Agent. The Agent shall also
be entitled to recover from the Bank or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to the date
such corresponding amount is recovered by the Agent at a per annum rate equal to
(i) from the Borrower at the applicable rate for such Loan or (ii) from a Bank
at the Federal Funds Effective Rate.
SECTION 2.7. OPTIONAL REDUCTION OF COMMITMENTS. The Borrower shall have
the right at any time and from time to time upon three Business Days' prior
written notice to the Agent to reduce by $5,000,000.00 or an integral multiple
of $1,000,000.00 in excess thereof 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 2.7, 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 2.3 then accrued. No
reduction or termination of the Commitments may be reinstated. Any reduction of
the Commitments pursuant to this Agreement shall be allocated pro rata among the
Banks in accordance with their Commitment Percentages.
SECTION 2.8. INCREASE OF COMMITMENT.
(a) Provided that no Default or Event of Default shall have occurred
and be continuing, the Borrower shall have the option, by giving written notice
to the Agent on or
18
before June 30, 2004 (the "Increase Notice"), subject to the terms and
conditions set forth in this Agreement, to increase the Total Commitment by an
amount up to $10,000,000 (the amount of the requested increase to be set forth
in the Increase Notice) (which, assuming no previous reduction in the
Commitments, would result in a maximum Total Commitment of $50,000,000). The
execution and delivery of the Increase Notice by Borrower shall constitute a
representation and warranty by the Borrower that all the conditions set forth in
this Section 2.8 shall have been satisfied on the date of such Increase Notice.
(b) The obligation of the Agent and the Banks to increase the Total
Commitment pursuant to this Section 2.8 shall be conditioned upon satisfaction
of the following conditions precedent which must be satisfied prior to the
effectiveness of any increase of the Total Commitment.
(i) Payment of Activation Fee. The Borrower shall pay to the
Agent such fees as Agent and the Banks may require to increase the aggregate
Commitment, which fees shall, when paid, be fully earned and non-refundable
under any circumstances. The Agent shall pay to the Banks acquiring the
increased Commitment certain fees pursuant to their separate agreement; and
(ii) No Default. On the date such Increase Notice is given and
on the date such increase becomes effective, both immediately before and after
the Commitment is increased, there shall exist no Default or Event of Default;
and
(iii) Representations and Warranties. The representations and
warranties made by the Borrower or Guarantor in the Loan Documents or otherwise
made by or on behalf of the Borrower, 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 date of such Increase Notice and on the
date the Total Commitment is increased, both immediately before and after the
Total Commitment is increased; and
(iv) Additional Documents and Fees. The Borrower shall also
execute and deliver to Agent and the Banks such additional documents,
instruments, certifications and opinions as the Agent may require in its sole
and absolute discretion, including, without limitation, a Compliance
Certificate, demonstrating compliance with all covenants, representations and
warranties set forth in the Loan Documents after giving effect to the increase,
as Agent may request; and
(v) Assignments. One or more Banks or potential assignees
shall have agreed to acquire the portion of the Commitment that Borrower desires
to activate, provided, however, no Bank (including, specifically, but without
limitation, Fleet) shall be obligated to acquire such increase without the
express written consent of such Bank, which consent may be withheld in such
Bank's sole and absolute discretion.
(vi) Other. The Borrower shall satisfy such other conditions
to such increase as Agent may require in its reasonable discretion.
19
(c) Upon satisfaction of the terms and conditions set forth above,
the amount set forth in the Increase Notice shall become a part of the
Commitment and Total Commitment and be available to be disbursed subject to the
terms of this Agreement, and, subject to the payment of any breakage costs
pursuant to Section 4.8, the Banks shall make such adjustments to the
outstanding Loans of such Banks, so that, after giving effect to such increase,
the outstanding Loans are consistent with their pro-rata share.
SECTION 3. REPAYMENT OF THE LOANS.
SECTION 3.1. STATED MATURITY. The 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.
SECTION 3.2. MANDATORY PREPAYMENTS. If at any time the aggregate of the
Outstanding Loans exceeds the Total Commitment, the Borrower shall immediately
upon demand pay the amount of such excess to the Agent for the respective
accounts of the Banks for application to the Loans.
SECTION 3.3. OPTIONAL PREPAYMENTS. The Borrower shall have the right, at
its election, to prepay the outstanding amount of the applicable Loans, as a
whole or in part, at any time without penalty or premium; provided, that 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.
SECTION 3.4. PARTIAL PREPAYMENTS. Each partial prepayment of the Loans
under Section 3.2 and Section 3.3 shall be in a minimum amount of $500,000 or an
integral multiple of $100,000 in excess thereof, 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.
SECTION 3.5. [INTENTIONALLY OMITTED].
SECTION 3.6. REDUCTION OF COMMITMENTS; REQUIRED AMORTIZATION. On each of
January 2, 2005, April 1, 2005, July 1, 2005 and October 1, 2005 the amount of
the Total Commitment shall be reduced by an amount equal to 3.75% of the amount
of the Total Commitment ($1,500,000 if the Total Commitment is $40,000,000 and
$1,875,000 if the Total Commitment is $50,000,000) (for an aggregate reduction
of 15% of the Total Commitment ($6,000,000 if the Total Commitment is
$40,000,000 and $7,500,000 if the Total Commitment is $50,000,000)). In
connection with the foregoing, on each of January 2, 2005, April 1, 2005, July
1, 2005 and October 1, 2005, the principal amount of the Loans shall be repaid
in separate installments (the "Amortization Payments") on the dates and in the
amounts set forth below (each such payment being separate and not in the
aggregate):
20
Amortization Amortization
Payment Dates Payments for Each Date:
------------- -----------------------
January 2, 2005 The amount by which the amount of
the Outstanding Loans exceeds
(a) $38,500,000 if the Total
Commitment is $40,000,000 or (b)
$48,125,000 if the Total Commitment
is $50,000,000
April 1, 2005 The amount by which the amount of
the Outstanding Loans exceeds
(a) $37,000,000 if the Total
Commitment is $40,000,000 or
$46,250,000 if the Total Commitment
is $50,000,000
July 1, 2005 The amount by which the amount of
the Outstanding Loans exceeds
(a) $35,500,000 if the Total
Commitment is $40,000,000 or
$44,375,000 if the Total Commitment
is $50,000,000
October 1, 2005 The amount by which the amount of
the Outstanding Loans exceeds
(a) $34,000,000 if the Total
Commitment is $40,000,000 or
$42,500,000 if the Total Commitment
is $50,000,000
Borrower shall pay to Agent together with such principal payments such
additional amounts as may be due pursuant to Section 4.8.
SECTION 3.7. EFFECT OF PREPAYMENTS. Amounts of the Loans prepaid under
Section 3.2, Section 3.3 or Section 3.5 may be reborrowed as provided in Section
2.
SECTION 4. CERTAIN GENERAL PROVISIONS.
SECTION 4.1. CONVERSION OPTIONS.
(a) The Borrower may elect from time to time to convert any of its
outstanding 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
21
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 $500,000 or an integral multiple of $100,000 in
excess thereof and, after giving effect to the making of such Loan there shall
be 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 $500,000 or a LIBOR Rate Loan in an aggregate principal amount of less
than $500,000 and that the aggregate principal amount of each Loan shall be in
an integral multiple of $100,000. On the date on which such conversion is being
made, each Bank shall take such action as is necessary to transfer its
Commitment Percentage of such Loans to its Domestic Lending Office or its LIBOR
Lending Office, as the case may be. Each Conversion Request relating to the
conversion of a Base Rate Loan to a LIBOR Rate Loan shall be irrevocable by the
Borrower.
(b) Any Loan may be continued as such Type upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with the
terms of Section 4.1(a); provided that no LIBOR Rate Loan may be continued as
such when any Default or Event of Default has occurred and is continuing, but
shall be automatically converted to a Base Rate Loan on the last day of the
Interest Period relating thereto ending during the continuance of any Default or
Event of Default.
(c) In the event that the Borrower does not notify the Agent of its
election hereunder with respect to any Loan to it, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
SECTION 4.2. COMMITMENT AND SYNDICATION FEE. The Borrower shall pay to
Fleet, the other Banks and Arranger certain fees for services rendered or to be
rendered in connection with the Loan as provided pursuant to the Agreement
Regarding Fees dated of even date herewith between the Borrower and Fleet.
SECTION 4.3. [INTENTIONALLY OMITTED].
SECTION 4.4. FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, unused facility fees,
Agent's 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 lawful
money of the United States in immediately available funds. The Agent is hereby
authorized to charge the accounts of the Borrower with Fleet 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.
22
(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.
SECTION 4.5. COMPUTATIONS. All computations of interest on the Loans and
of other fees to the extent applicable shall be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to LIBOR Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Loans as reflected on the records
of the Agent from time to time shall be considered prima facie evidence of such
amount.
SECTION 4.6. INABILITY TO DETERMINE LIBOR RATE. In the event that, prior
to the commencement of any Interest Period relating to any LIBOR Rate Loan, the
Agent shall reasonably determine that adequate and reasonable methods do not
exist for ascertaining the LIBOR Rate for such Interest Period, the Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower and the Banks) to the Borrower and the Banks. In such
event (a) any Loan Request with respect to LIBOR Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans and
(b) each LIBOR Rate Loan will automatically, on the last day of the then current
Interest Period thereof, become a Base Rate Loan, and the obligations of the
Banks to make LIBOR Rate Loans shall be suspended until the Agent determines
that the circumstances giving rise to such suspension no longer exist, whereupon
the Agent shall so notify the Borrower and the Banks.
SECTION 4.7. ILLEGALITY. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the interpretation
or application thereof shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over a Bank or its LIBOR Lending
Office shall assert that it is unlawful, for any Bank to make or maintain LIBOR
Rate Loans, such Bank shall forthwith give notice of such circumstances to the
Agent and the Borrower and thereupon (a) the commitment of the Banks to make
LIBOR Rate Loans or convert Loans of another type to LIBOR Rate Loans shall
forthwith be suspended and (b) the LIBOR Rate Loans then outstanding shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law.
23
SECTION 4.8. ADDITIONAL INTEREST. If any LIBOR Rate Loan or any portion
thereof is repaid, reapportioned as a result of an increase in the Total
Commitment as contemplated in Section 2.8(c), or converted to a Base Rate Loan
for any reason on a date which is prior to the last day of the Interest Period
applicable to such LIBOR Rate Loan, or if repayment of the Loans has been
accelerated as provided in Section 12.1, the Borrower will pay to the Agent upon
demand (and, if any payment is required as a result of an increase in the Total
Commitment, prior to the effectiveness of any such increase) for the account of
the Banks in accordance with their respective Commitment Percentages, in
addition to any amounts of interest otherwise payable hereunder, any amounts
required to compensate the Banks for any losses, costs or expenses which may
reasonably be incurred as a result of such payment, reapportionment or
conversion, 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, reapportioned 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). Such amount shall be reduced to present value by using the
rate on the United States Treasury securities described in the foregoing
sentence and the number of days remaining in the unexpired portion of the
Interest Period in question.
SECTION 4.9. ADDITIONAL COSTS, ETC. Notwithstanding 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 Documents, such Bank's Commitment or the Loans (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
24
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, 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 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
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such Bank or the Agent
from the Borrower hereunder,
then, and in each such case, the Borrower will within fifteen (15) days after
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent such additional amounts as such Bank or the Agent shall determine
in good faith to be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or other sum. Each Bank
and the Agent in determining such amounts may use any reasonable averaging and
attribution methods, generally applied by such Bank or the Agent.
SECTION 4.10. CAPITAL ADEQUACY. If after the date hereof any Bank
determines that (a) the adoption of or change in any law, rule, regulation or
guideline regarding capital requirements for banks or bank holding companies or
any change in the interpretation or application thereof by any governmental
authority charged with the administration thereof, or (b) compliance by such
Bank or its parent bank holding company with any guideline, request or directive
of any such entity regarding capital adequacy (whether or not having the force
of law), has the effect of reducing the return on such Bank's or such holding
company's capital as a consequence of such Bank's commitment to make Loans
hereunder to a level below that which such Bank or holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's or such holding company's then existing policies with respect to
capital adequacy and assuming the full utilization of such entity's capital) by
any amount deemed by such Bank to be material, then such Bank may notify the
Borrower thereof. The Borrower agrees to pay to such Bank the amount of such
reduction in the return on capital as and when such reduction is determined,
upon presentation by such Bank of a statement of the amount and setting forth
such Bank's calculation thereof. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
SECTION 4.11. INDEMNITY OF BORROWER. The Borrower agrees to indemnify each
Bank and to hold each Bank harmless from and against any loss, cost or expense
that such Bank may sustain or incur as a consequence of (a) default by the
Borrower in payment of the principal amount of or any interest on any LIBOR Rate
Loans as and when due and payable, including any such loss or expense arising
from interest or fees payable by such Bank to lenders of funds obtained by it
25
in order to maintain its LIBOR Rate Loans, or (b) default by the Borrower in
making a borrowing or conversion after the Borrower has given (or is deemed to
have given) a Loan Request or a Conversion Request.
