<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
--- ACT OF 1934
For the quarterly period ended September 30, 1997
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
--- ACT OF 1934
For the transition period from to
---------------- ---------------
Commission file number 1-10093
RAMCO-GERSHENSON PROPERTIES TRUST
---------------------------------
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 13-6908486
- ------------- ----------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification
Number)
27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034
- ----------------------------------------------------------- -----
(Address of principal executive offices) (Zip code)
248-350-9900
------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
Number of shares of beneficial interest ($.10 par value) of the Registrant
outstanding as of September 30, 1997: 7,123,105.
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
Part I. FINANCIAL INFORMATION Page No.
--------------------- --------
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets - September 30, 1997 (Unaudited) and December 31, 1996 ............. 3
Consolidated Statements of Operations (Unaudited) - Three Months Ended and Nine Months Ended
September 30, 1997 and 1996 ................................................................... 4
Consolidated Statement of Shareholders' Equity (Unaudited) - Nine Months Ended
September 30, 1997 ............................................................................ 5
Consolidated Statements of Cash Flows (Unaudited) - Nine Months Ended
September 30, 1997 and 1996 ................................................................... 6
Notes to Consolidated Financial Statements (Unaudited) ......................................... 7
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations .................................................................... 14
Part II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K .............................................................. 23
</TABLE>
The Company did not file any reports on Form 8-K for the quarter ended
September 30, 1997.
2
<PAGE> 3
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------- ------------
(unaudited)
<S> <C> <C>
ASSETS
Real estate, net (Note 2)................ $323,394 $307,752
Accounts receivable, net................. 5,190 3,901
Other assets, net (Note 3)............... 6,848 2,389
Equity investments in
unconsolidated entities (Note 6)....... 5,031 5,271
Cash and cash equivalents................ 2,407 3,541
-------- --------
TOTAL.................................. $342,870 $322,854
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Mortgages and notes payable (Note 4)..... $168,045 $143,410
Distributions payable.................... 4,070 4,108
Accounts payable and accrued
expenses................................ 9,097 9,712
Due to related entities.................. 1,371 1,053
-------- --------
TOTAL LIABILITIES...................... 182,583 158,283
COMMITMENTS AND
CONTINGENCIES (Note 8)....................
MINORITY INTEREST.......................... 42,516 44,706
SHAREHOLDERS' EQUITY....................... 117,771 119,865
-------- --------
TOTAL.................................. $342,870 $322,854
======== ========
</TABLE>
See notes to consolidated financial statements.
3
<PAGE> 4
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
For The Three For The Nine
Months Ended Months Ended
September 30, September 30,
1997 1996 1997 1996 (*)
---- ---- ---- ----
<S> <C> <C> <C> <C>
REVENUES
Minimum rents.................................... $ 9,304 $ 8,053 $27,220 $15,307
Percentage rents................................. 341 214 1,123 860
Recoveries from tenants.......................... 4,677 4,226 13,273 7,723
Interest and other income........................ 139 244 595 2,785
------- ------- ------- -------
TOTAL REVENUES................................. 14,461 12,737 42,211 26,675
------- ------- ------- -------
EXPENSES
Real estate taxes............................... 1,551 1,330 4,560 2,489
Recoverable operating expenses.................. 2,970 2,814 8,444 5,413
Depreciation and amortization................... 1,999 1,631 5,692 3,095
Other operating................................. 179 263 722 497
General and administrative...................... 1,108 1,021 3,583 3,416
Interest expense................................ 3,476 2,337 9,588 4,077
Spin-off and other expenses..................... - 42 - 7,976
------- ------- ------- -------
TOTAL EXPENSES................................ 11,283 9,438 32,589 26,963
------- ------- ------- -------
OPERATING INCOME (LOSS)........................... 3,178 3,299 9,622 (288)
LOSS FROM UNCONSOLIDATED ENTITIES (Note 6) 85 149 240 240
------- ------- ------- -------
INCOME (LOSS) BEFORE MINORITY INTEREST............ 3,093 3,150 9,382 ( 528)
MINORITY INTEREST................................. 806 869 2,500 1,350
------- ------- ------- -------
NET INCOME (LOSS)................................ $ 2,287 $ 2,281 $ 6,882 $(1,878)
======= ======= ======= =======
NET INCOME (LOSS) PER SHARE....................... $ 0.32 $ 0.32 $ 0.97 $(0.26)
======= ======= ======= =======
WEIGHTED AVERAGE SHARES OUTSTANDING............... 7,123 7,123 7,123 7,123
======= ======= ======= =======
</TABLE>
See notes to consolidated financial statements.
*The 1996 historical results for the nine months ended September 30, 1996,
include the operations of RPS Realty Trust prior to the Spin Off Transaction
and the Ramco Acquisition which were effective on May 1, 1996.
4
<PAGE> 5
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Shares of
Beneficial Interest
------------------- Additional Cumulative Total
Paid-In Earnings/ Shareholders'
Number Amount Capital Distributions Equity
------ ------ ------- ------------- ------
<S> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1996........ 7,123 $ 712 $149,872 ($30,719) $119,865
Cash distributions declared......... (8,976) (8,976)
Net income for the nine months ended
September 30, 1997................. 6,882 6,882
------ ----- -------- -------- --------
BALANCE AT SEPTEMBER 30, 1997 7,123 $ 712 $149,872 ($32,813) $117,771
====== ===== ======== ======== ========
</TABLE>
See notes to consolidated financial statements.
5
<PAGE> 6
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(Unaudited)
<TABLE>
<CAPTION>
For The Nine Months
Ended September 30
------------------
1997 1996*
---- -----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
NET INCOME (LOSS)............................................................................ $ 6,882 $ (1,878)
Adjustments to reconcile net income (loss) to net cash flows
provided by operating activities:
Provisions for possible loan losses.......................................................... 129
Write-off of deferred acquisition expenses.................................................. 2,154
Loss on disposal of REMIC's.................................................................. 91
Depreciation and amortization................................................................ 5,692 3,095
Loss from unconsolidated entities............................................................ 240 240
Minority Interest............................................................................ 2,500 1,350
Changes in assets and liabilities that provided (used) cash:
Interest and accounts receivable.......................................................... (1,289) 4,912
Other assets.............................................................................. (4,746) (1,866)
Accounts payable and accrued expenses..................................................... (615) 3,435
-------- --------
Total adjustments........................................................................... 1,782 13,540
-------- --------
CASH FLOWS PROVIDED BY OPERATING ACTIVITIES................................................... 8,664 11,662
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES
Satisfaction of Mortgage Loans Receivable.................................................... (3,417)
Amortization of REMICs....................................................................... 1,100
Proceeds from REMIC's........................................................................ 56,908
Real estate acquired......................................................................... (21,048) (7,721)
-------- --------
CASH FLOWS (USED IN) PROVIDED BY INVESTING ACTIVITIES......................................... (21,048) 46,870
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Cash distributions to shareholders.......................................................... (8,976) (6,553)
Cash distribution to operating partnership unit holders...................................... (3,311) ( 744)
Purchase of operating partnership units...................................................... (1,416)
Principal repayments on debt................................................................. (1,398) (70,260)
Net advances from affiliated entities........................................................ 318 351
Borrowings on notes payable - net............................................................ 26,033 12,406
-------- --------
CASH FLOWS PROVIDED BY (USED IN) FINANCING ACTIVITIES......................................... 11,250 (64,800)
-------- --------
NET DECREASE IN CASH AND EQUIVALENTS.......................................................... (1,134) (6,268)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD................................................ 3,541 11,467
-------- --------
CASH AND CASH EQUIVALENTS, END OF PERIOD...................................................... $ 2,407 $ 5,199
======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION - CASH
PAID FOR INTEREST DURING THE PERIOD.......................................................... $ 9,070 $ 3,411
======== ========
SUPPLEMENTAL DISCLOSURES OF NONCASH INVESTING AND FINANCING ACTIVITIES
Accrued distributions payable............................................................... $ 4,070 $ 4,108
======== ========
</TABLE>
See notes to consolidated financial statements.
*The 1996 historical results include the operations of RPS Realty Trust prior to
the Spin-off Transaction and the Ramco Acquisition which were effective on
May 1, 1996.
6
<PAGE> 7
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Thousands, except per Unit amounts)
(Unaudited)
1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION - The accompanying interim financial statements and
related notes of the Company are unaudited; however, they have been prepared in
accordance with generally accepted accounting principles for interim financial
reporting, the instructions to Form 10-Q and the rules and regulations of the
Securities and Exchange Commission. Accordingly, certain information and
footnote disclosures normally included in financial statements prepared under
generally accepted accounting principles have been condensed or omitted
pursuant to such rules. The unaudited interim financial statements should be
read in conjunction with the audited financial statements and related notes
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996. In the opinion of management, all adjustments (consisting
only of normal recurring adjustments) necessary for a fair presentation of the
financial statements for the interim periods have been made. The results for
interim periods are not necessarily indicative of the results for a full year.
IMPACT OF RECENT ACCOUNTING PRONOUNCEMENTS - In February 1997, the FASB issued
SFAS No. 128, "Earnings per Share." This Statement establishes standards for
computing and presenting earnings per share ("EPS") and applies to all entities
with publicly held common shares or potential common shares. This Statement
replaces the presentation of primary EPS and fully diluted EPS with a
presentation of basic EPS and diluted EPS, respectively. Basic EPS excludes
dilution and is computed by dividing earnings available to common shareholders
by the weighted-average number of common shares outstanding for the period.
Similar to fully diluted EPS, diluted EPS reflects the potential dilution of
securities that could share in the earnings. This Statement is not expected to
have a material effect on the Company's reported EPS amounts. The Statement is
effective for the Company's financial statements for the year ending December
31, 1997.
In February 1997, the FASB issued SFAS No. 129, "Disclosure of Information about
Capital Structure" which establishes standards for disclosing information about
an entity's capital structure. The Statement is effective for the Company's
financial statements for the year ending December 31, 1997. The adoption of
the SFAS No. 129 is not expected to have a material effect on the Company's
financial statements.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive Income"
which establishes standards for reporting and displaying comprehensive income
and its components in a full set of financial statements. The Statement
requires that all items that are required to be recognized under accounting
standards as components of comprehensive income be reported in a financial
statement that is displayed with the same prominence as other financial
statements. The Statement is effective for the Company's financial statements
for the year ending December 31, 1998. The adoption of the Statement is not
expected to have a material effect on the Company's financial statements.
In June 1997, the FASB issued SFAS No. 131, "Disclosure about Segments of an
Enterprise and Related Information" which establishes standards for reporting
information about operating segments in financial statements. It also
establishes standards for disclosure about products and services, geographical
areas, and major customers. The Statement is effective for the Company's
financial statements for the year ending December 31, 1998. Management has not
determined the impact of the Statement on the Company's financial statements.
MINORITY INTEREST - Minority Interest represents the Ramco Group's interest as
a limited partner in the Operating Partnership. Such interest is held in the
form of Operating Partnership Units ("Units") which are exchangeable on an
equivalent basis with the beneficial shares of the Company. During the nine
month period ended September 30, 1997, the Operating Partnership redeemed 88,530
Operating Partnership Units at $16.00 per Unit. This redemption reduced the
minority interest from approximately 27% to 26.5%.
7
<PAGE> 8
ACQUISITIONS - On May 28, 1997, the Company acquired the Madison Center,
("Madison") a 186,000 square foot shopping center in Madison Heights, Michigan.
The center was acquired for approximately $7,400. On July 30, 1997, the
company acquired Pelican Plaza, ("Pelican") a 106,000 square foot community
shopping center/office development in Sarasota, Florida. The development was
acquired for approximately $7,200. Both acquisitions have been accounted for
using the purchase method of accounting. The purchase prices were allocated to
the assets acquired based upon their estimated fair market value.
RECLASSIFICATIONS - Certain reclassifications have been made to the 1996
financial statements in order to conform with the 1997 presentation.
2. REAL ESTATE
The Company's real estate at September 30, 1997, and December 31, 1996,
consists of the following:
<TABLE>
<CAPTION>
September 30, 1997 December 31, 1996
<S> <C> <C>
Land $ 43,575 $ 42,051
Buildings and Improvements 291,914 271,174
Construction-in-progress 413 1,629
-------- --------
Sub Total 335,902 314,854
Less: Accumulated Depreciation (12,508) (7,102)
-------- --------
Total Investment in Real Estate - net $323,394 $307,752
======== ========
</TABLE>
3. OTHER ASSETS
Other assets at September 30, 1997, and December 31, 1996, are as follows:
<TABLE>
<CAPTION>
September 30, 1997 December 31, 1996
<S> <C> <C>
Leasing costs $3,086 $1,868
Deferred financing costs 1,084 471
Proposed development and acquisition costs 2,288 205
Deferred tenant revenue 717 -
Other 346 77
------ ------
Sub Total 7,521 2,621
Less: Accumulated Amortization (673) (232)
------ ------
Total Other Assets - net $6,848 $2,389
====== ======
</TABLE>
4. MORTGAGES AND NOTES PAYABLE
Mortgages and notes payable at September 30, 1997, consist of the following:
<TABLE>
<S> <C>
Fixed rate mortgages with interest rates ranging
from 7.8% to 8.75% due at various dates through 2006 $98,181
Floating rate mortgage at 75% of the rate of
long-term Capital A rated utility bonds due January 1, 2010, plus
supplemental interest to equal LIBOR plus 200 basis points (at
September 30, 1997 the rate was 7.08%) 7,000
Credit Facility, with borrowings at either LIBOR plus 175 basis points,
or the bank's base rate (7.61% average rate at September 30, 1997),
due May 1999, maximum borrowings of $75,000
62,864
--------
$168,045
========
</TABLE>
8
<PAGE> 9
The mortgage notes are secured by mortgages on properties that have an
approximate net book value of $145,024 as of September 30, 1997. The Credit
Facility is secured by mortgages on various properties that have an approximate
net book value of $115,501 as of September 30, 1997.
During May and June 1997, the Company modified its $50,000 credit facility to
provide for an increase in the borrowings available under the credit facility
to $75,000. As of September 30, 1997, $75,000 of the credit facility was
available for borrowing, of which $62,864 was outstanding. At September 30,
1997, outstanding letters of credit issued under the Credit Facility, not
reflected in the accompanying consolidated balance sheet, total approximately
$4,336.
The Credit Facility contains financial covenants relating to debt to market
capitalization, minimum operating coverage ratios, and a minimum equity value.
As of September 30, 1997, the Company was in compliance with the covenant terms.
In July 1997, the Company executed an interest rate protection agreement to
limit the Company's exposure to increases in interest rates on its floating
rate debt. The notional amount of the agreement was $75,000. The agreement caps
the Company's interest rate on $75,000 of floating rate debt to 8.50%, through
May 1, 1999, with a floor of 7.25%.
The following table presents scheduled principal payments on mortgages and
notes payable as of September 30, 1997:
<TABLE>
<CAPTION>
<S> <C>
Year ended December 31,
1997 (October 1 - December 31) $ 476
1998 3,799
1999 64,890
2000 2,130
2001 2,243
Thereafter 94,507
--------
Total $168,045
========
</TABLE>
5. LEASES
The Company is engaged in the operation of shopping center and retail
properties and leases space to tenants and certain anchors pursuant to lease
agreements. The lease agreements provide for initial terms ranging from 3 to 30
years and, in some cases, for annual rentals which are subject to upward
adjustment based on operating expense levels and sales volume.
Approximate future minimum rentals under noncancelable operating leases in
effect at September 30, 1997, assuming no new or renegotiated leases nor option
extensions on lease agreements, are as follows:
<TABLE>
<CAPTION>
<S> <C>
Year ended December 31,
1997 (October 1 - December 31) $ 8,986
1998 34,126
1999 31,199
2000 27,587
2001 24,555
Thereafter 187,528
--------
Total $313,981
========
</TABLE>
9
<PAGE> 10
6. UNCONSOLIDATED ENTITIES
Condensed financial statement information of Ramco, Kentwood and Southfield
Plaza Expansion as of September 30, 1997 and for the nine months ended
September 30, 1997 is presented as follows:
<TABLE>
<CAPTION>
Southfield
Ramco Kentwood Plaza Total
----- -------- ----- -----
<S> <C> <C> <C> <C>
ASSETS
Net Real Estate Assets......................... $ 1,883 $ 571 $ 2,454
Other Assets................................... $ 4,514 528 88 5,130
------- ------- ------ -------
Total Assets................................. $ 4,514 $ 2,411 $ 659 $ 7,584
======= ======= ====== =======
LIABILITIES
Mortgage Notes Payable......................... $10,975 $1,603 $12,578
Other Liabilities.............................. $ 1,163 163 29 1,355
------- ------- ------ -------
Total Liabilities............................ 1,163 11,138 1,632 13,933
------- ------- ------ -------
OWNERS' EQUITY (DEFICIT)......................... 3,351 (8,727) (973) (6,349)
------- ------- ------ -------
Total Liabilities and Owners' Equity (Deficit). $ 4,514 $ 2,411 $ 659 $7,584
======= ======= ====== ======
Company's Equity Investments in
Unconsolidated Entities........................ $ 3,578 $ 916 $ 537 $5,031
======= ======= ====== ======
REVENUES
Management Fees................................ $ 778 $ 778
Leasing and Development Fees................... 269 269
Property Revenues.............................. $ 1,354 $ 190 1,544
Other Revenues................................. 410 410
Leasing/Development Cost Reimbursements........ 952 - - 952
------- ------- ------ -------
Total Revenues............................... 2,409 1,354 190 3,953
------- ------- ------ -------
EXPENSES
Employee Expenses.............................. 3,033 3,033
Office and Other Expenses...................... 873 873
Property Expenses.............................. 1,112 153 1,265
Depreciation and Amortization.................. 183 - - 183
------- ------- ------ -------
Total Expenses............................... 4,089 1,112 153 5,354
------- ------- ------ -------
Excess Revenues Over Expenses.................... (1,680) 242 37 (1,401)
Cost Reimbursement From Operating Partnership.... 1,680 - - 1,680
------- ------- ------ -------
Income........................................... $ 0 $ 242 $ 37 $ 279
======= ======= ====== =======
Company's Share of Income........................ $ 0 $ 121 $ 19 $ 140
======= ======= ====== =======
</TABLE>
The Company's share of the unconsolidated entities' income of $140 for the nine
months ended September 30, 1997, was reduced by $380 which represents
depreciation and amortization adjustments arising from the Company's net basis
adjustments in the unconsolidated entities' assets. These adjustments result
in a net loss of $240 from unconsolidated entities.
10
<PAGE> 11
7. PRO FORMA FINANCIAL INFORMATION
The following pro forma consolidated statements of operations have been
presented as if (i) the Ramco Acquisition, the Property Acquisitions, and the
spin-off of Atlantic had occurred on January 1, 1996, and (ii) the Company had
qualified as a REIT, distributed all of its taxable income and, therefore had
incurred no tax expense during the periods. In management's opinion, all
adjustments necessary to reflect the Ramco Acquisition, the Property
Acquisitions, and the spin-off of Atlantic have been made. The pro forma
consolidated statements of operations are not necessarily indicative of what
the actual results of operations of the Company would have been had such
transactions actually occurred as of January 1, 1996, nor do they purport to
represent the results of the Company for future periods.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------------------- --------------------------------
1997 1996 1997 1996
--------------- -------------- -------------- ----------------
Actual Pro forma Actual Pro forma
<S> <C> <C> <C> <C>
REVENUES
Minimum rent........................ $ 9,304 $ 8,703 $27,220 $25,815
Percentage rents.................... 341 231 1,123 758
Recoveries from tenants............. 4,677 4,307 13,273 12,858
Interest and other income........... 139 188 595 416
------- ------- ------- -------
TOTAL REVENUES.................... 14,461 13,429 42,211 39,847
EXPENSES
Real estate taxes................... 1,551 1,397 4,560 4,265
Recoverable operating expenses...... 2,970 2,861 8,444 8,446
Depreciation and amortization....... 1,999 1,711 5,692 5,067
Other operating..................... 179 255 722 749
General and administrative.......... 1,108 1,019 3,583 3,217
Interest expense.................... 3,476 2,919 9,588 8,594
Spin-off and other expenses......... 42 7,976
------- ------- ------- -------
TOTAL EXPENSES.................... 11,283 10,204 32,589 38,314
------- ------- ------- -------
OPERATING INCOME ..................... 3,178 3,225 9,622 1,533
LOSS FROM UNCONSOLIDATED ENTITIES..... 85 149 240 339
------- ------- ------- -------
INCOME BEFORE MINORITY INTEREST....... 3,093 3,076 9,382 1,194
MINORITY INTEREST..................... 806 847 2,500 2,401
------- ------- ------- -------
NET INCOME (LOSS)..................... $ 2,287 $ 2,229 $ 6,882 $(1,207)
======= ======= ======= =======
EARNINGS (LOSS) PER SHARE............. $ 0.32 $ 0.31 $ 0.97 $ (0.17)
======= ======= ======= =======
WEIGHTED AVERAGE NUMBER OF
COMMON SHARES OUTSTANDING............ 7,123 7,123 7,123 7,123
======= ======= ======= =======
</TABLE>
11
<PAGE> 12
8. COMMITMENTS AND CONTINGENCIES
Substantially all of the properties have been subjected to Phase I
environmental audits. Such audits have not revealed nor is management aware of
any environmental liability that management believes would have a material
adverse impact on the Company's financial position or results of operations.
Management is unaware of any instances in which it would incur significant
environmental costs if any or all properties were sold, disposed of or
abandoned.
During the third quarter of 1994, the Company held more than 25% of the value
of its gross assets in overnight Treasury Bill reverse repurchase transactions,
which the United States Internal Revenue Service (the "IRS") may view as
non-qualifying assets for the purpose of satisfying an asset qualification test
applicable to REIT's, based on a Revenue Ruling published in 1977 (the "Asset
Issue"). The Company has requested that the IRS enter into a closing agreement
with the Company so that the Asset Issue will not impact the Company's status
as a REIT. The IRS has deferred any action relating to the Asset Issue pending
further examination of the Company's 1991-1994 tax returns. Based on
developments in the law which occurred since 1977, the Company's legal counsel
has rendered an opinion that the Company's investment in Treasury Bill reverse
repurchase obligations would not adversely affect its REIT status. However,
such opinion is not binding upon the IRS. In connection with the spin-off of
Atlantic, Atlantic has assumed all tax liability arising out of the Asset Issue
and the IRS audit of the Company's 1991-1994 tax returns. In connection with
the assumption of such potential liabilities, Atlantic and the Company have
entered into a tax agreement which provides that the Company (under the
direction of its Continuing Trustees), and not Atlantic, will control, conduct
and effect the settlement of any tax claims against the Company relating to the
Asset Issue. Accordingly, Atlantic will not have any control as to the timing
of the resolution or disposition of any such claims. No assurance can be given
that the resolution or disposition of any such claim will be on terms or
conditions favorable to the Company. The Company and Atlantic also received an
opinion from legal counsel that, to the extent there is a deficiency in the
Company's taxable income arising out of the IRS examination and provided the
Company makes a deficiency dividend (i.e., declares and pays a distribution
which is permitted to relate back to the year for which each deficiency was
determined to satisfy the requirement that the REIT distribute 95 percent of
its taxable income), the classification of the Company as a REIT for the
taxable years under examination would not be affected. If notwithstanding the
above-described opinions of legal counsel, the IRS successfully challenged the
status of the Company as a REIT, its status could be adversely affected.
9. STOCK OPTION PLAN
On June 10, 1997, the Company's shareholders approved the establishment of
the Ramco Gershenson Properties Trust 1997 Non-Employee Trustee Stock Option
Plan (the "Plan"). Under the Plan, 100,000 shares are reserved for issuance
pursuant to options to be granted to the Trustees of the Company who are not
officers or employees of the Company.
The purpose of the Plan is to provide Trustees of the Company with an
increased incentive to make contributions to the long term performance and
growth of the Company, to join the interests of the Trustees with the interests
of the Company's shareholders, and to facilitate attracting qualified
independent trustees. Options granted under the Plan allow for the purchase of
shares of the Company at the fair market value of the shares at the date of
grant. Options granted under the Plan vest and become exercisable in equal
installments on each of the first two anniversaries of the date of grant and
expire ten years after the date of grant. As of September 30, 1997 there were
14,000 options granted pursuant to the Plan.
10. SUBSEQUENT EVENTS
The Company has entered into an agreement with certain clients advised by
Morgan Stanley Asset Management, Inc. ("MSAM"), and Kimco Realty Corporation
("Kimco") pursuant to which such entities have agreed to invest up to an
aggregate of $35,000 in Ramco-Gershenson Properties, L.P. (the "Operating
Partnership"). The MSAM clients and Kimco will initially purchase preferred
Operating Partnership Units which, after shareholder approval, will be
converted into the Company's preferred shares and, ultimately, into its common
shares. The initial investments of $11,667 were made in October 1997.
The equity investment will initially involve the issuance of up to 1.4 million
Operating Partnership preferred units at a price of $25.00 per preferred unit.
The aggregate investment of $35,000 may be drawn by the Operating Partnership
over a one-year period and may be used to help fund strategic acquisitions,
retenanting or redevelopment activities, and to reduce outstanding debt. The
anticipated dividend rate on the preferred Operating Partnership units and
preferred Company shares is expected to equal that presently being paid to the
Company's shareholders.
12
<PAGE> 13
After the closing of this transaction, the MSAM clients will be required to
purchase 19.4% of the first $50,000 in a follow-on public offering of the
Company's shares of common stock. At that time, all Operating Partnership
preferred units or Company preferred shares will be exchanged into common
shares of the Company, at a conversion price of $17.50 per share, which
conversion price is subject to adjustment in certain circumstances.
On October 30, 1997, the Company acquired a portfolio of 15 community shopping
centers (the "Southeast Portfolio"), comprised of approximately 2.5 million
square feet, located in the Southeast United States. The Southeast Portfolio
properties are located in Alabama, Florida, Georgia, North Carolina, South
Carolina, and Tennessee. The properties were acquired for a purchase price of
approximately $124,500.
Financing for the Southeast Portfolio acquisition was obtained by increasing the
Company's existing credit facility from $75,000 to $160,000, the assumption of
an existing $5,900 mortgage on one of the acquired properties, and by the
addition of a new $45,000 unsecured term loan. The interest rate payable under
the revolving credit facility has been reduced from 175 basis points over LIBOR,
to between 137.5 and 162.5 basis points over LIBOR, depending on certain debt
ratios set forth in the loan agreement. The interest rate payable on the new
unsecured loan is between 250 and 275 basis points over LIBOR, which rate is
also dependent on certain debt ratios. The revolving credit facility and the
unsecured term loan mature on May 1, 1999, and the maturity date of each
may, under certain circumstances, be extended to October 2000 at the election
of the Operating Partnership. The credit facility continues to have, and the
term loan has various financial covenants relating to debt to market
capitalization, minimum operating coverage ratios and minimum equity value.
The Company currently has a commitment from Morgan Stanley Mortgage Capital
Inc. to replace $50,000 of the credit facility with permanent debt at an
interest rate of 6.83% for 10 years. The Company provided a $1,500 letter of
credit in October 1997, in conjunction with the rate lock commitment.
Letters of credit, amounting to $4,000 at September 30, 1997, were cancelled on
October 30, 1997, in conjunction with the Southeast Portfolio acquisition
closing.
13
<PAGE> 14
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
(Dollars in Thousands, except per Share and per Unit amounts)
OVERVIEW
The following discussion and analysis of the financial condition and results of
operations should be read in conjunction with the Consolidated Financial
Statements of the Company, including the respective notes thereto which are
included in this Form 10-Q.
CAPITAL RESOURCES AND LIQUIDITY
The Company's mortgage debt consists of debt on certain shopping centers as
well as on two properties in which the Operating Partnership owns an interest
and are accounted for on the equity method of accounting. At September 30,
1997 the Company's portion of mortgages attributable to properties 100% owned
is $168,045, with a weighted average interest rate of 7.97% and its pro rata
share of non-recourse mortgage debt on unconsolidated properties (accounted for
on the equity method) was $6,290 with a weighted average interest rate of
9.14%.
The mortgage debt consists of six loans secured by various properties, two
loans secured by the unconsolidated properties, and the Credit Facility which
is secured by various properties. Five of the mortgage loans amounting to
$98,181 have maturities ranging from 1998 to 2006, monthly payments which
include regularly scheduled amortization, and have fixed interest rates ranging
between 7.8% to 8.75%. One of the mortgage loans, evidenced by tax free bonds,
amounting to $7,000 secured by OakBrook Square Shopping Center is
non-amortizing, matures in 2010, and carries a floating interest rate equal to
75% of the new issue long-term Capital A rated utility bonds, plus interest to
the lender sufficient to cause the lender's overall yield on its investment in
the bonds to be equal to 200 basis points over their applicable LIBOR rate
(7.08% at September 30, 1997).
During May and June, 1997, the Company modified its $50,000 credit facility to
provide for an increase in the borrowings available under the credit facility
to $75,000. As of September 30, 1997, $75,000 of the credit facility was
available for borrowing, of which $62,864 was outstanding. At September 30,
1997, outstanding letters of credit issued under the Credit Facility, not
reflected in the accompanying consolidated balance sheets, totalled
approximately $4,336. The Credit Facility bears interest at 175 basis points
over LIBOR, or the bank's base rate (weighted average 7.61% interest rate at
September 30,1997), and matures on May 6, 1999. As described below, these
rates have been reduced in connection with an increase in the size of this
credit facility. The Credit Facility is secured by mortgages on various
properties and contains financial covenants relating to debt-to-market
capitalization, minimum operating coverage ratios and a minimum equity value.
The Company used proceeds from borrowings under the Credit Facility to pay for
the acquisition of Madison Center, Pelican Plaza and for other capital
expenditures. During May 1997, the Company acquired the Madison Center, in
Madison Heights, Michigan, an approximately 186,000 square foot community
shopping center, for approximately $7,400. During July 1997, the Company
acquired Pelican Plaza in Sarasota, Florida, an approximately 106,000 square
foot shopping center/office development, for approximately $7,200.
On October 30, 1997, the Company acquired a portfolio of 15 community shopping
centers (the "Southeast Portfolio"), comprised of approximately 2.5 million
square feet, located in the Southeast United States. The Southeast Portfolio
properties are located in Alabama, Florida, Georgia, North Carolina, South
Carolina, and Tennessee. The properties were acquired for a purchase price of
approximately $124,500.
Financing for the Southeast Portfolio acquisition was obtained by increasing
the Company's existing credit facility from $75,000 to $160,000, the assumption
of an existing $5,900 mortgage on one of the acquired properties and by the
addition of a new $45,000 unsecured term loan. The interest rate payable under
the revolving credit facility has been reduced from 175 basis points over
LIBOR, to between 137.5 and 162.5 basis points over LIBOR, depending on certain
debt ratios set forth in the loan agreement. The interest rate payable on the
new unsecured term loan is between 250 and 275 basis points over LIBOR, which
rate is also dependent on certain debt ratios. The Credit Facility and the
unsecured term loan mature on May 1, 1999, and the maturity date of each may,
under certain circumstances, be extended to October 2000 at the election of the
Operating Partnership. The credit facility continues to have, and the term
loan has, various financial covenants relating to debt to market
capitalization, minimum operating coverage ratios and minimum equity value.
The Company currently has a commitment from Morgan Stanley Mortgage Capital
Inc. to replace $50,000 of the credit facility with permanent debt at an
interest rate of 6.83% for 10 years. The Company provided a $1,500 letter of
credit in October 1997, in conjunction with the rate lock commitment.
14
<PAGE> 15
Letters of credit, amounting to $4,000 at September 30, 1997, were cancelled on
October 30, 1997 in conjunction with the Southeast Portfolio acquisition
closing. The Company plans to repay the $45,000 unsecured term loan with the
proceeds from an equity offering slated for 1998.
The Company's current capital structure includes property specific mortgages,
the Credit Facility, shares of beneficial interest and a minority interest in
the Operating Partnership. At March 31, 1997, the minority interest represented
the approximately 27% ownership in the Operating Partnership held by the Ramco
Group. On April 1, 1997, the Operating Partnership redeemed 88,530 Units at
$16.00 per Unit. The redemption reduced the minority interest from
approximately 27% to approximately 26.5%. Currently, the minority interest in
the Operating Partnership represents the 26.5% ownership in the Operating
Partnership ("Units") held by the Ramco Group which may, under certain
conditions, be exchanged for approximately 2,568,143 shares of beneficial
interest.
The Units owned by the Ramco Principals are subject to lock-up agreements which
provide that the Units cannot be transferred, except under certain conditions,
for a period of 30 months after the closing of the Ramco Acquisition (November
1998). In addition, the Units issued to the Ramco Group are exchangeable for
shares of the Company on a one-for-one basis. The Company, as sole general
partner of the Operating Partnership, has the option to exchange such Units for
cash based on the current trading price of the Shares. Assuming the exchange of
all limited partnership interests in the Operating Partnership, there would be
outstanding approximately 9,691,248 shares of beneficial interest with a market
value of approximately $192,013 at September 30, 1997 (based on the closing
price of $19.813 per share on September 30, 1997).
The Company has entered into an agreement with certain clients advised by
Morgan Stanley Asset Management, Inc. ("MSAM"), and Kimco Realty Corporation
("Kimco") pursuant to which such entities have agreed to invest up to an
aggregate of $35,000 in Ramco-Gershenson Properties, L.P. (the "Operating
Partnership"). The MSAM clients and Kimco will initially purchase preferred
Operating Partnership Units which, after shareholder approval, will be
converted into the Company's preferred shares and, ultimately, into its common
shares. The initial investments of $11,667 were made in October 1997.
The equity investment will initially involve the issuance of up to 1.4 million
Operating Partnership preferred units at a price of $25.00 per preferred unit.
The aggregate investment of $35,000 may be drawn by the Operating Partnership
over a one-year period and may be used to help fund strategic acquisitions,
retenanting or redevelopment activities, or to reduce outstanding debt. The
anticipated dividend rate on the preferred Operating Partnership units and
preferred Company shares is expected to equal that presently being paid to the
Company's shareholders.
After the closing of this transaction, the MSAM clients will be required to
purchase 19.4% of the first $50,000 in a follow-on public offering of the
Company's shares of common stock. At that time, all Operating Partnership
preferred units or Company preferred shares will be exchanged into common
shares of the Company, at a conversion price of $17.50 per share, which
conversion price is subject to adjustment in certain circumstances.
The principal uses of the Company's liquidity and capital resources are for
acquisitions, development, including expansion and renovation programs, and
debt repayment. To maintain its qualification as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the "Code"),
the Company is required to distribute to its shareholders at least 95% of its
"Real Estate Investment Trust Taxable Income" as defined in the Code.
Variable rate debt accounted for $69,864 of outstanding debt with a weighted
average interest rate of 7.54% at September 30, 1997. Variable rate debt
accounted for approximately 41.6% of the Company's total debt and 19.4% of its
total market capitalization (debt plus market value equity).
In July 1997, the Company executed an interest rate protection agreement to
limit the Company's exposure to increases in interest rates on floating rate
debt. The notional amount of the agreement was $75,000. The agreement caps
the Company's interest rate on $75,000 of floating rate debt to 8.50%, through
May 1, 1999, with a floor of 7.25%.
Based on the debt and the market value of equity described above, the Company's
debt to total market capitalization ratio was 46.7% at September 30, 1997.
15
<PAGE> 16
During July 1997 Montgomery Wards, ("Wards") a tenant at three of the Company's
properties, Tel-Twelve Mall, Clinton Valley Mall and Shoppes of Lakeland, filed
for protection under Chapter 11 of the Bankruptcy Code. Wards, subsequently in
October 1997, issued a list of anticipated store closings which included the
stores at the Company's Clinton Valley Mall. This location consists of a
101,200 square foot department store and a 7,480 square foot TBA store (Tires,
Batteries and Automotive). Although the Company was notified that the location
would be closed, it has not been notified that Wards intends to reject the
lease and is aware that Wards is marketing the space. On an annual basis,
Wards pays approximately $1,000 in base rent, operating and real estate tax
expense reimbursements for the Clinton Valley Mall.
The Company anticipates that the combination of the availability under the
Credit Facility, the unsecured term loan, potential new borrowings relative to
the acquired properties and development properties, construction loans, and the
MSAM/Kimco equity offerings, will provide adequate liquidity for the
foreseeable future to fund future acquisitions, developments, expansions,
repositionings, and to continue its currently planned capital programs and to
make distributions to its shareholders in accordance with the Code's
requirements applicable to REIT's. Although the Company believes that the
combination of factors discussed above will provide sufficient liquidity, no
such assurance can be given that the Company will have adequate liquidity to
meets its needs.
In 1997, the Company began a program to repurchase shares of beneficial
interest in the open market to be used as compensation for the Board of
Trustees. The Company expects to purchase approximately 5,600 shares annually.
COMPARISON OF NINE MONTHS ENDED SEPTEMBER 30, 1997 TO NINE MONTHS ENDED
SEPTEMBER 30, 1996.
Total revenues for the nine months ended September 30, 1997 increased by 58.2%,
or $15,536, to $42,211 as compared to $26,675 for the nine months ended
September 30, 1996. The increase was a result of an $11,913 increase in
minimum rents, a $263 increase in percentage rents, a $5,550 increase in
recoveries from tenants and a $2,190 decrease in interest and other income.
Minimum rents increased 77.8%, or $11,913, to $27,220 for the nine months ended
September 30, 1997 as compared to $15,307 for the nine months ended September
30, 1996. Recoveries from tenants increased 71.9%, or $5,550, to $13,273 as
compared to $7,723 for the nine months ended September 30, 1996. These
increases are primarily attributable to the acquisition of the Ramco properties
effective May 1, 1996, and the acquisitions of the Taylor, Lakeland, Holcomb,
and Madison, and Pelican shopping centers effective August 14, 1996, November
22, 1996, December 13, 1996, and May 28, 1997,and July 30, 1997 respectively.
The operating results for the nine months ended September 30, 1997, included
the impact of the acquisition of the Ramco properties and the other shopping
centers for the full nine months in 1997, except for Madison and Pelican, while
the results for the nine months ended September 30, 1996 include the results of
the Ramco properties for only five months and do not include any impact for any
of the subsequent acquisitions except for Taylor. In addition, two properties
which were part of the Company's portfolio during the nine months ended
September 30, 1996 were spun-off to Atlantic Realty Trust effective May 1,
1996.
Interest and other income decreased 78.6%, or $2,190, to $595 as compared to
$2,785 for the nine months ended September 30, 1996 due primarily to the
spin-off of the Company's mortgage loan portfolio to Atlantic Realty Trust
effective May 1, 1996.
Total expenses for the nine months ended September 30, 1997 increased by 20.9%,
or $5,626, to $32,589 as compared to $26,963 for the nine months ended
September 30, 1996. The increase was due to a $5,102 increase in total
recoverable expenses, including real estate taxes and recoverable operating
expenses, a $2,597 increase in depreciation and amortization, a $225 increase
in other operating expenses, a $167 increase in general and administrative
expenses, a $5,511 increase in interest expense offset by a $7,976 decrease in
spin-off and other expenses.
Total recoverable expenses, including real estate taxes and recoverable
operating expenses, increased by 64.6%, or $5,102, to $13,004 as compared to
$7,902 for the nine months ended September 30, 1996, depreciation and
amortization increased by 83.9%, or $2,597, to $5,692 as compared to $3,095 for
the nine months ended September 30, 1996, and other operating expenses for the
nine months ended September 30, 1997 increased by $45.0% or $225 to $722 as
compared to $497 for the nine months ended September 30, 1996. General and
administrative expenses increased 4.9%, or $167, to $3,583 as compared to
$3,416 for the nine months ended September 30, 1996. The increase in
recoverable expenses, depreciation and amortization, and other operating
expenses are due to the acquisition of the Ramco properties and the subsequent
property acquisitions, offset in part by the decrease related to the
May 1, 1996 spin-off of two former RPS properties.
Interest expense for the nine months ended September 30, 1997 increased 135.2%
or $5,511 to $9,588 compared to $4,077 for the nine months ended September 30,
1996, due to the effect of the debt assumed in connection with the Ramco
acquisition effective May 1, 1996, and additional borrowings for subsequent
acquisitions, development cost reimbursements, and other capital
expenditures.
16
<PAGE> 17
For the nine months ended September 30, 1996, the Company incurred $7,976 of
spin-off and other expenses for which there were no corresponding expenses for
the nine months ended September 30, 1997.
The loss from unconsolidated entities of $240 for the nine months ended
September 30, 1997 is the same as for the nine months ended September 30, 1996.
COMPARISON OF THREE MONTHS ENDED SEPTEMBER 30, 1997 TO THREE MONTHS ENDED
SEPTEMBER 30, 1996.
Total revenues for the three months ended September 30, 1997 increased by
13.5%, or $1,724, to $14,461 as compared to $12,737 for the three months ended
September 30, 1996. The increase was a result of a $1,251 increase in minimum
rents, a $127 increase in percentage rents, a $451 increase in recoveries from
tenants and a $105 decrease in interest and other income.
Minimum rents increased 15.5%, or $1,251, to $9,304 for the three months ended
September 30, 1997 as compared to $8,053 for the three months ended September
30, 1996. Percentage rents increased 59.3%, or $127, to $341 for the three
months ended September 30, 1997, as compared to $214 for the three months ended
September 30, 1996. Recoveries from tenants increased 10.7%, or $451, to $4,677
as compared to $4,226 for the three months ended September 30, 1996. These
increases are primarily attributable to the acquisition of the Taylor,
Lakeland, Holcomb, Madison, and Pelican shopping centers effective August 14,
1996, November 22, 1996, December 13, 1996, May 28, 1997, and July 30, 1997
respectively. The operating results for the three months ended September 30,
1997 included the impact of the acquisitions for the full three months in 1997
except for Pelican, while the results for the three months ended September 30,
1996 do not include any impact for any of the subsequent acquisitions except
Taylor.
Interest and other income decreased 43.0%, or $105, to $139 as compared to $244
for the three months ended September 30, 1996 due primarily to the repayment in
full of the Atlantic loan in 1996.
Total expenses for the three months ended September 30, 1997 increased by
19.5%, or $1,845, to $11,283 as compared to $9,438 for the three months ended
September 30, 1996. The increase was due to a $377 increase in total
recoverable expenses, including real estate taxes and recoverable operating
expenses, a $368 increase in depreciation and amortization, a $84 decrease in
other operating expenses, a $87 increase in general and administrative
expenses, a $1,139 increase in interest expense and a $42 decrease in spin-off
and other expenses.
Total recoverable expenses, including real estate taxes and recoverable
operating expenses, increased by 9.1%, or $377, to $4,521 as compared to $4,144
for the three months ended September 30, 1996, depreciation and amortization
increased by 22.6%, or $368, to $1,999 as compared to $1,631 for the three
months ended September 30, 1996, and other operating expenses for the three
months ended September 30, 1997 decreased by 31.9%, or $84, to $179 as compared
to $263 for the three months ended September 30, 1996. General and
administrative expenses increased 8.5 %, or $87, to $1,108 as compared to
$1,021 for the three months ended September 30, 1996. The increase in
recoverable expenses of $377 and depreciation and amortization of $368, are
primarily due to the property acquisitions.
Interest expense for the three months ended September 30, 1997, increased 48.7%,
or $1,139, to $3,476 compared to $2,337 for the three months ended September
30, 1996 due to the effect of the additional borrowings for acquisitions
subsequent to the Ramco acquisition, development cost reimbursements, and other
capital expenditures.
For the three months ended September 30, 1996, the Company incurred $42 of
spin-off and other expenses for which there were no corresponding expenses for
the three months ended September 30, 1997.
The loss from unconsolidated entities for the three months ended September 30,
1997, decreased 42.9%, or $64, to $85 as compared to $149 for the three months
ended September 30, 1996.
17
<PAGE> 18
COMPARISON OF ACTUAL NINE MONTHS ENDED SEPTEMBER 30, 1997 TO PRO FORMA NINE
MONTHS ENDED SEPTEMBER 30, 1996.
Total revenues for the nine months ended September 30, 1997 increased by 5.9%,
or $2,364, to $42,211 as compared to $39,847 for the nine months ended
September 30, 1996. The increase was a result of a $1,405 increase in minimum
rents, a $365 increase in percentage rents, a $415 increase in recoveries from
tenants and an $179 increase in interest and other income, for the nine months
ended September 30, 1997 as compared to the nine months ended September 30,
1996.
Minimum rents increased 5.4%, or $1,405, to $27,220 for the nine months ended
September 30, 1997 as compared to $25,815 for the nine months ended September
30, 1996. This increase was primarily due to the opening of the Jackson West
Shopping Center in June 1996, and the impact of new anchor tenants at the
Jackson Crossing Shopping Center, Tel-Twelve Mall, Troy Towne Center and
Eastridge Commons as well as the Madison and Pelican acquisitions. Percentage
rents increased 48.2%, or $365, to $1,123 as compared to $758 for the nine
months ended September 30, 1996. Recoveries from tenants increased 3.2%, or
$415, to $13,273 as compared to $12,858 for the nine months ended September 30,
1996. The increase was due to corresponding increases in recoverable operating
and real estate tax expense. The Company's overall recovery ratio for 1997 and
1996 remained relatively consistent at 102.1% and 101.2%, respectively.
Interest and other income increased 43%, or $179, to $595, as compared to $416
for the nine months ended September 30, 1996. Approximately $183 of the increase
was attributable to non-recurring tenant lease obligations.
Total expenses for the nine months ended September 30, 1997, decreased 14.9%,
or $5,725, to $32,589 as compared to $38,314 for the nine months ended
September 30, 1996. The decrease was due to a $7,976 decrease in spin-off and
other expenses, offset by a $293 increase in total recoverable expenses,
including real estate taxes and recoverable operating expenses, a $625 increase
in depreciation and amortization, a $27 decrease in other operating expenses, a
$366 increase in general and administrative expenses, and a $994 increase in
interest expense.
For the nine months ended September 30, 1996 the Company incurred $7,976 of
spin-off and other expenses related to the spin-off of Atlantic for which there
were no corresponding costs in 1997.
Recoverable expenses, including real estate taxes and recoverable operating
expenses, increased 2.3%, or $293, to $13,004 as compared to $12,711 for the
nine months ended September 30, 1996 due primarily to expenses related to the
Jackson West Shopping Center which opened in June 1996 and the expenses
related to the Madison and Pelican Shopping Centers. The increase was offset by
an increase in recoveries from tenants.
Depreciation and amortization increased 12.3%, or $625 to $5,692 as compared to
$5,067 for the nine months ended September 30, 1996, due to the Jackson West
Shopping Center opening in June 1996, the Madison and Pelican acquisitions, and
the impact of the various other revenue producing and capital improvement
expenditures.
General and administrative expenses increased 11.4%, or $366 to $3,583
as compared to $3,217 for the nine months ended September 30, 1996. The
Company's level of general and administrative expenses is impacted by several
factors, including the cost reimbursement relationship between the Operating
Partnership and Ramco-Gershenson, Inc. (the "Manager"), the capitalization of
costs relative to leasing and development at the centers owned by the Operating
Partnership and the cost of the Company's administrative activities. The
Manager also provides third party management, leasing, brokerage and
development services to entities not controlled by the Company. These third
party leasing and development fees earned under management contracts are not
necessarily earned consistently over time since these fees are based on
measurements related to specific transactions and are dependent on the
availability of space to lease or develop at the centers. The operating
expenses of the Manager include employee expenses, such as salaries and
benefits, and office and other expenses. Some of these costs are fixed in
nature. The net cost reimbursement to be charged as general and administrative
expense to the Operating Partnership is dependent on the ability of the Manager
to continue to charge leasing, brokerage and development fees to third party
entities, while continuing to generate third party management business. It is
also dependent on the Manager's ability to control expenses, the majority of
which are employee-related expenses. Some of the expenses of the Manager,
those which are directly attributable to revenues to be earned in the future,
are charged to the Operating Partnership and capitalized in order to be
amortized over the related revenue. The Company's administrative expenses
include officers' salaries and benefits, trustee fees, directors' and officers'
liability insurance, transfer agent and shareholders' relations expenses, and
professional fees including legal, audit and tax.
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<PAGE> 19
Following is a breakdown of the general and administrative expenses shown in
the financial statements:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30,
1997 1996 1997 1996
---- ---- ---- ----
Actual Pro forma Actual Pro forma
<S> <C> <C> <C> <C>
MANAGER
Management Fees................................. $ 264 $ 303 $ 778 $ 819
Leasing, Brokerage and Development Fees......... 142 50 269 124
Other Revenues.................................. 98 40 410 190
Leasing/Development Cost Reimbursements......... 357 291 952 595
------ ------ ------ ------
Total Revenues.............................. 861 684 2,409 1,728
------ ------ ------ ------
Employee Expenses............................... 1,038 820 3,033 2,475
Office and Other Expenses....................... 252 196 873 659
Depreciation and Amortization................... 60 8 183 25
------ ------ ------ ------
Total Expenses.............................. 1,350 1,024 4,089 3,159
------ ------ ------ ------
Operating Partnership
Cost Reimbursement Expenses................... 489 340 1,680 1,431
------ ------ ------ ------
OPERATING PARTNERSHIP ADMINISTRATIVE EXPENSES 524 597 1,604 1,546
------ ------ ------ ------
SHOPPING CENTER LEVEL GENERAL AND
ADMINISTRATIVE EXPENSES....................... 95 82 299 240
------ ------ ------ ------
TOTAL GENERAL AND ADMINISTRATIVE EXPENSES....... $1,108 $1,019 $3,583 $3,217
====== ====== ====== ======
</TABLE>
The increase of $366 in general and administrative expenses for the nine months
ended September 30, 1997 as compared to the pro forma nine months ended
September 30, 1996, was primarily due to a $249 increase in the cost
reimbursement to Ramco-Gershenson, Inc. The $249 increase in the cost
reimbursement to the Manager was due to increased employee expenses due to
additional headcount and the impact of annual salary and employee benefit
increases.
Interest expense increased 11.6%, or $994, to $9,588 as compared to $8,594 for
the nine months ended September 30, 1996, due to the impact of borrowings
relative to the Madison and Pelican acquisitions, development cost
reimbursements and other capital expenditures.
COMPARISON OF ACTUAL THREE MONTHS ENDED SEPTEMBER 30, 1997 TO PRO FORMA THREE
MONTHS ENDED SEPTEMBER 30, 1996.
Total revenues for the three months ended September 30, 1997 increased by 7.7%
or $1,032 to $14,461 as compared to $13,429 for the three months ended
September 30, 1996. The increase was a result of a $601 increase in minimum
rents, a $110 increase in percentage rents, a $370 increase in recoveries from
tenants, and a $49 decrease in interest and other income for the three months
ended September 30, 1997 as compared to the three months ended September 30,
1996.
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<PAGE> 20
Minimum rents increased 6.9% or $601 to $9,304 for the three months ended
September 30, 1997 as compared to $8,703 for the three months ended September
30, 1996. This increase was primarily due to the impact of new anchor tenants
at Eastridge Commons, Troy Towne Center, Tel-Twelve Mall, and Jackson Crossing.
Percentage rent increased 47.6% or $110 to $341 as compared to $231 for the
three months ended September 30, 1996. Recoveries from tenants increased 8.6%
or $370, to $4,677 from $4,307 for the three months ended September 30, 1996.
The decrease was due to corresponding increases in recoverable operating and
real estate tax expense. Interest and other income decreased 26.1% or $49, to
$139, from $188 for the three months ended September 30, 1996.
Total expenses for the three months ended September 30, 1997 increased 10.6% or
$1,079 to $11,283 from $10,204 for the three months ended September 30, 1996.
The increase was due to a $42 decrease in spin-off and other expenses and a $76
decrease in other operating expenses, offset by a $254 increase in depreciation
and amortization, $263 increase in recoverable operating expenses including
real estate taxes, an $89 increase in general and administrative expenses, and
a $557 increase in interest expense.
For the three months ended September 30, 1996 the Company incurred $42 of
spin-off and other expenses related to the spin-off of Atlantic for which there
were no corresponding costs in 1997.
Recoverable expenses, including recoverable operating and real estate tax
expense, decreased 6.2% or $263 to $4,521 from $4,258 for the three months
ended September 30, 1996. The increase was offset by a increase in recoveries
from tenants.
Depreciation and amortization increased 16.8% or $288 to $1,999 compared to
$1,711 for the three months ended September 30, 1996. The increase was
primarily due to the Madison and Pelican acquisitions, and the impact of the
various other revenue generating and capital improvement expenditures.
General and administrative expenses increased 8.7%, or $89, to $1,108 from
$1,019 for the three months ended September 30, 1996. The increase was
primarily due to a $149 increase in the cost reimbursement to Ramco-Gershenson,
Inc. The $149 increase in the cost reimbursement was due to increased employee
expenses due to additional headcount and the impact of annual salary and
employee benefit increases.
Interest expense increased 19.1% or $557, to $3,476 as compared to $2,919 for
the three months ended September 30, 1996, due to the impact of borrowings
relative to the Jackson West Shopping Center, the Madison and Pelican
acquisitions, and other capital expenditures.
The loss from unconsolidated entities decreased 42.9%, or $64, to $85 from $149
for the three months ended September 30, 1996.
20
<PAGE> 21
FUNDS FROM OPERATIONS
Management generally considers funds from operations ("FFO") to be one measure
of financial performance of an equity REIT. It has been presented to assist
investors in analyzing the performance of the Company and to provide a relevant
basis for comparison to other REITs.
The Company has adopted the most recent National Association of Real Estate
Investment Trusts ("NAREIT") definition of FFO, which was effective on January
1, 1996. Under the NAREIT definition, FFO represents income (loss) before
minority interest (computed in accordance with generally accepted accounting
principles), excluding gains (losses) from debt restructuring and sales of
property, plus real estate related depreciation and amortization (excluding
amortization of financing costs), and after adjustments for unconsolidated
partnerships and joint ventures.
Therefore, FFO does not represent cash generated from operating activities in
accordance with generally accepted accounting principles and should not be
considered an alternative to net income as an indication of the Company's
performance or to cash flows from operating activities as a measure of
liquidity or of the ability to pay distributions. Furthermore, while net
income and cash generated from operating, investing and financing activities
determined in accordance with generally accepted accounting principles consider
capital expenditures which have been and will be incurred in the future, the
calculation of FFO does not.
The following FFO are presented as if the Ramco Acquisition, the Property
Acquisitions and the spin-off of Atlantic Realty Trust had occurred on January
1, 1996.
The following table illustrates the calculation of FFO for the three months and
nine months ended September 30, 1997, and 1996:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30
------------------------------------------------------------------------
1997 1996 1997 1996
---- ---- ---- ----
Actual Pro forma Actual Pro forma
<S> <C> <C> <C> <C>
Net Income........................................ $2,287 $2,229 $ 6,882 $(1,207)
Add: Depreciation and amortization............. 1,999 1,705 5,692 5,061
Add: Minority interest in partnership.......... 806 847 2,500 2,401
Add: Non-recurring spin-off and other expenses. - 42 - 7,976
------ ------ ------- -------
Funds from operations............................. $5,092 $4,823 $15,074 $14,231
====== ====== ======= =======
Weighted average equivalent shares outstanding
(1).............................................. 9,691 9,780 9,721 9,657
====== ====== ======= =======
Supplemental disclosure:
Straight-line rental income.................... $ 304 $ 372 $ 1,337 $ 1,049
====== ====== ======= =======
Amortization of management contracts and covenant
Not to compete................................. $ 124 $ 124 $ 248 $ 248
====== ====== ======= =======
</TABLE>
(1) Represents the weighted average total shares outstanding, assuming the
redemption of all Operating Partnership Units for common shares.
CAPITAL EXPENDITURES
During the nine months ended September 30, 1997, the Company spent
approximately $1,579 on revenue generating capital expenditures including
tenant allowances, leasing commissions paid to third-party brokers, legal costs
relative to lease documents, and capitalized leasing and construction costs.
These types of costs generate a return through rents from tenants over the term
of their leases. Revenue enhancing capital expenditures, including expansions,
renovations or repositionings were approximately $5,328. Revenue neutral
capital expenditures, such as roof and parking lot repairs which are
anticipated to be recovered from tenants, amounted to approximately $792.
21
<PAGE> 22
IMPACT OF RECENT ACCOUNTING PRONOUNCEMENTS
In February 1997, the FASB issued SFAS No. 128, "Earnings per Share." This
statement establishes standards for computing and presenting earnings per share
("EPS") and applies to all entities with publicly held common shares or
potential common shares. This Statement replaces the presentation of primary
EPS and fully diluted EPS with a presentation of basic EPS and diluted EPS,
respectively. Basic EPS excludes dilution and is computed by dividing earnings
available to common shareholders by the weighted-average number of common
shares outstanding for the period. Similar to fully diluted EPS, diluted EPS
reflects the potential dilution of securities that could share in the earnings.
This Statement is not expected to have a material effect on the Company's
reported EPS amounts. The Statement is effective for the Company's financial
statements for the year ending December 31, 1997.
In February 1997, the FASB issued SFAS No. 129, "Disclosure of Information
about Capital Structure" which establishes standards for disclosing information
about an entity's capital structure. The Statement is effective for the
Company's financial statements for the year ending December 31, 1997. The
adoption of SFAS No. 129 is not expected to have a material effect on the
Company's financial statements.
In June 1997, the FASB issued SFAS No. 140, "Reporting Comprehensive Income"
which establishes standards for reporting and displaying comprehensive income
and its components in a full set of financial statements. The Statement
requires that all items that are required to be recognized under accounting
standards as components of comprehensive income be reported in a financial
statement that is displayed with the same prominence as other financial
statements. The Statement is effective for the Company's financial statements
for the year ending December 31, 1998 and is not expected to have a material
effect on the Company's financial statements.
In June 1997, the FASB issued SFAS No. 131, "Disclosure about Segments of an
Enterprise and Related Information" which establishes standards for reporting
information about operating segments in financial statements. It also
establishes standards for disclosure about products and services, geographical
areas, and major customers. The Statement is effective for the Company's
financial statements for the year ending December 31, 1998. Management has not
determined the impact of the statement on the Company's financial statements.
This Form 10-Q contains forward-looking statements with respect to the
operation of certain of the Company's properties. Management of the Company
believes the expectations reflected in the forward-looking statements made in
this document are based on reasonable assumptions. Certain factors could occur
that might cause actual results to vary. These include general economic
conditions, the strength of key industries in the cities in which the Company's
properties are located, the performance of the Company's tenants at the
Company's properties and elsewhere, and other factors discussed in this report
and the Company's reports filed with the Securities and Exchange Commission.
22
<PAGE> 23
PART II - OTHER INFORMATION
For Quarter Ended September 30, 1997
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
See Exhibit Index immediately preceding the exhibits.
(b) Report on Form 8-K
No reports on Form 8-K were filed during the quarter for which this
report was filed.
23
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed in its behalf by the
undersigned thereunto duly authorized.
RAMCO-GERSHENSON PROPERTIES TRUST
Date: November 14, 1997 By: /s/ Dennis E. Gershenson
-----------------------------------
Dennis E. Gershenson
President and Trustee
(Chief Executive Officer)
Date: November 14, 1997 By: /s/ Richard J. Smith
-----------------------------------
Richard J. Smith
Chief Financial Officer
(Principal Accounting Officer)
24
<PAGE> 25
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
10.1 Preferred Units and Stock Purchase Agreement dated as of
September 30, 1997 by and among the Trust, Special Situations
RG REIT, Inc., and the Advancing Party named therein.
10.2 Agreement Regarding Exercise of Registration Rights
dated as of September 30, 1997 among the Trust, the Ramco
Principals (as defined therein), the Other Holders (as defined
therein), Special Situations RG REIT, Inc., and the Advancing
Party.
10.3 Registration Rights Agreement dated as of September 30, 1997
by and among the Trust, Special Situations RG REIT, Inc.,
and the Advancing Party named therein.
10.4 Second Amended and Restated Master Revolving Credit Agreement
dated as of October 30, 1997 among Ramco-Gershenson Properties,
L.P. (the "Operating Partnership"), as Borrower, the Trust, as
Guarantor, and BankBoston, N.A., and the other Banks which may
become parties to the loan agreement, and BankBoston, N.A., as
Agent.
10.5 Second Amended and Restated Note dated October 30, 1997 in the
principal amount of $160,000,000 made by the Operating
Partnership in favor of BankBoston, N.A.
10.6 Second Amended and Restated Unconditional Guaranty of Payment
and Performance dated as of October 30, 1997 by the Trust in
favor of BankBoston, N.A.
10.7 Unsecured Term Loan Agreement dated as of October 30, 1997
among the Operating Partnership, as Borrower, the Trust, as
Guarantor, BankBoston, N.A., the other Banks which may become
parties to the agreement, and BankBoston N.A., as Agent.
10.8 Note dated as of October 30, 1997 in the principal amount of
$45,000,000 made by the Operating Partnership in favor of
BankBoston, N.A.
10.9 Unconditional Guaranty of Payment and Performance dated
as of October 30, 1997 by the Trust in favor of BankBoston,
N.A.
10.10 Form of Contract of Sale dated July 7, 1997 relating to the
acquisition of the Southeast Portfolio (Form #1).
10.11 Form of Contract of Sale dated July 7, 1997 relating to
the acquisition of the Southeast Portfolio (Form #2).
10.12 Form of Contract of Sale dated July 7, 1997 relating to
the acquisition of the Southeast Portfolio (Form #3).
10.13 Agreement dated July 7, 1997 by and between Seller (as defined
therein) and the Operating Partnership, which agreement amends
certain Contracts of Sale relating to the acquisition of the
Southeast Portfolio.
27 Financial Data Schedule
<PAGE> 1
EXHIBIT 10.1
================================================================================
PREFERRED UNITS AND
STOCK PURCHASE AGREEMENT
by and among
RAMCO-GERSHENSON PROPERTIES, L.P.
RAMCO-GERSHENSON PROPERTIES TRUST
THE ADVANCING PARTY NAMED HEREIN
and
SPECIAL SITUATIONS RG REIT, INC.
dated as of
September 30, 1997
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE 1
Definitions
<S> <C> <C>
Section 1.1 "Action" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 "Advancing Party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 "Advancing Party Participation Schedule" . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 "Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.5 "Amended By-Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.6 "Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.7 "Amended Company Declaration" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.8 "Amended Partnership Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.9 "Articles Supplementary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.10 "Atlantic Tax Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.11 "Beneficially Own" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.12 "Benefit Arrangements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.13 "Board" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.14 "Blue Sky Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.15 "Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.16 "Buyer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.17 "Buyer/Colorado Sharing Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.18 "Buyer/Kimco Share Purchase Agreement" . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.19 "Buyer Portion" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.20 "Buyer Reorganization" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.21 "Buyer Reorganization Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.22 "CERCLA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.23 "Claim" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.24 "Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.25 "Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.26 "Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.27 "Colorado Investor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.28 "Colorado Percentage" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.29 "Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.30 "Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.31 "Company Declaration of Trust" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.32 "Company Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.33 "Company Environmental Reports" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.34 "Company Leases" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.35 "Company Notice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.36 "Company Plans" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.37 "Company Preferred Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.38 "Company Properties" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Section 1.39 "Company Proxy Statement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.40 "Company Registration Statement" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.41 "Company Reports" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.42 "Company Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.43 "Company Units" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.44 "Consolidation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.45 "Controlled Group Liability" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.46 "Convertible Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.47 "Debt Instruments" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.48 "Declaration of Trust" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.49 "Development Properties" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.50 "Development Budget and Schedule" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.51 "DRA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.52 "Effective Date of the Reorganization" . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.53 "Election" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.54 "Employee Benefit Plans" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.55 "Employees" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.56 "Environmental Claim" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.57 "Environmental Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.58 "Environmental Permits" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.59 "ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.60 "Escrow Letter" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.61 "ERISA Affiliates" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.62 "Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.63 "Exchange Rights Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.64 "Executive Summaries of the Company Environmental Reports" . . . . . . . . . . . . . 6
Section 1.65 "Exercise Restriction" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.66 "Final Determination" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.67 "GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.68 "Government Authority" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.69 "HSR Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.70 "Indemnified Party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.71 "Initial Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.72 "Initial Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.73 "Insurance Policies" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.74 "IRS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.75 "Kimco" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.76 "Kimco Percentage" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.79 "Knowledge" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.80 "Joinder Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.81 "Laws and Regulations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.82 "Liabilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.83 "Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.84 "Loss and Expenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Section 1.85 "Maryland Trust" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.86 "Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.87 "Material Company Leases" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.88 "Materials of Environmental Concern" . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.89 "MSAM" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.90 "NYSE Rule Approval" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.91 "Operating Leases" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.92 "Operating Partnership" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.93 "Operating Partnership Units" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.94 "Options" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.95 "Other Filings" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.96 "Partnership Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.97 "Pension Plans" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.98 "Per Share Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.99 "Per Unit Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.100 "Permitted Issuances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.101 "Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.102 "Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.103 "Preemptive Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.104 "Preferred Units" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.105 "Projects" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.106 "Proxy Statement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.107 "Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.108 "Purchase Price (Stock)" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.109 "Purchase Price (Units)" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.110 "Purchased Shares" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.111 "Purchased Units" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.112 "Qualified Services" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.113 "Qualified Underwritten Offering" . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.114 "Rate Event" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.115 "Registration Rights Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.116 "Regulatory Filings" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.117 "REIT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.118 "Release" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.119 "Remaining Equity Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.120 "Rent Roll" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.121 "Reorganization" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.122 "Reorganization Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.123 "Reorganization Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.124 "Reorganization Escrow" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.125 "Rights Exercise Notice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.126 "SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.127 "Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.128 "Securities Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
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Section 1.129 "Shareholders Meeting" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.130 "Shell Site" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.131 "Stock Purchase" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.132 "Subsequent Funding Minimum" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.133 "Subsequent Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.134 "Subsequent Purchases" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.135 "Subsidiaries" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.136 "Tax" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.137 "Tax Case" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.138 "Tax Return" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.139 "Total Equity Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.140 "Units Purchase" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.141 "Welfare Plans" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2
Purchase and Sale of Shares; Closing
Section 2.1 "Purchase and Sale." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.2 "Consideration." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.3 "Initial Closing." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.4 "Subsequent Purchases and Sales." . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.5 "Additional Agreements and Closing Deliveries." . . . . . . . . . . . . . . . . . . . 15
Section 2.6 "Time and Place of Closing." . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.7 "Right to Assign." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.8 "Mandatory Equity Commitment Drawdown." . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 3
Representations and Warranties of the Company
Section 3.1 "Organization and Qualification, Subsidiaries." . . . . . . . . . . . . . . . . . . . 18
Section 3.2 "Authority Relative to Agreements; Board Approval." . . . . . . . . . . . . . . . . . 19
Section 3.3 "Capital Stock and Units." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.4 "No Conflicts; No Defaults, Required Filings and Consents." . . . . . . . . . . . . . 20
Section 3.5 "Atlantic Tax Agreement." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.6 "Atlantic Realty Trust." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.7 "SEC and Other Documents, Financial Statements; Undisclosed Liabilities." . . . . . . 22
Section 3.8 "Litigation, Compliance With Law." . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.9 "Absence of Certain Changes or Events." . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.10 "Tax Matters; REIT and Partnership Status." . . . . . . . . . . . . . . . . . . . . . 23
Section 3.11 "Compliance with Agreements." . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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Section 3.12 "Financial Records; Company Declaration of Trust and By-laws;
Corporate Records." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.13 "Properties." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.14 "Environmental Matters." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.15 "Employees and Employee Benefit Plans." . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.16 "Labor Matters." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 3.17 "Affiliate Transactions." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 3.18 "Insurance." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 3.19 "Proxy Statement." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 3.20 "Maryland Takeover Law." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.21 "Vote Required." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.22 "Brokers or Finders." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.23 "Knowledge Defined." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.24 "Disclosure of Facts." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.25 "Construction of Material Adverse Effect." . . . . . . . . . . . . . . . . . . . . . 36
Section 3.26 "JCP Realty." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.27 "Formation of Maryland Trust." . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.28 "Business of Maryland Trust." . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 4
Representations and Warranties of Buyer and the Advancing Party
Section 4.1 "Organization." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.2 "Due Authorization." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.3 "Conflicting Agreements and Other Matters." . . . . . . . . . . . . . . . . . . . . . 38
Section 4.4 "Acquisition for Investment, Sophistication, Source of Funds." . . . . . . . . . . . 38
Section 4.5 "Proxy Statement." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.6 "Brokers or Finders." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.7 "Buyer Reorganization." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 5
Covenants Relating to Closings
Section 5.1 "Taking of Necessary Action." . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.2 "Buyer/Colorado Sharing Agreement." . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.3 "Registration Rights Agreement." . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.4 "Reorganization Documents and Joinder Agreement." . . . . . . . . . . . . . . . . . . 41
Section 5.5 "Buyer Reorganization Agreement." . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.6 "Company Preferred Stock." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.7 "Atlantic Tax Agreement." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.8 "Public Announcements; Confidentiality." . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.9 "Conduct of the Business." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
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Section 5.10 "No Solicitation of Transactions." . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.11 "Information and Access." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.12 "Notification of Certain Matters." . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 6
Certain Additional Covenants
Section 6.1 "Resale." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.2 "Use of Funds." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.3 "REIT Status." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.4 "Amended Company Declaration." . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.5 "UBTI Covenant." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.6 "Guarantee." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.7 "Conversion, Redemption and Adjustments." . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.8 "Preemptive Rights." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.9 "Qualified Underwritten Offering." . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.10 "Amended Partnership Agreement (Consolidated and Conformed Text)" . . . . . . . . . . 48
Section 6.11 "Voting Amendments." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE 7
Conditions to Closings
Section 7.1 "Conditions of Purchase at Initial Closing." . . . . . . . . . . . . . . . . . . . . 48
Section 7.2 "Conditions of Purchase at All Closings." . . . . . . . . . . . . . . . . . . . . . . 50
Section 7.3 "Conditions of Sale." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 8
Survival; Indemnification
Section 8.1 "Survival." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 8.2 "Indemnification by Buyer, the Advancing Party, Kimco or the Company." . . . . . . . 53
Section 8.3 "Third-Party Claims." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 9
Termination
Section 9.1 "Termination." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.2 "Procedure and Effect of Termination." . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.3 "Expenses." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
</TABLE>
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ARTICLE 10
Miscellaneous
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Section 10.1 "Certain Matters as to the Advancing Party." . . . . . . . . . . . . . . . . . . . . 57
Section 10.2 "Counterparts." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.3 "Governing Law." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.4 "Entire Agreement." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.5 "Notices." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.6 "Successors and Assigns." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 10.7 "Headings." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 10.8 "Amendments and Waivers." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 10.9 "Interpretation; Absence of Presumption." . . . . . . . . . . . . . . . . . . . . . . 60
Section 10.10 "Severability." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 10.11 "Further Assurances." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 10.12 "Specific Performance." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.13 "Several Liability." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.14 "Schedules." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.15 "Attorney-in-Fact." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
</TABLE>
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SCHEDULES
<TABLE>
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Schedule 1.101 Permitted Liens
Schedule 3.1(e)(i) Subsidiaries
Schedule 3.1(e)(ii) Company Common Stock Options, Warrants, Etc.
