1
EXHIBIT 10.4
THIRD AMENDED AND RESTATED MASTER
REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 29, 2000
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
and
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
INC.,
as Sole Lead Manager and Arranger
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TABLE OF CONTENTS
PAGE
----
Section 1 DEFINITIONS AND RULES OF INTERPRETATION..................... 2
Section 1.1. Definitions................................. 2
Section 1.2. Rules of Interpretation..................... 23
Section 2 THE REVOLVING CREDIT FACILITY............................... 24
Section 2.1. Commitment to Lend.......................... 24
Section 2.2. Unused Facility Fee......................... 25
Section 2.3. Notes....................................... 25
Section 2.4. Interest on Loans........................... 25
Section 2.5. Requests for Loans.......................... 26
Section 2.6. Funds for Loans............................. 27
Section 2.7. Letters of Credit........................... 28
Section 2.8. Optional Reduction of Commitments........... 32
Section 3 REPAYMENT OF THE LOANS...................................... 32
Section 3.1. Stated Maturity............................. 32
Section 3.2. Mandatory Prepayments....................... 32
Section 3.3. Optional Prepayments........................ 33
Section 3.4. Partial Prepayments......................... 33
Section 3.5. Effect of Prepayments....................... 33
Section 3.6. Proceeds from Debt or Equity Offering....... 33
Section 4 CERTAIN GENERAL PROVISIONS.................................. 33
Section 4.1. Conversion Options.......................... 33
Section 4.2. Commitment and Syndication Fee.............. 34
Section 4.3. Agent's Fee................................. 34
Section 4.4. Funds for Payments.......................... 34
Section 4.5. Computations................................ 35
Section 4.6. Inability to Determine LIBOR Rate........... 35
Section 4.7. Illegality.................................. 35
Section 4.8. Additional Interest......................... 36
Section 4.9. Additional Costs, Etc....................... 36
Section 4.10. Capital Adequacy............................ 37
Section 4.11. Indemnity of Borrower....................... 38
Section 4.12. Interest on Overdue Amounts; Late Charge.... 38
Section 4.13. HLT Classification.......................... 38
Section 4.14. Certificate................................. 39
Section 4.15. Limitation on Interest...................... 39
Section 5 COLLATERAL SECURITY......................................... 39
Section 5.1. Collateral.................................. 39
Section 5.2. Appraisals.................................. 39
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Section 5.3. Release of Collateral....................... 40
Section 5.4. Substitution of Mortgaged Property.......... 42
Section 5.5. Addition of Mortgaged Properties............ 42
Section 5.6. Mandatory Increase in Borrowing Base........ 42
Section 5.7. Non-Encumbrance............................. 43
Section 5.8. Special Security Documents.................. 43
Section 6 REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE
BORROWER................................................... 44
Section 6.1. Corporate Authority, Etc.................... 44
Section 6.2. Governmental Approvals...................... 45
Section 6.3. Title to Properties; Lease.................. 45
Section 6.4. Financial Statements........................ 45
Section 6.5. No Material Changes......................... 46
Section 6.6. Franchises, Patents, Copyrights, Etc........ 46
Section 6.7. Litigation.................................. 46
Section 6.8. No Materially Adverse Contracts, Etc........ 46
Section 6.9. Compliance with Other Instruments, Laws,
Etc........................................ 47
Section 6.10. Tax Status.................................. 47
Section 6.11. No Event of Default......................... 47
Section 6.12. Holding Company and Investment Company
Acts....................................... 47
Section 6.13. Absence of UCC Financing Statements, Etc.... 47
Section 6.14. Setoff, Etc................................. 47
Section 6.15. Certain Transactions........................ 48
Section 6.16. Employee Benefit Plans...................... 48
Section 6.17. Regulations T, U and X...................... 48
Section 6.18. Environmental Compliance.................... 48
Section 6.19. Subsidiaries................................ 50
Section 6.20. Leases...................................... 50
Section 6.21. Loan Documents.............................. 50
Section 6.22. Mortgaged Property.......................... 50
Section 6.23. Brokers..................................... 54
Section 6.24. Other Debt.................................. 54
Section 6.25. Solvency.................................... 54
Section 6.26. Contribution Agreement...................... 54
Section 6.27. No Fraudulent Intent........................ 54
Section 6.28. Transaction in Best Interests of Borrower;
Consideration.............................. 55
Section 6.29. Partners and the Guarantor.................. 55
Section 6.30. Principal Documents......................... 55
Section 7 AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER..... 55
Section 7.1. Punctual Payment............................ 55
Section 7.2. Maintenance of Office....................... 55
Section 7.3. Records and Accounts........................ 56
Section 7.4. Financial Statements, Certificates and
Information................................ 56
Section 7.5. Notices..................................... 59
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Section 7.6. Existence; Maintenance of Properties....... 61
Section 7.7. Insurance.................................. 62
Section 7.8. Taxes...................................... 66
Section 7.9. Inspection of Properties and Books......... 66
Section 7.10. Compliance with Laws, Contracts, Licenses,
and Permits............................... 67
Section 7.11. Use of Proceeds............................ 67
Section 7.12. Further Assurances......................... 67
Section 7.13. Compliance................................. 67
Section 7.14. Management................................. 67
Section 7.15. Interest Rate Contract..................... 68
Section 7.16. Ownership of Real Estate................... 68
Section 7.17. More Restrictive Agreements................ 68
Section 7.18. Guarantor Restrictions..................... 68
Section 8 CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE
BORROWER................................................... 69
Section 8.1. Restrictions on Indebtedness............... 69
Section 8.2. Restrictions on Liens Etc.................. 71
Section 8.3. Restrictions on Investments................ 72
Section 8.4. Merger, Consolidation...................... 74
Section 8.5. Conduct of Business........................ 74
Section 8.6. Compliance with Environmental Laws......... 74
Section 8.7. Distributions.............................. 76
Section 8.8. Asset Sales................................ 76
Section 8.9. Development Activity....................... 77
Section 9 FINANCIAL COVENANTS OF THE GUARANTOR AND THE BORROWER....... 78
Section 9.1. Borrowing Base............................. 78
Section 9.2. Liabilities to Assets Ratio................ 78
Section 9.3. Debt Service Coverage...................... 78
Section 9.4. Consolidated Tangible Net Worth............ 78
Section 10 CLOSING CONDITIONS......................................... 79
Section 10.1. Loan Documents............................. 79
Section 10.2. Resolutions................................ 79
Section 10.3. Incumbency Certificate; Authorized
Signers................................... 80
Section 10.4. Opinion of Counsel......................... 80
Section 10.5. Performance; No Default.................... 80
Section 10.6. Representations and Warranties............. 80
Section 10.7. Proceedings and Documents.................. 80
Section 10.8. Compliance Certificate..................... 80
Section 10.9. Stockholder and Partner Consents........... 80
Section 10.10. Other Documents............................ 81
Section 10.11. No Condemnation/Taking..................... 81
Section 10.12. [Intentionally Omitted].................... 81
Section 10.13. Title Insurance Updates.................... 81
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Section 10.14. Payment of Fees........................... 81
Section 10.15. Insurance................................. 81
Section 10.16. Appraisals................................ 81
Section 10.17. Other..................................... 81
Section 11 CONDITIONS TO ALL BORROWING................................ 82
Section 11.1. Prior Conditions Satisfied................ 82
Section 11.2. Representations True; No Default.......... 82
Section 11.3. No Legal Impediment....................... 82
Section 11.4. Governmental Regulation................... 82
Section 11.5. Proceedings and Documents................. 82
Section 11.6. Borrowing Documents....................... 82
Section 11.7. Endorsement to Title Policy............... 83
Section 11.8. Future Advances Tax Payment............... 83
Section 12 EVENTS OF DEFAULT; ACCELERATION; ETC....................... 83
Section 12.1. Events of Default and Acceleration........ 83
Section 12.2. Limitation of Cure Periods................ 87
Section 12.3. Certain Cure Periods...................... 87
Section 12.4. Termination of Commitments................ 88
Section 12.5. Remedies.................................. 88
Section 12.6. Distribution of Collateral Proceeds....... 88
Section 13 SETOFF..................................................... 89
Section 14 THE AGENT.................................................. 89
Section 14.1. Authorization............................. 89
Section 14.2. Employees and Agents...................... 90
Section 14.3. No Liability.............................. 90
Section 14.4. No Representations........................ 90
Section 14.5. Payments.................................. 91
Section 14.6. Holders of Notes.......................... 92
Section 14.7. Indemnity................................. 92
Section 14.8. Agent as Bank............................. 92
Section 14.9. Resignation............................... 92
Section 14.10. Duties in the Case of Enforcement......... 93
Section 14.11. Removal of Agent.......................... 93
Section 15 EXPENSES................................................... 93
Section 16 INDEMNIFICATION............................................ 94
Section 17 SURVIVAL OF COVENANTS, ETC................................. 95
Section 18 ASSIGNMENT AND PARTICIPATION............................... 95
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Section 18.1. Conditions to Assignment by Banks.......... 95
Section 18.2. Register................................... 96
Section 18.3. New Notes.................................. 96
Section 18.4. Participations............................. 97
Section 18.5. Pledge by Bank............................. 97
Section 18.6. No Assignment by Borrower or Guarantor..... 97
Section 18.7. Disclosure................................. 97
Section 18.8. Amendments to Loan Documents............... 98
Section 19 NOTICES.................................................... 98
Section 20 RELATIONSHIP............................................... 99
Section 21 GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE......... 100
Section 22 HEADINGS................................................... 100
Section 23 COUNTERPARTS............................................... 100
Section 24 ENTIRE AGREEMENT, ETC...................................... 100
Section 25 WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS............. 101
Section 26 DEALINGS WITH THE BORROWER OR THE GUARANTOR................ 101
Section 27 CONSENTS, AMENDMENTS, WAIVERS, ETC......................... 101
Section 28 SEVERABILITY............................................... 102
Section 29 TIME OF THE ESSENCE........................................ 102
Section 30 NO UNWRITTEN AGREEMENTS.................................... 102
Section 31 REPLACEMENT OF NOTES....................................... 102
Section 32 TRUST EXCULPATION.......................................... 103
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EXHIBITS AND SCHEDULES
EXHIBIT A - FORM OF THIRD AMENDED AND RESTATED NOTE
EXHIBIT B - FORM OF REQUEST FOR LOAN
EXHIBIT C - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT D - FORM OF LETTER OF CREDIT APPLICATION
SCHEDULE 1 - BANKS AND COMMITMENTS
SCHEDULE 1.1 - SPECIAL REAL ESTATE
SCHEDULE 2 - EXAMPLE OF CALCULATION OF DEBT SERVICE COVERAGE
AMOUNT
SCHEDULE 3 - EXISTING LETTERS OF CREDIT
SCHEDULE 6.7 - LITIGATION
SCHEDULE 6.15 - AFFILIATE TRANSACTIONS
SCHEDULE 6.18 - ENVIRONMENTAL MATTERS
SCHEDULE 6.19 - SUBSIDIARIES OF THE BORROWER AND GUARANTOR
SCHEDULE 6.22 - AGREEMENTS
SCHEDULE 6.29 - PROPERTY OF GUARANTOR
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THIRD AMENDED AND RESTATED MASTER
REVOLVING CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT is
made as of the 29th day of September, 2000 by and among RAMCO-▇▇▇▇▇▇▇▇▇▇
PROPERTIES, L.P. (the "Borrower"), a Delaware limited partnership,
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST (the "Guarantor"), a Maryland real estate
investment trust (successor to Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a
Massachusetts business trust ("Prior Guarantor")), FLEET NATIONAL BANK, a
national banking association (formerly known as BankBoston, N.A.) ("Fleet"),
BANKERS TRUST COMPANY ("BT"), SOUTHTRUST BANK ("SouthTrust"), MICHIGAN NATIONAL
BANK ("MNB"), BANK ONE MICHIGAN ("Bank One"), 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 (formerly known as BankBoston, N.A.), as Agent for
the Banks (the "Agent").
RECITALS
WHEREAS, the Borrower, Prior Guarantor, BankBoston, N.A. and
BankBoston, N.A., as Agent are parties to that certain Second Amended and
Restated Master Revolving Credit Agreement dated as of October 30, 1997, as
amended that certain First Amendment to Second Amended and Restated Master
Revolving Credit Agreement and Other Loan Documents dated as of March 24, 1998,
that certain Second Amendment to Second Amended and Restated Master Revolving
Credit Agreement and Other Loan Documents dated as of July 28, 1998, and that
certain Third Amendment to Second Amended and Restated Master Revolving Credit
Agreement and Other Loan Documents dated as of May 1, 1999 (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 has requested that the maturity date of such
loans be extended;
WHEREAS, the Borrower, the Guarantor, Fleet, the other Banks and the
Agent desire to amend and restate the Prior Credit Agreement, it being
understood that the loans heretofore made to the Borrower and the letters of
credit issued for the benefit of the Borrower under the Prior Credit Agreement
shall continue to remain outstanding and that this Agreement is an amendment and
restatement of the Prior Credit Agreement which shall remain in full force and
effect, as amended and restated in its entirety hereby;
NOW, THEREFORE, in consideration of the terms and conditions herein,
and of any loans, advances, or extensions of credit heretofore, now or hereafter
made to or for the benefit of the Borrower by the Banks, the parties hereto
hereby amend and restate the Prior Credit Agreement in its entirety and agree as
follows:
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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 Third Amended and Restated Master Revolving Credit
Agreement, including the Schedules and Exhibits hereto.
Applicable Margin. On any date, the applicable margin set forth below
based on the ratio of the Consolidated Total Liabilities of the Borrower to the
Consolidated Total Adjusted Asset Value of the Borrower (expressed as a
percentage):
Ratio Base Rate Loans LIBOR Rate Loans
Pricing Level 1 Less than 40% 0.00% 1.625%
Pricing ▇▇▇▇▇ ▇ Equal to or greater than 40%, but
less than 50% 0.00% 1.75%
Pricing ▇▇▇▇▇ ▇ Equal to or greater than 50%, but
less than 60% 0.00% 2.00%
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Pricing Level 4 Equal to or greater than 60% 0.25% 2.25%
The initial Applicable Margin shall be at Pricing Level 4. 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.
Appraisal. An MAI appraisal of the value of a parcel of Real Estate,
determined on a fair value basis, performed by an independent appraiser selected
by the Agent who is not an employee of the Borrower, the Guarantor or any of
their Subsidiaries, the Agent or a Bank, the form and substance of such
appraisal and the identity of the appraiser to be in compliance with the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended,
the rules and regulations adopted pursuant thereto and all other regulatory laws
and policies (both regulatory and internal) applicable to the Banks and
otherwise acceptable to the Agent.
Appraised Value. The fair value of a parcel of Mortgaged Property
determined by the most recent Appraisal of such parcel or update obtained
pursuant to Section 5.2 or Section 10.16, subject, however, to such changes or
adjustments to the value determined thereby as may be required by the appraisal
department of the Agent.
Approved Subsidiary. A wholly-owned Subsidiary of the Borrower, the
formation and organizational structure of which and the ownership of real estate
assets by which has been approved in writing by the Majority Banks.
Arranger. FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
Assignment of Hedge. An Assignment of Hedge Agreement by the Borrower
to the Agent for the benefit of the Banks pursuant to which the Interest Rate
Contract described in Section 7.15 is pledged as security for the Obligations,
as the same may be modified or amended, such assignment to be in form and
substance satisfactory to the Agent, and any consents, acknowledgments or
financing statements that may be delivered in connection therewith as required
by Agent.
Assignment of Leases and Rents. Each of the collateral assignments of
leases and rents from the Borrower or any of its Subsidiaries to the Agent, as
the same may be modified or amended, pursuant to which there shall be assigned
to the Agent for the benefit of the Banks a security interest in the interest of
the Borrower or any of its Subsidiaries as lessor with respect to all Leases of
all or any part of a Mortgaged Property, each such collateral assignment to be
in form and substance satisfactory to the Agent.
Balance Sheet Date. June 30, 2000.
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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.
Borrowing Base. At any time with respect to the Borrower and any
Approved Subsidiary, the Borrowing Base shall be the Borrowing Base for Eligible
Real Estate included in the Mortgaged Property owned by the Borrower or any
Approved Subsidiary. The Borrowing Base for Eligible Real Estate included in the
Mortgaged Property shall be the amount which is the lesser of (a) sixty-five
percent (65%) of the sum of the Appraised Values of each Mortgaged Property as
most recently determined as provided under Section 5.2 or Section 10.16; and (b)
the sum of the Debt Service Coverage Amounts for each Mortgaged Property, and
the amount which is the lesser of (a) and (b) shall be the Borrowing Base for
Eligible Real Estate included in the Mortgaged Property; and provided, however,
that the portion of the Borrowing Base attributable to Regular Real Estate shall
at no time be less than sixty-five percent (65%) of the entire Borrowing Base.
Notwithstanding the foregoing, the Borrowing Base attributable to a Mortgaged
Property shall not exceed the amount to which recovery under the applicable
Security Deed is limited, unless such Security Deed is amended to increase any
such limit.
Building. With respect to each parcel of Mortgaged Property, all of the
buildings, structures and improvements now or hereafter located thereon.
Building Service Equipment. All apparatus, fixtures and articles of
personal property owned by the Borrower or any Approved Subsidiary now or
hereafter attached to or used or procured for use in connection with the
operation or maintenance of any building, structure or other improvement located
on or included in the Mortgaged Property, including, but without limiting the
generality of the foregoing, all engines, furnaces, boilers, stokers, pumps,
heaters, tanks, dynamos, motors, generators, switchboards, electrical equipment,
heating, plumbing, lifting and ventilating apparatus, air-cooling and
air-conditioning apparatus, gas and electric fixtures, elevators, escalators,
fittings, and machinery and all other equipment of every kind and description,
used or procured for use in the operation of a Building and located on the
Mortgaged Property (except apparatus, fixtures or articles of personal property
belonging to lessees or other occupants of such building or to persons other
than
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the Borrower or any Approved Subsidiary unless the same be abandoned by any such
lessee or other occupant or person and shall become the Borrower's or Approved
Subsidiary's property by reason of such abandonment), together with any and all
replacements thereof and additions thereto.
Business Day. Any day on which banking institutions located in the same
city and state as the Agent's Head Office are open for the transaction of
banking business and, in the case of LIBOR Rate Loans, which also is a LIBOR
Business Day.
Capital Expenditure Reserve Amount. With respect to any Person or
property, a reserve for replacements and capital expenditures equal to $.10 per
square foot of building space located on all Real Estate owned by such Person,
other than Real Estate subject to long term leases having a remaining term of at
least five years, exclusive of unexpired options, which provide that the tenant
is responsible for all building maintenance.