SECTION 4.12. INTEREST ON OVERDUE AMOUNTS; LATE CHARGE. Overdue principal
on the Loans and all other overdue amounts payable hereunder or under any of the
other Loan Documents (other than interest on the Loans) shall, following the
expiration of any applicable cure period expressly provided for in this
Agreement, bear interest payable on demand at a rate per annum equal to two
percent (2.0%) above the rate that would otherwise be applicable at such time
until such amount shall be paid in full (after as well as before judgment).
Overdue interest on the Loans shall, following the expiration of any applicable
cure period expressly provided for in this Agreement, bear interest payable on
demand at a rate equal to the lesser of (i) a per annum rate equal to two
percent (2.0%) above the rate that would otherwise be applicable at such time or
(ii) the maximum annual rate of interest permitted by applicable law until such
amount shall be paid in full (after as well as before judgment). In addition,
the Borrower shall pay a late charge equal to four percent (4.0%) of any amount
of interest and/or principal payable on the Loans or any other amounts payable
hereunder or under the Loan Documents, which is not paid by the Borrower within
fifteen (15) days after the same shall become due and payable.
SECTION 4.13. HLT CLASSIFICATION. The 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 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.
SECTION 4.14. CERTIFICATE. A certificate setting forth any amounts payable
pursuant to Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section 4.12
or Ss.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.
26
SECTION 4.15. LIMITATION ON INTEREST. Notwithstanding anything in this
Agreement to the contrary, all agreements between the Borrower and the Banks and
the Agent, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of
acceleration of the maturity of any of the Obligations or otherwise, shall the
interest contracted for, charged or received by the Banks exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Banks in excess of the maximum lawful
amount, the interest payable to the Banks shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance the Banks shall
ever receive anything of value deemed interest by applicable law in excess of
the maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal balance of the Obligations of the
Borrower and to the payment of interest or, if such excessive interest exceeds
the unpaid balance of principal of the Obligations of the Borrower, such excess
shall be refunded to the Borrower. All interest paid or agreed to be paid to the
Banks shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full period until payment in full of the
principal of the Obligations of the Borrower (including the period of any
renewal or extension thereof) so that the interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law. This section
shall control all agreements between the Borrower and the Banks and the Agent.
SECTION 5. COLLATERAL SECURITY.
SECTION 5.1. COLLATERAL. The Banks have agreed to make the Loans to the
Borrower on an unsecured basis. Notwithstanding the foregoing, the Obligations
shall be guaranteed pursuant to the terms of the Guaranty.
SECTION 6. 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.
SECTION 6.1. CORPORATE AUTHORITY, ETC.
(a) Incorporation; Good Standing. The Borrower is a Delaware limited
partnership duly organized pursuant to its first amended and restated limited
partnership agreement dated May 10, 1996, as amended by amendments one through
eighteen, 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 Maryland
real estate investment trust duly organized pursuant to its trust declaration
dated October 2, 1997, as amended and supplemented, and a Certificate of Trust
filed with the Secretary of the State of Maryland and is validly existing and in
good standing under the laws of the State of Maryland. Each 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 Real Estate of the
Borrower is located and in each other jurisdiction where a failure to be so
qualified in such other jurisdiction
27
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
and as presently contemplated and (iii) is in good standing and is duly
authorized to do business in each jurisdiction where Real Estate held by it is
located and in each other jurisdiction where a failure to be so qualified could
have a materially adverse effect on the business, assets or financial condition
of the Borrower, the Guarantor, or such Subsidiary.
(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.
SECTION 6.2. GOVERNMENTAL APPROVALS. 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 do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained.
SECTION 6.3. TITLE TO PROPERTIES; LEASE. The Borrower, the 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
28
rights of others, including any mortgages, leases, conditional sales agreements,
title retention agreements, liens or other encumbrances except Permitted Liens.
SECTION 6.4. FINANCIAL STATEMENTS. The Borrower has delivered to each of
the Banks: (a) the consolidated balance sheet of the Guarantor and its
respective Subsidiaries as of the Balance Sheet Date, and (b) certain other
financial information relating to the Borrower, the Guarantor and the Real
Estate. Such balance sheet and other information have been prepared in
accordance with generally accepted accounting principles and fairly present the
financial condition of the Borrower, the Guarantor and their respective
Subsidiaries as of such dates and the results of the operations of the Borrower,
the Guarantor and their respective Subsidiaries 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.
SECTION 6.5. NO MATERIAL CHANGES. Since the Balance Sheet Date, there has
occurred no materially adverse change in the financial condition or business of
the Borrower, the 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.
SECTION 6.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The 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.
SECTION 6.7. LITIGATION. Except as stated on Schedule 6.7 there are no
actions, suits, proceedings or investigations of any kind pending or to the
knowledge of such person threatened against the Borrower, the Guarantor or any
of their respective Subsidiaries before any court, tribunal, arbitrator,
mediator or administrative agency or board that, if adversely determined, might,
either in any case or in the aggregate, materially adversely affect the
properties, assets, financial condition or business of such Person or materially
impair the right of such Person to carry on business substantially as now
conducted by it, or result in any liability not adequately covered by insurance,
or for which adequate reserves are not maintained on the balance sheet of such
Person, or which question the validity of this Agreement or any of the other
Loan Documents, any action taken or to be taken pursuant hereto or thereto or
any lien or security interest created or intended to be created pursuant hereto
or thereto, or which will adversely affect the ability of the Borrower or the
Guarantor to pay and perform the Obligations in the manner contemplated by this
Agreement and the other Loan Documents.
SECTION 6.8. 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
29
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.
SECTION 6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None 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.
SECTION 6.10. TAX STATUS. The 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.
SECTION 6.11. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
SECTION 6.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrower, the 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.
SECTION 6.13. ABSENCE OF UCC FINANCING STATEMENTS, ETC. Except with
respect to Permitted Liens, there is no financing statement, security agreement,
chattel mortgage, real estate mortgage or other document filed or recorded with
any filing records, registry, or other public office, that purports to cover,
affect or give notice of any present or possible future lien on, or security
interest or security title in, any property of the Borrower, the Guarantor or
any of their respective Subsidiaries or rights thereunder.
SECTION 6.14. [INTENTIONALLY OMITTED].
SECTION 6.15. CERTAIN TRANSACTIONS. Except as set forth on Schedule 6.15,
none of the officers, trustees, directors, or employees of the Borrower, the
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
30
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.
SECTION 6.16. EMPLOYEE BENEFIT PLANS. The 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.
SECTION 6.17. REGULATIONS T, U AND X. No portion of any Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations T, U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224.
SECTION 6.18. ENVIRONMENTAL COMPLIANCE. The 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) To the best of the Borrower's and the Guarantor's knowledge,
none of the Borrower, the Guarantor or their respective Subsidiaries or any
operator of the Real Estate, or any operations thereon is in violation, or
alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including, without limitation,
those arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("▇▇▇▇"), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation, ordinance,
order or decree relating to the environment (hereinafter "Environmental Laws"),
which violation involves the Real Estate and would have a material adverse
effect on the business, assets or financial condition of the Borrower, 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
31
with respect to a site listed on the National Priorities List, 40 C.F.R. Part
▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (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) To the best of the Borrower's and the Guarantor's knowledge,
except as specifically set forth in the environmental assessments with respect
to the "Mortgaged Properties" under the Revolving Credit Agreement provided to
the Agent on or before the date hereof or as set forth on Schedule 6.18 attached
hereto, or in the case of Real Estate acquired after the date hereof, to the
best of the Borrower's and Guarantor's knowledge except as may be disclosed to
the Agent in writing upon the acquisition of the same: (i) no portion of the
Real Estate has been used for the handling, processing, storage or disposal of
Hazardous Substances except in accordance with applicable Environmental Laws in
all material respects, and no underground tank or other underground storage
receptacle for Hazardous Substances is located on any portion of the Real
Estate; (ii) in the course of any activities conducted by either the Borrower,
the 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
Real Estate, or, to the best of the Borrower's or the Guarantor's knowledge, on,
upon, 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, or the Real Estate is subject to any applicable Environmental Law
requiring the performance of Hazardous Substances site assessments, or the
removal or remediation of Hazardous Substances,
32
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.
SECTION 6.19. SUBSIDIARIES AND JOINT VENTURES. Schedule 6.19 sets forth
all of the Subsidiaries and joint ventures of the Borrower and the Guarantor.
The form and jurisdiction of organization of each of the Subsidiaries and joint
ventures, and the Borrower's and the Guarantor's ownership interest therein, is
set forth in said Schedule 6.19.
SECTION 6.20. [INTENTIONALLY OMITTED].
SECTION 6.21. LOAN DOCUMENTS. All of the representations and warranties
made by or on behalf of the Borrower, the 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.
SECTION 6.22. PROPERTY. All of the Borrower's and its Subsidiaries' Real
Estate is in good condition and working order subject to ordinary wear and tear.
The Borrower further has completed an appropriate investigation of the
environmental condition of each such property owned or leased by the Borrower or
its Subsidiaries as of the later of the date of the Borrower's or such
Subsidiaries' purchase thereof or the date upon which such property was last
given as security for Indebtedness of the Borrower or such Subsidiary, including
preparation or updating of a "Phase I" report and, if recommended by the "Phase
I" report, a "Phase II" report, in each case prepared by a recognized
environmental engineer in accordance with customary standards which discloses
that such property is not in violation of the representations and covenants set
forth in this Agreement, unless satisfactory remediation actions are being
taken. There are no unpaid or outstanding real estate or other taxes or
assessments on or against any property of the Borrower or any of its
Subsidiaries which are payable by the Borrower or its Subsidiaries (except only
real estate or other taxes or assessments, that are not yet due and payable or
are being protested as permitted by this Agreement). There are no pending
eminent domain proceedings against any property of the Borrower or its
Subsidiaries or any part thereof, and, to the knowledge of the Borrower, no such
proceedings are presently threatened or contemplated by any taking authority
which may individually or in the aggregate have any materially adverse effect on
the business or financial condition of the Borrower. None of the property of the
Borrower or its Subsidiaries is now damaged as a result of any fire, explosion,
accident, flood or other casualty in any manner which individually or in the
aggregate would have any materially adverse effect on the business or financial
condition of the Borrower.
SECTION 6.23. BROKERS. None 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.
SECTION 6.24. OTHER DEBT. None 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,
33
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.
SECTION 6.25. SOLVENCY. As of the Closing Date and after giving effect to
the transactions contemplated by this Agreement and the other Loan Documents,
including all Loans made or to be made hereunder, neither the Borrower, the
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.
SECTION 6.26. [INTENTIONALLY OMITTED].
SECTION 6.27. NO FRAUDULENT INTENT. Neither the execution and delivery of
this Agreement or any of the other Loan Documents nor the performance of any
actions required hereunder or thereunder is being undertaken by the Borrower,
Guarantor or any of their respective Subsidiaries with or as a result of any
actual intent by any of such Persons to hinder, delay or defraud any entity to
which any of such Persons is now or will hereafter become indebted.
SECTION 6.28. TRANSACTION IN BEST INTERESTS OF BORROWER; CONSIDERATION.
The transaction evidenced by this Agreement and the other Loan Documents is in
the best interests of the Borrower, the 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 to guaranty the Loan, Borrower would be unable to obtain the financing
contemplated hereunder which financing will enable the Borrower and its
Subsidiaries to have available financing to refinance the indebtedness under the
Prior Credit Agreement and to conduct and expand their business.
SECTION 6.29. PARTNERS AND THE GUARANTOR. Guarantor is the sole general
partner of the Borrower and owns a 1% general partnership interest and a 79.714%
limited partnership interest in the Borrower. Guarantor owns no assets other
than its interest in the Borrower as a general partner and limited partner,
cash, Short-term Investments and the property described in Schedule 6.29 hereto.
34
SECTION 6.30. PRINCIPAL DOCUMENTS. All obligations of the parties under
each of the Principal Documents has been satisfied, and there are no surviving
benefits or obligations under any of the Principal Documents.