Schedule 3.3(a) Capital Stock
Schedule 3.3(b) Operating Partnership Unit Options, Warrants, Etc.
Schedule 3.4(d) Consents
Schedule 3.7(a) Company Registration Statements and Company Reports
Schedule 3.8(a) Pending Litigation
Schedule 3.8(b) Non-Compliance with Statutes, Rules and Regulations, Etc.
Schedule 3.9 Absence of Certain Changes or Events
Schedule 3.10(a) Tax Matters
Schedule 3.10(b)(i) Challenge to REIT Status
Schedule 3.10(b)(ii) Non-domestic Beneficial Owners of Common Stock
Schedule 3.10(b)(iii) Beneficial Ownership in excess of 9.8%
Schedule 3.11(c) Indebtedness; Joint Venture and Partnership Agreements
Schedule 3.11(d) Development, Construction, Management and Leasing Arrangements
Schedule 3.11(e) Other Material Agreements
Schedule 3.11(f) Conflict Policies & Agreements; Waivers
Schedule 3.12(b) Corporate Records
Schedule 3.13(a)(i) Company Properties
Schedule 3.13(a)(ii) Operating Leases
Schedule 3.13(b) Non-Compliance with Laws and Regulations
Schedule 3.13(c) Material Company Leases
Schedule 3.13(d) Rights of First Refusal
Schedule 3.13(e) Development Properties and Development Budget and Schedules
Schedule 3.13(f) Letters of Intent or Similar Understandings
Schedule 3.14(a)(i) Environmental Permits
Schedule 3.14(a)(ii) Environmental Assessment
Schedule 3.14(e) Environmental Concerns
Schedule 3.14(f) Environmental Reports
Schedule 3.15(a) Employment Agreements
Schedule 3.15(b) Employee Benefit Plans
Schedule 3.15(g) COBRA Participants
Schedule 3.16 Collective Bargaining; Labor Union Agreements
Schedule 3.17 Affiliate Transactions
Schedule 3.23 Individuals for Knowledge Test
</TABLE>
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EXHIBITS
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Exhibit A Form of Amended Company Declaration
Exhibit B Advancing Party Participation Schedule
Exhibit C Atlantic Tax Agreement
Exhibit D Buyer/Colorado Sharing Agreement
Exhibit E Buyer/Kimco Share Purchase Agreement
Exhibit F Exchange Rights Agreement
Exhibit G Joinder Agreement
Exhibit H Reorganization Documents
Exhibit I Registration Rights Agreement
Exhibit J Amendment No.3 to the Partnership Agreement
Exhibit K Amended Partnership Agreement (the consolidated and conformed text)
Exhibit L Buyer Reorganization Agreement
Exhibit M Company Board of Trustees Resolutions at Buyer Reorganization
Exhibit N Form of Rent Roll
Exhibit O Proxy Statement
Exhibit P Form of Amended By-Laws
</TABLE>
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THIS PREFERRED UNITS AND STOCK PURCHASE AGREEMENT (the "Agreement"), dated
as of September 30, 1997, is made by and among Ramco-Gershenson Properties,
L.P., a Delaware limited partnership (the "Operating Partnership"),
Ramco-Gershenson Properties Trust, a Massachusetts business trust and the
general partner and owner of a majority of the interests in the Operating
Partnership (together with its successors, the "Company"), Stichting
Bedrijspensioenfonds Voor de Metaalnijverheid, Stichting Pensionfonds ABP, MS
Real Estate Special Situations Inc., The Morgan Stanley Real Estate Special
Situations Fund I, L.P. and The Morgan Stanley Real Estate Special Situations
Fund II, L.P. (each acting severally and not jointly the "Advancing Party"),
Special Situations RG REIT, Inc., a Maryland corporation and an affiliate of the
Advancing Party ("Buyer").
RECITALS:
WHEREAS, Buyer wishes to purchase from the Company, and the Company
wishes to sell or cause to be sold to Buyer, (x) up to an aggregate of 1,200,000
shares plus any additional shares to be purchased on behalf of Kimco as
described below of a newly authorized series of convertible preferred stock of
the Company (the "Company Preferred Stock"), having the terms set forth in the
Declaration of Trust and the Articles Supplementary of the successor to
Ramco-Gershenson Properties Trust by way of the Reorganization (defined below),
substantially in the form attached as Exhibit A (the "Declaration of Trust" and
the "Articles Supplementary", respectively, and both of such items being
collectively referred to as the "Amended Company Declaration"), and, to the
extent that the Company is unable to issue such Company Preferred Stock, (y) up
to an aggregate of 1,200,000 preferred units plus any additional units to be
purchased on behalf of Kimco as described below of the Operating Partnership as
provided for in the Amended Partnership Agreement (as defined below) (the
"Preferred Units"), in each case at a price of $25.00 per share of Company
Preferred Stock or per Preferred Unit, as the case may be;
WHEREAS, pursuant to the Buyer/Kimco Share Purchase Agreement (defined
below) among Buyer, the Advancing Party and Kimco Realty Corporation, a
Maryland corporation ("Kimco"), (a) at the time of any Units Purchase Buyer
may, upon notice to Buyer to such effect from Kimco, increase the size of the
Units Purchase by the Kimco Percentage (defined below), and (b) at and after
the Reorganization, the Advancing Party as successor to Buyer may, upon notice
to the Advancing Party to such effect from Kimco, at the time of any Stock
Purchase, increase the size of the Stock Purchase in the amount of the Kimco
Percentage and cause shares of Company Preferred Stock issued as a result of
such increase to be registered in the name of Kimco;
WHEREAS, pursuant to the Buyer/Kimco Share Purchase Agreement, Kimco is
obliged to purchase up to $5,000,000 of shares in Buyer, the proceeds of
which shall be used by Buyer to purchase Preferred Units and/or Company
Preferred Stock on behalf of Kimco;
WHEREAS, Buyer, the Company, the Operating Partnership, the Advancing Party
and The Morgan Stanley Real Estate Special Situations Fund II, L.P.,
individually as well as by means of the Advancing Party, are entering into this
Agreement to provide for such purchase and sale and to establish various rights
and obligations in connection therewith; and
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WHEREAS, the Advancing Party has agreed to advance to Buyer all funds for
any and all purchases of Company Preferred Stock or Preferred Units pursuant
hereto, and following the Buyer Reorganization, will succeed to all of the
Buyer's rights and obligations as provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE 1
Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
Section 1.1 "Action" shall mean any actual or threatened action, suit,
arbitration, inquiry, proceeding or investigation by or before any
Government Authority.
Section 1.2 "Advancing Party" shall have the meaning set forth in the
first paragraph hereof.
Section 1.3 "Advancing Party Participation Schedule" shall mean the
schedule attached to this Agreement as Exhibit B.
Section 1.4 "Affiliate" shall have the meaning ascribed thereto in Rule
12b-2 promulgated under the Exchange Act, and as in effect on the date hereof.
Section 1.5 "Amended By-Laws" shall have the meaning set forth in Section
7.1(d).
Section 1.6 "Agreement" shall have the meaning set forth in the first
paragraph hereof.
Section 1.7 "Amended Company Declaration" shall have the meaning set forth
in the second paragraph hereof.
Section 1.8 "Amended Partnership Agreement" shall have the meaning set
forth in Section 2.5(a).
Section 1.9 "Articles Supplementary" shall have the meaning set forth in
the second paragraph hereof.
Section 1.10 "Atlantic Tax Agreement" shall mean that certain Tax
Agreement, dated as of May 10, 1996, by and between Atlantic Realty Trust and
RPS Realty Trust attached hereto as Exhibit C.
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<PAGE> 13
Section 1.11 "Beneficially Own" shall mean, with respect to any security,
having direct or indirect (including through any subsidiary or affiliate)
"beneficial ownership" of such security, as determined pursuant to Rule 13d-3
under the Exchange Act, including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
Section 1.12 "Benefit Arrangements" shall have the meaning set forth in
Section 3.15(h).
Section 1.13 "Board" shall mean the Board of Trustees of the Company and,
as the context may require, the Board of Trustees of the Maryland Trust as
successor to the Company as a result of the Reorganization.
Section 1.14 "Blue Sky Laws" shall have the meaning set forth in Section
3.4(e).
Section 1.15 "Business Day" shall mean any day other than a Saturday, a
Sunday or a bank holiday in New York, New York, or Detroit, Michigan.
Section 1.16 "Buyer" shall have the meaning set forth in the first paragraph
hereof. With respect to any Units Purchase, "Buyer" shall be deemed to include
the Colorado Investor, pursuant to the Buyer/Colorado Sharing Agreement. With
regard to any Stock Purchase, "Buyer" shall be deemed to include the Advancing
Party, pursuant to Sections 2.1(c) and 2.7 of this Agreement.
Section 1.17 "Buyer/Colorado Sharing Agreement" shall mean that certain
agreement substantially in the form attached as Exhibit D pursuant to which the
Colorado Investor agrees, among other things, to participate for its own
account in the purchase of the Colorado Percentage of any Units Purchase.
Section 1.18 "Buyer/Kimco Share Purchase Agreement" shall mean that certain
agreement substantially in the form attached as Exhibit E pursuant to which
Kimco agrees, among other things, (a) to purchase for its own account shares of
Buyer for cash consideration of an amount sufficient to permit Buyer to
purchase the Kimco Percentage of any Units Purchase, and (b) on and after the
Reorganization to notify the Advancing Party to provide notice to the Company
of Kimco's intended inclusion in any Stock Purchase.
Section 1.19 "Buyer Portion" shall have the meaning set forth in Section
8.2(b).
Section 1.20 "Buyer Reorganization" shall mean the merger of Buyer with and
into the Company immediately after the Reorganization is accomplished on the
Effective Date of the Reorganization, pursuant to the Buyer Reorganization
Agreement.
Section 1.21 "Buyer Reorganization Agreement" shall have the meaning set
forth in Section 2.5(a).
Section 1.22 "CERCLA" shall have the meaning set forth in Section 3.14(e).
Section 1.23 "Claim" shall have the meaning set forth in Section 3.14(g)(i).
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<PAGE> 14
Section 1.24 "Closing" shall mean the consummation of any Units Purchase or
Stock Purchase, and shall include the transactions resulting from the
Reorganization and the Buyer Reorganization pursuant to which Preferred Units
are exchanged for, and surrendered on receipt of certificates evidencing shares
of Company Preferred Stock as provided in this Agreement on or after the
Effective Date of the Reorganization.
Section 1.25 "Closing Date" shall mean, with respect to the consummation of
any Units Purchase or any Stock Purchase, three (3) Business Days after the
date on which the conditions set forth herein with respect thereto shall be
satisfied or duly waived, or if the Company and Buyer mutually agree on a
different date, the date upon which they have mutually agreed.
Section 1.26 "Code" shall mean the Internal Revenue Code of 1986, as
amended, and any successor thereto, including all of the rules and regulations
promulgated thereunder.
Section 1.27 "Colorado Investor" shall mean The Morgan Stanley Real Estate
Special Situations Fund II, L.P., a Delaware limited partnership.
Section 1.28 "Colorado Percentage" shall mean that portion of each Purchase
Price (Units) to be borne by the Colorado Investor and equal to 14.5% of such
Purchase Price (Units).
Section 1.29 "Commitment" shall have the meaning set forth in Section 3.9.
Section 1.30 "Company" shall have the meaning set forth in the first
paragraph hereof, and such term shall, on and after the Reorganization, include
The Maryland Trust as successor to the Ramco-Gershenson Properties Trust, a
Massachusetts business trust, in the Reorganization.
Section 1.31 "Company Declaration of Trust" shall mean the Declaration of
Trust of the Company, as in effect on the date hereof.
Section 1.32 "Company Common Stock" shall mean the shares of beneficial
interest, par value $0.10 per share, of Ramco-Gershenson Properties Trust
("Trust Common Shares"), or any shares of beneficial interest of the class
issued to all holders of Trust Common Shares upon the Reorganization.
Section 1.33 "Company Environmental Reports" shall have the meaning set
forth in Section 3.14(f).
Section 1.34 "Company Leases" shall have the meaning set forth in Section
3.13(c).
Section 1.35 "Company Notice" shall have the meaning set forth in Section
6.8(b).
Section 1.36 "Company Plans" shall have the meaning set forth in Section
3.15(b).
Section 1.37 "Company Preferred Stock" shall have the meaning set forth in
the second paragraph hereof.
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Section 1.38 "Company Properties" shall have the meaning set forth in
Section 3.13(a).
Section 1.39 "Company Proxy Statement" shall mean the proxy statement of
RPS Realty Trust, dated March 29, 1996, relating to the Consolidation.
Section 1.40 "Company Registration Statement" shall have the meaning set
forth in Section 3.7(a).
Section 1.41 "Company Reports" shall have the meaning set forth in Section
3.7(a).
Section 1.42 "Company Stock" shall mean Company Common Stock, Company
Preferred Stock and any other class of capital stock which has been duly
authorized under the Company Declaration of Trust or the Amended Company
Declaration and has been validly issued by the Company not in violation of any
provisions hereof or of the Amended Company Declaration.
Section 1.43 "Company Units" shall have the meaning set forth in Section
3.3(b).
Section 1.44 "Consolidation" shall mean the acquisition by RPS Realty Trust
of certain assets of Ramco-Gershenson Inc., the formation of the Operating
Partnership as of result of such acquisition, and the adoption by RPS Realty
Trust of the name Ramco-Gershenson Properties Trust.
Section 1.45 "Controlled Group Liability" shall have the meaning set forth
in Section 3.15(h).
Section 1.46 "Convertible Securities" shall have the meaning set forth in
Section 6.8(b).
Section 1.47 "Debt Instruments" shall mean all notes, mortgages, deeds of
trust or similar instruments which evidence or secure any indebtedness owing to
the Company or any Subsidiary.
Section 1.48 "Declaration of Trust" shall have the meaning set forth in the
second paragraph hereof.
Section 1.49 "Development Properties" shall have the meaning set forth in
Section 3.13(e).
Section 1.50 "Development Budget and Schedule" shall have the meaning set
forth in Section 3.13(e).
Section 1.51 "DRA" shall mean DRA Advisors, Inc.
Section 1.52 "Effective Date of the Reorganization" shall mean the day on
which all conditions of the Reorganization have been satisfied, all appropriate
filings with Governmental
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<PAGE> 16
Authorities have been accomplished, and the Reorganization occurs as a matter
of record with the State Department of Assessments and Taxation of the State of
Maryland.
Section 1.53 "Election" shall have the meaning set forth in Section 3.10(b).
Section 1.54 "Employee Benefit Plans" shall have the meaning set forth in
Section 3.15(h).
Section 1.55 "Employees" shall have the meaning set forth in Section
3.15(h).
Section 1.56 "Environmental Claim" shall have the meaning set forth in
Section 3.14(g)(ii).
Section 1.57 "Environmental Laws" shall have the meaning set forth in
Section 3.14(g)(iii).
Section 1.58 "Environmental Permits" shall have the meaning set forth in
Section 3.14(a).
Section 1.59 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor thereto.
Section 1.60 "Escrow Letter" shall have the meaning set forth in Section
5.4.
Section 1.61 "ERISA Affiliates" shall mean, with respect to any entity,
trade or business, any other entity, trade or business that is a member at
any relevant time of a group described in Section 414(b), (c), (m) or (o) of
the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or
business, or that is a member of the same "controlled group" as the first
entity, trade or business pursuant to Section 4001(a)(14) of ERISA.
Section 1.62 "Exchange Act" shall have the meaning set forth in Section
3.4(e).
Section 1.63 "Exchange Rights Agreement" shall mean the Exchange Rights
Agreement by and among the Company and the limited partners of the Operating
Partnership, dated as of May 10, 1996, and attached hereto as Exhibit F.
Section 1.64 "Executive Summaries of the Company Environmental Reports"
shall have the meaning set forth in Section 3.14(f).
Section 1.65 "Exercise Restriction" shall have the meaning set forth in
Section 6.8(d).
Section 1.66 "Final Determination" shall mean (a) a decision, judgement,
decree, or other order by any court of competent jurisdiction, which has become
final and is either no longer subject to appeal or for which a determination
not to appeal has been made and approved by the Company, as the successor to
RPS Realty Trust which was a party to the Tax Agreement; (b) a closing
agreement made with any Governmental Authority having jurisdiction over the
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<PAGE> 17
assessment, determination, collection or other imposition of tax and approved
by the Company, as successor to RPS Realty Trust; or (c) any agreement with or
statement by the IRS that the Company's status as a REIT will not be challenged
for the year ended December 31, 1995.
Section 1.67 "GAAP" shall have the meaning set forth in Section 3.7(b).
Section 1.68 "Government Authority" shall mean any government or state (or
any subdivision thereof) of or in the United States, or any agency, authority,
bureau, commission, department or similar body or instrumentality thereof, or
any governmental court or tribunal.
Section 1.69 "HSR Act" shall have the meaning set forth in Section 3.4(e).
Section 1.70 "Indemnified Party" shall mean Buyer, Advancing Party and
Kimco, on the one hand, or the Company, on the other hand, as the context may
require.
Section 1.71 "Initial Closing" shall mean the first Closing as set forth in
Section 2.3.
Section 1.72 "Initial Purchase Price" shall mean the Purchase Price to be
paid at the Initial Closing.
Section 1.73 "Insurance Policies" shall have the meaning set forth in
Section 3.18.
Section 1.74 "IRS" shall mean the Internal Revenue Service.
Section 1.75 "Kimco" shall have the meaning set forth in the third paragraph
hereof.
Section 1.76 "Kimco Percentage" shall mean 16.667%.
Section 1.77 "Kimco Purchased Shares" shall have the meaning set forth in
Section 2.1(b).
Section 1.78 "Kimco Purchased Units" shall have the meaning set forth in
Section 2.1(a).
Section 1.79 "Knowledge" shall have the meaning set forth in Section 3.23.
Section 1.80 "Joinder Agreement" shall mean that certain Joinder Agreement
of even date herewith, substantially in the form of Exhibit G, pursuant to
which the Maryland Trust joins, inter alia, in this Agreement.
Section 1.81 "Laws and Regulations" shall have the meaning set forth in
Section 3.13(b).
Section 1.82 "Liabilities" shall mean, as to any person, all debts, adverse
claims, liabilities and obligations, direct, indirect, absolute or contingent
of such person, whether accrued, vested or otherwise, whether in contract,
tort, strict liability or otherwise and whether
7
<PAGE> 18
or not actually reflected, or required by GAAP to be reflected, in such
person's or entity's balance sheets or other books and records, including (i)
obligations arising from non-compliance with any law, rule or regulation of any
Government Authority or imposed by any court or any arbitrator of any kind,
(ii) all indebtedness or liability of such person for borrowed money, or for
the purchase price of property or services (including trade obligations), (iii)
all obligations of such person as lessee under leases, capital or other, (iv)
liabilities of such person in respect of plans covered by Title IV of ERISA, or
otherwise arising in respect of plans for employees or former employees or
their respective families or beneficiaries, (v) reimbursement obligations of
such person in respect of letters of credit, (vi) all obligations of such
person arising under acceptance facilities, (vii) all liabilities of other
persons or entities, directly or indirectly, guaranteed, endorsed (other than
for collection or deposit in the ordinary course of business) or discounted
with recourse by such person or with respect to which the person in question is
otherwise directly or indirectly liable, (viii) all obligations secured by any
Lien on property of such person, whether or not the obligations have been
assumed, and (ix) all other items which have been, or in accordance with GAAP
would be, included in determining total liabilities on the liability side of
the balance sheet.
Section 1.83 "Liens" shall mean all liens, mortgages, deeds of trust, deeds
to secure debt, security interests, pledges, claims, charges, easements and
other encumbrances of any nature whatsoever.
Section 1.84 "Loss and Expenses" shall have the meaning set forth in Section
8.2(a).
Section 1.85 "Maryland Trust" shall mean RGPT Trust, a Maryland real estate
investment trust.
Section 1.86 "Material Adverse Effect" shall mean a material adverse effect,
or more than one effect if more than one shall be in existence at the same time
or times, on the financial condition, results of operations or business of the
Company and its Subsidiaries (to the extent of the Company's interests therein)
taken as a whole, but shall exclude any Rate Event. For the purposes hereof an
effect shall be material if (a) the aggregate dollar amount of any loss or
Liability (to the extent not paid or fully covered by insurance and for which
the insurer has accepted liability in writing) of, or, diminution in value or
other cost or expense to the Company, is in excess of $5,000,000; (b) a dollar
amount of revenue lost, not received, or reduced, or any charge to earnings, is
in excess of $575,000, or, in the event that the threshold established in both
clause (a) and (b) are met, then both.
Section 1.87 "Material Company Leases" shall have the meaning set forth in
Section 3.13(c).
Section 1.88 "Materials of Environmental Concern" shall have the meaning set
forth in Section 3.14(g)(iv).
Section 1.89 "MSAM" shall mean Morgan Stanley Asset Management Inc.
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Section 1.90 "NYSE Rule Approval" shall mean confirmation from New York
Stock Exchange, Inc., in form and substance reasonably satisfactory to Buyer,
the Advancing Party and Kimco, that Rule 312.03(b) is not applicable
with respect to the conversion of the Preferred Units and does not require
shareholder approval in order for the Buyer to make additional purchases of
Preferred Units (or to convert Preferred Units into Company Common Stock) after
it has converted Preferred Units into shares of Company Common Stock
representing 5% or more of all outstanding shares of Company Common Stock.
Section 1.91 "Operating Leases" shall have the meaning set forth in Section
3.13(a).
Section 1.92 "Operating Partnership" shall mean Ramco-Gershenson Properties,
L.P., a Delaware limited partnership, or any successor thereto.
Section 1.93 "Operating Partnership Units" shall mean any class of limited
partnership units representing shares of limited partnership interests in
the Operating Partnership.
Section 1.94 "Options" shall have the meaning set forth in Section 6.8(b).
Section 1.95 "Other Filings" shall have the meaning set forth in Section
5.1(b).
Section 1.96 "Partnership Agreement" shall mean that certain Amended and
Restated Agreement of Limited Partnership of Ramco-Gershenson Properties, L.P.,
dated as of May 10, 1996, as amended.
Section 1.97 "Pension Plans" shall have the meaning set forth in Section
3.15(h).
Section 1.98 "Per Share Purchase Price" shall mean with respect to the
Company Preferred Stock, the price of $25.00 per share for the Company Preferred
Stock, and with respect to Company Stock as to which Buyer has made an election
to purchase pursuant to Preemptive Rights, the price per share of such Company
Stock received by the Company in any offering or sale as to which Preemptive
Rights apply, after costs of issue and discounts to placement agents and
underwriters. In lieu of the Per Share Purchase Price, at the Closing
pursuant to the Buyer Reorganization Agreement, Advancing Party shall cause
Buyer to surrender Preferred Units in consideration for shares of Company
Preferred Stock as provided in the Buyer Reorganization Agreement.
Section 1.99 "Per Unit Purchase Price" shall mean the price of $25.00 per
unit for the Preferred Units.
Section 1.100 "Permitted Issuances" shall mean (i) issuances of Operating
Partnership Units in consideration for the acquisition of assets by the
Operating Partnership in bona fide arm's length transactions and subject to
the limitations set forth in the Amended Partnership Agreement, (ii) grants
of Company Common Stock or options or rights to purchase Company Common Stock to
officers, employees or Trustees of the Company under the 1996 Stock Option Plan
and the 1997 Non-Employee Trustee Stock Option Plan, (iii) issuances of Company
Common Stock pursuant to any dividend reinvestment plan maintained by the
Company, or (iv)
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issuances of Company Common Stock in connection with the redemption of
Operating Partnership Units or pursuant to the Exchange Rights Agreement.
Section 1.101 "Permitted Liens" shall mean (i) Liens (other than liens
imposed under ERISA or any Environmental Law or in connection with any
Environmental Claim) for taxes or other assessments or charges of Governmental
Authorities that are not yet delinquent or that are being contested in good
faith by appropriate proceedings, in each case, with respect to which adequate
reserves or other appropriate provisions are being maintained by the Company or
its Subsidiaries to the extent required by GAAP, (ii) statutory liens of
landlords, carriers, warehousemen, mechanics, materialmen and other Liens (other
than Liens imposed under ERISA or any Environmental Law or in connection with
any Environmental Claim) imposed by law and created in the ordinary course of
business for amounts not yet overdue or which are being contested in good faith
by appropriate proceedings, in each case, with respect to which adequate
reserves or other appropriate provisions are being maintained by the Company or
its Subsidiaries to the extent required by GAAP and which do not exceed $500,000
in the aggregate, (iii) the Company Leases, (iv) easements, rights-of-way,
covenants and restrictions which are customary and typical for retail properties
similar to the Company Properties and which do not (x) interfere materially with
the ordinary conduct of any Company Property or the business of the Company and
its Subsidiaries as a whole or (y) detract materially from the value or
usefulness of the Company Property to which they apply, (v) the Liens which were
granted by the Company or any of its Subsidiaries to lenders pursuant to credit
agreements in existence on the date hereof which are described in Schedule
3.11(c), (vi) the other Liens, if any, described in Schedule 1.101, and (vii)
such imperfections of title and encumbrances, if any, as would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
Section 1.102 "Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, trust, unincorporated
organization, other form of business or legal entity or Government Authority.
Section 1.103 "Preemptive Rights" shall mean the rights of Buyer and the
Advancing Party set forth in Section 6.8 hereof.
Section 1.104 "Preferred Units" shall have the meaning set forth in the
second paragraph hereof.
Section 1.105 "Projects" shall have the meaning set forth in Section
3.13(e).
Section 1.106 "Proxy Statement" shall have the meaning set forth in Section
5.1(b).
Section 1.107 "Purchase Price" shall mean either a Purchase Price (Stock)
or a Purchase Price (Units).
Section 1.108 "Purchase Price (Stock)" shall mean the Per Share Purchase
Price multiplied by the number of shares of Company Preferred Stock to be
purchased by the Advancing Party and sold at a particular Closing (other than
the Closing pursuant to the Reorganization Documents and the Buyer
Reorganization Agreement).
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Section 1.109 "Purchase Price (Units)" shall mean the Per Unit Purchase
Price multiplied by the number of units of Preferred Units to be purchased
by Buyer and the Colorado Investor and sold at a particular Closing (other
than the Closing pursuant to the Reorganization Documents and the Buyer
Reorganization Agreement).
Section 1.110 "Purchased Shares" shall have the meaning set forth in
Section 2.1(b).
Section 1.111 "Purchased Units" shall have the meaning set forth in Section
2.1(a).
Section 1.112 "Qualified Services" shall have the meaning set forth in
Section 3.10(g).
Section 1.113 "Qualified Underwritten Offering" shall mean any
underwritten, widely distributed offering of Company Common Stock, the gross
proceeds of which are not less than $40,300,000. For these purposes, unless
otherwise agreed by Buyer, widely distributed shall mean that (i) a minimum of
30% of the offering is purchased by retail individual brokerage customers who
are brought into the transaction by the underwriting syndicate or by dealers
participating in the offering which have purchased from members of the
underwriting syndicate and (ii) a minimum of eight institutions purchase Company
Common Stock in the offering.
Section 1.114 "Rate Event" shall mean any event set forth in the Amended
Partnership Agreement or in Article 3(b)(3) of the Articles Supplementary as a
result of which there is required to occur an adjustment to the Preferred Return
or the rate of the dividends payable with respect to shares of Company Preferred
Stock, as set forth in the Amended Partnership Agreement or the Amended Company
Declaration, as the case may be.
Section 1.115 "Registration Rights Agreement" shall have the meaning set
forth in Section 2.5(a).
Section 1.116 "Regulatory Filings" shall have the meaning set forth in
Section 3.4(e).
Section 1.117 "REIT" shall have the meaning set forth in Section 3.10(b).
Section 1.118 "Release" shall have the meaning set forth in Section
3.14(g)(v).
Section 1.119 "Remaining Equity Commitment" shall mean, on any given date
after the Initial Closing, the Total Equity Commitment minus the sum of the
Initial Purchase Price and all the Subsequent Purchase Prices of all Subsequent
Purchases effected prior to the given date (in each case calculating the
Initial Purchase Price and/or the Subsequent Purchase Prices prior to any
increase related to Kimco). The Remaining Equity Commitment shall be deemed to
be zero on the earlier of (i) the date that the Remaining Equity Commitment
actually equals zero and (ii) the later of (A) September 25, 1998 and (B) if
Buyer notifies the Company on or before October 25, 1998 that Buyer is, pursuant
to Section 2.4(b), exercising Buyer's right to make a Subsequent Purchase equal
to the then amount of the Remaining Equity Commitment, then, the date as soon
thereafter as all conditions to Buyer's obligations to effect such purchase
shall have been satisfied or waived, and such purchase shall have been effected.
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Section 1.120 "Rent Roll" shall have the meaning set forth in Section
3.13(c).
Section 1.121 "Reorganization" shall mean the reorganization of the Company
into a real estate investment trust qualifying as a REIT and organized pursuant
to the laws of the State of Maryland, as to be proposed by management of the
Company to the shareholders of the Company.
Section 1.122 "Reorganization Closing" shall mean the occurrence, on the
Effective Date of the Reorganization, of the accomplishment of the
Reorganization, followed immediately thereafter by the Buyer Reorganization
pursuant to the Reorganization Documents and otherwise on terms and conditions
reasonably satisfactory to Buyer.
Section 1.123 "Reorganization Documents" shall mean the agreements and
instruments pursuant to which the reorganization of Ramco-Gershenson Properties
Trust, a Massachusetts business trust, with and into the Maryland Trust, a
Maryland real estate investment trust will be effected, upon the affirmative
vote of the shareholders of Ramco-Gershenson Properties Trust at the
Shareholders' Meeting, which such agreements and instruments shall be
substantially in the form attached as Exhibit H.
Section 1.124 "Reorganization Escrow" shall have the meaning set forth in
Section 5.4.
Section 1.125 "Rights Exercise Notice" shall have the meaning set forth in
Section 6.8(b).
Section 1.126 "SEC" shall have the meaning set forth in Section 3.7(a).
Section 1.127 "Securities Act" shall have the meaning set forth in Section
3.4(e).
Section 1.128 "Securities Laws" shall have the meaning set forth in Section
3.7(a).
Section 1.129 "Shareholders Meeting" shall have the meaning set forth in
Section 3.1(a).
Section 1.130 "Shell Site" shall have the meaning set forth in Section
3.14(a).
Section 1.131 "Stock Purchase" shall have the meaning set forth in Section
2.1(b).
Section 1.132 "Subsequent Funding Minimum" shall mean the amount of
$5,000,000.00.
Section 1.133 "Subsequent Purchase Price" shall have the meaning set forth
in Section 2.4(a).
Section 1.134 "Subsequent Purchases" shall have the meaning set forth in
Section 2.4(a).
Section 1.135 "Subsidiaries" shall mean, collectively, the Operating
Partnership, Ramco-Gershenson, Inc., 28th Street Kentwood Associates and S-12
Associates, and any entity in which the Company owns a minimum of 50% of the
voting interest in such entity.
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Section 1.136 "Tax" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Code Section 59A), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax of any kind whatsoever,
including any interest, penalty, or addition thereto. The term "Tax" also
includes any amounts payable pursuant to any tax sharing agreement to which any
relevant entity is liable as a successor or pursuant to contract.
Section 1.137 "Tax Case" means the Internal Revenue Service's tax
investigation dealing with the Company's tax status, as described in the
Company's Reports with the SEC, to the extent the Company has incurred or will
incur, directly or indirectly, voluntarily or involuntarily, any liability for
which it is entitled to be reimbursed under the Atlantic Tax Agreement.
Section 1.138 "Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
Section 1.139 "Total Equity Commitment" shall mean the amount of
$30,000,000.00.
Section 1.140 "Units Purchase" shall have the meaning set forth in Section
2.1(a).
Section 1.141 "Welfare Plans" shall have the meaning set forth in Section
3.15(h).
ARTICLE 2
Purchase and Sale of Shares; Closing
Section 2.1 "Purchase and Sale." (a) Subject to the terms and conditions
hereof, and from time to time after the date hereof, at one or not more than
four Closings, the Operating Partnership will sell, convey, assign, transfer
and deliver, and the Buyer (or the Colorado Investor, to the extent that the
Colorado Investor has assumed such obligations pursuant to the Buyer/Colorado
Sharing Agreement) will purchase and acquire (and the Advancing Party shall
advance sufficient funds for such purchases from each member of the Advancing
Party, and Buyer will cause sufficient funds for such purchases to be advanced
by the Colorado Investor, in each case in accordance with the allocated
percentages set forth on the Advancing Party Participation Schedule attached as
Exhibit B) from the Operating Partnership up to an aggregate of 1,200,000 (but
reduced by the number of Purchased Shares purchased pursuant to the first
sentence of Section 2.1(b), if any) Preferred Units of Operating Partnership
Units (together with the Kimco Purchased Units, the "Purchased Units"). Each
Closing at which Buyer purchases any Purchased Units is herein referred to as a
"Units Purchase". Upon timely performance by Kimco under the Buyer/Kimco Share
Purchase Agreement, the number of Purchased Units to be purchased by Buyer and
sold at any Units Purchase will be increased by the Kimco Percentage (rounded
to the nearest whole Preferred Unit) (the "Kimco Purchased Units").
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<PAGE> 24
(b) Subject to the terms and conditions hereof, from time to time
after the date hereof and after the Reorganization, at one or not more than
four Closings, the Company will sell, convey, assign, transfer, and deliver, and
Buyer will purchase and acquire (and the Advancing Party shall advance
sufficient funds for such purchase or shall make such purchase itself pursuant
to Section 2.1(c) of this Agreement) from the Company, up to an aggregate of
1,200,000 (but reduced by the number of Purchased Units purchased pursuant to
the first sentence of Section 2.1(a)) shares of Company Preferred Stock
(together with the Kimco Purchased Shares, the "Purchased Shares"). Each
Closing at which Buyer or the Advancing Party purchases any Purchased Shares is
herein referred to as a "Stock Purchase." Upon timely performance by Kimco
under the Buyer/Kimco Share Purchase Agreement, the number of Purchased Shares
to be purchased and sold at any Stock Purchase will be increased by the Kimco
Percentage (rounded to the nearest whole share of Company Preferred Stock) (the
"Kimco Purchased Shares").
(c) Upon the Buyer Reorganization which shall occur immediately after
the Reorganization, the Purchased Units will be transferred to the Company, the
existence of the Buyer will be terminated, and (x) the Advancing Party and Kimco
will be issued a number of shares of Company Preferred Stock equal to the number
of Purchased Units purchased on their behalf by Buyer and transferred as a
result of the Buyer Reorganization and in addition the Advancing Party will be
issued the number of shares of Company Preferred Stock equal to the number of
Purchased Units transferred to the Company pursuant to the Buyer/Colorado
Sharing Agreement, and (y) the Advancing Party will succeed to all rights and
obligations of Buyer hereunder without any further act or deed or the execution
or delivery of any further instrument or agreement.
Section 2.2 "Consideration." Subject to the terms and conditions hereof, at
each Closing (other than the Closing pursuant to the Buyer Reorganization
Agreement), Buyer shall deliver to the Company or the Operating Partnership, as
applicable, the relevant Purchase Price with respect to the number of
Preferred Units or shares of Company Preferred Stock to be purchased and sold at
such Closing by wire transfer of immediately available funds in U.S. dollars to
the account or accounts specified by the Company. In the event Purchase Units
or Purchased Stock are increased pursuant to the last sentence of Section 2.1(a)
or 2.1(b), the relevant Purchase Price will be correspondingly increased.
Section 2.3 "Initial Closing." Subject to the terms and conditions hereof,
at a mutually agreeable time promptly following the date on which the conditions
set forth herein shall have been satisfied or duly waived, the Operating
Partnership will sell, convey, assign, transfer and deliver, and Buyer will
purchase and acquire (and the Advancing Party shall advance sufficient funds
for such purchase) from the Operating Partnership, 400,000 Preferred Units
(subject to increase by the Kimco Percentage, as aforesaid), and Buyer will pay
to the Operating Partnership the Initial Purchase Price for such Preferred
Units.
Section 2.4 "Subsequent Purchases and Sales." (a) Subject to the terms and
conditions hereof, from time to time following the Initial Closing, the Company
shall have the right to require Buyer to purchase (and the Advancing Party
to advance sufficient funds for such purchase) from the Operating Partnership
additional Preferred Units and, from and after the
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Reorganization, from the Company shares of Company Preferred Stock (the
"Subsequent Purchases"), the number of which Preferred Units or shares of
Company Preferred Stock shall be determined by the Company, provided, however,
that each Subsequent Purchase shall be made at the Per Unit Purchase Price or
Per Share Purchase Price, as the case may be, and shall consist of a sufficient
number of Preferred Units or shares of Company Preferred Stock, as the case may
be, so that the aggregate purchase price of the Subsequent Purchase (each a
"Subsequent Purchase Price") is greater than the Subsequent Funding Minimum,
and provided further that the Subsequent Purchase Price to be paid at any
Closing is not greater than the Remaining Equity Commitment immediately prior
to such Closing. Upon timely performance by Kimco under the Buyer/Kimco Share
Purchase Agreement, the number of Preferred Units or shares of Company
Preferred Stock to be purchased and sold at any Subsequent Purchase will be
increased by the Kimco Percentage as aforesaid. In no event shall Buyer be
required to purchase shares of Company Preferred Stock pursuant hereto so that
it shall have expended more than the Total Equity Commitment. Subject to the
terms and conditions hereof, each Closing of a Subsequent Purchase shall be on
the Business Day specified by the Company in a written notice to Buyer,
provided that such written notice is given to Buyer at least fifteen (15)
Business Days prior to the Business Day specified in such notice of a proposed
Closing.
(b) If the Remaining Equity Commitment is greater than zero on September
25, 1998 (or, if a Final Determination has not been made with respect to the Tax
Case such that the Company shall have been qualified as a REIT for any year, by
October 25, 1998, then on or before February 1, 1999) Buyer shall have the right
to make one Subsequent Purchase from the Operating Partnership or Company of a
sufficient number of Preferred Units or shares of Company Preferred Stock, as
the case may be, at the Per Unit Purchase Price or Per Share Purchase Price, as
the case may be, so that the Remaining Equity Commitment equals zero by October
25, 1998, (or February 25, 1999, if the period for such exercise has been
extended as provided in the parenthetical above in this Section 2.4(b)), as the
case may be, or as soon thereafter as all conditions to Buyer's obligation to
effect any purchase hereunder of Preferred Units or Company Preferred Stock, as
the case may be, shall have been satisfied or waived; provided, however, that
Buyer shall in no event be obligated to effect such Subsequent Purchase prior to
October 25, 1998.
(c) At each Closing following the Initial Closing, prior to the Effective
Date of the Reorganization, Subsequent Purchases shall be of Preferred Units.
At the Effective Date of the Reorganization, Preferred Units held by the
Buyer and the Colorado Investor shall, subject to and in accordance with the
terms and conditions of the Reorganization Documents, and by operation of the
Buyer Reorganization, be replaced by a like number of shares of Company
Preferred Stock registered as the Advancing Party may instruct in accordance
with the Reorganization Documents (and any shares attributable to Kimco
registered as Kimco directs). After the Effective Date of the Reorganization,
Subsequent Purchases shall be of Company Preferred Stock in sales by the Company
to the Advancing Party which shall, at the effective date of the Buyer
Reorganization, succeed to the rights and obligations of the Buyer as set forth
in Section 2.7 hereto.
Section 2.5 "Additional Agreements and Closing Deliveries." (a) At the
Initial Closing, and as a condition to the parties' obligations hereunder to
effect the transactions contemplated
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hereby at the Initial Closing, the Company, Buyer, Kimco and the Advancing
Party shall enter into a registration rights agreement, substantially in the
form attached as Exhibit I (the "Registration Rights Agreement"), the Company,
the several limited partners of the Operating Partnership and Buyer shall enter
into an Amendment No.3 to the Partnership Agreement, substantially in the form
attached as Exhibit J (the "Amended Partnership Agreement"), which together
with the Partnership Agreement shall have been consolidated into a conformed
and mutually agreed text, referred to as the Consolidated and Conformed
Agreement of Limited Partnership of Ramco-Gershenson Properties, L.P.,
substantially in the form attached as Exhibit K, and the Company, Buyer, Kimco
and the Advancing Party shall enter into an agreement of reorganization of
Buyer, pursuant to which the Buyer Reorganization shall occur immediately
following the Reorganization on the Effective Date of the Reorganization,
substantially in the form attached as Exhibit L (the "Buyer Reorganization
Agreement").
(b) In addition to the other things required to be done hereby, at each
Closing, the Company shall deliver, or cause to be delivered, to Buyer or the
Advancing Party, as the case may be, the following: (i) (A) at each Closing
prior to the Effective Date of the Reorganization, evidence of the purchase by
and sale to Buyer of Preferred Units representing the number of Preferred Units
to be issued and delivered at such Closing, and (B) at each Closing on or after
the Effective Date of the Reorganization, certificates representing the number
of shares of Company Preferred Stock to be issued and delivered at such Closing,
free and clear of all liens (unless created by the purchaser thereof or any of
its Affiliates), with all necessary stock transfer and other documentary stamps
attached, (ii) a certificate, dated the relevant Closing Date and validly
executed on behalf of the Company, as contemplated by Section 7.1(a), as to the
Initial Closing only, and by Section 7.2(a), as to all Closings, (iii) evidence
or copies of any consents, approvals, orders, qualifications or waivers required
pursuant to Section 7.1, as to the Initial Closing only, and to Section 7.2, as
to all Closings other than the Closing pursuant to the Buyer Reorganization
Agreement, (iv) all certificates and other instruments and documents required by
this Agreement to be delivered by the Company at or prior to each Closing, and
(v) such other instruments reasonably requested by Buyer, as may be necessary or
appropriate to confirm or carry out the provisions of this Agreement.
(c) In addition to the delivery of the Purchase Price and the other things
required to be done hereby, at each Closing other than the Closing pursuant to
the Buyer Reorganization Agreement, Buyer shall deliver, or cause to be
delivered, to the Company the following: (i) a certificate, dated the relevant
Closing Date and validly executed by Buyer, as contemplated by Section 7.3(a),
(ii) if not previously delivered to the Company, all other certificates,
documents, instruments and writings required pursuant hereto to be delivered by
or on behalf of Buyer at or before each Closing other than the Closing pursuant
to the Buyer Reorganization Agreement, and (iii) such other instruments
reasonably requested by the Company, as may be necessary or appropriate to
confirm or carry out the provisions of this Agreement.
(d) In addition to the other things required to be done hereby or pursuant
to the Reorganization Documents and the Buyer Reorganization Agreement, at the
Buyer Reorganization, the Company shall deliver, or cause to be delivered, to
Buyer, Advancing Party and Kimco the following: (i) copies of the resolutions
adopted by the Board and the shareholders of the Company and by the Board of
Trustees of the Maryland Trust, as to the
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<PAGE> 27
Reorganization in the forms attached as Exhibit M, certified as being true,
correct and complete and having been duly adopted at meetings at which a quorum
was present and acting throughout, (ii) (A) a certificate (or if and as
requested by the Advancing Party, more than one certificate) representing the
number of shares of Company Preferred Stock to be issued and delivered to the
Advancing Party, registered in such name or names as the Advancing Party may
request, and (B) a certificate representing the number of shares of Company
Preferred Stock to be issued and delivered to Kimco, as Kimco may request, by
way of exchange of the Buyer Reorganization for the Preferred Units held by
Buyer and the Colorado Investor at or after the Effective Date of the
Reorganization pursuant to the Buyer Reorganization Agreement, (iii) copies of
the Amended Company Declaration as filed with the State Department of
Assessments and Taxation of the State of Maryland, (iv) such other instruments
reasonably requested by the Advancing Party or Kimco, as may be necessary or
appropriate to confirm or carry out the provisions of this Agreement and the
provisions of the Reorganization Documents and the Buyer Reorganization
Agreement, and (v) an opinion of counsel to the Company, acceptable to
Advancing Party or Kimco, as to such matters as may be reasonably requested by
Advancing Party or Kimco, in form and substance acceptable to Advancing Party
or Kimco.
Section 2.6 "Time and Place of Closing." Each Closing shall take place on
the relevant Closing Date at such place and time as the Company and Buyer
shall mutually agree, except that the Closing in connection with the Buyer
Reorganization shall take place as provided in the Buyer Reorganization
Agreement.
Section 2.7 "Right to Assign." Buyer may assign its rights and delegate
its obligations created hereby to purchase Preferred Units or Company Stock
in accordance with the provisions of Section 10.6. The Advancing Party
shall, without any assignment, succeed to the rights and obligations of Buyer
upon the Buyer Reorganization.
Section 2.8 "Mandatory Equity Commitment Drawdown." If, at the time Buyer
elects to convert any Preferred Units into shares of Company Common Stock, which
shares of Company Common Stock when aggregated with all shares of Company
Common Stock held by Buyer, will result in Buyer holding 5% or more of all
outstanding shares of Company Common Stock, (a) the Company has not obtained the
requisite shareholder approval for the Reorganization and the other transactions
contemplated hereby that require shareholder approval and (b) the Company has
not obtained the NYSE Rule Approval, then, on or prior to such conversion Buyer
may require the Operating Partnership to sell to Buyer a number of Preferred
Units equal to the Remaining Equity Commitment divided by the Per Unit Purchase
Price. Upon timely performance by Kimco under the Buyer/Kimco Share Purchase
Agreement the number of Purchased Units to be purchased by Buyer and sold at the
Units Purchase contemplated under this Section 2.8 shall be increased by the
Kimco Percentage (rounded to the nearest whole Preferred Unit).
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ARTICLE 3
Representations and Warranties of the Company
The Company hereby represents and warrants to Buyer, the Advancing Party
and Kimco as follows:
Section 3.1 "Organization and Qualification, Subsidiaries." (a)
Ramco-Gershenson Properties Trust is a business trust duly organized, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts, and has all requisite organizational power and authority to own,
operate, lease and encumber its properties and carry on its business as now
conducted, and to enter into this Agreement, the Registration Rights Agreement,
the Amended Partnership Agreement, the Reorganization Documents and the Buyer
Reorganization Agreement, and to perform its obligations hereunder and
thereunder, subject, in the case of the Reorganization Documents and the Buyer
Reorganization Agreement, to obtaining the requisite approvals of the Company's
shareholders at the stockholders meeting to the Reorganization (the
"Shareholders Meeting").
(b) The Operating Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Operating Partnership has all requisite partnership power and authority to
own, operate, lease and encumber its properties and carry on its business as
now conducted.
(c) Each of the Subsidiaries of the Company is a corporation, partnership
or limited liability company duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, and has the corporate or partnership power and authority to own
its properties and carry on its business as it is now being conducted.
(d) Each of the Company and its Subsidiaries is duly qualified to do
business and in good standing in each jurisdiction in which the ownership of its
property or the conduct of its business requires such qualification, except
for any failures to be so qualified or to be in good standing as would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(e) Schedule 3.1(e)(i) sets forth the name of each Subsidiary of the
Company or the Operating Partnership (whether owned directly or indirectly
through one or more intermediaries). All of the outstanding shares of capital
stock of, or other equity interest in, each of the Subsidiaries owned by the
Company or the Operating Partnership are duly authorized, validly issued, fully
paid and nonassessable, and are owned, directly or indirectly, by the Company or
the Operating Partnership free and clear of all Liens, except as set forth in
Schedule 3.1(e)(i). The following information for each Subsidiary is set forth
in Schedule 3.1(e)(i), if applicable: (i) its name and jurisdiction of
incorporation or organization, (ii) the type of and percentage interest held by
the Company or Operating Partnership in the Subsidiary and the names of and
percentage interest held by the other interest holders, if any, in the
Subsidiary, and the partnership agreement or other organizational documents of
the Subsidiary, and (iii) any loans from the Company or the Operating
Partnership to, or priority payments due to the
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Company or the Operating Partnership from, the Subsidiary, and the rate of
return thereon. Except as contemplated hereby, or as set forth on Schedule
3.1(e)(ii), there are no existing options, warrants, calls, subscriptions,
convertible securities or other rights, agreements or commitments which
obligate the Company or any of the Subsidiaries to issue, transfer or sell any
shares of capital stock or equity interests in any of the Subsidiaries except
as would not, individually or in the aggregate, reasonably be expected to
result in the Material Adverse Effect.
Section 3.2 "Authority Relative to Agreements; Board Approval." (a) The
execution, delivery and performance of this Agreement, the Registration Rights
Agreement, the Amended Partnership Agreement, the Reorganization Documents,
the Buyer Reorganization Agreement, the Amended Company Declaration, the
Amended By-Laws and the issuance and delivery of shares of Company Common
Stock upon conversion of Preferred Units in accordance with the provisions
of the Amended Partnership Agreement have been duly and validly authorized by
all necessary corporate action on the part of the Company and all necessary
partnership action on the part of the Operating Partnership and its partners
other than Buyer, subject only to the approval of the Amended Company
Declaration, the Amended By-Laws, the Reorganization, the Buyer Reorganization
and issuance of Company Preferred Stock pursuant to this Agreement and the
Reorganization Documents by the Company's shareholders at the Shareholders
Meeting. Any shares of Company Common Stock owned by Buyer or any of its
Affiliates shall be eligible to vote and shall be counted in any vote with
respect to an approval of the Company's shareholders as aforesaid. This
Agreement, the Amended Partnership Agreement, and the Buyer Reorganization
Agreement each has been duly executed and delivered by the Company for itself
and constitutes the valid and legally binding obligations of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights or general principles of equity. Upon execution by Buyer of
the Amended Partnership Agreement, the Amended Partnership Agreement will
constitute a legally binding obligation of the Operating Partnership and of the
Company, enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, moratorium or other similar laws relating
to creditors' rights or general principles of equity. Upon payment by Buyer of
the relevant Purchase Price (Units) at any Closing, Preferred Units will have
duly and validly been issued to Buyer in accordance with the terms of the
Amended Partnership Agreement.
(b) The Board of the Company has, as of the date hereof, (i) approved this
Agreement, the Amended Partnership Agreement, the Reorganization Documents,
the Registration Rights Agreement and the transactions contemplated hereby
and thereby, (ii) determined to cause and has caused the Company and the
requisite percentage of other existing partners of the Operating Partnership to
enter into the Amended Partnership Agreement, and (iii) determined to recommend
that the stockholders of the Company vote in favor of and approve the
Reorganization, the Buyer Reorganization and the issuance of Company Preferred
Stock pursuant to this Agreement. Not by way of limitation of the foregoing,
the Board of the Maryland Trust has, as of the date hereof, (i) approved the
Buyer Reorganization Agreement, the form of Amended Company Declaration, the
form of Amended By-Laws, (ii) granted an exception to the Ownership Limit (as
such term is defined in the Amended Company Declaration) set forth in the
Amended Company Declaration with respect to the ownership by the Buyer, Kimco or
the Advancing Party of the Company Stock.
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<PAGE> 30
(c) The shares of Company Common Stock issuable upon redemption of the
Preferred Units for the Company Preferred Stock to be acquired pursuant to
this Agreement will, upon such issuance be duly and validly issued, fully paid
and nonassessable. The shares of Company Preferred Stock to be acquired
pursuant to this Agreement upon issuance will have been duly authorized for
issuance, and upon issuance will be duly and validly issued, fully paid and
nonassessable.
(d) Neither the issue and sale of the Preferred Units hereunder, nor, upon
or after the Reorganization, the issue and sale and conversion of the Company
Preferred Stock pursuant to the terms of the Amended Company Declaration, will
give any holder of Operating Units or stockholder of the Company the right to
demand payment for his shares under any applicable law.
Section 3.3 "Capital Stock and Units." (a) The Company is authorized on
the date hereof to issue an unlimited number of shares of Company Common Stock
par value $0.10 per share. As of the date hereof, there are 7,123,105 shares of
Company Common Stock issued and outstanding. All such issued and outstanding
shares of Company Common Stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. The Company has no outstanding
bonds, debentures, notes or other obligations the holders of which have the
right to vote (or which are convertible into or exercisable for securities the
holders of which have the right to vote) with the stockholders of the Company on
any matter. Other than (i) Operating Partnership Units which may be redeemed by
the holders thereof for Company Common Stock or the cash equivalent thereof (at
the option of the Company), (ii) options for approximately 281,050 shares of
Company Common Stock subject to grant under the Company's 1997 Non-Employee
Trustee Stock Option Plan or the Company's 1996 Share Option Plan, or (iii) as
set forth in Schedule 3.3(a) to this Agreement, there are no existing options,
warrants, calls, subscriptions, convertible securities, or other rights,
agreements or commitments which obligate the Company to issue, transfer or sell
any shares of capital stock or other equity interests of the Company.
(b) As of the date hereof, 9,691,248 Operating Partnership Units of the
Operating Partnership are validly issued and outstanding, fully paid and
nonassessable, of which 7,123,105 Operating Partnership Units are owned by the
Company (collectively, the "Company Units"). There are no other classes
of units, or any other form of limited partnership interest, of the Operating
Partnership issued or outstanding as of the date hereof. Except as set forth
in Schedule 3.3(b), and as contemplated herein, the Operating Partnership has
not issued or granted securities convertible into interests in the Operating
Partnership, and is not a party to any outstanding commitments of any kind
relating to, or any presently effective agreements or understandings with
respect to, interests in Operating Partnership, whether issued or unissued.
(c) Except for interests in the Subsidiaries of the Company and the
Operating Partnership, none of the Company or any of its Subsidiaries owns
directly or indirectly any interest or investment (whether equity or debt)
in any corporation, partnership, joint venture, business, trust or entity (other
than investments in short-term investment securities).
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Section 3.4 "No Conflicts; No Defaults, Required Filings and Consents."
Except as contemplated hereby, the execution and delivery by the Company of
this Agreement or the Reorganization Documents, the Buyer Reorganization
Agreement, or the consummation by the Company of the transactions contemplated
hereby and thereby in accordance with the terms hereof or thereof, will not:
(a) conflict with or result in a breach of any provisions of the Company's
Declaration of Trust or By-laws of the Company, assuming, as to the
Reorganization, the approval of the holders of such number of shares of Company
Common Stock as shall constitute a majority of shares of Company Common Stock
outstanding and entitled to vote;
(b) result in a breach or violation of, a default under, or the triggering
of any payment or other obligations pursuant to, or accelerate vesting under,
any of the Company stock option plans or Operating Partnership Unit option
plans or similar compensation plan or any grant or award made under any of the
foregoing, except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect;
(c) violate or conflict with any statute, regulation, judgment, order,
writ, decree or injunction applicable to the Company or its Subsidiaries,
except as would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect;
(d) except as set forth in Schedule 3.4(d), violate or conflict with or
result in a breach of any provision of, or constitute a default (or any event
which, with notice or lapse of time or both, would constitute a default) under,
or result in the termination or in a right of termination or cancellation of,
or accelerate the performance required by, or result in the creation of any Lien
upon any of the properties of the Company or its Subsidiaries under, or result
in being declared void, voidable or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust or any license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which the Company or its Subsidiaries is
a party, or by which the Company or its Subsidiaries or any of their properties
is bound or affected, except for any of the foregoing matters which would not
reasonably be expected to, individually or in the aggregate, result in a
Material Adverse Effect; or
(e) require any consent, approval or authorization of, or declaration,
filing or registration with, any Government Authority, other than any filings
required under the Securities Act of 1933, as amended (the "Securities Act"),
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
state securities laws ("Blue Sky Laws") (collectively, the "Regulatory
Filings"), and any filings required to be made with the Secretary of State of
The Commonwealth of Massachusetts, Maryland State Department of Assessments and
Taxation, or any national securities exchange on which the Company Common Stock
is listed, except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, and will not violate or
conflict with any Rule or Regulation of any national securities exchange on
which the Company Common Stock is listed, including, without limitation, the New
York Stock Exchange, Inc. Without limiting the foregoing, no filing under
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the Hart-Scott Rodino Antitrust Improvements Act of 1976 (the "HSR Act") is
required by virtue of 16.C.F.R., Parts 801 and 802.
Section 3.5 "Atlantic Tax Agreement." The Atlantic Tax Agreement, a true,
correct and complete copy of which is attached as Exhibit C hereto, is valid,
effective and binding on the parties thereto, subject to no defenses and no
default has occurred thereunder.
Section 3.6 "Atlantic Realty Trust." In reliance upon the Regulatory
Filings of Atlantic Realty Trust, the Company believes that Atlantic Realty
Trust has sufficient financial resources timely to meet its obligations under
the Tax Agreement and to the Company's knowledge, Atlantic Realty Trust has no
plans under which the net worth of Atlantic Realty Trust would be diminished to
an extent which would impair the ability of Atlantic Realty Trust to fulfill its
obligations under the Tax Agreement.
Section 3.7 "SEC and Other Documents, Financial Statements; Undisclosed
Liabilities." (a) The Company has delivered or made available to Buyer the
Company Proxy Statement, the registration statement of the Company filed in 1988
with the Securities and Exchange Commission (the "SEC") in connection with the
Company's initial public offering of Company Common Stock, and all exhibits,
amendments and supplements thereto (collectively, the "Company Registration
Statement"), and each registration statement, report, proxy statement or
information statement and all exhibits thereto prepared by it or relating to
its properties since the effective date of the Company Registration
Statement, which are set forth in Schedule 3.7(a), each in the form (including
exhibits and any amendments thereto) filed with the SEC (collectively, the
"Company Reports"). The Company Reports filed since May 31, 1996 and, to the
Company's knowledge, the Company Reports filed on or prior to May 31, 1996 were
filed with the SEC in a timely manner and constitute all forms, reports and
documents required to be filed by the Company under the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder (the
"Securities Laws"). As of their respective dates, the Company Reports filed
since May 31, 1996 and, to the Company's knowledge, the Company Reports filed on
or prior to May 31, 1996 (i) complied as to form in all material respects with
the applicable requirements of the Securities Laws and (ii) did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements made therein, in the light
of the circumstances under which they were made, not misleading. There is no
unresolved violation asserted by any Government Authority with respect to any of
the Company Reports filed since May 31, 1996 and, to the Company's knowledge,
the Company Reports filed on or prior to May 31, 1996.
(b) Each of the balance sheets included in or incorporated by reference
into the Company Reports filed since May 31, 1996 and, to the Company's
knowledge, the Company Reports filed on or prior to May 31, 1996 (including the
related notes and schedules) fairly presented the financial position of the
entity or entities to which it relates as of its date and each of the statements
of operations, stockholders' equity (deficit) and cash flows included in or
incorporated by reference into the Company Reports filed since May 31, 1996 and,
to the Company's knowledge, the Company Reports filed on or prior to May 31,
1996 (including any related notes and schedules) fairly presented the results of
operations, retained earnings or cash flows, as the case may be, of the entity
or entities to which it relates for the periods set forth
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<PAGE> 33
therein, in each case in accordance with United States generally accepted
accounting principles ("GAAP") consistently applied during the periods involved
except as may be noted therein and except, in, the case of the unaudited
statements, normal recurring year-end adjustments which would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(c) Except as and to the extent set forth in the Company Reports or any
Schedule hereto, to the Company's knowledge, none of the Company or any of
its Subsidiaries has any Liabilities (nor do there exist any circumstances)
that would, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
Section 3.8 "Litigation, Compliance With Law." (a) Except as disclosed in
Schedule 3.8(a), there are no Actions pending or, to the Company's knowledge,
threatened against the Company or any of its Subsidiaries that would,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, or which question the validity hereof or any action taken or to
be taken in connection herewith. Except as disclosed in Schedule 3.8(a), there
are no continuing orders, injunctions or decrees of any Government Authority to
which the Company or any of its Subsidiaries is a party or by which any of its
properties or assets are bound.
(b) Except as disclosed in Schedule 3.8(b) and except for the Tax Case, to
the Company's knowledge none of the Company or its Subsidiaries is in violation
of any current statute, rule, regulation, order, writ, decree or injunction of
any Government Authority or any body having jurisdiction over them or any of
their respective properties which, if enforced, would, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 3.9 "Absence of Certain Changes or Events." Except as disclosed in
the Company Reports filed with the SEC prior to the date hereof or in Schedule
3.9, since June 30, 1997, the Company and each of its Subsidiaries has conducted
its business only in the ordinary course of such business and has not acquired
any real estate or entered into any financing arrangements in connection
therewith, and there has not been (a) any change, circumstance or event that the
Company reasonably expects, individually or in the aggregate, would result in a
Material Adverse Effect, (b) any declaration, setting aside or payment of any
dividend or other distribution with respect to the Company Common Stock, except
in accordance with Section 5.9, (c) any commitment, contractual obligation,
borrowing, capital expenditure or transaction (each, a "Commitment") entered
into by the Company or any of its Subsidiaries, other than Commitments which
would not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect, or (d) any change in the Company's accounting
principles, practices or methods which would, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
Section 3.10 "Tax Matters; REIT and Partnership Status." (a) The Company
and each of its Subsidiaries has timely filed with the appropriate taxing
authority all material Tax Returns required to be filed by it or has timely
requested extensions and any such request has been granted and has not expired.
Each such Tax Return is true, complete and correct in all material
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<PAGE> 34
respects and true, complete and correct copies of all Tax Returns as to which
the statute of limitations has not run have been delivered to Buyer. The
Company and each of its Subsidiaries has paid within the time and manner
prescribed by law all material Taxes that are due and payable. The Company and
each of its Subsidiaries has properly accrued all Taxes for such periods
subsequent to the periods covered by such Tax Returns as required by GAAP.
Except as set forth on Schedule 3.10(a), none of the Company or any of its
Subsidiaries (i) has executed or filed with the IRS or any other taxing
authority any agreement now in effect extending the period for assessment or
collection of any Tax, or (ii) is a party to any pending action or proceedings
by any taxing authority for assessment or collection of any Tax, and no claim
for assessment or collection of any Tax has been asserted against it and to the
Company's knowledge no basis exists for any such claim or assessment. No claim
has been made by an authority in a jurisdiction where the Company or any of its
Subsidiaries does not file Tax Returns that it is or may be subject to taxation
by that jurisdiction. There are no Tax liens upon the assets of the Company or
any of its Subsidiaries other than liens for Taxes not yet due and payable.
Except as set forth on Schedule 3.10(a) there is no dispute or claim concerning
any Tax liability of the Company or any of its Subsidiaries, (i) claimed or
raised by any taxing authority in writing or (ii) as to which the Company or
any of its Subsidiaries has knowledge. The Company has not received a Tax
ruling or entered into a closing agreement with any Tax authority that would
have a continuing Material Adverse Effect after the Closing Date. No event,
transaction, act or omission has occurred which will result in the Company
becoming liable to pay or to bear any Tax as a transferee, successor or
otherwise which is primarily or directly chargeable or attributable to any
other person, firm or company which has not been properly accrued as required
by GAAP. The Company and each Subsidiary have no Liability (whether by reason
of any indemnity, warranty, tax sharing agreement or otherwise) to any other
person in respect of any actual, contingent or deferred liability of such
person for Taxes. The Company and each Subsidiary have complied (and will
continue to comply) in all material respects with the provisions of the Code
relating to the payment and withholding of Taxes, including, without
limitation, the withholding and reporting requirements under Code Sections 1441
through 1464, 3401 through 3606, and 6041 and 6049, as well as similar
provisions under any other laws, and have, within the time and in the manner
prescribed by law, paid over to the proper governmental authorities all amounts
withheld from amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party.