Capital Improvement Project. With respect to any Real Estate now or
hereafter owned by the Borrower or any of its Approved Subsidiaries which is
utilized principally for shopping centers, capital improvements consisting of
rehabilitation, refurbishment, replacement, expansions and improvements
(including related amenities) to the existing Buildings on such Real Estate and
capital additions, repairs, resurfacing and replacements in the common areas of
such Real Estate all of which may be properly capitalized under generally
accepted accounting principles.
Capitalized Lease. A lease under which a Person is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with generally accepted accounting principles.
CERCLA. See Section 6.18.
Closing Date. The first date on which all of the conditions set forth
in Section 10 and Section 11 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended.
Collateral. All of the property, rights and interests of the Borrower,
the Guarantor or any of their Subsidiaries which are or are intended to be
subject to the security interests, liens and mortgages created by the Security
Documents, including, without limitation, the Mortgaged Property, the Guaranty
and the Subsidiary Guaranty.
Commitment. With respect to each Bank, the amount set forth on Schedule
1 hereto as the amount of such Bank's Commitment to make or maintain Loans to
the Borrower and to participate in Letters of Credit for the account of the
Borrower, as the same may be changed from time to time in accordance with the
terms of this Agreement.
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Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
Compliance Certificate. See Section 7.4(e).
Consolidated or combined. With reference to any term defined herein,
that term as applied to the accounts of a Person and its Subsidiaries,
consolidated or combined in accordance with generally accepted accounting
principles.
Consolidated Operating Cash Flow. With respect to any period of a
Person, an amount equal to the Operating Cash Flow of such Person and its
Subsidiaries for such period consolidated in accordance with generally accepted
accounting principles.
Consolidated Tangible Net Worth. The amount by which Consolidated Total
Adjusted Asset Value exceeds Consolidated Total Liabilities, and less the sum
of:
(1) 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
(2) 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) a ten percent (10%)
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, 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 as annualized shall be utilized, and (ii)
the Operating Cash Flow for any parcel of Real Estate without a full quarter of
performance shall be annualized in such manner as the Agent shall approve, such
approval not to be unreasonably withheld. For the purpose of calculating
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
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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 (b) the Borrower's respective ownership interest in
its Subsidiaries.
Consolidated Total Liabilities. All liabilities of a Person and its
Subsidiaries determined on a Consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of such Person and its
Subsidiaries, whether or not so classified, including any liabilities arising in
connection with sale and leaseback transactions. Amounts undrawn under this
Agreement shall not be included in Indebtedness for purposes of this definition.
Contribution Agreement (Revolver). That certain Contribution Agreement
(Revolver) dated of even date herewith among the Borrower, the Guarantor and the
Subsidiary Guarantors.
Construction Inspector. A firm of professional engineers or architects
selected by the Borrower and reasonably acceptable to the Agent.
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 4.1.
Debt Offering. The issuance and sale by the Borrower or the Guarantor
of any debt securities of the Borrower or the Guarantor.
Debt Service. For any period, the sum of all interest, including
capitalized interest not paid in cash, bond related expenses, and mandatory
principal/sinking fund payments due and payable during such period excluding the
mandatory amortization payments required pursuant to Section 3.5 of the
Unsecured Term Loan Agreement and any balloon payments due upon maturity of any
Indebtedness.
Debt Service Coverage Amount. At any time determined by the Agent, an
amount equal to the maximum principal loan amount which, when bearing interest
at a rate per annum equal to the lesser of (i) the then-current annual yield on
seven (7) year obligations issued by the United States Treasury most recently
prior to the date of determination plus 2.0% payable based on a 25 year mortgage
style amortization schedule (expressed as a mortgage constant percentage) and
(ii) ten percent (10%), would be payable by the monthly principal and interest
payment amount resulting from dividing (a) the Operating Cash Flow from an
individual Mortgaged Property for the preceding four fiscal quarters divided by
1.75 by (b) 12. Attached hereto as Schedule 2 is an example of the calculation
of Debt Service Coverage Amount (such example is meant only as an illustration
based upon the assumptions set forth in such example, and shall not be
interpreted so as to limit the Agent in its good faith determination of the Debt
Service Coverage Amount hereunder as hereinafter provided). The determination of
the Debt Service Coverage Amount and the components thereof by the Agent shall,
so long as the same shall be determined in good faith, be conclusive and binding
absent manifest error. In the event that the Borrower or any Approved Subsidiary
shall have owned a Mortgaged Property for less than four consecutive fiscal
quarters, then for the purpose of
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determining the Debt Service Coverage Amount, the Operating Cash Flow with
respect to such Mortgaged Property shall be annualized in such manner as the
Agent shall reasonably determine. For the purpose of calculating Operating Cash
Flow under this definition as to any Mortgaged Property, the Operating Cash Flow
Rental Adjustment shall be applied to any Mortgaged Property affected by any of
the events described in the definition of Operating Cash Flow Rental Adjustment.
Default. See Section 12.1. In addition, any "Default" (as defined in
the Unsecured Term Loan Agreement) shall also be a Default hereunder.
Defaulting Bank. Any Bank which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Business Days after notice
from the Agent.
Distribution. With respect to any Person, the declaration or payment of
any cash, cash flow, dividend or distribution on or in respect of any shares of
any class of capital stock or other beneficial interest of such Person other
than dividends or distributions payable solely in equity securities of such
Person; the purchase, redemption, exchange or other retirement of any shares of
any class of capital stock or other beneficial interest of such Person, directly
or indirectly through a Subsidiary of such Person or otherwise; the return of
capital by such Person to its shareholders, 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.
Eligible Real Estate. Real Estate:
(1) which is owned in fee by the Borrower or any Approved
Subsidiary or which is leased by the Borrower or any such Approved Subsidiary
pursuant to a ground lease which has been approved by the Majority Banks at
their sole discretion;
(2) which is located within the contiguous ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, excluding those States which prescribe a
"single-action" or similar rule limiting the rights of creditors secured by real
property, which exclusion shall apply, without limitation, to the States of
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California and Washington except to the extent such exclusion is waived in
writing by the Majority Banks with respect to a specific parcel of Real Estate;
(3) which is utilized principally for shopping centers or
retail facilities;
(4) which is approved by the Majority Banks after the date
hereof in their sole judgment;
(5) as to which all of the representations set forth in
Section 6 of this Agreement concerning Mortgaged Property are true and correct;
and
(6) as to which the Agent has received all Eligible Real
Estate Qualification Documents, so long as all of such documents remain in full
force and effect.
Eligible Real Estate Qualification Documents. With respect to any
parcel of Real Estate of the Borrower or any Approved Subsidiary which is
proposed to be included in the Collateral, each of the following:
(1) Security Documents. Such Security Documents relating to
such Real Estate as the Agent shall require, in form and substance
satisfactory to the Agent and duly executed and delivered by the
respective parties thereto.
(2) Enforceability Opinion. The favorable legal opinion of
counsel to the Borrower, the Guarantor and any Approved Subsidiary
reasonably acceptable to the Agent qualified to practice in the State
in which such Real Estate is located, addressed to the Banks and the
Agent and in form and substance satisfactory to the Agent as to the
enforceability of such Security Documents (including the opinion that
the Special Security Documents and the agreement herein for the future
recording thereof are enforceable between the parties thereto, with
appropriate qualifications acceptable to the Agent as to the
enforceability against third parties prior to recordation thereof) and
such other matters as the Agent shall reasonably request.
(3) Perfection of Liens. Except with respect to Special Real
Estate, evidence reasonably satisfactory to the Agent that the Security
Documents are effective to create in favor of the Agent a legal, valid
and enforceable first (except for Permitted Liens approved by the Agent
entitled to priority under applicable law) lien and security interest
in such Real Estate and that all filings, recordings, deliveries of
instruments and other actions necessary or desirable to protect and
preserve such lien or security interest have been duly effected.
(4) Survey and Taxes. The Survey of such Real Estate, together
with the Surveyor Certification and evidence of payment of all real
estate taxes, assessments and municipal charges on such Real Estate
which on the date of determination are required to have been paid under
Section 7.8.
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(5) Title Insurance; Title Exception Documents. The Title
Policy covering such Real Estate, including all endorsements thereto,
and together with proof of payment of all fees and premiums for such
policy, and true and accurate copies of all documents listed as
exceptions under such policy or any supplements thereto accepted by
Agent.
(6) UCC Certification. A certification from the Title
Insurance Company or counsel satisfactory to the Agent that a search of
the public records designated by the Agent disclosed no conditional
sales contracts, security agreements, chattel mortgages, leases of
personalty, financing statements or title retention agreements which
affect any property, rights or interests of the Borrower or any
Approved Subsidiary that are or are intended to be subject to the
security interest, assignments, and mortgage liens created by the
Security Documents relating to such Real Estate except to the extent
that the same are discharged and removed prior to or simultaneously
with the inclusion of the Real Estate in the Collateral.
(7) Management Agreement. A true copy of the Management
Agreement, if any, relating to such Real Estate.
(8) Standard Form Leases. True copies of sample leases and
Rent Rolls and summaries thereof satisfactory to the Agent certified by
the Borrower and any Approved Subsidiary as accurate and complete as of
a recent date.
(9) Subordination Agreements. A Subordination, Attornment and
Non-Disturbance Agreement from each tenant of such Real Estate as
reasonably required by the Agent, dated not more than sixty (60) days
prior to the inclusion of such Real Estate in the Collateral and
satisfactory in form and substance to the Agent.
(10) Estoppel Certificates. Estoppel certificates from (i)
each tenant of such parcel of Real Estate that leases space therein
containing 10,000 or more square feet and (ii) unless otherwise
approved by the Agent, seventy-five percent (75%) of all other tenants
of such parcel of Real Estate; provided, however, that notwithstanding
the foregoing requirements, the Borrower or any Approved Subsidiary
shall use its best efforts to obtain estoppel certificates from all
tenants of such parcel of Real Estate. All such estoppel certificates
are to be dated not more than sixty (60) days prior to the inclusion of
such Real Estate in the Collateral and are to be satisfactory in form
and substance to the Agent.
(11) Certificates of Insurance. Each of (i) a current
certificate of insurance as to the insurance maintained by the Borrower
on such Real Estate (including flood insurance if necessary) or blanket
coverage which includes such Real Estate in accordance with the terms
of this Agreement from the insurer or an independent insurance broker
dated as of the date of determination, identifying insurers, types of
insurance, insurance limits, and policy terms; (ii) certified copies of
all policies evidencing such insurance (or certificates therefor signed
by the insurer or an agent authorized to bind the insurer); and (iii)
such further information
-10-
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and certificates from the Borrower, its insurers and insurance brokers
as the Agent may reasonably request, all of which shall be in
compliance with the requirements of this Agreement.
(12) Hazardous Substance Assessments. A Phase I environmental
site assessment report concerning Hazardous Substances and asbestos on
such Real Estate dated or updated not more than six (6) months prior to
the inclusion of such Real Estate in the Collateral, from an
Environmental Engineer, such report to contain no qualifications except
those that are acceptable to the Majority Banks in their sole
discretion and to otherwise be in form and substance satisfactory to
the Majority Banks.
(13) Certificate of Occupancy. A copy of the certificate(s)
of occupancy issued to the Borrower or any Approved Subsidiary for such
parcel of Real Estate permitting the use and occupancy of the Building
thereon (or a copy of the certificates of occupancy issued for such
parcel of Real Estate and evidence satisfactory to the Agent that any
previously issued certificate(s) of occupancy is not required to be
reissued to the Borrower or any Approved Subsidiary), or a legal
opinion or certificate from the appropriate principality reasonably
satisfactory to the Agent that no certificates of occupancy are
necessary to the use and occupancy thereof.
(14) Appraisal. An Appraisal of such Real Estate, in form and
substance satisfactory to the Agent or the Majority Banks as provided
in Section 5.2 and dated not more than three (3) months prior to the
inclusion of such Real Estate in the Collateral.
(15) Zoning and Land Use Opinion of Counsel. A favorable
opinion concerning the Real Estate addressed to the Agent and dated the
date of the inclusion of such Real Estate in the Collateral, in form
and substance satisfactory to the Agent, from counsel approved by the
Agent admitted to practice in the State in which such parcel is
located, as to zoning and land use compliance, or such other evidence
regarding zoning and land use compliance as the Agent may approve in
its reasonable discretion, provided that a 3.1 zoning endorsement with
parking from the Title Insurance Company shall be satisfactory for this
purpose.
(16) Construction Inspector Report. A report or written
confirmation from the Construction Inspector satisfactory in form and
content to the Majority Banks, dated or updated not more than three (3)
months prior to the inclusion of such Real Estate in the Collateral,
addressing such matters as the Majority Banks may reasonably require,
including without limitation that the Construction Inspector has
reviewed the plans and specifications or other available materials for
all Buildings on the Real Estate, that the condition of the Buildings
is good, that all Buildings were constructed and completed in a good
and workmanlike manner, that the Buildings satisfy all applicable
building, zoning, handicapped access and Environmental Laws applicable
thereto, whether or not the Real Estate and the Buildings thereon are a
conforming use under applicable zoning laws, and that utilities and
public water and sewer service are available at the lot lines of the
Real Estate through
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dedicated rights-of-way or through insured perpetual private easements
approved by the Agent and connected directly to the Building with all
necessary permits.
(17) Permit and Legal Compliance Assurances. Evidence
satisfactory to the Agent that all activities being conducted on such
Real Estate which require federal, state or local licenses or permits
have been duly licensed and that such licenses or permits are in full
force and effect, and that the Real Estate, the Buildings and the use
and occupancy thereof are in compliance with all applicable federal,
state or local laws, ordinances or regulations.
(18) Operating Statements. Operating statements for such Real
Estate in the form of such statements delivered to the Banks under
Section 6.4(c) covering each of the four fiscal quarters ending
immediately prior to the addition of such Mortgaged Property to the
Collateral.
(19) Doing Business Opinion. An opinion, dated the date of the
inclusion of such Real Estate in the Collateral, of legal counsel to
the Borrower reasonably acceptable to the Agent qualified to practice
in the State in which such Real Estate is located to the effect that
neither the Agent nor any Bank shall be required to qualify to do
business in such State or any political subdivision thereof or to
become liable to pay any taxes in such State or any political
subdivision thereof solely on account of the receipt of the lien on
such Real Estate securing the Obligations, such opinion to be
satisfactory to the Agent.
(20) Approved Subsidiary Documents. With respect to Real
Estate owned by an Approved Subsidiary, such guaranties, contribution
agreements or other documents, instruments, reports, assurances, or
opinions as the Agent may require in its sole and absolute discretion.
(21) Additional Documents. Such other documents, certificates,
reports or assurances as the Agent may reasonably require in its
discretion.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower, the
Guarantor or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Engineer. McLaren ▇▇▇▇ or another firm of independent
professional engineers or other scientists generally recognized as expert in the
detection, analysis and remediation of Hazardous Substances and related
environmental matters and which has been previously approved by the Agent, or if
not previously approved by the Agent, with respect to which the Borrower has
provided to the Agent a copy of such firm's errors and omissions insurance
policy and a reliance letter both in form and substance acceptable to the Agent.
Environmental Laws. See Section 6.18(a).
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20
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.
Government Acts. See Section 2.7(j).
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21
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 Third Amended and Restated Unconditional Guaranty of
Payment and Performance dated of even date herewith made by the Guarantor in
favor of the Agent and the Banks, as the same may be modified or amended, such
Guaranty to be in form and substance satisfactory to the Agent.
Hazardous Substances. See Section 6.18(b).
HLT Notice Date. See Section 4.13.
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, but without any double counting, including in any
event and whether or not so classified: (a) all debt and similar monetary
obligations, whether direct or indirect (including, without limitation, any
obligations evidenced by bonds, debentures, notes or similar debt instruments);
(b) all liabilities secured by any mortgage, pledge, security interest, lien,
charge or other encumbrance existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been assumed;
(c) all guarantees, endorsements and other contingent obligations whether direct
or indirect in respect of indebtedness of others, including any obligation to
supply funds to or in any manner to invest directly or indirectly in a Person,
to purchase indebtedness, or to assure the owner of indebtedness against loss
through an agreement to purchase goods, supplies or services for the purpose of
enabling the debtor to make payment of the indebtedness held by such owner or
otherwise; (d) any obligation as a lessee or obligor under a Capitalized Lease;
(e) all subordinated debt; (f) all obligations to purchase under agreements to
acquire, or otherwise to contribute money with respect to, properties under
"development" within the meaning of Section 8.9; and (g) all obligations,
contingent or deferred or otherwise, of any Person, including, without
limitation, any such obligations as an account party under acceptance, letter of
credit or similar facilities including, without limitation, obligations to
reimburse the issuer in respect of a letter of credit except for contingent
obligations (but excluding any guarantees or similar obligations) that are not
material and are incurred in the ordinary course of business in connection with
the acquisition or obtaining commitments for financing of Real Estate.
Indemnity Agreement. The Third Amended and Restated Indemnity Agreement
Regarding Hazardous Materials made by the Borrower and the Guarantor in favor of
the Agent and the Banks, and any additional Indemnity Agreements Regarding
Hazardous Materials made by the Borrower and the Guarantor and/or any
Subsidiaries thereof in favor of the Agent and the Banks, as the same may be
modified or amended, pursuant to which the Borrower, the Guarantor and any such
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Subsidiaries agree to indemnify the Agent and the Banks with respect to
Hazardous Substances and Environmental Laws, such Indemnity Agreements to be in
form and substance satisfactory to the Majority Banks.
Interest Payment Date. As to each Base Rate Loan, the first day of each
calendar month during the term of such Base Rate Loan, and as to each LIBOR Rate
Loan, the first day of each calendar month during the term of such LIBOR Rate
Loan and the last day of the Interest Period relating thereto.
Interest Period. With respect to each LIBOR Rate Loan (a) initially,
the period commencing on the Drawdown Date of such Loan and ending one, two,
three or six months (or, with the consent of the Banks, a period of less than
one (1) month) thereafter and (b) thereafter, each period commencing on the day
following the last day of the next preceding Interest Period applicable to such
Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(1) 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;
(2) 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
(3) 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
-15-
23
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(n) 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.
Leases. Leases, licenses and agreements whether written or oral,
relating to the use or occupation of space in or on the Building or on the Real
Estate by persons other than the Borrower.
Letter of Credit. Any standby letter of credit issued at the request of
the Borrower and for the account of the Borrower in accordance with Section 2.7.
Each letter of credit issued for the account of the Borrower under the Prior
Credit Agreement (which letters of credit are identified on Schedule 3 attached
hereto) shall be deemed to be a Letter of Credit under this Agreement and shall
be subject to all terms and conditions of this Agreement including, without
limitation, the obligation of the Borrower to reimburse the Agent with respect
to any amounts drawn thereunder.