SECTION 7. 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 or Note is outstanding or any Bank
has any obligation to make any Loans:
SECTION 7.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay
or cause to be paid the principal and interest on the Loans and all interest and
fees provided for in this Agreement, all in accordance with the terms of this
Agreement and the Notes as well as all other sums owing pursuant to the Loan
Documents.
SECTION 7.2. MAINTENANCE OF OFFICE. The Borrower will maintain its chief
executive office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇, or at such other place in the United States of America as the Borrower
shall designate upon prior written notice to the Agent and the Banks, where
notices, presentations and demands to or upon the Borrower in respect of the
Loan Documents may be given or made.
SECTION 7.3. RECORDS AND ACCOUNTS. The Borrower 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.
SECTION 7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower and the 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 Five" 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;
35
(b) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower and the 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, 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;
(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, 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 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
Guarantor and 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) [INTENTIONALLY OMITTED];
(h) [INTENTIONALLY OMITTED];
36
(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
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) [INTENTIONALLY OMITTED];
(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
37
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by a certification by the
principal financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial position of
the Borrower and its Subsidiaries on the date thereof (provided, however, the
Borrower shall not be required to provide such statements in the event that such
statements would be substantially similar to the consolidated statements
provided by the Guarantor); and
(p) 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.
SECTION 7.5. NOTICES.
(a) Defaults. The Borrower will promptly notify the Agent in writing
of the occurrence of any Default or Event of Default. If any Person shall give
any notice or take any other action in respect of a claimed default (whether or
not constituting an Event of Default) under this Agreement or under any note,
evidence of indebtedness, indenture or other obligation 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 any Real Estate; (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 potential environmental liability, of any federal, state or local
environmental agency or board, that in either case involves any Real Estate or
has the potential to materially affect the assets, liabilities, financial
conditions or operations of the Borrower or any Subsidiary.
(c) Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting the Borrower, the 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
38
Borrower, the Guarantor or any of their respective Subsidiaries in an amount in
excess of $100,000.
(d) Notice of Proposed Sales, Encumbrances, Refinance or Transfer of
Real Estate. The Borrower will give notice to the Agent of any proposed or
completed sale, encumbrance, refinance or transfer of any Real Estate 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 $25,000,000.00, 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 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.
(e) Notification of Banks. Promptly after receiving any notice under
this Section 7.5, the Agent will forward a copy thereof to each of the Banks,
together with copies of any certificates or other written information that
accompanied such notice.
SECTION 7.6. EXISTENCE; MAINTENANCE OF PROPERTIES.
(a) The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Delaware limited
partnership. The 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 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 any
Real Estate or on the financial condition, assets or operations of the Borrower
and its Subsidiaries.
39
(c) The common stock of Guarantor shall at all times be listed for
trading and be traded on the New York Stock Exchange.
SECTION 7.7. INSURANCE. The Borrower will procure and maintain or cause to
be procured and maintained insurance covering the Borrower and the Guarantor and
their respective Subsidiaries and their respective properties (the cost of such
insurance to be borne by the insured thereunder) in such amounts and against
such risks and casualties as are customary for properties of similar character
and location, due regard being given to the type of improvements thereon, their
construction, location, use and occupancy.
SECTION 7.8. TAXES. The Borrower 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 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.
SECTION 7.9. INSPECTION OF PROPERTIES AND BOOKS. The 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.
SECTION 7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
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 or Note is outstanding or the
Banks have any obligation to make Loans hereunder, any authorization, consent,
approval, permit or license from any officer, agency or instrumentality of any
government shall become necessary or
40
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.
SECTION 7.11. USE OF PROCEEDS. Subject to the terms, covenants and
conditions set forth herein, the Borrower will use the proceeds of the Loans 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.
SECTION 7.12. FURTHER ASSURANCES. Each 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.
SECTION 7.13. COMPLIANCE. The 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.
SECTION 7.14. LIMITING AGREEMENTS.
(a) Neither Borrower, the Guarantor nor any of their respective
Subsidiaries shall enter into, any agreement, instrument or transaction which
has or may have the effect of prohibiting or limiting Borrower's, the
Guarantor's or any of their respective Subsidiaries' ability to pledge to Agent
any assets which are owned by the Borrower, the Guarantor or any such Subsidiary
and which are not otherwise now or in the future subject to liens permitted by
Section 8.2(vi), (vii) and (viii) as security for the Loans. Borrower shall
take, and shall cause the Guarantor and their respective Subsidiaries to take,
such actions as are necessary to preserve the right and ability of Borrower, the
Guarantor and their respective Subsidiaries to pledge such assets as security
for the Loans without any such pledge after the date hereof causing or
permitting the acceleration (after the giving of notice or the passage of time,
or otherwise) of any other Indebtedness of Borrower, the Guarantor or any of
their respective Subsidiaries.
(b) Borrower shall, upon demand, provide to the Agent such evidence
as the Agent may reasonably require to evidence compliance with this Section
7.14, which evidence shall include, without limitation, copies of any agreements
or instruments which would in any way restrict or limit the Borrower's, any
Guarantor's or any Subsidiary's ability to pledge assets as security for
Indebtedness, or which provide for the occurrence of a default (after the giving
of notice or the passage of time, or otherwise) if assets are pledged in the
future as security for Indebtedness of the Borrower or Guarantor.
41
SECTION 7.15. OWNERSHIP OF REAL ESTATE. Without the prior written consent
of the Majority Banks, which consent may be withheld by the Majority Banks in
their sole discretion, 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, subject to the
restrictions in Section 8.3, the Borrower shall be permitted to own Real Estate
through Subsidiaries or joint ventures.
SECTION 7.16. MORE RESTRICTIVE AGREEMENTS. Should 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 or the Guaranty, 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
7.16 shall not apply to covenants contained in any agreements or documents
evidencing or securing Non-recourse Indebtedness or covenants in agreements or
documents relating to recourse Indebtedness that relate only to specific Real
Estate that is collateral for such Indebtedness.
SECTION 7.17. GUARANTOR RESTRICTIONS. The Borrower and Guarantor covenant
and agree that: Guarantor will at all times (a) be the sole general partner of
the Borrower, (b) own not less than fifty-one percent (51%) of the partnership
interests in the Borrower, and in any event the largest percentage interest of
any partner in the Borrower and (c) be responsible for making all major and
day-to-day operational and management decisions to be made by the Borrower in
the conduct of its business. Without the prior written consent of Agent,
Guarantor shall not own any assets other than its interest in the Borrower as a
general partner and a limited partner, cash, Short-term Investments and the
property described on Schedule 6.29 hereto.
SECTION 7.18. INTEREST RATE CONTRACT(S). The Borrower shall at all times
from and after the date hereof maintain in full force and effect, an Interest
Rate Contract(s) in form and substance satisfactory to Agent on an amount equal
to the lesser of (a) $75,000,000.00 or (b) an amount necessary to ensure that
not more than twenty-five percent (25%) of all outstanding "Debt" (as
hereinafter defined) of Borrower and its Subsidiaries is variable rate Debt. The
Interest Rate Contract(s) shall be provided by any Bank which is a party to this
Agreement or a bank or other financial institution that has unsecured, uninsured
and unguaranteed long-term debt which is rated at least A-3 by ▇▇▇▇▇'▇ Investor
Service, Inc. or at least A- by Standard & Poor's Corporation. The Borrower
shall upon the request of the Agent provide to the Agent evidence that the
Interest Rate Contract(s) is in effect. For the purposes of this Section 7.18,
the term "Debt" shall mean any indebtedness of the Borrower or any of its
Subsidiaries, whether or not contingent, and without duplication, in respect of
(i) borrowed money evidenced by bonds, notes,
42
debentures or similar instruments or (ii) indebtedness secured by any mortgage,
pledge, lien, charge, encumbrance or any security interest existing on property
owned by the Borrower or any of its Subsidiaries, to the extent that any such
items would appear as a liability on the balance sheet of the Borrower or any of
its Subsidiaries in accordance with generally accepted accounting principles,
and also includes, to the extent not otherwise included, any obligation by the
Borrower or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), indebtedness of another Person (other than the Borrower or any
Subsidiary) (it being understood that Debt shall be deemed to be incurred by the
Borrower or any of its Subsidiaries whenever the Borrower or any of its
Subsidiaries shall create, assume, guarantee or otherwise become liable in
respect thereof).
SECTION 8. 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 or Note is outstanding or any of the Banks has any
obligation to make any Loans:
SECTION 8.1. RESTRICTIONS ON INDEBTEDNESS. Except as permitted in Section
8.1(f) below, the 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 Rate
Contract required pursuant to Section 7.18;
(b) current liabilities of the Borrower or its Subsidiaries incurred
in the ordinary course of business but not incurred through (i) the borrowing of
money, or (ii) the obtaining of credit except for credit on an open account
basis customarily extended and in fact extended in connection with normal
purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment therefor shall not at the time be required to be made in accordance
with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards 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, (i) Non-recourse
Indebtedness of the Borrower or any of its Subsidiaries, provided that neither
the Borrower nor any of its
43
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,
and (ii) Indebtedness of Borrower or Guarantor under environmental indemnities
and guarantees with respect to customary exceptions to exculpatory language with
respect to Non-recourse Indebtedness of Borrower's Subsidiaries or joint
ventures permitted pursuant to Section 8.3(k) (it being agreed that any such
indemnity or guaranty shall not cause such Non-recourse Indebtedness to be
deemed to be recourse Indebtedness and provided that in the event any claim is
made against Borrower, Guarantor or any of its Subsidiaries with respect to such
indemnities, guarantees or exceptions, the amount so claimed shall be considered
a recourse liability of such Person);
(g) Indebtedness in respect of reverse repurchase agreements having
a term of not more than one hundred eighty (180) days with respect to
Investments described in Section 8.3(d) or (e);
(h) subject to the provisions of Section 9, other unsecured recourse
Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding
principal amount (excluding the Obligations) not exceeding $5,000,000.00;
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, (i) recourse debt to
obtain a construction loan or loans or obligations under completion guarantees
in an aggregate amount not exceeding $40,000,000.00 and (ii) recourse debt to
obtain a construction loan or loans or obligations under completion guarantees
in an aggregate additional amount not exceed $30,000,000.00 provided that the
Real Estate with respect to which any such loan or guarantee pertains has a
"Debt Service Coverage Ratio" (as hereunder defined) of not less than 1.30 to 1;
and provided that in the case of either (i) or (ii) of this Section 8.1(j), the
liability under any completion guaranty shall equal the remaining costs to
complete the applicable construction project in excess of construction loan or
mezzanine loan proceeds available therefor and any equity deposited or invested
for the payment of such costs. For the purposes of this Section 8.1(j), "Debt
Service Coverage Ratio" means, on any date of determination, for the period of
four (4) fiscal quarters just ended prior to the date of determination, the
ratio of (i) Operating Cash Flow from the subject parcel of Real Estate to (ii)
Debt Service relating to such parcel of Real Estate for such period; provided,
however, that for the purposes of determining compliance with this debt service
coverage ratio requirement, prior to such time as the Borrower has owned and
operated a parcel of Real Estate to which a construction loan or completion
guaranty pertains for four (4) full fiscal quarters, the Operating Cash Flow
with respect to such parcel of Real Estate for the number of full fiscal
quarters which the Borrower has owned and operated such parcel of Real Estate as
annualized shall be utilized;
44
(k) subject to the provisions of Section 9, other secured recourse
Indebtedness in a principal amount not to exceed $125,000,000.00 (or
$150,000,000.00 if, but only if, the facility under the Revolving Credit
Agreement is increased as contemplated therein);
(l) subject to the provisions of Section 9, Indebtedness arising
under any Interest Rate Contract required by the holder of Indebtedness
described in Section 8.1(k), provided that any such Indebtedness does not
materially exceed the Indebtedness under the Interest Rate Contract required by
the Revolving Credit Agreement as of the date hereof;
(m) subject to the provisions of Section 9, unsecured Indebtedness
of Borrower under guarantees of loans made to employees of Guarantor to purchase
stock in Guarantor, provided that such Indebtedness does not exceed
$15,000,000.00 in the aggregate;
(n) subject to the provisions of Section 9, other unsecured recourse
Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding
principal amount not exceeding $5,000,000.00 in connection with the issuance of
letters of credit on behalf of Borrower or any of its Subsidiaries (exclusive of
letters of credit issued under the Revolving Credit Agreement); and
(o) subject to the provisions of Section 9, unsecured Indebtedness
under guarantees to joint venture partners relating to the repurchase of
ownership interests of such joint venture partners, provided that such
Indebtedness does not exceed $15,000,000.00 in the aggregate, and provided
further that any such guaranty may at the option of Agent not be considered as
Indebtedness for the purposes of Section 9.1 of this Agreement in the event that
Agent shall determine in its sole discretion that circumstances relating to the
Real Estate to which such guaranty relates are such that it is not likely that
such guaranty would be called upon.