(b) The Company (i) has in its federal income tax return for its tax year
ended December 31, 1996 elected to be taxed as a real estate investment trust
("REIT") within the meaning of Section 856 of the Code (the "Election"), (ii)
with the exception of the Tax Case, such Election has remained in effect and
will continue to remain in effect for each of the Company's taxable years,
(iii) with the exception of the Tax Case has complied and will comply, with all
applicable provisions of the Code relating to a REIT, for each of its taxable
years, (iv) with the exception of the Tax Case has operated, and intends to
continue to operate, in such a manner as to qualify as a REIT for each of its
taxable years, (v) has not taken or omitted to take any action which could be
expected to result in a challenge to its status as a REIT, and, except as set
forth in Schedule 3.10(b)(i), to the Company's knowledge, no such challenge is
pending or threatened, and (vi) will not be rendered unable to qualify as a REIT
for federal income tax purposes as a consequence of the transactions
contemplated hereby. As of the date hereof, (i) the Company is a
"domestically-controlled" REIT within the meaning of Code Section
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897(h)(4)(B) and is not a "pension-held REIT" within the meaning of Section
856(h)(3)(D) of the Code, and (ii) to the Company's knowledge, all non-domestic
beneficial owners of Company Common Stock are set forth in Schedule
3.10(b)(ii). To the Company's knowledge, except as set forth in Schedule
3.10(b)(iii), no person or entity which would be treated as an "individual" for
purposes of Section 542(a)(2) of the Code (as modified by Section 856(h) of the
Code) owns or would be considered to own (taking into account the ownership
attribution rules under Section 544 of the Code, as modified by Section 856(h)
of the Code) in excess of 9.8% of the value of the outstanding equity interest
in the Company.
(c) Any amount or other entitlement that could be received (whether in cash
or property or the vesting of property) as a result of any of the transactions
contemplated hereby by any employee, officer, or director of the Company or the
Operating Partnership or any of their Affiliates who is a "disqualified
individual" (as such term is defined in proposed Treasury Regulation Section
1.280G-1) under any employment, severance or termination agreement, other
compensation arrangement or plan currently in effect would not be characterized
as an "excess parachute payment" (as such term is defined in Section 280G(b)(1)
of the Code).
(d) The disallowance of a deduction under Section 162(m) of the Code for
employee remuneration will not apply to any amount paid or payable by the
Company or any of its Subsidiaries under any contract, stock plan, program,
arrangement or understanding currently in effect.
(e) The Operating Partnership and each Subsidiary of the Company and the
Operating Partnership organized as a partnership (and any other Subsidiary
that files Tax Returns as a partnership for federal income tax purposes) has at
all times been and will continue to be classified as a partnership for federal
income tax purposes.
(f) To the extent required for the Company, Buyer or Kimco to maintain or
preserve its REIT status, all of the Operating Partnership's gross income,
including its proportionate share of the gross income of any partnership in
which it has an interest as a partner, is and will continue to be derived or
treated for federal income tax purposes as derived from the following sources:
(i) dividends; (ii) interest; (iii) rents from real property; (iv) gain from the
sale or other disposition of stock, securities, and real property (including
interests in real property and interests in mortgages on real property) which is
not stock in trade, inventory or other property held by the Operating
Partnership, or any partnership in which it holds an interest as a partner
primarily for sale to customers in the ordinary course of its trade or business.
(g) To the extent required for the Company, Buyer or Kimco to maintain or
preserve its REIT status, all leases entered into, or to be entered into by the
Operating Partnership, or any other partnership in which the Operating
Partnership is a partner, as well as any leases with respect to properties
acquired by the Operating Partnership, or any other partnerships in which the
Operating Partnership has a direct or indirect interest as a partner: (a) will
not provide for rents based on the net income or profits of any person; (b) will
not provide for the performance by such landlord of any services other than
those which are usually and customarily provided to tenants in connection with
occupancy only of rental property and are not services for the convenience of
individual tenants ("Qualified Services"); and (c) will not derive rental income
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<PAGE> 36
attributable to personal property in connection with a lease of real property
in excess of 10 percent of the total rent attributable to both the real and
personal property leased under such lease.
(h) To the extent necessary for the Company, Buyer or Kimco to maintain or
preserve its REIT status, any services which have been, are or will be rendered
to tenants of property which is owned, or for federal income tax purposes
is treated as owned, by the Operating Partnership, or any partnership in which
it holds an interest as a partner, are or will be Qualified Services.
(i) Any indebtedness with respect to the properties of the Operating
Partnership currently qualifies and will continue to qualify for the
exception from "acquisition indebtedness" set forth in Section 514(c)(9) of the
Code.
Section 3.11 "Compliance with Agreements." (a) With the exception of
matters for which the Company will be promptly indemnified by Atlantic Realty
Trust, neither the Company nor any of its Subsidiaries is, or at any Closing by
virtue of the transaction contemplated in or by reference in this Agreement
will be, in default under or in violation of any provision of its organization
documents (e.g., the Company Declaration of Trust, any Subsidiary's
declaration of trust or charter, the By-laws of the Company or any subsidiary,
the Partnership Agreement, the Amended Partnership Agreement, the partnership
agreement of any subsidiary, or equivalent documents), except for such defaults
or violations which would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(b) The Company and each of its Subsidiaries have filed all material
reports, registrations and statements, together with any amendments required to
be made with respect thereto, that they were required to be with any
Government Authority and all other material reports and statements required to
be filed by them, including any report or statement required to be filed
pursuant to the laws, rules or regulations of the United States, and have paid
all fees or assessments due and payable in connection therewith, except for such
failures to file or pay which would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. There is no
unresolved violation asserted by any regulatory agency of which the Company has
received written notice with respect to any report or statement relating to an
examination of the Company or any of its Subsidiaries which, if resolved in a
manner unfavorable to the Company or such Subsidiary, would, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
(c) The Company Reports or Schedule 3.11(c) set forth (i) a description of
all material indebtedness of the Company and each of its Subsidiaries, whether
unsecured, or secured or collateralized by mortgages, deeds of trust or other
security interests in the Company Properties or any other assets of the
Company and each of its Subsidiaries, or otherwise, and (ii) each Commitment
entered into by the Company or any of its Subsidiaries (including any guarantees
of any third party's debt or any obligations in respect of letters of credit
issued for the Company's or any Subsidiary's account) which may result in total
payments or liability in excess of $500,000, excluding Commitments made in the
ordinary course of business with a maturity of less than one year or that are
terminable on 30 days or less notice, and excluding
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<PAGE> 37
Commitments the breach of which would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. True and
complete copies of the foregoing have been delivered or made available to
Buyer. Neither the Company nor any of its Subsidiaries is in default, and, to
the Company's knowledge, no event has occurred which, with the giving of notice
or the lapse of time or both, would constitute a default, under any of the
documents described in clause (i) or (ii) of this paragraph or in respect of
any payment obligations thereunder except as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. All
joint venture and partnership agreements to which the Company or any of its
Subsidiaries is a party as of the date hereof are set forth in Schedule
3.11(c), all of which are in full force and effect as against the Company or
such Subsidiary and, to the Company's knowledge, as against the other parties
thereto, and none of the Company or any of its Subsidiaries is in default, and,
to the Company's knowledge, no event has occurred which, with the giving of
notice or the lapse of time or both, would constitute a default, with respect
to any obligations thereunder, except as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in Schedule 3.11(c), to the Company's knowledge, the other
parties to such agreements are not in breach of any of their respective
obligations thereunder, except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. To the
Company's knowledge, there is no condition with respect to the Company's
Subsidiaries (including with respect to the partnership agreements for the
Company's Subsidiaries that are partnerships) that would, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
(d) Except as disclosed in the Company Reports or any other Schedule hereto
and except for (i) agreements made in the ordinary course of business and (ii)
agreements the breach or non-fulfillment of which would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect,
Schedule 3.11(d) sets forth a complete and accurate list of all material
agreements entered into by the Company or any of its Subsidiaries as of the date
hereof relating to the development or construction of, additions or expansions
to, or management or leasing services for retail properties or other real
properties which are currently in effect and under which the Company or any of
its Subsidiaries currently has, or expects to incur, any material obligation. A
true and complete copy of each such agreement has been delivered to Buyer.
(e) Except as disclosed in Schedule 3.11(e) and in the Company Reports and
except for (i) agreements made in the ordinary course of business and (ii)
agreements the breach or non-fulfillment of which would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect,
Schedule 3.11(e) sets forth a complete and accurate list of all material
agreements entered into by the Company as of the date hereof which are not
listed in any other Schedule hereto, including the material Debt Instruments.
Each agreement set forth in Schedule 3.11(e) is in full force and effect as
against the Company and, to the Company's knowledge, as against the other
parties thereto, no payments, if any, thereunder are delinquent, and no notice
of default thereunder has been sent or received by the Company or any of its
Subsidiaries, except where the same would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. There does not
exist under any agreement set forth in Schedule 3.11(e) any default, and, to the
Company's knowledge, no event has occurred
27
<PAGE> 38
which, with notice or lapse of time or both, would constitute such a default,
except as would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect. A true and complete copy of each such
agreement has been delivered to Buyer.
(f) Schedule 3.11(f) sets forth a complete and accurate list of all
agreements and policies of the Company in effect on the date hereof relating to
transactions with Affiliates and potential conflicts of interest, including
such agreements with and such policies relating to Atlantic Realty Trust and
related entities. Each agreement or policy set forth in Schedule 3.11(f) is in
full force and effect, and the Company, each of its Subsidiaries, and, to the
Company's knowledge, the other parties thereto are in compliance with such
agreements and policies, or such compliance has been waived by the Company's
Board as set forth in Schedule 3.11(f). A true and complete copy of each such
agreement or policy has been delivered to Buyer.
Section 3.12 "Financial Records; Company Declaration of Trust and By-laws;
Corporate Records." (a) The books of account and other financial records of the
Company since May 31, 1996, and to the Company's knowledge, prior to such date
and each of its Subsidiaries are in all respects true and complete, since
May 31, 1996, and to the Company's knowledge, prior to such date have been
maintained in accordance with good business practices, and are accurately
reflected in all respects in the financial statements included in the Company
Reports, except, in each case, as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(b) The Company has previously delivered or made available to Buyer true
and complete copies of the Company Declaration of Trust and the By- laws of the
Company, as amended to date, the Partnership Agreement, and Amended Partnership
Agreement, and the charter, by-laws, organization documents, partnership
agreements and joint venture agreements of the Subsidiaries, and all amendments
thereto. All such documents are listed in Schedule 3.12(b).
(c) The minute books and other records of corporate or partnership
proceedings of the Company and each of its Subsidiaries have been made
available to Buyer, and contain in all material respects accurate records of all
meetings and accurately reflect in all material respects all other corporate
action of the stockholders and directors and any committees of the Board of
the Company and its Subsidiaries which are corporations and all actions of the
partners of the Operating Partnership and Subsidiaries which are partnerships,
and except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
Section 3.13 "Properties." (a) Schedule 3.13(a)(i) sets forth a complete
and accurate list of all real property owned by the Company or any of its
Subsidiaries (collectively, and with all buildings, structures and other
improvements located thereon and all easements, rights and other appurtenances
thereto, the "Company Properties"). To the Company's knowledge, the Operating
Partnership or, in the case of Company Properties owned by Subsidiaries, the
Subsidiary or trustee holding legal title solely for the benefit of a Subsidiary
indicated in Schedule 3.13(a)(i), owns good fee simple title to each of the
Company Properties, in each case free and clear of any mortgage lien or deed of
trust except for Permitted Liens or as disclosed in Schedule 3.13(a)(i).
Schedule 3.13(a)(ii) sets forth a complete and accurate list of all real
28
<PAGE> 39
property leased by the Company or any of its subsidiaries (the "Operating
Leases"). Except for matters which do not, individually or in the aggregate,
have a Material Adverse Effect, each Operating Lease is valid and subsisting
and in full force and effect as against the landlord, with no default by the
Company or any of its Subsidiaries existing thereunder.
(b) To the Company's knowledge, except as disclosed in Schedule 3.13(b),
all of the Company Properties are in compliance with Laws and Regulations
(hereinafter defined) imposed or promulgated by law or any Governmental
Authority which are typical for similar retail properties and none
materially interferes with, impairs, or is violated by, the existence of
any building or other structure or improvement which constitutes a part of, or
the present use, occupancy or operation (or, if applicable, development) of the
Company Properties taken as a whole, and such matters do not, individually or in
the aggregate, have a Material Adverse Effect. Without limiting the generality
of the foregoing, there is no pending, or to the Company's knowledge, threatened
proceeding, action or suit, with respect to all or part of the Company
Properties alleging any violation of any applicable law, regulation, rule,
ordinance or code (collectively, "Laws and Regulations") which, if adversely
decided, would, individually or in the aggregate, have a Material Adverse
Effect.
(c) The Company has provided to Buyer an accurate rent roll for each
Company Property (each in the form of Exhibit N) as at August 1, 1997 (the "Rent
Roll"), which identifies each lease of space in each Company Property
(collectively, the "Company Leases"). With respect to each of the Company
Leases listed in Schedule 3.13(c) (collectively, the "Material Company
Leases"), except as set forth in Schedule 3.13(c) and except for matters which
do not, individually or in the aggregate, have a Material Adverse Effect, (i)
each of the Material Company Leases is valid and subsisting and in full force
and effect as against the Operating Partnership or the Subsidiary, as
applicable, and, to the Company's knowledge, as against the tenant thereunder,
(ii) none of the Company or any of its Subsidiaries has received any written
notice (which remains outstanding) from any tenant under any Material Company
Lease of the intention of such tenant to vacate, (iii) except as set forth in
Schedule 3.13(c), no tenant under any of the Material Company Leases has any
purchase options or kick-out rights, and (iv) except as set forth in Schedule
3.13(b), no tenant under any Material Company Lease has any right of early
termination (other than in the case of casualty, condemnation or default by
landlord). The Company has provided to Buyer an accurate delinquency report, as
at July 31, 1997, for each Material Company Lease.
(d) Except as set forth in the Rent Roll or in Schedule 3.13(d) hereto, and
except for any certain rights of first refusal which may be set forth in the
sections of the partnership agreements referenced in Schedule 3.4(d) and which
relate to partnerships in which the Company, directly or indirectly, owns less
than a 100% interest, none of the Company or any of its Subsidiaries has granted
any outstanding options or has entered into any outstanding contracts with
others for the sale, mortgage, pledge, hypothecation, assignment, or other
transfer of all or any part of any Company Properties, and no person has any
right or option to acquire, or (except with respect to any Company Leases that
are not Material Company Leases) right of first refusal with respect to, the
Company's or any of its Subsidiaries' interest in any Company Property or any
part thereof.
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<PAGE> 40
(e) Schedule 3.13(e) contains a list of each Company Property for which the
Company has a valid and enforceable option or other agreement to purchase
(collectively, the "Development Properties") and a brief description of the
development or rehabilitation intended by the Company or any Subsidiary to
be carried out or completed thereon (collectively, the "Projects"), including
any budget and development or rehabilitation schedule therefor prepared by or
for the Company or any Subsidiary (collectively, the "Development Budget and
Schedule"). Other than with respect to the Development Properties, no similar
project is under consideration as to which the Company will expend more than
$50,000 before subjecting the property under consideration to such an option or
agreement to purchase.
(f) Schedule 3.13(f) sets forth a complete and accurate list of all
material commitments, signed letters of intent or similar written or oral
understandings which the parties have determined shall be reduced to writing
made or entered into between the Company and another person or any of its
Subsidiaries as of the date hereof (i) to lease any space larger than 25,000
rentable square feet at any of the Company Properties, (ii) to sell, mortgage,
pledge or hypothecate any Company Property, or (iii) to purchase any real
property, which, in any such case, has not yet been reduced to a written lease
or contract, and sets forth with respect to each such commitment, signed letter
of intent or other understanding the principal terms thereof. No commitments,
letters of intent or similar written understandings as to the matters referred
to above and not set forth on Schedule 3.13(f) have been entered into by the
Company or any of its Subsidiaries other than in the ordinary course of conduct
of the Company's business.
(g) The Company and each of its Subsidiaries have good and sufficient title
to all the personal and non-real properties and assets reflected in their books
and records as being owned by them (including those reflected in the balance
sheets of the Company and its Subsidiaries as of June 30, 1997, except as since
sold or otherwise disposed of in the ordinary course of business), free and
clear of all Liens, except for Permitted Liens which are not, individually or in
the aggregate, reasonably expected to have a Material Adverse Effect.
(h) There is no pending or, to the Company's knowledge, threatened
proceeding, suit or action against the Company which, if adversely decided,
would prevent or materially delay the consummation of the transaction
contemplated herein or materially adversely affect the Company Property.
(i) There is no material misstatement or omission in the foregoing
representations except for such matters as are existing in the ordinary course
of the conduct of the Company's business and which do not, individually or in
the aggregate, have a Material Adverse Effect.
Section 3.14 "Environmental Matters." (a) To the Company's knowledge, each
of the Company and its Subsidiaries has obtained, and now maintains as currently
valid and effective, all material permits required of it under the Environmental
Laws (the "Environmental Permits") in connection with the existing operation of
its businesses and properties, all of which are listed in Schedule 3.14(a)(i).
To the Company's knowledge, except as disclosed in the Executive Summaries of
the Company Environmental Reports or in Schedule 3.14(a)(i), each of the
Company and its Subsidiaries, and each Company Property is in compliance with
all terms and conditions of the Environmental Permits and all Environmental
Laws, except (i) to an extent
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<PAGE> 41
which would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect and (ii) matters relating to the spill of
gasoline at the site of the Shell Food Mart (the "Shell Site") at Jackson
Crossing Shopping Center in Jackson, Michigan. The Shell Site was the scene of
two gasoline spills as described in the Phase I Environmental Assessment for
the Jackson Crossing Shopping Centers, prepared for Ramco Gershenson, Inc. and
RPS Realty Trust by McLaren/Hart Engineers Midwest, Inc., Project No.
07.0803063.001, February 6, 1995, a portion of which is attached hereto in
Schedule 3.14(a)(ii). The operator (Walters-Demmick Petroleum, Inc.) and prior
owner of the Shell Site have executed agreements containing indemnification
provisions in favor of the Company which are attached in Schedule 3.14(a)(ii)
(such agreements being in full force and effect). To the Company's knowledge,
consultants have been retained by the operator with regard to efforts to
remediate the Shell Site. Remedial action has been initiated by the operator.
A property owner adjacent to the Shell Site has initiated litigation against
the Company, the Shell Site operator and the prior owner with regard to the
effect of the spills on the adjacent property. That matter is pending. Except
as described above, the Company has no knowledge of any circumstances that may
prevent or interfere with such compliance in the future.
(b) Each of the Company and its Subsidiaries has given Buyer access to all
files in its possession or subject to its control containing material written
information and written communications (whether from a Government Authority,
citizens' group, employee or other person) regarding (x) alleged or suspected
noncompliance of any of the Company Properties with any Environmental Laws or
Environmental Permits or (y) alleged or suspected liability of the Company or
its Subsidiaries under any Environmental Law. No such noncompliance or
liability would, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
(c) To the Company's knowledge, no actions by a Government Authority have
been taken or are in process concerning Environmental Claims which are
reasonably likely to subject any Company Property to environmental liens or
other environmental related encumbrances.
(d) Except as described in Section 3.14(a), no Environmental Claim with
respect to the operations or the businesses of the Company or its Subsidiaries,
or with respect to the Company Properties, has been asserted or, to the
Company's knowledge, threatened, and remains outstanding and, to the Company's
knowledge, no circumstances exist with respect to the Company or its
Subsidiaries or the Company Properties that would reasonably be expected to
result in any Environmental Claim being asserted, in any such case, against (i)
the Company or its Subsidiaries, or (ii) to the Company's knowledge, any person
whose liability for any Environmental Claims the Company or its Subsidiaries has
or may have retained or assumed either contractually or by operation of law,
except, in the case of each of the foregoing, to the extent the same would not,
individually or in the aggregate, reasonably be expected to have a Material
Advance Effect.
(e) Except as disclosed in Schedule 3.14(e) or set forth in the Executive
Summaries of the Company Environmental Reports, (i) none of the Company or its
Subsidiaries has been notified or, to the Company's knowledge, anticipates
being notified of potential responsibility in connection with any site that has
been placed on, or proposed to be placed on, the National
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Priorities List or its state or foreign equivalents pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., or analogous state or foreign
laws, (ii) to the Company's knowledge, no Materials of Environmental Concern
(other than materials which are not introduced into the locale by or as a
result of human intervention) are present on, in or under any Company Property
in a manner or condition that is reasonably likely to give rise to an
Environmental Claim which would, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect, (iii) to the Company's
knowledge, none of the Company or its Subsidiaries has Released or arranged for
the Release of any Materials of Environmental Concern at any location to an
extent or in a manner which, individually or in the aggregate, would reasonably
be expected to result in a Material Adverse Effect, and (iv) to the Company's
knowledge, no underground storage tanks, disposal areas (except disposal
facilities customarily used in connection with shopping center operations) or
disused industrial equipment is present at any Company Property.
(f) Schedule 3.14(f) contains a list of the most recent Phase I (as defined
by ASTM Standard 1527-97) environmental report prepared for the Company or its
Subsidiaries or otherwise in the possession of any of them with respect to the
environmental condition of any Company Property (collectively, the "Company
Environmental Reports"). Copies of the executive summaries or conclusions
included in the Company Environmental Reports (collectively, the
"Executive Summaries of the Company Environmental Reports") have previously been
delivered by the Company to Buyer. Copies of each of the Company Environmental
Reports will be delivered or made available to Buyer within five Business Days
from the date hereof. Except as disclosed in Schedule 3.14(a)(i) and (ii) or in
the Company Environmental Reports, the Executive Summaries of the Company
Environmental Reports disclose all matters known to the Company in respect of
the environmental condition (including violations of Environmental Laws,
Environmental Claims and the presence or Release of any Materials of
Environmental Concern) of the Company Properties that are individually or in the
aggregate, reasonably expected to result in a Material Adverse Effect (it being
understood, however, that reference in the Executive Summaries of the Company
Environmental Reports to other environmental reports, investigations,
assessments or other documents shall not constitute disclosure of the contents
thereof except to the extent such contents are fully in the Executive Summaries
of the Company Environmental Reports).
(g) For purposes hereof, the terms listed below shall have the following
meanings:
(i) "Claim" shall mean all actions, causes of action, suits,
controversies,promises, trespasses, damages, judgments, executions, claims,
liabilities and demands whatsoever, in law or equity.
(ii) "Environmental Claim" shall mean any outstanding Claim
investigation or notice (written or oral) by any person alleging potential
liability (including potential liability for investigatory costs, cleanup
costs, governmental response costs, natural resources damages, property
damages, personal injuries or fatalities, or penalties) arising out of,
based on or resulting from (A) the presence, generation, transportation,
treatment, use, storage, disposal or Release of Materials of Environmental
Concern or the threatened Release of Materials of Environmental Concern at
any
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location, or (B) activities or conditions forming the basis of any
violation, or alleged violation of, or liability or alleged liability
under, any Environmental Law.
(iii) "Environmental Laws" shall mean applicable federal, state, local,
provincial, municipal and foreign laws, ordinances, rules, by-laws, orders,
statutes, regulations, agreements with federal, state, local, provincial or
municipal authorities, treaties, relating to the pollution or protection of
the environment or of flora or fauna or their habitat or of human health and
safety, or to the cleanup or restoration of the environment, including, but
not limited to, any laws relating to (A) generation, treatment, storage,
disposal or transportation of wastes, emissions or discharges or protection
of the environment from the same, and (B) exposure of persons to, or Release
or threat of Release of, Materials of Environmental Concern.
(iv) "Materials of Environmental Concern" shall mean all chemicals,
pollutants, contaminants, wastes, toxic substances, petroleum or any
fraction thereof, petroleum products and hazardous substances (as defined in
Section 101(14) of CERCLA, 42 U.S.C. Section 6601(14)), or solid or
hazardous wastes as now defined and regulated under any Environmental Laws.
(v) "Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration.
Section 3.15 "Employees and Employee Benefit Plans." (a) Schedule 3.15(a)
sets forth a complete and accurate list of all employment agreements with
employees of the Company or any of its Subsidiaries. Except for the employees
who are parties to such employment agreements, all of the employees of the
Company and each of its Subsidiaries are employed on an at-will basis (except
for restrictions or limitations on the at-will basis of such employees imposed
by general principles of law or equity).
(b) The Company Reports or Schedule 3.15(b) sets forth a complete and
accurate list of all Employee Benefit Plans and all material Benefit
Arrangements which affect Employees of the Company or any of its Subsidiaries
(the "Company Plans"). With respect to each Company Plan, the Company has
made available (including for copying) to Buyer true and complete copies of (i)
the plans and related trust documents and amendments thereto, (ii) the most
recent summary plan descriptions, if any, and the most recent annual report, if
any, and (iii) the most recent actuarial valuation (to the extent applicable).
(c) With respect to each Company Plan, (i) the Company and each of its
Subsidiaries is in compliance in all material respects with the terms of each
Company Plan and with the requirements prescribed by all applicable statutes,
orders or governmental rules or regulations, (ii) there is no, and never has
been any, Pension Plan included in the Company Plans, and (iii) none of the
Company or any of its Subsidiaries has any funding commitment or other
liabilities except as reserved for in the financial statements in or
incorporated by reference into the Company Reports, and, in the case of clause
(i) through (iii), except for such matters as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
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(d) None of the Company or any of its Subsidiaries has made any commitment
to establish any new Employee Benefit Plan, to modify any Employee Benefit
Plan, or to increase benefits or compensation of Employees of the Company or
any of its Subsidiaries (except for normal increases in compensation consistent
with past practices), and to the Company's knowledge, no intention to do so has
been communicated to Employees of the Company or any of its Subsidiaries.
(e) There are no pending or, to the Company's knowledge, anticipated claims
against or otherwise involving any of the Company Plans or any fiduciaries
thereof with respect to their duties to the Plans and no suit, action or other
litigation (excluding claims for benefits incurred in the ordinary course of
Company Plan activities) has been brought against or with respect to any such
Company Plans.
(f) Neither the Company, the Operating Partnership or any entity under
"common control" with the Company or the Operating Partnership within the
meaning of Section 4001 of ERISA has contributed to, or been required to
contribute to, any "multiemployer plan" (as defined in Section 3(37) and
4001(a)(3) of ERISA) and neither the Company, the Operating Partnership, or any
ERISA Affiliate of either of the Company or the Operating Partnership
maintains, has maintained, or is or has been required to contribute to any
Pension Plan subject to Title IV of ERISA or to Section 302 of ERISA or Section
412 or 4971 of the Code.
(g) Except as set forth on Schedule 3.15(g), the Company and its
Subsidiaries do not maintain or contribute to any plan or arrangement which
provides or has any liability to provide life insurance, medical or other
employee welfare benefits to any Employee or former Employee upon his
retirement or termination of employment and, to the Company's knowledge, the
Company and its Subsidiaries have never represented, promised or contracted
(whether in oral or written form) to any employee or former employee that such
benefits would be provided.
(h) For purposes hereof, "Employee Benefit Plans" means each and all
"employee benefit plans" as defined in Section 3(3) of ERISA maintained or
contributed to by a party hereto or in which a party hereto participates or
participated and which provides benefits to Employees, including (i) any such
plan that are "employee welfare benefit plans" as defined in Section 3(l) of
ERISA, including retiree medical and life insurance plans ("Welfare Plans"),
and (ii) any such plans that constitute "employee pension benefit plans" as
defined in Section 3(2) of ERISA ("Pension Plans"). "Benefit Arrangements"
means life and health insurance, hospitalization, savings, bonus, deferred
compensation, incentive compensation, holiday, vacation, severance pay, sick
pay, sick leave, disability, tuition refund, service award, company car,
scholarship, relocation, patent award, fringe benefit, individual employment,
consultancy or severance contracts and other polices or practices of a party
hereto providing employee or executive compensation or benefits to Employees,
other than Employee Benefit Plans. "Employees" mean all current employees,
former employees and retired employees of a party hereto or any of its
Subsidiaries, including employees on disability, layoff or leave status.
"Controlled Group Liability" means any and all liabilities under (i) Title IV
of ERISA, (ii) Section 302 of ERISA, (iii) Sections 412 and 4971 of the Code,
(iv) the continuation coverage requirements of Section 601 et seq, of ERISA and
Section 4980B of the Code, and (v) corresponding or similar
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provisions of foreign laws or regulations, other than such liabilities that
arise solely out of, or relate solely to, the Plans.
(i) With respect to any Pension Plan, Welfare Plan or Benefit Arrangement,
there does not now exist, nor do any circumstances exist that could result in,
any Controlled Group Liability that would be a liability of the Company
following the Closing. Without limiting the generality of the foregoing,
neither the Company nor any ERISA Affiliate has engaged in any transaction
described in Section 4069 or Section 4212(c) of ERISA.
(j) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (either alone or in
conjunction with any other event) result in, cause the accelerated vesting or
delivery of, or increase the amount or value of, any payment or benefit to any
employee of the Company, except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
Section 3.16 "Labor Matters." Except as set forth in Schedule 3.16, none of
the Company or any of its Subsidiaries is a party to, or bound by, any
collective bargaining agreement, contract or other agreement or understanding
with a labor union or labor union organization. Except for the matters set
forth in Schedule 3.16 (none of which matters would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect), there is
no unfair labor practice or labor arbitration proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries. To the knowledge of the Company, there are no organizational
efforts with respect to the formation of a collective bargaining unit presently
being made or threatened involving employees of the Company or any of its
Subsidiaries.
Section 3.17 "Affiliate Transactions." Schedule 3.17 sets forth a complete
and accurate list of all transactions, series of related transactions or
currently proposed transactions or series of related transactions entered into
by the Company or any of its Subsidiaries since September 30, 1996 which were
not entered into in the ordinary course of business and are of the type
required to be disclosed by the Company pursuant to Item 404 of Regulation S-K
of the Securities Laws. A true and complete copy of all agreements or
contracts relating to any such transaction has been made available to Buyer.
Section 3.18 "Insurance." The Company and the Operating Partnership
maintain insurance policies covering the assets, business, equipment,
properties, operations, employees, officers and directors of the Company and
each of its Subsidiaries (collectively, the "Insurance Policies" ) which are
of a type and in amounts customarily carried by persons conducting businesses
similar to those of the Company and the Operating Partnership. There is no
material claim by the Company or any of its Subsidiaries pending under any of
the material Insurance Policies as to which coverage has been questioned, denied
or disputed by the underwriters of such policies.
Section 3.19 "Proxy Statement." The Proxy Statement and all of the
information included or incorporated by reference therein (other than any
information supplied or to be supplied by Buyer, Kimco and the Advancing Party
for inclusion or incorporation by reference
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therein) will not, as of the date such Proxy Statement is first mailed to the
shareholders of the Company and as of the time of the meeting of the
shareholders of the Company in connection with the transactions contemplated
hereby, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made,
not misleading. The Proxy Statement will comply as to form in all material
respects with the provisions of the Exchange Act and the rules and regulations
promulgated by the SEC thereunder.
Section 3.20 "Maryland Takeover Law." The terms of Section 3-602 and
Subtitle 7 of Title 3 of the Corporations & Associations Code of Maryland will
not apply to Buyer, the Advancing Party, Kimco, any assignee of Buyer, the
Advancing Party or Kimco, any Units Purchase or Stock Purchase, the
Reorganization, the Buyer Reorganization or any other transaction contemplated
hereby.
Section 3.21 "Vote Required." The affirmative vote of the holders of a
majority of the outstanding shares of Company Common Stock entitled to vote
hereon and duly present in person or by proxy at a meeting duly called to vote
hereon is the only vote of the holders of any class or series of the Company's
capital stock necessary to approve this Agreement, the Registration Rights
Agreement, the Reorganization Documents, the Amended Company Declaration, the
Buyer Reorganization Agreement, and the transactions contemplated hereby and
thereby, including, without limitation, the Reorganization and the Buyer
Reorganization.
Section 3.22 "Brokers or Finders." No agent, broker, investment banker or
other firm or person, including any of the foregoing that is an Affiliate of
the Company, is or will be entitled to any broker's or finder's fee or any
other commission or similar fee from the Company in connection with this
Agreement or any of the transactions contemplated hereby for which Buyer will
be responsible.
Section 3.23 "Knowledge Defined." As used herein, the phrase "to the
Company's knowledge" (or words of similar import) means the actual, unimputed
knowledge of the members of the Board of Trustees of Ramco-Gershenson
Properties Trust and of those other individuals identified in Schedule 3.23,
and includes any facts, matters or circumstances set forth in any written
notice from any Government Authority or any other material written notice
received by Ramco-Gershenson Properties Trust or any Subsidiary, and also
including any matter of which Buyer informs Ramco-Gershenson Properties Trust
in writing. The members of the Board of Trustees of Ramco-Gershenson
Properties Trust and the individuals identified in Schedule 3.23 constitute all
relevant persons in Ramco-Gershenson Properties Trust who know of the facts
being represented.
Section 3.24 "Disclosure of Facts." To the Company's knowledge there are no
facts peculiar to the Company or the Operating Partnership that the Company has
not disclosed to Buyer and the Advancing Party that materially and adversely
affect or, insofar as the Company reasonably can foresee, will materially and
adversely affect, the business, financial condition, assets, results of
operations or prospects of the Company, the Subsidiaries, or the Operating
Partnership.
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Section 3.25 "Construction of Material Adverse Effect." For purposes of the
construction of any representation and warranty in this Section 3, and as to
the accuracy thereof, the term "Material Adverse Effect" shall be considered in
each and every event on an aggregate basis with all other representations and
warranties which contain an exception for Material Adverse Effect such that, if
and when one or more of such representations and warranties, considered in the
aggregate, prove to be inaccurate to the extent that either of the amounts
established in the definition of Material Adverse Effect is exceeded, then all
such representations and warranties which are subject to exception based on
Material Adverse Effect shall, if inaccurate in any respect, be deemed to be
inaccurate without regard to an exception for Material Adverse Effect and the
amount or amounts involved in each such inaccuracy shall be determined as if no
such exception was present.
Section 3.26 "JCP Realty." The number of Operating Partnership Units
currently held by JCP Realty is 89,063.
Section 3.27 "Formation of Maryland Trust." The Company has caused to have
been formed the Maryland Trust in Maryland and has caused it to enter into the
Joinder Agreement.
Section 3.28 "Business of Maryland Trust." The Maryland Trust has no
obligations, Liabilities and does not carry on any activities, and until the
Reorganization will not incur any obligations or Liabilities or conduct any
activities.
ARTICLE 4
Representations and Warranties of Buyer and the Advancing Party
Buyer and the Advancing Party hereby severally and not jointly represent and
warrant to the Company as follows:
Section 4.1 "Organization." (a) Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Maryland.
Buyer has all requisite corporate power and authority to own, operate, lease
and encumber its properties and carry on its business as now conducted, and to
enter into this Agreement, the Registration Rights Agreement, the
Buyer/Colorado Sharing Agreement, the Buyer/Kimco Share Purchase Agreement and
the Buyer Reorganization Agreement, and to perform its obligations hereunder
and thereunder.
(b) Based solely upon representations made by Kimco to the Buyer in the
Buyer/Kimco Share Purchase Agreement and without independent investigation by
Buyer, Kimco is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland, and has all requisite
organizational power and authority to open, operate, lease and encumber its
properties and carry on its business as now conducted, and to enter, and
perform the Buyer/Kimco Share Purchase Agreement. A true, complete and correct
copy of the Buyer/Kimco Share Purchase Agreement is attached as Exhibit E.
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(c) The Advancing Party is composed of (i) the Colorado Investor, (ii)
Stichting Pensionfonds ABP, (iii) Stichting Bedrijspensioenfonds Voor De
Metaalnijverheid, (iv) The Morgan Stanley Real Estate Special Situations Funds I
and II, L.P., and (v) MS Real Estate Special Situations Inc.
(d) MSAM is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. MSAM has all requisite power
and authority to own and operate its properties and carry on its business as
now conducted. MSAM is duly authorized to enter into this Agreement and to
consummate the transactions contemplated hereby on behalf of the Advancing
Party.
Section 4.2 "Due Authorization." The execution, delivery and performance
of this Agreement, the Registration Rights Agreement, the Buyer/Colorado Sharing
Agreement, the Buyer Reorganization Agreement and the Buyer/Kimco Share Purchase
Agreement have been duly and validly authorized by all necessary corporate
action on the part of Buyer. MSAM is duly authorized to enter into and perform
this Agreement, the Registration Rights Agreement, the Buyer/Colorado Sharing
Agreement, the Buyer Reorganization Agreement and the Buyer/Kimco Share Purchase
Agreement, on behalf of itself and the Advancing Party. This Agreement has been
duly executed and delivered by each of Buyer and MSAM on behalf of the Advancing
Party and constitutes the valid and legally binding obligations of Buyer and the
Advancing Party, enforceable against Buyer or the Advancing Party, as the case
may be, in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights or
general principles of equity.
Section 4.3 "Conflicting Agreements and Other Matters." Neither the
execution and delivery of this Agreement, the Registration Rights Agreement,
the Buyer/Colorado Sharing Agreement, the Buyer Reorganization Agreement and
the Buyer/Kimco Share Purchase Agreement nor the performance by Buyer or MSAM on
behalf of the Advancing Party, as the case may be, of its obligations hereunder
will conflict with, result in a breach of the terms, conditions or provisions
of, constitute a default under, or require any consent, approval or other action
by or any notice to or filing with any Government Authority pursuant to, the
organizational documents or agreements of Buyer, MSAM or any member of the
Advancing Party, as the case may be, or any agreement, instrument, order,
judgment, decree, statute, law, rule or regulation by which Buyer or MSAM, as
the case may be, is bound, except for filings with Governmental Authorities
which have been accomplished and after any Closing to the extent required under
Section 13(d) of the Exchange Act.
Section 4.4 "Acquisition for Investment, Sophistication, Source of Funds."
(a) Buyer is acquiring the Preferred Units being purchased by it, including
those purchased on behalf of the Colorado Investor and MSAM, on behalf of
the Advancing Party, and Kimco will be acquiring the Company Preferred Stock
being received in the Buyer Reorganization or purchased by it, in each case, for
its own account for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof. Neither Buyer, MSAM, the Advancing
Party nor Kimco has a present intention or plan to effect any distribution of
Preferred Units or shares of Company Preferred Stock, provided that the
disposition of Preferred Units and Company Common Stock owned by Buyer and MSAM
on behalf of the Advancing Party, the
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Colorado Investor and Kimco shall at all times be and remain within its
respective control, subject to the provisions of this Agreement and the
Registration Rights Agreement. Buyer, Kimco and the Advancing Party are each
able to bear the economic risk of the acquisition of Preferred Units and
Company Preferred Stock pursuant hereto and can afford to sustain a total loss
on such investment, and MSAM, on its own behalf and on that of Buyer and the
other persons included in the Advancing Party and Kimco has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the proposed investment, and therefore has the capacity
to protect the interests of Buyer, the Advancing Party and Kimco in connection
with the acquisition of Preferred Units and Company Preferred Stock pursuant
hereto.
(b) Subject to the provisions of Section 10.1, at the Initial Closing and
at each subsequent Closing, the Advancing Party, shall have available and
advance to Buyer all of the funds necessary to satisfy Buyer's obligations
hereunder and to pay any related fees and expenses in connection with the
foregoing.
Section 4.5 "Proxy Statement." None of the information supplied or to be
supplied by Buyer and MSAM on behalf of itself and the Advancing Party for
inclusion or incorporation by reference in the Proxy Statement will, as of the
date the Proxy Statement is first mailed to the shareholders of the Company
and as of the time of the meeting of the shareholders of the Company in
connection with the transactions contemplated hereby, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
Section 4.6 "Brokers or Finders." No agent, broker, investment banker or
other firm or person, including any of the foregoing that is an Affiliate of
Buyer or the Advancing Party, is or will be entitled to any broker's or finder's
fee or any other commission or similar fee from Buyer or the Advancing Party in
connection with this Agreement or any of the transactions contemplated hereby
for which the Company will be responsible.
Section 4.7 "Buyer Reorganization." The Buyer Reorganization will not
cause the Company to incur any Liabilities, except that transactional costs
relating to the Buyer Reorganization paid or incurred by the Company or its
Operating Partnership will be for the account of the Company.
ARTICLE 5
Covenants Relating to Closings
Section 5.1 "Taking of Necessary Action." (a) Each party hereto agrees to
use its commercially reasonable best efforts promptly to take or cause to be
taken all action and promptly to do or cause to be done all things necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement, the Amended
Partnership Agreement, the Reorganization Documents, the Buyer
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Reorganization Agreement, and the Registration Rights Agreement, including,
without limitation, the Reorganization, the adoption, and accomplishment of all
attendant filings to cause to be in full force and effect, the Amended Company
Declaration, and the Buyer Reorganization, subject to the terms and conditions
hereof and thereof.
(b) As promptly as practicable after the date hereof, the Company shall
prepare and file with the SEC a preliminary proxy statement (the "Proxy
Statement") in substantially the form attached hereto as Exhibit O, with such
changes as shall be proposed by the staff of the SEC or by the Company upon
advice of counsel and approved by Buyer (such approval not to be unreasonably
withheld or delayed), by which the Company's stockholders will be asked to
approve the Reorganization, the Buyer Reorganization, the Amended Company
Declaration, the issuance of shares of Company Preferred Stock contemplated
hereby, and any other matter as to which shareholder approval is necessary or
convenient in order to consummate the transactions contemplated in this
Agreement or in the agreements referenced herein. The Proxy Statement as
initially filed with the SEC, as it may be amended and refiled with the SEC and
as it may be mailed to the Company's shareholders, shall be in form and
substance reasonably satisfactory to Buyer and the Advancing Party. The Company
shall use its reasonable efforts to respond to any comments of the SEC, and to
cause the Proxy Statement to be mailed to the Company's shareholders at the
earliest practicable time. As promptly as practicable after the date hereof,
the Company shall prepare and file any other filings required under the Exchange
Act, the Securities Act or any other federal, state or local laws relating to
this Agreement and the transactions contemplated hereby, (the "Other Filings"),
and Buyer shall prepare and file any filings required by the HSR Act. The
Company will notify Buyer promptly of the receipt of any comments from the SEC
or its staff and of any request by the SEC or its staff or any other government
officials for amendments or supplements to the Proxy Statement or any Other
Filing or for additional information and will supply Buyer with copies of all
correspondence between the Company or any of its representatives, on the one
hand, and the SEC, or its staff or any other government officials, on the other
hand, with respect to the Proxy Statement or any Other Filing. The Proxy
Statement and any Other Filing shall comply in all material respects with all
applicable requirements of law. Buyer shall provide the Company all information
about Buyer required to be included or incorporated by reference in the Proxy
Statement or any Other Filing and shall otherwise cooperate with the Company in
taking the actions described in this paragraph. Whenever any event occurs which
is required to be set forth in an amendment or supplement to the Proxy Statement
or any Other Filing, the Company or Buyer, as the case may be, shall promptly
inform the other party of such occurrence and cooperate in filing with the SEC
or its staff or any other government officials, and/or mailing to shareholders
of the Company, such amendment or supplement. Subject to the provisions of
Section 5.7, the Proxy Statement shall include the recommendation of the Board
of the Company that the shareholders of the Company vote in favor of and approve
the Reorganization, the Buyer Reorganization, the Amended Company Declaration,
the issuance of Company Preferred Stock pursuant to this Agreement, the
Reorganization Documents, and the Buyer Reorganization Agreement, including,
without limitation, the Reorganization, the adoption, and accomplishment of all
attendant filings to cause to be in full force and effect, the Amended Company
Declaration, and the Buyer Reorganization.
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(c) The Company shall call a meeting of its stockholders to be held as
promptly as practicable but not later than June 30, 1998 for the purpose of
voting upon (i) the Reorganization, (ii) the Amended Company Declaration, (iii)
the issuance of Company Preferred Stock in connection with the transactions
contemplated hereby, and (iv) the Buyer Reorganization.
(d) On or before the date hereof, the Company shall have obtained all
necessary consents of the partners of the Operating Partnership to the Amended
Partnership Agreement, and shall have obtained all signatures of said partners
such that the Amended Partnership Agreement is in full force and effect.
(e) If the matters to be voted upon pursuant to Section 5.1(c) are not
approved by the Company's shareholders, then, at Buyer's option, the Company
shall submit such matters to a vote of its shareholders for their approval of
such matters at its next annual meeting of shareholders. Following such
time as the Company's shareholders shall approve such matters as contemplated
hereby, the Company shall take such steps as are necessary or desirable to
facilitate the Reorganization, the Buyer Reorganization, and the automatic
exchange of Preferred Units for Company Preferred Stock in accordance with the
Buyer Reorganization Agreement and the Amended Partnership Agreement.
(f) The Company shall use its commercially reasonable best efforts to
obtain the lender and partner consents set forth in Schedule 3.4(d).
Section 5.2 "Buyer/Colorado Sharing Agreement." At the Initial Closing,
the Buyer and the Colorado Investor shall enter into the Buyer/Colorado
Sharing Agreement.
Section 5.3 "Registration Rights Agreement." At the Initial Closing, the
Company, Buyer and the Advancing Party shall enter into the Registration Rights
Agreement.
Section 5.4 "Reorganization Documents and Joinder Agreement." At the
Initial Closing, the Company and all other indicated persons shall enter into
and deposit in escrow with Honigman Miller Schwartz and Cohn the Reorganization
Documents and the Joinder Agreement pursuant to escrow arrangements established
pursuant to a writing (the "Escrow Letter") by and among the Company, Buyer and
Honigman Miller Schwartz and Cohn, dated as of the date hereof (the
"Reorganization Escrow," which term shall include any written agreement or
condition as to such arrangement, and provided that true, correct and complete
copies of the same shall have been delivered at the Initial Closing). If, prior
to the consummation of the Reorganization and the Buyer Reorganization, it is
determined that there is a more advantageous method of structuring the
Reorganization and the Buyer Reorganization in order to achieve the intended tax
free treatment of the Reorganization and the Buyer Reorganization, the parties
agree to modify the Reorganization Documents and the Buyer Reorganization
Agreement so as to accomplish such aim.
Section 5.5 "Buyer Reorganization Agreement." At the Initial Closing, the
Maryland Trust, the Company the Advancing Party and the Buyer shall enter into
the Buyer
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Reorganization Agreement and shall cause the Buyer Reorganization Agreement to
be placed in the Reorganization Escrow.
Section 5.6 "Company Preferred Stock." If, at the meeting of the
shareholders of the Company held pursuant to Section 5.1(c), the proposals set
forth in Section 5.1(c) are not approved, then, and thereafter the Buyer and
the Colorado Investor may notice the redemption of Preferred Units in
accordance with Section 11.7 of the Amended Partnership Agreement and exercise
their rights as set forth under the Registration Rights Agreement.
Section 5.7 "Atlantic Tax Agreement." The Atlantic Tax Agreement shall not
be amended in any manner and the obligations of Atlantic Realty Trust shall not
be waived or Atlantic Realty Trust shall not be released from its obligations
thereunder without the consent of Buyer, which consent may be withheld in
Buyer's sole and absolute discretion.
Section 5.8 "Public Announcements; Confidentiality." (a) Subject to each
party's disclosure obligations imposed by law and any stock exchange or similar
rules and the confidentiality provisions contained in Section 5.8(b), the
Company, Kimco, the Advancing Party, Buyer will cooperate with each other in
the development and distribution of all news releases and other public
information disclosures with respect to this Agreement, the Reorganization
Documents, the Buyer Reorganization Agreement, the Amended Company Declaration
and the Amended Partnership Agreement, and any of the transactions contemplated
hereby or thereby or by documents referred herein or therein. Pursuant to the
terms of the Buyer/Kimco Share Purchase Agreement, Kimco has agreed to observe
the provisions of this Section 5.8(a)
(b) Buyer and the Advancing Party and Kimco each agree that all information
provided to Buyer and the Advancing Party or any of their representatives
pursuant to this Agreement shall be kept confidential, and neither Buyer nor
the Advancing Party shall disclose such information to any persons other than
the directors, officers, employees, financial advisors, legal advisors,
accountants, consultants and affiliates of Buyer and the Advancing Party who
reasonably need to have access to the confidential information and who are
advised of the confidential nature of such information; provided, however, the
foregoing obligation of Buyer and the Advancing Party shall not (i) relate to
any information that (1) is or becomes generally available other than as a
result of unauthorized disclosure by Buyer or the Advancing Party or by persons
to whom Buyer or the Advancing Party has made such information available, (2)
is or becomes available to Buyer or the Advancing Party on a non-confidential
basis from a third party that is not, to Buyer's or the Advancing Party's
knowledge, bound by any other confidentiality agreement with the Company, or
(ii) prohibit disclosure of any information if required by any instrument
governing the Advancing Party or the management of its affairs or the affairs
of its constituent members, law, rule, regulation, court order or other legal
or governmental process. Pursuant to the terms of the Buyer/Kimco Share
Purchase Agreement, Kimco has agreed to observe the provisions of this Section
5.8(b).
Section 5.9 "Conduct of the Business." Except for transactions
contemplated hereby, during the period from the date hereof to February 1,
1999 (or such earlier date on which the Remaining Equity Commitment is equal
to zero) the Company will, except as otherwise
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consented to or approved by Buyer in writing or as permitted or required
hereby, conduct the business of the Company and its Subsidiaries and engage in
transactions only in the ordinary course, and during the period from the date
hereof to the date on which the Company Preferred Stock and the Preferred Units
(if applicable) shall have been converted to Company Common Stock in accordance
with the Amended Company Declaration or the Amended Partnership Agreement, as
applicable, the Company will not, except as otherwise consented to or approved
by Buyer in writing or as permitted or required hereby:
(a) change any provision of the Amended Company Declaration or the
Amended By-laws of the Company in a manner that would be adverse to Buyer or
change any provision of the Amended Partnership Agreement in a manner that
would be adverse to Buyer or the shareholders of the Company, considered as
a whole prior to the time at which Buyer purchases Purchased Shares, the
Company will not take any steps which pursuant to Sections 4(b),(c) and (d)
of the Articles Supplementary require the consent or vote of the holders of
51% of the outstanding shares of Company Preferred Stock without the
consent of Buyer; or
(b) except for Permitted Issuances, change the number of shares of the
authorized or issued capital stock of the Company or issue or grant any
option, warrant, call, commitment, subscription, right to purchase or
agreement of any character relating to the authorized or issued capital
stock of the Company, or any securities convertible into shares of
such stock (including Operating Partnership Units), or split, combine or
reclassify any shares of the capital stock of the Company or declare, set
aside or pay any extraordinary dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of the
capital stock of the Company, or redeem or otherwise acquire any shares of
such capital stock.
Notwithstanding the foregoing, the parties acknowledge that the Company has
entered into a purchase agreement with certain clients advised by DRA pursuant
to which it has agreed, subject to various conditions and contingencies, to
purchase 15 shopping centers owned by DRA in the southeastern United States.
The Company is presently engaging in a due diligence investigation of such
shopping centers. Each of the Buyer and the Advancing Party hereby consent to
the proposed transaction with DRA.
Section 5.10 "No Solicitation of Transactions." Unless and until this
Agreement is terminated in accordance with its terms, none of the Company or
its Subsidiaries shall, directly or indirectly, through any officer, trustee,
director, agent or otherwise, initiate, solicit or knowingly encourage
(including by way of furnishing non-public information or assistance), or take
any other action to facilitate knowingly, any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
competing transaction, or enter into or maintain or continue discussions or
negotiate with any person or entity in furtherance of such inquiries or to
obtain a competing transaction, or agree to or endorse any competing
transaction, or authorize or knowingly permit any of the officers, trustees,
directors or employees of such party or any of its subsidiaries or any
investment banker, financial advisor, attorney, accountant or other
representative retained by such party or any of such party's subsidiaries to
take any such action, and the Company shall notify Buyer orally (within one
Business Day) and in writing (as
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promptly as practicable) of all of the relevant details relating to all
inquiries and proposals which it or any of its Subsidiaries or any such
officer, director, employee, investment banker, financial advisor, attorney,
accountant or other representative may receive relating to any of such matters
and if such inquiry or proposal is in writing, the Company shall deliver to
Buyer a copy of such inquiry or proposal.
Section 5.11 "Information and Access." From the date hereof until such date
as the Remaining Equity Commitment shall be zero, a Qualified Underwritten
Offering shall have occurred and the Company Preferred Stock shall have been
converted to Company Common Stock in accordance with the Amended Company
Declaration, (i) the Company and its Subsidiaries shall afford to Buyer and
Buyer's accountants, counsel and other representatives full and reasonable
access during normal business hours (and at such other times as the parties may
mutually agree) to its properties, books, contracts, commitments, records and
personnel and, during such period, shall furnish promptly to Buyer (1) a copy of
each report, schedule and other document filed or received by it pursuant to the
requirements of the Securities Laws, and (2) all other information concerning
their businesses, personnel and the Company Properties as Buyer may reasonably
request and is such as the Company provides so other holders of a substantial
portion of Company Stock (subject, however, to the limitations of the Securities
Laws), and (ii) Buyer shall have the right to conduct or cause to be conducted
an environmental inspection and review of any Company Properties or request that
the Company update, at Buyer's expense, any existing environmental reports,
reviews or inspections thereof, in which case the Company shall promptly so
update its environmental reports, reviews and inspections and cause them to be
certified to Buyer by the firm or person who has prepared such report or
conducted such review or inspection. Buyer and its accountants, counsel and
other representatives shall, in the exercise of the rights described in this
Section, not unduly interfere with the operation of the businesses of the
Company or its Subsidiaries.
Section 5.12 "Notification of Certain Matters." Each of Buyer, the
Advancing Party, Kimco and the Company shall use its good faith efforts to
notify the other parties in writing of its discovery of any matter that would
render any of such party's or the other party's representations and warranties
contained herein untrue or incorrect in any material respect, but the failure
of any party to so notify the other parties shall not be deemed a breach
of this Agreement.
ARTICLE 6
Certain Additional Covenants
Section 6.1 "Resale." Buyer, the Advancing Party and Kimco each
acknowledge and agree that the Preferred Units and Company Preferred Stock that
Buyer or the Advancing Party, as the case may be, will acquire in any Stock
Purchase will not, as of the relevant Closing thereof, be registered under
the Securities Act or the securities laws of any state and that Preferred Units
and shares of Company Preferred Stock may be sold or otherwise disposed of
only in one or more transactions registered under the Securities Act and, where
applicable, such
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state securities laws or as to which an exemption from the registration
requirements of the Securities Act and, where applicable, such state securities
laws is available.
Section 6.2 "Use of Funds." The Company shall use the funds received from
the Units Purchases and Stock Purchases for the repayment of existing or future
indebtedness (of either the Company or the Operating Partnership), or the
acquisition or development by the Operating Partnership of assets or to meet its
operating objectives in purchasing or redeveloping retail properties of the
nature operated by Ramco- Gershenson Properties Trust on September 30, 1997 and
shall not use any funds received directly or indirectly from Units Purchase or
Stock Purchases to effect purchases of Company Stock, nor shall the Company
require that any Subsequent Purchase be effected to directly or indirectly
replenish funds used to effect purchases of Company Stock.
Section 6.3 "REIT Status." From and after the date hereof but subject to
any limitations that may be imposed by virtue of the Tax Case, and so long as
Buyer, Kimco or the Advancing Party owns 2% or more of the outstanding Company
Stock, the Company will elect to be taxed as a REIT in its federal income tax
returns, will comply with all applicable laws, rules and regulations of the
Code relating to a REIT, and will not take any action or fail to take any
action which could reasonably be expected to, alone or in conjunction with any
other factors, result in the loss of its status as a REIT for federal income tax
purposes.
Section 6.4 "Amended Company Declaration." Subject to the approvals of the
Company's shareholders at the Shareholders Meeting, as aforesaid, the Amended
Company Declaration will have been duly executed and recorded such that it is
the operative organization document of the Company, and the shares of Company
Preferred Stock will have been duly and validly issued to the Advancing
Party in accordance with the terms of this Agreement, the Buyer Reorganization
Agreement and the Amended Company Declaration.
Section 6.5 "UBTI Covenant." The Operating Partnership covenants to
operate in such manner so as to not generate unrelated business taxable income
under Sections 511 through 514 of the Code in excess of $200,000 in any
taxable year.
Section 6.6 "Guarantee." The Advancing Party hereby unconditionally and
irrevocably guarantees and agrees to be responsible for the payment and
performance of all of Buyer's obligations hereunder.
Section 6.7 "Conversion, Redemption and Adjustments." Operating
Partnership Units will be redeemed and converted as set forth in the Amended
Partnership Agreement, subject to such adjustments as set forth therein.
Section 6.8 "Preemptive Rights." (a) Until the conclusion of any Qualified
Underwritten Offering and for so long as any Preferred Units or shares of
Company Preferred Stock are outstanding, Advancing Party shall have the rights
set forth in this Section 6.8 as if it was the holder of record and
beneficially of all such outstanding Preferred Units or shares of Company
Preferred Stock. The rights set forth herein are in favor of Advancing Party
and its successors and assigns, provided that any exercise procedures to be
accomplished hereunder shall
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be performed by the Advancing Party or its nominee and no other person may
accomplish such procedures or seek to exercise the preemptive right set forth
in this Section 6.8. Absent an express assignment of the rights of Advancing
Party under this Section 6.8, no transfer by Buyer or the Advancing Party of
shares of Company Preferred Stock shall affect the rights of Buyer hereunder.
(b) Advancing Party shall have, as if it were the holder of each and every
of the issued and outstanding shares of Preferred Units or shares of Company
Preferred Stock, at any time and from time to time, the preemptive right to
purchase, in the case of the proposed issuance (other than Permitted Issuances)
by the Company of, or the proposed granting by the Company of shares of, any
class of Company Stock, or any rights to subscribe for or to purchase, or any
options for the purchase of, Company Stock or any stock or securities
convertible into or exchangeable for Company Stock (including, without
limitation, interests in the Operating Partnership) (such rights or options
being hereinafter referred to as "Options" and such convertible or exchangeable
stock or securities being hereinafter referred to as "Convertible Securities").
On each occasion that the Company proposes to issue Company Stock, Options or
Convertible Securities, or any of the foregoing (including, without limitation,
upon the Qualified Underwritten Offering, the conclusion of which will conclude
the preemptive right of the Advancing Party), the Company shall give to Buyer or
Advancing Party prior written notice (the "Company Notice") of its intention, by
first class mail, postage prepaid, addressed at its last address as shown by the
records of the Company describing the same, the price and the specific terms (or
in the context of an offering of Company Stock, Convertible Securities or
Options to the public, a range of price and terms) upon which the Company
proposes to issue the same. Buyer or Advancing Party shall have 15 Business
Days from the date of the receipt by Buyer of the Company Notice to deliver a
notice (the "Rights Exercise Notice") notifying the Company of Buyer's or
Advancing Party's intention to purchase all or a part of its pro rata share of
shares or other securities represented by Company Stock, Options or Convertible
Securities, or any of the foregoing, in accordance herewith, for the price and
upon the terms specified by the Company Notice, such pro rata share to be 19.4%
(or such lesser percentage as may reflect the beneficial ownership of Buyer and
the Colorado Investor of the Company's Common Stock if Buyer defaults or elects
not to purchase any securities hereunder but in the absence of such default or
election, assuming until September 1998, or, if a Final Determination has not
been made with respect to the Tax Case by October 25, 1998, then until February
25, 1999, that Buyer has purchased as at the date hereof all 1,200,000 shares of
Company Preferred Stock the sale and purchase of which is the object of this
Agreement, and assuming thereafter that Buyer is the holder of each and every
outstanding share of Company Preferred Stock) of such shares or securities or
Company Stock, Options or Convertible Securities, or any of the foregoing, and
at a price or prices no less favorable to Buyer or Advancing Party than the
price or prices at which such Company Stock, Convertible Securities or Options
are proposed to be offered for sale to others, less, in the event of any sale
other than a public offering, the per unit amount of any placement fees or
commissions, and in the event of the Qualified Underwritten Offering, less the
per share portion of underwriters' fees, commissions and discounts, and
provided, however, that the purchase of such Company Stock, Convertible
Securities or Options shall be consummated prior to the later of (i) 30 days
after the date of the Rights Exercise Notice and (ii) the date that the Company
consummates the issuance of the Company Stock, Convertible Securities or Options
described in the Company Notice. If, in connection with any proposed
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issue of Company Stock, Convertible Securities or Options, the Buyer or
Advancing Party fails to exercise in full its preemptive right as set forth in
this Section 6.8 then, subject to the next following sentence, the Company may
sell the unsold Company Stock, Convertible Securities or Options at any time
within 180 days (60 days in the case of a public offering) thereafter at a
price and upon terms no more favorable to the purchasers thereof than specified
in the Company Notice; provided, that the Company shall not sell or grant, or
permit conversion under, any Capital Stock, Convertible Securities or Options,
or any of the foregoing, after such 180-day period (or 60-day period in the
case of a public offering) without renewed compliance with this Section;
provided, further, that in the case of a widely distributed underwritten public
offering of Company Stock, Convertible Securities or Options, if in the opinion
of the Company and the underwriter, such renewed compliance by the Company with
the procedural requirements hereunder (i.e., timing of notices, etc.) would
otherwise impede the consummation of such public offering, the parties agree to
take such further action as may be reasonably necessary to effectuate such
offering while preserving Buyer's or Advancing Party's substantive preemptive
right hereunder.
(c) The provisions of this Section 6.8 shall not apply to any shares of any
class of the Company Stock or Options or Convertible Securities, or any of them,
(i) issuable upon redemption of Preferred Units, conversion of any Company
Preferred Stock; (ii) issuable upon conversion of Convertible Securities or
the exercise of Options, or both, if Buyer or Advancing Party was offered the
opportunity to purchase such shares or securities, or Convertible Securities
or Options, or both, pursuant to this Section 6.8, and declined the same, or as
to which Buyer or Advancing Party was not given such opportunity by reason of
the application of this Section 6.8; (iii) issuable in connection with stock
splits, stock dividends or recapitalizations as to the effects of which
adjustment will be made as provided elsewhere herein, in the Amended Partnership
Agreement pertaining to the Preferred Units, or in the Amended Company
Declaration pertaining to the Company Preferred Stock; or (iv) issuable to
employees and prospective employees pursuant to any plan or pattern of employee
equity participation set forth in Schedule 3.3(a).
(d) Notwithstanding the foregoing, if and to the extent that on the date of
or following the Reorganization, Buyer is prevented or prohibited from the
exercise in full or in part of its preemptive right to purchase any Securities
due to restrictions on the ownership by Buyer (or any group of holders with
which such Buyer may be affiliated or may be deemed to be affiliated) of
any such Securities, whether under applicable Maryland law, provisions of the
Declaration of Trust, any amendment thereto or by-laws, or by reason of
restrictions applicable for purposes of the Company's continued qualification as
a REIT for purposes of the Code (the "Exercise Restriction"), such number of
Securities required to be purchased pursuant to such preemptive right shall
automatically be reduced to such amount as to not exceed the Exercise
Restriction, and Buyer from time to time thereafter may exercise such right up
to an aggregate number of Securities as is equal to such reduction, subject
always to the restrictions as aforesaid.
Section 6.9 "Qualified Underwritten Offering." Upon the sale by the
Company of Company Common Stock pursuant to a Qualified Underwritten
Offering, Buyer shall purchase $9,700,000 of Company Common Stock in a
concurrent offering at the price to the public less the underwriters' fees,
commissions discounts per share. In addition, Buyer shall have the right
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to purchase 19.4% of the amount of a Qualified Underwritten Offering in excess
of $40,300,000.
Section 6.10 "Amended Partnership Agreement (Consolidated and Conformed
Text)" Within five Business Days of the date hereof the Consolidated and
Conformed Agreement of Limited Partnership of Ramco-Gershenson Properties, L.P.
shall be in final form which final form shall be reasonably satisfactory to
Buyer.
Section 6.11 "Voting Amendments." If, at any time prior to the
Reorganization, Buyer or the Advancing Party, as the case may be, so requests,
the Company will, use its best efforts to take all such actions as may be
necessary to amend the Maryland Trust's declaration of trust or adopt articles
supplementary, in either case (a) to create a new non-voting class of stock
for which Buyer or the Advancing Party shall be entitled to exchange on a share
for share basis such number of shares of its Company Stock as it may deem
necessary or advisable so as not to be deemed to be an Affiliate of the Company
or (b) to otherwise restrict Buyer's or the Advancing Party's voting rights with
respect to such percentage of its Company Stock holding so as not to be deemed
to be an Affiliate of the Company.
ARTICLE 7
Conditions to Closings
Section 7.1 "Conditions of Purchase at Initial Closing." The obligations
of Buyer to purchase and pay for the Purchased Units at the Initial Closing
are subject to satisfaction or waiver of each of the following conditions
precedent:
(a) "Representations and Warranties; Covenants." The representations and
warranties of the Company and the Operating Partnership contained herein shall
have been true and correct in all respects on and as of the date hereof, and
shall be true and correct in all respects on and as of the date of the Initial
Closing and each Closing subsequent to the Initial Closing with the same effect
as though such representations and warranties had been made on and as of the
date of the Initial Closing (except for representations and warranties that
speak as of a specific date or time other than the date of the Initial Closing
(which need only be true and correct in all respects as of such date or time)),
other than, in all such cases, such failures to be true and/or correct as would
not in the aggregate reasonably be expected to have a Material Adverse Effect;
provided, however, that if any of the representations and warranties is already
qualified in any respect by materiality or as to Material Adverse Effect for
purposes of this Section 7.1(a) such materiality or Material Adverse Effect
qualification will be in all respects ignored (but subject to the overall
standard as to Material Adverse Effect set forth immediately prior to this
proviso). The covenants and agreements of the Company and the Operating
Partnership to be performed on or before the date of the Initial Closing in
accordance with this Agreement shall have been duly performed in all respects,
other than (except for the Company's obligation to deliver the Preferred Units
at the Initial Closing, and for the covenants set forth in Sections 5.2, 5.3,
5.4, 5.5, and 6.5, as to which the proviso set forth in this other than clause
shall not apply) for such failures to have been performed as would not in the
aggregate reasonably be expected to have
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a Material Adverse Effect (provided, however, that if any such covenant or
agreement is already qualified in any respect by materiality or as to Material
Adverse Effect for purposes of determining whether this condition has been
satisfied, such materiality or Material Adverse Effect qualification will be in
all respects ignored and such covenant or agreement shall have been performed
in all respects without regard to such qualification (but subject to the
overall exception as to Material Adverse Effect set forth immediately prior to
this proviso)). The Company shall have delivered to Buyer at the Initial
Closing and each Closing subsequent to the Initial Closing a certificate of an
appropriate officer in form and substance reasonably satisfactory to Buyer
dated the date of such Closing to such effect.
In making any determination as to Material Adverse Effect under this
Section 7.1(a) or under Section 7.2(a), the matters set forth in each
such Section shall be aggregated and considered together.
(b) "Amended Partnership Agreement." The Amended Partnership Agreement
shall have been duly and validly executed and delivered by all parties thereto
and shall be valid and binding and in full force and effect.
(c) "Company Preferred Stock; Amended Company Declaration." The Amended
Company Declaration shall have been agreed to between the Company and Buyer and
placed in the Reorganization Escrow, in form so as to be duly filed with
the State Department of Assessments and Taxation of the State of Maryland and,
if so filed, as to be in full force and effect.
(d) "Amended By-Laws." The By-Laws of the successor to Ramco-Gershenson
Properties Trust by way of the Reorganization, substantially in the form
attached as Exhibit P (the "Amended By-Laws") shall have been agreed to between
the Company and Buyer and placed in the Reorganization Escrow, in form so as to
be duly filed with the State Department of Assessments and Taxation of the State
of Maryland and, if so filed, as to be in full force and effect.