Letter of Credit Application. See Section 2.7(b).
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
LIBOR Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. 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 ALIBO@ (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
-16-
24
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 '4.4 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. Loans bearing interest calculated by reference to a
LIBOR Rate.
Loan Documents. This Agreement, the Notes, the Letters of Credit, the
Letter of Credit Applications, the Security Documents and all other documents,
instruments or agreements now or hereafter executed or delivered by or on behalf
of the Borrower, the Guarantor or any of their Subsidiaries in connection with
the Loans. The Loan Documents include the Special Security Documents.
Loan Request. See Section 2.5.
Loans. See Section 2.1.
Majority Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is more than fifty percent (50%); provided,
that, in determining said percentage at any given time, all then existing
Defaulting Banks will be disregarded and excluded and the Commitment Percentages
of the Banks shall be redetermined for voting purposes only, to exclude the
Commitment Percentages of such Defaulting Banks; and provided, further that the
Agent must always be among the Majority Banks except that after an Event of
Default described in Section 12.1 (a) or (b) decisions of the Majority Banks to
accelerate and/or exercise remedies pursuant to Section 12.5 shall be made
without regard to whether the Agent is among the Majority Banks.
Management Agreements. Agreements, whether written or oral, providing
for the management of the Mortgaged Properties or any of them.
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25
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. September ____, 2003 [INSERT DATE 1 DAY EARLIER THAN
DATE OF CLOSING], or such earlier date on which the Loans shall become due and
payable pursuant to the terms hereof.
Mortgaged Property or Mortgaged Properties. The Eligible Real Estate
owned by the Borrower or any Approved Subsidiary which is conveyed to and
accepted by the Agent as security for the Obligations of the Borrower pursuant
to the Security Deeds. Notwithstanding anything herein to the contrary, the
property encumbered by the Security Documents executed by the Subsidiary
Guarantors shall not constitute separate Mortgaged Properties for the purpose of
determining the Borrowing Base.
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 (other than Mortgaged Property) and related
personal property or interests therein and Short-term Investments and is not a
general obligation of such Person, the holder of such Indebtedness having
recourse solely to the parcels of Real Estate securing such Indebtedness, the
Building and Leases thereon and the rents and profits thereof and the Short-term
Investments securing such Indebtedness.
Notes. See Section 2.3.
Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Agent, individually or collectively, under
this Agreement or any of the other Loan Documents or in respect of any of the
Loans, the Letters of Credit or the Notes, or other instruments at any time
evidencing any of the foregoing, whether existing on the date of this Agreement
or
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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. With respect to Letters of Credit, the
aggregate undrawn face amount of issued Letters of Credit.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, limited liability
company, trust, unincorporated association, business, or other legal entity, and
any government or any governmental agency or political subdivision thereof.
Potential Collateral. Any property of the Borrower which is not at the
time included in the Collateral and which consists of (i) Eligible Real Estate
and (ii) Real Estate which is capable of becoming Eligible Real Estate through
the approval of the Majority Banks and the completion and delivery of Eligible
Real Estate Qualification Documents.
Principal Documents. The Master Agreement, the RPS Contribution
Agreements and the Ramco Agreements.
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Prior Credit Agreement. As defined in the recitals hereof.
Prior Guarantor. As defined in the recitals hereof.
Ramco Agreements. As defined in the Master Agreement.
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.
Register. See Section 18.2.
Regular Real Estate. All of those certain parcels of Real Estate which
are not Special Real Estate.
REIT Status. With respect to the Guarantor, its status as a real estate
investment trust as defined in Section 856(a) of the Code.
Release. See Section 6.18(c)(iii).
Rent Roll. A report prepared by the Borrower in the form customarily
used by the Borrower and approved by the Agent, such approval not to be
unreasonably withheld.
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.
RPS Contribution Agreements. As defined in the Master Agreement.
SEC. The federal Securities and Exchange Commission.
Security Deeds. The Mortgages, Deeds to Secure Debt and Deeds of Trust
from the Borrower or any Approved Subsidiary to the Agent for the benefit of the
Banks (or to trustees named therein acting on behalf of the Agent for the
benefit of the Banks), as the same may be modified or
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amended, pursuant to which the Borrower or any Approved Subsidiary has conveyed
a Mortgaged Property (including both Regular Real Estate and Special Real
Estate) as security for the Obligations of the Borrower.
Security Documents. The Security Deeds, the Assignments of Rents and
Leases, the Indemnity Agreement, the Guaranty, the Assignment of Hedge
Agreement, the Subsidiary Guaranty, any guaranty that may be executed by an
Approved Subsidiary, and any further collateral assignments to the Agent for the
benefit of the Banks, including, without limitation, UCC-1 financing statements
executed and delivered in connection therewith.
Service Agreement. Service agreements with third parties, whether
written or oral, relating to the operation, maintenance, security, finance or
insurance of Mortgaged Property.
Short-term Investments. Investments described in subsections (a)
through (g), inclusive, of Section 8.3.
Special Real Estate. Those certain parcels of Real Estate which are
described on Schedule 1.1. In the event that after the date hereof any other
Real Estate shall become Special Real Estate, the Agent may unilaterally amend
Schedule 1.1 to reflect such addition.
Special Security Documents. The Security Documents relating to Special
Real Estate, which have been or may in the future be executed and delivered to
Agent for the benefit of the Banks, and which are not to be recorded until the
occurrence of the events specified in Section 5.8 (it being acknowledged that
the Guaranty and the Indemnity Agreement are not Special Security Documents).
State. A state of the United States of America.
Subordination Agreement. That certain Subordination Agreement dated of
even date herewith between Agent, for itself and the Banks, and Fleet National
Bank, as agent under the Unsecured Term Loan Agreement, for itself and the other
lenders 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.
Subsidiary Guarantors. Ramco Cox Creek LLC, a Michigan limited
liability company, and Ramco Crofton Plaza LLC, a Maryland limited liability
company, being wholly-owned Subsidiaries of Borrower that have taken assignments
of tenant's interests under certain leases affecting the Mortgaged Properties
commonly known as Cox Creek Plaza and Crofton Plaza.
Subsidiary Guaranty. The Unconditional Guaranty of Payment and
Performance dated of even date herewith made by the Subsidiary Guarantors in
favor of the Agent and the Banks, as the
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same may be modified or amended, such Guaranty to be in form and substance
satisfactory to the Agent.
Survey. An instrument survey of Mortgaged Property prepared by a
registered land surveyor duly licensed in the State in which such Mortgaged
Property is located which shall show the location of all buildings, structures,
easements and utility lines on such property, shall be sufficient to remove the
standard survey exception from the Title Policy, shall show that all buildings
and structures are within the lot lines of the Mortgaged Property and shall not
show any encroachments by others (or to the extent any encroachments are shown,
such encroachments shall be acceptable to the Agent in its sole discretion),
shall show rights of way, adjoining sites, establish building lines and street
lines, the distance to, and names of the nearest intersecting streets and such
other details as the Agent may reasonably require; shall show the zoning
district or districts in which the Mortgaged Property is located and shall show
whether or not the Mortgaged Property is located in a flood hazard district as
established by the Federal Emergency Management Agency or any successor agency
or is located in any flood plain, flood hazard or wetland protection district
established under federal, state or local law and shall otherwise be in form and
substance reasonably satisfactory to the Agent.
Surveyor Certification. With respect to each parcel of Mortgaged
Property, a certificate executed by the surveyor who prepared the Survey with
respect thereto, dated as of a recent date and containing such information
relating to such parcel as the Agent or the Title Insurance Company may
reasonably require, such certificate to be reasonably satisfactory to the Agent
in form and substance.
Title Insurance Company. Commonwealth Land Title Insurance Company or
another title insurance company or companies approved by the Agent.
Title Policy. With respect to each parcel of Mortgaged Property, an
ALTA standard form title insurance policy (or, if such form is not available, an
equivalent form of or legally promulgated form of mortgagee title insurance
policy reasonably acceptable to the Agent) issued by a Title Insurance Company
(with such reinsurance or coinsurance as the Agent may require, any such
reinsurance to be with direct access endorsements to the extent available under
applicable law) in such amount as the Agent may require insuring the priority of
the Security Deeds and that the Borrower or an Approved Subsidiary holds
marketable fee simple title to such parcel, subject only to the encumbrances
permitted by the Security Deed and which shall not contain standard exceptions
for mechanics liens, persons in occupancy (other than tenants as tenants only
under Leases) or matters which would be shown by a survey, shall not insure over
any matter except to the extent that any such affirmative insurance is
acceptable to the Agent in their sole discretion and shall contain (a) a
revolving credit endorsement and (b) such other endorsements and affirmative
insurance as the Agent reasonably may require and is available in the State in
which the Real Estate is located, including but not limited to (i) a
comprehensive endorsement, (ii) a variable rate of interest endorsement, (iii) a
usury endorsement, (iv) a doing business endorsement, (v) in States where
available, an ALTA form 3.1 zoning endorsement, (vi) a "tie-in" endorsement and
(vii) a "first loss" endorsement; provided, however, that with respect to
Special Real Estate, the "Title Policy" shall be an owner's policy of title
insurance, in a form satisfactory to the Agent, containing only exceptions
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satisfactory to the Agent, supplemented by a current "date down" or "nothing
further" certificate (or if such endorsement or certificate is not available a
current mortgagee's title commitment in favor of the Agent) provided by an
issuer satisfactory to the Agent, evidencing the state of title to the Special
Real Estate, as of a date not earlier than thirty (30) days prior to delivery
thereof to the Agent or such later date as may be required by any other
provision hereof (it being acknowledged that a Title Policy relating to Special
Real Estate shall not be considered in full force and effect if such a current
satisfactory supplement has not been delivered within a period of one year).
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time. As of the date of this Agreement, the Total Commitment is One
Hundred Ten Million and No/100 Dollars ($110,000,000.00).
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate
Loan.
Under Development. Any Real Estate shall be considered under
development until such time as (i) 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.
Unsecured Term Loan Agreement. That certain First Amended and Restated
Unsecured Term Loan Agreement among the Borrower, the Guarantor, Fleet, the
other lending institutions that are or become parties thereto, Fleet in its
capacity as agent for itself and the other lending institutions that are or
become parties thereto, and the other parties thereto, dated of even date as
this Agreement, as the same may be amended, modified, renewed, consolidated or
restated.
Unsecured Term Loans. All loans and other indebtedness or liabilities
arising under the Unsecured Term Loan Agreement and all other loan documents
related thereto.
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.
(1) 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.
(2) The singular includes the plural and the plural includes
the singular.
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(3) A reference to any law includes any amendment or modification to
such law.
(4) A reference to any Person includes its permitted successors and
permitted assigns.
(5) 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.
(6) The words "include", "includes" and "including" are not limiting.
(7) 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.
(8) 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.
(9) Reference to a particular " Section ", refers to that section of
this Agreement unless otherwise indicated.
(10) 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 and the amount of Letters of Credit Outstanding) at any one
time equal to the lesser of (a) such Bank's Commitment minus an amount equal to
such Bank's participations in the aggregate Letters of Credit Outstanding and
(b) an amount equal to the Borrowing Base multiplied by such Bank's Commitment
Percentage minus an amount equal to such Bank's participations in the aggregate
Letters of Credit Outstanding; provided, that, in all events no Default or Event
of Default shall have occurred and be continuing; and provided, further that the
Outstanding Loans (after giving effect to all amounts requested) and the Letters
of Credit Outstanding shall not at anytime exceed the Total Commitment. The
Loans shall be made pro rata in accordance with each Bank's Commitment
Percentage. Each request for a Loan hereunder shall constitute a representation
and warranty by the Borrower that all of the conditions set
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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. 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 Rate
Balance to Total Commitment
------------------------------------- --------------
50% or less 0.25%
------------------------------------- --------------
Greater than 50% 0.125%
------------------------------------- --------------
The facility fee shall be payable quarterly in arrears on the fifth day of each
calendar quarter for the immediately preceding calendar quarter or portion
thereof, or on any earlier date on which the Commitments shall be reduced or
terminated as provided in Section 2.8, with a final payment on the Maturity
Date.
SECTION 2.3. 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
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 2.4. INTEREST ON LOANS.
(1) 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
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converted to a LIBOR Rate Loan at the per annum rate equal to the sum of the
Applicable Margin plus the Base Rate.
(2) 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.
(3) The Borrower promises to pay interest on each Loan to it
in arrears on each Interest Payment Date with respect thereto, or on any earlier
date on which the Commitments shall terminate as provided in Section 2.8. In the
event that any additional interest becomes due and payable for any period with
respect to a Loan as a result of the Applicable Margin being determined based on
the ratio of Consolidated Total Liabilities to Consolidated Total Adjusted Asset
Value or any change in such ratio, and the interest for such period has
previously been paid by the Borrower, the Borrower shall pay to the Agent for
the account of the Banks the amount of such increase within ten (10) days of
demand.
(4) 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
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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.
(1) 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 the Borrower the aggregate amount
of such Loans made available to the Agent by the Banks by crediting such amount
to the account of the Borrower maintained at the Agent's Head Office. The
failure or refusal of any Bank to make available to the Agent at the aforesaid
time and place on any Drawdown Date the amount of its Commitment Percentage of
the requested Loans shall not relieve any other Bank from its several obligation
hereunder to make available to the Agent the amount of such other Bank's
Commitment Percentage of any requested Loans, including any additional Loans
that may be requested subject to the terms and conditions hereof to provide
funds to replace those not advanced by the Bank so failing or refusing, provided
that the Borrower may by notice received by the Agent no later than the Drawdown
Date refuse to accept any Loan which is not fully funded in accordance with the
Borrower's Loan Request subject to the terms of Section 2.5. In the event of any
such failure or refusal, the Banks not so failing or refusing shall be entitled
to a priority secured position as against the Bank or Banks so failing or
refusing for such Loans as provided in Section 12.6.
(2) 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
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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. LETTERS OF CREDIT.
(1) Subject to the terms and conditions hereof and provided
that all of the conditions contained in Section 10 and 11 have been satisfied,
the Agent agrees to issue Letters of Credit for the account of the Borrower,
from the date of this Agreement to, but not including, the Maturity Date at such
times as the Borrower may request; provided, however, that the aggregate amount
of Letters of Credit (including such requested Letter of Credit) at any one time
Outstanding shall not exceed the lesser of (i) the lesser of (A) the Total
Commitment or (B) the amount of the Borrowing Base, in each case, minus the
aggregate amount of Outstanding Loans (including any amounts drawn under any
Letters of Credit and not yet reimbursed by the Borrower), or (ii)
$10,000,000.00. The issuance of a Letter of Credit pursuant to this Section
2.7(a) shall be deemed to reduce the aggregate of the unborrowed Commitments of
the Banks then in effect by an amount equal to the undrawn face amount of such
Letter of Credit as set forth herein. In no event shall any amount drawn under a
Letter of Credit be available for reinstatement or a subsequent drawing under a
Letter of Credit. Each Bank severally agrees to participate in each such Letter
of Credit issued by the Agent in an amount equal to its Commitment Percentage of
the total amount of the Letter of Credit requested by the Borrower; provided,
however, that no Bank shall be required to participate in any Letter of Credit
to the extent that its participation therein plus (x) such Bank's participation
in the aggregate of all other Letters of Credit Outstanding, and (y) such Bank's
Commitment Percentage of the amount of any Loans Outstanding (including any
amounts drawn under any Letters of Credit and not yet reimbursed by the
Borrower), would exceed an amount equal to such Bank's Commitment as then in
effect. Each Bank agrees with the Agent that it will participate in each Letter
of Credit issued by the Agent to the extent required by the preceding sentence.
No Bank's obligation to participate in a Letter of Credit shall be affected by
any other Bank's failure to participate in the same or any other Letter of
Credit.
(2) The Borrower shall deliver to the Agent at least five (5)
Business Days (or such shorter period as may be agreed to by the Agent in any
particular instance) prior to the proposed issuance date or amendment date of
any Letter of Credit, a Letter of Credit Application signed by the chief
executive, chief financial or chief accounting officer of the general partner of
the Borrower in the form of Exhibit D hereto (a "Letter of Credit Application")
together with a certification by the chief financial or chief accounting officer
of the general partner of the Borrower and the chief financial or chief
accounting officer of Guarantor that the Borrower and Guarantor are and will be
in compliance with all covenants under the Loan Documents after giving effect to
the issuance of such Letter of Credit. Subject to the terms and conditions set
forth in Section 2.7(a) and, unless the Agent is aware that the conditions
precedent to such issuance of a Letter of Credit set forth in Section 11 have
not been satisfied, the Agent will make the requested Letter of Credit available
at the Agent's principal office not later than 4:00 p.m. (Boston time) on the
issuance date, and, immediately upon the issuance of each Letter of Credit, each
Bank shall be deemed to participate in such Letter of Credit to
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the extent set forth in Section 2.7(a). Not more than two (2) Business Days
after the issuance of any Letter of Credit, the Agent shall notify each Bank of
the amount and other contents of such Letter of Credit and of the date of
issuance. The Agent shall notify each Bank at least monthly, or at the request
of such Bank, of the amount of all outstanding Letters of Credit.
(3) The chief executive, chief financial or chief accounting officer of
the general partner of the Borrower may request a Letter of Credit on behalf of
the Borrower. The Agent shall be entitled to rely conclusively on such
authorized officer's authority to request a Letter of Credit on behalf of the
Borrower until the Agent receives written notice to the contrary. The Agent
shall have no duty to verify the authenticity of the signature appearing on any
Letter of Credit Application.
(4) Each Letter of Credit Application shall be irrevocable and the
Borrower shall be bound to accept the issuance of a Letter of Credit in
accordance therewith.
(5) All Letters of Credit shall be stated to expire no more than twelve
(12) months from the date of issuance.
(6) In the event that any amount is drawn under a Letter of Credit by
the beneficiary thereof, the Borrower shall reimburse the Agent by having such
amount drawn treated as an outstanding Base Rate Loan under this Agreement and
the Agent shall promptly notify each Bank by telex, telecopy, telegram,
telephone (confirmed in writing) or other similar means of transmission, and
each Bank shall promptly and unconditionally pay to the Agent, for the Agent's
own account, an amount equal to such Bank's Commitment Percentage of such Letter
of Credit (to the extent of the amount drawn). If and to the extent any Bank
shall not make such amount available on the Business Day on which such draw
occurs, such Bank agrees to pay such amount to the Agent forthwith on demand,
together with interest thereon, for each day from the date on which such draw
occurred until the date on which such amount is paid to the Agent, at the
Federal Funds Effective Rate until three (3) days after the date on which the
Agent gives notice of such draw and at the Federal Funds Effective Rate plus 1%
for each day thereafter. Further, such Bank shall be deemed to have assigned any
and all payments made of principal and interest on its Loans, amounts due with
respect to its participations in Letters of Credit and any other amounts due to
it hereunder to the Agent to fund the amount of any drawn Letter of Credit which
such Bank was required to fund pursuant to this Section 2.7(f) until such amount
has been funded (as a result of such assignment or otherwise). In the event of
any such failure or refusal, the Banks not so failing or refusing shall be
entitled to a priority secured position for such amounts as provided in Section
12.6. The failure of any Bank to make funds available to the Agent in such
amount shall not relieve any other Bank of its obligation hereunder to make
funds available to the Agent pursuant to this Section 2.7(f).