SECTION 8.2. RESTRICTIONS ON LIENS ETC. Neither 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 thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; 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 securing Indebtedness owing by
Subsidiaries of such Person to such Person;
45
(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 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 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 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 acquired by
Indebtedness permitted by Section 8.1(i);
(vii) liens on properties or interests therein to secure
Indebtedness permitted by Section 8.1(f) or Section 8.1(k); and
(viii) liens and encumbrances on Real Estate that is the
subject of a construction loan permitted under the terms of Section 8.1(j).
SECTION 8.3. RESTRICTIONS ON INVESTMENTS. Neither 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,
46
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 ▇▇▇▇▇'▇
Investors Service, Inc. or by Standard & Poor's Corporation at not less than "P
1" if then rated by ▇▇▇▇▇'▇ Investors Service, Inc., and not less than "A 1", if
then rated by Standard & Poor's Corporation;
(e) mortgage-backed securities guaranteed by the Government National
Mortgage Association, the Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation and other mortgage-backed bonds which at the time
of purchase are rated by ▇▇▇▇▇'▇ Investors Service, Inc. or by Standard & Poor's
Corporation at not less than "Aa" if then rated by ▇▇▇▇▇'▇ Investors Service,
Inc. and not less than "AA" if then rated by Standard & Poor's Corporation;
(f) repurchase agreements having a term not greater than ninety (90)
days and fully secured by securities described in the foregoing subsection (a),
(b) or (e) with banks described in the foregoing subsection (c) or with
financial institutions or other corporations having total assets in excess of
$500,000,000;
(g) shares of so-called "money market funds" registered with the SEC
under the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in investments described in the foregoing subsections (a)
through (f) and have total assets in excess of $50,000,000;
(h) Investments in Subsidiaries of the Borrower or the Guarantor,
but any Investment in existing Subsidiaries that are not one hundred percent
(100%) owned by the Borrower or the Guarantor or new Subsidiaries that are not
one hundred percent (100%) owned by the Borrower or the Guarantor after the date
hereof in the aggregate in excess of $30,000,000.00 shall only be made with the
consent of the Majority Banks. For the purposes hereof only, ▇▇▇▇ ▇▇▇▇▇▇
Kentwood Associates and S-12 Associates shall be considered Subsidiaries of the
Borrower;
(i) the acquisition of fee interests by the Borrower in Real Estate
which is utilized principally for shopping centers, and, subject to the
restrictions set forth in Section 8.9 for development of new shopping centers,
the acquisition of undeveloped Real Estate;
(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(n);
(k) Investments in joint ventures of the Borrower in which the
ownership interests of the Borrower are such that such joint venture would not
constitute a Subsidiary hereunder and the accounts of which are not consolidated
with the accounts of Borrower, which
47
joint ventures are engaged in the ownership of Real Estate or development
activity pursuant to Section 8.9, and Investments in mortgages and notes
receivables from such joint ventures, provided that in no event shall such
Investments (including the principal amount payable pursuant to such notes)
shall not exceed $30,000,000.00 in the aggregate without the prior written
consent of the Required Banks. For the purposes of this Section 8.3(k) only,
notes receivable from joint ventures shall be valued at face value (subject to
reduction as a result of payments thereon); and
(l) Investments in any common or preferred stock issued by Guarantor
which has been repurchased by the Guarantor, Borrower or any of its
Subsidiaries, provided that in no event shall such Investments exceed in the
aggregate $15,000,000.00 (calculated based upon the consideration given for such
stock) unless the respective ratio of Borrower's and Guarantor's Consolidated
Total Liabilities to such Person's Consolidated Total Adjusted Asset Value is
less than 0.55 to 1 at the time of such Investment and would be less than 0.55
to 1 after giving effect to such Investment.
SECTION 8.4. MERGER, CONSOLIDATION. 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 (a) the merger or consolidation of one or
more of the Subsidiaries of the Borrower with and into the Borrower or (b) the
merger or consolidation of two or more Subsidiaries of the Borrower.
SECTION 8.5. CONDUCT OF BUSINESS. Neither the Borrower nor the Guarantor
will conduct any of its business operations other than through the Borrower and
its Subsidiaries; provided, however, that subject to Section 8.3(k) and Section
8.9, ownership of Real Estate And development activities may be conducted
through Affiliates or joint ventures of the Borrower as provided therein. No
reorganizations, spin-offs or new business lines shall be established or occur
without the prior written consent of the Majority Banks.
SECTION 8.6. COMPLIANCE WITH ENVIRONMENTAL LAWS. Neither the Borrower nor
the 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
48
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 Real Estate (including without limitation
any such Release or disposal occurring prior to the acquisition of such Real
Estate by the Borrower), cause the prompt containment and removal of such
Hazardous Substances and remediation of the Real Estate 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 Real Estate, or that any of the Real Estate 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
Real Estate 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 Real Estate
and (ii) whether the use and operation of such Real Estate comply with all
Environmental Laws. Environmental assessments may include detailed visual
inspections of such Real Estate including, without limitation, any and all
storage areas, storage tanks, drains, dry ▇▇▇▇▇ 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
Real Estate and the use and operation thereof with all applicable Environmental
Laws. All such environmental assessments shall be at the sole cost and expense
of the Borrower.
SECTION 8.7. DISTRIBUTIONS. Neither the Borrower nor the 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; provided, however, notwithstanding
the foregoing, Borrower and Guarantor may, subject to the limitations set forth
in this Agreement (including specifically, but without limitation, those
contained in ss.ss.8.3(l) And 8.7(b)) make Distributions in order to enable
Borrower or Guarantor to repurchase common or preferred stock of Guarantor so
long as (i) no Event of Default shall have occurred and be continuing on the
date of any such repurchase and (ii) no Default or Event of Default shall occur
49
as a result of any such repurchase. Notwithstanding the foregoing, the Borrower
may pay a Distribution to its partners of sums received by it pursuant to the
Tax 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; provided, however, that neither
Borrower nor Guarantor shall be entitled to make any Distributions in connection
with the repurchase of common or preferred stock of Guarantor at any time after
an Event of Default shall have occurred and be continuing; and
(c) Notwithstanding the foregoing, at any time when an Event of
Default shall have occurred and the maturity of the Obligations has been
accelerated, neither the Borrower nor the Guarantor shall make any Distributions
whatsoever, directly or indirectly.
SECTION 8.8. ASSET SALES. Neither the Borrower, the Guarantor nor any
Subsidiary thereof shall sell, transfer or otherwise dispose of any Real Estate
having an Appraised Value in excess of $25,000,000.00 (except (i) as the result
of a condemnation or casualty, or (ii) for the granting of Permitted Liens, or
(iii) for the sale, transfer or other disposition in the ordinary course of
business of Real Estate securing Indebtedness permitted under by Section 8.1(k))
unless there shall have been delivered to the Agent a statement that no Default
or Event of Default exists immediately prior to such sale, transfer or other
disposition or would exist after giving effect to such sale, transfer or other
disposition.
SECTION 8.9. DEVELOPMENT ACTIVITY. Neither the Borrower, the 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
50
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 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 (based on the gross leasable area of the
improvements to the development, or the phase of the development project being
developed if the Borrower submits and the Agent agrees that the development
consists of more than one (1) phase, excluding outlots), including all anchors,
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,
property shall be deemed to be in development at all times that it is Under
Development.
SECTION 8.10. LINCOLN LOAN PORTFOLIO. Borrower covenants and agrees that
it will not, and will not permit any Subsidiary of Borrower to, sell, transfer
or otherwise dispose (directly or indirectly) any of the Lincoln Loan
Properties. Borrower further covenants and agrees that it will not, and will not
permit any Subsidiary of Borrower to, refinance any of the Lincoln Loan
Properties unless, after giving effect to any such refinance, the "Loan to Value
Ratio" (as defined below) does not exceed 72%. For the purpose of this Section
8.10, "Loan to Value Ratio" shall mean the ratio, expressed as a percentage, of
(i) the sum of (A) the outstanding principal balance of the Lincoln Loan (after
giving effect to the proposed refinance) plus (B) the then applicable amount of
the Total Commitment to (ii) the value of all Lincoln Loan Properties securing
the Lincoln Loan (after giving effect to the proposed refinance) based on
"Appraisals" (as defined below) of the remaining Lincoln Loan Properties, which
Appraisals are dated not more than 12 months prior to the date of the proposed
refinance. For the purposes of this Section 8.10, "Appraisal" means an MAI
appraisal of the value of the Lincoln Loan Properties, determined on a fair
value basis, performed by an independent appraiser reasonably acceptable to 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
51
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 to the Agent.
SECTION 9. 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 or Note is outstanding or any Bank has any obligation
to make any Loans, each of them will comply with the following:
SECTION 9.1. LIABILITIES TO ASSETS RATIO. 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 0.65 to 1; provided, however,
in the event that as of any date of determination, the Borrower's allocable
share of the debt of its joint ventures (determined as provided below) exceeds
$50,000,000.00, for the purposes of determining the Borrower's compliance with
this Section 9.1 only, (a) in determining the Borrower's Consolidated Total
Adjusted Asset Value, the Operating Cash Flow with respect to any parcel of Real
Estate owned by a joint venture of Borrower shall not be reduced by the amount
of all Debt Service of the joint venture as contemplated in clause (iii) of the
definition of Consolidated Total Adjusted Asset Value and (b) in determining the
Borrower's Consolidated Total Liabilities, the Borrower's allocable share of
debt of its joint ventures (determined as provided below) shall be included in
Borrower's Consolidated Total Liabilities. Borrower's allocable share of the
debt of a joint venture shall be determined by multiplying (i) the Borrower's
percentage ownership interest in the joint venture by (ii) the debt of the joint
venture.
SECTION 9.2. DEBT SERVICE COVERAGE. The Borrower will not permit the
Borrower's Consolidated Operating Cash Flow for the period covered by the four
(4) previous consecutive fiscal quarters (treated as a single accounting period)
to be less than 1.60 times the Debt Service of the Borrower for such period;
provided, however, that for purposes of determining compliance with this
covenant, prior to such time as the Borrower has owned and operated a parcel of
Real Estate for four (4) full fiscal quarters, the Operating Cash Flow with
respect to such parcel of Real Estate for the number of full fiscal quarters
which the Borrower has owned and operated such parcel of Real Estate as
annualized shall be utilized. For the purpose of calculating Consolidated
Operating Cash Flow under this Section 9.2 for any parcel of Real Estate, the
Operating Cash Flow Rental Adjustment shall be applied to any parcel of Real
Estate affected by any of the events described in the definition of Operating
Cash Flow Rental Adjustment. Additionally, for the purposes of calculating
Consolidated Operating Cash Flow under this Section 9.2, Operating Cash Flow
attributable to any Redevelopment Property shall be included even if such
Redevelopment Property is then being valued at cost for the purposes of
calculating Borrower's Consolidated Total Adjusted Asset Value. For the purposes
of this Section 9.2, the Operating Cash Flow and Debt Service attributable to
any Real Estate and the principal indebtedness repaid as a part of such sale
shall be excluded from the calculations when such Real Estate is sold.
SECTION 9.3. CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not permit
its Consolidated Tangible Net Worth to be less than $200,000,000.00 plus
seventy-five percent (75%) of any Net Offering Proceeds received by the Borrower
or the Guarantor after the date of this Agreement.
52
SECTION 10. CLOSING CONDITIONS.
The obligations of the Agent and the Banks to enter into this Agreement
and to make the Loans shall be subject to the satisfaction of the following:
SECTION 10.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance reasonably satisfactory to
the Agent. The Agent shall have received a fully executed copy of each such
document, except that each Bank shall have received a fully executed counterpart
of its Note.
SECTION 10.2. CERTIFIED COPIES OF ORGANIZATIONAL DOCUMENTS. The Agent
shall have received from the Borrower a copy, certified as of a recent date by
the appropriate officer of each State in which the Borrower, the Guarantor or
any of their respective Subsidiaries, as applicable, is organized or in which
the Real Estate is located and a duly authorized partner or officer of such
Person, as applicable, to be true and complete, of the partnership agreement,
corporate charter, declaration of trust or other organizational documents of the
Borrower, the Guarantor, or any Subsidiary, as applicable, or its qualification
to do business, as applicable, as in effect on such date of certification.
SECTION 10.3. RESOLUTIONS. All action on the part of the Borrower, the
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, each certified by its
secretary as of a recent date to be true and complete.