(e) "Buyer Reorganization Agreement." The Buyer Reorganization Agreement
shall have been executed and delivered by the Company and placed in the
Reorganization Escrow, together with any documents referenced therein
necessary for the accomplishment of the Buyer Reorganization, so that the Buyer
Reorganization Agreement and such other documents shall on release from the
Reorganization Escrow be in full force and effect.
(f) "Registration Rights Agreement." The Registration Rights Agreement
shall have been executed and delivered by the Company and be in full force and
effect.
(g) "HSR Act." Any waiting period applicable to the consummation of the
transactions contemplated hereby under the HSR Act shall have expired or been
terminated, and no action shall have been instituted by the United States
Department of Justice or the United States Federal Trade Commission challenging
or seeking to enjoin the consummation of the transactions contemplated hereby,
which action shall not have been withdrawn or terminated,
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or the Company and Buyer shall have mutually concluded that no filing under the
HSR Act is required with respect to the transactions contemplated hereby.
(h) "Consents." The Company shall have obtained the consents set forth in
Schedule 3.4(d).
(i) "Miscellaneous" The Company shall have provided all other additional
opinions, consents, agreements, certificates and other instruments as Buyer
or its counsel may reasonably require.
Section 7.2 "Conditions of Purchase at All Closings." The obligations of
Buyer to purchase and pay for the Purchased Units, or the obligation of the
Advancing Party or Kimco to purchase and pay (except at the Closing on or after
the Effective Date of the Buyer Reorganization pursuant to the Buyer
Reorganization Agreement, at which purchase and payment shall be the surrender
of Preferred Units in return for certificates representing shares of Company
Preferred Stock as provided in the Buyer Reorganization Agreement) for the
Purchased Shares, as the case may be, at each Closing (including the Initial
Closing) are subject to satisfaction or waiver of each of the following
conditions precedent:
(a) "Representations and Warranties; Covenants." The representations and
warranties of the Company contained in this Agreement shall have been true and
correct in all respects on and as of the date hereof, and shall be true and
correct in all respects on and as of the relevant Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date (except for representations and warranties that speak as of a
specific date or time other than such Closing Date (which need only be true and
correct in all respects as of such date or time)), other than, in all such
cases, such failures to be true and/or correct as would not in the aggregate
reasonably be expected to have a Material Adverse Effect and other than as to
those representations and warranties which are, in the ordinary course of
business, expected to be true only on and as of the date hereof, which, with
respect to any Subsequent Purchase Date will not be deemed to be in breach to
the extent that there exist thereunder any changes which are not of a material
nature; provided, however, that if any of the representations and warranties is
already qualified in any respect by materiality or as to Material Adverse Effect
for purposes of this Section 7.2(a) such materiality or Material Adverse Effect
qualification will be in all respects ignored (but subject to the overall
standard as to Material Adverse Effect set forth immediately prior to this
proviso). The covenants and agreements of the Company to be performed on or
before the relevant Closing Date in accordance with this Agreement shall have
been duly performed in all respects, other than (except for the Company's
obligation to deliver the relevant Preferred Units or shares of Company
Preferred Stock at the relevant Closing, as to which the proviso set forth in
this other-than clause shall not apply) for such failures to have been performed
as would not in the aggregate reasonably be expected to have a Material Adverse
Effect (provided, however, that if any such covenant or agreement is already
qualified in any respect by materiality or as to Material Adverse Effect for
purposes of determining whether this condition has been satisfied, such
materiality or Material Adverse Effect or qualification will be in all respects
ignored and such covenant or agreement shall have been performed in all respects
without regard to such qualification (but subject to the overall exception as to
Material Adverse Effect set forth immediately prior to this proviso)). As to
each
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Closing other than the Initial Closing, no condition to the obligations of
Buyer to purchase and pay for the Purchased Units at the Initial Closing that
was waived at the Initial Closing, but is not duly waived by Buyer at such
other Closing shall fail to be satisfied as of such other Closing. The Company
shall have delivered to Buyer at the relevant Closing a certificate of an
appropriate officer in form and substance reasonably satisfactory to Buyer
dated the relevant Closing Date to such effect.
(b) "No Material Adverse Change." Since the date hereof, there shall not
have been any change, circumstance or event which has had or would
reasonably be expected to have a Material Adverse Effect.
(c) "No Injunction." There shall not be in effect any order, decree or
injunction of a court or agency of competent jurisdiction which enjoins or
prohibits consummation of the transactions contemplated hereby and there
shall be no pending Actions which would, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the ability of
the Company or the Operating Partnership to consummate the transactions
contemplated hereby or to issue the Purchased Units or the Purchased Shares, or
to consummate the Reorganization or the Buyer Reorganization.
(d) "Proceedings." All proceedings to be taken by the Company in
connection with the transactions contemplated hereby and all documents incident
thereto shall be reasonably satisfactory in form and substance to Buyer and
Buyer shall have received all such counterpart originals or certified or other
copies of such documents as they may reasonably request.
(e) "REIT Status." The Company shall have elected to be taxed as a REIT in
its most recent federal income tax return, and shall be in compliance with all
applicable laws, rules and regulations, including the Code, necessary to permit
it to be taxed as a REIT. The Company shall not have taken any action or have
failed to take any action which could reasonably be expected to, alone or in
conjunction with any other factors, result in the loss of its status as a REIT
for federal income tax purposes.
(f) "Opinion of Counsel." Buyer shall have received an opinion from
Honigman Miller Schwartz and Cohn in form and substance reasonably satisfactory
to Buyer, which, as to Maryland law, may rely on Ballard Spahr Andrews &
Ingersoll and which as to Massachusetts law may rely on Goodwin, Procter & Hoar
LLP.
(g) "Certain Conditions Still True." The conditions precedent set forth
in Section 7.1 shall continue to be satisfied or waived in all respects on and
as of each relevant Closing Date.
(h) "Miscellaneous" The Company shall have provided such additional
opinions, consents, agreements, certificates and other instruments as Buyer,
or its counsel may reasonably require.
Section 7.3 "Conditions of Sale." The obligation of the Operating
Partnership and the Company, as the case may be, to issue and sell any
Purchased Units or Purchased Shares at any
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Closing (including the Initial Closing) is subject to satisfaction or waiver of
each of the following conditions precedent:
(a) "Representations and Warranties, Covenants." The representations and
warranties of Buyer and the Advancing Party contained herein shall have been
true and correct in all respects on and as of the date hereof, and shall be
true and correct in all respects on and as of the relevant Closing Date with
the same effect as though such representations and warranties had been made on
and as of the Closing Date (except for representations and warranties that speak
as of a specific date or time other than such Closing Date (which need only be
true and correct in all respects as of such date or time)), other than, in all
such cases, such failures to be true and/or correct as would not in the
aggregate reasonably be expected to have a Material Adverse Effect on the
Company or Buyer's ability to consummate the transactions contemplated hereby;
provided, however, that if any of the representations and warranties is already
qualified in any respect by materiality or as to Material Adverse Effect for
purposes of this Section 7.3(a) such materiality or Material Adverse Effect
qualification will be in all respects ignored (but subject to the overall
standard as to Material Adverse Effect set forth immediately prior to this
proviso). The covenants and agreements of Buyer to be performed on or before
the relevant Closing Date in accordance with this Agreement shall have been duly
performed in all respects, other than (except for Buyer's obligation to pay the
relevant Purchase Price at the relevant Closing, and except for Buyer's
covenants set forth in Sections 4.2 and 4.3, as to which the proviso set forth
in this other-than clause shall not apply) for such failures to have been
performed as would not in the aggregate reasonably be expected to have a
Material Adverse Effect on the Company or Buyer's ability to consummate the
transactions contemplated hereby (provided, however, that if any such covenant
or agreement is already qualified in any respect by materiality or as to
Material Adverse Effect for purposes of determining whether this condition has
been satisfied, such materiality or Material Adverse Effect qualification will
be in all respects ignored and such covenant or agreement shall have been
performed in all respects without regard to such qualification (but subject to
the overall exception as to Material Adverse Effect set forth immediately prior
to this proviso)). Buyer shall have delivered to the Company at the relevant
Closing a certificate of an appropriate officer in form and substance reasonably
satisfactory to the Company dated the relevant Closing Date to such effect.
(b) "HSR Act." Any waiting period applicable to the consummation of the
transactions contemplated hereby under the HSR Act shall have expired or been
terminated, and no action shall have been instituted by the United States
Department of Justice or the United States Federal Trade Commission challenging
or seeking to enjoin the consummation of the transactions contemplated hereby,
which action shall not have been withdrawn or terminated, or the Company and
Buyer shall have mutually concluded that no filing under the HSR Act is required
with respect to the transactions contemplated hereby.
(c) "No Injunction." There shall not be in effect any order, decree or
injunction of a court or agency of competent jurisdiction which enjoins or
prohibits consummation of the transactions contemplated hereby and there shall
be no pending Actions which would, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the ability of Buyer to
consummate the transactions contemplated hereby or to acquire the Purchased
Units or the Purchased Shares.
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(d) "Operating Partnership Agreement." The Partnership Agreement shall
have been duly and validly amended and restated as the Amended Partnership
Agreement by the requisite vote or consent of the partners of the Operating
Partnership, all as required by and in accordance with the Partnership
Agreement.
(e) "Consents." The Company shall have obtained the consents set forth in
Schedule 3.4(d).
(f) "Proceedings." All corporate and other proceedings to be taken by
Buyer or the Advancing Party in connection with the transactions contemplated
hereby and all documents incident thereto shall be reasonably satisfactory in
form and substance to the Company and the Company shall have received all such
counterpart originals or certified or other copies of such documents as it may
reasonably request.
(g) "Opinion of Counsel." The Company shall have received an opinion from
counsel to Buyer reasonably acceptable to the Company in form and substance
reasonably satisfactory to the Company.
(h) "Miscellaneous" The Company shall have provided all such additional
opinions, consents, agreements, certificates and other instruments as Buyer
may reasonably require.
ARTICLE 8
Survival; Indemnification
Section 8.1 "Survival." All representations, warranties and (except as
provided by the last sentence of this Section 8.1) covenants and agreements of
the parties contained herein, including indemnity or indemnification agreements
contained herein, or in any Schedule or Exhibit hereto, or any certificate,
document or other instrument delivered in connection herewith shall survive the
Initial Closing until the earlier of (a) a Qualified Underwritten Offering
and (b) the conversion of all Preferred Units and Company Preferred Stock
purchased hereunder into Company Common Stock. No Action or proceeding may be
brought with respect to any of the representations and warranties, or any of the
covenants or agreements which survive until the first anniversary of the Initial
Closing, unless written notice thereof, setting forth in reasonable detail the
claimed misrepresentation or breach of warranty or breach of covenant or
agreement, shall have been delivered to the party alleged to have breached such
representation or warranty or such covenant or agreement prior to the first
anniversary of the Initial Closing; provided, however, that, if Buyer shall have
complied with this Section 8.1, the damages for breach by the Company of any of
the representations and warranties, or any of the covenants or agreements which
survive until the first anniversary of the Initial Closing, shall be measured
with respect to all of Buyer's purchases of Preferred Units and Company
Preferred Stock hereunder and not with respect only to Buyer's purchases
hereunder made prior to the first anniversary of the Initial Closing, but such
measurement shall not in any event include any shares of Company Stock that
Buyer may have purchased other than from the Company. Those covenants or
agreements that contemplate or may involve actions to be taken or obligations in
effect after the
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Initial Closing shall survive in accordance with their terms, and the
indemnification described in Section 8.2 shall survive until the running of the
applicable statutes of limitations.
Section 8.2 "Indemnification by Buyer, the Advancing Party, Kimco or the
Company." (a) Subject to Section 8.1, from and after any Closing Date, Buyer,
each member of the Advancing Party and Kimco, severally in accordance with the
percentages set forth on Exhibit B, shall indemnify and hold harmless the
Company, its successors and assigns, from and against any and all damages,
claims, losses, expenses, costs, obligations, and liabilities, including
liabilities for all reasonable attorneys' fees and expenses (including attorney
and expert fees and expenses incurred to enforce the terms of this Agreement)
(collectively, "Loss and Expenses") suffered, directly or indirectly, by the
Company by reason of, or arising out of, (i) any breach as of the date made or
deemed made or required to be true of any representation or warranty made by
Buyer, the Advancing Party or Kimco in or pursuant to this Agreement, or (ii)
any failure by Buyer, the Advancing Party or Kimco to perform or fulfill any of
its covenants or agreements set forth herein. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall Loss and Expenses
include a party's incidental or consequential damages.
(b) Subject to Section 8.1, from and after any Closing Date, the Company
shall indemnify and hold harmless Buyer, the Advancing Party and Kimco, its
successors and assigns, from and against any and all Loss and Expenses,
suffered, directly or indirectly, by Buyer, the Advancing Party or Kimco by
reason of, or arising out of, (i) any breach as of the date made or deemed made
or required to be true of any representation or warranty made by the Company in
or pursuant to this Agreement and any statements made in any certificate
delivered pursuant to this Agreement, or (ii) any failure by the Company to
perform or fulfill any of its covenants or agreements set forth herein;
provided, however, that, notwithstanding anything in this Agreement to the
contrary, to the extent that the IRS makes an IRS Termination Determination (as
defined in the Amended Partnership Agreement and the Articles Supplementary)
and such occurrence constitutes a breach of a representation, warranty or
covenant of the Company, the Company shall not have any liability for such
breach under this Section 8.1(b) and neither Buyer nor the Advancing Party
shall be entitled to institute an action seeking damages for such breach.
Notwithstanding any other provision of this Agreement to the contrary, in no
event shall Loss and Expenses include (A) a party's incidental or consequential
damages or (B) costs or expenses to Buyer, the Advancing Party or Kimco arising
other than in violation of any provision of this Agreement, and the agreements
and instruments contemplated hereby, and solely and directly as a result of the
jurisdiction or the form of organization of Buyer, the Advancing Party or
Kimco.
In the event of a breach or inaccuracy of the sort referred to in clause (i)
of the first sentence of this Section 8.2(b) which results in damage to the
Company but not in direct damage to Buyer or the Advancing Party, the Loss and
Expenses suffered by Buyer and the Advancing Party shall be equal to the Buyer
Portion (as defined below) of the amount by which the Company's net tangible
assets or future earnings, capitalized at an appropriate rate, are damaged as a
result thereof, after taking into account all receipts of proceeds of insurance
policies, tax benefits, and other mitigating factors (including recoveries from
tenants, rents from new leases in replacement of leases lost, contribution
payments from third parties and the like).
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As used in this Section 8.2(b), "Buyer Portion" shall mean a fraction (i)
the numerator of which is the sum of (A) the number of shares of Company Common
Stock held by Buyer, the Advancing Party and Kimco and purchased under this
Agreement plus (B) the number of shares of Company Common Stock for which
Preferred Units held by Buyer, the Advancing Party and Kimco may at any time be
exchanged (as adjusted under Section 6.6 of this Agreement) plus (C) the number
of shares of Company Common Stock which Buyer, the Advancing Party and Kimco
would at any time be entitled to receive on conversion of Company Preferred
Stock held by Buyer, the Advancing Party and Kimco and purchased under this
Agreement (at the then applicable Conversion Price, and otherwise as set forth
in and established pursuant to Article SECOND, Section 6 of the Articles
Supplementary, and (ii) the denominator of which is a number equal to (A) the
number of all shares of Company Common Stock then outstanding or which would be
outstanding after giving effect to rights to receive shares of Company Common
Stock pursuant to the exercise of conversion privileges under then outstanding,
fully paid and non-assessable securities of the Company or the Operating
Partnership minus (B) the number of shares established in clause (i) as the
numerator of the fraction.
(c) Notwithstanding the foregoing, (i) neither Buyer nor the Company shall
be responsible for any Loss and Expenses as provided by paragraphs (a) and (b),
respectively, of this Section 8.2, until the cumulative aggregate amount of such
Loss and Expenses suffered by Buyer or the Company, as thecase may be, exceeds
$500,000, in which case Buyer or the Company, as the case may be, shall then
be liable for all such Loss and Expenses, and (ii) the cumulative aggregate
indemnity obligation of each of Buyer and the Company under this Section 8.2
shall in no event exceed the Total Equity Commitment. Except with respect to
third-party claims being defended in good faith or claims for indemnification
with respect to which there exists a good faith dispute, the indemnifying party
shall satisfy its obligations hereunder within 30 days of receipt of a notice of
claim under this Article 8.
(d) Notwithstanding the foregoing, in the event that there shall have
occurred a breach of the covenant in Section 6.4 hereof, the Company hereby
agrees to protect and hold harmless the Colorado Investor from and with respect
to all federal, state and other taxes and impositions which the Colorado
Investor pays, incurs or to which the Colorado Investor becomes liable, but only
to the extent that such payment, incurrence or liability is directly
attributable to such breach of Section 6.4 and the Colorado Investor pays,
incurs or becomes liable with respect to taxes and impositions in excess of
amounts which it would have paid or incurred or as to which it would have become
liable if no such breach had occurred. Any payment which is made to the
Colorado Investor pursuant to this Section 8.2(d) will be further increased by
an amount which is sufficient to hold the Colorado Investor harmless from and
against any liability for federal state and other taxes and impositions by
reason of any payment made under this Section 8.2(d).
Section 8.3 "Third-Party Claims." If a claim by a third party is made
against an Indemnified Party and if such Indemnified Party intends to seek
indemnity with respect thereto under this Article, such Indemnified Party shall
promptly notify the indemnifying party in writing of such claims setting
forth such claims in reasonable detail. The indemnifying party shall have 20
days after receipt of such notice to undertake, through counsel of its own
choosing and at its own expense, the settlement or defense thereof, and the
Indemnified Party shall
55
<PAGE> 66
cooperate with it in connection therewith, provided, however, that the
Indemnified Party may participate in such settlement or defense through counsel
chosen by such Indemnified Party unless (i) the Indemnifying Party shall have
elected not, or, after reasonable written notice of any such claim or
threatened claim, shall have failed, to assume or participate in the defense
thereof, (ii) the employment thereof has been specifically authorized by the
Indemnifying Party in writing, or (iii) the parties to any such claim or
threatened claim (included any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and the Indemnified party shall have been
advised in writing by counsel for the Indemnified Party that there may be one
or more defenses available to the Indemnified Party that are not available to
the Indemnifying Party or legal conflicts of interest pursuant to applicable
rules of professional conduct between the Indemnifying Party and the
Indemnified Party (in any which case, the Indemnifying Party shall not have the
right to assume to defense of such claim on behalf of the Indemnified Party),
in either of which events referred to in clauses (i), (ii) and (iii) the fees
and expenses of such counsel employed by the Indemnified Party shall be at the
expense of the Indemnifying Party provided that the fees and expenses of such
counsel shall be borne by such Indemnified Party. The Indemnified Party shall
not pay or settle any claim which the indemnifying party is contesting.
Notwithstanding the foregoing, the Indemnified Party shall have the right to
pay or settle any such claim, provided that in such event it shall waive any
right to indemnity therefor by the indemnifying party. If the indemnifying
party does not notify the Indemnified Party within 20 days after the receipt of
the Indemnified Party's notice of a claim of indemnity hereunder that it elects
to undertake the defense thereof, the Indemnified Party shall have the right to
contest, settle or compromise the claim but shall not thereby waive any right
to indemnity therefor pursuant to this Agreement.
ARTICLE 9
Termination
Section 9.1 "Termination." This Agreement may be terminated at any time
by:
(a) the mutual consent of the Company and Buyer; or
(b) Buyer, if the Board of the Company shall have withdrawn, modified or
failed to make or refrained from making its recommendation that the
shareholders of the Company approve the Reorganization and all of the other
matters set forth in the Proxy Statement pursuant to this Agreement as provided
for in Section 3.2(b) and Section 5.1(b), or if the Board of the Company at any
time refuses to reaffirm, at Buyer's request, such recommendation and its
determination to make such recommendation to the shareholders of the Company,
except, in each case, as permitted by Section 5.1(e).
Section 9.2 "Procedure and Effect of Termination." In the event of
termination of this Agreement by either or both of the Company and Buyer
pursuant to Section 9.1, written notice thereof shall forthwith be given by the
terminating party to the other party hereto, all future funding obligations of
the Buyer and Advancing Party shall cease, the Company or the Operating
Partnership, as the case may be, shall return all funds invested by Buyer
pursuant to this
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<PAGE> 67
Agreement and Buyer shall relinquish all Operating Partnership Units or Company
Stock purchased by it pursuant to this Agreement, and this Agreement shall
thereupon terminate and become void and have no effect, and the transactions
contemplated hereby shall be abandoned without further action by the parties
hereto, except that the provisions of Sections 5.8 (Public Announcements), 9.3
(Expenses), 10.3 (Governing Law), and 10.5 (Notices) shall survive the
termination of this Agreement; provided, however, that such termination shall
not relieve any party hereto of any liability for any breach of this Agreement.
Section 9.3 "Expenses." (a) Except as set forth in this Agreement, whether
or not any Stock Purchase is consummated, all legal and other costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs andexpenses, but
excluding the costs of the formation of Buyer and of the Buyer Reorganization.
(b) The Company shall reimburse the Buyer (by wire transfer) for reasonable
attorney's fees, other reasonable costs and expenses and, if agreed, any costs
associated with engineering or environmental due diligence.
ARTICLE 10
Miscellaneous
Section 10.1 "Certain Matters as to the Advancing Party." (a) MSAM is acting
as agent on behalf of the Advancing Party, and neither MSAM, nor Buyer, nor any
other person included in the Advancing Party, shall be obligated to purchase
Preferred Units, or Company Preferred Stock, hereunder except in that
proportion of the Purchase Price or Subsequent Purchase Price set forth
opposite the name of such person on Exhibit B hereto. Neither MSAM, nor any
other person included in the Advancing Party, shall be obligated to purchase
Preferred Units or Company Preferred Stock in an amount as to which any other
person included in the Advancing Party was obligated to, but did not, purchase.
Notwithstanding the foregoing, in the event that any person included in the
Advancing Party does not tender such person's proportion of the Purchase Price
or Subsequent Purchase Price in accordance with Exhibit B hereto, upon the
request of the Company, MSAM shall use its reasonable efforts to obtain as soon
as practicable, from another institutional investor, after consultation with
the Company, such portion of the Purchase Price or Subsequent Purchase Price,
and the parties will enter into appropriate amendments and modifications to
this Agreement and the agreements and instruments contemplated hereby.
(b) In the event that MSAM shall no longer act as agent on behalf of any or
all of the persons included in the Advancing Party in connection with the
matters contemplated by this Agreement, (i) any agent(s) appointed by persons
included in the Advancing Party as successor agent(s) to MSAM shall be entitled
to, and to exercise on behalf of such other persons included in Advancing
Party, all of the rights and remedies provided for herein with respect to the
Advancing Party and (ii) at any such time as no successor agent(s) shall have
been appointed by any of such persons included in the Advancing Party, such
persons included in the Advancing
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Party shall be entitled to exercise all of the rights and remedies provided for
herein in their individual capacity, including the right to obtain, upon
request, copies of all documents and notices as specified herein. In the event
that MSAM shall no longer act as agent on behalf of any of the persons included
in the Advancing Party hereunder, all consents or waivers of MSAM, acting for
and on behalf of Advancing Party, necessary to effect any action hereunder
shall be required to be given by any successor agent(s) appointed by such
persons included in the Advancing Party or, if no successor(s) has been
appointed, by such persons included in the Advancing Party, prior to the
consummation of such action. The foregoing provisions shall be effective with
respect to the other agreements contemplated herein, including, without
limitation, the Registration Rights Agreement.
(c) Until such time as such Company shall have received written notice from
any person included in the Advancing Party that MSAM is no longer acting as such
person's agent hereunder, the Company shall be entitled to rely on any
instructions and any notices received from MSAM, on behalf of such person
included in the Advancing Party as if received from such person included in the
Advancing Party directly.
Section 10.2 "Counterparts." This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other party. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall
be considered original executed counterparts for purposes of this Section,
provided receipt of copies of such counterparts is confirmed.
Section 10.3 "Governing Law." THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF.
Section 10.4 "Entire Agreement." This Agreement (including agreements
incorporated herein) and the Schedules and Exhibits hereto contain the entire
agreement between the parties with respect to the subject matter hereof and
there are no agreements, understandings, representations or warranties between
the parties other than those set forth or referred to herein. This Agreement
is not intended to confer upon any person not a party hereto (and their
successors and assigns) any rights or remedies hereunder.
Section 10.5 "Notices." All notices and other communications hereunder
shall be sufficiently given for all purposes hereunder if in writing and
delivered personally, sent by documented overnight delivery service or, to the
extent receipt is confirmed, telecopy, telefax or other electronic transmission
service to the appropriate address or number as set forth below. Notices to the
Company shall be addressed to:
Ramco-Gershenson Properties Trust
27600 Northwestern Highway
Suite 200
Southfield, Michigan 48034
Attention: Chief Executive Officer
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<PAGE> 69
Telephone: (248) 350-9900
Facsimile: (248) 350-2468
Ramco-Gershenson Properties, L.P.
27600 Northwestern Highway
Suite 200
Southfield, Michigan 48034
Attention: Chief Executive Officer
Telephone: (248) 350-9900
Facsimile: (248) 350-2468
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Richard Burstein and Donald Kunz
Telephone: (313) 256-7800
Facsimile: (313) 962-0176
or at such other address and to the attention of such other person as the
Company may designate by written notice to Buyer. Notices to Buyer shall be
addressed to:
Special Situations RG REIT, Inc.
1221 Avenue of the Americas
New York, NY 10020
Attention: Operations Officer, 22nd Floor
Telephone: (212) 762-4000
Facsimile: (212) 762-7536
with a copy to:
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, NY 11042-8020
Attention: Robert Schulman
Telephone: (516) 869-7220
Facsimile: (516) 869-7201
Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Allen Curtis Greer, II
Telephone: (212) 878-8000
Facsimile: (212) 878-8375
59
<PAGE> 70
Section 10.6 "Successors and Assigns." This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors.
Except as specifically provided hereby, Buyer shall not be permitted to assign
any of its rights hereunder to any third party, other than (a) to one or more
Affiliates of Buyer or the Advancing Party of which Buyer and the Advancing
Party collectively, directly or indirectly, Beneficially Own a majority of the
voting power and the economic interests, and (b) a Person, assets of which are
under management by Morgan Stanley Asset Management Inc. or any of its
Affiliates, provided that such Affiliates and such Person agree to be bound
hereby and provided that Buyer and the Advancing Party shall remain liable
hereunder, and provided that any bona fide financial institution to which any
Buyer, the Advancing Party or any permitted transferee has sold, transferred,
pledged or otherwise disposed of (including upon foreclosure of a pledge) shares
of Company Stock for the purpose of securing bona fide indebtedness of any Buyer
shall also be entitled to enforce the rights of Buyer and the Advancing Party
hereunder.
Section 10.7 "Headings." The Section, Article and other headings contained
in this Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement. All references to
Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated.
Section 10.8 "Amendments and Waivers." This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by the
Company, the Operating Partnership and holders of at least 66 2/3% of the
outstanding Preferred Units and shares of Company Preferred Stock. Any
modification, amendment or waiver effected in accordance with this Section 10.8
shall be binding upon each holder of any Preferred Units or shares of Company
Preferred Stock, each future holder of all such securities and the Company and
the Operating Partnership. The waiver by any party hereto of a breach of any
term or provision hereof shall not be construed as a waiver of any subsequent
breach.
Section 10.9 "Interpretation; Absence of Presumption." (a) For the purposes
hereof, (i) words in the singular shall be held to include the plural and vice
versa and words of one gender shall be held to include the other gender as the
context requires, (ii) the terms "hereof," "herein," and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole (including all of the Schedules and Exhibits hereto) and
not to any particular provision of this Agreement, and Article, Section,
paragraph, Exhibit and Schedule references are to the Articles, Sections,
paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified,
(iii) the word "including" and words of similar import when used in this
Agreement shall mean "including, without limitation," unless the context
otherwise requires or unless otherwise specified, (iv) the word "or" shall not
be exclusive, and (v) provisions shall apply, when appropriate, to successive
events and transactions.
(b) This Agreement shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.
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Section 10.10 "Severability." Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
Section 10.11 "Further Assurances." The Company, Buyer and the Advancing
Party agree that, from time to time, whether before, at or after any Closing
Date, each of them will execute and deliver such further instruments of
conveyance and transfer and take such other action as may be necessary to carry
out the purposes and intents hereof.
Section 10.12 "Specific Performance." Buyer and the Company each
acknowledge that, in view of the uniqueness of the parties hereto, the parties
hereto would not have an adequate remedy at law for money damages in the event
that this Agreement were not performed in accordance with its terms, and
therefore agree that the parties hereto shall be entitled to specific
enforcement of the terms hereof in addition to any other remedy to which the
parties hereto may be entitled at law or in equity.
Section 10.13 "Several Liability." The obligations and liabilities of the
Advancing Party, and of any Person included in the Advancing Party, under or in
connection with this Agreement are several and not joint. Such obligations
shall be limited in amount to those amounts set forth on Exhibit B.
Section 10.14 "Schedules." Any matter set forth on any Schedule shall be
deemed to be referred to on all other Schedules to which such matter logically
relates and where such reference would be appropriate and can reasonably be
inferred from the matters disclosed on the first Schedule as if set forth on
such other Schedules.
Section 10.15 "Attorney-in-Fact." Buyer hereby appoints MSAM as its
Attorney-In-Fact in connection with the delivery of certificates, the rendering
of consents and the taking of all other actions of Buyer required pursuant
hereto.
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<PAGE> 72
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties hereto as of the day first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Authorized Signature
----------------------------------
Name:
Title:
RAMCO-GERSHENSON PROPERTIES, L.P.
By: /s/ Authorized Signature
----------------------------------
Name:
Title:
MORGAN STANLEY ASSET MANAGEMENT INC.
As Attorney-In-Fact for each of the
clients set forth on Exhibit B hereto:
By: /s/ Authorized Signature
----------------------------------
Name:
Title:
SPECIAL SITUATIONS RG REIT, INC.
By: /s/ Authorized Signature
----------------------------------
Name:
Title:
62
<PAGE> 1
EXHIBIT 10.2
AGREEMENT REGARDING EXERCISE OF REGISTRATION RIGHTS
THIS AGREEMENT REGARDING EXERCISE OF REGISTRATION RIGHTS (this
"Agreement") is made as of September 30, 1997 among RAMCO-GERSHENSON PROPERTIES
TRUST, a Massachusetts business trust (the "Company"), DENNIS GERSHENSON, JOEL
GERSHENSON, BRUCE GERSHENSON, RICHARD GERSHENSON, MICHAEL A. WARD, MICHAEL A.
WARD U/T/A DATED 2/22/77, AS AMENDED (collectively, the "Ramco Principals"),
each of the Persons (collectively, the "Other Holders"; and with the Ramco
Principals, the "Holders") set forth on Exhibit A hereto, SPECIAL SITUATIONS RG
REIT, INC., a Maryland corporation ("Buyer"), and the Advancing Party (as
defined herein).
RECITALS:
WHEREAS, the Company, the Ramco Principals, the other Holders and JCP
Realty, Inc., a Delaware corporation ("JCP"), are parties to a Registration
Rights Agreement (the "Registration Rights Agreement") dated as of May 10, 1996
pursuant to which the Company has granted to the Holders (including the Ramco
Principals) and to JCP certain incidental registration rights exercisable in
accordance with the terms of the Registration Rights Agreement.
WHEREAS, the Company, Buyer and the Advancing Party have entered into a
Registration Rights Agreement dated as of the date hereof (the "Buyer
Registration Rights Agreement") pursuant to which the Company has granted to
Buyer and the Advancing Party certain shelf registration rights, requested
registration rights and incidental registration rights to have Registrable
Securities (as defined in the Buyer Registration Rights Agreement) registered
for sale in accordance with the terms of the Buyer Registration Rights
Agreement (for purposes of this Agreement, the term "Advancing Party" shall
have the meaning ascribed to such term in the Buyer Registration Rights
Agreement).
WHEREAS, the Holders, Buyer, the Advancing Party and the Company wish
to enter into this Agreement to set forth certain agreements of the parties
hereto with respect to the exercise of the incidental registration rights of
the Holders under the Registration Rights Agreement and of Buyer and/or the
Advancing Party under the Buyer Registration Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Exercise of Registration Rights. If (a) the Company proposes to
register for its own account any Company Stock (as defined in the Buyer
Registration Rights Agreement) under the Securities Act of 1933, as amended
(the "Securities Act"), in an Underwritten/Placed Offering (as defined in the
Buyer Registration Rights Agreement), and in connection with such proposed
offering (i) Buyer or the Advancing Party has exercised its rights under
Section 4.1 of the Buyer Registration Rights Agreement to require the Company
to include in such proposed offering Registrable Securities of Buyer or the
Advancing Party, and (ii) one or more of the Holders have exercised their
rights to include Eligible Securities (as defined in the Registration Rights
<PAGE> 2
Agreement) in such proposed offering, and (b) the underwriter or the managing
underwriter, as the case may be, of such Underwritten/Placed Offering informs
the Company of its belief that the amount of securities requested to be
included in such registration or offering exceeds the amount which can be sold
in (or during the time of) such offering without delaying or jeopardizing the
success of the offering (including the price per share of the securities to be
sold), then the number of shares of Registrable Securities of Buyer and/or the
Advancing Party and the number of shares of Eligible Securities of the Holders
to be included in such offering shall be reduced in order to permit such
underwriter or managing underwriter to complete successfully such offering
without delay as follows:
(a) First, any necessary reduction shall be apportioned among any
Eligible Securities held by the Ramco Principals which were proposed to be
included in the proposed offering upon exercise of their respective
registration rights under the Registration Rights Agreement pro rata based on
the number of securities proposed to be registered by such Ramco Principals;
provided, however, that if any Ramco Principal is deceased or has suffered a
divorce prior to filing of the registration statement with respect to the
proposed offering, the Eligible Securities held by such Ramco Principal or by
the estate or the heirs, beneficiaries or devisees of such Ramco Principal
shall not be subject to reduction pursuant to this subclause (a), but shall be
subject to reduction pursuant to subclause (b); and
(b) Second, to the extent any reduction pursuant to clause (a) above is
not sufficient, any further reduction required by the underwriter or the
managing underwriter of the proposed offering shall be apportioned among (i)
shares of Eligible Securities held by any Ramco Principal or by the estate or
the heirs, beneficiaries or devisees of such Ramco Principal to the extent such
Eligible Securities were not reduced on account of the proviso contained in
clause (a) above, (ii) shares of Eligible Securities held by the Other Holders
and (iii) shares of Registrable Securities held by Buyer and/or the Advancing
Party, which were proposed to be included in the proposed offering upon
exercise of the respective registration rights of such holders under the
Registration Rights Agreement or the Buyer Registration Rights Agreement, as
applicable, pro rata based on the number of securities proposed to be
registered by the holders referred to in the preceding clauses (i), (ii) and
(iii).
If JCP has requested that Eligible Securities be registered for sale in a
proposed Underwritten/Placed Offering in which any Holder and either Buyer or
the Advancing Party have elected to include Eligible Securities or Registrable
Securities, as the case may be, and the underwriter or the managing
underwriter, as the case may be, of such Underwritten/Placed Offering informs
the Company of its belief that the amount of securities requested to be
included in such registration or offering exceeds the amount which can be sold
in (or during the time of) such offering without delaying or jeopardizing the
success of the offering (including the price per share of the securities to be
sold), then the Eligible Securities proposed to be registered by JCP shall not
be reduced unless and until all securities proposed to be registered by Buyer,
the Advancing Party and the Holders have been reduced to zero.
2
<PAGE> 3
2. Non-Participation in Requested Registration. The Holders agree not to
exercise their respective incidental registration rights under the Registration
Rights Agreement in connection with a registration of Registrable Securities
effected by the Company pursuant to the exercise by Buyer or the Advancing
Party of the registration rights set forth in Article 2 or Article 3 of the
Buyer Registration Rights Agreement.
3. No Inconsistent Actions. Each of Buyer, the Advancing Party and the
Holders agree not to take any action inconsistent with the terms of Section 1
of this Agreement. To the extent that Buyer or the Advancing Party on the one
hand, or any or all of the Holders on the other hand, attempt to exercise any
rights under Section 4.1 of the Buyer Registration Rights Agreement or Section
3.1 of the Registration Rights Agreement (as applicable) in a manner
inconsistent with the terms of this Agreement, the Company shall have the right
to refuse to register Registrable Securities or Eligible Securities, as the
case may be, under such sections of such agreements so as to give effect to the
terms of this Agreement.
4. Specific Performance. The parties hereto acknowledge and agree that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any party may, in its sole discretion, apply to any
court of law or equity of competent jurisdiction (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
5. Miscellaneous.
(a) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other parties. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section 5, provided the receipt of such counterparts is confirmed.
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CHOICE OF LAW PRINCIPLES THEREOF.
(c) Entire Agreement. This Agreement (including agreements
incorporated herein) contains the entire agreement between the parties with
respect to the subject matter hereof and there are no agreements or
understandings between the parties other than those set forth or referred to
herein. This Agreement is not intended to confer upon any person not a party
hereto (and their successors and assigns) any rights or remedies hereunder.
(d) Notices. All notices and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or, to the extent
receipt is confirmed, telecopy, telefax or other electronic transmission
service to the appropriate address or number as set forth below. Notices to
the Company shall be addressed to:
3
<PAGE> 4
Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48043
Attention: Chief Executive Officer
Telecopy Number: (248) 350-9900
Facsimile Number: (248) 350-2469
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Richard J. Burstein and Donald J. Kunz
Telephone Number: (313) 256-7800
Facsimile Number: (313) 962-0176
or at such other address and to the attention of such other person as the
Company may designate by written notice to the Holders, Buyer and the Advancing
Party. Notice to each of the Holders shall be addressed to such Holder at the
following address:
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Attention: Chief Executive Officer
Telecopy Number: (248) 350-9900
Facsimile Number: (248) 350-2469
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Richard J. Burstein and Donald J. Kunz
Telephone Number: (313) 256-7800
Facsimile Number: (313) 962-0176
4
<PAGE> 5
or at such other address and to the attention of such other person as the
applicable Holder may designate by written notice to the Company, Buyer and the
Advancing Party. Notices to Buyer and the Advancing Party shall be addressed
to:
Special Situations RG REIT, Inc.
1221 Avenue of the Americas
New York, N.Y. 10020
Attention: Operations Controller, 22nd Floor
Telephone Number: (212) 762-4000
Facsimile Number: (212) 762-7536
with a copy to:
Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Allen Curtis Greer, II
Telephone Number: (212) 878-8000
Facsimile Number: (212) 878-8375
or at such other address and to the attention of such other person as Buyer or
the Advancing Party may designate by written notice to the Company and the
Holders.
(e) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. To the extent that any party hereto assigns
any rights it may have under the Registration Rights Agreement or the Buyer
Registration Rights Agreement, as the case may be, such assignment, and the
exercise of any registration rights under the applicable agreement, shall be
subject to the terms and conditions of this Agreement. The Advancing Party
shall, without any assignment or any further act or deed or the execution or
delivery of any further instrument or agreement, succeed to the rights and
obligations of Buyer and the Advancing Party upon the Reorganization (as
defined in the Buyer Registration Rights Agreement).
(f) Headings. The Section and other headings contained in
this Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement.
(g) Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed by
the party against whom enforcement of any such modification or amendment is
sought. Any party hereto may, only by an instrument in writing, waive
compliance by any other party hereto with any term or provision hereof on the
part of such other party hereto to be performed or complied with. The waiver
by any party hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.
5
<PAGE> 6
(h) Interpretation; Absence of Presumption. For the
purposes hereof, (i) words in the singular shall be held to include the plural
and vice versa and words of one gender shall be held to include the other
gender as the context requires (ii) the terms "hereof", "herein", and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, paragraph or other references are to
the Sections, paragraphs, or other references to this Agreement unless
otherwise specified, (iii) the words "including" and words of similar import
when used in this Agreement shall mean "including, without limitation," unless
the context otherwise requires or unless otherwise specified, (iv) the word
"or" shall not be exclusive, and (v) provisions shall apply, when appropriate,
to successive events and transactions.
This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
(i) Severability. Any provision hereof which is invalid
or unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
6
<PAGE> 7
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
THE COMPANY:
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Authorized Signature
-----------------------------------
Name:
Title:
HOLDERS:
/s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson
/s/ Joel Gershenson
-----------------------------------
Joel Gershenson
/s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
/s/ Richard Gershenson
-----------------------------------
Richard Gershenson
/s/ Michael A. Ward
-----------------------------------
Michael A. Ward
MICHAEL A. WARD U/T/A, DATED 2/22/77,
AS AMENDED
By: /s/ Michael A. Ward
--------------------------------
Michael A. Ward, Trustee
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
(Signatures Continued on next page)
7
<PAGE> 8
(Signatures Continued from previous page)
JACKSON CROSSING
RAMCO JACKSON ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson
Vice President
SOUTHFIELD PLAZA + S-12
SOUTHFIELD PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
ROSEVILLE PLAZA
ROSEVILLE PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
(Signatures continued on next page)
8
<PAGE> 9
(Signatures continued from previous page)
TEL-TWELVE SHOPPING CENTER
TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: R.G. TEL-TWELVE CO.,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
CLINTON VALLEY MALL
STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO CONSUMERS MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan
limited
partnership, its General Partner
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, a General
Partner
EASTRIDGE COMMONS
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited
partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Vice
President
(Signatures continued on next page)
9
<PAGE> 10
(Signatures continued from previous page)
NEW TOWNE PLAZA
FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, a General Partner
LAKE ORION PLAZA
W & G REALTY COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
OAK BROOK SQUARE
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation,
general partner
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Vice
President
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
(Signatures continued on next page)
10
<PAGE> 11
(Signatures continued from previous page)
EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-----------------------------------------
Dennis Gershenson, Partner
NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan partnership
By: /s/ Dennis Gershenson
-----------------------------------------
Dennis Gershenson, Partner
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
-----------------------------------------
Dennis Gershenson, Partner
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership, its General Partner
By: /s/ Dennis Gershenson
-----------------------------------------
Dennis Gershenson, Partner
(Signatures continued on next page)
11
<PAGE> 12
(Signatures continued from previous page)
TROY TOWNE CENTER
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
WEST ALLIS TOWN CENTER
WEST ALLIS SHOPPING CENTER ASSOCIATES,
a Wisconsin general partnership
By: RAMCO ALLIS DEVELOPMENT COMPANY,
its Partner
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
FERNDALE PLAZA
MICHIGAN SHOPPING CENTER VENTURE II
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership,
its general partner
By: RAMCO GP,
a Michigan co-partnership, Partner
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
(Signatures
(Signatures continued on page)
12
<PAGE> 13
(Signatures continued from previous page)
WEST OAKS II
RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership,
its General Partner
By:
------------------------------------
Dennis Gershenson, Partner
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By:
----------------------------------------
Dennis Gershenson, Partner
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By:
-----------------------------------------
Dennis Gershenson, Partner
THE ADVANCING PARTY:
MS REAL ESTATE SPECIAL SITUATIONS INC.
As Attorney-In-fact for each of the clients
set forth on Exhibit B hereto:
By:
-----------------------------------------
Name:
Title:
(Signatures continued on next page)
13
<PAGE> 14
(Signatures continued from previous page)
BUYER:
SPECIAL SITUATIONS RG REIT, INC.
By: /s/ Authorized Signature
-------------------------------------------
Name:
Title:
14
<PAGE> 1
EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
by and among
RAMCO-GERSHENSON PROPERTIES TRUST,
SPECIAL SITUATIONS RG REIT, INC.,
and
THE ADVANCING PARTY NAMED HEREIN
dated as of
September 30, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 1
Definitions
Section 1.1 "Advancing Party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 "Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.3 "Buyer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 "Buyer/Colorado Sharing Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.5 "Colorado Investor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.6 "Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.7 "Company Registration Expenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.8 "Company Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.9 "Company Preferred Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.10 "Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.11 "Exercise Notice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.12 "Extraordinary Transaction" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.13 "Extraordinary Transaction Shares" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.14 "NASD" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.15 "Registrable Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.16 "Registration Expenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.17 "SEC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.18 "Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.19 "Shelf Registration" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.20 "Stock Purchase Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.21 "Tag-Along Notice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.22 "Tag-Along Shares" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.24 "Underwritten/Placed Offering" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2
Shelf Registration
Section 2.1 Obligation to File and Maintain . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.2 Black-Out Periods of Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3 Black-Out Periods of the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.4 Number of Shelf Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5 Size of Shelf Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.7 Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE 3
Requested Registration
Section 3.1 Obligation to File. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.2 Underwriting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.3 Black-Out Periods of Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.4 Black-Out Periods of the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.5 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 4
Incidental Registration
Section 4.1 Notification and Inclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.2 Cut-back Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.3 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.4 Duration of Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 5
Registration Procedures
Section 5.1 Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 6
Preparation
Section 6.1 Preparation, Reasonable Investigation . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 7
Tag-Along Rights
Section 7.1 Tag-Along Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.2 Rights and Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.3 Number of Shares to be Included . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.4 Abandonment of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.5 Terms of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.6 Timing of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE 8
Indemnification
Section 8.1 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.2 Indemnification by Buyer and the Advancing Party . . . . . . . . . . . . . . . . . . . 15
Section 8.3 Notices of Claims, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.4 Other Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.5 Indemnification Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.6 Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 9
Covenants
Section 9.1 Covenants Relating to Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 10
Miscellaneous
Section 10.1 Buyer Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10.2 Exercise of Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10.9 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 10.10 Interpretation; Absence of Presumption . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 10.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
iii
<PAGE> 5
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of September
30, 1997, by and among Ramco-Gershenson Properties Trust, a Massachusetts
business trust (together with its successors, including, without limitation
Ramco-Gershenson Properties Trust, a Maryland real estate investment trust, and
Ramco Gershenson Properties, L.P., the "Company"), Special Situations RG REIT,
Inc., a Maryland corporation ("Buyer"), and the Advancing Party (as herein
defined). Capitalized terms not otherwise defined herein have the meaning
ascribed to them in the Stock Purchase Agreement (as hereinafter defined).
WHEREAS, the Company, Buyer and the Advancing Party have entered into
a Preferred Units and Stock Purchase Agreement, dated as of the date hereof (the
"Stock Purchase Agreement"), that provides for the purchase by Buyer and sale by
(a) the Operating Partnership (as defined in the Stock Purchase Agreement) of
Preferred Units to Buyer and the Colorado Investor, and (b) the Company to
Buyer, the Colorado Investor and the Advancing Party of a newly authorized
series of convertible preferred stock of the Company (the "Company Preferred
Stock");
WHEREAS, the Amended Partnership Agreement establishes the terms and
conditions upon which holders of Preferred Units may tender Preferred Units for
Company Stock or, at the option of the Company, redemption in cash; and
WHEREAS, in order to induce Buyer, the Colorado Investor and the
Advancing Party to enter into the Stock Purchase Agreement and the Amended
Partnership Agreement, the Company has agreed to provide the registration rights
set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE 1
Definitions
As used herein, the following terms shall have the following meanings:
Section 1.1 "Advancing Party" shall mean MS Real Estate Special
Situations Inc., Stichting Pensionfonds ABP, Stichting Bedrijspensioenfonds Voor
De Metaalnijverheid, The Morgan Stanley Real Estate Special Situations Fund I,
L.P. and The Morgan Stanley Real Estate Special Situations Fund II, L.P.,
collectively and severally. As used herein, the "Advancing Party" shall include
the Colorado Investor regardless of the whether it is acting jointly with Buyer,
as a member of the Advancing Party, or on its own behalf.
Section 1.2 "Agreement" shall have the meaning set forth in the
first paragraph hereof.
<PAGE> 6
Section 1.3 "Buyer" shall have the meaning set forth in the first
paragraph hereof and until such time as the Reorganization occurs, as the
context requires, shall be deemed to include the Colorado Investor acting
severally, pursuant to the Buyer/Colorado Sharing Agreement. Thereafter, Buyer
shall include, as the context requires, the Advancing Party and its constituent
Persons, collectively and severally.
Section 1.4 "Buyer/Colorado Sharing Agreement" shall mean that
certain agreement substantially in the form attached as Exhibit D to the Stock
Purchase Agreement pursuant to which the Colorado Investor agrees, among other
things, to purchase for its own account the Colorado Percentage of any Units
Purchase.
Section 1.5 "Colorado Investor" shall mean The Morgan Stanley
Real Estate Special Situations Fund II, L.P., a Delaware limited partnership.
Section 1.6 "Company" shall having the meaning set forth in the
first paragraph hereof.
Section 1.7 "Company Registration Expenses" means the fees and
disbursements of counsel and independent public accountants for the Company
incurred in connection with Company's performance of or compliance with this
Agreement, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, and any
premiums and other costs of policies of insurance obtained by the Company
against liabilities arising out of the sale of any securities.
Section 1.8 "Company Common Stock" shall mean the shares of
beneficial interest, par value $0.01 per share, of Ramco- Gershenson Properties
Trust (the "Trust Common Shares"), or any shares of beneficial interest of the
class issued to all holders of Trust Common Shares following upon the
Reorganization.
Section 1.9 "Company Preferred Stock" shall have the meaning set
forth in the second paragraph hereof.
Section 1.10 "Exchange Act" means the Securities Exchange Act of
1934, as amended, and any successor thereto, and the rules and regulations
thereunder.
Section 1.11 "Exercise Notice" shall have the meaning set forth in
Section 7(a).
Section 1.12 "Extraordinary Transaction" means (i) any merger,
consolidation, sale or acquisition of assets, recapitalization, other business
combination, liquidation, or other action out of the ordinary course of business
of the Company, or (ii) any issuance of securities, in either case involving the
sale, issuance or other disposition of capital stock of the Company
representing, in the aggregate, at least 30% of the capital stock of the Company
on a fully diluted basis.
Section 1.13 "Extraordinary Transaction Shares" shall have the
meaning set forth in Section 7(a).
2
<PAGE> 7
Section 1.14 "NASD" means the National Association of Securities
Dealers, Inc.
Section 1.15 "Registrable Securities" means (i) any and all shares
of Company Common Stock, (ii) any securities issued or issuable with respect to
any Company Preferred Stock or other securities acquired by Buyer, the Advancing
Party or Kimco pursuant to the Stock Purchase Agreement by way of conversion,
exchange, stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise, and (iii) if a Qualified Underwritten Offering has not occurred prior
to September 30, 1999, Company Preferred Stock. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (A) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, or (B) such securities shall have been sold in accordance with Rule
144 (or any successor provision) under the Securities Act.
Section 1.16 "Registration Expenses" means the Company
Registration Expenses, all registration, filing and stock exchange or NASD fees,
all fees and expenses of complying with securities or blue sky laws, all
printing expenses, messenger and delivery expenses, any reasonable fees and
disbursements of one counsel and one local counsel retained by Buyer, and any
fees and disbursements of underwriters customarily paid by sellers of securities
who are not the issuers of such securities and all underwriting discounts and
commissions and transfer taxes, if any, but shall not include the fees and
disbursements of underwriters with respect to the Registrable Securities.
Section 1.17 "SEC" means the Securities and Exchange Commission,
and any successor thereto.
Section 1.18 "Securities Act" means the Securities Act of 1933, as
amended, and any successor thereof, and the rules and regulations thereunder.
Section 1.19 "Shelf Registration" shall have the meaning set forth
in Section 2(a).
Section 1.20 "Stock Purchase Agreement" shall have the meaning set
forth in the second paragraph hereof.
Section 1.21 "Tag-Along Notice" shall have the meaning set forth
in Section 7(a).
Section 1.22 "Tag-Along Shares" shall have the meaning set forth
in Section 7(a).
Section 1.23 "Third Party" shall have the meaning set forth in
Section 7(a).
Section 1.24 "Underwritten/Placed Offering" means a sale of
securities of the Company to an underwriter or underwriters for reoffering to
the public or on behalf of a person other than the Company through an agent for
sale to the public.
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Capitalized terms which are used but not defined herein, and which are
defined in the Stock Purchase Agreement, are used herein with the meanings set
forth in the Stock Purchase Agreement.
ARTICLE 2
SHELF REGISTRATION
Section 2.1 Obligation to File and Maintain. At any time,
promptly upon the written request of Buyer, or the Advancing Party, the Company
will use its best efforts to file, at a time specified in such request but not
before the earlier of (a) the first anniversary of the Qualified Underwritten
Offering and (b) the second anniversary of the Initial Closing, with the
Commission a registration statement under the Securities Act for the offering on
a continuous or delayed basis in the future of all of the Registrable Securities
(the "Shelf Registration"). The Shelf Registration shall be on an appropriate
form and the Shelf Registration and any form of prospectus included therein or
prospectus supplement relating thereto shall reflect such plan of distribution
or method of sale as Buyer may from time to time notify the Company, including
the sale of some or all of the Registrable Securities in a public offering or,
if requested by Buyer, or the Advancing Party, subject to receipt by the Company
of such information (including information relating to purchasers) as the
Company reasonably may require, (i) in a transaction constituting an offering
outside the United States which is exempt from the registration requirements of
the Securities Act in which the Company undertakes to effect registration of
such shares as soon as possible after the completion of such offering in order
to permit such shares to be freely tradeable in the United States, (ii) in a
transaction constituting a private placement under Section 4(2) of the
Securities Act in connection with which the Company undertakes to register such
shares after the conclusion of such placement to permit such shares to be freely
tradeable by the purchasers thereof, or (iii) in a transaction under Rule 144A
of the Securities Act in connection with which the Company undertakes to
register such shares after the conclusion of such transaction to permit such
shares to be freely tradeable by the purchasers thereof. The Company shall use
its best efforts to keep the Shelf Registration continuously effective for the
period beginning on the date on which the Shelf Registration is declared
effective and ending on the first date that there are no Registrable Securities.
During the period during which the Shelf Registration is effective, the Company
shall supplement or make amendments to the Shelf Registration, if required by
the Securities Act or if reasonably requested by Buyer or an underwriter of
Registrable Securities, including to reflect any specific plan of distribution
or method of sale, and shall use its reasonable best efforts to have such
supplements and amendments declared effective, if required, as soon as
practicable after filing.
Section 2.2 Black-Out Periods of Buyer. Subject to the
conditions of this Section 2.2, (i) the Company shall have the right,
exercisable on not more than two occasions, in any period of twenty-four months,
from time to time to require Buyer not to sell under the Shelf Registration or
to suspend the effectiveness thereof during the period starting with the date 30
days prior to the Company's good faith estimate, as certified in writing by an
executive officer of the Company to Buyer, of the proposed date of filing of a
registration statement or a preliminary prospectus supplement relating to an
existing shelf registration statement, in either case, pertaining to an
underwritten public offering of equity securities of the Company for the
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account of the Company, and ending on the date 90 days following the effective
date of such registration statement or the date of filing of such prospectus
supplement, and (ii) the Company shall be entitled to postpone or suspend (but
not for a period exceeding 90 days) the filing or effectiveness of a
registration statement otherwise required to be prepared and filed by it
pursuant to this Article 2 if the Company determines, in its good faith
judgment, that such registration and offering or continued effectiveness would
interfere with any material financing, acquisition, disposition, corporate
reorganization or other material transaction involving the Company or any of
its subsidiaries or public disclosure thereof would be required prior to the
time such disclosure might otherwise be required, or when the Company is in
possession of material information that it deems advisable not to disclose in a
registration statement.
Section 2.3 Black-Out Periods of the Company. Subject to the
conditions of this Section 2.3, Buyer shall have the right, exercisable on not
more than two occasions, to require the Company not to sell any common equity
securities of the Company or any securities convertible into common equity
securities of the Company under any registration statement or prospectus
supplement relating to an existing shelf registration statement (other than
sales of shares of Common Stock upon the redemption of Operating Partnership
Units, or limited partnership units of any other Subsidiary of the Company and
sales of equity securities issued or granted pursuant to any employee benefit or
similar plan or any dividend reinvestment plan), or to suspend the effectiveness
thereof, during the period starting with the date 15 days prior to Buyer's good
faith estimate, as certified in writing by an executive officer of Buyer to the
Company, of a proposed date of filing of a preliminary prospectus supplement
relating to a Shelf Registration filed pursuant to Section 2.1, pertaining to an
underwritten public offering of Registrable Securities, and ending on the date
60 days following the date of filing the final prospectus supplement, but in no
event on a date later than 75 days following the date of filing of the
preliminary prospectus supplement.
Section 2.4 Number of Shelf Registrations. Shelf Registration
shall be deemed to have been effected as such registration becomes effective
pursuant to the Securities Act and is kept continuously effective of a period of
at least two years; provided, however, that no Shelf Registration shall be
deemed to have been effected if such registration cannot be used by Buyer or the
Advancing Party for more than 90 days as a result of any stop order, injunction
or other order of the Commission or other Government Authority for any reason
other than an act or omission of Buyer or the Advancing Party.
Section 2.5 Size of Shelf Registration. The Company shall
not be required to effect a Shelf Registration of fewer than 5,000,000 shares or
other units of Registrable Securities (as adjusted for any stock splits or
similar events which occur after the date hereof), except that if there are less
than 5,000,000 (as adjusted for any stock splits, reverse stock splits or
similar events which occur after the date hereof) shares of Registrable
Securities outstanding, then the Company shall be required to effect a Shelf
Registration of all of the remaining shares or other units of Registrable
Securities outstanding.
Section 2.6 Expenses. All Registration Expenses incurred in
connection with any Shelf Registration which may be requested under this Article
2 shall be borne by the Company.
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Section 2.7 Selection of Underwriters. Any and all underwriters
or other agents involved in any sale of Registrable Securities pursuant to a
registration statement contemplated by this Section 2 shall include such
underwriter(s) or other agent(s) as selected by Buyer or the Advancing Party and
approved of by the Company, which approval shall not be unreasonably withheld;
provided that Morgan Stanley Dean Witter Discover or any other Affiliate of
Buyer or the Advancing Party shall in all events be approved by the Company.
The Company shall (together with Buyer or the Advancing Party if legally
required) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting, as well as all other
documents customary in similar offerings, which documents are in customary form
and reasonably acceptable to the Company, including, without limitation,
underwriting agreements, custody agreements, powers of attorney, and
indemnification agreements.
ARTICLE 3
REQUESTED REGISTRATION
Section 3.1 Obligation to File. If, with respect to Registerable
Securities at any time, and from time to time thereafter, the Company shall
receive from Buyer a written request for the Company to effect any registration,
qualification or compliance with respect to Registerable Securities with respect
to at least $5,000,000 in expected aggregate offering price (as determined based
on the highest closing price of the Company Common Stock on a public exchange
within five business days of such written request) to the public, net of
underwriters' discounts and commissions), or the equivalent thereof if such
Registerable Securities include or are composed solely of Company Preferred
Stock or other securities, then held by Buyer or the Advancing Party, then, at a
time specified in such request but not before the earlier of (a) the first
anniversary of the Qualified Underwritten Offering and (b) the second
anniversary of the Initial Closing, the Company will use reasonable efforts to
effect all such registrations, qualifications and compliances when so specified
in such request, subject as aforesaid and provided that the Company shall have
at least 120 days after such request (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under the applicable blue sky or other state securities laws and
appropriate compliance with regulations issued under the Securities Act and any
other governmental requirements or regulations) to effect all such
registrations, qualifications and compliances as would permit or facilitate the
sale and distribution of Registerable Securities as are specified in such
request; provided that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Article 3:
(i) in a particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act; or
(ii) if the Company has already effected one registration for Buyer
pursuant to this Article 3 during the immediately preceding twelve-month period
or if there is a registration effective pursuant to Article 2 at the time of
such request.
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Section 3.2 Underwriting. If Buyer intends to distribute the
Registerable Securities covered by its request by means of an underwritten
public offering, it shall so advise the Company. Any and all underwriters or
other agents involved in any sale of Registrable Securities pursuant to a
registration statement contemplated by this Article 3 shall include such
underwriter(s) or other agent(s) as selected by Buyer or the Advancing Party and
approved of by the Company, which approval shall not be unreasonably withheld;
provided that Morgan Stanley Dean Witter Discover or any other Affiliate of
Buyer or the Advancing Party shall in all events be approved by the Company.
The Company shall (together with Buyer or the Advancing Party if legally
required) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting, as well as all other
documents customary in similar offerings, which documents are in customary form
and reasonably acceptable to the Company, including, without limitation,
underwriting agreements, custody agreements, powers of attorney, and
indemnification agreements.
If the underwriter has not limited the number of shares of
Registerable Securities to be underwritten, the Company may include securities
for its own account or the account of others in such registration if the
underwriter so agrees and if the number of shares of Registerable Securities
which would otherwise have been included in such registration and underwriting
will not thereby be limited, and, in the reasonable belief of such underwriter,
if the per share sales price for the Registerable Securities will not thereby be
materially and adversely affected.
Section 3.3 Black-Out Periods of Buyer. Subject to the
conditions of this Section 3.3, (i) the Company shall have the right from time
to time require Buyer not to sell under the registration requested pursuant to
this Article 3 or to suspend the effectiveness thereof during the period
starting with the date 30 days prior to the Company's good faith estimate, as
certified in writing by an executive officer of the Company to Buyer, of the
proposed date of filing of a registration statement or a preliminary prospectus
supplement relating to an existing registration statement, in either case,
pertaining to an underwritten public offering of equity securities of the
Company for the account of the Company, and ending on the date 90 days following
the effective date of such registration statement or the date of filing of such
prospectus supplement, and (ii) the Company shall be entitled to postpone or
suspend (but not for a period exceeding 90 days) the filing or effectiveness of
a registration statement otherwise required to be prepared and filed by it
pursuant to this Article 3 if the Company determines, in its good faith
judgment, that such registration and offering or continued effectiveness would
interfere with any material financing, acquisition, disposition, corporate
reorganization or other material transaction involving the Company or any of its
subsidiaries or public disclosure thereof would be required prior to the time
such disclosure might otherwise be required, or when the Company is in
possession of material information that it deems advisable not to disclose in a
registration statement.
Section 3.4 Black-Out Periods of the Company. Subject to the
conditions of this Section 3.4, Buyer shall have the right, exercisable on not
more than two occasions, to require the Company not to sell any common equity
securities of the Company or any securities convertible into common equity
securities of the Company under any registration statement or prospectus
supplement relating to an existing registration statement requested pursuant to
this
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Article 3 (other than sales of shares of Common Stock upon the redemption of
Operating Partnership Units, or limited partnership units of any other
Subsidiary of the Company and sales of equity securities issued or granted
pursuant to any employee benefit or similar plan or any dividend reinvestment
plan), or to suspend the effectiveness thereof, during the period starting with
the date 15 days prior to Buyer's good faith estimate, as certified in writing
by an executive officer of Buyer to the Company, of a proposed date of filing
of a preliminary prospectus supplement relating to a registration statement
filed pursuant to Section 3.1, pertaining to an underwritten public offering of
Registrable Securities, and ending on the date 60 days following the date of
filing the final prospectus supplement, but in no event on a date later than 75
days following the date of filing of the preliminary prospectus supplement.
Section 3.5 Expenses. All Registration Expenses incurred in
connection with any registration which may be requested under this Article 3
shall be borne by the Company.
ARTICLE 4
INCIDENTAL REGISTRATION
Section 4.1 Notification and Inclusion. If, prior to the date
which is 10 years after the date of this Agreement, the Company proposes to
register for its own account any Company Stock under the Securities Act (other
than a registration relating solely to the sale of securities to participants in
a dividend reinvestment plan, a registration on Form S-4 relating to a business
combination or similar transaction permitted to be registered on such Form S-4,
a registration on Form S-8 relating solely to the sale of securities to
participants in a stock or employee benefit plan, or a registration permitted
under Rule 462 under the Securities Act registering additional securities of the
same class as were included in an earlier registration statement for the same
offering and declared effective), the Company shall, at each such time, promptly
give written notice of such registration to Buyer and the Advancing Party. Upon
the written request of Buyer or the Advancing Party, given within 10 days after
receipt of such notice by Buyer or the Advancing Party, the Company shall seek
to include in such proposed registration such Registerable Securities of Buyer
or the Advancing Party as Buyer or the Advancing Party shall request be so
included and shall use its best efforts to cause a registration statement
covering all of the Registerable Securities of Buyer or the Advancing Party that
Buyer or the Advancing Party has requested to be registered to become effective
under the Securities Act. The Company shall be under no obligation to complete
any offering of securities it proposes to make under this Article 4 and shall
incur no liability to Buyer or the Advancing Party for its failure to do so.
If, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to Buyer and the
Advancing Party and, thereupon, (i) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
Registerable Securities in connection with such registration (but not from its
obligation to pay the Registration Expenses incurred in connection therewith)
and (ii) in the case of a determination to delay registering, the Company shall
be permitted to delay registering any Registerable Securities for the same
period as the delay in registering such other securities.
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Section 4.2 Cut-back Provisions. If a registration pursuant to
this Article 4 involves an Underwritten/Placed Offering of the securities so
being registered, whether or not solely for sale for the account of the Company,
which securities are to be distributed by or through one or more underwriters of
recognized standing under underwriting terms customary for such transaction, and
the underwriter or the managing underwriter, as the case may be, of such
Underwritten/Placed Offering shall inform the Company of its belief that the
amount of securities requested to be included in such registration or offering
exceeds the amount which can be sold in (or during the time of) such offering
without delaying or jeopardizing the success of the offering (including the
price per share of the securities to be sold), then the number of shares of
Registerable Securities of Buyer and the Advancing Party to be included in the
registration and underwriting shall be reduced; provided that, except as
provided in that certain Agreement Regarding Exercise of Registration Rights of
even date herewith, a true, correct and complete copy of which (together with
the Registration Rights Agreement dated as of May 10, 1996 which it amends) is
attached hereto as Exhibit A (the "Amended Existing Registration Rights
Agreement"), the shares of other holders of securities of the Company included
in the registration and underwriting shall be reduced prior to any reduction of
Buyer and the Advancing Party. The Company covenants that the Amended Existing
Registration Rights Agreement will not be amended or altered except as permitted
therein, nor will any waiver or assignment of rights thereunder be made with the
concurrence of the Company or any of the Company's Affiliates which could have
the effect of adversely affecting the rights of Buyer otherwise available in
this Article 4. The Company Stock so withdrawn shall also be withdrawn from
registration.
Section 4.3 Expenses. The Company shall bear and pay all
Registration Expenses incurred in connection with any registration of
Registerable Securities pursuant to this Article 4.
Section 4.4 Duration of Effectiveness. At the request of Buyer
or the Advancing Party, the Company shall, subject to Section 2.2, use its best
efforts to keep any registration statement for which Registerable Securities are
included under this Article 4 effective and usable for up to 90 days unless the
distribution of securities registered thereunder has been earlier completed;
provided, however, that in no event will the Company be required to prepare or
file audited financial statements with respect to any fiscal year by a date
prior to the date on which the Company would be so required to prepare and file
such audited financial statements if such registration statement were no longer
effective and usable.