(7) The obligation of the Borrower to reimburse the Agent, and of the
Banks to make payments to the Agent with respect to Letters of Credit, shall be
irrevocable and shall not be subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
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(1) Any lack of validity or enforceability of this Agreement, any
Letter of Credit or any of the other Loan Documents;
(2) The existence of any claim, setoff, defense or other right which
the Borrower may have at any time against a beneficiary named in a Letter of
Credit or any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Agent, any Bank or any other Person, whether
in connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transactions between the Borrower or any Subsidiary of the Borrower and the
beneficiary named in any Letter of Credit);
(3) Any draft, certificate or other document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect in
the absence of gross negligence or willful misconduct on the part of the Agent;
(4) The surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents;
(5) Payment by the Agent under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit, provided that such payment does
not constitute gross negligence or willful misconduct of the Agent;
(6) Any other circumstance or happening whatsoever which is similar to
any of the foregoing; or
(7) The occurrence of any Event of Default or Default.
(8) Whenever the Agent receives a reimbursement payment from the
Borrower on account of an amount drawn under a Letter of Credit, as to which the
Agent has received for its own account any payment from the Banks pursuant to
this Section 2.7, then the Agent shall promptly pay to each Bank which has
funded its participation in such Letter of Credit in accordance with this
Section 2.7, in Dollars and in the kind of funds so received, such Bank's share
of such reimbursement payment based on its Commitment Percentage of such Letter
of Credit.
(9) The Borrower shall pay to the Agent for the account of the Banks
(based on their respective Commitment Percentage of Letters of Credit), a fee
equal to the Applicable Margin (expressed as a per annum rate) for LIBOR Rate
Loans then in effect on the face amount of the Letter of Credit calculated
quarterly and payable on the first (1st) day of each January, April, July and
October during the term of such Letter of Credit, with a final payment on the
expiry of termination thereof. The fee for any Letter of Credit with a term of
less than one year (or part of a year) shall be calculated on a pro-rata basis.
In addition, the Borrower shall pay the standard service charges for
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Letters of Credit issued from time to time by the Agent including an issuance
fee of $150.00 for each Letter of Credit. Such additional fees shall be paid to
the Agent for its own account. All such fees shall be payable when due in
immediately available funds and shall be nonrefundable.
(10) In addition to amounts payable as elsewhere provided in
this Section 2.7, the Borrower hereby agrees to pay, and to protect, indemnify
and save harmless the Agent and the Banks from and against, any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal counsel) which the
Agent and the Banks may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of or participations in the Letters of Credit,
other than as a result of the gross negligence or willful misconduct of the
Agent or any Bank as determined by a court of competent jurisdiction, or (ii)
the failure of the Agent to honor a drawing under any Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future government or governmental authority (all such acts or omissions herein
called "Government Acts"). The obligations of the Borrower under this Section
2.7 shall survive the termination of this Agreement and the discharge of the
Borrower's other obligations hereunder, including the Obligations.
(11) As between (i) the Borrower and (ii) the Agent and the
Banks, the Borrower assumes all risks of the acts and omissions of, or misuse of
the Letters of Credit issued by the Agent by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Agent nor any Bank shall be responsible: (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of such Letters of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the right or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) for failure of the beneficiary of any Letter
of Credit to comply fully with conditions required in order to draw upon such
Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any Letter of Credit or
of the proceeds thereof; (vii) for the misapplication by the beneficiary of any
Letter of Credit of the proceeds of any drawing under such Letter of Credit; and
(viii) for any consequences arising from causes beyond the control of the Agent
or any Bank, including, without limitation, any Government Acts; provided,
however, that the Agent will be responsible for grossly negligent actions or
willful misconduct on its part. None of the above shall affect, impair, or
prevent the vesting of any of the Agent's or any Bank's rights or powers
hereunder.
(12) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Agent under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith shall not put the Agent
or any Bank under any resulting liability to the Borrower other than as a result
of gross negligence or willful misconduct by the Agent as determined by a court
of competent jurisdiction.
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(13) If after the issuance of a Letter of Credit, but prior to
the funding of any portion thereof by a Bank, one of the events described in
Section 12.1(g), (h) or (i) shall have occurred, each Bank will, on the date
such Loan pursuant to Section 2.7(f) was to have been made, purchase an
undivided participating interest in the Letter of Credit in an amount equal to
its Commitment Percentage of the amount of such Letter of Credit. Each Bank will
immediately transfer to the Agent in immediately available funds the amount of
its participation and upon receipt thereof the Agent will deliver to such Bank a
Letter of Credit participation certificate dated the date of receipt of such
funds and in such amount.
(14) If any Letter of Credit shall be outstanding at the
Maturity Date, the Borrower shall immediately cash collateralize such Letters of
Credit or obtain replacement letters of credit for such Letter of Credit (and
return to Agent such outstanding Letters of Credit), all in a manner
satisfactory to the Agent.
SECTION 2.8. 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 (provided that in no event shall the
aggregate Commitments be reduced to an amount less than $75,000,000.00) or to
terminate entirely the unborrowed portion of the Commitments, whereupon the
Commitments of the Banks shall be reduced pro rata in accordance with their
respective Commitment Percentages of the amount specified in such notice or, as
the case may be, terminated, any such reduction to be without penalty. Promptly
after receiving any notice of the Borrower delivered pursuant to this Section
2.8, the Agent will notify the Banks of the substance thereof. Upon the
effective date of any such termination in full, the Borrower shall pay to the
Agent for the respective accounts of the Banks the full amount of any facility
fee under Section 2.2 then accrued. No reduction or termination of the
Commitments may be reinstated. Any reduction of the Commitments pursuant to this
Agreement shall be allocated pro rata among the Banks in accordance with their
Commitment Percentages.
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 and Letters of Credit Outstanding exceeds (a) the Total
Commitment, or (b) the Borrowing Base, then the Borrower shall pay the amount of
such excess to the Agent for the respective accounts of the Banks for
application to the Loans within the time period provided for in Section 12.3,
subject to the Borrower's right to provide additional Collateral pursuant to
Section 12.2.
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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 an integral multiple of $100,000,
shall be accompanied by the payment of accrued interest on the principal prepaid
to the date of payment and, after payment of such interest, shall be applied, in
the absence of instruction by the Borrower, first to the principal of Base Rate
Loans and then to the principal of LIBOR Rate Loans.
SECTION 3.5. EFFECT OF PREPAYMENTS. Amounts of the Loans prepaid under
Section 3.2, Section 3.3 and Section 3.6 or out of any casualty or condemnation
proceeds prior to the Maturity Date may be reborrowed as provided in Section 2.
SECTION 3.6. PROCEEDS FROM DEBT OR EQUITY OFFERING. At the option of
the Majority Banks, the Borrower shall cause any Net Offering Proceeds to be
paid by the Borrower or the Guarantor to the Agent for the account of the Banks
as a prepayment of the Loans to the Borrower or which are guaranteed by the
Guarantor within ten (10) days of the date of such offering to the extent of the
outstanding balance of such Loans; provided that so long as no Default or Event
of Default has occurred and is continuing or would occur as a result of such
payment, the Net Offering Proceeds of any Equity Offering may be used to prepay
the Unsecured Term Loans.
SECTION 4. CERTAIN GENERAL PROVISIONS.
SECTION 4.1. CONVERSION OPTIONS.
(1) The Borrower may elect from time to time to convert any of
its outstanding Loans to a Loan of another Type and such Loan shall thereafter
bear interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable; provided
that (i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the Borrower shall give the Agent at least three (3) Business Days' prior
written notice of such election, and such conversion shall only be made on the
last day of the Interest Period with respect to such LIBOR Rate Loan; (ii) with
respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan the
Borrower shall give the Agent at least four (4) LIBOR Business Days' prior
written notice of such election and the Interest Period requested for such Loan,
the principal amount of the Loan so converted shall be in a minimum aggregate
amount of $2,000,000 or an integral multiple of $100,000 in excess thereof and,
after giving effect to the making of such Loan there shall be no more than ten
(10) LIBOR Rate Loans outstanding at any one
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time; and (iii) no Loan may be converted into a LIBOR Rate Loan when any Default
or Event of Default has occurred and is continuing. All or any part of the
outstanding Loans of any Type may be converted as provided herein, provided that
no partial conversion shall result in a Base Rate Loan in an aggregate principal
amount of less than $1,000,000 or a LIBOR Rate Loan in an aggregate principal
amount of less than $2,000,000 and that the aggregate principal amount of each
Loan shall be in an integral multiple of $100,000. On the date on which such
conversion is being made, each Bank shall take such action as is necessary to
transfer its Commitment Percentage of such Loans to its Domestic Lending Office
or its LIBOR Lending Office, as the case may be. Each Conversion Request
relating to the conversion of a Base Rate Loan to a LIBOR Rate Loan shall be
irrevocable by the Borrower.
(2) 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.
(3) 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 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. AGENT'S FEE. The Borrower will pay to the Agent, for the
Agent's own account, an annual Agent's fee calculated at the rate, and payable
at such times as are, set forth in the Agreement Regarding Fees referred to in
Section 4.2.
SECTION 4.4. FUNDS FOR PAYMENTS.
(1) All payments of principal, interest, unused facility fees,
Agent's fees, Letter of Credit fees, closing fees and any other amounts due
hereunder or under any of the other Loan Documents shall be made to the Agent,
for the respective accounts of the Banks and the Agent, as the case may be, at
the Agent's Head Office, not later than 1:00 p.m. (Boston time) on the day when
due, in each case in 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.
(2) 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
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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
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Period applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law.
SECTION 4.8. ADDITIONAL INTEREST. If any LIBOR Rate Loan or any portion
thereof is repaid or is converted to a Base Rate Loan for any reason on a date
which is prior to the last day of the Interest Period applicable to such LIBOR
Rate Loan, or if repayment of the Loans has been accelerated as provided in
Section 12.1, the Borrower will pay to the Agent upon demand for the account of
the Banks in accordance with their respective Commitment Percentages, in
addition to any amounts of interest otherwise payable hereunder, any amounts
required to compensate the Banks for any losses, costs or expenses which may
reasonably be incurred as a result of such payment or conversion, including,
without limitation, an amount equal to daily interest for the unexpired portion
of such Interest Period on the LIBOR Rate Loan or portion thereof so repaid or
converted at a per annum rate equal to the excess, if any, of (a) the interest
rate calculated on the basis of the LIBOR Rate applicable to such LIBOR Rate
Loan minus (b) the yield obtainable by the Agent upon the purchase of debt
securities customarily issued by the Treasury of the United States of America
which have a maturity date most closely approximating the last day of such
Interest Period (it being understood that the purchase of such securities shall
not be required in order for such amounts to be payable and that a Bank shall
not be obligated or required to have actually obtained funds at the LIBOR Rate
or to have actually reinvested such amounts as described above). 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:
(1) 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, the Loans or the
Letters of Credit (other than taxes based upon or measured by the income or
profits of such Bank or the Agent), or
(2) 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
(3) impose or increase or render applicable any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force
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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
(4) impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, the Letters of Credit, such Bank's Commitment, or any class of loans or
commitments of which any of the Loans or such Bank's Commitment forms a part;
and the result of any of the foregoing is
(1) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of the
Loans, the Letters of Credit or such Bank's Commitment, or
(2) to reduce the amount of principal, interest or
other amount payable to such Bank or the Agent hereunder on
account of such Bank's Commitment or any of the Loans or the
Letters of Credit, or
(3) 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 or
participate in Letters of Credit hereunder to a level below that which such Bank
or holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or such holding company's then
existing policies with respect to capital adequacy and assuming the full
utilization of such entity's capital) by any amount deemed by such Bank to be
material, then such Bank may notify the Borrower thereof. The Borrower agrees to
pay to such Bank the amount of such reduction in the return on capital as and
when such reduction is
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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 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
five percent (5.0%) 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 five
percent (5.0%) 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
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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 Section 4.13 and a brief explanation of such amounts which are
due, submitted by any Bank or the Agent to the Borrower, shall be conclusive in
the absence of manifest error.
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 Obligations of the Borrower shall be
secured by (i) a perfected first priority lien or security title to be held by
the Agent for the benefit of the Banks in the Mortgaged Property, Building
Service Equipment and other personal property of the Borrower and any Approved
Subsidiary, pursuant to the terms of the Security Deeds, (ii) a perfected first
priority security interest to be held by the Agent for the benefit of the Banks
in the Leases pursuant to the Assignments of Rents and Leases from the Borrower
and any Approved Subsidiary and (iii) the Indemnity Agreement; provided,
however, that the security interest in Special Real Estate and rents generated
therefrom shall be perfected only as provided in Section 5.8. The Obligations
shall also be guaranteed pursuant to the terms of the Guaranty and the
Subsidiary Guaranty.
SECTION 5.2. APPRAISALS.
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(1) The Agent on behalf of the Banks shall require biennial
Appraisals of each of the Mortgaged Properties, which will be ordered by the
Agent and reviewed and approved by the appraisal department of the Agent, in
order to determine the current Appraised Value and Borrowing Base of the
Mortgaged Property, and the Borrower shall pay to the Agent on demand all
reasonable costs of all such Appraisals relating to the Mortgaged Property of
the Borrower; provided, however, that so long as (i) no Default or Event of
Default shall have occurred and be continuing, (ii) regulatory requirements of
any Bank generally applicable to real estate loans of the category made under
this Agreement as reasonably interpreted by such Bank shall not require more
frequent Appraisals and (iii) there has been no material change in the market
for the leasing of any of the Mortgaged Properties as reasonably determined by
the Agent, the Borrower shall not be required to pay for Appraisals for a
particular Mortgaged Property more often than once in any twenty-four (24) month
period, with the result that unless any such condition shall occur the first
Appraisals of a Mortgaged Property for which the Borrower shall be financially
responsible shall not be required prior to the date which is twenty-four (24)
months from the date of the Appraisal for such Mortgaged Property delivered to
the Agent pursuant to this Agreement or the Prior Credit Agreement.
Notwithstanding the foregoing provisions, however, in the event of a material
change of the type referred to in clause (iii), the Borrower shall not be
required to pay for Appraisals of the affected Mortgaged Property or Mortgaged
Properties more often than once in any twelve (12) month period.
(2) Notwithstanding the provisions of Section 5.2(a), the
Agent may, for the purpose of determining the current Appraised Value and
Borrowing Base of the applicable Mortgaged Properties, perform annual internal
studies updating and revising prior Appraisals with respect to the Mortgaged
Properties or such portion thereof as the Agent shall determine at any time
(including, without limitation, following a release of a Mortgage Property)
following (i) the occurrence of an event or condition which, in the reasonable
judgment of the Agent, constitutes a material adverse change with respect to a
Mortgaged Property or presents a reasonable likelihood that such a change shall
occur in the future or (ii) a condemnation of or uninsured casualty to a
Mortgaged Property (provided that any such Appraisal as a result of an event or
condition described in clause (i) or (ii) shall be limited to the affected
Mortgaged Property). The expense of such Appraisals and updates performed
pursuant to this Section 5.2(b) shall be borne by the Borrower, provided that
the Borrower shall not be required to pay for any update pursuant to Section
5.2(b)(i) more often than once in any twelve (12) month period.
(3) In the event that the Agent shall advise the Borrower, on
the basis of any Appraisal or update pursuant to Section 5.2, that the
Borrower's Borrowing Base is insufficient to comply with the requirements of
Section 9.1, then until such Borrowing Base shall be restored to compliance with
Section 9.1 the Banks shall not be required to make advances under Section 2.1
or participate in any Letters of Credit under Section 2.7.
SECTION 5.3. RELEASE OF COLLATERAL.
(1) Upon termination of this Agreement and the Commitment of
the Banks to make Loans and to participate in Letters of Credit hereunder, the
payment in full of all of the
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Obligations and compliance by the Borrower with the terms of Section 2.7(n), the
Agent, on behalf of the Banks, shall release the Collateral and shall execute
such instruments of release as the Borrower and its counsel may reasonably
request.
(2) Provided no Default or Event of Default shall have
occurred hereunder and be continuing (or would exist immediately after giving
effect to the transactions contemplated by this Section 5.3), the Agent shall
release a Mortgaged Property from the lien or security title of the Security
Documents encumbering the same upon the request of the Borrower subject to and
upon the following terms and conditions:
(1) the Borrower shall deliver to the Agent
written notice of its desire to obtain such release no later
than ten (10) days prior to the date on which such release is
to be effected;
(2) the Borrower shall submit to the Agent
with such request a Compliance Certificate prepared using the
financial statements of the Borrower and Guarantor most
recently provided or required to be provided to the Agent
under Section 6.4 or Section 7.4 adjusted in the best good
faith estimate of the Borrower to give effect to the proposed
release and demonstrating that no Default or Event of Default
with respect to the covenants in this Agreement shall exist
after giving effect to such release;
(3) all release documents to be executed by
the Agent shall be in form and substance reasonably
satisfactory to the Agent;
(4) the Borrower shall pay all reasonable
costs and expenses of the Agent in connection with such
release, including without limitation, reasonable attorney's
fees;
(5) the Borrower shall pay to the Agent for
the account of the Banks a release price, which payment shall
be applied to reduce the outstanding principal balance of the
Loans, in an amount equal to the amount which is necessary to
reduce the outstanding principal balance of the Loans so that
no Default or Event of Default shall exist under Section 9
following such release; and
(6) subject to Borrower's right to prepay
the entire outstanding amount of the Loans in whole, but not
in part, at no time during the term of this Agreement shall
there be less than ten (10) Mortgaged Properties securing the
Obligations, which Mortgaged Properties shall have an
aggregate occupancy level of at least eighty percent (80%) for
the previous fiscal quarter based on bona fide arm's length
Leases requiring current rental payments which are not in
default.
(3) Notwithstanding the foregoing, the Agent shall be entitled
to release a portion of the Mortgaged Property commonly known as Hickory Corners
as approved by Agent not to
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exceed one-half of one acre without the payment of the release payment described
in Section 5.3(b)(v) in connection with the proposed transfer of land to General
Growth.