SECTION 10.4. INCUMBENCY CERTIFICATE; AUTHORIZED SIGNERS. The Agent shall
have received incumbency certificates, dated as of the date of this Agreement,
signed by a duly authorized officer of the Guarantor (with respect to the
Borrower and the Guarantor) and giving the name and bearing a specimen signature
of each individual who shall be authorized to sign, in the name and on behalf of
the Borrower and the Guarantor, each of the Loan Documents to which such Person
is or is to become a party. The Agent shall have also received from the Borrower
a certificate, dated as of the date of this Agreement, signed by a duly
authorized officer of the Borrower and giving the name and specimen signature of
each individual who shall be authorized to make Loan and Conversion Requests,
and to give notices and to take other action on behalf of the Borrower under the
Loan Documents.
SECTION 10.5. OPINION OF COUNSEL. The Agent shall have received a
favorable opinion addressed to the Banks and the Agent and dated as of the date
of this Agreement, in form and substance satisfactory to the Banks and the
Agent, from counsel of the Borrower and the Guarantor as to such matters as the
Agent shall reasonably request.
SECTION 10.6. PAYMENT OF FEES. The Borrower shall have paid to Fleet the
fees required to be paid at closing pursuant to Section 4.2.
53
SECTION 10.7. PERFORMANCE; NO DEFAULT. The Borrower and 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.
SECTION 10.8. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrower, the Guarantor and their 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 have been true and correct in all material respects when made
and shall also be true and correct in all material respects on the Closing Date.
SECTION 10.9. PROCEEDINGS AND DOCUMENTS. All proceedings in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory to the Agent and the Agent's Special
Counsel in form and substance, and the Agent shall have received all information
and such counterpart originals or certified copies of such documents and such
other certificates, opinions or documents as the Agent and the Agent's Special
Counsel may reasonably require.
SECTION 10.10. STOCKHOLDER AND PARTNER CONSENTS. The Agent shall have
received evidence satisfactory to the Agent that all necessary stockholder and
partner consents required in connection with the consummation of the
transactions contemplated by this Agreement and the other Loan Documents have
been obtained.
SECTION 10.11. COMPLIANCE CERTIFICATE. A Compliance Certificate dated as
of the date of this Agreement demonstrating compliance with each of the
covenants calculated therein as of the most recent fiscal quarter end for which
the Borrower or the Guarantor has provided financial statements under Section
6.4, adjusted in the best good faith estimate of the Borrower or the Guarantor,
as applicable, dated as of the date of this Agreement shall have been delivered
to the Agent.
SECTION 10.12. REVOLVING CREDIT AGREEMENT. The Revolving Credit Agreement
shall have been duly executed and delivered by the parties thereto.
SECTION 10.13. [INTENTIONALLY OMITTED].
SECTION 10.14. NO LEGAL IMPEDIMENT. No change shall have occurred in any
law or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Bank would make it illegal for such Bank to make such Loan.
SECTION 10.15. GOVERNMENTAL REGULATION. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
SECTION 10.16. [INTENTIONALLY OMITTED].
SECTION 10.17. [INTENTIONALLY OMITTED].
54
SECTION 10.18. OTHER. The Agent shall have reviewed such other documents,
instruments, certificates, opinions, assurances, consents and approvals as the
Agent or the Agent's Special Counsel may reasonably have requested.
SECTION 11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, whether on or after the
date of this Agreement, shall also be subject to the satisfaction of the
following conditions precedent:
SECTION 11.1. PRIOR CONDITIONS SATISFIED. All conditions set forth in
Section 10 shall continue to be satisfied as of the date upon which Any Loan is
to be made.
SECTION 11.2. REPRESENTATIONS TRUE; NO DEFAULT. Each 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 with the same effect as if made at and as of that time (except to the
extent of changes resulting from transactions contemplated or permitted by this
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
and except to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall have
occurred and be continuing. The Agent shall have received a certificate of the
Borrower and the Guarantor signed by an authorized officer of the Borrower and
the Guarantor to such effect.
SECTION 11.3. NO LEGAL IMPEDIMENT. There 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.
SECTION 11.4. GOVERNMENTAL REGULATION. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
SECTION 11.5. PROCEEDINGS AND DOCUMENTS. All proceedings in connection
with the Loan shall be satisfactory in substance and in form to the Agent, and
the Agent shall have received all information and such counterpart originals or
certified or other copies of such documents as the Agent may reasonably request.
SECTION 11.6. BORROWING DOCUMENTS. In the case of any request for a Loan,
the Agent shall have received the request for a Loan required by Section 2.5 in
the form of Exhibit B hereto, fully completed.
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
SECTION 12.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "Defaults") shall
occur:
55
(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, 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;
(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 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,
56
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 sixty (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;
(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 or
the Guarantor or any of their respective Subsidiaries 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
57
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 Real Estate;
(o) with respect to any Guaranteed Pension Plan, an ERISA Reportable
Event shall have occurred and the Majority Banks shall have determined in their
reasonable discretion that such event reasonably could be expected to result in
liability of the Borrower, 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) a Change of Control shall occur;
(q) either of the President or Chief Executive Officer of the
Borrower approved by the Majority Banks as of the date of this Agreement shall
cease to be the President or Chief Executive Officer, as applicable, of the
Borrower and a competent and experienced successor for such Person shall not be
approved by the Majority Banks within six (6) months of such event, such
approval not to be unreasonably withheld;
(r) any Event of Default (as defined in any of the other Loan
Documents) shall occur; or
(s) any "Event of Default" (as defined in the Revolving Credit
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 declare all amounts owing with
respect to this Agreement, the Notes, 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; provided that in the event of any Event
of Default specified in Section 12.1(g), Section 12.1(h) or Section 12.1(i), all
such amounts shall become immediately due and payable automatically without any
requirement of notice from any of the Banks or the Agent.
SECTION 12.2. LIMITATION OF CURE PERIODS. Notwithstanding the provisions
of subsections (b), (c) and (d) of Section 12.1, the cure periods provided
therein shall not be allowed and the occurrence of a Default thereunder
immediately shall constitute an Event of Default for all purposes of this
Agreement and the other Loan Documents if, within the period of twelve (12)
months immediately preceding the occurrence of such Default, there shall have
occurred two (2) periods of cure or portions thereof under any one or more than
one of said subsections.
58
SECTION 12.3. TERMINATION OF COMMITMENTS. If any one or more Events of
Default specified in Section 12.1(g), Section 12.1(h) or Section 12.1(i) shall
occur, then immediately and without any action on the part of the Agent or any
Bank any unused portion of the credit hereunder shall terminate and the Banks
shall be relieved of all obligations to make Loans to the Borrower. 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. No termination under this Section 12.3 shall relieve the
Borrower of its obligations to the Banks arising under this Agreement or the
other Loan Documents.
SECTION 12.4. REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, the Agent on
behalf of the Banks may, with the consent of the Majority Banks but not
otherwise, proceed to protect and enforce their rights and remedies under this
Agreement, the Notes, 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.
SECTION 12.5. DISTRIBUTION OF PROCEEDS. In the event that, following the
occurrence or during the continuance of any Event of Default, any monies are
received in connection with the enforcement of any of the Loan Documents, or
otherwise with respect to the realization upon any of the assets of the Borrower
or the Guarantor, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent in connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the rights,
remedies, powers and privileges of the Agent under this Agreement or any of the
other Loan Documents or in support of any provision of adequate indemnity to the
Agent against any taxes or liens which by law shall have, or may have, priority
over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or preference as
the Majority Banks shall determine; provided, however, that (i) 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 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
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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;
(c) Third, the excess, if any, shall be returned to the Borrower or
to such other Persons as are entitled thereto.
SECTION 13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch of where
such deposits are held) or other sums credited by or due from any of the Banks
to the Borrower or 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.
SECTION 14. THE AGENT.
SECTION 14.1. AUTHORIZATION. The Agent is authorized to take such action
on behalf of each of the Banks and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents delegated to
the Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by the Agent. The obligations of
the Agent hereunder are primarily administrative in nature, and nothing
contained in this Agreement or any of the other Loan Documents shall be
construed to constitute the Agent as a trustee for any Bank or to create any
agency or fiduciary relationship. Agent shall act as the contractual
representative of the Banks hereunder, and notwithstanding the use of the term
"Agent" it is understood and agreed that Agent shall not have any fiduciary
duties or responsibilities to any Bank or by reason of this Agreement or any of
the other Loan Documents and is acting as an independent contractor, the duties
of which are limited to those expressly set forth in this Loan Agreement and the
other Loan Documents. The Borrower and any other Person shall be entitled to
conclusively rely on a statement from the Agent that it has the authority to act
for and bind the
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Banks pursuant to this Agreement and the other Loan Documents. The Banks
authorize the Agent to enter into the Subordination Agreement on behalf of the
Banks.
SECTION 14.2. EMPLOYEES AND AGENTS. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent may reasonably determine,
and all reasonable fees and expenses of any such Persons shall be paid by the
Borrower.
SECTION 14.3. NO LIABILITY. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent, or employee thereof, shall be liable to any of the Banks
for any waiver, consent or approval given or any action taken, or omitted to be
taken, in good faith by it or them hereunder or under any of the other Loan
Documents, or in connection herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment whatsoever, except that the
Agent or such other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
SECTION 14.4. NO REPRESENTATIONS. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any of
the other Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the 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 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.
SECTION 14.5. 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
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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.
(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.
SECTION 14.6. HOLDERS OF NOTES. Subject 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.
SECTION 14.7. INDEMNITY. The Banks ratably hereby agree to indemnify and
hold harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise),
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losses, damages, costs, expenses (including any expenses for which the Agent has
not been reimbursed by the Borrower as required by Section 15), and liabilities
of every nature and character arising out of or related to this Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
SECTION 14.8. AGENT AS BANK. In its individual capacity, Fleet 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.
SECTION 14.9. RESIGNATION. The Agent may resign at any time by giving
thirty (30) days' prior written notice thereof to the Banks and the Borrower.
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 ▇▇▇▇▇'▇ 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
thirty (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 ▇▇▇▇▇'▇ 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.
SECTION 14.10. DUTIES IN THE CASE OF ENFORCEMENT. In case one or more
Events of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent may and 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 exercise all or any
legal and equitable and other rights or remedies as it may have. The Majority
Banks may direct the Agent in writing as to the method and the extent of any
such exercise, the Banks hereby agreeing to indemnify and hold the Agent
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
SECTION 14.11. REMOVAL OF AGENT. The Majority Banks may remove the Agent
from its capacity as agent in the event of the Agent's willful misconduct or
gross negligence. Such removal shall be effective upon appointment and
acceptance of a successor agent selected by the Majority Banks. Any successor
agent must satisfy the conditions set forth in Section 14.9. Upon the acceptance
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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.
SECTION 15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein, (b) any taxes (including any interest and
penalties in respect thereto) payable by the Agent or any of the Banks (other
than taxes based upon the Agent's or any Bank's gross or net income), (c) the
reasonable fees, expenses and disbursements of the counsel to the Agent and any
local counsel to the Agent incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein (excluding, however, the preparation of agreements evidencing
participation granted under Section 18.4), each closing hereunder, and
amendments, modifications, approvals, consents or waivers hereto or hereunder,
(d) the reasonable fees, expenses and disbursements of the Agent incurred by the
Agent in connection with the preparation or interpretation of the Loan Documents
and other instruments mentioned herein, and the making of each advance
hereunder, (e) all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and costs, which attorneys may be employees of any Bank or the
Agent and the fees and costs of appraisers, engineers, investment bankers or
other experts retained by any Bank or the Agent) incurred by any Bank or the
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrower or the Guarantor or the
administration thereof after the occurrence of a Default or Event of Default and
(ii) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to the Agent's or any of the Bank's relationship
with the Borrower or the Guarantor, (f) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, UCC
filings, title rundowns, title searches or mortgage recordings, (g) all
reasonable fees, expenses and disbursements (including reasonable attorneys'
fees and costs) which may be incurred by Fleet and the Agent 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 Fleet 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.
SECTION 16. INDEMNIFICATION.
The Borrower and the Guarantor, jointly and severally, agree to indemnify
and hold harmless the Agent, the Banks and the Arranger and each director,
officer, employee, agent and Person who controls the Agent or any Bank from and
against any and all claims, actions and
64
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
Real Estate, (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 ▇▇▇▇ or similar right of any of the
Borrower, the Guarantor or any of their respective Subsidiaries, (e) the
Borrower entering into or performing this Agreement or any of the other Loan
Documents, (f) any actual or alleged violation of any law, ordinance, code,
order, rule, regulation, approval, consent, permit or license relating to the
Real Estate, 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, the Agent and the Arranger shall be
entitled to select a single nationally recognized law firm as their own counsel
and, in addition to the foregoing indemnity, the Borrower and the 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 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.