ARTICLE 5
REGISTRATION PROCEDURES
Section 5.1 Registration Procedures. In connection with the
filing of any registration statement as provided in Article 2, 3 or 4 the
Company shall use its best efforts to, as expeditiously as reasonably
practicable:
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(a) prepare and file with the Commission the
requisite registration statement (including a prospectus therein) to
effect such registration and use its best efforts to cause such
registration statement to become effective, provided that before
filing such registration statement or any amendments or supplements
thereto, the Company will furnish to the counsel selected by Buyer and
the Advancing Party copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel before
any such filing is made, and the Company will comply with any
reasonable request made by such counsel to make changes in any
information contained in such documents relating to Buyer;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
maintain the effectiveness of such registration and to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement until, in the
case of Article 2, the termination of the period during which the
Shelf Registration is required to be kept effective, or, in the case
of Article 3 and 4, the earlier of such time as all of such securities
have been disposed of and the date which is 120 days or 90 days, in
the case of Article 3 and Article 4, respectively, after the date of
initial effectiveness of such registration statement;
(c) furnish to Buyer and the Advancing Party such
number of conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statements (including each complete prospectus and any
summary prospectus) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, including documents
incorporated by reference, as Buyer or the Advancing Party may
reasonably request, but only while the Company is required under the
provisions hereof to cause a registration statement to remain in
effect;
(d) use reasonable efforts to register or qualify
all Registrable Securities under such other securities or blue sky
laws of such jurisdictions as Buyer or the Advancing Party shall
reasonably request, to take all actions which may be reasonably
necessary to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable to enable
Buyer and the Advancing Party to consummate the disposition in such
jurisdictions of the securities owned by Buyer or the Advancing Party,
except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
paragraph be obligated to be so qualified, or to consent to general
service of process in any such jurisdiction, to amend its Declaration
of Trust or change the composition of its assets to conform with due
securities laws of any such jurisdiction, or to subject the Company to
any material tax in any such jurisdiction where it is not then so
subject;
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(e) cause all Registrable Securities covered by such registration
statement to be registered with or approved by such other Government
Authority as may be reasonably necessary to enable Buyer and the
Advancing Party to consummate the disposition of such Registrable
Securities;
(f) furnish to Buyer and the Advancing Party a signed counterpart,
addressed to Buyer and the Advancing Party (and the underwriters, if
any), of
(i) an opinion of counsel for the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory
in form and substance to Buyer and the Advancing Party, and
(ii) to the extent permitted by then applicable rules of
professional conduct, a "comfort" letter, dated the effective date
of such registration statement (and, if such registration includes
an underwritten public offering, dated the date of the closing
under the underwriting agreement), signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement;
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of
such financial statements, all as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities;
(g) immediately notify Buyer and the Advancing Party at any time
when the Company becomes aware that a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
in the light of the circumstances under which they were made, and at the
request of Buyer or the Advancing Party promptly prepare and furnish to
Buyer and the Advancing Party a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances under which they were made;
(h) comply or continue to comply in all material respects with the
Securities Act and the Exchange Act and with all applicable rules and
regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the
period of at least 12 months, but not more than 18 months, beginning with
the first full calendar month after the effective date of
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such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act, and not file any
amendment or supplement to such registration statement or prospectus to
which Buyer or the Advancing Party shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act, having been (i)
furnished with a copy thereof at least five Business Days prior to the
filing thereof, unless (ii) the Company has been reasonably advised by
legal counsel to the effect that the Company is legally required to, and
incurs liability (immediately and in a manner in which later disclosure
will not and could not avoid) third-party purchasers or offerors of
securities of the Company if the Company does not file any such amendment
or supplement on a schedule not permitting Buyer the opportunity to review
prior to filing as provided in clause (i), in which case Buyer will be
furnished with a copy thereof at least one Business Day prior to the
filing thereof;
(i) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement; and
(ii) list all Company Stock covered by such registration statement
on any securities exchange on which any of the Company Stock is then
listed. Buyer and the Advancing Party shall furnish in writing to the
Company such information regarding Buyer or the Advancing Party (and any
of the affiliates of either), the Registrable Securities to be sold, the
intended method of distribution of such Registrable Securities, and such
other information requested by the Company as is necessary for inclusion
in the registration statement relating to such offering pursuant to the
Securities Act and the rules of the Commission thereunder. Such writing
shall expressly state that it is being furnished to the Company for use
in the preparation of a registration statement, preliminary prospectus,
supplementary prospectus, final prospectus or amendment or supplement
thereto, as the case may be.
Buyer and the Advancing Party each agree by acquisition of the Registrable
Securities that upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraph (g) of this Article 5, Buyer and
the Advancing Party, as the case may be, will forthwith discontinue their
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until Buyer and Advancing Party's
receipt of the copies of the supplemented or amended prospectus contemplated by
paragraph (g) of this Article 5.
ARTICLE 6
PREPARATION
Section 6.1 Preparation, Reasonable Investigation. In connection
with the preparation and filing of the registration statement under the
Securities Act, the Company will give Buyer and the Advancing Party, the
underwriters of each, if any, and their respective counsel, the opportunity to
participate in the preparation of such registration statement, each
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prospectus included therein or filed with the Commission, and each amendment
thereof or supplement thereto, and will give each of them such access to its
books and records and such opportunities to discuss the business of the Company
with its officers, its counsel and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of
Buyer's and the Advancing Party's and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
ARTICLE 7
TAG-ALONG RIGHTS
Section 7.1 Tag-Along Rights. From and after the date hereof until
the earlier of (i) the date on which Buyer and the Advancing Party shall
collectively own shares of Company Stock representing less than 15% of the then
outstanding shares of Company Stock on a fully diluted basis and (ii) the date
which is ten years after date of this Agreement, Buyer and the Advancing Party
shall be entitled to the rights set forth in this Section 7.
Section 7.2 Rights and Notice. The Company shall not directly or
indirectly sell or otherwise dispose of shares of Company Stock to any person (a
"Third Party") in connection with an Extraordinary Transaction in which
the-consideration for some or all of the shares of Company Stock is cash or cash
equivalents (as determined under GAAP), unless the terms and conditions of such
sale or other disposition shall include an offer to Buyer and the Advancing
Party to include, at the option of Buyer or the Advancing Party, in such sale or
other disposition the Registrable Securities at the time of such sale or other
disposition determined in accordance with Section 7.3 (the "Tag-Along Shares").
The Company shall send a written notice (the "Tag-Along Notice") to Buyer and
the Advancing Party setting forth the number of shares of Company Stock proposed
to be sold or otherwise disposed of in the Extraordinary Transaction (the
"Extraordinary Transaction Shares"), and the price at which such shares are
proposed to be sold (or the method by which such price is proposed to be
determined). At any time within 15 days after its receipt of the Tag-Along
Notice, Buyer or the Advancing Party may exercise its option to sell the
Tag-Along Shares by furnishing written notice of such exercise (the "Exercise
Notice") to the Company.
Section 7.3 Number of Shares to be Included. If the proposed sale or
other disposition by the Company in connection with an Extraordinary Transaction
is consummated, Buyer and the Advancing Party shall have the right to sell to
the Third Party as part of such proposed sale or other disposition such number
of Registrable Securities owned by Buyer and the Advancing Party equal to the
product of (i) the ratio (which in no event shall exceed 30% for purposes of
this Article 7) of the total number of Registrable Securities owned by Buyer and
the Advancing Party at the time that Buyer or the Advancing Party receives the
Tag-Along Notice to the total number of outstanding shares of Company Stock at
the time that Buyer and Advancing Party receives the Tag-Along Notice, and (ii)
the number of Extraordinary Transaction Shares; provided, however, that if the
number of Tag-Along Shares is greater than the number of Registrable Securities
owned by Buyer and the Advancing Party at the time that Buyer or the Advancing
Party receives the Tag-Along Notice, then Buyer and Advancing Party shall have
the right to sell to the Third Party as part of the proposed sale or other
disposition
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to the Third Party by the Company in connection with an Extraordinary
Transaction the total number of Registrable Securities owned by Buyer and
Advancing Party at the time that Buyer and Advancing Party receives the
Tag-Along Notice. All calculations pursuant to this paragraph shall exclude and
ignore any unissued shares of Company Stock issuable pursuant to stock options,
warrants and other rights to acquire shares of Company Stock and pursuant to
convertible or exchangeable securities, but shall include shares of Company
Common Stock issuable upon redemption of limited partnership interests in
Ramco-Gershenson Properties, L.P. (all of which shares shall be deemed to be
outstanding for purposes of this calculation).
Section 7.4 Abandonment of Sale. Each of the Company and the Third
Party shall have the right, in its sole discretion, at all times prior to
consummation of the proposed sale or other disposition giving rise to the
tag-along right granted by this Article 7 to abandon, rescind, annul, withdraw
or otherwise terminate such sale or other disposition, whereupon all tag-along
rights in respect of such sale or other disposition pursuant to this Article 7
shall become null and void, and neither the Company nor the Third Party shall
have any liability or obligation to Buyer or the Advancing Party with respect
thereto by virtue of such abandonment, rescission, annulment, withdrawal or
termination.
Section 7.5 Terms of Sale. The purchase from Buyer and the Advancing
Party pursuant to this Article 7 shall be on the same terms and conditions,
including the per share price and the date of sale or other disposition, as are
applicable to the Company, and which shall be consistent with the relevant
Tag-Along Notice.
Section 7.6 Timing of Sale. If, with respect to any Tag-Along Notice,
Buyer or the Advancing Party fails to deliver an Exercise Notice within the
requisite time period, the Company shall have 120 days after the expiration of
the time in which the Exercise Notice is required to be delivered in which to
sell or otherwise dispose of not more am the number of shares of Company Stock
described in the Tag-Along Notice on term not more favorable to the Company than
were set forth in the Tag-Along Notice. If, at the end of 120 days following
the receipt of the Tag-Along Notice, the Company has not completed the sale or
other disposition of Company Stock in accordance with the terms described in the
Tag-Along Notice, the Company shall again be obligated to comply with the
provisions of this Article 7 with respect to, and provide Buyer and the
Advancing Party with the opportunity to participate in, any proposed sale or
other disposition of shares of Company Stock in connection with an Extraordinary
Transaction.
ARTICLE 8
INDEMNIFICATION
Section 8.1 Indemnification by the Company. In the event of any
registration of any Registrable Securities of the Company under the Securities
Act, the Company will, and hereby does, indemnify and hold harmless Buyer and
the Advancing Party, each other person who participates as an underwriter in the
offering or sale of such securities and each other person who controls any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which Buyer and Advancing
Party, or
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any such underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Registrable Securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and the Company will reimburse
Buyer and Advancing Party and each such underwriter and controlling person for
any reasonable legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceedings; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by Buyer
and Advancing Party or any other person who participates as an underwriter in
the offering or sale of such securities, in either case, specifically stating
that it is for use in the preparation thereof, and provided, further, that the
Company shall not be liable to any person who participates as an underwriter in
the offering or sale of Registrable Securities or any other person, if any, who
controls such underwriter within the meaning of the Securities Act in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such person's failure
to send or give a copy of the final prospectus or supplement to the persons
asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such person if such statement or omission was
corrected in such final prospectus or supplement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf
of Buyer and Advancing Party or any such underwriter or controlling person and
shall survive the transfer of such securities by Buyer and Advancing Party.
Section 8.2 Indemnification by Buyer and the Advancing Party. The
Company may require, as a condition to including any Registrable Securities in
any registration statement pursuant to Article 2, or Article 4, that the Company
shall have received an undertaking satisfactory to it from Buyer and Advancing
Party to indemnify and hold harmless (in the same manner and to the same extent
as set forth in paragraph (a) of this Article 8) the Company, each director of
the Company, each officer of the Company and each other person, if any, who
controls the Company within the meaning of the Securities Act, and each other
person who participates as an underwriter in the offering or sale of such
securities and each other person who controls any such underwriter within the
meaning of the Securities Act, with respect to any untrue statement or alleged
untrue statement of a material fact in or omission or alleged omission to state
a material fact from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by Buyer
15
<PAGE> 20
and Advancing Party specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer, or controlling person and
shall survive the transfer of such securities by Buyer and Advancing Party.
Section 8.3 Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Article 8,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding paragraphs of this Article 8, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation.
Section 8.4 Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Article 8 (with appropriate
modifications) shall be given by the Company and Buyer and Advancing Party with
respect to any required registration or other qualification of securities under
any federal or state law or regulation of Governmental Authority other than the
Securities Act.
Section 8.5 Indemnification Payments. The indemnification required by
this Article 8 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
Section 8.6 Contribution. If, for any reason, the foregoing indemnity
is unavailable, or is insufficient to hold harmless an indemnified party, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission), or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in the proportion as
is appropriate to reflect not only the relative fault of the indemnifying party
and the indemnified party, but also
16
<PAGE> 21
the relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other, as well as any other relevant equitable
considerations. No indemnified party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentation.
ARTICLE 9
COVENANTS
Section 9.1 Covenants Relating to Rule 144. The Company will file in
a timely manner, information, documents and reports in compliance with the
Exchange Act and will, at its expense, forthwith upon the request of Buyer or
the Advancing Party, deliver to Buyer and the Advancing Party a certificate,
signed by the Company's principal financial officer, stating (a) the Company's
name, address and telephone number (including area code), (b) the Company's
Internal Revenue Service identification number, (c) the Company's Commission
file number, (d) the number of shares of Company Common Stock and the number of
shares of Company Preferred Stock outstanding as shown by the most recent report
or statement published by the Company, and (e) whether the Company has filed the
reports required to be filed under the Exchange Act for a period of at least 90
days prior to the date of such certificate and in addition has filed the most
recent annual report required to be filed thereunder. If at any time the
Company is not required to file reports in compliance with either Section 13 or
Section 15(d) of the Exchange Act, the Company will, at its expense, forthwith
upon the written request of Buyer or the Advancing Party, make available
adequate current public information with respect to the Company within the
meaning of paragraph (c)(2) of Rule 144 of the General Rules and Regulations
promulgated under the Securities Act.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Buyer Cooperation. (a)EEIf Registrable Securities of
Buyer are included in the registration statement, Buyer shall execute and
deliver all documents reasonably requested by the underwriter(s) and any other
documents customary in similar offerings, which documents are in customary form,
including, without limitation, underwriting agreements, custody agreements,
powers of attorney, and indemnification agreements, provided that no such
documents sought of Buyer shall have terms more onerous than those sought of any
other Person in connection with the same transaction.
(b) Buyer shall cooperate with the Company in connection with the
preparation of the registration statement, and for so long as the Company is
obligated to file and keep effective the registration statement, shall provide
to the Company, in writing, for use in the registration statement, all such
information regarding the Buyer and its affiliates as the Company
17
<PAGE> 22
may from time to time reasonably request in writing and which is required in
accordance with the Securities Act.
(c) During such time as the Company or Buyer may be engaged in a
distribution, Buyer and the Company shall comply with Regulation M promulgated
under the Exchange Act. In addition, in a registration pursuant to Article 2, 3
or 4, to the extent required by the Securities Act, Buyer shall cause to be
furnished to each broker through whom the Registrable Securities may be offered,
or to the offeree if an offer is not made through a broker, such copies of the
prospectus covering the Registrable Securities and any amendment or supplement
thereto and documents incorporated by reference therein as may be required by
law (subject to the Company's provision thereof) and Buyer shall not bid for or
purchase any securities of the Company being distributed or attempt to induce
any other person to purchase any securities of the Company in violation of the
Securities Act or the Exchange Act.
Section 10.2 Exercise of Registration Rights. All rights granted to
the Advancing Party hereunder shall be exercised by Morgan Stanley Asset
Management Inc. on behalf of the Advancing Party.
Section 10.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Article 10, provided receipt of copies of such counterparts is confirmed.
Section 10.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO THE CHOICE OF LAW PRINCIPLES THEREOF.
Section 10.5 Entire Agreement. This Agreement (including agreements
incorporated herein) contains the entire agreement between the parties with
respect to the subject matter hereof and there are no agreements or
understandings between the parties other than those set forth or referred to
herein. This Agreement is not intended to confer upon any person not a party
hereto (and their successors and assigns) any rights or remedies hereunder.
Section 10.6 Notices. All notices and other communications hereunder
shall be sufficiently given for all purposes hereunder if in writing and
delivered personally, sent by documented overnight delivery service or, to the
extent receipt is confirmed, telecopy, telefax or other electronic transmission
service to the appropriate address or number as set forth below. Notices to the
Company shall be addressed to:
Ramco-Gershenson Properties Trust
7600 Northwestern Highway, Suite 200
Southfield, MI 48043
Attention: Chief Operating Officer
Telecopy Number: (248) 350-9900
18
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Facsimile Number:(248) 350-2469
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Richard J. Burstein and Donald J. Kunz
Telephone Number: (313) 256-7800
Facsimile Number: (313) 962-0176
or at such other address and to the attention of such other person as the
Company may designate by written notice to Buyer and Advancing Party. Notices
to Buyer and Advancing Party shall be addressed to:
Special Situations RG REIT, Inc.
1221 Avenue of the Americas
New York, N.Y. 10020
Attention: Operations Controller, 22nd Floor
Telephone Number: (212) 762-4000
Facsimile Number: (212) 762-7536
with a copy to:
Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Allen Curtis Greer, II
Telephone Number: (212) 878-8000
Facsimile Number: (212) 878-8375
Section 10.7 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors. Neither party shall be permitted to assign any of its rights
hereunder to any third party, except that if (i) Buyer or the Advancing Party
transfers or pledges any or all Registrable Securities to a bona fide financial
institution as security for any bona fide indebtedness of any Buyer, the pledgee
of the Registrable Securities shall be considered an intended beneficiary hereof
and may exercise all rights of Buyer and Advancing Party hereunder, and (ii)
each of Buyer and Advancing Party shall be permitted to assign its rights
hereunder to any other person to whom Buyer or the Advancing may transfer any
Preferred Units, Company Preferred Stock or Company Common Stock. The Advancing
Party shall, without any assignment or any further act or deed or the execution
or delivery of any further instrument or agreement, succeed to the rights and
obligations of Buyer and the Advancing Party upon the Reorganization.
19
<PAGE> 24
Section 10.8 Headings. The Section and other headings contained in
this Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement.
Section 10.9 Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed by
the party against whom enforcement of any such modification or amendment is
sought. Either party hereto may, only by an instrument in writing, waive
compliance by the other party hereto with any term or provision hereof on the
part of such other party hereto to be performed or complied with. The waiver by
any party hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.
Section 10.10 Interpretation; Absence of Presumption. For the
purposes hereof, (i) words in the singular shall be held to include the plural
and vice versa and words of one gender shall be held to include the other gender
as the context requires, (ii) the terms "hereof", "herein", and "herewith" and
words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this Agreement,
and Section, paragraph or other references are to the Sections, paragraphs, or
other references to this Agreement unless otherwise specified, (iii) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless the context otherwise requires or unless
otherwise specified, (iv) the word "or" shall not be exclusive, and (v)
provisions shall apply, when appropriate, to successive events and transactions.
This Agreement shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.
Section 10.11 Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
20
<PAGE> 25
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of
the parties hereto as of the day first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Authorized Signature
----------------------------------
MORGAN STANLEY ASSET MANAGEMENT INC.
As Attorney-In-fact for each of the
clients set forth on Exhibit B hereto:
By: /s/ Authorized Signature
----------------------------------
Name:
Title:
SPECIAL SITUATIONS RG REIT, INC.
By: /s/ Authorized Signature
----------------------------------
Name:
Title:
21
<PAGE> 1
EXHIBIT 10.4
SECOND AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT
DATED AS OF OCTOBER 30, 1997
among
RAMCO-GERSHENSON PROPERTIES, L.P.
as Borrower,
and
RAMCO-GERSHENSON PROPERTIES TRUST,
as Guarantor,
and
BANKBOSTON, N.A. (formerly known as The
First National Bank of Boston)
as a Bank,
and
THE OTHER BANKS WHICH MAY BECOME
PARTIES TO THE AGREEMENT
and
BANKBOSTON, N.A. (formerly known as The
First National Bank of Boston)
as Agent
<PAGE> 2
TABLE OF CONTENTS
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Section 1. DEFINITIONS AND RULES OF INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Rules of Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2. THE REVOLVING CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.1. Commitment to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.2. Unused Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.3. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.4. Interest on Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.5. Requests for Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.6. Funds for Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.7. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.8. Optional Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3. REPAYMENT OF THE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.1. Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.2. Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.3. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.4. Partial Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.5. Effect of Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 3.6. Proceeds from Debt or Equity Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 4. CERTAIN GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.1. Conversion Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.2. Commitment and Syndication Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.3. Agent's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.4. Funds for Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.5. Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.6. Inability to Determine LIBOR Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.7. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.8. Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.9. Additional Costs, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.10. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.11. Indemnity of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.12. Interest on Overdue Amounts; Late Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.13. HLT Classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.14. Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.15. Limitation on Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.16. Extension of Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5. COLLATERAL SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.1. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.2. Appraisals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
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Section 5.3. Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.4. Substitution of Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.5. Addition of Mortgaged Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.6. Mandatory Increase in Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.7. Non-Encumbrance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.8. Special Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE
BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.1. Corporate Authority, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.2. Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.3. Title to Properties; Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.5. No Material Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.6. Franchises, Patents, Copyrights, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.7. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.8. No Materially Adverse Contracts, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.9. Compliance with Other Instruments, Laws, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.10. Tax Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.11. No Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.12. Holding Company and Investment Company Acts . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.13. Absence of UCC Financing Statements, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.14. Setoff, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.15. Certain Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.16. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.17. Regulations U and X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.18. Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.19. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.20. Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.21. Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.22. Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.23. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.24. Other Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.25. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.26. Contribution Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.27. No Fraudulent Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.28. Transaction in Best Interests of Borrower; Consideration . . . . . . . . . . . . . . . . . . . . 55
Section 6.29. Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.30. Stock Purchase Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7. AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE
BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.1. Punctual Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.2. Maintenance of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.3. Records and Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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Section 7.4. Financial Statements, Certificates and Information . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 7.6. Existence; Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.7. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.9. Inspection of Properties and Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.11. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.12. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.13. Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.14. Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.15. Interest Collar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.16. Ownership of Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.17. More Restrictive Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8. CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE
BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8.1. Restrictions on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 8.2. Restrictions on Liens Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.3. Restrictions on Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 8.4. Merger, Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 8.5. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 8.6. Compliance with Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 8.7. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 8.8. Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.9. Development Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 9. FINANCIAL COVENANTS OF THE GUARANTOR AND THE
BORROWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.1. Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.2. Liabilities to Assets Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.3. Debt Service Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.4. Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.5. Mortgaged Property Operating Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10. CLOSING CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.1. Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.2. Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.3. Incumbency Certificate; Authorized Signers . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.4. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.5. Performance; No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.6. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.7. Proceedings and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.8. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.9. Stockholder and Partner Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
</TABLE>
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Section 10.10. Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.11. No Condemnation/Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.12. Principal Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.13. Title Insurance Updates82
Section 10.14. Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.15. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.16. Maintenance of Interest Rate Collar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.17. Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.18. Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11. CONDITIONS TO ALL BORROWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.1. Prior Conditions Satisfied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.2. Representations True; No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.3. No Legal Impediment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.4. Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.5. Proceedings and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.6. Borrowing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.7. Endorsement to Title Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.8. Future Advances Tax Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 12.1. Events of Default and Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 12.2. Limitation of Cure Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 12.3. Certain Cure Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 12.4. Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 12.5. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 12.6. Distribution of Collateral Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 13. SETOFF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 14. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.1. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.2. Employees and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.3. No Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.4. No Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 14.5. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 14.6. Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 14.7. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 14.8. Agent as Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 14.9. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 14.10. Duties in the Case of Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 14.11. Removal of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 15. EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
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Section 16. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 17. SURVIVAL OF COVENANTS, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 18. ASSIGNMENT AND PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 18.1. Conditions to Assignment by Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 18.2. Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 18.3. New Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 18.4. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 18.5. Pledge by Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 18.6. No Assignment by Borrower or Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 18.7. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 18.8. Amendments to Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 19. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 20. RELATIONSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 22. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 23. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 24. ENTIRE AGREEMENT, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 26. DEALINGS WITH THE BORROWER OR THE GUARANTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 28. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 29. TIME OF THE ESSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 30. NO UNWRITTEN AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 31. TRUST EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
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<PAGE> 7
SECOND AMENDED AND RESTATED MASTER
REVOLVING CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED MASTER REVOLVING CREDIT AGREEMENT is made
as of the 30th day of October, 1997 by and among RAMCO-GERSHENSON PROPERTIES,
L.P. (the "Borrower"), a Delaware limited partnership, RAMCO-GERSHENSON
PROPERTIES TRUST (the "Guarantor"), a Massachusetts business trust, BANKBOSTON,
N.A., a national banking association (formerly known as The First National Bank
of Boston) ("BankBoston"), and the other lending institutions which may become
parties hereto pursuant to Section 18 (the "Banks"), and BANKBOSTON, N.A., a
national banking association (formerly known as The First National Bank of
Boston), as Agent for the Banks (the "Agent").
RECITALS
WHEREAS, the Borrower, the Guarantor, BankBoston and the Agent are parties
to that certain Master Revolving Credit Agreement dated as of May 6, 1996, as
amended and restated pursuant to that certain Amended and Restated Master
Revolving Credit Agreement among the Borrower, the Guarantor, BankBoston, NBD
Bank and the Agent dated as of June 24, 1996, as amended by a First Amendment to
Amended and Restated Master Revolving Credit Agreement and other Loan Documents
dated as of May 22, 1997, a Second Amendment to Amended and Restated Master
Revolving Credit Agreement and other Loan Documents dated as of June 16, 1997,
and a Third Amendment to Amended and Restated Master Revolving Credit Agreement
and other Loan Documents dated as of July 18, 1997 (the "Prior Credit
Agreement");
WHEREAS, the Borrower is indebted to BankBoston, and certain other banks
(the "Prior Banks") in respect of loans made to the Borrower, pursuant to the
Prior Credit Agreement;
WHEREAS, the Borrower has requested that BankBoston increase the Total
Commitment, which will be used in part to repay the loans held by the Prior
Banks;
WHEREAS, the Borrower, the Guarantor, BankBoston, and the Agent desire to
amend and restate the Prior Credit Agreement, it being understood that the loans
heretofore made to the Borrower and the letters of credit issued for the benefit
of the Borrower under the Prior Credit Agreement shall continue to remain
outstanding and that this Agreement is an amendment and restatement of the Prior
Credit Agreement which shall remain in full force and effect, as amended and
restated in its entirety hereby;
NOW, THEREFORE, in consideration of the terms and conditions herein, and of
any loans, advances, or extensions of credit heretofore, now or hereafter made
to or for the benefit of the Borrower by the Banks, the parties hereto hereby
agree as follows:
<PAGE> 8
U1. DEFINITIONS AND RULES OF INTERPRETATION.
U1.1. DEFINITIONS. The following terms shall have the meanings set forth
in this Section 1 or elsewhere in the provisions of this Agreement referred to
below:
Additional REMIC Properties. The Mortgaged Properties identified as the
Additional REMIC Properties on Schedule 4 attached hereto.
Affiliate. An Affiliate, as applied to any Person, shall mean any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means (a) the
possession, directly or indirectly, of the power to vote ten percent (10%) or
more of the stock, shares, voting trust certificates, beneficial interest,
partnership interests, member interests or other interests having voting power
for the election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise, or (b) the ownership
of (i) a general partnership interest, (ii) a managing member's interest in a
limited liability company or (iii) a limited partnership interest or preferred
stock (or other ownership interest) representing ten percent (10%) or more of
the outstanding limited partnership interests, preferred stock or other
ownership interests of such Person.
Agent. BankBoston, N.A., acting as agent for the Banks, its successors and
assigns.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time by notice to the Borrower and the Banks.
Agent's Special Counsel. Long Aldridge & Norman LLP or such other counsel
as may be approved by the Agent.
Agreement. This Second Amended and Restated Master Revolving Credit
Agreement, including the Schedules and Exhibits hereto.
Applicable Margin. On any date, the applicable margin set forth below
based on the ratio of the Consolidated Total Liabilities of the Borrower to the
Consolidated Total Adjusted Asset Value of the Borrower (expressed as a
percentage):
<TABLE>
<CAPTION>
Ratio LIBOR Rate Loans
----- ----------------
<S> <C>
less than 40% 1.375%
equal to or greater than 40%, but less than 55% 1.500%
equal to or greater than 55% 1.625%
</TABLE>
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<PAGE> 9
The Applicable Margin shall not be reduced to any percentage based upon such
ratio until five (5) Business Days following the delivery by the Borrower to
the Agent of such evidence as the Agent may require (including without
limitation, the delivery of the Compliance Certificate to the Agent) that such
ratio corresponds to the percentage as would justify such lesser percentage of
Applicable Margin. In the event of any change in such ratio that would cause
the Applicable Margin to increase, the Borrower shall notify the Agent within
five (5) Business Days of such event, and regardless of whether the Agent has
received notice of such event, such event shall effect a change in the
Applicable Margin on the first to occur of (a) the first Business Day after the
delivery of such notice to the Agent of such event or (b) six (6) Business Days
following any such increase of such ratio.
Appraisal . An MAI appraisal of the value of a parcel of Real Estate,
determined on a fair value basis, performed by an independent appraiser selected
by the Agent who is not an employee of the Borrower, the Guarantor or any of
their Subsidiaries, the Agent or a Bank, the form and substance of such
appraisal and the identity of the appraiser to be in compliance with the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended,
the rules and regulations adopted pursuant thereto and all other regulatory laws
and policies (both regulatory and internal) applicable to the Banks and
otherwise acceptable (i) to the Agent in the case of such appraisals delivered
by the Borrower on or before the date of this Agreement, and (ii) the Majority
Banks, in the case of any such appraisals delivered by the Borrower after the
date of this Agreement, provided that if the Agent's appraisal department has
determined that the value of any parcel of Real Estate is within five percent
(5%) of the value for such parcel of Real Estate as set forth in the MAI
appraisal delivered to the Agent by the Borrower, the Banks shall accept such
appraised value.
Appraised Value. The fair value of a parcel of Mortgaged Property
determined by the most recent Appraisal of such parcel or update obtained
pursuant to Section 5.2 or Section 10.7, subject, however, to such changes or
adjustments to the value determined thereby as may be required by (i) the
appraisal department of the Agent, in the case of such appraisals delivered by
the Borrower on or before the date of this Agreement, and (ii) the appraisal
departments of the Majority Banks, in the case of any such appraisals delivered
by the Borrower after the date of this Agreement, in their good faith business
judgment, provided that if the Agent's appraisal department has determined that
the value of any parcel of Mortgaged Property is within five percent (5%) of the
value for such Mortgaged Property as set forth in the MAI appraisal delivered to
the Agent by the Borrower, the Banks shall accept such appraised value.
Approved Subsidiary. A wholly-owned Subsidiary of the Borrower, the
formation and organizational structure of which and the ownership of real estate
assets by which has been approved in writing by the Majority Banks. The REMIC
Subsidiary is an Approved Subsidiary; provided, however, that if the REMIC
Transaction is not consummated within sixty (60) days of the date of this
Agreement, the REMIC Subsidiary shall cease to be an Approved Subsidiary.
Assignment of Leases and Rents . Each of the collateral assignments of
leases and rents from the Borrower or any of its Subsidiaries to the Agent, as
the same may be modified or
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amended, pursuant to which there shall be assigned to the Agent for the benefit
of the Banks a security interest in the interest of the Borrower or any of its
Subsidiaries as lessor with respect to all Leases of all or any part of a
Mortgaged Property, each such collateral assignment to be in form and substance
satisfactory to the Agent.
Balance Sheet Date . June 30, 1997.
BankBoston. As defined in the preamble hereto.
Banks. BankBoston and any other Person who becomes an assignee of any
rights of a Bank pursuant to Section 18.
Base Rate. The annual rate of interest announced from time to time by
the Agent at the Agent's Head Office as its "base rate". Any change in the
rate of interest payable hereunder resulting from a change in the Base Rate
shall become effective as of the opening of business on the date on which such
change in the Base Rate becomes effective.
Base Rate Loans. Those Loans bearing interest calculated by reference
to the Base Rate.
Borrower. As defined in the preamble hereto.
Borrowing Base. At any time with respect to the Borrower and any
Approved Subsidiary, the Borrowing Base shall be the Borrowing Base for
Eligible Real Estate included in the Mortgaged Property owned by the Borrower
or any Approved Subsidiary. The Borrowing Base for Eligible Real Estate
included in the Mortgaged Property shall be the amount which is the lesser of
(a) sixty percent (60%) of the sum of the Appraised Values of each Mortgaged
Property as most recently determined as provided under Section 5.2 or Section
10.7; and (b) the sum of the Debt Service Coverage Amounts for each Mortgaged
Property, and the amount which is the lesser of (a) and (b) shall be the
Borrowing Base for Eligible Real Estate included in the Mortgaged Property; and
provided, however, that the portion of the Borrowing Base attributable to
Regular Real Estate shall at no time be less than sixty-five percent (65%) of
the entire Borrowing Base. Notwithstanding the foregoing, the Borrowing Base
attributable to a Mortgaged Property shall not exceed the amount to which
recovery under the applicable Security Deed is limited, unless such Security
Deed is amended to increase any such limit.
Building. With respect to each parcel of Mortgaged Property, all of
the buildings, structures and improvements now or hereafter located thereon.
Building Service Equipment. All apparatus, fixtures and articles of
personal property owned by the Borrower or any Approved Subsidiary now or
hereafter attached to or used or procured for use in connection with the
operation or maintenance of any building, structure or other improvement located
on or included in the Mortgaged Property, including, but without limiting the
generality of the foregoing, all engines, furnaces, boilers, stokers, pumps,
heaters, tanks, dynamos, motors, generators, switchboards, electrical
equipment, heating, plumbing, lifting
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and ventilating apparatus, air-cooling and air-conditioning apparatus, gas and
electric fixtures, elevators, escalators, fittings, and machinery and all other
equipment of every kind and description, used or procured for use in the
operation of a Building and located on the Mortgaged Property (except
apparatus, fixtures or articles of personal property belonging to lessees or
other occupants of such building or to persons other than the Borrower or any
Approved Subsidiary unless the same be abandoned by any such lessee or other
occupant or person and shall become the Borrower's or Approved Subsidiary's
property by reason of such abandonment), together with any and all replacements
thereof and additions thereto.
Business Day . Any day on which banking institutions located in the
same city and state as the Agent's Head Office are open for the transaction of
banking business and, in the case of LIBOR Rate Loans, which also is a LIBOR
Business Day.
Capital Expenditure Reserve Amount. With respect to any Person or
property, a reserve for replacements and capital expenditures equal to $.10 per
square foot of building space located on all Real Estate owned by such Person,
other than Real Estate subject to long term leases having a remaining term of
at least five years, exclusive of unexpired options, which provide that the
tenant is responsible for all building maintenance.
Capital Improvement Project. With respect to any Real Estate now or
hereafter owned by the Borrower or any of its Approved Subsidiaries which is
utilized principally for shopping centers, capital improvements consisting of
rehabilitation, refurbishment, replacement, expansions and improvements
(including related amenities) to the existing Buildings on such Real Estate and
capital additions, repairs, resurfacing and replacements in the common areas of
such Real Estate all of which may be properly capitalized under generally
accepted accounting principles.
Capitalized Lease. A lease under which a Person is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with generally accepted accounting principles.
CERCLA. See Section 6.18.
Closing Date . The first date on which all of the conditions set
forth in Section 10 and Section 11 have been satisfied.
Code . The Internal Revenue Code of 1986, as amended.
Collateral. All of the property, rights and interests of the
Borrower, the Guarantor or any of their Subsidiaries which are or are intended
to be subject to the security interests, liens and mortgages created by the
Security Documents, including, without limitation, the Mortgaged Property, the
Guaranty and the REMIC Subsidiary Guaranty (Revolver).
Commitment. With respect to each Bank, the amount set forth on
Schedule 1 hereto as the amount of such Bank's Commitment to make or maintain
Loans to the Borrower and to
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participate in Letters of Credit for the account of the Borrower, as the same
may be changed from time to time in accordance with the terms of this Agreement
including, without limitation, Section 8.8(c).
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
Compliance Certificate. See Section 7.4(e).
Consolidated or combined. With reference to any term defined herein,
that term as applied to the accounts of a Person and its Subsidiaries,
consolidated or combined in accordance with generally accepted accounting
principles.
Consolidated Operating Cash Flow. With respect to any period of a
Person, an amount equal to the Operating Cash Flow of such Person and its
Subsidiaries for such period consolidated in accordance with generally accepted
accounting principles.
Consolidated Tangible Net Worth . The amount by which Consolidated
Total Adjusted Asset Value exceeds Consolidated Total Liabilities, and less the
sum of:
(a) the total book value of all assets of a Person and
its Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, including such items as good will, the purchase
price of acquired assets in excess of the fair market value thereof,
trademarks, trade names, service marks, brand names, copyrights, patents and
licenses, and rights with respect to the foregoing; and
(b) all amounts representing any write-up in the book
value of any assets of such Person or its Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date.
Consolidated Total Adjusted Asset Value. With respect to any Person,
the sum of (i) all assets of such Person and its Subsidiaries determined on a
Consolidated basis in accordance with generally accepted accounting principles,
provided that all Real Estate that is improved and not Under Development shall
be valued at an amount equal to (A) the Operating Cash Flow of such Person and
its Subsidiaries from such Real Estate for the period covered by the four
previous consecutive fiscal quarters (treated as a single accounting period)
divided by (B) a ten percent (10%) capitalization rate, plus (ii) the Stock
Purchase Commitment Allowance provided that (i) prior to such time as the
Borrower or any of its Approved Subsidiaries has owned and operated any parcel
of Real Estate for four full fiscal quarters, the Operating Cash Flow with
respect to such parcel of Real Estate for the number of full fiscal quarters
which the Borrower or any of its Approved Subsidiaries has owned and operated
such parcel of Real Estate as annualized shall be utilized, and (ii) the
Operating Cash Flow for any parcel of Real Estate without a full quarter of
performance shall be annualized in such manner as the Agent shall approve, such
approval not to be unreasonably withheld. For the purpose of calculating
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Operating Cash Flow under this definition as to any parcel of Real Estate, the
Operating Cash Flow Rental Adjustment shall be applied to any parcel of Real
Estate affected by any of the events described in the definition of Operating
Cash Flow Rental Adjustment. The assets of the Borrower and its Subsidiaries
on the consolidated financial statements of the Borrower and its Subsidiaries
shall be adjusted to reflect the Borrower's allocable share of such asset, for
the relevant period or as of the date of determination, taking into account (a)
the relative proportion of each such item derived from assets directly owned by
the Borrower and from assets owned by its respective Subsidiaries, and (b) the
Borrower's respective ownership interest in its Subsidiaries.
Consolidated Total Liabilities . All liabilities of a Person and its
Subsidiaries determined on a Consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of such Person and its
Subsidiaries, whether or not so classified, including any liabilities arising in
connection with sale and leaseback transactions. Amounts undrawn under this
Agreement shall not be included in Indebtedness for purposes of this definition.
Contribution Agreement (Revolver) . That certain Contribution
Agreement (Revolver) dated of even date herewith among the Borrower, the
Guarantor and the REMIC Subsidiary.
Construction Inspector. A firm of professional engineers or
architects selected by the Borrower and reasonably acceptable to the Agent.
Conversion Request. A notice given by the Borrower to the Agent of
its election to convert or continue a Loan in accordance with Section 4. 1.
Debt Offering. The issuance and sale by the Borrower or the Guarantor
of any debt securities of the Borrower or the Guarantor.
Debt Service . For any period, the sum of all interest, including
capitalized interest not paid in cash, bond related expenses, and mandatory
principal/sinking fund payments due and payable during such period excluding any
balloon payments due upon maturity of any Indebtedness.
Debt Service Coverage Amount. At any time determined by the Agent, an
amount equal to the maximum principal loan amount which, when bearing interest
at a rate per annum equal to the then-current annual yield on seven (7) year
obligations issued by the United States Treasury most recently prior to the
date of determination plus 1.625% payable based on a 25 year mortgage style
amortization schedule (expressed as a mortgage constant percentage), would be
payable by the monthly principal and interest payment amount resulting from
dividing (a) the Operating Cash Flow from an individual Mortgaged Property for
the preceding four fiscal quarters divided by 1.5 by (b) 12. Attached hereto
as Schedule 2 is an example of the calculation of Debt Service Coverage Amount
(such example is meant only as an illustration based upon the assumptions set
forth in such example, and shall not be interpreted so as to limit the Agent in
its good faith determination of the Debt Service Coverage Amount hereunder as
hereinafter
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provided). The determination of the Debt Service Coverage Amount and the
components thereof by the Agent shall, so long as the same shall be determined
in good faith, be conclusive and binding absent manifest error. In the event
that the Borrower or any Approved Subsidiary shall have owned a Mortgaged
Property for less than four consecutive fiscal quarters, then for the purpose
of determining the Debt Service Coverage Amount, the Operating Cash Flow with
respect to such Mortgaged Property shall be annualized in such manner as the
Agent shall reasonably determine. For the purpose of calculating Operating
Cash Flow under this definition as to any Mortgaged Property, the Operating
Cash Flow Rental Adjustment shall be applied to any Mortgaged Property affected
by any of the events described in the definition of Operating Cash Flow Rental
Adjustment.
Default. See Section 12.1. In addition, any "Default" (as defined
in the Unsecured Term Loan Agreement) shall also be a Default hereunder.
Defaulting Bank. Any Bank which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Business Days after
notice from the Agent.
Distribution. With respect to any Person, the declaration or payment
of any cash, cash flow, dividend or distribution on or in respect of any shares
of any class of capital stock or other beneficial interest of such Person other
than dividends or distributions payable solely in equity securities of such
Person; the purchase, redemption, exchange or other retirement of any shares of
any class of capital stock or other beneficial interest of such Person, directly
or indirectly through a Subsidiary of such Person or otherwise; the return of
capital by such Person to its shareholders or partners as such; or any other
distribution on or in respect of any shares of any class of capital stock or
other beneficial interest of such Person.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office of such
Bank, if any, located within the United States that will be making or
maintaining Base Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made,
and the date on which any Loan which is made prior to the Maturity Date is
converted or combined in accordance with Section 4.1.
Eligible Real Estate. Real Estate:
(i) which is owned in fee by the Borrower or any Approved
Subsidiary or which is leased by the Borrower or any such Approved Subsidiary
pursuant to a ground lease which has been approved by the Majority Banks at
their sole discretion;
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(ii) which is located within the contiguous 48 States of
the continental United States, excluding those States which prescribe a
"single-action" or similar rule limiting the rights of creditors secured by
real property, which exclusion shall apply, without limitation, to the States
of California and Washington except to the extent such exclusion is waived in
writing by the Majority Banks with respect to a specific parcel of Real Estate;
(iii) which is utilized principally for shopping centers or
retail facilities;
(iv) which is approved by the Majority Banks after the
date hereof in their sole judgment;
(v) as to which all of the representations set forth in
Section 6 of this Agreement concerning Mortgaged Property are true and correct;
and
(vi) as to which the Agent has received all Eligible Real
Estate Qualification Documents, so long as all of such documents remain in full
force and effect.
Eligible Real Estate Qualification Documents. With respect to any
parcel of Real Estate of the Borrower or any Approved Subsidiary which is
proposed to be included in the Collateral, each of the following:
(c) Security Documents. Such Security Documents relating
to such Real Estate as the Agent shall require, in form and substance
satisfactory to the Agent and duly executed and delivered by the
respective parties thereto.
(d) Enforceability Opinion. The favorable legal opinion
of counsel to the Borrower, the Guarantor and any Approved Subsidiary
reasonably acceptable to the Agent qualified to practice in the State
in which such Real Estate is located, addressed to the Banks and the
Agent and in form and substance satisfactory to the Agent as to the
enforceability of such Security Documents (including the opinion that
the Special Security Documents and the agreement herein for the future
recording thereof are enforceable between the parties thereto, with
appropriate qualifications acceptable to the Agent as to the
enforceability against third parties prior to recordation thereof) and
such other matters as the Agent shall reasonably request.
(e) Perfection of Liens. Except with respect to Special
Real Estate, evidence reasonably satisfactory to the Agent that the
Security Documents are effective to create in favor of the Agent a
legal, valid and enforceable first (except for Permitted Liens
approved by the Agent entitled to priority under applicable law) lien
and security interest in such Real Estate and that all filings,
recordings, deliveries of instruments and other actions necessary or
desirable to protect and preserve such lien or security interest have
been duly effected.
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(f) Survey and Taxes. The Survey of such Real
Estate, together with the Surveyor Certification and evidence of
payment of all real estate taxes, assessments and municipal charges on
such Real Estate which on the date of determination are required to
have been paid under Section 7.8.
(g) Title Insurance; Title Exception Documents. The
Title Policy covering such Real Estate, including all endorsements
thereto, and together with proof of payment of all fees and premiums
for such policy, and true and accurate copies of all documents listed
as exceptions under such policy or any supplements thereto accepted by
Agent.
(h) UCC Certification. A certification from the Title
Insurance Company or counsel satisfactory to the Agent that a search
of the public records designated by the Agent disclosed no conditional
sales contracts, security agreements, chattel mortgages, leases of
personalty, financing statements or title retention agreements which
affect any property, rights or interests of the Borrower or any
Approved Subsidiary that are or are intended to be subject to the
security interest, assignments, and mortgage liens created by the
Security Documents relating to such Real Estate except to the extent
that the same are discharged and removed prior to or simultaneously
with the inclusion of the Real Estate in the Collateral.
(i) Management Agreement. A true copy of the Management
Agreement, if any, relating to such Real Estate.
(j) Standard Form Leases. True copies of sample leases
and Rent Rolls and summaries thereof satisfactory to the Agent
certified by the Borrower and any Approved Subsidiary as accurate and
complete as of a recent date.
(k) Subordination Agreements. A Subordination,
Attornment and Non-Disturbance Agreement from each tenant of such Real
Estate as reasonably required by the Agent, dated not more than sixty
(60) days prior to the inclusion of such Real Estate in the Collateral
and satisfactory in form and substance to the Agent.
(l) Estoppel Certificates. Estoppel certificates from
(i) each tenant of such parcel of Real Estate that leases space
therein containing 10,000 or more square feet and (ii) unless
otherwise approved by the Agent, seventy-five percent (75%) of all
other tenants of such parcel of Real Estate; provided, however, that
notwithstanding the foregoing requirements, the Borrower or any
Approved Subsidiary shall use its best efforts to obtain estoppel
certificates from all tenants of such parcel of Real Estate. All such
estoppel certificates are to be dated not more than sixty (60) days
prior to the inclusion of such Real Estate in the Collateral and are
to be satisfactory in form and substance to the Agent.
(m) Certificates of Insurance. Each of (i) a current
certificate of insurance as to the insurance maintained by the
Borrower on such Real Estate (including flood
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insurance if necessary) or blanket coverage which includes such Real
Estate in accordance with the terms of this Agreement from the insurer
or an independent insurance broker dated as of the date of
determination, identifying insurers, types of insurance, insurance
limits, and policy terms; (ii) certified copies of all policies
evidencing such insurance (or certificates therefor signed by the
insurer or an agent authorized to bind the insurer); and (iii) such
further information and certificates from the Borrower, its insurers
and insurance brokers as the Agent may reasonably request, all of which
shall be in compliance with the requirements of this Agreement.
(n) Hazardous Substance Assessments. A Phase I
environmental site assessment report concerning Hazardous Substances
and asbestos on such Real Estate dated or updated not more than six
(6) months prior to the inclusion of such Real Estate in the
Collateral, from an Environmental Engineer, such report to contain no
qualifications except those that are acceptable to the Majority Banks
in their sole discretion and to otherwise be in form and substance
satisfactory to the Majority Banks.
(o) Certificate of Occupancy. A copy of the
certificate(s) of occupancy issued to the Borrower or any Approved
Subsidiary for such parcel of Real Estate permitting the use and
occupancy of the Building thereon (or a copy of the certificates of
occupancy issued for such parcel of Real Estate and evidence
satisfactory to the Agent that any previously issued certificate(s) of
occupancy is not required to be reissued to the Borrower or any
Approved Subsidiary), or a legal opinion or certificate from the
appropriate principality reasonably satisfactory to the Agent that no
certificates of occupancy are necessary to the use and occupancy
thereof.
(p) Appraisal. An Appraisal of such Real Estate, in form
and substance satisfactory to the Agent or the Majority Banks as
provided in Section 5.2 and dated not more than three (3) months prior
to the inclusion of such Real Estate in the Collateral.
(q) Zoning and Land Use Opinion of Counsel. A favorable
opinion concerning the Real Estate addressed to the Agent and dated
the date of the inclusion of such Real Estate in the Collateral, in
form and substance satisfactory to the Agent, from counsel approved by
the Agent admitted to practice in the State in which such parcel is
located, as to zoning and land use compliance, or such other evidence
regarding zoning and land use compliance as the Agent may approve in
its reasonable discretion, provided that a 3.1 zoning endorsement
with parking from the Title Insurance Company shall be satisfactory
for this purpose.
(r) Construction Inspector Report. A report or written
confirmation from the Construction Inspector satisfactory in form and
content to the Majority Banks, dated or updated not more than three
(3) months prior to the inclusion of such Real Estate in the
Collateral, addressing such matters as the Majority Banks may
reasonably require, including without limitation that the Construction
Inspector has reviewed the plans and specifications or other available
materials for all Buildings on the Real Estate, that the
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condition of the Buildings is good, that all Buildings were constructed
and completed in a good and workmanlike manner, that the Buildings
satisfy all applicable building, zoning, handicapped access and
Environmental Laws applicable thereto, whether or not the Real Estate
and the Buildings thereon are a conforming use under applicable zoning
laws, and that utilities and public water and sewer service are
available at the lot lines of the Real Estate through dedicated
rights-of-way or through insured perpetual private easements approved
by the Majority Banks and connected directly to the Building with all
necessary permits.
(s) Permit and Legal Compliance Assurances. Evidence
satisfactory to the Agent that all activities being conducted on such
Real Estate which require federal, state or local licenses or permits
have been duly licensed and that such licenses or permits are in full
force and effect, and that the Real Estate, the Buildings and the use
and occupancy thereof are in compliance with all applicable federal,
state or local laws, ordinances or regulations.
(t) Operating Statements. Operating statements for such
Real Estate in the form of such statements delivered to the Banks
under Section 6.4(c) covering each of the four fiscal quarters ending
immediately prior to the addition of such Mortgaged Property to the
Collateral.
(u) Doing Business Opinion. An opinion, dated the date
of the inclusion of such Real Estate in the Collateral, of legal
counsel to the Borrower reasonably acceptable to the Agent qualified
to practice in the State in which such Real Estate is located to the
effect that neither the Agent nor any Bank shall be required to
qualify to do business in such State or any political subdivision
thereof or to become liable to pay any taxes in such State or any
political subdivision thereof solely on account of the receipt of the
lien on such Real Estate securing the Obligations, such opinion to be
satisfactory to the Agent.
(v) Approved Subsidiary Documents. With respect to Real
Estate owned by an Approved Subsidiary, such guaranties, contribution
agreements or other documents, instruments, reports, assurances, or
opinions as the Majority Banks may require in their sole and absolute
discretion.
(w) Additional Documents. Such other documents,
certificates, reports or assurances as the Majority Banks may
reasonably require in their discretion.
Employee Benefit Plan . Any employee benefit plan within the meaning
of Section 3(3) of ERISA maintained or contributed to by the Borrower, the
Guarantor or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Engineer. McLaren Hart or another firm of independent
professional engineers or other scientists generally recognized as expert in
the detection, analysis and remediation of Hazardous Substances and related
environmental matters and which has been
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previously approved by the Agent, or if not previously approved by the Agent,
with respect to which the Borrower has provided to the Agent a copy of such
firm's errors and omissions insurance policy and a reliance letter both in form
and substance acceptable to the Agent.
Environmental Laws. See Section 6.18(a).
Equity Offering. The issuance and sale by the Borrower or the
Guarantor of any equity securities of the Borrower or the Guarantor.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer
with the Borrower or the Guarantor under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has
not been waived.
Event of Default . See Section 12.1.
Federal Funds Effective Rate. For any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers,
as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent.
Funds from Operations . With respect to any Person for any fiscal
period, the Net Income of such Person computed in accordance with generally
accepted accounting principles, excluding financing costs and gains (or losses)
from debt restructuring and sales of property, plus depreciation (other than
non-real estate depreciation) and amortization (other than amortization of
deferred financing costs) and other noncash items.
generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Person
adopting the same principles; provided that a certified public accountant
would, insofar as the use of such accounting principles is pertinent, be in a
position to deliver an unqualified opinion (other than a qualification
regarding changes in generally accepted accounting principles) as to financial
statements in which such principles have been properly applied.
Government Acts. See Section 2.7(j).
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Guaranteed Pension Plan. Any employee pension benefit plan within
the meaning of Section 3(2) of ERISA maintained or contributed to by the
Borrower, the Guarantor or any ERISA Affiliate the benefits of which are
guaranteed on termination in full or in part by the PBGC pursuant to Title IV of
ERISA, other than a Multiemployer Plan.
Guarantor. Ramco-Gershenson Properties Trust.
Guaranty. The Second Amended and Restated Unconditional Guaranty of
Payment and Performance dated of even date herewith made by the Guarantor in
favor of the Agent and the Banks, as the same may be modified or amended, such
Guaranty to be in form and substance satisfactory to the Agent.
Hazardous Substances. See Section 6.18(b).
HLT Notice Date. See Section 4.13.
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, but without any double counting, including in any
event and whether or not so classified: (a) all debt and similar monetary
obligations, whether direct or indirect (including, without limitation, any
obligations evidenced by bonds, debentures, notes or similar debt instruments);
(b) all liabilities secured by any mortgage, pledge, security interest, lien,
charge or other encumbrance existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been assumed;
(c) all guarantees, endorsements and other contingent obligations whether direct
or indirect in respect of indebtedness of others, including any obligation to
supply funds to or in any manner to invest directly or indirectly in a Person,
to purchase indebtedness, or to assure the owner of indebtedness against loss
through an agreement to purchase goods, supplies or services for the purpose of
enabling the debtor to make payment of the indebtedness held by such owner or
otherwise; (d) any obligation as a lessee or obligor under a Capitalized Lease;
(e) all subordinated debt; (f) all obligations to purchase under agreements to
acquire, or otherwise to contribute money with respect to, properties under
"development" within the meaning of Section 8.9; and (g) all obligations,
contingent or deferred or otherwise, of any Person, including, without
limitation, any such obligations as an account party under acceptance, letter of
credit or similar facilities including, without limitation, obligations to
reimburse the issuer in respect of a letter of credit except for contingent
obligations (but excluding any guarantees or similar obligations) that are not
material and are incurred in the ordinary course of business in connection with
the acquisition or obtaining commitments for financing of Real Estate.
Indemnity Agreement. The Second Amended and Restated Indemnity
Agreement Regarding Hazardous Materials made by the Borrower and the Guarantor
in favor of the Agent and the Banks, and any additional Indemnity Agreements
Regarding Hazardous Materials made by the Borrower and the Guarantor and/or any
Subsidiaries thereof in favor of the Agent and the Banks, as the same may be
modified or amended, pursuant to which the Borrower, the Guarantor
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and any such Subsidiaries agree to indemnify the Agent and the Banks with
respect to Hazardous Substances and Environmental Laws, such Indemnity
Agreements to be in form and substance satisfactory to the Majority Banks.
Initial REMIC Properties . The Mortgaged Properties identified as the
Initial REMIC Properties on Schedule 4 attached hereto.
Interest Collar. See Section 10.16.
Interest Payment Date. As to each Base Rate Loan, the first day of
each calendar month during the term of such Base Rate Loan, and as to each LIBOR
Rate Loan, the first day of each calendar month during the term of such LIBOR
Rate Loan and the last day of the Interest Period relating thereto.
Interest Period. With respect to each LIBOR Rate Loan (a) initially,
the period commencing on the Drawdown Date of such Loan and ending one, two,
three or six months (or, with the consent of the Banks, a period of less than
one (1) month) thereafter and (b) thereafter, each period commencing on the day
following the last day of the next preceding Interest Period applicable to such
Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to a
LIBOR Rate Loan would otherwise end on a day that is not a LIBOR
Business Day, that Interest Period shall end and the next Interest
Period shall commence on the next preceding or succeeding LIBOR
Business Day as determined conclusively by the Reference Bank in
accordance with the then current bank practice in the London Interbank
Market;
(ii) if the Borrower shall fail to give notice as
provided in Section 4.1, the Borrower shall be deemed to have
requested a conversion of the affected LIBOR Rate Loan to a Base Rate
Loan on the last day of the then current Interest Period with respect
thereto; and
(iii) no Interest Period relating to any LIBOR Rate
Loan shall extend beyond the Maturity Date.
Interest Rate Contracts. Interest rate swap, collar, cap or similar
agreements providing interest rate protection.
Investments. With respect to any Person, all shares of capital
stock, evidences of Indebtedness and other securities issued by any other
Person, all loans, advances, or extensions of credit to, or contributions to the
capital of, any other Person, all purchases of the securities or business or
integral part of the business of any other Person and commitments and options to
make such purchases, all interests in real property, and all other investments;
provided, however,
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that the term "Investment" shall not include (i) equipment, inventory and other
tangible personal property acquired in the ordinary course of business, or (ii)
current trade and customer accounts receivable for services rendered in the
ordinary course of business and payable in accordance with customary trade
terms. In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented as a guaranty
shall be taken at not less than the principal amount of the obligations
guaranteed and still outstanding; (b) there shall be included as an Investment
all interest accrued with respect to Indebtedness constituting an Investment
unless and until such interest is paid; (c) there shall be deducted in respect
of each such Investment any amount received as a return of capital (but only by
repurchase, redemption, retirement, repayment, liquidating dividend or
liquidating distribution); (d) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (b) may be deducted when paid; and (e) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
Leases. Leases, licenses and agreements whether written or oral,
relating to the use or occupation of space in or on the Building or on the Real
Estate by persons other than the Borrower.
Letter of Credit. Any standby letter of credit issued at the request
of the Borrower and for the account of the Borrower in accordance with Section
2.7. Each letter of credit issued for the account of the Borrower under the
Prior Credit Agreement (which letters of credit are identified on Schedule 3
attached hereto) shall be deemed to be a Letter of Credit under this Agreement
and shall be subject to all terms and conditions of this Agreement including,
without limitation, the obligation of the Borrower to reimburse the Agent with
respect to any amounts drawn thereunder.
Letter of Credit Application. See Section 2.7(b).
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
LIBOR Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate
Loan, the rate per annum as determined by the Reference Bank's LIBOR Lending
Office to be the rate (rounded upwards to the nearest 1/16 of one percent) at
which Dollar deposits are offered to prime banks, by such banks in the London
Interbank Market as are selected in good faith by the Reference Bank, at
approximately 11:00 a.m. London time two (2) LIBOR Business Days prior to the
beginning of such Interest Period for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the LIBOR Rate Loan to which such Interest Period
applies.
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LIBOR Rate Loans. Loans bearing interest calculated by reference to
a LIBOR Rate.
Loan Documents. This Agreement, the Notes, the Letters of Credit, the
Letter of Credit Applications, the Security Documents and all other documents,
instruments or agreements now or hereafter executed or delivered by or on
behalf of the Borrower, the Guarantor or any of their Subsidiaries in
connection with the Loans. The Loan Documents include the Special Security
Documents.
Loan Request. See Section 2.5.
Loans. See Section 2.1.
Majority Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is more than fifty percent (50%); provided,
that, in determining said percentage at any given time, all then existing
Defaulting Banks will be disregarded and excluded and the Commitment
Percentages of the Banks shall be redetermined for voting purposes only, to
exclude the Commitment Percentages of such Defaulting Banks; and provided,
further that the Agent must always be among the Majority Banks except that
after an Event of Default described in Section 12.1 (a) or (b) decisions of the
Majority Banks to accelerate and/or exercise remedies pursuant to Section 12.5
shall be made without regard to whether the Agent is among the Majority Banks.
Management Agreements. Agreements, whether written or oral, providing
for the management of the Mortgaged Properties or any of them.
Maryland REIT. See Section 8.4(b).
Master Agreement. The Amended and Restated Master Agreement dated as
of December 27, 1995, by and among RPS Realty Trust, Ramco- Gershenson, Inc.
and certain other parties as set forth therein, as amended by First Amendment
to Amended and Restated Master Agreement dated as of March 19, 1996.
Maturity Date. May 1, 1999, as the same may be extended by the
Borrower as provided in Section 4.16, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
Mortgaged Property or Mortgaged Properties. The Eligible Real Estate
owned by the Borrower or any Approved Subsidiary which is conveyed to and
accepted by the Agent as security for the Obligations of the Borrower pursuant
to the Security Deeds.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower, the
Guarantor or any ERISA Affiliate.
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<PAGE> 24
Net Income (or Deficit). With respect to any Person (or any asset of
any Person) for any fiscal period, the net income (or deficit) of such Person
(or attributable to such asset), after deduction of all expenses, taxes and
other proper charges, determined in accordance with generally accepted
accounting principles.
Net Offering Proceeds. The gross cash proceeds received by the
Borrower or the Guarantor as a result of a Debt Offering or an Equity Offering
less the customary and reasonable costs, fees, expenses, underwriting
commissions and discounts incurred by the Borrower or the Guarantor in
connection therewith.
Non-recourse Indebtedness. Indebtedness of a Person which is secured
by one or more parcels of Real Estate (other than Mortgaged Property) and
related personal property or interests therein and Short-term Investments and
is not a general obligation of such Person, the holder of such Indebtedness
having recourse solely to the parcels of Real Estate securing such
Indebtedness, the Building and Leases thereon and the rents and profits thereof
and the Short-term Investments securing such Indebtedness.
Notes. See Section 2.3.
Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Agent, individually or collectively, under
this Agreement or any of the other Loan Documents or in respect of any of the
Loans, the Letters of Credit or the Notes, or other instruments at any time
evidencing any of the foregoing, whether existing on the date of this Agreement
or arising or incurred hereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise.
Operating Cash Flow. With respect to any Person (or any asset of any
Person) for any period, an amount equal to the sum of (a) the Net Income of such
Person (or attributable to such asset) for such period plus (b) depreciation and
amortization, interest expense, and any extraordinary or nonrecurring losses
deducted in calculating such Net Income, minus (c) any extraordinary or
nonrecurring gains included in calculating such Net Income, minus (d) the
Capital Expenditure Reserve Amount, all as determined in accordance with
generally accepted accounting principles.
Operating Cash Flow Rental Adjustment. For the purposes of
calculating Operating Cash Flow, with respect to any parcel of Real Estate as to
which the Borrower or any Approved Subsidiary shall obtain a replacement tenant
for vacant space in excess of 10,000 rentable square feet, the rent from such
tenant shall from the date such tenant takes possession and begins paying rent
be included for one-half (1/2) of the period for which such space was vacant
during the period for which Operating Cash Flow is being calculated.
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Outstanding. With respect to the Loans, the aggregate unpaid
principal thereof as of any date of determination. With respect to Letters of
Credit, the aggregate undrawn face amount of issued Letters of Credit.
PBGC. The Pension Benefit Guaranty Corporation created by Section
4002 of ERISA and any successor entity or entities having similar
responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, trust,
unincorporated association, business, or other legal entity, and any government
or any governmental agency or political subdivision thereof.
Potential Collateral. Any property of the Borrower which is not at
the time included in the Collateral and which consists of (i) Eligible Real
Estate and (ii) Real Estate which is capable of becoming Eligible Real Estate
through the approval of the Majority Banks and the completion and delivery of
Eligible Real Estate Qualification Documents.
Principal Documents. The Master Agreement, the RPS Contribution
Agreements and the Ramco Agreements.
Prior Credit Agreement. As defined in the recitals hereof.
Pro Forma Debt Service Charges. For any period of four consecutive
fiscal quarters the sum of principal and interest which would have been payable
during such period on a loan in the original principal amount equal to the
outstanding principal balance of the Loans as of the date of such determination
bearing interest at a rate per annum equal to the greater of (i) the sum of the
then current annual yield on seven (7) year obligations issued by the United
States Treasury most recently prior to the date of such determination plus one
and five-eights percent (1.625%) and (ii) the then applicable interest rate on
the Loans (if Loans of different Types are Outstanding as of the date of
determination of the Pro Forma Debt Service Charges, then for purposes of this
definition, the applicable interest rate on the Loans shall be the rate that is
a blend of those interest rates then applicable to the Loans based upon the
weighted average of the principal amounts of the Types of Loans then
Outstanding), both being payable based on a 25 year mortgage style amortization
schedule (expressed as a mortgage constant percentage). Such determination of
the Pro Forma Debt Service Charges by the Agent shall be conclusive and binding
absent manifest error.
Purchase Agreement. Those certain Sales Contracts, between the
Borrower and various entities relating to the purchase by the Borrower of
certain retail properties managed by D.R.A. Advisors, Inc.
Ramco Agreements. As defined in the Master Agreement.
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Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to any Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by
any Bank with respect to any Loan referred to in such Note.
Reference Bank. BankBoston.
Register. See Section 18.2.
Regular Real Estate. All of those certain parcels of Real Estate
which are not Special Real Estate.
REIT Status. With respect to the Guarantor, its status as a real
estate investment trust as defined in Section 856(a) of the Code.
Release. See Section 6.18(c)(iii).
REMIC Properties. The Initial REMIC Properties and the Additional
REMIC Properties.
REMIC Subsidiary. Ramco Properties Associates Limited Partnership, a
Michigan limited partnership.
REMIC Subsidiary Guaranty (Revolver) . The Unconditional Guaranty of
Payment and Performance (Revolver) dated of even date herewith and made by the
REMIC Subsidiary in favor of the Agent and the Banks, as the same may be
modified or amended, such REMIC Subsidiary Guaranty (Revolver) to be in form and
substance satisfactory to the Agent.
REMIC Transaction. See Section 8.8(b).
Rent Roll. A report prepared by the Borrower in the form customarily
used by the Borrower and approved by the Agent, such approval not to be
unreasonably withheld.
RPS Contribution Agreements. As defined in the Master Agreement.
SEC. The federal Securities and Exchange Commission.
Security Deeds. The Mortgages, Deeds to Secure Debt and Deeds of
Trust from the Borrower or any Approved Subsidiary to the Agent for the benefit
of the Banks (or to trustees named therein acting on behalf of the Agent for
the benefit of the Banks), as the same may be modified or amended, pursuant to
which the Borrower or any Approved Subsidiary has conveyed a Mortgaged Property
(including both Regular Real Estate and Special Real Estate) as security for
the Obligations of the Borrower.
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Security Documents. The Security Deeds, the Assignments of Rents and
Leases, the Indemnity Agreement, the Guaranty, the REMIC Subsidiary Guaranty
(Revolver) and any further collateral assignments to the Agent for the benefit
of the Banks, including, without limitation, UCC-1 financing statements
executed and delivered in connection therewith.
Service Agreement. Service agreements with third parties, whether
written or oral, relating to the operation, maintenance, security, finance or
insurance of Mortgaged Property.
Short-term Investments. Investments described in subsections (a)
through (g), inclusive, of Section 8.3.
Special Real Estate. Those certain parcels of Real Estate which are
described on Schedule 1.1. In the event that after the date hereof any other
Real Estate shall become Special Real Estate, the Agent may unilaterally amend
Schedule 1.1 to reflect such addition.
Special Security Documents. The Security Documents relating to
Special Real Estate, which have been or may in the future be executed and
delivered to Agent for the benefit of the Banks, and which are not to be
recorded until the occurrence of the events specified in Section 5.8 (it being
acknowledged that the Guaranty and the Indemnity Agreement are not Special
Security Documents).
State. A state of the United States of America.
Stock Purchase Commitment. That certain Preferred Units and Stock
Purchase Agreement dated as of September 30, 1997, among Borrower, Guarantor,
Stichting Bedrijspensioenfonds Voor de Metaalnijrerheid, Stichting Pensionfonds
ABP, MS Real Estate Special Situations Inc., The Morgan Stanley Real Estate
Special Situations Fund I, L.P., The Morgan Stanley Real Estate Special
Situations Fund II, L.P., The Morgan Stanley Real Estate Special Situations
Fund III, L.P. and Special Situations RG REIT, Inc.