SECTION 5.4. SUBSTITUTION OF MORTGAGED PROPERTY. Any requested
substitution by the Borrower of any Real Estate for any Mortgaged Property shall
require the consent of the Majority Banks and shall require the completion and
delivery to the Agent, for the benefit of the Banks, of the Eligible Real Estate
Qualification Documents and the payment to the Agent, for the benefit of the
Banks, of a substitution fee of $10,000 to be split equally by the Banks,
without regard to their respective Commitment Percentages. It is acknowledged
and agreed that the foregoing fee is intended to compensate the Banks for their
travel and internal due diligence review, and that the Borrower shall remain
liable for the payment of all of the Agent's other costs associated with such
substitution, including, but not limited to, appraisal fees, legal costs and
costs of environmental, engineering and structural studies.
SECTION 5.5. ADDITION OF MORTGAGED PROPERTIES.
(1) The Borrower shall have the right, subject to the consent
of the Majority Banks which may be withheld by the Majority Banks in their sole
and absolute discretion, to add to the Collateral, any other Real Estate which
is owned by the Borrower or an Approved Subsidiary and which is not security for
any other Indebtedness. Such addition shall be completed by the completion and
delivery to the Agent for the benefit of the Banks of each of the Eligible Real
Estate Qualification Documents. Such Real Estate shall be Eligible Real Estate,
shall be satisfactory to the Majority Banks in all respects and shall have a
Borrowing Base amount attributable thereto by the Agent so as to cause the
Borrower to continue to be in compliance with all covenants contained in this
Agreement. In the event that the Borrower desires for such Real Estate to be
Special Real Estate, the Borrower shall deliver such evidence as the Agent may
require indicating that it is not feasible for such Real Estate to be Regular
Real Estate upon the transfer and amendment and restatement of any existing loan
documents which may encumber such Real Estate, and such Real Estate may not be
Special Real Estate without the approval of the Agent.
(2) In connection with each such addition to increase the
Borrowing Base or to replace a Mortgaged Property except for the reasons set
forth in Section 5.6, the Borrower, within fifteen (15) days of the Borrower's
request to add such Real Estate to the Collateral, shall pay to the Agent for
the account of the Banks a review fee of $10,000.00 for each parcel of Real
Estate to be added to be split equally by the Banks, without regard to their
respective Commitment Percentages.
(3) In the event that Borrower shall desire to convert any
Special Real Estate to Regular Real Estate, as a condition to such conversion,
Borrower shall deliver to Agent such additional or updated Eligible Real Estate
Qualification Documents as Agent may request.
SECTION 5.6. MANDATORY INCREASE IN BORROWING BASE. At all times when
the portion of the Borrowing Base attributable to Regular Real Estate (without
taking into account any Borrowing Base attributable to Special Real Estate) is
less than the Total Commitment (including any increase
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in such Total Commitment), all Real Estate located outside of New York, Florida,
Maryland or such other states in which Special Real Estate is located with the
approval of the Agent which is purchased or developed with proceeds of Loans or
any Equity Offering or which has been encumbered by Indebtedness which is repaid
with proceeds of Loans shall be immediately mortgaged or conveyed to the Agent
for the benefit of the Banks, and the Borrower shall promptly cause the same to
become Eligible Real Estate; provided that the Borrower shall take commercially
reasonable steps to cause any lender holding a lien on Real Estate located in
New York, Florida, Maryland or such other states in which Special Real Estate is
located with the approval of the Agent that is acquired by the Borrower to
transfer such Indebtedness and related loan documents to the Agent, and to amend
and restate the same to allow the Agent to record a Security Deed against such
Real Estate, and in such event such Real Estate may not be Special Real Estate.
SECTION 5.7. NON-ENCUMBRANCE. Without implying any limitation upon the
generality of Section 8.2, the Borrower will not, and will not permit any other
Person to, create or incur or suffer to be created or incurred or to exist any
lien, encumbrance, mortgage, pledge, negative pledge, change, restriction or
other security interest of any kind upon any Special Real Estate encumbered by
any Special Security Documents (whether now owned or hereafter acquired), except
for matters set forth in Title Policies relating to such Special Real Estate
submitted to and approved by the Agent.
SECTION 5.8. SPECIAL SECURITY DOCUMENTS. The Special Security Documents
have been delivered and are effective or shall be effective upon the future
delivery thereof, but shall not be recorded until the occurrence of an Event of
Default. Upon the occurrence of an Event of Default, the Agent may, and upon the
direction of the Majority Banks, shall, record the Special Security Documents in
the public records without any further action of or notice to the Borrower or
any other party and without waiving such Event of Default; provided, however,
that if such Event of Default exists solely as a result of default described in
Section 12.1(b), the Agent shall give the Borrower two (2) Business Days notice
prior to the recordation of the Security Documents. In addition, the Borrower
shall promptly deliver or cause to be delivered to the Agent such further
documents as may be reasonably requested by the Agent relating to such Real
Estate, including without limitation, owner's affidavits, updated legal opinions
and copies of leases and such changes to the Special Security Documents as may
be necessary or desirable to comply with changes in applicable law. In
connection with the recording of the Special Security Documents, the Agent may
obtain, at the Borrower's sole cost and expense, a mortgagee's title insurance
policy with respect to each parcel of Special Real Estate encumbered by such
Special Security Documents in such amount as is determined by the Agent. The
Borrower shall upon demand pay the cost of any such mortgagee's title insurance
policy, the cost of any updated UCC searches, all recording costs and fees, and
any and all intangible taxes or other documentary or mortgage taxes, assessments
or charges which are demanded in connection with the recording of any of the
Special Security Documents. In addition, the Borrower shall pay within five (5)
days after demand any and all costs, fees, intangible tax, documentary or
mortgage tax, assessments or charges as are demanded by any governmental
authority by reason of the Special Security Documents prior to the recording of
the same. In the event that the Borrower fails to pay such amounts as provided
in this section, then the Banks may advance such amounts as are required to be
paid as Loans hereunder, which Loans shall bear interest
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at the rate for overdue payments set forth in this Agreement. The Agent and the
Banks agree that, provided no Default or Event of Default shall have theretofore
occurred hereunder or under any of the other Loan Documents, Agent shall, within
five (5) days of the receipt of written request from the Borrower, release the
Special Real Estate from the lien of the Special Security Documents and return
the Special Security Documents to the Borrower; provided, however, the Agent
shall not be obligated to release the Special Real Estate or return the Special
Security Documents if, as a result of the release of the Special Real Estate, a
Default or Event of Default shall exist hereunder or under any of the other Loan
Documents.
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.
(1) Incorporation; Good Standing. The Borrower is a
Delaware limited partnership duly organized pursuant to its limited partnership
agreement dated December 21, 1994, as amended by amendments one through
thirteen, 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 Mortgaged Property of
the Borrower is located and in each other jurisdiction where a failure to be so
qualified in such other jurisdiction could have a materially adverse effect on
the business, assets or financial condition of such Person. The Guarantor is a
real estate investment trust in full compliance with and entitled to the
benefits of Section 856 of the Code.
(2) 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 Mortgaged Property held by
it is located and in each other jurisdiction where a failure to be so qualified
could have a materially adverse effect on the business, assets or financial
condition of the
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Borrower, the Guarantor, or such Subsidiary. The Subsidiary Guarantors are
wholly-owned direct Subsidiaries of the Borrower.
(3) 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.
(4) 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 and the filing of the Security
Documents in the appropriate records office with respect thereto.
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 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
Subsidiaries as of the Balance Sheet Date, (b) an unaudited statement of
Operating Cash Flow for each of the Mortgaged Properties for the fiscal years
ended December 31, 1998, and December 31, 1999 and for the period of January 1,
2000 through
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June 30, 2000, to the extent available, satisfactory in form to the Agent and
certified by the chief financial or accounting officer of the general partner of
the Borrower as fairly presenting the operating income for such parcels for such
periods, provided that such certification need only be made with respect to any
Mortgaged Property for the period such Mortgaged Property has been owned and
operated by the Borrower, if such period is less than three (3) fiscal years,
and (c) certain other financial information relating to the Borrower, the
Guarantor and the Real Estate. Such balance sheet and statements have been
prepared in accordance with generally accepted accounting principles and fairly
present the financial condition of the Borrower, the Guarantor and their
respective Subsidiaries as of such dates and the results of the operations of
the Borrower, the Guarantor and the Mortgaged Properties for such periods. There
are no liabilities, contingent or otherwise, of the Borrower, the Guarantor or
any of their respective Subsidiaries involving material amounts not disclosed in
said financial statements and the related notes thereto.
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
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Borrower, the Guarantor, nor any of their respective Subsidiaries is a party to
any contract or agreement that has or is expected, in the judgment of the
partners or officers of such Person, to have any materially adverse effect on
the business of any of them.
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. SETOFF, ETC. The Collateral and the rights of the Agent
and the Banks with respect to the Collateral are not subject to any setoff,
claims, withholdings or other defenses. The Borrower is the owner of the
Collateral free from any lien, security interest, encumbrance or other claim or
demand, except those encumbrances permitted in the Security Deeds.
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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 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.
(1) With respect to the Mortgaged Properties, and to the best
of the Borrower's and the Guarantor's knowledge with respect to any other Real
Estate, none of the Borrower, the Guarantor or their respective Subsidiaries or
any operator of the Real Estate, or any operations 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
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Toxic Substances Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to the environment (hereinafter
"Environmental Laws"), which violation involves any of the Mortgaged Properties
or involves other Real Estate and would have a material adverse effect on the
business, assets or financial condition of the Borrower, the Guarantor or any of
their respective Subsidiaries.
(2) None of the Borrower, the Guarantor or any of their
respective Subsidiaries has received notice from any third party including,
without limitation, any federal, state or local governmental authority, (i) that
it has been identified by the United States Environmental Protection Agency
("EPA") as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (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.
(3) With respect to the Mortgaged Properties, and to the best
of the Borrower's and the Guarantor's knowledge with respect to any other Real
Estate, except as specifically set forth in the written environmental site
assessment reports of [MCLAREN ▇▇▇▇] 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, the environmental site assessment reports
with respect thereto provided to the Agent under Section 7.4(h): (i) no portion
of the Real Estate has been used for the handling, processing, storage or
disposal of Hazardous Substances except in accordance with applicable
Environmental Laws in all material respects, and no underground tank or other
underground storage receptacle for Hazardous Substances is located on any
portion of the Mortgaged Property; (ii) in the course of any activities
conducted by either the Borrower, the Guarantor, their Subsidiaries or the
operators of its properties, no Hazardous Substances have been generated or are
being used on the Real Estate except in the ordinary course of business and in
accordance with applicable Environmental Laws in all material respects; (iii)
there has been no past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, disposing or
dumping (a "Release") or threatened Release of Hazardous Substances on, upon,
into or from any of the Mortgaged Properties, or, to the best of the Borrower's
or the Guarantor's knowledge, on, upon, 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
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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.
(4) None of the Borrower, the Guarantor, their respective
Subsidiaries, the Mortgaged Properties or any other Real Estate is subject to
any applicable Environmental Law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the recording
or delivery to other Persons of an environmental disclosure document or
statement by virtue of the transactions set forth herein and contemplated
hereby, or as a condition to the recording of the Security Deeds or to the
effectiveness of any other transactions contemplated hereby.
SECTION 6.19. SUBSIDIARIES. Schedule 6.19 sets forth all of the
Subsidiaries of the Borrower and the Guarantor. The form and jurisdiction of
organization of each of the Subsidiaries, and the Borrower's and the Guarantor's
ownership interest therein, is set forth in said Schedule 6.19.
SECTION 6.20. LEASES. The Borrower has delivered to the Agent (i) true
copies of the forms of the Leases used by the Borrower at the Mortgaged
Properties as of the date hereof and (ii) true, correct and complete copies of
the Leases and any amendments thereto relating to the Mortgaged Properties as of
the date hereof.
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. MORTGAGED PROPERTY. The Borrower and the Guarantor each
makes and shall cause each Approved Subsidiary to make, the following
representations and warranties concerning each Mortgaged Property:
(1) Off-Site Utilities. All water, sewer, electric, gas,
telephone and other utilities necessary for the use and operation of the
Mortgaged Property are installed to the property lines of the Mortgaged Property
through dedicated public rights of way or through perpetual private easements
approved by the Agent with respect to which the applicable Security Deed creates
a valid and enforceable first lien and, except in the case of drainage
facilities, are connected to the Building
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located thereon with valid permits and are adequate to service the Building in
compliance with applicable law.
(2) Access, Etc. The streets abutting the Mortgaged Property
are dedicated and accepted public roads, to which the Mortgaged Property has
direct access by trucks and other motor vehicles and by foot, or are perpetual
private ways (with direct access by trucks and other motor vehicles and by foot
to public roads) to which the Mortgaged Property has direct access approved by
the Agent and with respect to which the applicable Security Deed creates a valid
and enforceable first lien. All private ways providing access to the Mortgaged
Property are zoned in a manner which will permit access to the Building over
such ways by trucks and other commercial and industrial vehicles.
(3) Independent Building. The Building is fully independent in
all respects including, without limitation, in respect of structural integrity,
heating, ventilating and air conditioning, plumbing, mechanical and other
operating and mechanical systems, and electrical, sanitation and water systems,
all of which are connected directly to off-site utilities located in public
streets or ways or through insured perpetual private easements approved by the
Agent. The Building is located on a lot which is separately assessed for
purposes of real estate tax assessment and payment. The Building, all Building
Service Equipment and all paved or landscaped areas related to or used in
connection with the Building are located wholly within the perimeter lines of
the lot or lots on which the Mortgaged Property is located, except as may be
specifically shown on the Survey for such Mortgaged Property.
(4) Condition of Building; No Asbestos. The Building is, in
all material respects, structurally sound, in good repair and free of defects in
materials and workmanship. All major building systems located within the
Building, including without limitation heating, ventilating and air
conditioning, electrical, sprinkler, plumbing or other mechanical systems, are
in good working order and condition. Except as set forth in the Phase I
environmental site assessments delivered by the Borrower to the Agent, no
asbestos is located in or on the Building, except for nonfriable asbestos or
contained friable asbestos which is being monitored and/or remediated in
accordance with the recommendations of an Environmental Engineer.
(5) Building Compliance with Law. The Building as presently
constructed, used, occupied and operated does not, in any material respect,
violate any applicable federal or state law or governmental regulation or any
local ordinance, order or regulation, including but not limited to laws,
regulations, or ordinances relating to zoning, building use and occupancy,
subdivision control, fire protection, health, sanitation, safety, handicapped
access, historic preservation and protection, tidelands, wetlands, flood control
and Environmental Laws. The Building complies, in all material respects, with
applicable zoning laws and regulations and is not a so-called non-conforming
use. The zoning laws permit use of the Building for its current use. There is
such number of parking spaces on the lot or lots on which the Mortgaged Property
is located as is adequate under the zoning laws and regulations to permit use of
the Building for its current use. Each Mortgaged Property constitutes a separate
parcel which has been properly subdivided in accordance with all applicable
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state and local laws, regulations and ordinances to the extent required thereby,
and neither the execution and delivery of the Security Deeds nor the exercise of
any remedies thereunder by the Agent shall violate any such law or regulation
relating to the subdivision of real property.
(6) No Required Mortgaged Property Consents, Permits, Etc.
Neither the Borrower, the Guarantor nor any Approved Subsidiary has received any
notice of, and has no knowledge of, any approvals, consents, licenses, permits,
utility installations and connections (including, without limitation, drainage
facilities), curb cuts and street openings, required by applicable laws, rules,
ordinances or regulations or any agreement affecting the Mortgaged Property for
the maintenance, operation, servicing and use of the Mortgaged Property or the
Building for its current use which have not been granted, effected, or performed
and completed (as the case may be), or any fees or charges therefor which have
not been fully paid, or which are no longer in full force and effect. No such
approvals, consents, permits or licenses (including, without limitation, any
railway siding agreements) will terminate, or become void or voidable or
terminable on any foreclosure sale of the Mortgaged Property pursuant to the
Security Deed. To the best knowledge of the Borrower, the Guarantor and each
Approved Subsidiary, there are no outstanding notices, suits, orders, decrees or
judgments relating to zoning, building use and occupancy, fire, health,
sanitation or other violations affecting, against, or with respect to, the
Mortgaged Property or any part thereof.
(7) Insurance. Neither the Borrower, the Guarantor nor any
Approved Subsidiary has received any outstanding notice from any insurer or its
agent requiring performance of any work with respect to the Mortgaged Property
or canceling or threatening to cancel any policy of insurance, and the Mortgaged
Property complies with the requirements of all of the Borrower's and the
Guarantor's insurance carriers.
(8) Real Property Taxes; Special Assessments. There are no
unpaid or outstanding real estate or other taxes or assessments on or against
the Mortgaged Property or any part thereof which are payable by the Borrower or
the Guarantor (except only real estate or other taxes or assessments, that are
not yet due and payable). The Borrower has delivered to the Agent true and
correct copies of real estate tax bills for the Mortgaged Property for the past
three (3) fiscal years. No abatement proceedings are pending with reference to
any real estate taxes assessed against the Mortgaged Property, other than with
respect to taxes which have been paid under protest and which are being
contested in good faith. Except as set forth in the Title Policies delivered to
the Agent, there are no betterment assessments or other special assessments
presently pending with respect to any portion of the Mortgaged Property, and
neither the Borrower nor the Guarantor has received any notice of any such
special assessment being contemplated.
(9) Historic Status. The Building is not a historic structure
or landmark and neither the Building or the Mortgaged Property is located within
any historic district pursuant to any federal, state or local law or
governmental regulation.
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(10) Eminent Domain; Casualty. There are no pending eminent
domain proceedings against the Mortgaged Property or any part thereof, and, to
the knowledge of the Borrower or the Guarantor, no such proceedings are
presently threatened or contemplated by any taking authority. Neither the
Mortgaged Property, the Building or any part thereof is now damaged or injured
as a result of any fire, explosion, accident, flood or other casualty.