SECTION 17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower, the 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
65
or in connection with the transactions contemplated hereby shall constitute
representations and warranties by such Person hereunder.
SECTION 18. ASSIGNMENT AND PARTICIPATION.
SECTION 18.1. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided
herein, each Bank may assign to one or more banks or other entities all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment Percentage and Commitment and the same
portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent 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 in the form reasonably required by Agent, 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 unless otherwise approved by Borrower and Agent, (f) such
assignee shall acquire an interest in the Loans of not less than $5,000,000, and
(g) the assignor shall assign its entire interest in the Loans or retain an
interest in the Loans of not less than $5,000,000. Upon such execution,
delivery, acceptance and recording, of such notice of assignment, (i) the
assignee thereunder shall be a party hereto and all other Loan Documents
executed by the Banks and, to the extent provided in such assignment, have the
rights and obligations of a Bank hereunder, and (ii) the assigning Bank shall,
to the extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in Section 18.2, be released from its obligations
under this Agreement. In connection with each assignment, the assignee shall
represent and warrant to the Agent, the assignor and each other Bank as to
whether such assignee is controlling, controlled by, under common control with
or is not otherwise free from influence or control by, the Borrower or the
Guarantor. Each assignee shall acquire its interest in the Loans subject to the
Subordination Agreement. In the event that, as a result of any such assignment,
the Agent in its capacity as a Bank retains an interest in the Loans in an
amount 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.
SECTION 18.2. REGISTER. The 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
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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
$2,500.
SECTION 18.3. NEW NOTES. Upon 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.
SECTION 18.4. PARTICIPATIONS. Each Bank may sell participations to one or
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
any such sale or participation shall not affect the rights and duties of the
selling Bank hereunder to the Borrower, (b) such participation shall not entitle
such participant to any rights or privileges under this Agreement or any Loan
Documents, including without limitation, the right to approve waivers,
amendments or modifications, (c) such participant shall have no direct rights
against the Borrower or the Guarantor except the rights granted to the Banks
pursuant to Section 13, (d) such sale is effected in accordance with all
applicable laws, and (e) such participant shall not be a Person controlling,
controlled by or under common control with, or which is not otherwise free from
influence or control by the Borrower 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.
SECTION 18.5. PLEDGE BY BANK. Any Bank may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or any
portion of its Note) to any of the twelve Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341 or, with Agent's
prior written approval, to another Person. No such pledge or the enforcement
thereof shall release the pledgor Bank from its obligations hereunder or under
any of the other Loan Documents.
SECTION 18.6. NO ASSIGNMENT BY BORROWER OR GUARANTOR. Neither 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.
SECTION 18.7. DISCLOSURE. The 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.
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SECTION 18.8. AMENDMENTS TO LOAN DOCUMENTS. Upon 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.
SECTION 18.9. MANDATORY ASSIGNMENT. In the event Borrower requests that
certain amendments, modifications or waivers be made to this Agreement or any of
the other Loan Documents which request is approved by Agent but is not approved
by one or more of the Banks (any such non-consenting Bank shall hereafter be
referred to as the "Non-Consenting Bank"), then, within thirty (30) days after
Borrower's receipt of notice of such disapproval by such Non-Consenting Bank,
Borrower shall have the right as to such Non-Consenting Bank, to be exercised by
delivery of written notice delivered to the Agent and the Non-Consenting Bank
within thirty (30) days of receipt of such notice, to elect to cause the
Non-Consenting Bank to transfer its Commitment. The Agent shall promptly notify
the remaining Banks that each of such Banks shall have the right, but not the
obligation, to acquire a portion of the Commitment, pro rata based upon their
relevant Commitment Percentages, of the Non-Consenting Bank (or if any of such
Banks does not elect to purchase its pro rata share, then to such remaining
Banks in such proportion as approved by the Agent). In the event that the Banks
do not elect to acquire all of the Non-Consenting Bank's Commitment, then the
Agent shall endeavor to find a new Bank or Banks to acquire such remaining
Commitment. Upon any such purchase of the Commitment of the Non-Consenting Bank,
the Non-Consenting Bank's interests in the Obligations and its rights hereunder
and under the Loan Documents shall terminate at the date of purchase, and the
Non-Consenting Bank shall promptly execute and deliver any and all documents
reasonably requested by Agent to surrender and transfer such interest,
including, without limitation, an assignment and acceptance agreement in the
form and substance reasonably acceptable to Agent and such Non-Consenting Bank's
original Note. The purchase price to be paid by the acquiring Banks for the
Non-Consenting Bank's Commitment shall equal the principal owed to such
Non-Consenting Bank, and the Borrower shall pay to such Non-Consenting Bank in
addition thereto and as a condition to such sale any and all other amounts
outstanding and owed by Borrower to the Non-Consenting Bank hereunder or under
any of the other Loan Documents, including all accrued and unpaid interest or
fees which would be owed to such Non-Consenting Bank hereunder or under any of
the other Loan Documents if the Loans were to be repaid in full on the date of
such purchase of the Non-Consenting Bank's Commitment. No registration fee under
Section 18.2 shall be required in connection with such assignment.
SECTION 19. NOTICES.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Agreement (hereinafter in this Section 19 referred to as
"Notice"), 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:
68
If to the Agent or Fleet:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
With a copy to:
Fleet National Bank
Suite 500
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Borrower or the Guarantor:
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P.
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Suite 225
32270 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
to each other Bank a party hereto at the address for such party set forth on the
signature page for such Bank, and to each other Bank which may hereafter become
a party to this Agreement at such address as may be designated by such Bank.
Each Notice shall be effective upon being personally delivered or upon being
sent by overnight courier or upon being deposited in the United States Mail as
aforesaid. The time period in which a response to such Notice must be
69
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 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.
SECTION 20. 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.
SECTION 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF
MICHIGAN AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE
OF LAW). THE BORROWER AND THE 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 THE STATE OF MICHIGAN OR
ANY FEDERAL COURT SITTING THEREIN AND CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER OR THE 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.
SECTION 22. HEADINGS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
70
SECTION 23. COUNTERPARTS.
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
SECTION 24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated, except as provided in Section 27.
SECTION 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE BORROWER, THE 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.
SECTION 26. 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.
SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement may be given and any term of
this Agreement or of any other instrument related hereto or mentioned herein may
be amended, and the performance or
71
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, (a) none of the following may occur
without the written consent of each Bank: a decrease in the rate of interest on
the Notes; a change in the Maturity Date of the Notes; an increase in the amount
of the Commitments of the Banks except pursuant to Section 18.1; a forgiveness,
reduction or waiver of the principal of any unpaid Loan or any interest thereon;
the postponement of any date fixed for any payment of principal of or interest
on the Loans; a decrease of the amount of any fee (other than late fees) payable
to a Bank hereunder; the release of the Borrower or the Guarantor except as
otherwise provided herein; a change in the manner of distribution of any
payments to the Banks or the Agent; an amendment of the definition of Majority
Banks or of any requirement for consent by the Required Banks or all of the
Banks; or an amendment of this Section 27 and (b) the provisions of
ss.ss.8.3(k), 9.1 and 9.2 or any of the definitions used therein may not be
modified, amended or waived without the written consent of the Required Banks.
The amount of the Agent's fee payable for the Agent's account and the provisions
of Section 14 may not be amended 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 Fleet 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.
SECTION 28. SEVERABILITY.
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 29. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant, agreement
and obligation of the Borrower or the Guarantor under this Agreement and the
other Loan Documents.
SECTION 30. NO UNWRITTEN AGREEMENTS.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE
72
PARTIES. ANY ADDITIONAL TERMS OF THE AGREEMENT BETWEEN THE PARTIES ARE SET FORTH
BELOW.
SECTION 31. REPLACEMENT OF NOTES.
Upon receipt of evidence reasonably satisfactory to Borrower of the loss,
theft, destruction or mutilation of any Note, and in the case of any such loss,
theft or destruction, upon delivery of an indemnity agreement reasonably
satisfactory to Borrower or, in the case of any such mutilation, upon surrender
and cancellation of the applicable Note, Borrower will execute and deliver, in
lieu thereof, a replacement Note, identical in form and substance to the
applicable Note and dated as of the date of the applicable Note and upon such
execution and delivery all references in the Loan Documents to such Note shall
be deemed to refer to such replacement Note.
SECTION 32. TRUST EXCULPATION.
Subject to the terms of this paragraph, 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 the subject hereof, shall look solely to (i) Guarantor's interest and rights
in the Borrower (as a general partner, limited partner or otherwise), (ii) the
cash and Short-term Investments of Guarantor and the property described in
Schedule 6.29 hereto, (iii) any other assets which Guarantor may now own or
hereafter acquire with the consent of Agent pursuant to Section 7.17, (iv) all
documents and agreements in favor of Guarantor in connection with any of the
foregoing, (v) all claims and causes of action arising from or otherwise related
to any of the foregoing, and all rights and judgments related to any legal
actions in connection with such claims or causes of action, and (vi) all
extensions, additions, renewals and replacements, substitutions, products or
proceeds of any of the foregoing (the "Existing Assets"), and in no event shall
the obligation of the Guarantor be enforceable against any shareholder, trustee,
officer, employee or agent of the Guarantor personally. The Agent and the Banks
have agreed to the terms of this Section 32 (a) solely based upon the
representation and covenant of Borrower and Guarantor that Guarantor does not
and will not own any assets other than the Existing Assets, (b) for the limited
purpose of allowing Borrower to claim that the Loans are not recourse to
Guarantor as a partner of the Borrower within the meaning of IRS Letter Ruling
199906025 (November 17, 1998), and (c) with the agreement of Borrower and
Guarantor that the Agent and the Banks shall at all times have full recourse to
all assets of Guarantor. Notwithstanding anything in this Section 32 to the
contrary, it is the intent of this Agreement and the Loan Documents that Agent
and the Banks have full recourse at all times to Guarantor, as a Guarantor and
as general partner of Borrower, and to all of its assets at all times, and the
foregoing limitation on liability and recourse to Guarantor (as a Guarantor or
general partner of Borrower) shall be null and void and of no force and effect,
and Agent and the Banks shall have full recourse against Guarantor, individually
and in its capacity as general partner of Borrower, and to all of its assets in
the event that Guarantor shall now or at any time hereafter own any asset other
than or in addition to the Existing Assets. Nothing herein shall limit the
rights of the Agent and the Banks against the Borrower.
[SIGNATURE PAGES FOLLOW]
73
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST,
a Maryland real estate investment trust
By:_____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Financial Officer
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P., a
Delaware limited partnership
By: Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a
Maryland real estate investment
trust, its General Partner
By:_________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Financial Officer
FLEET NATIONAL BANK,
individually and as Agent
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
KEYBANK NATIONAL ASSOCIATION
By:_____________________________________
Name:________________________________
Title:_______________________________
[SIGNATURE PAGES TO UNSECURED REVOLVER]
EXHIBIT A
FORM OF NOTE
$_________________ __________, 2000
FOR VALUE RECEIVED, the undersigned RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P., a
Delaware limited partnership, hereby promises to pay to
__________________________ ________or order, in accordance with the terms of
that certain Second Amended and Restated Unsecured Revolving Loan Agreement
dated as of December __, 2002 (the "Loan Agreement"), as from time to time in
effect, among the undersigned, Fleet National Bank, for itself and as Agent, and
such other Banks as may be from time to time named therein, to the extent not
sooner paid, on or before the Maturity Date, the principal sum of
____________________________________ Dollars ($_____________), or such amount as
may be advanced by the payee hereof under the Loan Agreement with daily interest
from the date hereof, computed as provided in the Loan Agreement, on the
principal amount hereof from time to time unpaid, at a rate per annum on each
portion of the principal amount which shall at all times be equal to the rate of
interest applicable to such portion in accordance with the Loan Agreement, and
with interest on overdue principal and, to the extent permitted by applicable
law, on overdue installments of interest and late charges at the rates provided
in the Loan Agreement. Interest shall be payable on the dates specified in the
Loan Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Loan Agreement.