Stock Purchase Commitment Allowance. At any time, an amount equal to
the amount then unpaid and available to be funded or paid pursuant to the
Stock Purchase Commitment including any amounts which may be paid under the
"Buyer/Kimco Stock Purchase Agreement" (as defined in the Stock Purchase
Commitment; provided that (a) no Stock Purchase Buyer has notified the Borrower
or the Guarantor of a refusal to pay all or any portion of the purchase price
pursuant to the Stock Purchase Commitment, or notice of its intention to so
refuse to pay all or any portion of the purchase price, (b) no Stock Purchase
Buyer has claimed that a default or event of default by Borrower or Guarantor
has occurred under the Stock Purchase Commitment such that such Stock Purchase
Buyer is not obligated to pay amounts pursuant to the Stock Purchase
Commitment, (c) none of the events described in Section 12.1(g), (h) or (i)
have occurred with respect to any Stock Purchase Buyer, (d) no Stock Purchase
Buyer (i) has denied that it has any liability or obligation under the Stock
Purchase Commitment, (ii) has notified the Borrower or the Guarantor of such
Stock Purchase Buyer's intention to attempt to cancel or terminate the Stock
Purchase Commitment, or (iii) has failed to observe or comply with any term,
covenant,
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condition or agreement under the Stock Purchase Commitment, (e) no event has
occurred which would permit any Stock Purchase Buyer to refuse to pay amounts
pursuant to the Stock Purchase Commitment, or (f) the Stock Purchase Commitment
has not expired or been terminated.
Stock Purchase Buyer. Any one or more of Stichting
Bedrijspensioenfonds Voor de Metaalnijrerheid, Stichting Pensionfonds ABP, MS
Real Estate Special Situations Inc., The Morgan Stanley Real Estate Special
Situations Fund I, L.P., The Morgan Stanley Real Estate Special Situations Fund
II, L.P., The Morgan Stanley Real Estate Special Situations Fund III, L.P.,
Special Situations RG REIT, Inc. or Kimco Realty Corporation.
Subsidiary. Any corporation, association, partnership, trust, or
other business entity of which the designated parent shall at any time own
directly or indirectly through a Subsidiary or Subsidiaries at least a majority
(by number of votes or controlling interests) of the outstanding Voting
Interests. The REMIC Subsidiary is a wholly-owned Subsidiary of the Borrower.
Survey. An instrument survey of Mortgaged Property prepared by a
registered land surveyor duly licensed in the State in which such Mortgaged
Property is located which shall show the location of all buildings, structures,
easements and utility lines on such property, shall be sufficient to remove the
standard survey exception from the Title Policy, shall show that all buildings
and structures are within the lot lines of the Mortgaged Property and shall not
show any encroachments by others (or to the extent any encroachments are shown,
such encroachments shall be acceptable to the Agent in its sole discretion),
shall show rights of way, adjoining sites, establish building lines and street
lines, the distance to, and names of the nearest intersecting streets and such
other details as the Agent may reasonably require; shall show the zoning
district or districts in which the Mortgaged Property is located and shall show
whether or not the Mortgaged Property is located in a flood hazard district as
established by the Federal Emergency Management Agency or any successor agency
or is located in any flood plain, flood hazard or wetland protection district
established under federal, state or local law and shall otherwise be in form
and substance reasonably satisfactory to the Agent.
Surveyor Certification. With respect to each parcel of Mortgaged
Property, a certificate executed by the surveyor who prepared the Survey with
respect thereto, dated as of a recent date and containing such information
relating to such parcel as the Agent or the Title Insurance Company may
reasonably require, such certificate to be reasonably satisfactory to the Agent
in form and substance.
Title Insurance Company. Commonwealth Land Title Insurance Company
or another title insurance company or companies approved by the Agent.
Title Policy. With respect to each parcel of Mortgaged Property, an
ALTA standard form title insurance policy (or, if such form is not available, an
equivalent form of or legally promulgated form of mortgagee title insurance
policy reasonably acceptable to the Agent) issued by a Title Insurance Company
(with such reinsurance or coinsurance as the Agent may require, any such
reinsurance to be with direct access endorsements to the extent available under
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applicable law) in such amount as the Agent may require insuring the priority
of the Security Deeds and that the Borrower or an Approved Subsidiary holds
marketable fee simple title to such parcel, subject only to the encumbrances
permitted by the Security Deed and which shall not contain standard exceptions
for mechanics liens, persons in occupancy (other than tenants as tenants only
under Leases) or matters which would be shown by a survey, shall not insure
over any matter except to the extent that any such affirmative insurance is
acceptable to the Agent in their sole discretion and shall contain (a) a
revolving credit endorsement and (b) such other endorsements and affirmative
insurance as the Agent reasonably may require and is available in the State in
which the Real Estate is located, including but not limited to (i) a
comprehensive endorsement, (ii) a variable rate of interest endorsement, (iii)
a usury endorsement, (iv) a doing business endorsement, (v) in States where
available, an ALTA form 3.1 zoning endorsement, (vi) a "tie-in" endorsement and
(vii) a "first loss" endorsement; provided, however, that with respect to
Special Real Estate, the "Title Policy" shall be an owner's policy of title
insurance, in a form satisfactory to the Agent, containing only exceptions
satisfactory to the Agent, supplemented by a current "date down" or "nothing
further" certificate (or if such endorsement or certificate is not available a
current mortgagee's title commitment in favor of the Agent) provided by an
issuer satisfactory to the Agent, evidencing the state of title to the Special
Real Estate, as of a date not earlier than thirty (30) days prior to delivery
thereof to the Agent or such later date as may be required by any other
provision hereof (it being acknowledged that a Title Policy relating to Special
Real Estate shall not be considered in full force and effect if such a current
satisfactory supplement has not been delivered within a period of one year).
Total Commitment. The sum of the Commitments of the Banks, as in
effect from time to time. As of the date of this Agreement, the Total
Commitment is One Hundred Sixty Million and No/100 Dollars ($160,000,000.00).
Upon consummation of the REMIC Transaction in accordance with the terms of this
Agreement, the Total Commitment shall be One Hundred Ten Million and No/100
Dollars ($110,000,000.00).
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate
Loan.
Under Development. Any Real Estate shall be considered under
development until such time as (i) a Certificate of Occupancy has been obtained
or the Borrower has delivered to the Agent other evidence satisfactory to the
Agent indicating that occupancy of such development is lawful, and (ii) the
gross income from the operation of such Real Estate on an accrual basis shall
have equaled or exceeded operating costs on an accrual basis for three (3)
months.
Unsecured Term Loan Agreement. That certain Unsecured Term Loan
Agreement among the Borrower, the Guarantor, BankBoston, the other lending
institutions that are or become parties thereto and BankBoston, N.A. in its
capacity as agent for itself and the other lending institutions that are or
become parties thereto, dated of even date as this Agreement, as the same may be
amended, modified or restated.
Unsecured Term Loans. All loans and other indebtedness or liabilities
arising under the Unsecured Term Loan Agreement and all other loan documents
related thereto.
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Voting Interests. Stock or similar ownership interests, of any class
or classes (however designated), the holders of which are at the time entitled,
as such holders, (a) to vote for the election of a majority of the directors
(or persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control,
manage, or conduct the business of the corporation, partnership, association,
trust or other business entity involved.
U1.2.Rules of Interpretation
(a) A reference to any document or agreement shall
include such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have
the meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are
not limiting.
(g) The words "approval" and "approved", as the context
so determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined in the
Uniform Commercial Code as in effect in the State of Michigan, have the
meanings assigned to them therein.
(i) Reference to a particular "Section", refers to
that section of this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words
of like import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement.
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U2.THE REVOLVING CREDIT FACILITY U1.3.Commitment to LendSubject to the terms
and conditions set forth in this Agreement, each of the Banks severally agrees
to lend to the Borrower (the "Loans"), and the Borrower may borrow (and repay
and reborrow) from time to time between the Closing Date and the Maturity Date
upon notice by the Borrower to the Agent given in accordance with Section 2.5,
such sums as are requested by the Borrower for the purposes set forth in
Section 7.11 up to a maximum aggregate principal amount Outstanding (after
giving effect to all amounts requested and the amount of Letters of Credit
Outstanding) at any one time equal to the lesser of (a) such Bank's Commitment
minus an amount equal to such Bank's participations in the aggregate Letters of
Credit Outstanding and (b) an amount equal to the Borrowing Base multiplied by
such Bank's Commitment Percentage minus an amount equal to such Bank's
participations in the aggregate Letters of Credit Outstanding; provided, that,
in all events no Default or Event of Default shall have occurred and be
continuing; and provided, further that the Outstanding Loans (after giving
effect to all amounts requested) and the Letters of Credit Outstanding shall
not at anytime exceed the Total Commitment. The Loans shall be made pro rata
in accordance with each Bank's Commitment Percentage. Each request for a Loan
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in Section 10 and Section 11, in the case of
the initial Loan, and Section 11, in the case of all other Loans, have been
satisfied on the date of such request.
U2.2.Unused Facility FeeThe Borrower agrees to pay to the Agent for the
account of the Banks in accordance with their respective Commitment Percentages
a facility fee calculated at the rate per annum as set forth below on the
average daily amount by which the Total Commitment exceeds the Outstanding
Loans during each calendar quarter or portion thereof commencing on the date
hereof and ending on the Maturity Date. The facility fee shall be calculated
based on the ratio (expressed as a percentage) of (a) the average daily amount
of the Outstanding Loans during such quarter to (b) the Total Commitment as
follows:
Ratio of Outstanding Principal
Balance to Total Commitment Rate
------------------------------ ----
50% or less 0.25%
Greater than 50% 0.125%
The facility fee shall be payable quarterly in arrears on the fifth day of each
calendar quarter for the immediately preceding calendar quarter or portion
thereof, or on any earlier date on which the Commitments shall be reduced or
terminated as provided in Section 2.8, with a final payment on the Maturity
Date.
U2.3.NotesThe Loans shall be evidenced by separate promissory notes of the
Borrower in substantially the form of Exhibit A hereto (collectively, the
"Notes"), dated of even date as this Agreement and completed with appropriate
insertions. One Note shall be payable to the order of each Bank in the
principal amount equal to such Bank's Commitment or, if less, the outstanding
amount of all Loans made by such Bank, plus interest accrued thereon as set
forth below. The Borrower irrevocably authorizes each Bank to make or cause to
be made, at or about
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the time of the Drawdown Date of any Loan or at the time of receipt of any
payment of principal thereof, an appropriate notation on such Bank's Record
reflecting the making of such Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Loans set forth on such Bank's Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in so recording, any such
amount on such Bank's Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any Note to make payments of
principal of or interest on any Note when due. By delivery of the Notes, there
shall not be deemed to have occurred, and there has not otherwise occurred, any
payment, satisfaction or novation of the indebtedness evidenced by the "Notes"
(as defined in the Prior Credit Agreement), which indebtedness is instead
allocated among the Banks as of the date hereof and evidenced by the Notes in
accordance with their respective Commitment Percentages.
U2.4.Interest on Loans
(a) Each Base Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the date on
which such Base Rate Loan is converted to a LIBOR Rate Loan at the per annum
rate equal to the Base Rate.
(b) Each LIBOR Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to the sum
of the Applicable Margin plus the LIBOR Rate determined for such Interest
Period.
(c) The Borrower promises to pay interest on each Loan to
it in arrears on each Interest Payment Date with respect thereto, or on any
earlier date on which the Commitments shall terminate as provided in Section
2.8. In the event that any additional interest becomes due and payable for any
period with respect to a Loan as a result of the Applicable Margin being
determined based on the ratio of Consolidated Total Liabilities to Consolidated
Total Adjusted Asset Value or any change in such ratio, and the interest for
such period has previously been paid by the Borrower, the Borrower shall pay to
the Agent for the account of the Banks the amount of such increase within ten
(10) days of demand.
(d) Base Rate Loans and LIBOR Rate Loans may be converted
to Loans of the other Type as provided in Section 4.1.
U2.5.Requests for LoansThe Borrower (i) shall notify the Agent of a potential
request for a Loan as soon as possible prior to the Borrower's proposed
Drawdown Date, and (ii) shall give to the Agent written notice in the form of
Exhibit B hereto (or telephonic notice confirmed in writing in the form of
Exhibit B hereto) of each Loan requested hereunder (a "Loan Request") no less
than three (3) Business Days prior to the proposed Drawdown Date. Each such
notice shall specify with respect to the requested Loan the proposed principal
amount, Drawdown Date, Interest Period (if applicable) and Type. Each such
notice shall also contain (i) a statement as to the purpose for which such
advance shall be or has been used (which purpose shall be in
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accordance with the terms of Section 7.11), (ii) in the case of any advance
relating to any Capital Improvement Project to a Mortgaged Property and if
requested by the Agent, delivery to the Agent within thirty (30) days
thereafter of affidavits, lien waivers or other evidence reasonably
satisfactory to the Agent showing that all materialmen, laborers,
subcontractors and any other parties who might or could claim statutory or
common law liens and are furnishing or have furnished material or labor to the
Mortgaged Property have been paid all amounts due for such labor and materials,
and (iii) a certification by the chief financial or chief accounting officer of
the general partner of the Borrower that the Borrower is and will be in
compliance with all covenants under the Loan Documents after giving effect to
the making of such Loan. Notwithstanding anything in this Section 2.5 to the
contrary, the Borrower shall be permitted to use the proceeds of a Loan to
reimburse the Borrower for amounts paid from its own funds to acquire Real
Estate, to develop undeveloped Real Estate (subject to the restrictions set
forth in Section 8.9) or for Capital Improvement Projects with respect thereto.
Promptly upon receipt of any such notice, the Agent shall notify each of the
Banks thereof. Except as provided in this Section 2.5, each such Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept the Loan requested from the Banks on the proposed Drawdown
Date, provided that, in addition to the Borrower's other remedies against any
Bank which fails to advance its proportionate share of a requested Loan, such
Loan Request may be revoked by the Borrower by notice received by the Agent no
later than the Drawdown Date if any Bank fails to advance its proportionate
share of the requested Loan in accordance with the terms of this Agreement,
provided further, that the Borrower shall be liable in accordance with the
terms of this Agreement to any Bank which is prepared to advance its
proportionate share of the requested Loan for any costs, expenses or damages
actually incurred by such Bank as a result of the Borrower's election to revoke
such Loan Request. Nothing herein shall prevent the Borrower from seeking
recourse against any Bank that fails to advance its proportionate share of a
requested Loan as required by this Agreement. The Borrower may without cost or
penalty revoke a Loan Request by delivering notice thereof to each of the Banks
no later than three (3) Business Days prior to the Drawdown Date. Each Loan
Request shall be (a) for a Base Rate Loan in the minimum aggregate amount of
$500,000 or an integral multiple of $100,000 in excess thereof, or (b) for a
LIBOR Rate Loan in a minimum aggregate amount of $500,000.00 or an integral
multiple of $100,000 in excess thereof; provided, however, that there shall be
no more than ten (10) LIBOR Rate Loans outstanding at any one time. In the
event that the proceeds from such Loan have been or are to be used for a
purpose other than a Capital Improvement Project, then the Borrower shall
provide to the Agent as soon as practicable such evidence as the Agent shall
reasonably require to evidence that such funds have been used for such purpose
(which evidence may include, without limitation, a closing statement).
U2.6.Funds for Loans
(a) Not later than 11:00 a.m. (Boston time) on the
proposed Drawdown Date of any Loans, each of the Banks will make available to
the Agent, at the Agent's Head Office, in immediately available funds, the
amount of such Bank's Commitment Percentage of the amount of the requested
Loans which may be disbursed pursuant to Section 2.1. Upon receipt from each
Bank of such amount, and upon receipt of the documents required by Section 10
and Section 11 and the
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satisfaction of the other conditions set forth therein, to the extent
applicable, the Agent will make available to the Borrower the aggregate amount
of such Loans made available to the Agent by the Banks by crediting such amount
to the account of the Borrower maintained at the Agent's Head Office. The
failure or refusal of any Bank to make available to the Agent at the aforesaid
time and place on any Drawdown Date the amount of its Commitment Percentage of
the requested Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Agent the amount of such other
Bank's Commitment Percentage of any requested Loans, including any additional
Loans that may be requested subject to the terms and conditions hereof to
provide funds to replace those not advanced by the Bank so failing or refusing,
provided that the Borrower may by notice received by the Agent no later than
the Drawdown Date refuse to accept any Loan which is not fully funded in
accordance with the Borrower's Loan Request subject to the terms of Section
2.5. In the event of any such failure or refusal, the Banks not so failing or
refusing shall be entitled to a priority secured position as against the Bank
or Banks so failing or refusing for such Loans as provided in Section 12.6.
(b) Unless the Agent shall have been notified by any Bank
prior to the applicable Drawdown Date that such Bank will not make available to
the Agent such Bank's pro rata share of a proposed Loan, the Agent may in its
discretion assume that such Bank has made such share of the proposed Loan
available to Agent in accordance with the provisions of this Agreement and the
Agent may, if it chooses, in reliance upon such assumption make such Loan
available to Borrower, and such Bank shall be liable to the Agent for the
amount of such advance.
U2.7.Letters of Credit
(a) Subject to the terms and conditions hereof and
provided that all of the conditions contained in Section Section 10 and 11 have
been satisfied, the Agent agrees to issue Letters of Credit for the account of
the Borrower, from the date of this Agreement to, but not including, a date 90
days prior to the Maturity Date at such times as the Borrower may request;
provided, however, that the aggregate amount of Letters of Credit (including
such requested Letter of Credit) at any one time Outstanding shall not exceed
the lesser of (i) the lesser of (A) the Total Commitment or (B) the amount of
the Borrowing Base, in each case, minus the aggregate amount of Outstanding
Loans (including any amounts drawn under any Letters of Credit and not yet
reimbursed by the Borrower), or (ii) $10,000,000.00. The issuance of a Letter
of Credit pursuant to this Section 2.7(a) shall be deemed to reduce the
aggregate of the unborrowed Commitments of the Banks then in effect by an
amount equal to the undrawn face amount of such Letter of Credit as set forth
herein. In no event shall any amount drawn under a Letter of Credit be
available for reinstatement or a subsequent drawing under a Letter of Credit.
Each Bank severally agrees to participate in each such Letter of Credit issued
by the Agent in an amount equal to its Commitment Percentage of the total
amount of the Letter of Credit requested by the Borrower; provided, however,
that no Bank shall be required to participate in any Letter of Credit to the
extent that its participation therein plus (x) such Bank's participation in the
aggregate of all other Letters of Credit Outstanding, and (y) such Bank's
Commitment Percentage of the amount of any Loans Outstanding (including any
amounts drawn under any Letters of Credit and not yet
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reimbursed by the Borrower), would exceed an amount equal to such Bank's
Commitment as then in effect. Each Bank agrees with the Agent that it will
participate in each Letter of Credit issued by the Agent to the extent required
by the preceding sentence. No Bank's obligation to participate in a Letter of
Credit shall be affected by any other Bank's failure to participate in the same
or any other Letter of Credit.
(b) The Borrower shall deliver to the Agent at least five
(5) Business Days (or such shorter period as may be agreed to by the Agent in
any particular instance) prior to the proposed issuance date or amendment date
of any Letter of Credit, a Letter of Credit Application signed by the chief
executive, chief financial or chief accounting officer of the general partner
of the Borrower in the form of Exhibit D hereto (a "Letter of Credit
Application") together with a certification by the chief financial or chief
accounting officer of the general partner of the Borrower that the Borrower is
and will be in compliance with all covenants under the Loan Documents after
giving effect to the issuance of such Letter of Credit. Subject to the terms
and conditions set forth in Section 2.7(a) and, unless the Agent is aware that
the conditions precedent to such issuance of a Letter of Credit set forth in
Section 11 have not been satisfied, the Agent will make the requested Letter of
Credit available at the Agent's principal office not later than 4:00 p.m.
(Boston time) on the issuance date, and, immediately upon the issuance of each
Letter of Credit, each Bank shall be deemed to participate in such Letter of
Credit to the extent set forth in Section 2.7(a). Not more than two (2)
Business Days after the issuance of any Letter of Credit, the Agent shall
notify each Bank of the amount and other contents of such Letter of Credit and
of the date of issuance. The Agent shall notify each Bank at least monthly, or
at the request of such Bank, of the amount of all outstanding Letters of
Credit.
(c) The chief executive, chief financial or chief
accounting officer of the general partner of the Borrower may request a Letter
of Credit on behalf of the Borrower. The Agent shall be entitled to rely
conclusively on such authorized officer's authority to request a Letter of
Credit on behalf of the Borrower until the Agent receives written notice to the
contrary. The Agent shall have no duty to verify the authenticity of the
signature appearing on any Letter of Credit Application.
(d) Each Letter of Credit Application shall be
irrevocable and the Borrower shall be bound to accept the issuance of a Letter
of Credit in accordance therewith.
(e) All Letters of Credit shall be stated to expire no
more than twelve (12) months from the date of issuance; provided, however, that
no Letter of Credit shall be stated to expire after, or be extended for a
period that ends after, the Maturity Date.
(f) In the event that any amount is drawn under a Letter
of Credit by the beneficiary thereof, the Borrower shall reimburse the Agent by
having such amount drawn treated as an outstanding Base Rate Loan under this
Agreement and the Agent shall promptly notify each Bank by telex, telecopy,
telegram, telephone (confirmed in writing) or other similar means of
transmission, and each Bank shall promptly and unconditionally pay to the
Agent, for the Agent's own account, an amount equal to such Bank's Commitment
Percentage of such Letter of Credit (to the extent of the amount drawn). If
and to the extent any Bank shall not make such amount
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available on the Business Day on which such draw occurs, such Bank agrees to
pay such amount to the Agent forthwith on demand, together with interest
thereon, for each day from the date on which such draw occurred until the date
on which such amount is paid to the Agent, at the Federal Funds Effective Rate
until three (3) days after the date on which the Agent gives notice of such
draw and at the Federal Funds Effective Rate plus 1% for each day thereafter.
Further, such Bank shall be deemed to have assigned any and all payments made
of principal and interest on its Loans, amounts due with respect to its
participations in Letters of Credit and any other amounts due to it hereunder
to the Agent to fund the amount of any drawn Letter of Credit which such Bank
was required to fund pursuant to this Section 2.7(f) until such amount has been
funded (as a result of such assignment or otherwise). In the event of any such
failure or refusal, the Banks not so failing or refusing shall be entitled to a
priority secured position for such amounts as provided in Section 12.6. The
failure of any Bank to make funds available to the Agent in such amount shall
not relieve any other Bank of its obligation hereunder to make funds available
to the Agent pursuant to this Section 2.7(f).
(g) The obligation of the Borrower to reimburse the
Agent, and of the Banks to make payments to the Agent with respect to Letters
of Credit, shall be irrevocable and shall not be subject to any qualification
or exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) Any lack of validity or enforceability of
this Agreement, any Letter of Credit or any of the other Loan
Documents;
(ii) The existence of any claim, setoff, defense
or other right which the Borrower may have at any time against
a beneficiary named in a Letter of Credit or any transferee of
any Letter of Credit (or any Person for whom any such
transferee may be acting), the Agent, any Bank or any other
Person, whether in connection with this Agreement, any Letter
of Credit, the transactions contemplated herein or any
unrelated transactions (including any underlying transactions
between the Borrower or any Subsidiary of the Borrower and the
beneficiary named in any Letter of Credit);
(iii) Any draft, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect in
the absence of gross negligence or willful misconduct on the
part of the Agent;
(iv) The surrender or impairment of any security
for the performance or observance of any of the terms of any
of the Loan Documents;
(v) Payment by the Agent under any Letter of
Credit against presentation of a demand, draft or certificate
or other document which does not
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comply with the terms of such Letter of Credit, provided that
such payment does not constitute gross negligence or willful
misconduct of the Agent;
(vi) Any other circumstance or happening
whatsoever which is similar to any of the foregoing; or
(vii) The occurrence of any Event of Default or
Default.
(h) Whenever the Agent receives a reimbursement payment
from the Borrower on account of an amount drawn under a Letter of Credit, as to
which the Agent has received for its own account any payment from the Banks
pursuant to this Section 2.7, then the Agent shall promptly pay to each Bank
which has funded its participation in such Letter of Credit in accordance with
this Section 2.7, in Dollars and in the kind of funds so received, such Bank's
share of such reimbursement payment based on its Commitment Percentage of such
Letter of Credit.
(i) The Borrower shall pay to the Agent for the account
of the Banks (based on their respective Commitment Percentage of Letters of
Credit), a fee equal to one and three quarters percent (1.75%) per annum on the
face amount of such Letter of Credit calculated quarterly and payable in
advance. The fee for any Letter of Credit with a term of less than one year
(or part of a year) shall be calculated on a pro-rata basis. In addition, the
Borrower shall pay the standard service charges for Letters of Credit issued
from time to time by the Agent including an issuance fee of $150.00 for each
Letter of Credit. Such additional fees shall be paid to the Agent for its own
account. All such fees shall be payable when due in immediately available
funds and shall be nonrefundable.
(j) In addition to amounts payable as elsewhere provided
in this Section 2.7, the Borrower hereby agrees to pay, and to protect,
indemnify and save harmless the Agent and the Banks from and against, any and
all claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees and allocated costs of internal counsel)
which the Agent and the Banks may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of or participations in the Letters of
Credit, other than as a result of the gross negligence or willful misconduct of
the Agent or any Bank as determined by a court of competent jurisdiction, or
(ii) the failure of the Agent to honor a drawing under any Letter of Credit as
a result of any act or omission, whether rightful or wrongful, of any present
or future government or governmental authority (all such acts or omissions
herein called "Government Acts"). The obligations of the Borrower under this
Section 2.7 shall survive the termination of this Agreement and the discharge
of the Borrower's other obligations hereunder, including the Obligations.
(k) As between (i) the Borrower and (ii) the Agent and
the Banks, the Borrower assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by the Agent by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation
of the foregoing, neither the Agent nor any Bank shall be responsible: (i) for
the form validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of such Letters of Credit, even if
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it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
Letter of Credit or the right or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) for failure of the beneficiary of any Letter of Credit to comply fully
with conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be
in cipher; (v) for errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the Agent or any Bank,
including, without limitation, any Government Acts; provided, however, that the
Agent will be responsible for grossly negligent actions or willful misconduct
on its part. None of the above shall affect, impair, or prevent the vesting of
any of the Agent's or any Bank's rights or powers hereunder.
(l) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or omitted by
the Agent under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith shall not put the Agent
or any Bank under any resulting liability to the Borrower other than as a
result of gross negligence or willful misconduct by the Agent as determined by
a court of competent jurisdiction.
(m) If after the issuance of a Letter of Credit, but
prior to the funding of any portion thereof by a Bank, one of the events
described in Section 12.1(g), (h) or (i) shall have occurred, each Bank will,
on the date such Loan pursuant to Section 2.7(f) was to have been made,
purchase an undivided participating interest in the Letter of Credit in an
amount equal to its Commitment Percentage of the amount of such Letter of
Credit. Each Bank will immediately transfer to the Agent in immediately
available funds the amount of its participation and upon receipt thereof the
Agent will deliver to such Bank a Letter of Credit participation certificate
dated the date of receipt of such funds and in such amount.
U2.8.Optional Reduction of CommitmentsThe Borrower shall have the right at
any time and from time to time upon three Business Days' prior written notice
to the Agent to reduce by $5,000,000.00 or an integral multiple of $500,000.00
in excess thereof (provided that in no event shall the aggregate Commitments be
reduced to an amount less than $75,000,000.00) or to terminate entirely the
unborrowed portion of the Commitments, whereupon the Commitments of the Banks
shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated, any such reduction to be without penalty. Promptly after receiving
any notice of the Borrower delivered pursuant to this Section 2.8, the Agent
will notify the Banks of the substance thereof. Upon the effective date of any
such termination in full, the Borrower shall pay to the Agent for the
respective accounts of the Banks the full amount of any facility fee under
Section 2.2 then accrued. No reduction or termination of the Commitments may
be reinstated. Any reduction of the Commitments pursuant
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to this Agreement shall be allocated pro rata among the Banks in accordance
with their Commitment Percentages.
U3.REPAYMENT OF THE LOANS U3.1.Stated MaturityThe Borrower promises to pay on
the Maturity Date and there shall become absolutely due and payable on the
Maturity Date all of the Loans outstanding on such date, together with any and
all accrued and unpaid interest thereon.
U3.2.Mandatory PrepaymentsIf at any time the aggregate of the Outstanding
Loans and Letters of Credit Outstanding exceeds (a) the Total Commitment, or
(b) the Borrowing Base, then the Borrower shall pay the amount of such excess
to the Agent for the respective accounts of the Banks for application to the
Loans within the time period provided for in Section 12.3, subject to the
Borrower's right to provide additional Collateral pursuant to Section 12.2.
U3.3.Optional PrepaymentsThe Borrower shall have the right, at its election,
to prepay the outstanding amount of the applicable Loans, as a whole or in
part, at any time without penalty or premium; provided, that the full or
partial prepayment of the outstanding amount of any LIBOR Rate Loans pursuant
to this Section 3.3 may be made only on the last day of the Interest Period
relating thereto except as otherwise required pursuant to Section 4.7. The
Borrower shall give the Agent, no later than 10:00 a.m., Boston time, at least
five (5) Business Days' prior written notice of any prepayment pursuant to this
Section 3.3, in each case specifying the proposed date of payment of Loans and
the principal amount to be paid.
U3.4.Partial PrepaymentsEach partial prepayment of the Loans under Section 3.2
and Section 3.3 shall be in an integral multiple of $100,000, shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of payment and, after payment of such interest, shall be applied, in the
absence of instruction by the Borrower, first to the principal of Base Rate
Loans and then to the principal of LIBOR Rate Loans.
U3.5.Effect of PrepaymentsAmounts of the Loans prepaid under Section 3.2,
Section 3.3 and Section 3.6 or out of any casualty or condemnation proceeds
prior to the Maturity Date may be reborrowed as provided in Section 2.
U3.6.Proceeds from Debt or Equity OfferingAt the option of the Majority Banks,
the Borrower shall cause any Net Offering Proceeds (excluding proceeds received
in connection with the Stock Purchase Commitment) to be paid by the Borrower or
the Guarantor to the Agent for the account of the Banks as a prepayment of the
Loans to the Borrower or which are guaranteed by the Guarantor within ten (10)
days of the date of such offering to the extent of the outstanding balance of
such Loans; provided that so long as no Default or Event of Default has
occurred and is continuing or would occur as a result of such payment, the Net
Offering Proceeds of any Equity Offering (excluding proceeds received in
connection with the Stock Purchase Commitment) may be used to prepay the
Unsecured Term Loans.
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U4.CERTAIN GENERAL PROVISIONS U2.7.Conversion Options
(a) The Borrower may elect from time to time to convert
any of its outstanding Loans to a Loan of another Type and such Loan shall
thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as
applicable; provided that (i) with respect to any such conversion of a LIBOR
Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at least three
(3) Business Days' prior written notice of such election, and such conversion
shall only be made on the last day of the Interest Period with respect to such
LIBOR Rate Loan; (ii) with respect to any such conversion of a Base Rate Loan
to a LIBOR Rate Loan the Borrower shall give the Agent at least four (4) LIBOR
Business Days' prior written notice of such election and the Interest Period
requested for such Loan, the principal amount of the Loan so converted shall be
in a minimum aggregate amount of $2,000,000 or an integral multiple of $100,000
in excess thereof and, after giving effect to the making of such Loan there
shall be no more than ten (10) LIBOR Rate Loans outstanding at any one time;
and (iii) no Loan may be converted into a LIBOR Rate Loan when any Default or
Event of Default has occurred and is continuing. All or any part of the
outstanding Loans of any Type may be converted as provided herein, provided
that no partial conversion shall result in a Base Rate Loan in an aggregate
principal amount of less than $1,000,000 or a LIBOR Rate Loan in an aggregate
principal amount of less than $2,000,000 and that the aggregate principal
amount of each Loan shall be in an integral multiple of $100,000. On the date
on which such conversion is being made, each Bank shall take such action as is
necessary to transfer its Commitment Percentage of such Loans to its Domestic
Lending Office or its LIBOR Lending Office, as the case may be. Each
Conversion Request relating to the conversion of a Base Rate Loan to a LIBOR
Rate Loan shall be irrevocable by the Borrower.
(b) Any Loan may be continued as such Type upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the terms of Section 4.1(a); provided that no LIBOR Rate Loan may
be continued as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on the
last day of the Interest Period relating thereto ending during the continuance
of any Default or Event of Default.
(c) In the event that the Borrower does not notify the
Agent of its election hereunder with respect to any Loan to it, such Loan shall
be automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
U4.2.Commitment and Syndication FeeThe Borrower has paid to BankBoston certain
fees for services rendered or to be rendered in connection with the Loan as
provided pursuant to the Agreement Regarding Fees dated of even date herewith
between the Borrower and BankBoston.
U4.3.Agent's FeeThe Borrower will pay to the Agent, for the Agent's own
account, an annual Agent's fee calculated at the rate, and payable at such
times as are, set forth in the Agreement Regarding Fees referred to in Section
4.2.
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U4.4.Funds for Payments
(a) All payments of principal, interest, unused facility
fees, Agent's fees, Letter of Credit fees, closing fees and any other amounts
due hereunder or under any of the other Loan Documents shall be made to the
Agent, for the respective accounts of the Banks and the Agent, as the case may
be, at the Agent's Head Office, not later than 1:00 p.m. (Boston time) on the
day when due, in each case in immediately available funds. The Agent is hereby
authorized to charge the accounts of the Borrower with BankBoston designated by
the Borrower, on the dates when the amount thereof shall become due and
payable, with the amounts of the principal of and interest on the Loans and all
fees, charges, expenses and other amounts owing to the Agent and/or the Banks
under the Loan Documents.
(b) All payments by the Borrower hereunder and under any
of the other Loan Documents shall be made without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein
unless the Borrower is compelled by law to make such deduction or withholding.
If any such obligation is imposed upon the Borrower with respect to any amount
payable by them hereunder or under any of the other Loan Documents, the
Borrower will pay to the Agent, for the account of the Banks or (as the case
may be) the Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in Dollars
as shall be necessary to enable the Banks or the Agent to receive the same net
amount which the Banks or the Agent would have received on such due date had no
such obligation been imposed upon the Borrower. The Borrower will deliver
promptly to the Agent certificates or other valid vouchers for all taxes or
other charges deducted from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document.
U4.5.ComputationsAll computations of interest on the Loans and of other fees
to the extent applicable shall be based on a 360-day year and paid for the
actual number of days elapsed. Except as otherwise provided in the definition
of the term "Interest Period" with respect to LIBOR Rate Loans, whenever a
payment hereunder or under any of the other Loan Documents becomes due on a day
that is not a Business Day, the due date for such payment shall be extended to
the next succeeding Business Day, and interest shall accrue during such
extension. The outstanding amount of the Loans as reflected on the records of
the Agent from time to time shall be considered prima facie evidence of such
amount.
U4.6.Inability to Determine LIBOR RateIn the event that, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the Agent
shall reasonably determine that adequate and reasonable methods do not exist
for ascertaining the LIBOR Rate for such Interest Period, the Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower and the Banks) to the Borrower and the Banks. In such
event (a) any Loan Request with respect to LIBOR Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans and
(b) each LIBOR Rate Loan will automatically, on
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the last day of the then current Interest Period thereof, become a Base Rate
Loan, and the obligations of the Banks to make LIBOR Rate Loans shall be
suspended until the Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall so notify the Borrower
and the Banks.
U4.7.IllegalityNotwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over a Bank or its LIBOR Lending
Office shall assert that it is unlawful, for any Bank to make or maintain LIBOR
Rate Loans, such Bank shall forthwith give notice of such circumstances to the
Agent and the Borrower and thereupon (a) the commitment of the Banks to make
LIBOR Rate Loans or convert Loans of another type to LIBOR Rate Loans shall
forthwith be suspended and (b) the LIBOR Rate Loans then outstanding shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law.
U4.8.Additional InterestIf any LIBOR Rate Loan or any portion thereof is
repaid or is converted to a Base Rate Loan for any reason on a date which is
prior to the last day of the Interest Period applicable to such LIBOR Rate
Loan, the Borrower will pay to the Agent upon demand for the account of the
Banks in accordance with their respective Commitment Percentages, in addition
to any amounts of interest otherwise payable hereunder, any amounts required to
compensate the Banks for any losses, costs or expenses which may reasonably be
incurred as a result of such payment or conversion, including, without
limitation, an amount equal to daily interest for the unexpired portion of such
Interest Period on the LIBOR Rate Loan or portion thereof so repaid or
converted at a per annum rate equal to the excess, if any, of (a) the interest
rate calculated on the basis of the LIBOR Rate applicable to such LIBOR Rate
Loan minus (b) the yield obtainable by the Agent upon the purchase of debt
securities customarily issued by the Treasury of the United States of America
which have a maturity date most closely approximating the last day of such
Interest Period (it being understood that the purchase of such securities shall
not be required in order for such amounts to be payable and that a Bank shall
not be obligated or required to have actually obtained funds at the LIBOR Rate
or to have actually reinvested such amounts as described above).
U4.9.Additional Costs, EtcNotwithstanding anything herein to the contrary, if
any present or future applicable law, which expression, as used herein,
includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any governmental or other
regulatory body or official with appropriate jurisdiction charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon
or otherwise issued to any Bank or the Agent by any central bank or other
fiscal, monetary or other authority (whether or not having the force of law),
shall:
(a) subject any Bank or the Agent to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with respect
to this Agreement, the other Loan
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Documents, such Bank's Commitment, the Loans or the Letters of Credit (other
than taxes based upon or measured by the income or profits of such Bank or the
Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of the principal
of or the interest on any Loans or any other amounts payable to any Bank under
this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by,
or deposits in or for the account of, or loans by, or commitments of an office
of any Bank, or
(d) impose on any Bank or the Agent any other conditions
or requirements with respect to this Agreement, the other Loan Documents, the
Loans, the Letters of Credit, such Bank's Commitment, or any class of loans or
commitments of which any of the Loans or such Bank's Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of
the Loans, the Letters of Credit or such Bank's Commitment, or
(ii) to reduce the amount of principal, interest
or other amount payable to such Bank or the Agent hereunder on
account of such Bank's Commitment or any of the Loans or the
Letters of Credit, or
(iii) to require such Bank or the Agent to make any
payment or to forego any interest or other sum payable
hereunder, the amount of which payment or foregone interest or
other sum is calculated by reference to the gross amount of
any sum receivable or deemed received by such Bank or the
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will within fifteen (15) days after
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent such additional amounts as such Bank or the Agent shall determine
in good faith to be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or other sum. Each
Bank and the Agent in determining such amounts may use any reasonable averaging
and attribution methods, generally applied by such Bank or the Agent.
U4.10.Capital AdequacyIf after the date hereof any Bank determines that (a)
the adoption of or change in any law, rule, regulation or guideline regarding
capital requirements for banks or bank holding companies or any change in the
interpretation or application thereof by any governmental authority charged
with the administration thereof, or (b) compliance by such Bank or its parent
bank holding company with any guideline, request or directive of any such
entity regarding
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capital adequacy (whether or not having the force of law), has the effect of
reducing the return on such Bank's or such holding company's capital as a
consequence of such Bank's commitment to make Loans or participate in Letters
of Credit hereunder to a level below that which such Bank or holding company
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or such holding company's then existing policies with
respect to capital adequacy and assuming the full utilization of such entity's
capital) by any amount deemed by such Bank to be material, then such Bank may
notify the Borrower thereof. The Borrower agrees to pay to such Bank the
amount of such reduction in the return on capital as and when such reduction is
determined, upon presentation by such Bank of a statement of the amount and
setting forth such Bank's calculation thereof. In determining such amount,
such Bank may use any reasonable averaging and attribution methods.
U4.11.Indemnity of BorrowerThe Borrower agrees to indemnify each Bank and to
hold each Bank harmless from and against any loss, cost or expense that such
Bank may sustain or incur as a consequence of (a) default by the Borrower in
payment of the principal amount of or any interest on any LIBOR Rate Loans as
and when due and payable, including any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds obtained by it in
order to maintain its LIBOR Rate Loans, or (b) default by the Borrower in
making a borrowing or conversion after the Borrower has given (or is deemed to
have given) a Loan Request or a Conversion Request.
U4.12.Interest on Overdue Amounts; Late ChargeOverdue principal on the Loans
and all other overdue amounts payable hereunder or under any of the other Loan
Documents (other than interest on the Loans) shall, following the expiration of
any applicable cure period expressly provided for in this Agreement, bear
interest payable on demand at a rate per annum equal to five percent (5.0%)
above the Base Rate until such amount shall be paid in full (after as well as
before judgment). Overdue interest on the Loans shall, following the
expiration of any applicable cure period expressly provided for in this
Agreement, bear interest payable on demand at a rate equal to the lesser of (i)
a per annum rate equal to five percent (5.0%) above the Base Rate or (ii) the
maximum annual rate of interest permitted by applicable law until such amount
shall be paid in full (after as well as before judgment). In addition, the
Borrower shall pay a late charge equal to four percent (4.0%) of any amount of
interest and/or principal payable on the Loans or any other amounts payable
hereunder or under the Loan Documents, which is not paid by the Borrower within
fifteen (15) days after the same shall become due and payable.
U4.13.HLT ClassificationThe Banks acknowledge that as of the date hereof
neither the Commitments nor the Loans are classified as "highly leveraged
transactions". Notwithstanding the foregoing, if after the date hereof, the
Agent determines, or is advised by any Bank that such Bank has determined or
has received notice from any governmental authority, central bank or comparable
agency having jurisdiction over such Bank, that any of the Commitments or Loans
are classified as a "highly leveraged transaction" (an "HLT Classification")
pursuant to any existing regulations regarding "highly leveraged transactions"
or any modification, amendment or interpretation thereof, or the adoption of
new regulations regarding "highly leveraged transactions" after the date hereof
by any governmental authority, central bank or comparable
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agency, the Agent shall promptly give notice of such HLT Classification to the
Borrower and the Banks (which date is hereafter referred to as the "HLT Notice
Date"). The Agent, the Banks and the Borrower shall thereupon commence
negotiations in good faith to agree on the extent to which fees, interest rates
and/or margins hereunder should be increased so as to reflect such HLT
Classification. If the Borrower and the Majority Banks agree on the amount of
such increase or increases, this Agreement shall be promptly amended to give
effect to such increase or increases. If the Borrower and the Majority Banks
fail to so agree and the Borrower has failed to refinance the Loans within
ninety (90) days after the HLT Notice Date, then the Agent shall, if so
requested by the Majority Banks, by notice to the Borrower terminate the
Commitments and accelerate the maturity date of the Loans and the Loans shall
become due and payable in full on the date specified in such notice, which date
shall be not earlier than one hundred eighty (180) days after the HLT Notice
Date. The Agent and the Banks acknowledge that an HLT Classification is not a
Default or an Event of Default.
U4.14.CertificateA certificate setting forth any amounts payable pursuant to
Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section 4.12 or Section
4.13 and a brief explanation of such amounts which are due, submitted by any
Bank or the Agent to the Borrower, shall be conclusive in the absence of
manifest error.
U4.15.Limitation on InterestNotwithstanding anything in this Agreement to the
contrary, all agreements between the Borrower and the Banks and the Agent,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of acceleration of
the maturity of any of the Obligations or otherwise, shall the interest
contracted for, charged or received by the Banks exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Banks in excess of the maximum
lawful amount, the interest payable to the Banks shall be reduced to the
maximum amount permitted under applicable law; and if from any circumstance the
Banks shall ever receive anything of value deemed interest by applicable law in
excess of the maximum lawful amount, an amount equal to any excessive interest
shall be applied to the reduction of the principal balance of the Obligations
of the Borrower and to the payment of interest or, if such excessive interest
exceeds the unpaid balance of principal of the Obligations of the Borrower,
such excess shall be refunded to the Borrower. All interest paid or agreed to
be paid to the Banks shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal of the Obligations of the Borrower (including
the period of any renewal or extension thereof) so that the interest thereon
for such full period shall not exceed the maximum amount permitted by
applicable law. This section shall control all agreements between the Borrower
and the Banks and the Agent.
U4.16.Extension of Maturity Date
(a) Provided that no Default or Event of Default shall
have occurred and be continuing, the Borrower shall have the option, to be
exercised by giving written notice to the Agent in the form of Exhibit E hereto
at least 90 days prior to the initial scheduled Maturity Date of May 1, 1999,
subject to the terms and conditions set forth in this Agreement, to extend the
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Maturity Date to October 1, 2000. The request by the Borrower for extension of
the Maturity Date shall constitute a representation and warranty by the
Borrower that all of the conditions set forth in this Section shall have been
satisfied on the date of such request.
(b) The obligations of the Agent and the Banks to extend
the Maturity Date as provided in Section 4.16(a) shall be subject to the
satisfaction of the following conditions precedent on or prior to the scheduled
Maturity Date of May 1, 1999:
(i) Payment of Extension Fee. The Borrower shall
pay to the Agent for the pro rata accounts of the Banks in accordance with
their respective Commitment Percentages an extension fee equal to 0.15% of the
Total Commitment as of May 1, 1999, which fee shall, when paid, be fully earned
and non-refundable under any circumstances.
(ii) No Default. On the date of the exercise of
such extension option and on May 1, 1999, there shall exist no Default or Event
of Default.
(iii) Representations and Warranties. The
representations and warranties made by the Borrower, the Guarantor or any of
their respective Subsidiaries in the Loan Documents or otherwise made by or on
behalf of the Borrower, the Guarantor or any of their respective Subsidiaries
in connection therewith or after the date thereof shall be true and correct in
all material respects on May 1, 1999.
(iv) Interest Rate Protection. The Borrower shall
have obtained or extended prior to May 1, 1999, an Interest Collar satisfying
the requirements of this Agreement or such other Interest Rate Contract as the
Agent may approve in its discretion (and which shall not expire before October
1, 2000) and shall have provided evidence thereof to the Agent.
(v) Additional Documents. The Borrower, the
Guarantor and each Subsidiary shall execute and deliver to the Agent and the
Banks such additional documents, instruments, certifications and opinions as
the Agent or the Banks may reasonably require.
U5.COLLATERAL SECURITY U3.1.CollateralThe Obligations of the Borrower shall be
secured by (i) a perfected first priority lien or security title to be held by
the Agent for the benefit of the Banks in the Mortgaged Property, Building
Service Equipment and other personal property of the Borrower and any Approved
Subsidiary, pursuant to the terms of the Security Deeds, (ii) a perfected first
priority security interest to be held by the Agent for the benefit of the Banks
in the Leases pursuant to the Assignments of Rents and Leases from the Borrower
and any Approved Subsidiary and (iii) the Indemnity Agreement; provided,
however, that the security interest in Special Real Estate and rents generated
therefrom shall be perfected only as provided in Section 5.8. The Obligations
shall also be guaranteed pursuant to the terms of the Guaranty and the REMIC
Subsidiary Guaranty (Revolver).
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U5.2.Appraisals
(a) The Agent on behalf of the Banks shall require
biennial Appraisals of each of the Mortgaged Properties, which will be ordered
by the Agent and reviewed and approved by the appraisal department of the
Agent, or, if the Agent's appraisal department has determined that the value of
any Mortgaged Property is more than five percent (5%) different from the value
for such Mortgaged Property as set forth in the Appraisal delivered to the
Agent by the Borrower, by the appraisal departments of the Majority Banks, in
order to determine the current Appraised Value and Borrowing Base of the
Mortgaged Property, and the Borrower shall pay to the Agent on demand all
reasonable costs of all such Appraisals relating to the Mortgaged Property of
the Borrower; provided, however, that so long as (i) no Default or Event of
Default shall have occurred and be continuing, (ii) regulatory requirements of
any Bank generally applicable to real estate loans of the category made under
this Agreement as reasonably interpreted by such Bank shall not require more
frequent Appraisals and (iii) there has been no material change in the market
for the leasing of any of the Mortgaged Properties as reasonably determined by
the Agent, the Borrower shall not be required to pay for Appraisals for a
particular Mortgaged Property more often than once in any twenty-four (24)
month period, with the result that unless any such condition shall occur the
first Appraisals of a Mortgaged Property for which the Borrower shall be
financially responsible shall not be required prior to the date which is
twenty-four (24) months from the date of the Appraisal for such Mortgaged
Property delivered to the Agent pursuant to this Agreement. Notwithstanding
the foregoing provisions, however, in the event of a material change of the
type referred to in clause (iii), the Borrower shall not be required to pay for
Appraisals of the affected Mortgaged Property or Mortgaged Properties more
often than once in any twelve (12) month period.
(b) Notwithstanding the provisions of Section 5.2(a), the
Agent may, for the purpose of determining the current Appraised Value and
Borrowing Base of the applicable Mortgaged Properties, perform annual internal
studies updating and revising prior Appraisals with respect to the Mortgaged
Properties or such portion thereof as the Agent shall determine at any time
following (i) the occurrence of an event or condition which, in the reasonable
judgment of the Agent, constitutes a material adverse change with respect to a
Mortgaged Property or presents a reasonable likelihood that such a change shall
occur in the future or (ii) a condemnation of or uninsured casualty to a
Mortgaged Property (provided that any such Appraisal as a result of an event or
condition described in clause (i) or (ii) shall be limited to the affected
Mortgaged Property). The expense of such Appraisals and updates performed
pursuant to this Section 5.2(b) shall be borne by the Borrower, provided that
the Borrower shall not be required to pay for any update pursuant to Section
5.2(b)(i) more often than once in any twelve (12) month period.
(c) In the event that the Agent shall advise the
Borrower, on the basis of any Appraisal or update pursuant to Section 5.2, that
the Borrower's Borrowing Base is insufficient to comply with the requirements
of Section 9.1, then until such Borrowing Base shall be restored to compliance
with Section 9.1 the Banks shall not be required to make advances under Section
2.1 or participate in any Letters of Credit under Section 2.7.
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U5.3.Release of CollateralUpon termination of this Agreement and the
Commitment of the Banks to make Loans and to participate in Letters of Credit
hereunder and the payment in full of all of the Obligations, the Agent, on
behalf of the Banks, shall release the Collateral and shall execute such
instruments of release as the Borrower and its counsel may reasonably request.
In addition, Collateral may be released as provided in Section 8.8.
U5.4.Substitution of Mortgaged PropertyAny requested substitution by the
Borrower of any Real Estate for any Mortgaged Property shall require the
consent of the Majority Banks and shall require the completion and delivery to
the Agent, for the benefit of the Banks, of the Eligible Real Estate
Qualification Documents and the payment to the Agent, for the benefit of the
Banks, of a substitution fee of $10,000 to be split equally by the Banks,
without regard to their respective Commitment Percentages. It is acknowledged
and agreed that the foregoing fee is intended to compensate the Banks for their
travel and internal due diligence review, and that the Borrower shall remain
liable for the payment of all of the Agent's other costs associated with such
substitution, including, but not limited to, appraisal fees, legal costs and
costs of environmental, engineering and structural studies.
U5.5.Addition of Mortgaged Properties
(a) The Borrower shall have the right, subject to the
consent of the Majority Banks which may be withheld by the Majority Banks in
their sole and absolute discretion, to add to the Collateral, any other Real
Estate which is owned by the Borrower and which is not security for any other
Indebtedness. Such addition shall be completed by the completion and delivery
to the Agent for the benefit of the Banks of each of the Eligible Real Estate
Qualification Documents. Such Real Estate shall be Eligible Real Estate,
shall be satisfactory to the Majority Banks in all respects and shall have a
Borrowing Base amount attributable thereto by the Majority Banks so as to cause
the Borrower to continue to be in compliance with all covenants contained in
this Agreement. In the event that the Borrower desires for such Real Estate to
be Special Real Estate, the Borrower shall deliver such evidence as the Agent
may require indicating that it is not feasible for such Real Estate to be
Regular Real Estate upon the transfer and amendment and restatement of any
existing loan documents which may encumber such Real Estate, and such Real
Estate may not be Special Real Estate without the approval of the Agent.
(b) In connection with each such addition to increase the
Borrowing Base or to replace a Mortgaged Property except for the reasons set
forth in Section 5.6, the Borrower, within fifteen (15) days of the Borrower's
request to add such Real Estate to the Collateral, shall pay to the Agent for
the account of the Banks a review fee of $10,000.00 for each parcel of Real
Estate to be added to be split equally by the Banks, without regard to their
respective Commitment Percentages.
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U5.6.Mandatory Increase in Borrowing BaseAt all times when the portion of
the Borrowing Base attributable to Regular Real Estate (without taking into
account any Borrowing Base attributable to Special Real Estate) is less than
the Total Commitment (including any increase in such Total Commitment), all
Real Estate located outside of New York, Florida and Maryland which is
purchased or developed with proceeds of Loans or any Equity Offering or which
has been encumbered by Indebtedness which is repaid with proceeds of Loans
shall be immediately mortgaged or conveyed to the Agent for the benefit of the
Banks, and the Borrower shall promptly cause the same to become Eligible Real
Estate; provided that the Borrower shall take commercially reasonable steps to
cause any lender holding a lien on Real Estate located in New York or Maryland
that is acquired by the Borrower to transfer such Indebtedness and related loan
documents to the Agent, and to amend and restate the same to allow the Agent to
record a Security Deed against such Real Estate, and in such event such Real
Estate may not be Special Real Estate.
U5.7.Non-EncumbranceWithout implying any limitation upon the generality of
Section 8.2, the Borrower will not, and will not permit any other Person to,
create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, negative pledge, change, restriction or other
security interest of any kind upon any Special Real Estate encumbered by any
Special Security Documents (whether now owned or hereafter acquired), except
for matters set forth in Title Policies relating to such Special Real Estate
submitted to and approved by the Agent.
U5.8.Special Security DocumentsThe Special Security Documents have been
delivered and are effective or shall be effective upon the future delivery
thereof, but shall not be recorded until the occurrence of an Event of Default;
provided, however, that the Special Security Documents with respect to the
Mortgaged Properties owned by the REMIC Subsidiary shall be recorded if the
REMIC Transaction has not been consummated within sixty (60) days of the date
of this Agreement. Upon the occurrence of an Event of Default, the Agent may,
and upon the direction of the Majority Banks, shall, record the Special
Security Documents in the public records without any further action of or
notice to the Borrower or any other party and without waiving such Event of
Default; provided, however, that if such Event of Default exists solely as a
result of default described in Section 12.1(b), the Agent shall give the
Borrower two (2) Business Days notice prior to the recordation of the Security
Documents. In addition, the Borrower shall promptly deliver to the Agent such
further documents as may be reasonably requested by the Agent relating to such
Real Estate, including without limitation, owner's affidavits, updated legal
opinions and copies of leases and such changes to the Special Security
Documents as may be necessary or desirable to comply with changes in applicable
law. In connection with the recording of the Special Security Documents, the
Agent may obtain, at the Borrower's sole cost and expense, a mortgagee's title
insurance policy with respect to each parcel of Special Real Estate encumbered
by such Special Security Documents in such amount as is determined by the
Agent. The Borrower shall upon demand pay the cost of any such mortgagee's
title insurance policy, the cost of any updated UCC searches, all recording
costs and fees, and any and all intangible taxes or other documentary or
mortgage taxes, assessments or charges which are demanded in connection with
the recording of any of the Special Security Documents. In addition, the
Borrower shall pay
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within five (5) days after demand any and all costs, fees, intangible tax,
documentary or mortgage tax, assessments or charges as are demanded by any
governmental authority by reason of the Special Security Documents prior to the
recording of the same. In the event that the Borrower fails to pay such
amounts as provided in this section, then the Banks may advance such amounts as
are required to be paid as Loans hereunder, which Loans shall bear interest at
the rate for overdue payments set forth in this Agreement. The Agent and the
Banks agree that, provided no Default or Event of Default shall have
theretofore occurred hereunder or under any of the other Loan Documents, Agent
shall, within five (5) days of the receipt of written request from the
Borrower, release the Special Real Estate from the lien of the Special Security
Documents and return the Special Security Documents to the Borrower; provided,
however, the Agent shall not be obligated to release the Special Real Estate or
return the Special Security Documents if, as a result of the release of the
Special Real Estate, a Default or Event of Default shall exist hereunder or
under any of the other Loan Documents.
U6.REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE BORROWER
The Borrower and the Guarantor, jointly and severally, represent and warrant to
the Agent and the Banks as follows.
U6.1.Corporate Authority, Etc
(a) Incorporation; Good Standing. The Borrower is a
Delaware limited partnership duly organized pursuant to its limited partnership
agreement dated December 21, 1994, as amended as of January 1, 1995, and as
amended and restated on May 1, 1996, and as further amended by a first
amendment dated as of June 25, 1996, a second amendment dated as of September
29, 1997, a third amendment dated as of October 3, 1997, and a fourth amendment
dated as of October 8, 1997, and a Certificate of Limited Partnership and
amendments thereto filed with the Secretary of the State of Delaware and is
validly existing and in good standing under the laws of the State of Delaware.
The Guarantor is a Massachusetts business trust duly organized pursuant to its
amended and restated trust agreement dated June 14, 1988, and a Certificate of
Trust and amendments thereto filed with the Secretary of the Commonwealth of
Massachusetts and is validly existing and in good standing under the laws of
the Commonwealth of Massachusetts. Each of the Borrower and the Guarantor (i)
has all requisite power to own its respective property and conduct its
respective business as now conducted and as presently contemplated, and (ii) as
to the Borrower is in good standing as a foreign entity and is duly authorized
to do business in the jurisdictions where the Mortgaged Property of the
Borrower is located and in each other jurisdiction where a failure to be so
qualified in such other jurisdiction could have a materially adverse effect on
the business, assets or financial condition of such Person. The Guarantor is a
real estate investment trust in full compliance with and entitled to the
benefits of Section 856 of the Code.
(b) Subsidiaries. Each of the Subsidiaries of the
Borrower and the Guarantor (i) is a corporation, limited partnership, limited
liability company or trust duly organized under the laws of its State of
organization and is validly existing and in good standing under the laws
thereof, (ii) has all requisite power to own its property and conduct its
business as now conducted
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and as presently contemplated and (iii) is in good standing and is duly
authorized to do business in each jurisdiction where Mortgaged Property held by
it is located and in each other jurisdiction where a failure to be so qualified
could have a materially adverse effect on the business, assets or financial
condition of the Borrower, the Guarantor, or such Subsidiary. The REMIC
Subsidiary is a wholly-owned direct Subsidiary of the Borrower.
(c) Authorization. The execution, delivery and
performance of this Agreement and the other Loan Documents to which the
Borrower, the Guarantor or any of their respective Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby (i) are
within the authority of such Person, (ii) have been duly authorized by all
necessary proceedings on the part of such Person, (iii) do not and will not
conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which such Person is subject or any judgment,
order, writ, injunction, license or permit applicable to such Person, (iv) do
not and will not conflict with or constitute a default (whether with the
passage of time or the giving of notice, or both) under any provision of the
articles of incorporation, partnership agreement, declaration of trust or other
charter documents or bylaws of, or any agreement or other instrument binding
upon, such Person or any of its properties, and (v) do not and will not result
in or require the imposition of any lien or other encumbrance on any of the
properties, assets or rights of such Person.
(d) Enforceability. The execution and delivery of this
Agreement and the other Loan Documents to which the Borrower, the Guarantor or
any of their respective Subsidiaries is or is to become a party are valid and
legally binding obligations of such Person enforceable in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
U6.2.Governmental ApprovalsThe execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower, the Guarantor or
any of their respective Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any governmental agency or authority other than
those already obtained and the filing of the Security Documents in the
appropriate records office with respect thereto.
U6.3.Title to Properties; LeaseThe Borrower, the Guarantor and their
Subsidiaries own all of the assets reflected in the consolidated balance sheet
of the Borrower and the Guarantor as of the Balance Sheet Date or acquired
since that date (except property and assets sold or otherwise disposed of in
the ordinary course of business since that date), subject to no rights of
others, including any mortgages, leases, conditional sales agreements, title
retention agreements, liens or other encumbrances except Permitted Liens.
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U6.4.Financial StatementsThe Borrower has delivered to each of the Banks:
(a) the consolidated balance sheet of the Guarantor and its Subsidiaries as of
the Balance Sheet Date, (b) an unaudited statement of Operating Cash Flow for
each of the Mortgaged Properties for the fiscal years ended December 31, 1995,
and December 31, 1996 and for the period of January 1, 1997 through June 30,
1997, to the extent available, satisfactory in form to the Majority Banks and
certified by the chief financial or accounting officer of the general partner
of the Borrower as fairly presenting the operating income for such parcels for
such periods, provided that such certification need only be made with respect
to any Mortgaged Property for the period such Mortgaged Property has been owned
and operated by the Borrower, if such period is less than three (3) fiscal
years, and (c) certain other financial information relating to the Borrower,
the Guarantor and the Real Estate. Such balance sheet and statements have been
prepared in accordance with generally accepted accounting principles and fairly
present the financial condition of the Borrower, the Guarantor and their
respective Subsidiaries as of such dates and the results of the operations of
the Borrower, the Guarantor and the Mortgaged Properties for such periods.
There are no liabilities, contingent or otherwise, of the Borrower, the
Guarantor or any of their respective Subsidiaries involving material amounts
not disclosed in said financial statements and the related notes thereto.
U6.5.No Material ChangesSince the Balance Sheet Date, there has occurred no
materially adverse change in the financial condition or business of the
Borrower, the Guarantor, and their respective Subsidiaries taken as a whole as
shown on or reflected in the consolidated balance sheet of the Borrower and the
Guarantor as of the Balance Sheet Date, or its consolidated statement of income
or cash flows for the fiscal year then ended, other than changes in the
ordinary course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial condition
of such Person.
U6.6.Franchises, Patents, Copyrights, EtcThe Borrower, the Guarantor and their
respective Subsidiaries possess all franchises, patents, copyrights,
trademarks, trade names, servicemarks, licenses and permits, and rights in
respect of the foregoing, adequate for the conduct of their business
substantially as now conducted without known conflict with any rights of
others.
U6.7.LitigationExcept as stated on Schedule 6.7 there are no actions, suits,
proceedings or investigations of any kind pending or to the knowledge of such
person threatened against the Borrower, the Guarantor or any of their
respective Subsidiaries before any court, tribunal or administrative agency or
board that, if adversely determined, might, either in any case or in the
aggregate, materially adversely affect the properties, assets, financial
condition or business of such Person or materially impair the right of such
Person to carry on business substantially as now conducted by it, or result in
any liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the balance sheet of such Person, or which
question the validity of this Agreement or any of the other Loan Documents, any
action taken or to be taken pursuant hereto or thereto or any lien or security
interest created or intended to be created pursuant hereto or thereto, or which
will adversely affect the ability of the Borrower or the Guarantor to pay and
perform the Obligations in the manner contemplated by this Agreement and the
other Loan Documents.
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U6.8.No Materially Adverse Contracts, Etc None of the Borrower, the Guarantor
or any of their respective Subsidiaries is subject to any charter, corporate or
other legal restriction, or any judgment, decree, order, rule or regulation
that has or is expected in the future to have a materially adverse effect on
the business, assets or financial condition of such Person. None of the
Borrower, the Guarantor, nor any of their respective Subsidiaries is a party to
any contract or agreement that has or is expected, in the judgment of the
partners or officers of such Person, to have any materially adverse effect on
the business of any of them.
U6.9.Compliance with Other Instruments, Laws, EtcNone of the Borrower, the
Guarantor or any of their respective Subsidiaries is in violation of any
provision of its charter or other organizational documents, bylaws, or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that could result in
the imposition of substantial penalties or materially and adversely affect the
financial condition, properties or business of such Person.
U6.10.Tax StatusThe Borrower, the Guarantor and each of their respective
Subsidiaries (a) has made or filed all federal and state income and all other
tax returns, reports and declarations required by any jurisdiction to which it
is subject, (b) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and by appropriate
proceedings and (c) has set aside on its books provisions reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction,
and the partners or officers of such Person know of no basis for any such
claim.
U6.11.No Event of DefaultNo Default or Event of Default has occurred and is
continuing.
U6.12.Holding Company and Investment Company ActsNone of the Borrower, the
Guarantor, or any of their respective Subsidiaries is or after giving effect to
any Loan will be, subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act or the Investment Company Act of
1940 or to any federal or state statute or regulation limiting its ability to
incur indebtedness for borrowed money.
U6.13.Absence of UCC Financing Statements, EtcExcept with respect to Permitted
Liens, there is no financing statement, security agreement, chattel mortgage,
real estate mortgage or other document filed or recorded with any filing
records, registry, or other public office, that purports to cover, affect or
give notice of any present or possible future lien on, or security interest or
security title in, any property of the Borrower, the Guarantor or any of their
respective Subsidiaries or rights thereunder.
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U6.14.Setoff, EtcThe Collateral and the rights of the Agent and the Banks
with respect to the Collateral are not subject to any setoff, claims,
withholdings or other defenses. The Borrower is the owner of the Collateral
free from any lien, security interest, encumbrance or other claim or demand,
except those encumbrances permitted in the Security Deeds.
U6.15.Certain TransactionsExcept as set forth on Schedule 6.15, none of the
officers, trustees, directors, or employees of the Borrower, the Guarantor or
any of their respective Subsidiaries is a party to any transaction with either
or both of the Borrower, the Guarantor or any of their respective Subsidiaries
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any officer, trustee, director
or such employee or, to the knowledge of the Borrower, the Guarantor, or any
corporation, partnership, trust or other entity in which any officer, trustee,
director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.
U6.16.Employee Benefit PlansThe Borrower, the Guarantor and each ERISA
Affiliate has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.
Neither the Borrower, the Guarantor nor any ERISA Affiliate has (a) sought a
waiver of the minimum funding standard under Section 412 of the Code in respect
of any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan,
(b) failed to make any contribution or payment to any Employee Benefit Plan,
Multiemployer Plan or Guaranteed Pension Plan, or made any amendment to any
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, which has
resulted or could result in the imposition of a lien or the posting of a bond
or other security under ERISA or the Code, or (c) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA. None of the Real Estate constitutes a "plan asset" of any
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.
U6.17.Regulations U and XNo portion of any Loan is to be used for the purpose
of purchasing or carrying any "margin security" or "margin stock" as such terms
are used in Regulations U and X of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Parts 221 and 224.
U6.18.Environmental ComplianceThe Borrower and the Guarantor each has taken all
commercially reasonable steps to investigate the past and present conditions
and usage of the Real Estate and the operations conducted thereon and, based
upon such investigation makes the following representations and warranties.
(a) With respect to the Mortgaged Properties, and to the
best of the Borrower's and the Guarantor's knowledge with respect to any other
Real Estate, none of the Borrower, the Guarantor or their respective
Subsidiaries or any operator of the Real Estate, or any operations
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thereon is in violation, or alleged violation, of any judgment, decree, order,
law, license, rule or regulation pertaining to environmental matters,
including, without limitation, those arising under the Resource Conservation
and Recovery Act ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 as amended ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Clean Water
Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state
or local statute, regulation, ordinance, order or decree relating to the
environment (hereinafter "Environmental Laws"), which violation involves any of
the Mortgaged Properties or involves other Real Estate and would have a
material adverse effect on the business, assets or financial condition of the
Borrower, the Guarantor or any of their respective Subsidiaries.