(11) Leases. An accurate and complete Rent Roll and summary
thereof in a form reasonably satisfactory to the Agent as of the date of
inclusion of the Mortgaged Property in the Collateral (or such other recent date
as may be acceptable to the Agent) with respect to all Leases of any portion of
the Mortgaged Property has been provided to the Agent. The Leases reflected on
such Rent Roll constitute as of the date thereof the sole agreements and
understandings relating to leasing or licensing of space at the Mortgaged
Property and in the Building relating thereto. Each of the Leases was entered
into as the result of arms-length negotiation and has not been modified,
changed, altered, assigned, supplemented or amended in any respect, except as
reflected on the Rent Roll, and no tenant is entitled to any free rent, partial
rent, rebate of rent payments, credit, offset or deduction in rent, including,
without limitation, lease support payments or lease buy-outs, except as
reflected in the Rent Roll. There are no occupancies, rights, privileges or
licenses in or to the Mortgaged Property or portion thereof other than pursuant
to the Leases reflected in Rent Rolls previously furnished to the Agent for the
Mortgaged Property. Except as set forth in each Rent Roll, the Leases reflected
therein are in full force and effect in accordance with their respective terms,
without any payment default or any other material default thereunder, nor are
there any defenses, counterclaims, offsets, concessions or rebates available to
any tenant thereunder, and neither the Borrower, the Guarantor nor any of their
respective Subsidiaries has given or made, any notice of any payment or other
material default, or any claim, which remains uncured or unsatisfied, with
respect to any of the Leases. The Rent Rolls furnished to the Banks accurately
and completely set forth all rents payable by and security, if any, deposited by
tenants, no tenant having paid more than one month's rent in advance. All tenant
improvements or work to be done for tenants on the Rent Roll, furnished or paid
for by the Borrower, the Guarantor or any of their respective Subsidiaries, or
credited or allowed to a tenant, for, or in connection with, the Building
pursuant to any Lease has been completed and paid for or provided for in a
manner satisfactory to the Agent. No material leasing, brokerage or like
commissions, fees or payments are due from the Borrower, the Guarantor or any of
their respective Subsidiaries in respect of the Leases.
(12) Service Agreements; Management Agreements. Except as
listed on Schedule 6.22, there are no material Service Agreements relating to
the operation and maintenance of the Building, the Mortgaged Property, or any
portion thereof that are not cancelable at any time. The Borrower has no
Management Agreements for the Mortgaged Properties. To the best knowledge of the
Borrower, there are no material claims or any bases for material claims in
respect of the Mortgaged Property or its operation by any party to any Service
Agreement or Management Agreement.
(13) Other Material Real Property Agreements: No Options.
There are no material agreements pertaining to the Mortgaged Property, any
Building thereon or the operation or
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maintenance of either thereof other than as described in this Agreement
(including the Schedules hereto), the Title Policies or otherwise disclosed in
writing to the Agent and the Banks by the Borrower; and no person or entity has
any right or option to acquire the Mortgaged Property or any Building thereon or
any portion thereof or interest therein.
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, 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. CONTRIBUTION AGREEMENT. Borrower has delivered or made
available to the Agent a true, correct and complete copy of the Contribution
Agreement (Revolver). The Contribution Agreement (Revolver) is in full force and
effect in accordance with its terms, there are no material claims resulting from
non-performance of the terms thereof or otherwise or any basis for a material
claim by any party to the Contribution Agreement (Revolver), nor has there been
any waiver of any material terms thereunder.
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
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and indirect benefits to inure to the Borrower, the Guarantor and each of their
respective Subsidiaries pursuant to this Agreement and the other Loan Documents
constitute substantially more than "reasonably equivalent value" (as such term
is used in Section 548 of the Bankruptcy Code) and "valuable consideration,"
"fair value," and "fair consideration," (as such terms are used in any
applicable state fraudulent conveyance law), in exchange for the benefits to be
provided by the Borrower, the Guarantor and each of their respective
Subsidiaries pursuant to this Agreement and the other Loan Documents, and but
for the willingness of the Guarantor and the Subsidiary Guarantors 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 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
69.9702% 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 on Schedule
6.29 hereto.
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, Letter of Credit or Note is
outstanding or any Bank has any obligation to make any Loans or to participate
in any Letters of Credit:
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.
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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 Guarantor will deliver or cause to be delivered to each of the
Banks:
(1) 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;
(2) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower and Guarantor, respectively, copies of the unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries and the
Guarantor and its Subsidiaries, respectively, as at the end of such quarter, and
the related unaudited Consolidated statements of income, changes in
shareholder's equity and cash flows for the portion of the Borrower's and the
Guarantor's, respectively, fiscal year then elapsed, and a statement showing the
aging of the receivables and payables for the Mortgaged Properties, all in
reasonable detail and prepared in accordance with generally accepted accounting
principles (which, as to the Guarantor, may be provided by inclusion in the Form
10-Q of the Guarantor for such period provided pursuant to subsection (c)
below), together with a certification by the principal financial or accounting
officer of the Borrower and the Guarantor, respectively, that the information
contained in such financial statements fairly presents the financial position of
such Person and its Subsidiaries on the date thereof (subject to year-end
adjustments); provided, however, that unless otherwise requested by the Agent or
the Majority Banks, the Borrower shall not be required to deliver the balance
sheets, statements or other matters required by this Section 7.4(b) to the
extent the same are incorporated in the balance sheets, statements and other
matters delivered to the Banks by the Guarantor;
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(3) 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);
(4) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of the first three (3) fiscal quarters of the
Borrower, copies of a Consolidated statement of Operating Cash Flow for such
fiscal quarter for the Borrower and its Subsidiaries and a statement of
Operating Cash Flow for such fiscal quarter for the Borrower and each of the
Mortgaged Properties, prepared on a basis consistent with the statement
furnished pursuant to Section 6.4(c) together with a certification by the chief
financial or chief accounting officer of the general partner of the Borrower,
that the information contained in such statement fairly presents the Operating
Cash Flow of the Borrower and its Subsidiaries and the Mortgaged Properties for
such period;
(5) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement (a
"Compliance Certificate") certified by the principal financial or accounting
officer of the 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;
(6) 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;
(7) as soon as practicable but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower, an updated Rent Roll aggregating information for the
Mortgaged Properties and operating statements and tenant sales reports with
respect to the Mortgaged Properties with respect to such fiscal quarter, such
statements and reports to be in form reasonably satisfactory to the Agent;
(8) as soon as practicable but in any event not later than one
hundred (100) days after the end of the fourth fiscal quarter of the Borrower,
an updated Rent Roll aggregating information for the Mortgaged Properties and
rolling four (4) quarter operating statements and tenant sales reports with
respect to the Mortgaged Properties, such statements and reports to be in form
reasonably satisfactory to the Agent;
(9) 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
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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;
(10) 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;
(11) promptly upon completion, copies of such market studies
relating to the Mortgaged Property and the other Eligible Real Estate as are
from time to time prepared by or on behalf of the Borrower or its Subsidiaries;
(12) 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;
(13) 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;
(14) 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;
(15) as soon as practicable, but in any event not later than
one hundred (100) days after the end of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries at the
end of such year, and the related unaudited consolidated statements of income,
changes in shareholder's equity and cash flows for such year, each setting forth
in comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by a certification by the
principal financial or accounting officer of the Borrower that
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the information contained in such financial statements fairly presents the
financial position of the Borrower and its Subsidiaries on the date thereof
(provided, however, that the Borrower shall not be required to provide such
statements in the event that such statements would be substantially similar to
the consolidated statements provided by the Guarantor); and
(16) 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.
(1) 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.
(2) Environmental Events. The Borrower will promptly give
notice to the Agent (i) upon the Borrower obtaining knowledge of any potential
or known Release of any Hazardous Substances at or from the Mortgaged Property;
(ii) of any violation of any Environmental Law that the Borrower or any of its
Subsidiaries reports in writing or is reportable by such Person in writing (or
for which any written report supplemental to any oral report is made) to any
federal, state or local environmental agency; and (iii) upon becoming aware
thereof, of any inquiry, proceeding, investigation, or other action, including a
notice from any agency of potential environmental liability, of any federal,
state or local environmental agency or board, that in either case involves the
Mortgaged Property or has the potential to materially affect the assets,
liabilities, financial conditions or operations of the Borrower or any
Subsidiary or the Agent's liens on the Collateral pursuant to the Security
Documents.
(3) Notification of Claims Against Collateral. The Borrower
will, immediately upon becoming aware thereof, notify the Agent in writing of
any setoff, claims (including, with respect to any Mortgaged Property,
environmental claims), withholdings or other defenses to which any of the
Collateral, or the rights of the Agent or the Banks with respect to the
Collateral, are subject.
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(4) Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting the Borrower, the Guarantor or any of their respective
Subsidiaries or to which the Borrower, the Guarantor or any of their respective
Subsidiaries is or is to become a party involving an uninsured claim against the
Borrower, the Guarantor or any of their respective Subsidiaries that could
reasonably be expected to have a materially adverse effect on the Borrower or
the Guarantor and stating the nature and status of such litigation or
proceedings. The Borrower will give notice to the Agent, in writing, in form and
detail satisfactory to the Agent and each of the Banks, within ten (10) days of
any judgment not covered by insurance, whether final or otherwise, against the
Borrower, the Guarantor or any of their respective Subsidiaries in an amount in
excess of $100,000.
(5) Notice of Proposed Sales, Encumbrances, Refinance or
Transfer of Non-Mortgaged Property. The Borrower will give notice to the Agent
of any proposed or completed sale, encumbrance, refinance or transfer of any
Real Estate other than Mortgaged Property or other Investment described in
Section 8.3(i) of the Borrower, the Guarantor or their respective Subsidiaries
within any fiscal quarter of the Borrower, such notice to be submitted, in the
case of any such sale, encumbrance, refinance or transfer in an amount in excess
of $10,000,000.00, together with the Compliance Certificate provided or required
to be provided to the Banks under Section 7.4 with respect to such fiscal
quarter. The Compliance Certificate shall with respect to any proposed or
completed sale, encumbrance, refinance or transfer be adjusted in the best good
faith estimate of the Borrower to give effect to such sale, encumbrance,
refinance or transfer and demonstrate that no Default or Event of Default with
respect to the covenants referred to therein shall exist after giving effect to
such sale, encumbrance, refinance or transfer. Notwithstanding the foregoing, in
the event of any sale, encumbrance, refinance or transfer of any Real Estate
other than the Mortgaged Property or other Investment described in Section
8.3(i) of the Borrower, the Guarantor or their respective Subsidiaries, the
Borrower shall promptly give notice to the Agent of such transaction, which
notice shall be accompanied by a Compliance Certificate prepared using the
financial statements of the Borrower most recently provided or required to be
provided to the Banks under Section 6.4 or Section 7.4 adjusted as provided in
the preceding sentence.
(6) New Leases. The Borrower and each Approved Subsidiary will
give notice to the Agent of any proposed new Lease at any Mortgaged Property for
the lease of space therein of more than 7500 square feet and shall provide to
the Agent a copy of the proposed lease and any and all agreements or documents
related thereto, current financial information for the proposed tenant and any
guarantor of the proposed lease and such other information as the Agent may
request. The Agent shall be deemed to have consented to such new Lease if the
Agent has not within ten (10) Business Days of the receipt by the Agent of the
initial notification from the Borrower or the Approved Subsidiary notified the
Borrower or the Approved Subsidiary of either the Agent's refusal to consent
thereto or the Agent's need for further information in connection with such
proposed new Lease. Agent shall be authorized to enter into subordination,
non-disturbance and attornment agreements with any tenant under a Lease upon
such terms as Agent in its good faith judgment determines are appropriate.
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(7) 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.
(1) 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 shall continue to own directly or indirectly one hundred percent (100%)
of the Voting Interests and economic interests in the Subsidiary Guarantors. 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.
(2) The Borrower (i) will cause all of its properties and
those of its Subsidiaries used or useful in the conduct of its business or the
business of its Subsidiaries to be maintained and kept in good condition, repair
and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment, and (ii) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof in all cases in
which the failure so to do would have a material adverse effect on the condition
of the applicable Mortgaged Property or on the financial condition, assets or
operations of the Borrower and its Subsidiaries.
(3) 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.
(1) The Borrower will, at its expense, procure and maintain
for the benefit of the Borrower and the Agent, insurance policies issued by such
insurance companies, in such amounts, in such form and substance, and with such
coverages, endorsements, deductibles and expiration dates as are acceptable to
the Agent, providing the following types of insurance covering the Mortgaged
Property:
(1) "All Risks" property insurance (including broad
form flood, broad form earthquake and comprehensive boiler and
machinery coverages) on each Building and the contents therein
of the Borrower and its Subsidiaries in an amount not less
than one hundred percent (100%) of the full replacement cost
of each Building and the contents therein of the Borrower and
its Subsidiaries or such other amount as the Agent may
approve, with deductibles not to exceed $10,000 for any
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one occurrence, with a replacement cost coverage endorsement,
an agreed amount endorsement, and, if requested by the Agent,
a contingent liability from operation of building laws
endorsement in such amounts as the Agent may require. Full
replacement cost as used herein means the cost of replacing
the Building (exclusive of the cost of excavations,
foundations and footings below the lowest basement floor) and
the contents therein of the Borrower and its Subsidiaries
without deduction for physical depreciation thereof;
(2) During the course of construction or repair of
any Building, the insurance required by clause (i) above shall
be written on a builders risk, completed value, non-reporting
form, meeting all of the terms required by clause (i) above,
covering the total value of work performed, materials,
equipment, machinery and supplies furnished, existing
structures, and temporary structures being erected on or near
the Real Estate, including coverage against collapse and
damage during transit or while being stored off-site, and
containing a soft costs (including loss of rents) coverage
endorsement and a permission to occupy endorsement;
(3) Flood insurance if at any time any Building is
located in any federally designated "special hazard area"
(including any area having special flood, mudslide and/or
flood-related erosion hazards, and shown on a Flood Hazard
Boundary Map or a Flood Insurance Rate Map published by the
Federal Emergency Management Agency as Zone A, AO, Al-30, AE,
A99, AH, VO, V1-30, VE, V, M or E) and the broad form flood
coverage required by clause (i) above is not available, in an
amount equal to the full replacement cost or the maximum
amount then available under the National Flood Insurance
Program;
(4) Rent loss insurance in an amount sufficient to
recover at least the total estimated gross receipts from all
sources of income, including without limitation, rental
income, for the Real Estate for a twelve (12) month period;
(5) Commercial general liability insurance against
claims for personal injury (to include, without limitation,
bodily injury and personal and advertising injury) and
property damage liability, all on an occurrence basis, if
commercially available, with such coverages as the Agent may
reasonably request (including, without limitation, contractual
liability coverage, completed operations coverage for a period
of two (2) years following completion of construction of any
improvements on the Real Estate, and coverages equivalent to
an ISO broad form endorsement), with a general aggregate limit
of not less than $1,000,000, a completed operations aggregate
limit of not less than $1,000,000, and a combined single "per
occurrence" limit of not less than $1,000,000 for bodily
injury, property damage and medical payments;
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(6) During the course of construction or repair of
any improvements on the Real Estate, owner's contingent or
protective liability insurance covering claims not covered by
or under the terms or provisions of the insurance required by
clause (v) above;
(7) Employer's liability insurance with respect to
the Borrower's employees;
(8) Umbrella liability insurance with limits of not
less than $10,000,000 to be in excess of the limits of the
insurance required by clauses (v), (vi) and (vii) above, with
coverage at least as broad as the primary coverages of the
insurance required by clauses (v), (vi) and (vii) above, with
any excess liability insurance to be at least as broad as the
coverages of the lead umbrella policy. All such policies shall
be endorsed to provide defense coverage obligations;
(9) Workers' compensation insurance for all
employees of the Borrower or its Subsidiaries engaged on or
with respect to the Real Estate; and
(10) Such other insurance in such form and in such
amounts as may from time to time be reasonably required by the
Agent against other insurable hazards and casualties which at
the time are commonly insured against in the case of
properties of similar character and location to the Real
Estate.
The Borrower shall pay all premiums on insurance policies. The
insurance policies with respect to all Mortgaged Property provided for in
clauses (v), (vi) and (viii) above shall name the Agent and each Bank as an
additional insured and shall contain a cross liability/severability endorsement.
The insurance policies provided for in clauses (i), (ii), (iii) and (iv) above
shall name the Agent as mortgagee and loss payee, shall be first payable in case
of loss to the Agent, and shall contain mortgage clauses and lender's loss
payable endorsements in form and substance acceptable to the Agent. The Borrower
shall deliver duplicate originals or certified copies of all such policies to
the Agent, and the Borrower shall promptly furnish to the Agent all renewal
notices and evidence that all premiums or portions thereof then due and payable
have been paid. At least thirty (30) days prior to the expiration date of the
policies, the Borrower shall deliver to the Banks evidence of continued
coverage, including a certificate of insurance, as may be satisfactory to the
Agent.
(2) All policies of insurance required by this Agreement shall
contain clauses or endorsements to the effect that (i) no act or omission of the
Borrower or any Subsidiary or anyone acting for the Borrower or any Subsidiary
(including, without limitation, any representations made in the procurement of
such insurance), which might otherwise result in a forfeiture of such insurance
or any part thereof, no occupancy or use of the Real Estate for purposes more
hazardous then permitted by the terms of the policy, and no foreclosure or any
other change in title to the Real Estate or any
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part thereof, shall affect the validity or enforceability of such insurance
insofar as the Agent is concerned, (ii) the insurer waives any right of set off,
counterclaim, subrogation, or any deduction in respect of any liability of the
Borrower or any Subsidiary and the Agent, (iii) such insurance is primary and
without right of contribution from any other insurance which may be available,
(iv) such policies shall not be modified, canceled or terminated prior to the
scheduled expiration date thereof without the insurer thereunder giving at least
thirty (30) days prior written notice to the Agent by certified or registered
mail, and (v) that the Agent or the Banks shall not be liable for any premiums
thereon or subject to any assessments thereunder, and shall in all events be in
amounts sufficient to avoid any coinsurance liability.
(3) The insurance required by this Agreement may be effected
through a blanket policy or policies covering additional locations and property
of the Borrower and other Persons not included in the Mortgage Property,
provided that such blanket policy or policies comply with all of the terms and
provisions of this Section 7.7 and contain endorsements or clauses assuring that
any claim recovery will not be less than that which a separate policy would
provide, including, without limitation, a priority claim provision with respect
to property insurance and an aggregate limits of insurance endorsement in the
case of liability insurance.
(4) All policies of insurance required by this Agreement shall
be issued by companies licensed to do business in the State where the policy is
issued and also in the states where the Real Estate is located and having a
rating in Best's Key Rating Guide of at least "A" and a financial size category
of at least "VIII."
(5) Neither the Borrower nor any Subsidiary shall carry
separate insurance, concurrent in kind or form or contributing in the event of
loss, with any insurance required under this Agreement unless such insurance
complies with the terms and provisions of this Section 7.7.