Payments hereunder shall be made to Fleet National Bank, as Agent for the
payee hereof, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other
address as may be designated by Agent.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Loan Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the maturity date stated above and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Loan Agreement, and may be
prepaid in whole or from time to time in part, all as set forth in the Loan
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Borrower and the Banks and the Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of acceleration of the maturity of any
of the Obligations or otherwise, shall the interest contracted for, charged or
received by the Banks exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Banks in excess of the maximum lawful amount, the interest payable to the
Banks shall be reduced to the maximum amount permitted under applicable law; and
if from any circumstance the Banks shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
A-1
principal balance of the Obligations of the undersigned Borrower and to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations of the undersigned Borrower, such excess shall be
refunded to the undersigned Borrower. All interest paid or agreed to be paid to
the Banks shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full period until payment in full
of the principal of the Obligations of the undersigned Borrower (including the
period of any renewal or extension thereof) so that the interest thereon for
such full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between the undersigned
Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Loan Agreement. In addition to and not in limitation of
the foregoing and the provisions of the Loan Agreement hereinabove defined, the
undersigned further agrees, subject only to any limitation imposed by applicable
law, to pay all expenses, including reasonable attorneys' fees and legal
expenses, incurred by the holder of this Note in endeavoring to collect any
amounts payable hereunder which are not paid when due, whether by acceleration
or otherwise.
This Note shall be governed by and construed in accordance with the laws
of the State of Michigan (without giving effect to the conflict of laws rules of
any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Loan Agreement, and assent to extensions
of time of payment or forbearance or other indulgence without notice.
Recourse to the general partner of the Borrower shall be limited as
provided in Section 32 of the Loan Agreement.
This Note is a note executed in amendment and restatement of the "Notes"
as such term is defined in the Prior Credit Agreement.
IN WITNESS WHEREOF the undersigned has by its duly authorized officers,
executed this Note under seal as of the day and year first above written.
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P., a
Delaware limited partnership
By: Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a
Maryland real estate investment
trust, its General Partner
By:_________________________________
Title:___________________________
A-2
EXHIBIT B
FORM OF REQUEST FOR LOAN
Fleet National Bank, for itself and as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.5 of the Second Amended and
Restated Unsecured Revolving Credit Agreement dated as of December ___, 2002, as
from time to time in effect (the "Credit Agreement"), among Ramco-▇▇▇▇▇▇▇▇▇▇
Properties, L.P. (the "Borrower"), Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust (the
"Guarantor"), Fleet National Bank, for itself and as Agent, and the other Banks
from time to time party thereto, the undersigned Borrower and the Guarantor
hereby request and certify as follows:
1. Loan. The undersigned Borrower hereby requests a Loan under Section 2.1
of the Credit Agreement:
Principal Amount: $
Type (LIBOR, Base Rate):
Drawdown Date: , 200_
Interest Period:
by credit to the general account of the undersigned Borrower with the
Agent at the Agent's Head Office.
2. Use of Proceeds. Such Loan shall be used for the following purposes
permitted by Section 7.11 of the Credit Agreement:
[Describe]
3. No Default. The undersigned chief financial or chief accounting officer
of the Guarantor and the general partner of the Borrower certifies that each of
the Borrower and the Guarantor is and will be in compliance with all covenants
under the Loan Documents after giving effect to the making of the Loan requested
hereby.
4. Representations True. Each of the representations and warranties made
by or on behalf of the Borrower, the Guarantor and their respective Subsidiaries
contained in the Credit Agreement, in the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with the Credit
Agreement was true as of the date as of which it was made and shall also be true
at and as of the Drawdown Date for the Loan requested hereby, with the same
B-1
effect as if made at and as of such Drawdown Date (except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
and except to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default has occurred
and is continuing.
5. Other Conditions. All other conditions to the making of the Loan
requested hereby set forth in Section 11 of the Credit Agreement have been
satisfied.
6. Drawdown Date. Except to the extent, if any, specified by notice
actually received by the Agent prior to the Drawdown Date specified above, the
foregoing representations and warranties shall be deemed to have been made by
the Borrower on and as of such Drawdown Date.
7. Definitions. Terms defined in the Credit Agreement are used herein with
the meanings so defined.
IN WITNESS WHEREOF, we have hereunto set our hands this ___ day of
_____________, 2002.
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust,
its General Partner
By:_________________________________
Title:___________________________
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST
By:_____________________________________
Title:_______________________________
B-2
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Fleet National Bank,
for itself and as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Unsecured Revolving
Loan Agreement dated as of December __, 2002 (the "Loan Agreement") by and among
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P. (the "Borrower"), Ramco-▇▇▇▇▇▇▇▇▇▇ Properties
Trust (the "Guarantor"), Fleet National Bank, for itself and as Agent, and the
other Banks from time to time party thereto. Terms defined in the Loan Agreement
and not otherwise defined herein are used herein as defined in the Loan
Agreement.
Pursuant to the Loan Agreement, the Borrower is furnishing to you herewith
(or have most recently furnished to you) the financial statements of the
Borrower, the Guarantor and their respective Subsidiaries for the fiscal period
ended _____________________ (the "Balance Sheet Date"). Such financial
statements have been prepared in accordance with generally accepted accounting
principles and present fairly the financial position of the Borrower, the
Guarantor and the Subsidiaries covered thereby at the date thereof and the
results of their operations for the periods covered thereby, subject in the case
of interim statements only to normal year-end audit adjustments.
This certificate is submitted in compliance with requirements of Section
7.4(e), Section 7.5(d), Section 8.l(f), or Section 10.11 of the Term Loan
Agreement. If this certificate is provided under a provision other than Section
7.4(e), the calculations provided below are made using the financial statements
of the Borrower, the Guarantor and their respective Subsidiaries as of the
Balance Sheet Date adjusted in the best good-faith estimate of the Borrower and
the Guarantor to give effect to the making of a Loan, acquisition or disposition
of property or other event that occasions the preparation of this certificate;
and the nature of such event and the Borrower's and the Guarantor's estimate of
its effects are set forth in reasonable detail in an attachment hereto. The
undersigned officer is the chief financial or chief accounting officer of the
Guarantor and of the general partner of the Borrower.
The undersigned officers have caused the provisions of the Loan Documents
to be reviewed and have no knowledge of any Default or Event of Default. [Note:
If the signers do have knowledge of any Default or Event of Default, the form of
certificate should be revised to specify the Default or Event of Default, the
nature thereof and the actions taken, being taken or proposed to be taken by the
Borrower and the Guarantor with respect thereto.]
The Borrower and the Guarantor are providing the attached information to
demonstrate compliance as of the date hereof with the covenants described in the
attachment hereto.
C-1
IN WITNESS WHEREOF, we have hereunto set our hand this ____ day of
_____________, 200__.
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.
By: Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust,
its General Partner
By:_________________________________
Title:___________________________
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST
By:_____________________________________
Title:_______________________________
APPENDIX A
TO
COMPLIANCE CERTIFICATE
A. Borrower and Guarantor Leverage cannot exceed 65% (Section 9.1)
Borrower
1. Consolidated Total Liabilities:
2. Consolidated Total Assets per balance sheet (excluding Real Estate
that is improved and not Under Development, but including any
Redevelopment Property held for less than twelve (12) months):
3. Rolling 4Q Operating Cash Flow from Real Estate that is improved and
not Under Development:
4. Consolidated Total Adjusted Asset Value: (line 2 plus line 3 divided
by 9.5%):
5. Company Leverage (line 1 divided by line 4):
6. Line 5 cannot exceed .65.
Guarantor
1. Consolidated Total Liabilities:
2. Consolidated Total Assets per balance sheet (excluding Real Estate
that is improved and not Under Development but including any
Redevelopment Property held for less than twelve (12) months):
3. Rolling 4Q Operating Cash Flow from Real Estate that is improved and
not Under Development:
4. Consolidated Total Adjusted Asset Value: (line 2 plus line 3 divided
by 9.5%):
5. Company Leverage: (line 1 divided by line 4):
6. Line 5 cannot exceed .65.
B. Borrower Debt Service Coverage must exceed 1.6 X - rolling 4Q's (Section
9.2)
1. Net Income:
2. Depreciation & Amortization:
3. Interest Expense:
4. Extraordinary/Non-recurring losses:
5. Extraordinary/Non-recurring gains:
6. CapX Reserve Amount ($.10 psf):
7. Operating Cash Flow: (Lines 1+2+3+4-5-6)
8. Debt Service:
9. DSC Ratio: (line 7 divided by line 8)
10. Line 9 must exceed 1.6.
C. Borrower Minimum Consolidated Tangible Net Worth (Section 9.3)
1. Consolidated Total Adjusted Asset Value
2. Consolidated Total Liabilities:
3. Initial Consolidated Tangible Net Worth: (line 1 minus line 2)
4. Book value intangible assets:
5. Write-up of book value of any assets due to revaluation:
6. Consolidated Tangible Net Worth: (line 3 minus the sum of lines 4
and 5)
7. Net Offering Proceeds from offerings after Closing:
8. 75% of line 7:
9. Minimum Consolidated Tangible Net Worth: ($200,000,000 + line 8)
10. Line 6 must be > than or = to line 9.
D. Distributions cannot exceed 95% of Funds From Operations (Section 8.7(a))
1. Current Quarter Distributions:
2. Prior 3 Quarters Distributions:
3. Total Distributions last 4Q's:
4. GAAP Net Income for last 4Q's:
5. Adjustments to Net Income: (exclude financing costs and gains
(losses) from debt restructuring and sales of property)
6. Depreciation (other than non-real estate depreciation) and
Amortization (other than amortization of deferred financing costs):
7. Other non-cash items:
8. Funds from Operations: (lines 4-5+6+7=)
9. Distributions to Funds from Operations Ratio: (line 3 divided by
line 8)
10. Line 9 cannot exceed .95.
SCHEDULE 1
BANKS AND COMMITMENTS
Commitment Commitment
---------- Percentage
----------
Fleet National Bank $20,000,000.00 50%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
LIBOR Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
KeyBank National Association $20,000,000.00 50%
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LIBOR Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Total $40,000,000.00 100%
SCHEDULE 1.1
LINCOLN LOAN PROPERTIES
1. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
2. Tel-Twelve Shopping Center, Southfield, Michigan
3. West Oaks I, Novi, Michigan
4. ▇▇▇▇▇▇▇ Crossing, Jackson, Michigan
5. Southfield Plaza, Southfield, Michigan
6. Clinton Consumer Mall, Sterling Heights, Michigan
7. ▇▇▇▇▇▇▇▇▇ Shopping Center, Flint, Michigan
8. New Towne Plaza, Canton, Michigan
9. Orion Plaza, Orion, Michigan
10. ▇▇▇▇▇▇▇ West Shopping Center, Jackson, Michigan
SCHEDULE 6.7
LITIGATION
[SEE ATTACHED]
SCHEDULE 6.15
AFFILIATE TRANSACTIONS
1996 Share Option Plan of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust
Non-Qualified Stock Option Agreements dated May 10, 1996, September 16, 1998 and
March 8, 2000 between Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust (the "Trust") and each
of the following:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Employment Agreements dated May 10, 1996 as amended May 10, 2001, as applicable,
between Trust and each of the following:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Non-Qualified Stock Option Agreements dated June 25, 1996, September 16, 1998
and March 8, 2000 between Trust and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Non-Qualified Stock Option Agreements dated June 10, 1997, June 10, 1998, June
9, 1999, and June 7, 2000, June 13, 2001 and June 6, 2002 between Trust and each
of the following:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Noncompetition Agreements dated May 10, 1996, between the Trust and each of the
following:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (collectively, the "Ramco Principals")
Registration Rights Agreements dated May 10, 1996, among Trust and the Ramco
Principals
Tax Agreement dated May 10, 1996, between Atlantic and RPS
Option Agreement and Right of First Offer/Refusal dated May 10, 1996 Memorandum
of Option Agreement and Right of First Offer/Refusal dated May 10, 1996
North Towne Option Agreement and Right of First Offer/Refusal dated May 10,
1996, between Ramco ▇▇▇▇▇ ▇▇▇▇▇▇ Associates and the Operating Partnership
Exchange Rights Agreement dated May 10, 1996, between Operating Partnership and
the Ramco Principals
Assignment, Assumption and Indemnification Agreement relating to Atlantic dated
May 10, 1996, between RPS and Atlantic
The 1997 Non-employee Trustee Stock Option Plan
Management Services and Reimbursement Agreement dated May 10, 1996 between
Ramco-▇▇▇▇▇▇▇▇▇▇, Inc. and Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P.
Amended and Restated Agreement of Limited Partnership of Ramco-▇▇▇▇▇▇▇▇▇▇
Properties, L.P. (Operating Partnership") as amended which lists the following
persons as holding a partnership interest directly or by entities controlled by
them:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
The following officers or trustees of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust are
general partners, limited partners, or shareholders or members in various
entities which are provided management and/or accounting services by
Ramco-▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
The following officers of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust are associated with
various family trusts which control entities which are provided management and
accounting services from Ramco-▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust purchased Directors' and Officers' liability
insurance from Aon Risk Services, Inc. of New York, an insurance brokerage firm
("Aon"). In connection with such insurance purchase, Aon received brokerage
commission. ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who is a member of the Trust's Board of
Trustees, is Vice Chairman of Aon Risk Services & Co., an affiliate of Aon. In
addition, Mr. ▇▇▇▇ ▇▇▇▇, who is Senior Vice President of Aon, is the son-in-law
of ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, who is also a member of the Trust's Board of
Trustees.