(b) None of the Borrower, the Guarantor or any of their
respective Subsidiaries has received notice from any third party including,
without limitation, any federal, state or local governmental authority, (i)
that it has been identified by the United States Environmental Protection
Agency ("EPA") as a potentially responsible party under CERCLA with respect to
a site listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B
(1986); (ii) that any hazardous waste, as defined by 42 U.S.C. Section
9601(5), any hazardous substances as defined by 42 U.S.C. Section 9601(14),
any pollutant or contaminant as defined by 42 U.S.C. Section 9601(33) or any
toxic substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which it has
generated, transported or disposed of have been found at any site at which a
federal, state or local agency or other third party has conducted or has
ordered that the Borrower, the Guarantor or any of their respective
Subsidiaries conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it is or shall be a named
party to any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise) arising out
of any third party's incurrence of costs, expenses, losses or damages of any
kind whatsoever in connection with the release of Hazardous Substances.
(c) With respect to the Mortgaged Properties, and to the
best of the Borrower's and the Guarantor's knowledge with respect to any other
Real Estate, except as specifically set forth in the written environmental site
assessment reports of McLaren Hart provided to the Agent on or before the date
hereof or, in the case of Real Estate acquired after the date hereof, the
environmental site assessment reports with respect thereto provided to the
Agent under Section 7.4(h): (i) no portion of the Real Estate has been used
for the handling, processing, storage or disposal of Hazardous Substances
except in accordance with applicable Environmental Laws in all material
respects, and no underground tank or other underground storage receptacle for
Hazardous Substances is located on any portion of the Mortgaged Property; (ii)
in the course of any activities conducted by either the Borrower, the
Guarantor, their Subsidiaries or the operators of its properties, no Hazardous
Substances have been generated or are being used on the Real Estate except in
the ordinary course of business and in accordance with applicable Environmental
Laws in all material respects; (iii) there has been no past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (a "Release") or
threatened Release of Hazardous Substances on, upon, into or from any of the
Mortgaged Properties, or, to the best of the Borrower's or the Guarantor's
knowledge, on, upon,
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into or from the other properties of the Borrower, the Guarantor or their
respective Subsidiaries, which Release would have a material adverse effect on
the value of any of the Real Estate or adjacent properties or the environment;
(iv) to the best of the Borrower's or the Guarantor's knowledge, there have
been no Releases on, upon, from or into any real property in the vicinity of
any of the Real Estate which through soil or groundwater contamination, may
have come to be located on, and which would have a material adverse effect on
the value of, the Real Estate; and (v) any Hazardous Substances that have been
generated on any of the Real Estate have been transported off-site only by
carriers having an identification number issued by the EPA or approved by a
state or local environmental regulatory authority having jurisdiction regarding
the transportation of such substance and treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under
all applicable Environmental Laws, which transporters and facilities have been
and are, to the best of the Borrower's or the Guarantor's knowledge, operating
in compliance with such permits and applicable Environmental Laws.
(d) None of the Borrower, the Guarantor, their respective
Subsidiaries, the Mortgaged Properties or any other Real Estate is subject to
any applicable Environmental Law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the recording
or delivery to other Persons of an environmental disclosure document or
statement by virtue of the transactions set forth herein and contemplated
hereby, or as a condition to the recording of the Security Deeds or to the
effectiveness of any other transactions contemplated hereby.
U6.19.SubsidiariesSchedule 6.19 sets forth all of the Subsidiaries of the
Borrower and the Guarantor. The form and jurisdiction of organization of each
of the Subsidiaries, and the Borrower's and the Guarantor's ownership interest
therein, is set forth in said Schedule 6.19.
U6.20.LeasesThe Borrower has delivered to the Agent (i) true copies of the
forms of the Leases used by the Borrower at the Mortgaged Properties as of the
date hereof and (ii) true, correct and complete copies of the Leases and any
amendments thereto relating to the Mortgaged Properties as of the date hereof.
U6.21.Loan DocumentsAll of the representations and warranties made by or on
behalf of the Borrower, the Guarantor, and their respective Subsidiaries in
this Agreement and the other Loan Documents or any document or instrument
delivered to the Agent or the Banks pursuant to or in connection with any of
such Loan Documents are true and correct in all material respects, and neither
the Borrower, the Guarantor nor any of their respective Subsidiaries has failed
to disclose such information as is necessary to make such representations and
warranties not misleading.
U6.22.Mortgaged PropertyThe Borrower and the Guarantor each makes and shall
cause each Approved Subsidiary to make, the following representations and
warranties concerning each Mortgaged Property:
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(a) Off-Site Utilities. All water, sewer, electric, gas,
telephone and other utilities necessary for the use and operation of the
Mortgaged Property are installed to the property lines of the Mortgaged
Property through dedicated public rights of way or through perpetual private
easements approved by the Agent with respect to which the applicable Security
Deed creates a valid and enforceable first lien and, except in the case of
drainage facilities, are connected to the Building located thereon with valid
permits and are adequate to service the Building in compliance with applicable
law.
(b) Access, Etc. The streets abutting the Mortgaged
Property are dedicated and accepted public roads, to which the Mortgaged
Property has direct access by trucks and other motor vehicles and by foot, or
are perpetual private ways (with direct access by trucks and other motor
vehicles and by foot to public roads) to which the Mortgaged Property has
direct access approved by the Agent and with respect to which the applicable
Security Deed creates a valid and enforceable first lien. All private ways
providing access to the Mortgaged Property are zoned in a manner which will
permit access to the Building over such ways by trucks and other commercial and
industrial vehicles.
(c) Independent Building. The Building is fully
independent in all respects including, without limitation, in respect of
structural integrity, heating, ventilating and air conditioning, plumbing,
mechanical and other operating and mechanical systems, and electrical,
sanitation and water systems, all of which are connected directly to off-site
utilities located in public streets or ways or through insured perpetual
private easements approved by the Agent. The Building is located on a lot
which is separately assessed for purposes of real estate tax assessment and
payment. The Building, all Building Service Equipment and all paved or
landscaped areas related to or used in connection with the Building are located
wholly within the perimeter lines of the lot or lots on which the Mortgaged
Property is located, except as may be specifically shown on the Survey for such
Mortgaged Property.
(d) Condition of Building; No Asbestos. The Building is,
in all material respects, structurally sound, in good repair and free of
defects in materials and workmanship. All major building systems located
within the Building, including without limitation heating, ventilating and air
conditioning, electrical, sprinkler, plumbing or other mechanical systems, are
in good working order and condition. Except as set forth in the Phase I
environmental site assessments delivered by the Borrower to the Agent, no
asbestos is located in or on the Building, except for nonfriable asbestos or
contained friable asbestos which is being monitored and/or remediated in
accordance with the recommendations of an Environmental Engineer.
(e) Building Compliance with Law. The Building as
presently constructed, used, occupied and operated does not, in any material
respect, violate any applicable federal or state law or governmental regulation
or any local ordinance, order or regulation, including but not limited to laws,
regulations, or ordinances relating to zoning, building use and occupancy,
subdivision control, fire protection, health, sanitation, safety, handicapped
access, historic preservation and protection, tidelands, wetlands, flood
control and Environmental Laws. The Building complies, in all material
respects, with applicable zoning laws and regulations and is not
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a so-called non-conforming use. The zoning laws permit use of the Building for
its current use. There is such number of parking spaces on the lot or lots on
which the Mortgaged Property is located as is adequate under the zoning laws
and regulations to permit use of the Building for its current use. Each
Mortgaged Property constitutes a separate parcel which has been properly
subdivided in accordance with all applicable state and local laws, regulations
and ordinances to the extent required thereby, and neither the execution and
delivery of the Security Deeds nor the exercise of any remedies thereunder by
the Agent shall violate any such law or regulation relating to the subdivision
of real property.
(f) No Required Mortgaged Property Consents, Permits,
Etc. Neither the Borrower, the Guarantor nor any Approved Subsidiary has
received any notice of, and has no knowledge of, any approvals, consents,
licenses, permits, utility installations and connections (including, without
limitation, drainage facilities), curb cuts and street openings, required by
applicable laws, rules, ordinances or regulations or any agreement affecting
the Mortgaged Property for the maintenance, operation, servicing and use of the
Mortgaged Property or the Building for its current use which have not been
granted, effected, or performed and completed (as the case may be), or any fees
or charges therefor which have not been fully paid, or which are no longer in
full force and effect. No such approvals, consents, permits or licenses
(including, without limitation, any railway siding agreements) will terminate,
or become void or voidable or terminable on any foreclosure sale of the
Mortgaged Property pursuant to the Security Deed. To the best knowledge of the
Borrower, the Guarantor and each Approved Subsidiary, there are no outstanding
notices, suits, orders, decrees or judgments relating to zoning, building use
and occupancy, fire, health, sanitation or other violations affecting, against,
or with respect to, the Mortgaged Property or any part thereof.
(g) Insurance. Neither the Borrower, the Guarantor nor
any Approved Subsidiary has received any outstanding notice from any insurer or
its agent requiring performance of any work with respect to the Mortgaged
Property or canceling or threatening to cancel any policy of insurance, and the
Mortgaged Property complies with the requirements of all of the Borrower's and
the Guarantor's insurance carriers.
(h) Real Property Taxes; Special Assessments. There are
no unpaid or outstanding real estate or other taxes or assessments on or
against the Mortgaged Property or any part thereof which are payable by the
Borrower or the Guarantor (except only real estate or other taxes or
assessments, that are not yet due and payable). The Borrower has delivered to
the Agent true and correct copies of real estate tax bills for the Mortgaged
Property for the past three (3) fiscal years. No abatement proceedings are
pending with reference to any real estate taxes assessed against the Mortgaged
Property, other than with respect to taxes which have been paid under protest
and which are being contested in good faith. Except as set forth in the Title
Policies delivered to the Agent, there are no betterment assessments or other
special assessments presently pending with respect to any portion of the
Mortgaged Property, and neither the Borrower nor the Guarantor has received any
notice of any such special assessment being contemplated.
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(i) Historic Status. The Building is not a historic
structure or landmark and neither the Building or the Mortgaged Property is
located within any historic district pursuant to any federal, state or local
law or governmental regulation.
(j) Eminent Domain; Casualty. There are no pending
eminent domain proceedings against the Mortgaged Property or any part thereof,
and, to the knowledge of the Borrower or the Guarantor, no such proceedings are
presently threatened or contemplated by any taking authority. Neither the
Mortgaged Property, the Building or any part thereof is now damaged or injured
as a result of any fire, explosion, accident, flood or other casualty.
(k) Leases. An accurate and complete Rent Roll and
summary thereof in a form reasonably satisfactory to the Majority Banks as of
the date of inclusion of the Mortgaged Property in the Collateral (or such
other recent date as may be acceptable to the Agent) with respect to all Leases
of any portion of the Mortgaged Property has been provided to the Agent. The
Leases reflected on such Rent Roll constitute as of the date thereof the sole
agreements and understandings relating to leasing or licensing of space at the
Mortgaged Property and in the Building relating thereto. Each of the Leases
was entered into as the result of arms-length negotiation and has not been
modified, changed, altered, assigned, supplemented or amended in any respect,
except as reflected on the Rent Roll, and no tenant is entitled to any free
rent, partial rent, rebate of rent payments, credit, offset or deduction in
rent, including, without limitation, lease support payments or lease buy-outs,
except as reflected in the Rent Roll. There are no occupancies, rights,
privileges or licenses in or to the Mortgaged Property or portion thereof other
than pursuant to the Leases reflected in Rent Rolls previously furnished to the
Agent for the Mortgaged Property. Except as set forth in each Rent Roll, the
Leases reflected therein are in full force and effect in accordance with their
respective terms, without any payment default or any other material default
thereunder, nor are there any defenses, counterclaims, offsets, concessions or
rebates available to any tenant thereunder, and neither the Borrower, the
Guarantor nor any of their respective Subsidiaries has given or made, any
notice of any payment or other material default, or any claim, which remains
uncured or unsatisfied, with respect to any of the Leases. The Rent Rolls
furnished to the Banks accurately and completely set forth all rents payable by
and security, if any, deposited by tenants, no tenant having paid more than one
month's rent in advance. All tenant improvements or work to be done for
tenants on the Rent Roll, furnished or paid for by the Borrower, the Guarantor
or any of their respective Subsidiaries, or credited or allowed to a tenant,
for, or in connection with, the Building pursuant to any Lease has been
completed and paid for or provided for in a manner satisfactory to the Agent.
No material leasing, brokerage or like commissions, fees or payments are due
from the Borrower, the Guarantor or any of their respective Subsidiaries in
respect of the Leases.
(l) Service Agreements; Management Agreements. Except as
listed on Schedule 6.22, there are no material Service Agreements relating to
the operation and maintenance of the Building, the Mortgaged Property, or any
portion thereof that are not cancelable at any time. The Borrower has no
Management Agreements for the Mortgaged Properties. To the best knowledge of
the Borrower, there are no material claims or any bases
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for material claims in respect of the Mortgaged Property or its operation by
any party to any Service Agreement or Management Agreement.
(m) Other Material Real Property Agreements: No Options.
There are no material agreements pertaining to the Mortgaged Property, any
Building thereon or the operation or maintenance of either thereof other than
as described in this Agreement (including the Schedules hereto), the Title
Policies or otherwise disclosed in writing to the Agent and the Banks by the
Borrower; and no person or entity has any right or option to acquire the
Mortgaged Property or any Building thereon or any portion thereof or interest
therein.
U6.23.BrokersNone of the Borrower, the Guarantor, or any of their respective
Subsidiaries has engaged or otherwise dealt with any broker, finder or similar
entity in connection with this Agreement or the Loans contemplated hereunder.
U6.24.Other DebtNone of the Borrower, the Guarantor, or any of their
respective Subsidiaries is in default of the payment of any Indebtedness or any
other agreement, mortgage, deed of trust, security agreement, financing
agreement, indenture or lease to which any of them is a party. The Borrower is
not a party to or bound by any agreement, instrument or indenture that may
require the subordination in right or time or payment of any of the Obligations
to any other indebtedness or obligation of the Borrower. The Borrower has
provided to the Agent a schedule, and upon the request of the Agent will
provide copies, of all agreements, mortgages, deeds of trust, financing
agreements or other material agreements binding upon the Borrower or its
properties and entered into by the Borrower as of the date of this Agreement
with respect to any Indebtedness of the Borrower.
U6.25.SolvencyAs of the Closing Date and after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents,
including all Loans made or to be made hereunder, neither the Borrower, the
Guarantor nor any of their Subsidiaries is insolvent on a balance sheet basis
such that the sum of such Person's assets exceeds the sum of such Person's
liabilities, such Person is able to pay its debts as they become due, and such
Person has sufficient capital to carry on its business.
U6.26.Contribution AgreementBorrower has delivered or made available to the
Agent a true, correct and complete copy of the Contribution Agreement
(Revolver). The Contribution Agreement (Revolver) is in full force and effect
in accordance with its terms, there are no material claims resulting from
non-performance of the terms thereof or otherwise or any basis for a material
claim by any party to the Contribution Agreement (Revolver), nor has there been
any waiver of any material terms thereunder.
U6.27.No Fraudulent IntentNeither the execution and delivery of this Agreement
or any of the other Loan Documents nor the performance of any actions required
hereunder or thereunder is being undertaken by the Borrower, Guarantor or any
of their respective Subsidiaries with or as a result of any actual intent by
any of such Persons to hinder, delay or defraud any entity to which any of such
Persons is now or will hereafter become indebted.
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U6.28.Transaction in Best Interests of Borrower; ConsiderationThe transaction
evidenced by this Agreement and the other Loan Documents is in the best
interests of the Borrower, the Guarantor, each of their respective
Subsidiaries and the creditors of such Persons. The direct and indirect
benefits to inure to the Borrower, the Guarantor and each of their respective
Subsidiaries pursuant to this Agreement and the other Loan Documents constitute
substantially more than "reasonably equivalent value" (as such term is used in
Section 548 of the Bankruptcy Code) and "valuable consideration," "fair value,"
and "fair consideration," (as such terms are used in any applicable state
fraudulent conveyance law), in exchange for the benefits to be provided by the
Borrower, the Guarantor and each of their respective Subsidiaries pursuant to
this Agreement and the other Loan Documents, and but for the willingness of the
Guarantor and the REMIC Subsidiary to guaranty the Loan, Borrower would be
unable to obtain the financing contemplated hereunder which financing will
enable the Borrower and its Subsidiaries (including the REMIC Subsidiary) to
have available financing to close the transaction under the Purchase Agreement
(including the acquisition of the Initial REMIC Properties and other real
property therein described) and to conduct and expand their business.
U6.29.Purchase AgreementThe Borrower has delivered to the Agent a true and
accurate copy of the Purchase Agreement.
U6.30.Stock Purchase CommitmentThe Stock Purchase Commitment is in full force
and effect and no defaults or breaches have occurred thereunder. A "Closing"
(as defined in the Stock Purchase Commitment) has occurred under the Stock
Purchase Commitment and as of the date of this Agreement the sum of
$11,666,675.00 has been funded under the Stock Purchase Commitment.
U7.AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER The
Guarantor (to the extent hereinafter provided) and the Borrower covenant and
agree that, so long as any Loan, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or to participate in any Letters of
Credit:
U7.1.Punctual PaymentThe Borrower will duly and punctually pay or cause to be
paid the principal and interest on the Loans and all interest and fees provided
for in this Agreement, all in accordance with the terms of this Agreement and
the Notes as well as all other sums owing pursuant to the Loan Documents.
U7.2.Maintenance of OfficeThe Borrower will maintain its chief executive
office at 27600 Northwestern Highway, Suite 200, Southfield, Michigan, 48034,
or at such other place in the United States of America as the Borrower shall
designate upon prior written notice to the Agent and the Banks, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents may be given or made.
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U7.3.Records and AccountsThe Borrower will (a) keep, and cause each of its
Subsidiaries to keep, true and accurate records and books of account in which
full, true and correct entries will be made in accordance with generally
accepted accounting principles and (b) maintain adequate accounts and reserves
for all taxes (including income taxes), depreciation and amortization of its
properties and the properties of its Subsidiaries, contingencies and other
reserves. Neither the Borrower nor the Guarantor nor any of their respective
Subsidiaries shall, without the prior written consent of the Majority Banks,
(x) make any material changes to the accounting principles used by such Person
in preparing the financial statements and other information described in
Section 6.4 or (y) change its fiscal year.
U7.4.Financial Statements, Certificates and InformationThe Borrower and
Guarantor will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later
than one hundred (100) days after the end of each fiscal year of the Guarantor,
the audited Consolidated balance sheet of the Guarantor and its Subsidiaries at
the end of such year, and the related audited Consolidated statements of
income, changes in shareholder's equity and cash flows for such year, each
setting forth in comparative form the figures for the previous fiscal year and
all such statements to be in reasonable detail, prepared in accordance with
generally accepted accounting principles, and accompanied by an auditor's
report prepared without qualification by Deloitte & Touche, or by another "Big
Six" accounting firm, the Form 10-K filed with the SEC (unless the SEC has
approved an extension, in which event the Guarantor will deliver to the Agent
and each of the Banks a copy of the Form 10-K simultaneously with delivery to
the SEC), a statement of the Borrower's taxable net income for the prior fiscal
year, and any other information the Banks may need to complete a financial
analysis of the Guarantor and its Subsidiaries;
(b) as soon as practicable, but in any event not later
than fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower and Guarantor, respectively, copies of the unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries and the
Guarantor and its Subsidiaries, respectively, as at the end of such quarter,
and the related unaudited Consolidated statements of income, changes in
shareholder's equity and cash flows for the portion of the Borrower's and the
Guarantor's, respectively, fiscal year then elapsed, and a statement showing
the aging of the receivables and payables for the Mortgaged Properties, all in
reasonable detail and prepared in accordance with generally accepted accounting
principles (which, as to the Guarantor, may be provided by inclusion in the
Form 10-Q of the Guarantor for such period provided pursuant to subsection (c)
below), together with a certification by the principal financial or accounting
officer of the Borrower and the Guarantor, respectively, that the information
contained in such financial statements fairly presents the financial position
of such Person and its Subsidiaries on the date thereof (subject to year-end
adjustments); provided, however, that unless otherwise requested by the Agent
or the Majority Banks, the Borrower shall not be required to deliver the
balance sheets, statements or other matters required by this Section 7.4(b) to
the extent the same are incorporated in the balance sheets, statements and
other matters delivered to the Banks by the Guarantor;
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(c) as soon as practicable, but in any event not later
than fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Guarantor in each year, copies of Form 10-Q filed with the SEC
(unless the SEC has approved an extension in which event the Guarantor will
deliver such copies of the Form 10-Q to the Agent and each of the Banks
simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later
than fifty-five (55) days after the end of the first three (3) fiscal quarters
of the Borrower, copies of a Consolidated statement of Operating Cash Flow for
such fiscal quarter for the Borrower and its Subsidiaries and a statement of
Operating Cash Flow for such fiscal quarter for the Borrower and each of the
Mortgaged Properties, prepared on a basis consistent with the statement
furnished pursuant to Section 6.4(c) together with a certification by the chief
financial or chief accounting officer of the general partner of the Borrower,
that the information contained in such statement fairly presents the Operating
Cash Flow of the Borrower and its Subsidiaries and the Mortgaged Properties for
such period;
(e) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement (a
"Compliance Certificate") certified by the principal financial or accounting
officer of the general partner of the Borrower in the form of Exhibit C hereto
(or in such other form as the Agent may approve from time to time) setting
forth in reasonable detail computations evidencing compliance with the
covenants contained in Section 9 and the other covenants described therein, and
(if applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
(f) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the SEC or sent to the
stockholders of the Guarantor or the partners of the Borrower;
(g) as soon as practicable but in any event not later
than fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower, an updated Rent Roll aggregating information for the
Mortgaged Properties and operating statements and tenant sales reports with
respect to the Mortgaged Properties with respect to such fiscal quarter, such
statements and reports to be in form reasonably satisfactory to the Agent;
(h) as soon as practicable but in any event not later
than one hundred (100) days after the end of the fourth fiscal quarter of the
Borrower, an updated Rent Roll aggregating information for the Mortgaged
Properties and rolling four (4) quarter operating statements and tenant sales
reports with respect to the Mortgaged Properties, such statements and reports
to be in form reasonably satisfactory to the Agent;
(i) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, the following with
respect to each acquisition of an interest in Real Estate having a fair market
value in excess of $10,000,000.00 by the Borrower or any of its Subsidiaries
(which for the purposes of this Section 7.4(h) shall include the Investments
described in
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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;
(j) promptly after they are filed with the Internal
Revenue Service, copies of all annual federal income tax returns and amendments
thereto of the Borrower and the Guarantor;
(k) promptly upon completion, copies of such market
studies relating to the Mortgaged Property and the other Eligible Real Estate
as are from time to time prepared by or on behalf of the Borrower or its
Subsidiaries;
(l) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, each of the following
with respect to each acquisition of an interest in a Subsidiary: (i) the name
and structure of the Subsidiary, (ii) a description of the property owned by
such Subsidiary, and (iii) such other information as the Agent may reasonably
request;
(m) simultaneously with the delivery of the financial
statement referred to in subsection (a) above, a statement (i) listing the Real
Estate owned by the Borrower and its Subsidiaries (or in which the Borrower or
its Subsidiaries owns an interest) and stating the location thereof, the date
acquired and the acquisition cost, (ii) listing the Indebtedness of the
Borrower and its Subsidiaries (excluding Indebtedness of the type described in
Section 8.1(b)-(e)), which statement shall include, without limitation, a
statement of the original principal amount of such Indebtedness and the current
amount outstanding, the holder thereof, the maturity date and any extension
options, the interest rate, the collateral provided for such Indebtedness and
whether such Indebtedness is recourse or non-recourse, and (iii) listing the
properties of the Borrower and its Subsidiaries which are under "development"
(as used in Section 8.9) and providing a brief summary of the status of such
development;
(n) not later than thirty (30) days prior to the end of
each fiscal year of the Borrower a budget and business plan for the next fiscal
year;
(o) as soon as practicable, but in any event not later
than one hundred (100) days after the end of each fiscal year of the Borrower,
the unaudited consolidated balance sheet of the Borrower and its Subsidiaries
at the end of such year, and the related unaudited consolidated statements of
income, changes in shareholder's equity and cash flows for such year, each
setting forth in comparative form the figures for the previous fiscal year and
all such statements to be in reasonable detail, prepared in accordance with
generally accepted accounting
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principles, and accompanied by a certification by the principal financial or
accounting officer of the Borrower that the information contained in such
financial statements fairly presents the financial position of the Borrower and
its Subsidiaries on the date thereof (provided, however, that the Borrower
shall not be required to provide such statements in the event that such
statements would be substantially similar to the consolidated statements
provided by the Guarantor);
(p) within five (5) days of the funding of any amount
pursuant to the Stock Purchase Commitment, notice of such funding and the
amount thereof;
(q) as soon as practicable, but in any event not later
than two (2) Business Days after the Borrower or the Guarantor acquires
knowledge of the same, (i) written notice that any Stock Purchase Buyer has
notified the Borrower or the Guarantor of a refusal to fund an amount pursuant
to the Stock Purchase Commitment, or notice of its intention to so refuse to
make an advance, (ii) a claim by any Stock Purchase Buyer of an event of
default or default by the Borrower or the Guarantor under the Stock Purchase
Commitment, or (iii) the occurrence of any of the events described in Section
12.1(g), (h) or (i) with respect to any Stock Purchase Buyer; and
(r) from time to time such other financial data and
information in the possession of the Borrower, the Guarantor or their
respective Subsidiaries (including without limitation auditors' management
letters, property inspection and environmental reports and information as to
zoning and other legal and regulatory changes affecting the Borrower or the
Guarantor) as the Agent may reasonably request.
U7.5.Notices
(a) Defaults. The Borrower will promptly notify the
Agent in writing of the occurrence of any Default or Event of Default. If any
Person shall give any notice or take any other action in respect of a claimed
default (whether or not constituting an Event of Default) under this Agreement
or under any note, evidence of indebtedness, indenture or other obligation to
which or with respect to which the Borrower, the Guarantor or any of their
respective Subsidiaries is a party or obligor, whether as principal or surety,
and such default would permit the holder of such note or obligation or other
evidence of indebtedness to accelerate the maturity thereof, which acceleration
would have a material adverse effect on the Borrower or the Guarantor, the
Borrower shall forthwith give written notice thereof to the Agent and each of
the Banks, describing the notice or action and the nature of the claimed
default.
(b) Environmental Events. The Borrower will promptly
give notice to the Agent (i) upon the Borrower obtaining knowledge of any
potential or known Release of any Hazardous Substances at or from the Mortgaged
Property; (ii) of any violation of any Environmental Law that the Borrower or
any of its Subsidiaries reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any oral report is
made) to any federal, state or local environmental agency; and (iii) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of
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potential environmental liability, of any federal, state or local environmental
agency or board, that in either case involves the Mortgaged Property or has the
potential to materially affect the assets, liabilities, financial conditions or
operations of the Borrower or any Subsidiary or the Agent's liens on the
Collateral pursuant to the Security Documents.
(c) Notification of Claims Against Collateral. The
Borrower will, immediately upon becoming aware thereof, notify the Agent in
writing of any setoff, claims (including, with respect to any Mortgaged
Property, environmental claims), withholdings or other defenses to which any of
the Collateral, or the rights of the Agent or the Banks with respect to the
Collateral, are subject.
(d) Notice of Litigation and Judgments. The Borrower
will give notice to the Agent in writing within fifteen (15) days of becoming
aware of any litigation or proceedings threatened in writing or any pending
litigation and proceedings affecting the Borrower, the Guarantor or any of
their respective Subsidiaries or to which the Borrower, the Guarantor or any of
their respective Subsidiaries is or is to become a party involving an uninsured
claim against the Borrower, the Guarantor or any of their respective
Subsidiaries that could reasonably be expected to have a materially adverse
effect on the Borrower or the Guarantor and stating the nature and status of
such litigation or proceedings. The Borrower will give notice to the Agent, in
writing, in form and detail satisfactory to the Agent and each of the Banks,
within ten (10) days of any judgment not covered by insurance, whether final or
otherwise, against the Borrower, the Guarantor or any of their respective
Subsidiaries in an amount in excess of $100,000.
(e) Notice of Proposed Sales, Encumbrances, Refinance or
Transfer of Non-Mortgaged Property. The Borrower will give notice to the Agent
of any proposed or completed sale, encumbrance, refinance or transfer of any
Real Estate other than Mortgaged Property or other Investment described in
Section 8.3(i) of the Borrower, the Guarantor or their respective Subsidiaries
within any fiscal quarter of the Borrower, such notice to be submitted, in the
case of any such sale, encumbrance, refinance or transfer in an amount in
excess of $10,000,000.00, together with the Compliance Certificate provided or
required to be provided to the Banks under Section 7.4 with respect to such
fiscal quarter. The Compliance Certificate shall with respect to any proposed
or completed sale, encumbrance, refinance or transfer be adjusted in the best
good faith estimate of the Borrower to give effect to such sale, encumbrance,
refinance or transfer and demonstrate that no Default or Event of Default with
respect to the covenants referred to therein shall exist after giving effect to
such sale, encumbrance, refinance or transfer. Notwithstanding the foregoing,
in the event of any sale, encumbrance, refinance or transfer of any Real Estate
other than the Mortgaged Property or other Investment described in Section
8.3(i) of the Borrower, the Guarantor or their respective Subsidiaries, the
Borrower shall promptly give notice to the Agent of such transaction, which
notice shall be accompanied by a Compliance Certificate prepared using the
financial statements of the Borrower most recently provided or required to be
provided to the Banks under Section 6.4 or Section 7.4 adjusted as provided in
the preceding sentence.
(f) New Leases. The Borrower and each Approved
Subsidiary will give notice to the Agent of any proposed new Lease at any
Mortgaged Property for the lease of space therein
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of more than 7500 square feet and shall provide to the Agent a copy of the
proposed lease and any and all agreements or documents related thereto, current
financial information for the proposed tenant and any guarantor of the proposed
lease and such other information as the Agent may request. The Agent shall be
deemed to have consented to such new Lease if the Agent has not within ten (10)
Business Days of the receipt by the Agent of the initial notification from the
Borrower or the Approved Subsidiary notified the Borrower or the Approved
Subsidiary of either the Agent's refusal to consent thereto or the Agent's need
for further information in connection with such proposed new Lease.
(g) Notification of Banks. Promptly after receiving any
notice under this Section 7.5, the Agent will forward a copy thereof to each of
the Banks, together with copies of any certificates or other written
information that accompanied such notice.
U7.6.Existence; Maintenance of Properties
(a) The Borrower will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
Delaware limited partnership. The Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a Massachusetts business trust; provided, however, that Guarantor may become a
Maryland real estate investment trust pursuant to the terms of Section 8.4(b),
and if Guarantor does become a Maryland real estate investment trust pursuant
to the terms of Section 8.4(b), Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a Maryland real estate investment trust. The Borrower and the Guarantor will
cause each of their respective Subsidiaries to do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence. The Borrower shall continue to own directly or indirectly one
hundred percent (100%) of the Voting Interests and economic interests in the
REMIC Subsidiary, subject to any approval rights of any independent director
appointed in order for the REMIC Subsidiary to be considered as a "bankruptcy
remote" entity. The Borrower and the Guarantor will do or cause to be done all
things necessary to preserve and keep in full force all of their respective
rights and franchises and those of their Subsidiaries. The Borrower will, and
will cause each of its Subsidiaries to, continue to engage primarily in the
businesses now conducted by it and in related businesses.
(b) The Borrower (i) will cause all of its properties and
those of its Subsidiaries used or useful in the conduct of its business or the
business of its Subsidiaries to be maintained and kept in good condition,
repair and working order (ordinary wear and tear excepted) and supplied with
all necessary equipment, and (ii) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof in all cases in
which the failure so to do would have a material adverse effect on the
condition of the applicable Mortgaged Property or on the financial condition,
assets or operations of the Borrower and its Subsidiaries.
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U7.7.Insurance
(a) The Borrower will, at its expense, procure and
maintain for the benefit of the Borrower and the Agent, insurance policies
issued by such insurance companies, in such amounts, in such form and
substance, and with such coverages, endorsements, deductibles and expiration
dates as are acceptable to the Majority Banks, providing the following types of
insurance covering the Mortgaged Property:
(i) "All Risks" property insurance
(including broad form flood, broad form earthquake and
comprehensive boiler and machinery coverages) on each Building
and the contents therein of the Borrower and its Subsidiaries
in an amount not less than one hundred percent (100%) of the
full replacement cost of each Building and the contents
therein of the Borrower and its Subsidiaries or such other
amount as the Agent may approve, with deductibles not to
exceed $10,000 for any one occurrence, with a replacement cost
coverage endorsement, an agreed amount endorsement, and, if
requested by the Majority Banks, a contingent liability from
operation of building laws endorsement in such amounts as the
Majority Banks may require. Full replacement cost as used
herein means the cost of replacing the Building (exclusive of
the cost of excavations, foundations and footings below the
lowest basement floor) and the contents therein of the
Borrower and its Subsidiaries without deduction for physical
depreciation thereof;
(ii) During the course of construction or
repair of any Building, the insurance required by clause (i)
above shall be written on a builders risk, completed value,
non-reporting form, meeting all of the terms required by
clause (i) above, covering the total value of work performed,
materials, equipment, machinery and supplies furnished,
existing structures, and temporary structures being erected on
or near the Real Estate, including coverage against collapse
and damage during transit or while being stored off-site, and
containing a soft costs (including loss of rents) coverage
endorsement and a permission to occupy endorsement;
(iii) Flood insurance if at any time any
Building is located in any federally designated "special
hazard area" (including any area having special flood,
mudslide and/or flood-related erosion hazards, and shown on a
Flood Hazard Boundary Map or a Flood Insurance Rate Map
published by the Federal Emergency Management Agency as Zone
A, AO, Al-30, AE, A99, AH, VO, V1-30, VE, V, M or E) and the
broad form flood coverage required by clause (i) above is not
available, in an amount equal to the full replacement cost or
the maximum amount then available under the National Flood
Insurance Program;
(iv) Rent loss insurance in an amount
sufficient to recover at least the total estimated gross
receipts from all sources of income, including
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without limitation, rental income, for the Real Estate for a
twelve (12) month period;
(v) Commercial general liability
insurance against claims for personal injury (to include,
without limitation, bodily injury and personal and advertising
injury) and property damage liability, all on an occurrence
basis, if commercially available, with such coverages as the
Majority Banks may reasonably request (including, without
limitation, contractual liability coverage, completed
operations coverage for a period of two (2) years following
completion of construction of any improvements on the Real
Estate, and coverages equivalent to an ISO broad form
endorsement), with a general aggregate limit of not less than
$1,000,000, a completed operations aggregate limit of not less
than $1,000,000, and a combined single "per occurrence" limit
of not less than $1,000,000 for bodily injury, property damage
and medical payments;
(vi) During the course of construction or
repair of any improvements on the Real Estate, owner's
contingent or protective liability insurance covering claims
not covered by or under the terms or provisions of the
insurance required by clause (v) above;
(vii) Employer's liability insurance with
respect to the Borrower's employees;
(viii) Umbrella liability insurance with
limits of not less than $10,000,000 to be in excess of the
limits of the insurance required by clauses (v), (vi) and
(vii) above, with coverage at least as broad as the primary
coverages of the insurance required by clauses (v), (vi) and
(vii) above, with any excess liability insurance to be at
least as broad as the coverages of the lead umbrella policy.
All such policies shall be endorsed to provide defense
coverage obligations;
(ix) Workers' compensation insurance for
all employees of the Borrower or its Subsidiaries engaged on
or with respect to the Real Estate; and
(x) Such other insurance in such form
and in such amounts as may from time to time be reasonably
required by the Majority Banks against other insurable hazards
and casualties which at the time are commonly insured against
in the case of properties of similar character and location to
the Real Estate.
The Borrower shall pay all premiums on insurance policies. The
insurance policies with respect to all Mortgaged Property provided for in
clauses (v), (vi) and (viii) above shall name the Agent and each Bank as an
additional insured and shall contain a cross liability/severability
endorsement. The insurance policies provided for in clauses (i), (ii), (iii)
and (iv) above shall name the Agent as mortgagee and loss payee, shall be first
payable in case of loss to the Agent, and shall contain mortgage clauses and
lender's loss payable endorsements in form and substance
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acceptable to the Agent. The Borrower shall deliver duplicate originals or
certified copies of all such policies to the Agent, and the Borrower shall
promptly furnish to the Agent all renewal notices and evidence that all
premiums or portions thereof then due and payable have been paid. At least
thirty (30) days prior to the expiration date of the policies, the Borrower
shall deliver to the Banks evidence of continued coverage, including a
certificate of insurance, as may be satisfactory to the Agent.
(b) All policies of insurance required by this Agreement
shall contain clauses or endorsements to the effect that (i) no act or omission
of the Borrower or any Subsidiary or anyone acting for the Borrower or any
Subsidiary (including, without limitation, any representations made in the
procurement of such insurance), which might otherwise result in a forfeiture of
such insurance or any part thereof, no occupancy or use of the Real Estate for
purposes more hazardous then permitted by the terms of the policy, and no
foreclosure or any other change in title to the Real Estate or any part
thereof, shall affect the validity or enforceability of such insurance insofar
as the Agent is concerned, (ii) the insurer waives any right of set off,
counterclaim, subrogation, or any deduction in respect of any liability of the
Borrower or any Subsidiary and the Agent, (iii) such insurance is primary and
without right of contribution from any other insurance which may be available,
(iv) such policies shall not be modified, canceled or terminated prior to the
scheduled expiration date thereof without the insurer thereunder giving at
least thirty (30) days prior written notice to the Agent by certified or
registered mail, and (v) that the Agent or the Banks shall not be liable for
any premiums thereon or subject to any assessments thereunder, and shall in all
events be in amounts sufficient to avoid any coinsurance liability.
(c) The insurance required by this Agreement may be
effected through a blanket policy or policies covering additional locations and
property of the Borrower and other Persons not included in the Mortgage
Property, provided that such blanket policy or policies comply with all of the
terms and provisions of this Section 7.7 and contain endorsements or clauses
assuring that any claim recovery will not be less than that which a separate
policy would provide, including, without limitation, a priority claim provision
with respect to property insurance and an aggregate limits of insurance
endorsement in the case of liability insurance.
(d) All policies of insurance required by this Agreement
shall be issued by companies licensed to do business in the State where the
policy is issued and also in the states where the Real Estate is located and
having a rating in Best's Key Rating Guide of at least "A" and a financial size
category of at least "VIII."
(e) Neither the Borrower nor any Subsidiary shall carry
separate insurance, concurrent in kind or form or contributing in the event of
loss, with any insurance required under this Agreement unless such insurance
complies with the terms and provisions of this Section 7.7.
(f) In the event of any loss or damage to the Mortgaged
Property in excess of $50,000, the Borrower shall give immediate written notice
to the insurance carrier and the Agent, and the Agent shall furnish a copy of
such notice promptly to each of the Banks. The Borrower
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may make proof of loss and adjust and compromise any claim under insurance
policies which is of an amount not more than $500,000.00 so long as no Event of
Default has occurred and is continuing and so long as the Borrower shall in
good faith diligently pursue such claim. The Borrower hereby irrevocably
authorizes and empowers the Agent, at the Agent's option in the Agent's sole
discretion or at the request of the Majority Banks in their sole discretion, as
attorney in fact for the Borrower, except as provided in the preceding
sentence, to make proof of any loss, to adjust and compromise any claim under
insurance policies, to appear in and prosecute any action arising from such
insurance policies, to collect and receive insurance proceeds, and to deduct
therefrom the Agent's expenses incurred in the collection of such proceeds,
provided that the Agent agrees to consult with the Borrower prior to taking
such action. If the Mortgaged Property is acquired by the Agent or any nominee
through foreclosure, deed in lieu of foreclosure or otherwise is acquired from
the Borrower, all right, title and interest of the Borrower in and to any
insurance policies and unearned premiums thereon and in and to the proceeds
thereof resulting from loss or damage to the Mortgaged Property prior to such
sale or acquisition shall pass to the Agent or any other successor in interest
to the Borrower or purchaser or grantee of the Mortgaged Property.
(g) Subject to the terms of the following sentence, the
Borrower authorizes the Agent, at the Agent's option or at the request of the
Majority Banks in their sole discretion,(i) to apply the balance of such
proceeds to the payment of the Obligations of the Borrower whether or not then
due, or (ii) if the Agent or the Majority Bank shall require the reconstruction
or repair of the Mortgaged Property, to hold the balance of such proceeds to be
used to pay all taxes, charges, sewer use fees, water rates and assessments
which may be imposed upon the Mortgaged Property and the Obligations of the
Borrower as they become due during the course of reconstruction or repair of
the Mortgaged Property and to reimburse the Borrower, in accordance with such
terms and conditions as Agent may prescribe, for the cost of such
reconstruction or repair of the Mortgaged Property, and on completion of such
reconstruction or repair to apply any of the excess to the payment of the
Obligations of the Borrower. Notwithstanding the foregoing, the Agent shall
make such net proceeds available to the Borrower to reconstruct and repair the
Mortgaged Property, in accordance with such terms and conditions as the Agent
may prescribe for the disbursement of such proceeds to assure completion of
such reconstruction or repair provided that (x) no Default or Event of Default
shall have occurred and be continuing, (y) the Borrower shall have provided to
the Agent additional cash security in an amount equal to the amount reasonably
estimated by the Agent to be the amount in excess of such proceeds which will
be required to complete such repair or restoration, and (z) the Agent shall
determine that such repair or reconstruction can be completed prior to the
Maturity Date.
(h) The Borrower will, at its expense, procure and
maintain insurance covering the Borrower and the Real Estate other than the
Mortgaged Property in such amounts and against such risks and casualties as are
customary for properties of similar character and location, due regard being
given to the type of improvements thereon, their construction, location, use
and occupancy.
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(i) The Borrower shall provide to the Agent for the
benefit of the Banks Title Policies for all of the Mortgaged Properties of the
Borrower which shall at all times be in an aggregate amount of not less than
the total Commitments for the Borrower at the time in effect. Each Title
Policy shall also contain, to the extent available, a tie-in endorsement
aggregating the insurance coverage provided under all of the policies relating
to the Borrower with tie-in endorsements.
U7.8.TaxesThe Borrower and each Subsidiary will duly pay and discharge, or
cause to be paid and discharged, before the same shall become overdue, all
taxes, assessments and other governmental charges imposed upon it and upon the
Mortgaged Property and the other Real Estate, sales and activities, or any part
thereof, or upon the income or profits therefrom as well as all claims for
labor, materials, or supplies that if unpaid might by law become a lien or
charge upon any of its property; provided that any such tax, assessment,
charge, levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if the
Borrower or such Subsidiary shall have set aside on its books adequate reserves
with respect thereto; and provided, further that forthwith upon the
commencement of proceedings to foreclose any lien that may have attached as
security therefor, the Borrower and each Subsidiary of the Borrower either (i)
will provide a bond issued by a surety reasonably acceptable to the Agent and
sufficient to stay all such proceedings or (ii) if no such bond is provided,
will pay each such tax, assessment, charge, levy or claim.
U7.9.Inspection of Properties and BooksThe Borrower shall permit the Banks,
through the Agent or any representative designated by the Agent, at the
Borrower's expense to visit and inspect any of the properties of the Borrower
or any of its Subsidiaries, to examine the books of account of the Borrower and
its Subsidiaries (and to make copies thereof and extracts therefrom) and to
discuss the affairs, finances and accounts of the Borrower and its Subsidiaries
with, and to be advised as to the same by, its officers, all at such reasonable
times and intervals as the Agent or any Bank may reasonably request, provided
that so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower shall not be required to pay for such visits and
inspections more often than once in any twelve (12) month period. The Banks
shall use good faith efforts to coordinate such visits and inspections so as to
minimize the interference with and disruption to the Borrower's normal business
operations.
U7.10.Compliance with Laws, Contracts, Licenses, and PermitsThe Borrower will
comply with, and will cause each of its Subsidiaries to comply in all respects
with (i) all applicable laws and regulations now or hereafter in effect
wherever its business is conducted, including all Environmental Laws, (ii) the
provisions of its corporate charter, partnership agreement or declaration of
trust, as the case may be, and other charter documents and bylaws, (iii) all
agreements and instruments to which it is a party or by which it or any of its
properties may be bound, (iv) all applicable decrees, orders, and judgments,
and (v) all licenses and permits required by applicable laws and regulations
for the conduct of its business or the ownership, use or operation of its
properties. If at any time while any Loan, Note or Letter of Credit is
outstanding or the Banks have any obligation to make Loans or participate in
Letters of Credit hereunder, any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of
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any government shall become necessary or required in order that the Borrower
may fulfill any of its obligations hereunder, the Borrower will immediately
take or cause to be taken all steps necessary to obtain such authorization,
consent, approval, permit or license and furnish the Agent and the Banks with
evidence thereof.
U7.11.Use of ProceedsThe Borrower will use the proceeds of the Loans and the
Letters of Credit to the Borrower solely to provide short-term financing (a)
for the acquisition of fee interests by the Borrower in Real Estate which is
utilized principally for shopping centers, (b) for Capital Improvement
Projects, (c) subject to the restrictions set forth in Section 8.9 for
development of new shopping centers, the acquisition of undeveloped Real
Estate, (d) for general corporate purposes including working capital, (e) to
repay outstanding Indebtedness, and (f) for such other purposes as the Majority
Banks in their discretion from time to time may agree to in writing.
U7.12.Further AssurancesEach of the Borrower and the Guarantor will cooperate
with, and will cause each of its Subsidiaries to cooperate with the Agent and
the Banks and execute such further instruments and documents as the Banks or
the Agent shall reasonably request to carry out to their satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
U7.13.ComplianceThe Borrower shall operate its business, and shall cause each
of its Subsidiaries to operate its business, in compliance with the terms and
conditions of this Agreement and the other Loan Documents. The Guarantor shall
at all times comply with all requirements of applicable laws necessary to
maintain REIT Status and shall operate its business in compliance with the
terms and conditions of this Agreement and the other Loan Documents.
U7.14.ManagementThere shall not occur, without the prior written consent of
the Majority Banks, which consent shall not be unreasonably withheld, any
material change in management of the Mortgaged Properties (including, without
limitation, the hiring of third party managers), provided that so long as the
Mortgaged Properties are managed by the Borrower, a change in the internal
management personnel of the Borrower shall not be deemed a material change in
management.
U7.15.Interest CollarFrom and after the date of this Agreement, the Borrower
shall at all times maintain in full force and effect the Interest Collar. The
Borrower shall upon the request of the Agent provide to the Agent evidence that
the Interest Collar is in effect.
U7.16.Ownership of Real EstateWithout the prior written consent of the
Majority Banks, which consent may be withheld by the Majority Banks in their
sole discretion, all interests (whether direct or indirect) of the Borrower or
the Guarantor in real estate assets acquired after the date hereof shall be
owned directly by the Borrower; provided, however, that the Initial REMIC
Properties may be owned by the REMIC Subsidiary; and provided further, however,
that the Initial REMIC Properties shall be conveyed by the REMIC Subsidiary to
the Borrower (and the Borrower shall assume the obligations under the Security
Documents with respect to such Initial REMIC Properties and shall enter into
such amendments and modifications thereof as the Agent in its sole discretion
may require to reflect the ownership by the Borrower, the assumption by the
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Borrower of the obligations thereunder and matters related thereto or arising
therefrom) if the REMIC Transaction is not consummated within sixty (60) days
of the date of this Agreement.
U7.17.More Restrictive AgreementsShould the Borrower, the Guarantor or any of
their respective Subsidiaries enter into or modify any agreements or documents
pertaining to any existing or future Indebtedness, Debt Offering or Equity
Offering, which agreements or documents include covenants, whether affirmative
or negative (or any other provision which may have the same practical effect as
any of the foregoing), which are individually or in the aggregate more
restrictive against the Borrower, the Guarantor or their respective
Subsidiaries than those set forth in Section 8 and Section 9 of this Agreement,
the Guaranty or the REMIC Subsidiary Guaranty (Revolver), the Borrower shall
promptly notify the Agent and, if requested by the Majority Banks, the
Borrower, the Agent, and the Majority Banks shall promptly amend this Agreement
and the other Loan Documents to include some or all of such more restrictive
provisions as determined by the Majority Banks in their sole discretion. Each
of the Borrower and Guarantor agree to deliver to the Agent copies of any
agreements or documents (or modifications thereof) pertaining to existing or
future Indebtedness, Debt Offering or Equity Offering of the Borrower, the
Guarantor or any of their respective Subsidiaries as the Agent from time to
time may request. Notwithstanding the foregoing, this Section 7.17 shall not
apply to covenants contained in any agreements or documents evidencing or
securing Non-recourse Indebtedness or covenants in agreements or documents
relating to recourse Indebtedness that relate only to specific Real Estate that
is collateral for such Indebtedness.
U8.CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER The
Borrower and the Guarantor, jointly and severally, covenant and agree that, so
long as any Loan, Letter of Credit or Note is outstanding or any of the Banks
has any obligation to make any Loans or to participate in any Letters of
Credit:
U8.1.Restrictions on IndebtednessThe Guarantor will not (other than solely as
a result of its status as a general partner of the Borrower) create, incur,
assume, guarantee or be or remain liable, contingently or otherwise with
respect to any Indebtedness other than the Obligations and any Indebtedness of
the Borrower permitted under the terms of this Section 8.1. The Borrower will
not, and will not permit any of its Subsidiaries to, create, incur, assume,
guarantee or be or remain liable, contingently or otherwise, with respect to
any Indebtedness other than:
(a) Indebtedness to the Banks arising under any of the
Loan Documents, and Indebtedness and obligations in respect of the Interest
Collar;
(b) current liabilities of the Borrower or its
Subsidiaries incurred in the ordinary course of business but not incurred
through (i) the borrowing of money, or (ii) the obtaining of credit except for
credit on an open account basis customarily extended and in fact extended in
connection with normal purchases of goods and services;
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(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and supplies to
the extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards that
have been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the Borrower
shall at the time in good faith be prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been obtained
pending such appeal or review;
(e) endorsements for collection, deposit or negotiation
and warranties of products or services, in each case incurred in the ordinary
course of business;
(f) subject to the provisions of Section 9, Non-recourse
Indebtedness of the Borrower or any of its Subsidiaries, provided that neither
the Borrower nor any of its Subsidiaries shall incur any Non-recourse
Indebtedness unless the Borrower shall have provided to the Banks a statement
that no Default or Event of Default exists and a Compliance Certificate
demonstrating that the Borrower will be in compliance with the covenants
referred to therein after giving effect to such incurrence, and environmental
indemnities and customary exceptions to exculpatory language shall be permitted
in any such Non-recourse Indebtedness;
(g) Indebtedness in respect of reverse repurchase
agreements having a term of not more than 180 days with respect to Investments
described in Section 8.3(d) or (e);
(h) subject to the provisions of Section 9, other
unsecured recourse Indebtedness of the Borrower and its Subsidiaries in an
aggregate outstanding principal amount (excluding the Obligations and
Indebtedness (not to exceed $45,000,000.00) arising under the Unsecured Term
Loan Agreement), not exceeding $2,500,000.00; provided that neither the
Borrower nor any of its Subsidiaries shall incur any recourse Indebtedness
described in this Section 8.1(h) unless the Borrower shall have provided to the
Banks a statement that no Default or Event of Default exists and a Compliance
Certificate demonstrating that the Borrower will be in compliance with the
covenants referred to therein after giving effect to such incurrence;
(i) Indebtedness in respect of purchase money financing
for equipment, computers and vehicles acquired in the ordinary course of the
Borrower's business not exceeding $1,000,000.00;
(j) subject to the provisions of Section 9, recourse debt
to obtain a construction loan or loans in an aggregate amount not exceeding
$50,000,000.00;
(k) Indebtedness (not to exceed $45,000,000.00) arising
under the Unsecured Term Loan Agreement; provided, however, that Indebtedness
permitted under this Section 8.1(k) shall not include any Indebtedness arising
out of or related to any refinancing or purported refinancing of such
Indebtedness under the Unsecured Term Loan Agreement; and
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(l) recourse Indebtedness existing on the date of this
Agreement and listed and described on Schedule 8.1 hereto; provided, however,
that Indebtedness permitted under this Section 8.1(l) shall not include any
Indebtedness arising out of or related to any refinancing or purported
refinancing of such existing recourse Indebtedness.
U8.2.Restrictions on Liens EtcNeither the Guarantor nor the Borrower will,
nor will either of them permit any of its Subsidiaries to, (a) create or incur
or suffer to be created or incurred or to exist any lien, encumbrance,
mortgage, pledge, charge, restriction or other security interest of any kind
upon any of its property or assets of any character whether now owned or
hereafter acquired, or upon the income or profits therefrom; (b) transfer any
of its property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) acquire, or
agree or have an option to acquire, any property or assets upon conditional
sale or other title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than 30 days after the
same shall have been incurred any Indebtedness or claim or demand against it
that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be
given any priority whatsoever over its general creditors; or (e) sell, assign,
pledge or otherwise transfer any accounts, contract rights, general
intangibles, chattel paper or instruments, with or without recourse; provided
that the Borrower, the Guarantor and any Subsidiary of either of them may
create or incur or suffer to be created or incurred or to exist:
(i) liens in favor of the Borrower or
the Guarantor on all or part of the assets of Subsidiaries of
such Person (other than Collateral) securing Indebtedness
owing by Subsidiaries of such Person to such Person;
(ii) liens on properties to secure taxes,
assessments and other governmental charges or claims for
labor, material or supplies in respect of obligations not
overdue;
(iii) deposits or pledges made in
connection with, or to secure payment of, workers'
compensation, unemployment insurance, old age pensions or
other social security obligations;
(iv) liens on properties other than the
Mortgaged Property or any interest therein (including the
rents, issues and profits therefrom) in respect of judgments,
awards or indebtedness, the Indebtedness with respect to which
is permitted by Section 8.1(d) or Section 8.1(f).
(v) encumbrances on properties other
than the Mortgaged Property consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the
Borrower, the Guarantor or a Subsidiary of such Person is a
party, and other minor liens or encumbrances none of which
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interferes materially with the use of the property affected in
the ordinary conduct of the business of the Borrower, the
Guarantor or their Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse
effect on the business of the Borrower or the Guarantor
individually or of such Person and its Subsidiaries on a
Consolidated basis;
(vi) liens on the specific personal
property (other than Collateral) acquired by Indebtedness
permitted under Section 8.1(i);
(vii) liens in favor of the Agent and the
Banks under the Loan Documents;
(viii) liens and encumbrances on a
Mortgaged Property expressly permitted under the terms of the
Security Deed relating thereto;
(ix) liens and encumbrances on Real
Estate (other than a Mortgaged Property) that is the subject
of a construction loan permitted under the terms of Section
8.1(j); and
(x) the liens described on Schedule 8.2
hereto with respect to Indebtedness permitted under Section
8.1(l).
U8.3.Restrictions on InvestmentsNeither the Borrower nor the Guarantor will,
nor will either of them permit any of its Subsidiaries to, make or permit to
exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the
United States of America that mature within one (1) year from the date of
purchase by the Borrower or its Subsidiary;
(b) marketable direct obligations of any of the
following: Federal Home Loan Mortgage Corporation, Student Loan Marketing
Association, Federal Home Loan Banks, Federal National Mortgage Association,
Government National Mortgage Association, Bank for Cooperatives, Federal
Intermediate Credit Banks, Federal Financing Banks, Export-Import Bank of the
United States, Federal Land Banks, or any other agency or instrumentality of
the United States of America;
(c) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $100,000,000; provided, however, that the aggregate amount at any
time so invested with any single bank having total assets of less than
$1,000,000,000 will not exceed $200,000;
(d) securities commonly known as "commercial paper"
issued by a corporation organized and existing under the laws of the United
States of America or any State which at the time of purchase are rated by
Moody's Investors Service, Inc. or by Standard & Poor's
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Corporation at not less than "P 1" if then rated by Moody's Investors Service,
Inc., and not less than "A1", if then rated by Standard & Poor's Corporation;
(e) mortgage-backed securities guaranteed by the
Government National Mortgage Association, the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation and other
mortgage-backed bonds which at the time of purchase are rated by Moody's
Investors Service, Inc. or by Standard & Poor's Corporation at not less than
"Aa" if then rated by Moody's Investors Service, Inc. and not less than "AA" if
then rated by Standard & Poor's Corporation;
(f) repurchase agreements having a term not greater than
90 days and fully secured by securities described in the foregoing subsection
(a), (b) or (e) with banks described in the foregoing subsection (c) or with
financial institutions or other corporations having total assets in excess of
$500,000,000;
(g) shares of so-called "money market funds" registered
with the SEC under the Investment Company Act of 1940 which maintain a level
per-share value, invest principally in investments described in the foregoing
subsections (a) through (f) and have total assets in excess of $50,000,000;
(h) Investments in Subsidiaries of the Borrower or the
Guarantor, but only with the consent of the Majority Banks; provided, however,
that, subject to the obligation of the REMIC Subsidiary to convey the Initial
REMIC Properties to the Borrower in accordance with the provisions of Section
7.15, the REMIC Subsidiary may be formed and an Investment made therein in the
form of the transfer of the Initial REMIC Properties to the REMIC Subsidiary
upon acquisition of the Initial REMIC Properties and the transfer of the
Additional REMIC Properties to the REMIC Subsidiary in accordance with Section
8.8(b) and a cash Investment not to exceed $10,000,000.00; provided further,
however, that no additional Investments in the REMIC Subsidiary may be made
without the consent of the Majority Banks;
(i) Investments in Real Estate permitted under
Section 7.11;
(j) Subject to the restrictions set forth in Section 8.9,
investments in real estate investment trusts which own real property which is
used principally for fee interests in Real Estate utilized principally for
shopping centers located within the United States, provided that in no event
shall the aggregate costs of all Investments pursuant to this Section 8.3(j)
exceed the amount set forth with respect thereto in the Borrower's annual
budget and business plan delivered to the Agent pursuant to Section 7.4(m); and
(k) Investments in Affiliates of the Borrower, which
Affiliates are engaged in development activity pursuant to Section 8.9, the
accounts of which Affiliate are not consolidated with the accounts of Borrower
and Investments in mortgages and notes receivables from such Affiliates,
provided that in no event shall such Investments (including the principal
amount payable pursuant to such notes) exceed fifteen percent (15%) of the
Borrower's Consolidated
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Total Adjusted Asset Value (provided that for purposes of this Section 8.3(k),
the Borrower's Consolidated Total Adjusted Asset Value shall not include the
amount of the Stock Purchase Commitment Allowance). For the purposes hereof,
notes receivable from Affiliates shall be valued at face value (subject to
reduction as a result of payments thereon).
U8.4.Merger, Consolidation
(a) Neither the Borrower nor the Guarantor will, nor will
either of them permit any of its Subsidiaries to, become a party to any merger
or consolidation except (i) the merger or consolidation of one or more of the
Subsidiaries of the Borrower with and into the Borrower, (ii) the merger or
consolidation of two or more Subsidiaries of the Borrower or (iii) the merger
of Guarantor in accordance with the provisions of Section 8.4(b).
(b) The Borrower has advised the Agent and the Banks that
Guarantor may reincorporate under Maryland law as a Maryland real estate
investment trust. Such reincorporation shall be accomplished through a merger
of Guarantor into a newly created Maryland real estate investment trust (the
"Maryland REIT") created solely for the purpose of effectuating such merger.
Notwithstanding any other provision of this Agreement or the other Loan
Documents to the contrary, the Banks shall consent to such merger provided that
(i) the Agent receives such evidence as the Agent may reasonably require that
all representations, warranties and covenants (other than representations
relating to the organization of Guarantor as of the date hereof) of or
concerning the Borrower and the Guarantor in this Agreement or the Guaranty are
and shall remain true and correct following such merger; (ii) the Agent
receives and approves (such approval not to be unreasonably withheld) certified
copies of the chartering documents of the Maryland REIT and the merger
documents and evidence that the Maryland REIT shall assume all assets and
liabilities (including, without limitation, all liabilities of Guarantor under
the Loan Documents) of Guarantor; (iii) the Maryland REIT executes and
delivers to Agent a new Guaranty in the form of the Guaranty, with such changes
thereto as the Agent may reasonably require; (iv) such merger shall not cause
or result in a dissolution of Borrower; (v) the Agent receives such evidence as
the Agent may require that the Guarantor has received all necessary consents or
authorizations for such merger including, without limitation, shareholder and
governmental consents; (vii) the Agent receives such evidence as the Agent may
require that all necessary filings with governmental authorities with respect
to such merger have been made; (vii) such merger shall not cause a Default or
Event of Default; and (viii) the Agent receives such opinions of counsel to the
Maryland REIT as may be reasonably required by the Agent. From and after the
merger of Guarantor into the Maryland REIT, the Maryland REIT shall be the
Guarantor for all purposes of this Agreement and the other Loan Documents.
U8.5.Conduct of BusinessNeither the Borrower nor the Guarantor will conduct
any of its business operations other than through the Borrower and its
Subsidiaries; provided, however, that subject to Section 8.9, development
activities may be conducted through Affiliates of the Borrower. No
reorganizations, spin-offs or new business lines shall be established or occur
without the prior written consent of the Majority Banks.
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U8.6.Compliance with Environmental LawsNeither the Borrower nor the Guarantor
will, nor will either of them permit any of its Subsidiaries, to do any of the
following: (a) use any of the Real Estate or any portion thereof as a facility
for the handling, processing, storage or disposal of Hazardous Substances,
except for small quantities of Hazardous Substances used in the ordinary course
of business and in compliance with all applicable Environmental Laws, (b) cause
or permit to be located on any of the Real Estate any underground tank or other
underground storage receptacle for Hazardous Substances except in full
compliance with Environmental Laws, (c) generate any Hazardous Substances on
any of the Real Estate except in full compliance with Environmental Laws, (d)
conduct any activity at any Real Estate or use any Real Estate in any manner so
as to cause a Release of Hazardous Substances on, upon or into the Real Estate
or any surrounding properties or any threatened Release of Hazardous Substances
which might give rise to liability under CERCLA or any other Environmental Law,
or (e) directly or indirectly transport or arrange for the transport of any
Hazardous Substances (except in compliance with all Environmental Laws).
The Borrower shall:
(i) in the event of any change in
Environmental Laws governing the assessment, release or
removal of Hazardous Substances, which change would lead a
prudent lender to require additional testing to avail itself
of any statutory insurance or limited liability, take all
action (including, without limitation, the conducting of
engineering tests at the sole expense of the Borrower) to
confirm that no Hazardous Substances are or ever were Released
or disposed of on the Mortgaged Property; and
(ii) if any Release or disposal of
Hazardous Substances shall occur or shall have occurred on the
Mortgaged Property (including without limitation any such
Release or disposal occurring prior to the acquisition of such
Mortgaged Property by the Borrower), cause the prompt
containment and removal of such Hazardous Substances and
remediation of the Mortgaged Property in full compliance with
all applicable laws and regulations and to the satisfaction of
the Majority Banks; provided, that the Borrower shall be
deemed to be in compliance with Environmental Laws for the
purpose of this clause (ii) so long as it or a responsible
third party with sufficient financial resources is taking
reasonable action to remediate or manage any event of
noncompliance to the satisfaction of the Majority Banks and no
action shall have been commenced by any enforcement agency.
The Majority Banks may engage their own Environmental Engineer
to review the environmental assessments and the Borrower's
compliance with the covenants contained herein.
At any time after an Event of Default shall have occurred hereunder,
or, whether or not an Event of Default shall have occurred, at any time that
the Agent or the Majority Banks shall have reasonable grounds to believe that a
Release or threatened Release of Hazardous Substances may have occurred,
relating to any Mortgaged Property, or that any of the Mortgaged Properties
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is not in compliance with the Environmental Laws, the Agent may at its election
(and will at the request of the Majority Banks) obtain such environmental
assessments of such Mortgaged Property prepared by an Environmental Engineer as
may be necessary or advisable for the purpose of evaluating or confirming (i)
whether any Hazardous Substances are present in the soil or water at or
adjacent to such Mortgaged Property and (ii) whether the use and operation of
such Mortgaged Property comply with all Environmental Laws. Environmental
assessments may include detailed visual inspections of such Mortgaged Property
including, without limitation, any and all storage areas, storage tanks,
drains, dry wells and leaching areas, and the taking of soil samples, as well
as such other investigations or analyses as are necessary or appropriate for a
complete determination of the compliance of such Mortgaged Property and the use
and operation thereof with all applicable Environmental Laws. All such
environmental assessments shall be at the sole cost and expense of the
Borrower.
U8.7.DistributionsNeither the Borrower nor the Guarantor shall make any
Distributions which would cause it to violate any of the following covenants:
(a) The Borrower shall not pay any Distribution to its
partners if such Distribution is in excess of the amount which, when added to
the amount of all other Distributions paid in the same fiscal quarter and the
preceding three (3) fiscal quarters would exceed ninety-five percent (95%) of
its Funds from Operations for the four (4) consecutive fiscal quarters ending
prior to the quarter in which such Distribution is paid. Notwithstanding the
foregoing, the Borrower may pay a Distribution to its partners of sums received
by it pursuant to the Tax Agreement dated as of May 10, 1996 between Atlantic
Realty Trust and RPS Realty Trust;
(b) In the event that an Event of Default shall have
occurred and be continuing, neither the Borrower nor the Guarantor shall make
any Distributions by the Borrower to the Guarantor and by the Guarantor other
than the minimum Distributions required under the Code to maintain the REIT
Status of the Guarantor, as evidenced by a certification of the principal
financial or accounting officer of the Guarantor containing calculations in
reasonable detail satisfactory in form and substance to Agent; and
(c) Notwithstanding the foregoing, at any time when an
Event of Default shall have occurred and the maturity of the Obligations has
been accelerated, neither the Borrower nor the Guarantor shall make any
Distributions whatsoever, directly or indirectly.
U8.8.Asset Sales
(a) Except as provided in Section 8.8(b), neither the
Borrower nor any Approved Subsidiary shall sell, transfer or otherwise dispose
of any Mortgaged Property without the prior consent of the Majority Banks.
Neither the Borrower, the Guarantor nor any Subsidiary thereof shall sell,
transfer or otherwise dispose of any Real Estate (other than a Mortgaged
Property) having an Appraised Value in excess of $10,000,000.00 (except as the
result of a condemnation or casualty and except for the granting of Permitted
Liens) unless there shall have been delivered
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to the Banks a statement that no Default or Event of Default exists immediately
prior to such sale, transfer or other disposition or would exist after giving
effect to such sale, transfer or other disposition.