(6) In the event of any loss or damage to the Mortgaged
Property in excess of $50,000, the Borrower shall give immediate written notice
to the insurance carrier and the Agent, and the Agent shall furnish a copy of
such notice promptly to each of the Banks. The Borrower may make proof of loss
and adjust and compromise any claim under insurance policies which is of an
amount not more than $500,000.00 so long as no Event of Default has occurred and
is continuing and so long as the Borrower shall in good faith diligently pursue
such claim. The Borrower hereby irrevocably authorizes and empowers the Agent,
at the Agent's option in the Agent's sole discretion or at the request of the
Majority Banks in their sole discretion, as attorney in fact for the Borrower,
except as provided in the preceding sentence, to make proof of any loss, to
adjust and compromise any claim under insurance policies, to appear in and
prosecute any action arising from such insurance policies, to collect and
receive insurance proceeds, and to deduct therefrom the Agent's expenses
incurred in the collection of such proceeds, provided that the Agent agrees to
consult with the Borrower prior to taking such action. If the Mortgaged Property
is acquired by the Agent or any nominee through foreclosure, deed in lieu of
foreclosure or otherwise is acquired from the Borrower, all right, title and
interest of the Borrower in and to any insurance policies and unearned premiums
thereon and in and to the proceeds thereof resulting from loss or damage to the
Mortgaged Property
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prior to such sale or acquisition shall pass to the Agent or any other successor
in interest to the Borrower or purchaser or grantee of the Mortgaged Property.
(7) Subject to the terms of the following sentence, the
Borrower authorizes the Agent, at the Agent's option or at the request of the
Majority Banks in their sole discretion,(i) to apply the balance of such
proceeds to the payment of the Obligations of the Borrower whether or not then
due, or (ii) if the Agent or the Majority Bank shall require the reconstruction
or repair of the Mortgaged Property, to hold the balance of such proceeds to be
used to pay all taxes, charges, sewer use fees, water rates and assessments
which may be imposed upon the Mortgaged Property and the Obligations of the
Borrower as they become due during the course of reconstruction or repair of the
Mortgaged Property and to reimburse the Borrower, in accordance with such terms
and conditions as Agent may prescribe, for the cost of such reconstruction or
repair of the Mortgaged Property, and on completion of such reconstruction or
repair to apply any of the excess to the payment of the Obligations of the
Borrower. Notwithstanding the foregoing, the Agent shall make such net proceeds
available to the Borrower to reconstruct and repair the Mortgaged Property, in
accordance with such terms and conditions as the Agent may prescribe for the
disbursement of such proceeds to assure completion of such reconstruction or
repair provided that (x) no Default or Event of Default shall have occurred and
be continuing, (y) the Borrower shall have provided to the Agent additional cash
security in an amount equal to the amount reasonably estimated by the Agent to
be the amount in excess of such proceeds which will be required to complete such
repair or restoration, and (z) the Agent shall determine that such repair or
reconstruction can be completed prior to the Maturity Date.
(8) The Borrower will, at its expense, procure and maintain
insurance covering the Borrower and the Real Estate other than the Mortgaged
Property in such amounts and against such risks and casualties as are customary
for properties of similar character and location, due regard being given to the
type of improvements thereon, their construction, location, use and occupancy.
(9) The Borrower shall provide to the Agent for the benefit of
the Banks Title Policies for all of the Mortgaged Properties of the Borrower
which shall at all times be in an aggregate amount of not less than the total
Commitments for the Borrower at the time in effect. Each Title Policy shall also
contain, to the extent available, a tie-in endorsement aggregating the insurance
coverage provided under all of the policies relating to the Borrower with tie-in
endorsements.
(10) In connection with the execution by Agent of a
Subordination, Non-Disturbance and Attornment Agreement with a tenant, Agent may
(but shall not be required to) in the exercise of its good faith judgment agree
to allow some or all of the casualty, condemnation or restoration provisions of
the applicable Lease to control over the applicable provisions of the Loan
Documents.
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 Mortgaged Property and the other Real Estate,
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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, Note or Letter of Credit is
outstanding or the Banks have any obligation to make Loans or participate in
Letters of Credit hereunder, any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any government shall
become necessary or required in order that the Borrower may fulfill any of its
obligations hereunder, the Borrower will immediately take or cause to be taken
all steps necessary to obtain such authorization, consent, approval, permit or
license and furnish the Agent and the Banks with evidence thereof.
SECTION 7.11. USE OF PROCEEDS. The Borrower will use the proceeds of
the Loans and the Letters of Credit to the Borrower solely to provide short-term
financing (a) for the acquisition of fee interests by the Borrower in Real
Estate which is utilized principally for shopping centers, (b) for Capital
Improvement Projects, (c) subject to the restrictions set forth in Section 8.9
for development of new
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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. MANAGEMENT. There shall not occur, without the prior
written consent of the Agent, which consent shall not be unreasonably withheld,
any material change in management of the Mortgaged Properties (including,
without limitation, the hiring of third party managers), provided that so long
as the Mortgaged Properties are managed by the Borrower, a change in the
internal management personnel of the Borrower shall not be deemed a material
change in management.
SECTION 7.15. INTEREST RATE CONTRACT. The Borrower shall on or before
the date that is six (6) months from the date of this Agreement obtain and
thereafter maintain in full force and effect, an Interest Rate Contract in form
and substance satisfactory to Agent on not less than $75,000,000.00 of the
Loans. The term of the Interest Rate Contract shall not expire before the
Maturity Date. Promptly following the effectiveness of the Interest Rate
Contract, Borrower shall assign the Interest Rate Contract to Agent as
additional security for the Obligations pursuant to the Assignment of Hedge
Agreement. The Interest Rate Contract 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 is in effect.
SECTION 7.16. 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 7.17. 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
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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
7.17 shall not apply to covenants contained in any agreements or documents
evidencing or securing Non-recourse Indebtedness or covenants in agreements or
documents relating to recourse Indebtedness that relate only to specific Real
Estate that is collateral for such Indebtedness.
SECTION 7.18. 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 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, Letter of Credit or Note is outstanding or any
of the Banks has any obligation to make any Loans or to participate in any
Letters of Credit:
SECTION 8.1. RESTRICTIONS ON INDEBTEDNESS. 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:
(1) 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 7.15;
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(2) 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;
(3) 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;
(4) 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;
(5) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary course
of business;
(6) 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 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 under
environmental indemnities and guarantees with respect to customary exceptions to
exculpatory language with respect to Non-recourse Indebtedness of its
Subsidiaries or joint ventures permitted pursuant to Section 8.3(k) (provided
that in the event any claim is made against Borrower or any of its Subsidiaries
with respect to such indemnities or exceptions, the amount so claimed shall be
considered a recourse liability of such Person);
(7) Indebtedness in respect of reverse repurchase agreements
having a term of not more than 180 days with respect to Investments described in
Section 8.3(d) or (e);
(8) subject to the provisions of Section 9, other unsecured
recourse Indebtedness of the Borrower and its Subsidiaries in an aggregate
outstanding principal amount (excluding the Obligations and Indebtedness (not to
exceed $25,000,000.00) arising under the Unsecured Term Loan Agreement), 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;
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(9) 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;
(10) subject to the provisions of Section 9, recourse debt to
obtain a construction loan or loans or obligations under completion guarantees
in an aggregate amount not exceeding $70,000,000.00; provided that 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;
(11) Indebtedness (not to exceed $25,000,000.00) arising under
the Unsecured Term Loan Agreement; provided, however, that Indebtedness
permitted under this Section 8.1(k) shall not include any Indebtedness arising
out of or related to any refinancing or purported refinancing of such
Indebtedness under the Unsecured Term Loan Agreement;
(12) 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;
(13) 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;
and
(14) 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 9.2 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 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
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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:
(1) liens in favor of the Borrower or the Guarantor
on all or part of the assets of Subsidiaries of such Person
(other than Collateral) securing Indebtedness owing by
Subsidiaries of such Person to such Person;
(2) liens on properties to secure taxes,
assessments and other governmental charges or claims for
labor, material or supplies in respect of obligations not
overdue;
(3) deposits or pledges made in connection with, or
to secure payment of, workers' compensation, unemployment
insurance, old age pensions or other social security
obligations;
(4) liens on properties other than the Mortgaged
Property or any interest therein (including the rents, issues
and profits therefrom) in respect of judgments, awards or
indebtedness, the Indebtedness with respect to which is
permitted by Section 8.1(d) or Section 8.1(f);
(5) encumbrances on properties other than the
Mortgaged Property consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property
and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the
Borrower, the Guarantor or a Subsidiary of such Person is a
party, and other minor liens or encumbrances none of which
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;
(6) liens on the specific personal property (other
than Collateral) acquired by Indebtedness permitted under
Section 8.1(i);
(7) liens in favor of the Agent and the Banks under
the Loan Documents;
(8) liens and encumbrances on a Mortgaged Property
expressly permitted under the terms of the Security Deed
relating thereto; and
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(9) liens and encumbrances on Real Estate (other
than a Mortgaged Property) that is the subject of a
construction loan permitted under the terms of Section 8.1(j).
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:
(1) 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;
(2) 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;
(3) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $100,000,000; provided, however, that the aggregate amount at any time
so invested with any single bank having total assets of less than $1,000,000,000
will not exceed $200,000;
(4) 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 "A1",
if then rated by Standard & Poor's Corporation;
(5) 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;
(6) repurchase agreements having a term not greater than 90
days and fully secured by securities described in the foregoing subsection (a),
(b) or (e) with banks described in the foregoing subsection (c) or with
financial institutions or other corporations having total assets in excess of
$500,000,000;
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(7) 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;
(8) Investments in Subsidiaries of the Borrower or the
Guarantor, but any Investments in existing Subsidiaries or new Subsidiaries
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, S12] and Ramco-▇▇▇▇▇▇▇▇▇▇, Inc. shall be considered Subsidiaries of
the Borrower;
(9) Investments in Real Estate permitted under Section 7.11;
(10) Subject to the restrictions set forth in Section 8.9,
investments in real estate investment trusts which own real property which is
used principally for fee interests in Real Estate utilized principally for
shopping centers located within the United States, provided that in no event
shall the aggregate costs of all Investments pursuant to this Section 8.3(j)
exceed the amount set forth with respect thereto in the Borrower's annual budget
and business plan delivered to the Agent pursuant to Section 7.4(m);
(11) 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 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) exceed $30,000,000.00 in the aggregate. For the
purposes hereof, notes receivable from such joint ventures shall be valued at
face value (subject to reduction as a result of payments thereon); and
(12) 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 $10,000,000.00 (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.
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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:
(1) in the event of any change in Environmental
Laws governing the assessment, release or removal of Hazardous
Substances, which change would lead a prudent lender to
require additional testing to avail itself of any statutory
insurance or limited liability, take all action (including,
without limitation, the conducting of engineering tests at the
sole expense of the Borrower) to confirm that no Hazardous
Substances are or ever were Released or disposed of on the
Mortgaged Property; and
(2) if any Release or disposal of Hazardous
Substances shall occur or shall have occurred on the Mortgaged
Property (including without limitation any such Release or
disposal occurring prior to the acquisition of such Mortgaged
Property by the Borrower), cause the prompt containment and
removal of such Hazardous Substances and remediation of the
Mortgaged Property in full compliance with all applicable laws
and regulations and to the satisfaction of the Majority Banks;
provided, that the Borrower shall be deemed to be in
compliance with Environmental Laws for the purpose of this
clause (ii) so long as it or a responsible third party with
sufficient financial resources is taking reasonable action to
remediate or manage any event of noncompliance to the
satisfaction of the Majority Banks and no action shall have
been commenced by any enforcement agency. The Majority Banks
may engage
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their own Environmental Engineer to review the environmental
assessments and the Borrower's compliance with the covenants
contained herein.
At any time after an Event of Default shall have occurred hereunder,
or, whether or not an Event of Default shall have occurred, at any time that the
Agent or the Majority Banks shall have reasonable grounds to believe that a
Release or threatened Release of Hazardous Substances may have occurred,
relating to any Mortgaged Property, or that any of the Mortgaged Properties is
not in compliance with the Environmental Laws, the Agent may at its election
(and will at the request of the Majority Banks) obtain such environmental
assessments of such Mortgaged Property prepared by an Environmental Engineer as
may be necessary or advisable for the purpose of evaluating or confirming (i)
whether any Hazardous Substances are present in the soil or water at or adjacent
to such Mortgaged Property and (ii) whether the use and operation of such
Mortgaged Property comply with all Environmental Laws. Environmental assessments
may include detailed visual inspections of such Mortgaged Property including,
without limitation, any and all storage areas, storage tanks, drains, dry ▇▇▇▇▇
and leaching areas, and the taking of soil samples, as well as such other
investigations or analyses as are necessary or appropriate for a complete
determination of the compliance of such Mortgaged Property and the use and
operation thereof with all applicable Environmental Laws. All such environmental
assessments shall be at the sole cost and expense of the Borrower.
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:
(1) 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 Section Section 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 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;
(2) 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
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entitled to make any Distributions in connection with the repurchase of common
or preferred stock of Guarantor at any time an Event of Default shall have
occurred and be continuing; and
(3) 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
(other than a Mortgaged Property) having an Appraised Value in excess of
$10,000,000.00 (except as the result of a condemnation or casualty and except
for the granting of Permitted Liens) unless there shall have been delivered 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
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
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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 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 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, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or to participate in any Letters of
Credit, each of them will comply with the following:
SECTION 9.1. BORROWING BASE. The Borrower will not permit the
Outstanding Loans and Letters of Credit Outstanding as of the date of
determination to be greater than the Borrowing Base of the Borrower as
determined as of the same date.
SECTION 9.2. LIABILITIES TO ASSETS RATIO. Each of the Borrower and the
Guarantor will not (i) permit the ratio of its Consolidated Total Liabilities to
Consolidated Total Adjusted Asset Value to exceed 0.65 to 1.
SECTION 9.3. 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 1.6 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
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as annualized shall be utilized. For the purpose of calculating Consolidated
Operating Cash Flow under this Section 9.3 for any parcel of Real Estate, the
Operating Cash Flow Rental Adjustment shall be applied to any parcel of Real
Estate affected by any of the events described in the definition of Operating
Cash Flow Rental Adjustment. For the purposes of this Section 9.3, 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 9.4. CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not
permit its Consolidated Tangible Net Worth to be less than $125,000,000.00 plus
seventy-five percent (75%) of any Net Offering Proceeds received by the Borrower
or the Guarantor after the date of this Agreement.
Section 10. CLOSING CONDITIONS.
Pursuant to the Prior Credit Agreement, the Borrower executed and
delivered various documents to the Agent as a condition to the obligations of
the Agent and BankBoston to make the initial Loans under the Prior Credit
Agreement. Except to the extent expressly amended and replaced as provided in
this Section 10, all such documents shall remain in full force and effect, and
none of such documents is superseded by the provisions of this Section 10 or any
other provision of its Agreement. The obligation of the Agent and the Banks to
make further Loans to the Borrower or participate in further Letters of Credit
for the benefit of the Borrower is subject to the satisfaction of the following
conditions precedent:
SECTION 10.1. LOAN DOCUMENTS. The Borrower, the Guarantor and the
Subsidiary Guarantors shall have duly executed and delivered to the Agent,
except that each Bank shall have received a fully executed counterpart of its
Note, each of the Loan Documents to which such Person is a party, each of which
shall be in full force and effect and shall be in form and substance
satisfactory to the Majority Banks, including, without limitation, the
following:
(1) Agreement. Two (2) duly executed copies of this Agreement.
(2) Indemnity Agreement. One (1) duly executed copy of the
Indemnity Agreement.
(3) Guaranty. One (1) duly executed copy of the Guaranty, the
Subsidiary Guaranty and the Contribution Agreement (Revolver).
(4) Amendments to Security Deeds and Assignments of Rents. One
(1) duly executed copy of an Amendment to each Security Deed and Assignment of
Rents executed and delivered in connection with the Prior Credit Agreement.
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(5) Eligible Real Estate Qualification Documents. All Eligible
Real Estate Qualification Documents with respect to each parcel of Mortgaged
Property to be included in the Collateral as of the date of this Agreement, if
any.
SECTION 10.2. 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, certified by its
secretary as of a recent date to be true and complete.
SECTION 10.3. 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 of the Subsidiary Guarantors and giving the
name and bearing a specimen signature of each individual who shall be authorized
to sign, in the name and on behalf of such Person, each of the Loan Documents to
which such Person is or is to become a party. The Agent shall have also received
from the Borrower a certificate, dated as of the date of this Agreement, signed
by a duly authorized officer of the Borrower and giving the name and specimen
signature of each individual who shall be authorized to make Loan and Conversion
Requests and to give notices and to take other action on behalf of the Borrower
under the Loan Documents.
SECTION 10.4. 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, the Guarantor and the Subsidiary Guarantors
as to such matters as the Agent shall reasonably request.
SECTION 10.5. PERFORMANCE; NO DEFAULT. The Borrower and the Guarantor
shall have performed and complied with all terms and conditions herein required
to be performed or complied with by it on or prior to the Closing Date, and on
the Closing Date there shall exist no Default or Event of Default.
SECTION 10.6. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrower and the Guarantor in the Loan Documents or
otherwise made by or on behalf of the Borrower, the Guarantor or any of their
respective Subsidiaries in connection therewith or after the date thereof shall
have been true and correct in all material respects when made and shall also be
true and correct in all material respects on the Closing Date.
SECTION 10.7. 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
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certificates, opinions or documents as the Agent and the Agent's Special Counsel
may reasonably require.
SECTION 10.8. 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 and the Guarantor has provided financial statements under Section
6.4 adjusted in the best good faith estimate of the Borrower or the Guarantor,
as applicable, shall have been delivered to the Agent.
SECTION 10.9. 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 10.10. OTHER DOCUMENTS. To the extent requested by the Agent,
the Agent shall have received executed copies of all material agreements of any
nature whatsoever to which the Borrower, the Guarantor or any Subsidiary is a
party affecting or relating to the use, operation, development, construction or
management of the Mortgaged Property.
SECTION 10.11. NO CONDEMNATION/TAKING. The Agent shall have received
written confirmation from the Borrower that no condemnation proceedings are
pending or to the Borrower's knowledge threatened against any Mortgaged Property
or, if any such proceedings are pending or threatened, identifying the same and
the Real Estate affected thereby and the Agent shall have determined that none
of such proceedings is or will be material to the Mortgaged Property affected
thereby.
SECTION 10.12. [INTENTIONALLY OMITTED].
SECTION 10.13. TITLE INSURANCE UPDATES. The Agent shall have received a
"date down" endorsement to each Title Policy with respect to each Mortgaged
Property, or with respect to any Special Real Estate if such "date down"
endorsement is not available, a current mortgagees' title commitment for such
Special Real Estate in favor of Agent.
SECTION 10.14. PAYMENT OF FEES. The Borrower shall have paid to the
Agent the fees required by Section 4.2.
SECTION 10.15. INSURANCE. The Agent shall have received duplicate
originals or certified copies of all policies of insurance required by this
Agreement.