As holders of Operating Partnership units, the following officers of
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, may suffer different and more adverse tax
consequences than the Company upon the sale or refinancing of any of the
Company's properties and, therefore, may have different objectives regarding the
appropriate pricing and timing of any sale or refinancing of such properties:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, trustee, has an interest in Ramco/Shenandoah LLC, a joint venture
of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P.
Lockup agreements covering 90-day period subsequent to November 5, 2002 with all
Trustees and Executive Officers of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust.
SCHEDULE 6.18
ENVIRONMENTAL MATTERS
[SEE ATTACHED]
SCHEDULE 6.19
SUBSIDIARIES AND JOINT VENTURES OF THE BORROWER
[SEE ATTACHED]
SCHEDULE 6.29
PROPERTY OF GUARANTOR
The assets of the Guarantor, Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust are comprised
solely of the following:
Cash
Accounts receivable, including distributions received from Ramco-▇▇▇▇▇▇▇▇▇▇
Properties, L.P.
Prepaid expenses, including capitalized legal fees
Investments in subsidiaries:
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P.
Ramco SPC, Inc. (Related to Ramco Properties Associates Limited
Partnership)
Ramco SPC II, Inc. (Related to Ramco Virginia Properties LLC (Aquia))
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION .................................. 1
Section 1.1. Definitions ............................................... 1
Section 1.2. Rules of Interpretation ................................... 14
SECTION 2. THE REVOLVING CREDIT FACILITY ............................................ 15
Section 2.1. Commitment to Lend ........................................ 15
Section 2.2. Notes ..................................................... 15
Section 2.3. Unused Facility Fee ....................................... 16
Section 2.4. Interest on Loans ......................................... 16
Section 2.5. Requests for Loans ........................................ 17
Section 2.6. Funds for Loans ........................................... 17
Section 2.7. Optional Reduction of Commitments ......................... 18
Section 2.8. Increase of Commitment .................................... 18
SECTION 3. REPAYMENT OF THE LOANS ................................................... 20
Section 3.1. Stated Maturity ........................................... 20
Section 3.2. Mandatory Prepayments ..................................... 20
Section 3.3. Optional Prepayments ...................................... 20
Section 3.4. Partial Prepayments ....................................... 20
Section 3.5. [Intentionally Omitted] ................................... 20
Section 3.6. Reduction of Commitments; Required Amortization ........... 20
Section 3.7. Effect of Prepayments ..................................... 21
SECTION 4. CERTAIN GENERAL PROVISIONS ............................................... 21
Section 4.1. Conversion Options ........................................ 21
Section 4.2. Commitment and Syndication Fee ............................ 22
Section 4.3. [Intentionally Omitted] ................................... 22
Section 4.4. Funds for Payments ....................................... 22
Section 4.5. Computations .............................................. 23
Section 4.6. Inability to Determine LIBOR Rate ......................... 23
Section 4.7. Illegality ................................................ 23
Section 4.8. Additional Interest ....................................... 24
Section 4.9. Additional Costs, Etc ..................................... 24
Section 4.10. Capital Adequacy .......................................... 25
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TABLE OF CONTENTS
(continued)
PAGE
Section 4.11. Indemnity of Borrower ..................................... 25
Section 4.12. Interest on Overdue Amounts; Late Charge .................. 26
Section 4.13. HLT Classification ........................................ 26
Section 4.14. Certificate ............................................... 26
Section 4.15. Limitation on Interest .................................... 27
SECTION 5. COLLATERAL SECURITY ...................................................... 27
Section 5.1. Collateral ................................................ 27
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE BORROWER ......... 27
Section 6.1. Corporate Authority, Etc .................................. 27
Section 6.2. Governmental Approvals .................................... 28
Section 6.3. Title to Properties; Lease ................................ 28
Section 6.4. Financial Statements ...................................... 29
Section 6.5. No Material Changes ....................................... 29
Section 6.6. Franchises, Patents, Copyrights, Etc ...................... 29
Section 6.7. Litigation ................................................ 29
Section 6.8. No Materially Adverse Contracts, Etc ...................... 29
Section 6.9. Compliance with Other Instruments, Laws, Etc .............. 30
Section 6.10. Tax Status ................................................ 30
Section 6.11. No Event of Default ....................................... 30
Section 6.12. Holding Company and Investment Company Acts ............... 30
Section 6.13. Absence of UCC Financing Statements, Etc .................. 30
Section 6.14. [Intentionally Omitted] ................................... 30
Section 6.15. Certain Transactions ...................................... 30
Section 6.16. Employee Benefit Plans .................................... 31
Section 6.17. Regulations T, U and X .................................... 31
Section 6.18. Environmental Compliance .................................. 31
Section 6.19. Subsidiaries and Joint Ventures ........................... 33
Section 6.20. [Intentionally Omitted] ................................... 33
Section 6.21. Loan Documents ............................................ 33
Section 6.22. Property .................................................. 33
-ii-
TABLE OF CONTENTS
(continued)
PAGE
Section 6.23. Brokers ................................................... 33
Section 6.24. Other Debt ................................................ 33
Section 6.25. Solvency .................................................. 34
Section 6.26. [Intentionally Omitted] ................................... 34
Section 6.27. No Fraudulent Intent ...................................... 34
Section 6.28. Transaction in Best Interests of Borrower; Consideration .. 34
Section 6.29. Partners and the Guarantor ................................ 34
Section 6.30. Principal Documents ....................................... 35
SECTION 7. AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER .................. 35
Section 7.1. Punctual Payment .......................................... 35
Section 7.2. Maintenance of Office ..................................... 35
Section 7.3. Records and Accounts ...................................... 35
Section 7.4. Financial Statements, Certificates and Information ........ 35
Section 7.5. Notices ................................................... 38
Section 7.6. Existence; Maintenance of Properties ...................... 39
Section 7.7. Insurance ................................................. 40
Section 7.8. Taxes ..................................................... 40
Section 7.9. Inspection of Properties and Books ........................ 40
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits .... 40
Section 7.11. Use of Proceeds ........................................... 41
Section 7.12. Further Assurances ........................................ 41
Section 7.13. Compliance ................................................ 41
Section 7.14. Limiting Agreements ....................................... 41
Section 7.15. Ownership of Real Estate .................................. 42
Section 7.16. More Restrictive Agreements ............................... 42
Section 7.17. Guarantor Restrictions .................................... 42
Section 7.18. Interest Rate Contract(s) ................................. 42
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER ............. 43
Section 8.1. Restrictions on Indebtedness .............................. 43
Section 8.2. Restrictions on Liens Etc ................................. 45
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TABLE OF CONTENTS
(continued)
PAGE
Section 8.3. Restrictions on Investments ............................... 46
Section 8.4. Merger, Consolidation ..................................... 48
Section 8.5. Conduct of Business ....................................... 48
Section 8.6. Compliance with Environmental Laws ........................ 48
Section 8.7. Distributions ............................................. 49
Section 8.8. Asset Sales ............................................... 50
Section 8.9. Development Activity ...................................... 50
Section 8.10. Lincoln Loan Portfolio .................................... 51
SECTION 9. FINANCIAL COVENANTS OF THE GUARANTOR AND THE BORROWER .................... 52
Section 9.1. Liabilities to Assets Ratio ............................... 52
Section 9.2. Debt Service Coverage ..................................... 52
Section 9.3. Consolidated Tangible Net Worth ........................... 52
SECTION 10. CLOSING CONDITIONS ....................................................... 53
Section 10.1. Loan Documents ............................................ 53
Section 10.2. Certified Copies of Organizational Documents .............. 53
Section 10.3. Resolutions ............................................... 53
Section 10.4. Incumbency Certificate; Authorized Signers ................ 53
Section 10.5. Opinion of Counsel ........................................ 53
Section 10.6. Payment of Fees ........................................... 53
Section 10.7. Performance; No Default ................................... 54
Section 10.8. Representations and Warranties ............................ 54
Section 10.9. Proceedings and Documents ................................. 54
Section 10.10. Stockholder and Partner Consents .......................... 54
Section 10.11. Compliance Certificate .................................... 54
Section 10.12. Revolving Credit Agreement ................................ 54
Section 10.13. [Intentionally Omitted] ................................... 54
Section 10.14. No Legal Impediment ....................................... 54
Section 10.15. Governmental Regulation ................................... 54
Section 10.16. [Intentionally Omitted] ................................... 54
Section 10.17. [Intentionally Omitted] ................................... 54
Section 10.18. Other ..................................................... 55
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 11. CONDITIONS TO ALL BORROWINGS ............................................. 55
Section 11.1. Prior Conditions Satisfied ................................ 55
Section 11.2. Representations True; No Default .......................... 55
Section 11.3. No Legal Impediment ....................................... 55
Section 11.4. Governmental Regulation ................................... 55
Section 11.5. Proceedings and Documents ................................. 55
Section 11.6. Borrowing Documents ....................................... 55
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; ETC ..................................... 55
Section 12.1. Events of Default and Acceleration ........................ 55
Section 12.2. Limitation of Cure Periods ................................ 58
Section 12.3. Termination of Commitments ................................ 59
Section 12.4. Remedies .................................................. 59
Section 12.5. Distribution of Proceeds .................................. 59
SECTION 13. SETOFF ................................................................... 60
SECTION 14. THE AGENT ................................................................ 60
Section 14.1. Authorization ............................................. 60
Section 14.2. Employees and Agents ...................................... 61
Section 14.3. No Liability .............................................. 61
Section 14.4. No Representations ........................................ 61
Section 14.5. Payments .................................................. 61
Section 14.6. Holders of Notes .......................................... 62
Section 14.7. Indemnity ................................................. 62
Section 14.8. Agent as Bank ............................................. 63
Section 14.9. Resignation ............................................... 63
Section 14.10. Duties in the Case of Enforcement ......................... 63
Section 14.11. Removal of Agent .......................................... 63
SECTION 15. EXPENSES ................................................................. 64
SECTION 16. INDEMNIFICATION .......................................................... 64
SECTION 17. SURVIVAL OF COVENANTS, ETC ............................................... 65
SECTION 18. ASSIGNMENT AND PARTICIPATION ............................................. 66
Section 18.1. Conditions to Assignment by Banks ......................... 66
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TABLE OF CONTENTS
(continued)
PAGE
Section 18.2. Register .................................................. 66
Section 18.3. New Notes ................................................. 67
Section 18.4. Participations ............................................ 67
Section 18.5. Pledge by Bank ............................................ 67
Section 18.6. No Assignment by Borrower or Guarantor .................... 67
Section 18.7. Disclosure ................................................ 67
Section 18.8. Amendments to Loan Documents .............................. 68
Section 18.9. Mandatory Assignment ...................................... 68
SECTION 19. NOTICES .................................................................. 68
SECTION 20. RELATIONSHIP ............................................................. 70
SECTION 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE ....................... 70
SECTION 22. HEADINGS ................................................................. 70
SECTION 23. COUNTERPARTS ............................................................. 71
SECTION 24. ENTIRE AGREEMENT, ETC .................................................... 71
SECTION 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS ........................... 71
SECTION 26. DEALINGS WITH THE BORROWER OR THE GUARANTOR .............................. 71
SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC ....................................... 71
SECTION 28. SEVERABILITY ............................................................. 72
SECTION 29. TIME OF THE ESSENCE ...................................................... 72
SECTION 30. NO UNWRITTEN AGREEMENTS .................................................. 72
SECTION 31. REPLACEMENT OF NOTES ..................................................... 73
SECTION 32. TRUST EXCULPATION ........................................................ 73
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EXHIBITS AND SCHEDULES
EXHIBIT A - FORM OF NOTE
EXHIBIT B - FORM OF LOAN REQUEST
EXHIBIT C - FORM OF COMPLIANCE CERTIFICATE
SCHEDULE 1 - BANKS AND COMMITMENTS
SCHEDULE 6.7 - LITIGATION
SCHEDULE 6.15 - AFFILIATE TRANSACTIONS
SCHEDULE 6.18 - ENVIRONMENTAL MATTERS
SCHEDULE 6.19 - SUBSIDIARIES OF THE BORROWER AND GUARANTOR
SCHEDULE 6.29 - PROPERTY OF GUARANTOR
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