SECTION 10.16. APPRAISALS. The Agent shall have received Appraisals of
each of the Mortgaged Properties (other than those for which the existing
Appraisal is dated less than 12 months from the date hereof) in form and
substance satisfactory to the Agent, completed no earlier than three (3)
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months prior to the Closing Date, and the Agent shall have determined prior to
the Closing Date an Appraised Value for such Mortgaged Properties to assist in
determining the Borrowing Base.
SECTION 10.17. 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 or to participate in any
Letter of Credit, whether on or after the date of this Agreement, shall also be
subject to the satisfaction of the following conditions precedent:
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 or any Letter of Credit to be issued.
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 or the issuance of such Letter of Credit, as applicable, with the same
effect as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or permitted by this Agreement and the
other Loan Documents and changes occurring in the ordinary course of business
that singly or in the aggregate are not materially adverse, and except to the
extent that such representations and warranties relate expressly to an earlier
date) and no Default or Event of Default shall have occurred and be continuing.
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 or to participate in such
Letter of Credit.
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 or the Letter of Credit, as applicable, shall be satisfactory in
substance and in form to the Agent, and the
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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 and/or a Letter of Credit, as applicable, the Agent shall have received the
request for a Loan required by Section 2.5 in the form of Exhibit B hereto,
fully completed and/or the Letter of Credit Application required by Section 2.7
in the form of Exhibit D hereto fully completed.
SECTION 11.7. ENDORSEMENT TO TITLE POLICY. At such time as the Agent
shall determine in its discretion, to the extent available under applicable law,
a "date down" endorsement to each Title Policy indicating no change in the state
of title and containing no survey exceptions not approved by the Majority Banks,
which endorsement shall, expressly or by virtue of a proper "revolving credit"
clause or endorsement in the Title Policy, increase the coverage of the Title
Policy to the aggregate amount of all Loans advanced and outstanding and all
Letters of Credit issued and outstanding on or before the effective date of such
endorsement (provided that the amount of coverage under an individual Title
Policy for an individual Mortgaged Property need not equal the aggregate amount
of all Loans), or if such endorsement is not available, such other evidence and
assurances as the Agent may reasonably require (which evidence may include,
without limitation, an affidavit from the Borrower stating that there have been
no changes in title from the date of the last effective date of the Title
Policy).
SECTION 11.8. FUTURE ADVANCES TAX PAYMENT. The Borrower will pay to the
Agent any mortgage, recording, intangible, documentary stamp or other similar
taxes and charges which the Agent reasonably determines to be payable as a
result of such Loan to any state or any county or municipality thereof in which
any of the Mortgaged Properties are located and deliver to the Agent such
affidavits or other information which the Agent reasonably determines to be
necessary in connection with the payment of such tax, in order to insure that
the Security Deeds on Mortgaged Property located in such state secure the
Borrower's obligation with respect to the Loans then being requested by the
Borrower. The provisions of this Section 11.8 shall be without limitation of the
Borrower's obligations under other provisions of the Loan Documents, including,
without limitation, Section 15 hereof.
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:
(1) 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;
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(2) the Borrower shall fail to pay any interest on the Loans,
any reimbursement obligations with respect to the Letters of Credit or any other
fees or sums due hereunder or under any of the other Loan Documents, within ten
(10) days after the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other date fixed
for payment;
(3) 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;
(4) 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;
(5) 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;
(6) 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;
(7) the Borrower, the Guarantor or any of their respective
Subsidiaries, (i) shall make an assignment for the benefit of creditors, or
admit in writing its general inability to pay or generally fail to pay its debts
as they mature or become due, or shall petition or apply for the appointment of
a trustee or other custodian, liquidator or receiver of any such Person or of
any substantial part of the assets of any thereof, (ii) shall commence any case
or other proceeding relating to any such Person under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of
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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;
(8) 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;
(9) 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;
(10) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than (60) days, whether or not consecutive, any uninsured
final judgment against any of the Borrower, the Guarantor or any of their
respective Subsidiaries that, with other outstanding uninsured final judgments,
undischarged, against such Persons exceeds in the aggregate $1,000,000.00;
(11) 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;
(12) 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;
(13) any suit or proceeding shall be filed against the
Borrower, the Guarantor or any of their respective Subsidiaries or any of the
Mortgaged Properties which in the good faith business judgment of the Majority
Banks after giving consideration to the likelihood of success of such suit or
proceeding and the availability of insurance to cover any judgment with respect
thereto
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and based on the information available to them if adversely determined, would
have a materially adverse effect on the ability of the Borrower, the Guarantor
or any of their respective Subsidiaries to perform each and every one of its
obligations under and by virtue of the Loan Documents and such suit or
proceeding is not dismissed within sixty (60) days following the filing or
commencement thereof;
(14) the Borrower shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any assets of such Person,
including the Mortgaged Property;
(15) 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;
(16) without the prior written approval of the Agent, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇, their family members or estate planning trusts established for their
benefit, shall in the aggregate own, directly or indirectly, less than five
percent (5%) of the issued and outstanding partnership interests or shares of
the Borrower and the Guarantor on a Consolidated basis;
(17) 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 Agent within six (6) months of such event, such approval not to
be unreasonably withheld;
(18) any Event of Default, as defined in any of the other Loan
Documents, shall occur; or
(19) any "Event of Default" (as defined in the Unsecured Term
Loan Agreement) shall occur;
then, and in any such event, the Agent may, and upon the request of the Majority
Banks shall, by notice in writing to the Borrower (i) declare all amounts owing
with respect to this Agreement, the Notes, the Letters of Credit and the other
Loan Documents to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower and (ii) require the
Borrower to
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immediately cash collateralize all outstanding Letters of Credit or obtain
replacement letters of credit for such Letters of Credit, all in a manner
satisfactory to the Majority Banks; provided that in the event of any Event of
Default specified in Section 12.l(g), Section 12.1(h) or Section 12.1(i), all
such amounts shall become immediately due and payable automatically and the
Borrower shall be required to immediately so cash collateralize or replace all
outstanding Letters of Credit forthwith, without any requirement of notice from
any of the Banks or the Agent.
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 periods of cure or portions thereof under any one or more than one
of said subsections.
SECTION 12.3. CERTAIN CURE PERIODS.
(1) In the event that there shall occur any Default under
Section 12.1(c), then within five (5) Business Days after receipt of notice of
such Default from the Agent or the Majority Banks the Borrower may elect to cure
such Default by providing additional Collateral consisting of Potential
Collateral, and/or to reduce the outstanding Loans to it, in which event such
actions shall be completed not later than fifteen (15) days following the date
on which the Borrower is notified that the Majority Banks have approved the
Borrower's proposed actions (or thirty (30) days in the event that the Borrower
intends to provide additional Mortgaged Property). The Borrower's notice of its
election pursuant to the preceding sentence shall be delivered to the Agent
within the period of five (5) Business Days provided above. Within five (5)
Business Days after receipt of such advice, the Majority Banks shall advise the
Borrower as to whether in their good faith judgment the actions proposed by the
Borrower are sufficient to cure such Default without the creation of any other
Default hereunder. In the event that the Majority Banks determine the Borrower's
proposal is insufficient to cure such Default or is otherwise not in accordance
with the terms of this Agreement, the Borrower within an additional three (3)
Business Days after such negative notice may submit to the Agent an alternative
plan or evidence establishing that the Borrower's original election was
sufficient. In the event that within the times provided herein the Borrower
shall have failed to provide evidence satisfactory to the Majority Banks that
the Borrower's proposed actions are sufficient to cure such Default in
accordance with the terms hereof, the cure period shall terminate and such
Default immediately shall constitute an Event of Default.
(2) In the event that the Borrower shall elect in whole or in
part under Section 12.3(a) to provide additional Mortgaged Property, (i) the
Real Estate to be added to the Collateral shall be Eligible Real Estate and on
or prior to the expiration of the 30-day period each of the Eligible Real Estate
Qualification Documents shall have been completed at the Borrower's expense and
provided to the Agent for the benefit of the Banks, and (ii) the Borrower, in
addition to any other amounts payable under this Agreement, shall pay to the
Agent within fifteen (15) days following the commencement of such 30-day period
a review fee in the amount of $10,000.00, which fee shall be
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nonrefundable under any circumstances, to be split equally by the Banks without
regard to their respective Commitment Percentages.
SECTION 12.4. 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 or to
participate in Letters of Credit for the account of the Borrower. If any other
Event of Default shall have occurred, the Agent, upon the election of the
Majority Banks, may by notice to the Borrower terminate the obligation to make
Loans to the Borrower or to participate in Letters of Credit for the account of
the Borrower. No termination under this Section 12.4 shall relieve the Borrower
of its obligations to the Banks arising under this Agreement or the other Loan
Documents.
SECTION 12.5. 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, the Letters of Credit or any of the other Loan Documents
by suit in equity, action at law or other appropriate proceeding, whether for
the specific performance of any covenant or agreement contained in this
Agreement and the other Loan Documents or any instrument pursuant to which the
Obligations are evidenced, including to the full extent permitted by applicable
law the obtaining of the ex parte appointment of a receiver, and, if such amount
shall have become due, by declaration or otherwise, proceed to enforce the
payment thereof or any other legal or equitable right. No remedy herein
conferred upon the Agent or the holder of any Note is intended to be exclusive
of any other remedy and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or any other provision of law. In the event
that all or any portion of the Obligations is collected by or through an
attorney-at-law, the Borrower shall pay all costs of collection including, but
not limited to, reasonable attorneys' fees.
SECTION 12.6. DISTRIBUTION OF COLLATERAL 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 Security
Documents, or otherwise with respect to the realization upon any of the
Collateral, such monies shall be distributed for application as follows:
(1) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent to protect or preserve the collateral or in connection with the collection
of such monies by the Agent, for the exercise, protection or enforcement by the
Agent of all or any of the rights, remedies, powers and privileges of the Agent
under this Agreement or any of the other Loan Documents or in respect of the
Collateral or in support of any provision of adequate indemnity to the Agent
against any taxes or liens which by law shall have, or may have, priority over
the rights of the Agent to such monies;
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(2) Second, to all other Obligations in such order or
preference as the Majority Banks shall determine; provided, however, that (i)
distributions in respect of such Obligations shall be made pari passu among
Obligations with respect to the Agent's fee payable pursuant to Section 4.3 and
all other Obligations, (ii) in the event that any Bank shall have wrongfully
failed or refused to make an advance under Section 2.6 or Section 2.7(f) and
such failure or refusal shall be continuing, advances made by other Banks during
the pendency of such failure or refusal shall be entitled to be repaid as to
principal and accrued interest in priority to the other Obligations described in
this subsection (b), (iii) Obligations owing to the Banks with respect to each
type of Obligation such as interest, principal, fees and expenses, shall be made
among the Banks pro rata, and (iv) amounts received or realized from the
Borrower shall be applied against the Obligations of the Borrower; and provided,
further that the Majority Banks may in their discretion make proper allowance to
take into account any Obligations not then due and payable; and
(3) 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.
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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 a
fiduciary relationship. The Borrower and any other Person shall be entitled to
conclusively rely on a statement from the Agent that it has the authority to act
for and bind the Banks pursuant to this Agreement and the other Loan Documents.
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 the Collateral or any of the assets of the Borrower, the
Guarantor or their respective Subsidiaries. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
upon such information and documents
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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.
(1) A payment by the Borrower or the Guarantor to the Agent
hereunder or under any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees to distribute to each
Bank not later than one Business Day after the Agent's receipt of good funds,
determined in accordance with the Agent's customary practices, such Bank's pro
rata share of payments received by the Agent for the account of the Banks except
as otherwise expressly provided herein or in any of the other Loan Documents. In
the event the Agent fails to distribute such amounts within one Business Day as
provided above, the Agent shall pay interest on such amount at a rate per annum
equal to the Federal Funds Effective Rate from time to time in effect.
(2) 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.
(3) 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
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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), 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, Agent 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
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
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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 shall, if (a) so
requested by the Majority Banks and (b) the Banks have provided to the Agent
such additional indemnities and assurances against expenses and liabilities as
the Agent may reasonably request, proceed to enforce the provisions of the
Security Documents authorizing the sale or other disposition of all or any part
of the Collateral and exercise all or any such other legal and equitable and
other rights or remedies as it may have in respect of such Collateral. The
Majority Banks may direct the Agent in writing as to the method and the extent
of any such sale or other disposition, the Banks hereby agreeing to indemnify
and hold the Agent harmless from all liabilities incurred in respect of all
actions taken or omitted in accordance with such directions, provided that the
Agent need not comply with any such direction to the extent that the Agent
reasonably believes the Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
SECTION 14.11. REMOVAL OF AGENT. The Majority Banks may remove the
Agent from its capacity as agent in the event of the Agent's willful misconduct
or gross negligence. Such removal shall be effective upon appointment and
acceptance of a successor agent selected by the Majority Banks. Any successor
Agent must satisfy the conditions set forth in Section 14.9. Upon the acceptance
of any appointment as agent hereunder by a successor agent, such successor agent
shall thereupon succeed to and become vested with all rights, powers, privileges
and duties of the removed Agent, and the removed Agent shall be discharged from
all further duties and obligations as Agent under this Agreement and the Loan
Documents (subject to the Agent's right to be indemnified as provided in the
Loan Documents); provided that the Agent shall remain liable to the extent
provided herein or in the Loan Documents for its acts or omissions occurring
prior to such removal or resignation. The Commitment Percentage of the Bank
which is acting as Agent shall not be taken into account in the calculation of
Majority Banks for the purposes of removing Agent in the event of the Agent's
willful misconduct or gross negligence.
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, except that
the Agent and the Banks shall be entitled to indemnification for any and all
amounts paid by them in respect of taxes based on income or other taxes assessed
by any State in which Mortgaged Property or other Collateral is located, such
indemnification to be limited to taxes due solely on account of the granting of
Collateral under the Security Documents and to be net of any credit allowed to
the
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indemnified party from any other State on account of the payment or incurrence
of such tax by such indemnified party), including any recording, mortgage,
documentary or intangibles taxes in connection with the Security Deeds and other
Loan Documents, or other taxes payable on or with respect to the transactions
contemplated by this Agreement, including any such taxes payable by the Agent or
any of the Banks after the Closing Date (the Borrower hereby agreeing to
indemnify the Agent and each Bank with respect thereto), (c) all title insurance
premiums, appraisal fees, engineer's fees, reasonable internal charges of the
Agent (determined in good faith and in accordance with the Agent's internal
policies applicable generally to its customers) for commercial finance exams and
engineering and environmental reviews and the reasonable fees, expenses and
disbursements of the counsel to the Agent and any local counsel to the Agent
incurred in connection with the preparation, administration or interpretation of
the Loan Documents and other instruments mentioned herein (excluding, however,
the preparation of agreements evidencing participation granted under Section
18.4), each closing hereunder, and amendments, modifications, approvals,
consents or waivers hereto or hereunder, (d) the reasonable fees, expenses and
disbursements of the Agent incurred by the Agent in connection with the
preparation or interpretation of the Loan Documents and other instruments
mentioned herein, and the making of each advance hereunder, (e) all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent and the fees and costs of
appraisers, engineers, investment bankers or other experts retained by any Bank
or the Agent) incurred by any Bank or the Agent in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents against
the Borrower or the Guarantor or the administration thereof after the 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 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)
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any leasing fees and any brokerage, finders or similar fees asserted against any
Person indemnified under this Section 16 based upon any agreement, arrangement
or action made or taken, or alleged to have been made or taken, by the Borrower,
the Guarantor or any of their respective Subsidiaries, (b) any condition of the
Mortgaged Properties, (c) any actual or proposed use by the Borrower or the
Guarantor of the proceeds of any of the Loans, (d) any actual or alleged
infringement of any patent, copyright, trademark, service ▇▇▇▇ or similar right
of any of the Borrower, the Guarantor or any of their respective Subsidiaries
comprised in the Collateral, (e) the Borrower entering into or performing this
Agreement or any of the other Loan Documents, (f) any actual or alleged
violation of any law, ordinance, code, order, rule, regulation, approval,
consent, permit or license relating to the Mortgaged Property, or (g) with
respect to the Borrower, the Guarantor and their respective Subsidiaries and
their respective properties and assets, the violation of any Environmental Law,
the Release or threatened Release of any Hazardous Substances or any action,
suit, proceeding or investigation brought or threatened with respect to any
Hazardous Substances (including, but not limited to claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding; provided, however, that neither
the Borrower nor the Guarantor shall be obligated under this Section 16 to
indemnify any Person for liabilities arising from such Person's own gross
negligence or willful misconduct. In litigation, or the preparation therefor,
the Banks, 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
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of their respective Subsidiaries pursuant hereto 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 $10,000,000,
and (g) the assignor shall assign its entire interest in the Loans or retain an
interest in the Loans of not less than $ 10,000,000. 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 of result of any such assignment,
the Agent in its capacity as a Bank retains an interest in the Loans of less
than $15,000,000 and such amount is less than the retained interest of any other
Bank, then the Agent shall offer to resign as Agent for the Banks. Upon any such
assignment, the Agent may unilaterally amend Schedule 1 to reflect any such
assignment.
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
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and the Commitment Percentages of, and principal amount of the Loans owing to
the Banks from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Agent and the Banks may
treat each Person whose name is recorded in the Register as a Bank hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower and the Banks at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Bank agrees
to pay to the Agent a registration fee in the sum of $2,500.
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.
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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.
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 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:
If to the Agent or Fleet:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
With a copy to:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
and to:
-▇▇-
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 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.
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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.
SECTION 23. COUNTERPARTS.
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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.
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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 observance by the Borrower or the Guarantor
of any terms of this Agreement or such other instrument or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Majority Banks. Notwithstanding the foregoing,
none of the following may occur without the written consent of each Bank: a
decrease in the rate of interest on the Notes; a change in the term 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, the Guarantor or any Collateral 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 all of the Banks; or an amendment of this Section 27. 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
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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 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)
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any other assets which Guarantor may now own or hereafter acquire with the
consent of Agent pursuant to Section 7.18, (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 Agent and the Banks against the
Borrower.
[signature page follows]
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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:
----------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a
Maryland real estate investment trust,
its General Partner
By:
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
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FLEET NATIONAL BANK,
individually and as Agent
By:
----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
113
BANKERS TRUST COMPANY
By:
----------------------------------------------
Title:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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SOUTHTRUST BANK, an Alabama banking corporation,
successor to SouthTrust Bank, National
Association
By:
----------------------------------------------
Title:
SouthTrust Bank
Commercial Real Estate Department
One Georgia Center, 22nd Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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MICHIGAN NATIONAL BANK
By:
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Title:
Michigan National Bank
Commercial Real Estate Lending
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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BANK ONE MICHIGAN
By:
----------------------------------------------
Title:
Bank One Michigan
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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