(b) The Additional REMIC Properties may be transferred to
the REMIC Subsidiary and in connection therewith the Agent shall release the
REMIC Properties from the Security Documents and shall mark the REMIC
Subsidiary Guaranty (Revolver) and the Indemnity Agreement executed by the
REMIC Subsidiary as canceled and return them to the REMIC Subsidiary (and
thereupon, the REMIC Subsidiary, the Borrower and the Guarantor may terminate
the Contribution Agreement (Revolver)) upon satisfaction of the following
conditions (such transfer of the Additional REMIC Properties and release of the
REMIC Properties from the Security Documents being referred to herein as the
"REMIC Transaction"):
(ii) the transfer of the Additional REMIC
Properties occurs contemporaneously with the encumbering of
the REMIC Properties by mortgages, deeds of trust or similar
instruments substantially in accordance with the terms of the
proposed transaction described in that certain Loan Commitment
dated October 13, 1997, from Morgan Stanley Mortgage Capital,
Inc. to Borrower, a true copy of which has been delivered to
the Agent;
(ii) no Default or Event of Default has occurred
and is continuing at the time of the proposed transfer of the
Additional REMIC Properties or the proposed release of the
REMIC Properties from the Security Documents, and no Default
or Event of Default will occur as a result of such transfer of
the Additional REMIC Properties or the release of the REMIC
Properties;
(ii) the Borrower shall have delivered to the
Agent not less than ten (10) days' prior written notice of the
proposed transfer of the Additional REMIC Properties, and the
transfer of the Additional REMIC Properties occurs within
sixty (60) days of the date of this Agreement;
(ii) the Borrower shall make such payments on the
Loans in immediately available funds such that the Outstanding
Loans and Letters of Credit Outstanding immediately after such
transfer of the Additional REMIC Properties and such release
of the REMIC Properties shall be (A) equal to or less than
$110,000,000.00, and (B) not in excess of the Borrowing Base;
(ii) the Borrower shall have delivered to the
Agent such documents as are in form and substance satisfactory
to the Agent to release the REMIC Properties from the Security
Documents and shall have paid all expenses of the Agent in
connection with the review thereof including, without
limitation, all fees and expenses of Agent's Special Counsel;
and
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(ii) the Agent shall have received such other
documents as the Agent may request to evidence compliance with
the terms of this Section 8.8(b) and to ratify the Loan
Documents.
(c) Upon consummation of the REMIC Transaction, the
Commitment of each Bank shall be reduced in accordance with the separate
agreement of the Banks such that the Total Commitment shall be One Hundred Ten
Million and No/100 Dollars ($110,000,000.00). Upon such reduction of the Total
Commitment, the Agent is authorized unilaterally to amend Schedule 1 to reflect
such reduction in accordance with the separate agreement of the Banks and shall
deliver a copy of such amended Schedule 1 to the Borrower and the Banks.
U8.9.Development ActivityNeither the Borrower, the Guarantor nor any of their
respective Subsidiaries shall engage, directly or indirectly, in any
development except as expressly provided in this Section 8.9. The Borrower,
the Guarantor or any of their respective Subsidiaries may engage, either
directly or, in the case of the Borrower, through any Affiliate of the
Borrower, an Investment in which is permitted under Section 8.3(k), in the
development of property to be used principally for retail shopping centers
which at any time has a total cost (including acquisition, construction and
other costs), whether such total costs are incurred directly by the Borrower,
the Guarantor or such Subsidiary or through an Investment in an Affiliate
permitted under Section 8.3(k), individually for each development project that
is not in excess of ten percent (10%) of the Consolidated Total Adjusted Asset
Value of the Borrower, and in the aggregate for all development projects that
is not in excess of fifteen percent (15%) of the Consolidated Total Adjusted
Asset Value of the Borrower, without the prior written consent of the Majority
Banks. For the purposes of calculating the cost of developments by
Subsidiaries or Affiliates, the cost of such developments shall be based upon
the Borrower's interest in such Subsidiaries or Affiliates. For purposes of
this Section 8.9, the term "development" shall include the new construction of
a shopping center complex or the substantial renovation of improvements to real
property which materially change the character or size thereof, but shall not
include the addition of amenities or other related facilities to existing Real
Estate which is already used principally for shopping centers; provided,
however, that the term "development" shall not include the addition of an
anchor store to an existing shopping center project provided that the
construction of such improvements is performed by the tenant, and the Borrower
(or any Affiliate thereof), the Guarantor or its respective Subsidiary, as
applicable, is only obligated to reimburse such tenant for a fixed amount with
respect to the cost of such construction upon completion of such construction
by such tenant. The Borrower and the Guarantor each acknowledges that the
decision of the Majority Banks to grant or withhold such consent shall be based
on such factors as the Majority Banks deem relevant in their sole discretion,
including without limitation, evidence of sufficient funds both from borrowings
and equity to complete such development and evidence that the Borrower (or any
Affiliate thereof), the Guarantor or either of its Subsidiaries has the
resources and expertise necessary to complete such project. Nothing herein
shall prohibit the Borrower, the Guarantor or any of their respective
Subsidiaries thereof from entering into an agreement to acquire Real Estate
which has been developed and initially leased by another Person. Neither the
Borrower (or any Affiliate thereof), the Guarantor nor any Subsidiary shall
acquire or hold any number of undeveloped parcels of Real Estate which in the
aggregate exceed
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five percent (5%) of the Consolidated Total Adjusted Asset Value of the
Borrower and the Guarantor without the prior written consent of the Majority
Banks, provided that the acquisition or holding of any outlots or property
adjacent to any Real Estate owned by the Borrower (or any Affiliate thereof),
the Guarantor or any Subsidiary shall not be deemed to be an undeveloped parcel
of Real Estate for this purpose and options to acquire any property shall not
be deemed an acquisition or holding of such property. Further, any new
development project permitted under the terms of this Section 8.9 engaged in by
the Borrower (or any Affiliate thereof), the Guarantor or any Subsidiary shall
be either (a) at least seventy percent (70%) pre-leased, including all anchors,
or under a purchase agreement and all construction bids shall be in place and
any such development shall continue to be deemed an undeveloped parcel until
such time as construction commences, or (b) sufficiently pre- leased such that
based on such leases the gross income from such leases upon completion of such
project shall equal or exceed projected operating expenses (including reserves
for expenses not paid on a monthly basis). For purposes of this Section 8.9,
Consolidated Total Adjusted Asset Value shall not include the amount of the
Stock Purchase Commitment Allowance.
U9.FINANCIAL COVENANTS OF THE GUARANTOR AND THE BORROWER The Borrower and
the Guarantor, jointly and severally, covenant and agree that, so long as any
Loan, Letter of Credit or Note is outstanding or any Bank has any obligation to
make any Loans or to participate in any Letters of Credit, each of them will
comply with the following:
U9.1.Borrowing BaseThe Borrower will not permit the Outstanding Loans and
Letters of Credit Outstanding as of the date of determination to be greater
than the Borrowing Base of the Borrower as determined as of the same date.
U9.2.Liabilities to Assets RatioEach of the Borrower and the Guarantor will
not (i) permit the ratio of its Consolidated Total Liabilities (excluding the
Unsecured Term Loans) to Consolidated Total Adjusted Asset Value to exceed 0.55
to 1, or (ii) permit the ratio of its Consolidated Total Liabilities (including
the Unsecured Term Loans) to Consolidated Total Adjusted Asset Value to exceed
0.65 to 1; provided, however, that after the Unsecured Term Loans have been
paid in full, each of the Borrower and the Guarantor will not permit the ratio
of its Consolidated Total Liabilities to Consolidated Total Adjusted Asset
Value to exceed 0.55 to 1.
U9.3.Debt Service CoverageThe Borrower will not permit the Borrower's
Consolidated Operating Cash Flow for the period covered by the four (4)
previous consecutive fiscal quarters (treated as a single accounting period) to
be (i) less than 2.0 times the Debt Service (excluding the Unsecured Term
Loans) of the Borrower for such period, or (ii) less than 1.70 times the Debt
Service (including the Unsecured Term Loans) of the Borrower for such period;
provided, however, that after the Unsecured Term Loans have been paid in full,
the Borrower will not permit the Borrower's Consolidated Operating Cash Flow
for the period covered by the four (4) previous consecutive fiscal quarters
(treated as a single accounting period) to be less than 2.0 times the Debt
Service of the Borrower for such period; provided further, however, that for
purposes of determining compliance with this covenant, prior to such time as
the Borrower has owned and operated a parcel of Real Estate for four (4) full
fiscal quarters, the Operating Cash
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Flow with respect to such parcel of Real Estate for the number of full fiscal
quarters which the Borrower has owned and operated such parcel of Real Estate
as annualized shall be utilized. For the purpose of calculating Consolidated
Operating Cash Flow under this Section 9.3 for any parcel of Real Estate, the
Operating Cash Flow Rental Adjustment shall be applied to any parcel of Real
Estate affected by any of the events described in the definition of Operating
Cash Flow Rental Adjustment.
U9.4.Consolidated Tangible Net WorthThe Borrower will not permit its
Consolidated Tangible Net Worth to be less than $100,000,000.00 plus
seventy-five percent (75%) of any Net Offering Proceeds received by the
Borrower or the Guarantor after the date of this Agreement.
U9.5.Mortgaged Property Operating Cash FlowThe Borrower will not permit the
sum of (a) the quotient obtained by dividing the combined Operating Cash Flow
with respect to the Mortgaged Properties for the period covered by the four (4)
previous consecutive fiscal quarters (treated as a single accounting period) by
1.5, to be less than the Pro Forma Debt Service Charges for such period,
provided that for purposes of determining compliance with this covenant prior
to such time as the Borrower has owned and operated a Mortgaged Property for
four (4) full fiscal quarters, the Operating Cash Flow with respect to such
Mortgaged Property for the number of full fiscal quarters which the Borrower
has owned and operated such Mortgaged Property as annualized shall be utilized.
For the purpose of calculating Operating Cash Flow under this Section 9.5 for
any Mortgaged Property, the Operating Cash Flow Rental Adjustment shall be
applied to any Mortgaged Property affected by any of the events described in
the definition of Operating Cash Flow Rental Adjustment.
U10.CLOSING CONDITIONS Pursuant to the Prior Credit Agreement, the Borrower
executed and delivered various documents to the Agent as a condition to the
obligations of the Agent and BankBoston to make the initial Loans under the
Prior Credit Agreement. Except to the extent expressly amended and replaced as
provided in this Section 10, all such documents shall remain in full force and
effect, and none of such documents is superseded by the provisions of this
Section 10 or any other provision of its Agreement. The obligation of the
Agent and the Banks to increase the Total Commitment to $160,000,000.00 and to
make further Loans to the Borrower or participate in further Letters of Credit
for the benefit of the Borrower is subject to the satisfaction of the following
conditions precedent:
U10.1.Loan DocumentsThe Borrower, the Guarantor and the REMIC Subsidiary shall
have duly executed and delivered to the Agent, except that each Bank shall have
received a fully executed counterpart of its Note, each of the Loan Documents
to which such Person is a party, each of which shall be in full force and
effect and shall be in form and substance satisfactory to the Majority Banks,
including, without limitation, the following:
(a) Agreement. Two (2) duly executed copies of this
Agreement.
(b) Indemnity Agreement. One (1) duly executed copy of
the Indemnity Agreement.
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(c) Guaranty. One (1) duly executed copy of the
Guaranty, the REMIC Subsidiary Guaranty (Revolver) and the Contribution
Agreement (Revolver).
(d) Amendments to Security Deeds and Assignments of
Rents. One (1) duly executed copy of an Amendment to each Security Deed and
Assignment of Rents executed and delivered in connection with the Prior Credit
Agreement.
(e) Eligible Real Estate Qualification Documents. All
Eligible Real Estate Qualification Documents with respect to each parcel of
Mortgaged Property to be included in the Collateral as of the date of this
Agreement, including, without limitation, the Real Estate to be acquired
pursuant to the Purchase Agreement.
U10.2.ResolutionsAll action on the part of the Borrower, the Guarantor, or any
of their respective Subsidiaries as applicable, necessary for the valid
execution, delivery and performance by such Person of this Agreement and the
other Loan Documents to which such Person is or is to become a party shall have
been duly and effectively taken, and evidence thereof satisfactory to the Agent
shall have been provided to the Agent. The Agent shall have received from the
Guarantor true copies of the resolutions adopted by its board of directors
authorizing the transactions described herein, certified by its secretary as of
a recent date to be true and complete.
U10.3.Incumbency Certificate; Authorized SignersThe Agent shall have received
incumbency certificates, dated as of the date of this Agreement, signed by a
duly authorized officer of the Guarantor (with respect to the Borrower and the
Guarantor) and an authorized representative of the REMIC Subsidiary and giving
the name and bearing a specimen signature of each individual who shall be
authorized to sign, in the name and on behalf of such Person, each of the Loan
Documents to which such Person is or is to become a party. The Agent shall
have also received from the Borrower a certificate, dated as of the date of
this Agreement, signed by a duly authorized officer of the Borrower and giving
the name and specimen signature of each individual who shall be authorized to
make Loan and Conversion Requests and to give notices and to take other action
on behalf of the Borrower under the Loan Documents.
U10.4.Opinion of CounselThe Agent shall have received a favorable opinion
addressed to the Banks and the Agent and dated as of the date of this
Agreement, in form and substance satisfactory to the Banks and the Agent, from
counsel of the Borrower, the Guarantor and the REMIC Subsidiary as to such
matters as the Agent shall reasonably request.
U10.5.Performance; No DefaultThe Borrower and the Guarantor shall have
performed and complied with all terms and conditions herein required to be
performed or complied with by it on or prior to the Closing Date, and on the
Closing Date there shall exist no Default or Event of Default.
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U10.6.Representations and WarrantiesThe representations and warranties made by
the Borrower and the Guarantor in the Loan Documents or otherwise made by or on
behalf of the Borrower, the Guarantor or any of their respective Subsidiaries
in connection therewith or after the date thereof shall have been true and
correct in all material respects when made and shall also be true and correct
in all material respects on the Closing Date.
U10.7.Proceedings and DocumentsAll proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be reasonably satisfactory to the Agent and the Agent's Special Counsel in form
and substance, and the Agent shall have received all information and such
counterpart originals or certified copies of such documents and such other
certificates, opinions or documents as the Agent and the Agent's Special
Counsel may reasonably require.
U10.8.Compliance CertificateA Compliance Certificate dated as of the date of
this Agreement demonstrating compliance with each of the covenants calculated
therein as of the most recent fiscal quarter end for which the Borrower and the
Guarantor has provided financial statements under Section 6.4 adjusted in the
best good faith estimate of the Borrower or the Guarantor, as applicable, shall
have been delivered to the Agent.
U10.9.Stockholder and Partner ConsentsThe Agent shall have received evidence
satisfactory to the Agent that all necessary stockholder and partner consents
required in connection with the consummation of the transactions contemplated
by this Agreement and the other Loan Documents have been obtained.
U10.10.Other DocumentsTo the extent requested by the Majority Banks, the
Majority Banks shall have received executed copies of all material agreements
of any nature whatsoever to which the Borrower, the Guarantor or any Subsidiary
is a party affecting or relating to the use, operation, development,
construction or management of the Mortgaged Property.
U10.11.No Condemnation/TakingThe Agent shall have received written
confirmation from the Borrower that no condemnation proceedings are pending or
to the Borrower's knowledge threatened against any Mortgaged Property or, if
any such proceedings are pending or threatened, identifying the same and the
Real Estate affected thereby and the Agent shall have determined that none of
such proceedings is or will be material to the Mortgaged Property affected
thereby.
U10.12.Principal DocumentsOn the date of this Agreement: (i) the Agent shall
have received executed or conformed copies of the Master Agreement and each of
the Ramco Agreements and RPS Contribution Agreements and any amendments
thereto; (ii) the Principal Documents shall be in full force and effect and no
material term or condition thereof shall have been amended, modified or waived
after the execution thereof, except with the prior written consent of the
Agent; (iii) none of the parties to the Principal Documents shall have failed
to perform any material obligation or covenant required by the Principal
Documents to be performed or complied with by it on or before the date of this
Agreement; and (iv) the Agent shall have received a
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certificate from the chief executive or chief financial officer of the general
partner of the Borrower to the effect set forth in clauses (i), (ii) and (iii)
above.
U10.13.Title Insurance UpdatesThe Agent shall have received a "date down"
endorsement to each Title Policy with respect to each Mortgaged Property and,
to the extent available, new tie-in endorsements with respect to all of the
Title Policies for the aggregate Commitment of $160,000,000.00.
U10.14.Payment of FeesThe Borrower shall have paid to the Agent the fees
required by Section 4.2.
U10.15.InsuranceThe Agent shall have received duplicate originals or certified
copies of all policies of insurance required by this Agreement.
U10.16.Maintenance of Interest Rate CollarThe Borrower shall have taken all
actions necessary to maintain in full force and effect the agreement providing
for an interest rate collar with respect to the loans under the Prior Credit
Agreement (with such amendments and modifications thereof as may be necessary
to ensure the applicability of such agreement to not less than $75,000,000 of
the principal amount of the Notes and Loans hereunder) (the "Interest Collar").
The term of the Interest Collar shall not expire before the Maturity Date. The
Interest Collar shall be provided by any Bank which is a party to this
Agreement or a bank or other financial institution that has unsecured,
uninsured and unguaranteed long-term debt which is rated at least A-3 by
Moody's Investor Service, Inc. or at least A- by Standard & Poor Corporation.
The Borrower shall deliver to the Agent such documents or other information as
the Agent may require to evidence compliance with this Section 10.16.
U10.17.Purchase AgreementThe transactions contemplated by the Purchase
Agreement shall have closed in accordance with the provisions of the Purchase
Agreement.
U10.18.OtherThe Agent shall have reviewed such other documents, instruments,
certificates opinions, assurances, consents and approvals as the Agent or the
Agent's Special Counsel may reasonably have requested.
U11.CONDITIONS TO ALL BORROWINGS The obligations of the Banks to make
any Loan or to participate in any Letter of Credit, whether on or after the
date of this Agreement, shall also be subject to the satisfaction of the
following conditions precedent:
U11.1.Prior Conditions SatisfiedAll conditions set forth in Section 10 shall
continue to be satisfied as of the date upon which any Loan is to be made or
any Letter of Credit to be issued.
U11.2.Representations True; No DefaultEach of the representations and
warranties made by or on behalf of the Borrower, the Guarantor or any of their
respective Subsidiaries contained in this Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in connection with
this Agreement shall be true as of the date as of which they were made and
shall also be true at and as of the time of the making of such Loan or the
issuance of such Letter
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of Credit, as applicable, with the same effect as if made at and as of that
time (except to the extent of changes resulting from transactions contemplated
or permitted by this Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the aggregate
are not materially adverse, and except to the extent that such representations
and warranties relate expressly to an earlier date) and no Default or Event of
Default shall have occurred and be continuing. Each of the Banks shall have
received a certificate of the Borrower and the Guarantor signed by an
authorized officer of the Borrower and the Guarantor to such effect.
U11.3.No Legal ImpedimentThere shall be no law or regulations thereunder or
interpretations thereof that in the reasonable opinion of any Bank would make
it illegal for such Bank to make such Loan or to participate in such Letter of
Credit.
U11.4.Governmental RegulationEach Bank shall have received such statements in
substance and form reasonably satisfactory to such Bank as such Bank shall
require for the purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the Federal Reserve
System.
U11.5.Proceedings and DocumentsAll proceedings in connection with the Loan or
the Letter of Credit, as applicable, shall be satisfactory in substance and in
form to the Majority Banks, and the Majority Banks shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Majority Banks may reasonably request.
U11.6.Borrowing DocumentsIn the case of any request for a Loan and/or a Letter
of Credit, as applicable, the Agent shall have received the request for a Loan
required by Section 2.5 in the form of Exhibit B hereto, fully completed and/or
the Letter of Credit Application required by Section 2.7 in the form of Exhibit
D hereto fully completed.
U11.7.Endorsement to Title PolicyAt such time as the Agent shall determine in
its discretion, to the extent available under applicable law, a "date down"
endorsement to each Title Policy indicating no change in the state of title and
containing no survey exceptions not approved by the Majority Banks, which
endorsement shall, expressly or by virtue of a proper "revolving credit" clause
or endorsement in the Title Policy, increase the coverage of the Title Policy
to the aggregate amount of all Loans advanced and outstanding and all Letters
of Credit issued and outstanding on or before the effective date of such
endorsement (provided that the amount of coverage under an individual Title
Policy for an individual Mortgaged Property need not equal the aggregate amount
of all Loans), or if such endorsement is not available, such other evidence and
assurances as the Agent may reasonably require (which evidence may include,
without limitation, an affidavit from the Borrower stating that there have been
no changes in title from the date of the last effective date of the Title
Policy).
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U11.8.Future Advances Tax PaymentThe Borrower will pay to the Agent any
mortgage, recording, intangible, documentary stamp or other similar taxes and
charges which the Agent reasonably determines to be payable as a result of such
Loan to any state or any county or municipality thereof in which any of the
Mortgaged Properties are located and deliver to the Agent such affidavits or
other information which the Agent reasonably determines to be necessary in
connection with the payment of such tax, in order to insure that the Security
Deeds on Mortgaged Property located in such state secure the Borrower's
obligation with respect to the Loans then being requested by the Borrower. The
provisions of this Section 11.8 shall be without limitation of the Borrower's
obligations under other provisions of the Loan Documents, including, without
limitation, Section 15 hereof.
U12.EVENTS OF DEFAULT; ACCELERATION; ETC U12.1.Events of Default and
AccelerationIf any of the following events ("Events of Default" or, if the
giving of notice or the lapse of time or both is required, then, prior to such
notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Loans after the same shall become due and payable, whether at the stated date
of maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the
Loans, any reimbursement obligations with respect to the Letters of Credit or
any other fees or sums due hereunder or under any of the other Loan Documents,
within ten (10) days after the same shall become due and payable, whether at
the stated date of maturity or any accelerated date of maturity or at any other
date fixed for payment;
(c) the Borrower or the Guarantor shall fail to comply
with any covenant contained in Section 9, and such failure shall continue for
thirty (30) days after written notice thereof shall have been given to the
Borrower by the Agent; provided, however, that no such cure period shall be
available for a failure to comply with Section 9.5 to the extent that such
Default relates to an event described in Section 12.1(s);
(d) the Borrower or the Guarantor or any of its
Subsidiaries shall fail to perform any other material term, covenant or
agreement contained herein or in any of the other Loan Documents (other than
those specified above in this Section 12), and such failure shall continue for
thirty (30) days after written notice thereof shall have been given to the
Borrower by the Agent; provided, however, that in the event that such failure
shall be a failure to comply with the terms of Section 8.7(a), the Borrower
shall be afforded a period of one (1) fiscal quarter to cure such failure
provided that the Distribution which caused such failure was historically
consistent with prior dividends;
(e) any representation or warranty made by or on behalf
of the Borrower, the Guarantor or any of their respective Subsidiaries in this
Agreement or any other Loan Document, or in any report, certificate, financial
statement, request for a Loan, or in any other document or
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instrument delivered pursuant to or in connection with this Agreement, any
advance of a Loan or any of the other Loan Documents shall prove to have been
false in any material respect upon the date when made or deemed to have been
made or repeated;
(f) the Borrower, the Guarantor or any of their
respective Subsidiaries shall fail to pay at maturity, or within any applicable
period of grace, any obligation for borrowed money or credit received or other
Indebtedness, or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing any such borrowed money or credit received or other Indebtedness for
such period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof; provided that the events
described in this Section 12.1(f) shall not constitute an Event of Default
unless such failure to perform, together with other failures to perform as
described in this Section 12.1(f), involve singly or in the aggregate
obligations for borrowed money or credit received totaling in excess of
$5,000,000.00;
(g) the Borrower, the Guarantor or any of their
respective Subsidiaries, (i) shall make an assignment for the benefit of
creditors, or admit in writing its general inability to pay or generally fail
to pay its debts as they mature or become due, or shall petition or apply for
the appointment of a trustee or other custodian, liquidator or receiver of any
such Person or of any substantial part of the assets of any thereof, (ii) shall
commence any case or other proceeding relating to any such Person under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter
in effect, or (iii) shall take any action to authorize or in furtherance of any
of the foregoing;
(h) a petition or application shall be filed for the
appointment of a trustee or other custodian, liquidator or receiver of any of
the Borrower, the Guarantor or any of their respective Subsidiaries or any
substantial part of the assets of any thereof, or a case or other proceeding
shall be commenced against any such Person under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, and
any such Person shall indicate its approval thereof, consent thereto or
acquiescence therein or such petition, application, case or proceeding shall
not have been dismissed within sixty (60) days following the filing or
commencement thereof;
(i) a decree or order is entered appointing any trustee,
custodian, liquidator or receiver or adjudicating any of the Borrower, the
Guarantor or any of their respective Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or order
for relief is entered in respect of any such Person in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;
(j) there shall remain in force, undischarged,
unsatisfied and unstayed, for more than (60) days, whether or not consecutive,
any uninsured final judgment against any of the Borrower, the Guarantor or any
of their respective Subsidiaries that, with other outstanding uninsured final
judgments, undischarged, against such Persons exceeds in the aggregate
$1,000,000.00;
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(k) any of the Loan Documents shall be canceled,
terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Banks, or any action at law, suit in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower, the Guarantor, any of their respective Subsidiaries or
any of their respective holders of Voting Interests, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction shall
make a determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(l) any dissolution, termination, partial or complete
liquidation, merger or consolidation of the Borrower or the Guarantor or any of
their respective Subsidiaries or any sale, transfer or other disposition of the
assets of the Borrower or any of its Subsidiaries other than as permitted under
the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the
Borrower, the Guarantor or any of their respective Subsidiaries or any of the
Mortgaged Properties which in the good faith business judgment of the Majority
Banks after giving consideration to the likelihood of success of such suit or
proceeding and the availability of insurance to cover any judgment with respect
thereto and based on the information available to them if adversely determined,
would have a materially adverse effect on the ability of the Borrower, the
Guarantor or any of their respective Subsidiaries to perform each and every one
of its obligations under and by virtue of the Loan Documents and such suit or
proceeding is not dismissed within sixty (60) days following the filing or
commencement thereof;
(n) the Borrower shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any assets of such Person,
including the Mortgaged Property;
(o) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could be
expected to result in liability of the Borrower, the Guarantor or any of their
respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $1,000,000 and such event in the circumstances
occurring reasonably could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan; or a trustee shall have been appointed by the United States District
Court to administer such Plan or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
(p) without the prior written approval of the Agent, Joel
Gershenson, Dennis Gershenson, Richard Gershenson, Bruce Gershenson and Michael
Ward, their family members or estate planning trusts established for their
benefit, shall in the aggregate own, directly or indirectly, less than five
percent (5%) of the issued and outstanding partnership interests or shares of
the Borrower and the Guarantor on a Consolidated basis;
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(q) either of the Chairman or Chief Executive Officer of
the Borrower approved by the Majority Banks as of the date of this Agreement
shall cease to be the Chairman or Chief Executive Officer, as applicable, of
the Borrower and a competent and experienced successor for such Person shall
not be approved by the Agent within six (6) months of such event, such approval
not to be unreasonably withheld;
(r) any Event of Default, as defined in any of the other
Loan Documents, shall occur;
(s) the Borrower shall fail to comply with the covenant
contained in Section 9.5 solely as a result of the loss of an anchor tenant
from a single Mortgaged Property and the Borrower shall not be in compliance
with such covenant within sixty (60) days of the occurrence of such event (it
being agreed that during such sixty (60) day period, a Default shall not have
occurred hereunder, but an Event Default shall immediately occur thereafter if
such failure is not corrected within such sixty (60) day period); provided that
during such sixty (60) day period the Bank shall have no obligation to advance
proceeds of the Loan or to issue Letters of Credit; or
(t) any "Event of Default" (as defined in the Unsecured
Term Loan Agreement) shall occur;
then, and in any such event, the Agent may, and upon the request of the
Majority Banks shall, by notice in writing to the Borrower (i) declare all
amounts owing with respect to this Agreement, the Notes, the Letters of Credit
and the other Loan Documents to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower
and (ii) require the Borrower to immediately cash collateralize all outstanding
Letters of Credit or obtain replacement letters of credit for such Letters of
Credit, all in a manner satisfactory to the Majority Banks; provided that in
the event of any Event of Default specified in Section 12.l(g), Section 12.1(h)
or Section 12.1(i), all such amounts shall become immediately due and payable
automatically and the Borrower shall be required to immediately so cash
collateralize or replace all outstanding Letters of Credit forthwith, without
any requirement of notice from any of the Banks or the Agent.
U12.2.Limitation of Cure PeriodsNotwithstanding the provisions of subsections
(b), (c) and (d) of Section 12.1, the cure periods provided therein shall not
be allowed and the occurrence of a Default thereunder immediately shall
constitute an Event of Default for all purposes of this Agreement and the other
Loan Documents if, within the period of twelve (12) months immediately
preceding the occurrence of such Default, there shall have occurred two periods
of cure or portions thereof under any one or more than one of said subsections.
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U12.3.Certain Cure Periods
(a) In the event that there shall occur any Default under
Section 12.1(c), then within five (5) Business Days after receipt of notice of
such Default from the Agent or the Majority Banks the Borrower may elect to
cure such Default by providing additional Collateral consisting of Potential
Collateral, and/or to reduce the outstanding Loans to it, in which event such
actions shall be completed not later than fifteen (15) days following the date
on which the Borrower is notified that the Majority Banks have approved the
Borrower's proposed actions (or thirty (30) days in the event that the Borrower
intends to provide additional Mortgaged Property). The Borrower's notice of
its election pursuant to the preceding sentence shall be delivered to the Agent
within the period of five (5) Business Days provided above. Within five (5)
Business Days after receipt of such advice, the Majority Banks shall advise the
Borrower as to whether in their good faith judgment the actions proposed by the
Borrower are sufficient to cure such Default without the creation of any other
Default hereunder. In the event that the Majority Banks determine the
Borrower's proposal is insufficient to cure such Default or is otherwise not
in accordance with the terms of this Agreement, the Borrower within an
additional three (3) Business Days after such negative notice may submit to the
Agent an alternative plan or evidence establishing that the Borrower's original
election was sufficient. In the event that within the times provided herein
the Borrower shall have failed to provide evidence satisfactory to the Majority
Banks that the Borrower's proposed actions are sufficient to cure such Default
in accordance with the terms hereof, the cure period shall terminate and such
Default immediately shall constitute an Event of Default.
(b) In the event that the Borrower shall elect in whole
or in part under Section 12.3(a) to provide additional Mortgaged Property, (i)
the Real Estate to be added to the Collateral shall be Eligible Real Estate and
on or prior to the expiration of the 30-day period each of the Eligible Real
Estate Qualification Documents shall have been completed at the Borrower's
expense and provided to the Agent for the benefit of the Banks, and (ii) the
Borrower, in addition to any other amounts payable under this Agreement, shall
pay to the Agent within fifteen (15) days following the commencement of such
30-day period a review fee in the amount of $10,000.00, which fee shall be
nonrefundable under any circumstances, to be split equally by the Banks without
regard to their respective Commitment Percentages.
U12.4.Termination of CommitmentsIf any one or more Events of Default specified
in Section 12.1(g), Section 12.1(h) or Section 12.1(i) shall occur, then
immediately and without any action on the part of the Agent or any Bank any
unused portion of the credit hereunder shall terminate and the Banks shall be
relieved of all obligations to make Loans to the Borrower or to participate in
Letters of Credit for the account of the Borrower. If any other Event of
Default shall have occurred, the Agent, upon the election of the Majority
Banks, may by notice to the Borrower terminate the obligation to make Loans to
the Borrower or to participate in Letters of Credit for the account of the
Borrower. No termination under this Section 12.4 shall relieve the Borrower of
its obligations to the Banks arising under this Agreement or the other Loan
Documents.
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U12.5.RemediesIn case any one or more of the Events of Default shall have
occurred and be continuing, and whether or not the Banks shall have accelerated
the maturity of the Loans pursuant to Section 12.1, the Agent on behalf of the
Banks may, with the consent of the Majority Banks but not otherwise, proceed to
protect and enforce their rights and remedies under this Agreement, the Notes,
the Letters of Credit or any of the other Loan Documents by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations are
evidenced, including to the full extent permitted by applicable law the
obtaining of the ex parte appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right. No remedy herein conferred upon
the Agent or the holder of any Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law. In the event that all or
any portion of the Obligations is collected by or through an attorney-at-law,
the Borrower shall pay all costs of collection including, but not limited to,
reasonable attorneys' fees.
U12.6.Distribution of Collateral ProceedsIn the event that, following the
occurrence or during the continuance of any Event of Default, any monies are
received in connection with the enforcement of any of the Security Documents,
or otherwise with respect to the realization upon any of the Collateral, such
monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or sustained
by the Agent to protect or preserve the collateral or in connection with the
collection of such monies by the Agent, for the exercise, protection or
enforcement by the Agent of all or any of the rights, remedies, powers and
privileges of the Agent under this Agreement or any of the other Loan Documents
or in respect of the Collateral or in support of any provision of adequate
indemnity to the Agent against any taxes or liens which by law shall have, or
may have, priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Majority Banks shall determine; provided, however, that (i)
distributions in respect of such Obligations shall be made pari passu among
Obligations with respect to the Agent's fee payable pursuant to Section 4.3 and
all other Obligations, (ii) in the event that any Bank shall have wrongfully
failed or refused to make an advance under Section 2.6 or Section 2.7(f) and
such failure or refusal shall be continuing, advances made by other Banks
during the pendency of such failure or refusal shall be entitled to be repaid
as to principal and accrued interest in priority to the other Obligations
described in this subsection (b), (iii) Obligations owing to the Banks with
respect to each type of Obligation such as interest, principal, fees and
expenses, shall be made among the Banks pro rata, and (iv) amounts received or
realized from the Borrower shall be applied against the Obligations of the
Borrower; and provided, further that the Majority Banks may in their discretion
make proper allowance to take into account any Obligations not then due and
payable; and
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(c) Third, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
U13.SETOFF Regardless of the adequacy of any collateral, during the
continuance of any Event of Default, any deposits (general or specific, time or
demand, provisional or final, regardless of currency, maturity, or the branch
of where such deposits are held) or other sums credited by or due from any of
the Banks to the Borrower or the Guarantor and any securities or other property
of the Borrower or the Guarantor in the possession of such Bank may be applied
to or set off against the payment of Obligations of such Person and any and all
other liabilities, direct, or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, of such Person to such Bank.
Each of the Banks agrees with each other Bank that if such Bank shall receive
from the Borrower or the Guarantor, whether by voluntary payment, exercise of
the right of setoff, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Bank any amount in excess of its ratable portion
of the payments received by all of the Banks with respect to the Notes held by
all of the Banks, such Bank will make such disposition and arrangements with
the other Banks with respect to such excess, either by way of distribution, pro
tanto assignment of claims, subrogation or otherwise as shall result in each
Bank receiving in respect of the Notes held by it its proportionate payment as
contemplated by this Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
U14.THE AGENT U14.1.AuthorizationThe Agent is authorized to take such action
on behalf of each of the Banks and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents delegated
to the Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by the Agent. The obligations of
the Agent hereunder are primarily administrative in nature, and nothing
contained in this Agreement or any of the other Loan Documents shall be
construed to constitute the Agent as a trustee for any Bank or to create a
fiduciary relationship. The Borrower and any other Person shall be entitled to
conclusively rely on a statement from the Agent that it has the authority to
act for and bind the Banks pursuant to this Agreement and the other Loan
Documents.
U14.2.Employees and AgentsThe Agent may exercise its powers and execute its
duties by or through employees or agents and shall be entitled to take, and to
rely on, advice of counsel concerning all matters pertaining to its rights and
duties under this Agreement and the other Loan Documents. The Agent may
utilize the services of such Persons as the Agent may reasonably determine, and
all reasonable fees and expenses of any such Persons shall be paid by the
Borrower.
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U14.3.No LiabilityNeither the Agent nor any of its shareholders, directors,
officers or employees nor any other Person assisting them in their duties nor
any agent, or employee thereof, shall be liable to any of the Banks for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Agent or such
other Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
U14.4.No RepresentationsThe Agent shall not be responsible for the execution
or validity or enforceability of this Agreement, the Notes, any of the other
Loan Documents or any instrument at any time constituting, or intended to
constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of
any such amounts owing with respect to the Notes, or for any recitals or
statements, warranties or representations made herein or in any of the other
Loan Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrower, the Guarantor or any of their respective
Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or
in any other of the Loan Documents. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to it by the Borrower,
the Guarantor or any holder of any of the Notes shall have been duly authorized
or is true, accurate and complete. The Agent has not made nor does it now make
any representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the creditworthiness or financial
condition of the Borrower, the Guarantor or any of their respective
Subsidiaries or the value of the Collateral or any of the assets of the
Borrower, the Guarantor or their respective Subsidiaries. Each Bank
acknowledges that it has, independently and without reliance upon the Agent or
any other Bank, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, based upon such information and
documents as it deems appropriate at the time, continue to make its own credit
analysis and decisions in taking or not taking action under this Agreement and
the other Loan Documents.
U14.5.Payments
(a) A payment by the Borrower or the Guarantor to the
Agent hereunder or under any of the other Loan Documents for the account of any
Bank shall constitute a payment to such Bank. The Agent agrees to distribute
to each Bank not later than one Business Day after the Agent's receipt of good
funds, determined in accordance with the Agent's customary practices, such
Bank's pro rata share of payments received by the Agent for the account of the
Banks except as otherwise expressly provided herein or in any of the other Loan
Documents. In the event the Agent fails to distribute such amounts within one
Business Day as provided above, the Agent shall pay interest on such amount at
a rate per annum equal to the Federal Funds Effective Rate from time to time in
effect.
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(b) If in the opinion of the Agent the distribution of
any amount received by it in such capacity hereunder, under the Notes or under
any of the other Loan Documents might involve it in liability, it may refrain
from making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such distribution shall have
been made shall either repay to the Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court. In the event that the Agent
shall refrain from making any distribution of any amount received by it as
provided in this Section 14.5(b), the Agent shall endeavor to hold such amounts
in an interest bearing account and at such time as such amounts may be
distributed to the Banks, the Agent shall distribute to each Bank, based on
their respective Commitment Percentages, its pro rata share of the interest or
other earnings from such deposited amount.
(c) Notwithstanding anything to the contrary contained in
this Agreement or any of the other Loan Documents, any Bank that fails (i) to
make available to the Agent its pro rata share of any Loan or (ii) to comply
with the provisions of Section 13 with respect to making dispositions and
arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Banks, in each case as, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a "Delinquent Bank") and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A Delinquent Bank shall be deemed
to have assigned any and all payments due to it from the Borrower, whether on
account of outstanding Loans, interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction of, their respective pro
rata shares of all outstanding Loans. The Delinquent Bank hereby authorizes
the Agent to distribute such payments to the nondelinquent Banks in proportion
to their respective pro rata shares of all outstanding Loans. A Delinquent
Bank shall be deemed to have satisfied in full a delinquency when and if, as a
result of application of the assigned payments to all outstanding Loans of the
nondelinquent Banks or as a result of other payments by the Delinquent Banks to
the nondelinquent Banks, the Banks' respective pro rata shares of all
outstanding Loans have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
U14.6.Holders of NotesSubject to the terms of Article 18, the Agent may deem
and treat the payee of any Note as the absolute owner or purchaser thereof for
all purposes hereof until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder, assignee or transferee.
U14.7.IndemnityThe Banks ratably hereby agree to indemnify and hold harmless
the Agent from and against any and all claims, actions and suits (whether
groundless or otherwise), losses, damages, costs, expenses (including any
expenses for which the Agent has not been reimbursed by the Borrower as
required by Section 15), and liabilities of every nature and character arising
out of or related to this Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
the Agent's actions taken hereunder or
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thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
U14.8.Agent as BankIn its individual capacity, BankBoston shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes as
it would have were it not also the Agent.
U14.9.ResignationThe Agent may resign at any time by giving sixty (60) days'
prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint as a successor
Agent any Bank or any bank whose senior debt obligations are rated not less
than "A" or its equivalent by Moody's Investors Service, Inc. or not less than
"A" or its equivalent by Standard & Poor's Rating Group Inc. and which has a
net worth of not less than $500,000,000. Unless a Default or Event of Default
shall have occurred and be continuing, such successor Agent shall be reasonably
acceptable to the Borrower. If no successor Agent shall have been so appointed
by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent, which shall be
any Bank or a bank whose debt obligations are rated not less than "A" or its
equivalent by Moody's Investors Service, Inc. or not less than "A" or its
equivalent by Standard & Poor's Rating Group Inc. and which has a net worth of
not less than $500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder as Agent. After any retiring Agent's resignation, the
provisions of this Agreement and the other Loan Documents shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Agent.
U14.10.Duties in the Case of EnforcementIn case one or more Events of Default
have occurred and shall be continuing, and whether or not acceleration of the
Obligations shall have occurred, the Agent shall, if (a) so requested by the
Majority Banks and (b) the Banks have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent may
reasonably request, proceed to enforce the provisions of the Security Documents
authorizing the sale or other disposition of all or any part of the Collateral
and exercise all or any such other legal and equitable and other rights or
remedies as it may have in respect of such Collateral. The Majority Banks may
direct the Agent in writing as to the method and the extent of any such sale or
other disposition, the Banks hereby agreeing to indemnify and hold the Agent
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
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U14.11.Removal of AgentThe Majority Banks may remove the Agent from its
capacity as agent in the event of the Agent's willful misconduct or gross
negligence. Such removal shall be effective upon appointment and acceptance of
a successor agent selected by the Majority Banks. Any successor Agent must
satisfy the conditions set forth in Section 14.9. Upon the acceptance of any
appointment as agent hereunder by a successor agent, such successor agent shall
thereupon succeed to and become vested with all rights, powers, privileges and
duties of the removed Agent, and the removed Agent shall be discharged from all
further duties and obligations as Agent under this Agreement and the Loan
Documents (subject to the Agent's right to be indemnified as provided in the
Loan Documents); provided that the Agent shall remain liable to the extent
provided herein or in the Loan Documents for its acts or omissions occurring
prior to such removal or resignation. The Commitment Percentage of the Bank
which is acting as Agent shall not be taken into account in the calculation of
Majority Banks for the purposes of removing Agent in the event of the Agent's
willful misconduct or gross negligence.
U15.EXPENSES The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Agreement, the other Loan Documents and the
other agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Banks (other than taxes based upon the Agent's or any Bank's gross or net
income, except that the Agent and the Banks shall be entitled to
indemnification for any and all amounts paid by them in respect of taxes based
on income or other taxes assessed by any State in which Mortgaged Property or
other Collateral is located, such indemnification to be limited to taxes due
solely on account of the granting of Collateral under the Security Documents
and to be net of any credit allowed to the indemnified party from any other
State on account of the payment or incurrence of such tax by such indemnified
party), including any recording, mortgage, documentary or intangibles taxes in
connection with the Security Deeds and other Loan Documents, or other taxes
payable on or with respect to the transactions contemplated by this Agreement,
including any such taxes payable by the Agent or any of the Banks after the
Closing Date (the Borrower hereby agreeing to indemnify the Agent and each Bank
with respect thereto), (c) all title insurance premiums, appraisal fees,
engineer's fees, reasonable internal charges of the Agent (determined in good
faith and in accordance with the Agent's internal policies applicable generally
to its customers) for commercial finance exams and engineering and
environmental reviews and the reasonable fees, expenses and disbursements of
the counsel to the Agent and any local counsel to the Agent incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein (excluding, however, the
preparation of agreements evidencing participation granted under Section 18.4),
each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder, (d) the reasonable fees, expenses and
disbursements of the Agent incurred by the Agent in connection with the
preparation or interpretation of the Loan Documents and other instruments
mentioned herein, and the making of each advance hereunder, (e) all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent and the fees and costs of
appraisers, engineers, investment bankers or other experts retained by any Bank
or the Agent) incurred by any Bank or the Agent in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents
against the Borrower or the Guarantor or the administration thereof after the
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occurrence of a Default or Event of Default and (ii) any litigation, proceeding
or dispute whether arising hereunder or otherwise, in any way related to the
Agent's or any of the Bank's relationship with the Borrower or the Guarantor,
(f) all reasonable fees, expenses and disbursements of any Bank or the Agent
incurred in connection with UCC searches, UCC filings, title rundowns, title
searches or mortgage recordings, (g) all reasonable fees, expenses and
disbursements (including reasonable attorneys' fees and costs), which may be
incurred by BankBoston and the other Banks in connection with the execution and
delivery of this Agreement and the other Loan Documents, and (h) all reasonable
fees and expenses and disbursements (including reasonable attorneys' fees and
costs), not to exceed $5,000.00 in the aggregate, which may be incurred by
BankBoston in connection with each and every assignment of interests in the
Loans pursuant to Section 18.1. The covenants of this Section 15 shall survive
payment or satisfaction of payment of amounts owing with respect to the Notes.
U16.INDEMNIFICATION The Borrower and the Guarantor, jointly and
severally, agree to indemnify and hold harmless the Agent and the Banks and
each director, officer, employee, agent and Person who controls the Agent or
any Bank from and against any and all claims, actions and suits, whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of or relating
to this Agreement or any of the other Loan Documents or the transactions
contemplated hereby and thereby including, without limitation, (a) any leasing
fees and any brokerage, finders or similar fees asserted against any Person
indemnified under this Section 16 based upon any agreement, arrangement or
action made or taken, or alleged to have been made or taken, by the Borrower,
the Guarantor or any of their respective Subsidiaries, (b) any condition of the
Mortgaged Properties, (c) any actual or proposed use by the Borrower or the
Guarantor of the proceeds of any of the Loans, (d) any actual or alleged
infringement of any patent, copyright, trademark, service mark or similar right
of any of the Borrower, the Guarantor or any of their respective Subsidiaries
comprised in the Collateral, (e) the Borrower entering into or performing this
Agreement or any of the other Loan Documents, (f) any actual or alleged
violation of any law, ordinance, code, order, rule, regulation, approval,
consent, permit or license relating to the Mortgaged Property, or (g) with
respect to the Borrower, the Guarantor and their respective Subsidiaries and
their respective properties and assets, the violation of any Environmental Law,
the Release or threatened Release of any Hazardous Substances or any action,
suit, proceeding or investigation brought or threatened with respect to any
Hazardous Substances (including, but not limited to claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding; provided, however, that neither
the Borrower nor the Guarantor shall be obligated under this Section 16 to
indemnify any Person for liabilities arising from such Person's own gross
negligence or willful misconduct. In litigation, or the preparation therefor,
the Banks and the Agent shall be entitled to select a single nationally
recognized law firm as their own counsel and, in addition to the foregoing
indemnity, the Borrower and the Guarantor agree to pay promptly the reasonable
fees and expenses of such counsel. If, and to the extent that the obligations
of the Borrower and the Guarantor under this Section 16 are unenforceable for
any reason, the Borrower and the Guarantor hereby agree to make the maximum
contribution to the payment in satisfaction of such
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obligations which is permissible under applicable law. The provisions of this
Section 16 shall survive the repayment of the Loans and the termination of the
obligations of the Banks hereunder.
U17.SURVIVAL OF COVENANTS, ETC All covenants, agreements, representations
and warranties made herein, in the Notes, in any of the other Loan Documents or
in any documents or other papers delivered by or on behalf of the Borrower, the
Guarantor or any of their respective Subsidiaries pursuant hereto or thereto
shall be deemed to have been relied upon by the Banks and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of any of the Loans, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Agreement or the Notes or any of the other Loan Documents
remains outstanding or any Bank has any obligation to make any Loans. The
indemnification obligations of the Borrower and the Guarantor provided herein
and the other Loan Documents shall survive the full repayment of amounts due
and the termination of the obligations of the Banks hereunder and thereunder to
the extent provided herein and therein. All statements contained in any
certificate or other paper delivered to any Bank or the Agent at any time by or
on behalf of the Borrower, the Guarantor or any of their respective
Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by such
Person hereunder.
U18.ASSIGNMENT AND PARTICIPATION U18.1.Conditions to Assignment by BanksExcept
as provided herein, each Bank may assign to one or more banks or other entities
all or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment Percentage and Commitment and the
same portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent shall have given its prior written consent to such
assignment, which consent shall not be unreasonably withheld (provided that
such consent shall not be required for any assignment to another Bank, to a
bank which is under common control with the assigning Bank or to a wholly-owned
Subsidiary of such Bank provided that such assignee shall remain a wholly-owned
Subsidiary of such Bank), (b) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Bank's rights and obligations
under this Agreement, (c) the parties to such assignment shall execute and
deliver to the Agent, for recording in the Register (as hereinafter defined), a
notice of such assignment, together with any Notes subject to such assignment,
(d) in no event shall any voting, consent or approval rights of a Bank be
assigned to any Person controlling, controlled by or under common control with,
or which is not otherwise free from influence or control by, any of the
Borrower or the Guarantor, which rights shall instead be allocated pro rata
among the other remaining Banks, (e) such assignee shall have a net worth as of
the date of such assignment of not less than $500,000,000, (f) such assignee
shall acquire an interest in the Loans of not less than $10,000,000, (g) the
assignor shall assign its entire interest in the Loans or retain an interest in
the Loans of not less than $ 10,000,000 and (h) each such assignment shall be
subject to the approval of the Agent, which approval shall not be unreasonably
withheld. Upon such execution, delivery, acceptance and recording, of such
notice of assignment, (i) the assignee thereunder shall be a party hereto and
all other Loan Documents executed by the Banks and, to the extent provided in
such assignment, have the rights and obligations of a Bank hereunder, and (ii)
the assigning Bank shall, to the extent provided in such assignment and upon
payment to the Agent
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of the registration fee referred to in Section 18.2, be released from its
obligations under this Agreement. In connection with each assignment, the
assignee shall represent and warrant to the Agent, the assignor and each other
Bank as to whether such assignee is controlling, controlled by, under common
control with or is not otherwise free from influence or control by, the
Borrower or the Guarantor. In the event that, as of result of any such
assignment, the Agent in its capacity as a Bank retains an interest in the
Loans of less than $15,000,000 and such amount is less than the retained
interest of any other Bank, then the Agent shall offer to resign as Agent for
the Banks. Upon any such assignment, the Agent may unilaterally amend Schedule
1 to reflect any such assignment.
U18.2.RegisterThe Agent shall maintain a copy of each assignment delivered to
it and a register or similar list (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment Percentages of, and
principal amount of the Loans owing to the Banks from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and
the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,000.
U18.3.New NotesUpon its receipt of an assignment executed by the parties to
such assignment, together with each Note subject to such assignment, the Agent
shall (a) record the information contained therein in the Register, and (b)
give prompt notice thereof to the Borrower and the Banks (other than the
assigning Bank). Within five (5) Business Days after receipt of such notice,
the Borrower, at its own expense, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the order of such assignee in
an amount equal to the amount assumed by such assignee pursuant to such
assignment and, if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Bank in an
amount equal to the amount retained by it hereunder and shall cause the
Guarantor to deliver to the Agent an acknowledgment in form and substance
satisfactory to the Agent to the effect that the Guaranty extends to and is
applicable to each new Note. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such assignment and shall otherwise be in
substantially the form of the assigned Notes. The surrendered Notes shall be
canceled and returned to the Borrower.
U18.4.ParticipationsEach Bank may sell participations to one or more banks or
other entities in all or a portion of such Bank's rights and obligations under
this Agreement and the other Loan Documents; provided that (a) any such sale or
participation shall not affect the rights and duties of the selling Bank
hereunder to the Borrower, (b) such participation shall not entitle such
participant to any rights or privileges under this Agreement or any Loan
Documents, including without limitation, the right to approve waivers,
amendments or modifications, (c) such participant shall have no direct rights
against the Borrower or the Guarantor except the rights granted to the Banks
pursuant to Section 13, (d) such sale is effected in accordance with all
applicable
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laws, and (e) such participant shall not be a Person controlling, controlled by
or under common control with, or which is not otherwise free from influence or
control by the Borrower or the Guarantor. Any Bank which sells a participation
shall promptly notify the Agent of such sale and the identity of the purchaser
of such interest.
U18.5.Pledge by BankAny Bank may at any time pledge all or any portion of its
interest and rights under this Agreement (including all or any portion of its
Note) to any of the twelve Federal Reserve Banks organized under Section 4 of
the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or the
enforcement thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents.
U18.6.No Assignment by Borrower or GuarantorNeither the Borrower nor the
Guarantor shall assign or transfer any of its rights or obligations under any
of the Loan Documents without the prior written consent of each of the Banks.
U18.7.DisclosureThe Borrower and the Guarantor each agrees that in addition to
disclosures made in accordance with standard banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
U18.8.Amendments to Loan DocumentsUpon any such assignment or participation,
the Borrower and the Guarantor shall, upon the request of the Agent, enter into
such documents as may be reasonably required by the Agent to modify the Loan
Documents to reflect such assignment or participation.
U19.NOTICES Each notice, demand, election or request provided for or
permitted to be given pursuant to this Agreement (hereinafter in this Section
19 referred to as "Notice"), but specifically excluding to the maximum extent
permitted by law any notices of the institution or commencement of foreclosure
proceedings, must be in writing and shall be deemed to have been properly given
or served by personal delivery or by sending same by overnight courier or by
depositing same in the United States Mail, postpaid and registered or
certified, return receipt requested, or as expressly permitted herein, by
telegraph, telecopy, telefax or telex, and addressed as follows:
If to the Agent or BankBoston:
BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
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<PAGE> 105
With a copy to:
BankBoston, N.A.
115 Perimeter Center Place, NE
Suite 500
Atlanta, Georgia 30346
Attn: Daniel L. Silbert
Telecopy No. (770) 390-8434
and to:
Long Aldridge & Norman LLP
5300 SunTrust Plaza
303 Peachtree Street
Atlanta, Georgia 30308
Attn: William F. Timmons, Esq.
Telecopy No. (404) 527-4198
If to the Borrower or the Guarantor:
Ramco-Gershenson Properties, L.P.
Ramco-Gershenson Properties Trust
27600 Northwestern Highway
Southfield, Michigan 48034
Attn: Chief Executive Officer
Telecopy No. (248) 350-9925
With a copy to:
Honigman Miller Schwartz & Cohn
2290 First National Building
Detroit, MI 48226
Attn: Alan M. Hurvitz, Esq.
Telecopy No. (313) 962-0176
and to each other Bank which may hereafter become a party to this Agreement at
such address as may be designated by such Bank. Each Notice shall be effective
upon being personally delivered or upon being sent by overnight courier or upon
being deposited in the United States Mail as aforesaid. The time period in
which a response to such Notice must be given or any action taken with respect
thereto (if any), however, shall commence to run from the date of receipt if
personally delivered or sent by overnight courier, or if so deposited in the
United States Mail, the earlier of three (3) Business Days following such
deposit or the date of receipt as disclosed on the return receipt. Rejection
or other refusal to accept or the inability to deliver because of changed
address for which no notice was given shall be deemed to be receipt of the
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<PAGE> 106
Notice sent. By giving at least fifteen (15) days prior Notice thereof, the
Borrower, a Bank or Agent shall have the right from time to time and at any
time during the term of this Agreement to change their respective addresses and
each shall have the right to specify as its address any other address within
the United States of America.
U20.RELATIONSHIP Neither the Agent nor any Bank has any fiduciary
relationship with or fiduciary duty to the Borrower, the Guarantor or their
respective Subsidiaries arising out of or in connection with this Agreement or
the other Loan Documents or the transactions contemplated hereunder and
thereunder, and the relationship between each Bank and the Borrower is solely
that of a lender and borrower, and nothing contained herein or in any of the
other Loan Documents shall in any manner be construed as making the parties
hereto partners, joint venturers or any other relationship other than lender
and borrower.
U21.GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE THIS AGREEMENT AND
EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF MICHIGAN AND SHALL FOR
ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH
STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE
BORROWER AND THE GUARANTOR EACH AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS
OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR THE GUARANTOR BY MAIL
AT THE ADDRESS SPECIFIED IN Section 19. THE BORROWER AND THE GUARANTOR EACH
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
U24.HEADINGS The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
U23.COUNTERPARTS This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
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<PAGE> 107
U24.ENTIRE AGREEMENT, ETC The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding
of the parties with respect to the transactions contemplated hereby. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in Section 27.
U25.WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS EACH OF THE
BORROWER, THE GUARANTOR, THE AGENT AND THE BANKS HEREBY WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE
BORROWER AND THE GUARANTOR EACH HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. THE BORROWER AND THE GUARANTOR EACH (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS Section 25.
U26.DEALINGS WITH THE BORROWER OR THE GUARANTOR The Banks and their
affiliates may accept deposits from, extend credit to and generally engage in
any kind of banking, trust or other business with the Borrower, the Guarantor,
their respective Subsidiaries or any of their affiliates regardless of the
capacity of the Bank hereunder.
U27.CONSENTS, AMENDMENTS, WAIVERS, ETC Except as otherwise expressly
provided in this Agreement, any consent or approval required or permitted by
this Agreement may be given and any term of this Agreement or of any other
instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower or the Guarantor of any terms of this
Agreement or such other instrument or the continuance of any Default or Event
of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Majority Banks. Notwithstanding the foregoing, none of the following
may occur without the written consent of each Bank: a change in the rate of
interest on and the term of the Notes; the amount of the Commitments of the
Banks; a reduction or waiver of the principal of any unpaid Loan or any
interest thereon; the amount of any fee (other than late fees) payable to a
Bank hereunder; the release of the Borrower, the Guarantor or any Collateral
except as otherwise provided herein; or an amendment of the definition of
Majority Banks or of any requirement for consent by all of the Banks. The
amount of the Agent's fee payable for the Agent's account and the provisions
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<PAGE> 108
of Section 14 may not be amended without the written consent of the Agent. The
Borrower and the Guarantor each agrees to enter into such modifications or
amendments of this Agreement or the other Loan Documents as may be reasonably
requested by BankBoston in connection with the acquisition by each Bank
acquiring all or a portion of the Commitment, provided that no such amendment
or modification materially affects or increases any of the obligations of the
Borrower or the Guarantor hereunder. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent or any Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower or the Guarantor
shall entitle the Borrower and the Guarantor to other or further notice or
demand in similar or other circumstances.
U28.SEVERABILITY The provisions of this Agreement are severable, and
if any one clause or provision hereof shall be held invalid or unenforceable in
whole or in part in any jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision, or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
U29.TIME OF THE ESSENCE Time is of the essence with respect to each and every
covenant, agreement and obligation of the Borrower or the Guarantor under this
Agreement and the other Loan Documents.
U30.NO UNWRITTEN AGREEMENTS THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. ANY ADDITIONAL TERMS OF THE
AGREEMENT BETWEEN THE PARTIES ARE SET FORTH BELOW.
U31.TRUST EXCULPATION All persons having a claim against the Guarantor, the
general partner of the Borrower whose signature is affixed hereto as said
general partner, hereunder or in connection with any matter that is subject
hereof shall look solely to the trust assets of the trust, and in no event
shall the obligations of the Guarantor be enforceable against any shareholder,
trustee, officer, employee or agent of the Guarantor personally.
[signature page follows]
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<PAGE> 109
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as a sealed instrument as of the date first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, President
RAMCO-GERSHENSON PROPERTIES, L.P.
By: Ramco-Gershenson Properties Trust,
its General Partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, President
<PAGE> 110
BANKBOSTON, N.A.,
individually and as Agent
By: /s/ Jeffrey L. Warwick
---------------------------
Jeffrey L. Warwick
Director
<PAGE> 111
EXHIBIT A
FORM OF SECOND AMENDED AND RESTATED NOTE
EXHIBIT B
FORM OF REQUEST FOR LOAN
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
EXHIBIT D
FORM OF
LETTER OF CREDIT APPLICATION
EXHIBIT E
FORM OF REQUEST FOR EXTENSION OF LOAN
<PAGE> 112
SCHEDULE 1
BANKS AND COMMITMENTS
Commitment
Commitment Percentage
---------- ----------
BankBoston, N.A. $160,000,000.00 100%
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
LIBOR Lending Office
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
<PAGE> 113
SCHEDULE 1.1
SPECIAL REAL ESTATE
1. Crestview Corners, Crestview, Florida
2. Crofton Centre, Crofton, Maryland
3. Toys-R-Us, Commack, New York
4. Lantana Plaza, Lantana, Florida
5. Sunshine Plaza, Tamarac, Florida
6. The Shops at Lakeland, Lakeland, Florida
7. Trinity Corners, Pound Ridge, New York
8. Pelican Plaza, Sarasota, Florida
9. Naples Towne Center, Naples, Florida
<PAGE> 114
SCHEDULE 2
EXAMPLES OF CALCULATION OF
DEBT SERVICE COVERAGE AMOUNT
SCHEDULE 3
EXISTING LETTERS OF CREDIT
SCHEDULE 4
REMIC PROPERTIES
SCHEDULE 6.7
LITIGATION
SCHEDULE 6.15
AFFILIATE TRANSACTIONS
SCHEDULE 6.19
SUBSIDIARIES OF THE BORROWER
SCHEDULE 6.22
AGREEMENTS
<PAGE> 1
EXHIBIT 10.5
SECOND AMENDED AND RESTATED NOTE
$160,000,000.00 October 30, 1997
FOR VALUE RECEIVED, the undersigned RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership, hereby promises to pay to BANKBOSTON, N.A., a
national banking association, or order, in accordance with the terms of that
certain Second Amended and Restated Master Revolving Credit Agreement dated as
of October 30, 1997 (the "Credit Agreement"), as from time to time in effect,
among the undersigned, BankBoston, N.A., for itself and as Agent, and such
other Banks as may be from time to time named therein, to the extent not sooner
paid, on or before the Maturity Date, the principal sum of One Hundred Sixty
Million and No/100 Dollars ($160,000,000.00), or such amount as may be advanced
by the payee hereof under the Credit Agreement with daily interest from the
date hereof, computed as provided in the Credit Agreement, on the principal
amount hereof from time to time unpaid, at a rate per annum on each portion of
the principal amount which shall at all times be equal to the rate of interest
applicable to such portion in accordance with the Credit Agreement, and with
interest on overdue principal and, to the extent permitted by applicable law,
on overdue installments of interest and late charges at the rates provided in
the Credit Agreement. Interest shall be payable on the dates specified in the
Credit Agreement, except that all accrued interest shall be paid at the stated
or accelerated maturity hereof or upon the prepayment in full hereof.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings set forth in the Credit Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, 100 Federal Street, Boston, Massachusetts 02110.
This Note is one of one or more Notes evidencing borrowings under and
is entitled to the benefits and subject to the provisions of the Credit
Agreement. The principal of this Note may be due and payable in whole or in
part prior to the maturity date stated above and is subject to mandatory
prepayment in the amounts and under the circumstances set forth in the Credit
Agreement, and may be prepaid in whole or from time to time in part, all as set
forth in the Credit Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Borrower and the Banks and the Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited
so that in no contingency, whether by reason of acceleration of the maturity of
any of the Obligations or otherwise, shall the interest contracted for, charged
or received by the Banks exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Banks in excess of the maximum lawful amount, the interest payable to
the Banks shall be reduced to the maximum amount permitted under applicable
law; and if from any circumstance the Banks shall ever receive anything of
value deemed interest by applicable law in excess of the maximum lawful amount,
an amount equal to any excessive interest shall be applied to the reduction of
the principal balance of the Obligations of the undersigned Borrower and to the
payment of interest or, if such excessive interest exceeds the unpaid balance
of principal of the Obligations of the
<PAGE> 2
undersigned Borrower, such excess shall be refunded to the undersigned
Borrower. All interest paid or agreed to be paid to the Banks shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations of the undersigned Borrower (including the period of any renewal or
extension thereof) so that the interest thereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between the undersigned Borrower and the Banks and the
Agent.
In case an Event of Default shall occur, the entire principal amount
of this Note may become or be declared due and payable in the manner and with
the effect provided in said Credit Agreement. In addition to and not in
limitation of the foregoing and the provisions of the Credit Agreement
hereinabove defined, the undersigned further agrees, subject only to any
limitation imposed by applicable law, to pay all expenses, including reasonable
attorneys' fees and legal expenses, incurred by the holder of this Note in
endeavoring to collect any amounts payable hereunder which are not paid when
due, whether by acceleration or otherwise.
This Note shall be governed by and construed in accordance with the
laws of the State of Michigan (without giving effect to the conflict of laws
rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without
notice.
This Note is a note executed in amendment and restatement of the
"Notes" as such term is defined in the Prior Credit Agreement.
IN WITNESS WHEREOF the undersigned has by its duly authorized
officers, executed this Note under seal as of the day and year first above
written.
RAMCO-GERSHENSON PROPERTIES, L.P.
By: Ramco-Gershenson Properties Trust, its
General Partner
By: /s/ Dennis Gershenson
-------------------------------------------
Dennis Gershenson
Title: President
----------------------------------------
<PAGE> 1
EXHIBIT 10.6
SECOND AMENDED AND RESTATED UNCONDITIONAL
GUARANTY OF PAYMENT AND PERFORMANCE
THIS SECOND AMENDED AND RESTATED UNCONDITIONAL GUARANTY OF
PAYMENT AND PERFORMANCE is made as of this 30th day of October, 1997, by
Ramco-Gershenson Properties Trust, a Massachusetts real estate investment
trust, having its principal place of business and chief executive office at
27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034 (the
"Guarantor"), in favor of BankBoston, N.A. (formerly known as The First
National Bank of Boston), as Agent on behalf of the Banks, having an office at
100 Federal Street, Boston, Massachusetts 02110 (the "Agent").
WHEREAS, the Guarantor is the general partner and owner of
68.77% of the partnership interests of Ramco-Gershenson Properties, L.P., a
Delaware limited partnership (the "Debtor"); and
WHEREAS, the Debtor, the Guarantor, BankBoston, N.A., in its
individual capacity, and the Agent are parties to that certain Master Revolving
Credit Agreement dated as of May 6, 1996, as amended and restated pursuant to
that certain Amended and Restated Master Revolving Credit Agreement among the
Borrower, the Guarantor, BankBoston, N.A., NBD Bank and the Agent dated as of
June 24, 1996, as amended by a First Amendment to Amended and Restated Master
Revolving Credit Agreement and other Loan Documents dated as of May 22, 1997, a
Second Amendment to Amended and Restated Master Revolving Credit Agreement and
other Loan Documents dated as of June 16, 1997, and a Third Amendment to
Amended and Restated Master Revolving Credit Agreement and other Loan Documents
dated as of July 18, 1997 (the "Prior Credit Agreement"); and
WHEREAS, the Guarantor executed a Guaranty dated May 16, 1996,
in favor of the Agent, as amended and restated pursuant to that certain Amended
and Restated Unconditional Guaranty of Payment and Performance dated as of June
24, 1996, as amended by the Second Amendment to Amended and Restated Master
Revolving Credit Agreement and other Loan Documents dated as of June 16, 1997,
pursuant to which the Guarantor guaranteed the Obligations (as defined in the
Prior Credit Agreement) of the Debtor, including, without limitation, loans and
other financial accommodations from the Banks (including the Agent in its
capacity as a Bank thereunder) under the Prior Credit Agreement of up to
$100,000,000 (the "Prior Guaranty"); and
WHEREAS, the Agent (in its capacity as agent and in its
capacity as a Bank) is entering into a Second Amended and Restated Master
Revolving Credit Agreement of even date herewith (as the same may hereafter be
amended, supplemented or modified from time to time, the "Credit Agreement")
with the Guarantor and the Debtor, which amends and restates the Prior Credit
Agreement in its entirety, and pursuant to which the Debtor is liable for the
"Obligations" (as that term is defined in the Credit Agreement) including,
without limitation, loans and other financial accommodations from the Banks
(including the Agent in its capacity as a Bank thereunder) under the Credit
Agreement of up to $160,000,000 (all Obligations being hereinafter referred to
as the "Indebtedness"); and
<PAGE> 2
WHEREAS, it is a condition precedent to the effectiveness of
the Credit Agreement that this Guaranty be executed and delivered by the
Guarantor in favor of the Agent in an amendment and restatement of the Prior
Guaranty; and
WHEREAS, the Guarantor will derive substantial benefit and
advantage from the increased financial accommodations to the Debtor set forth
in the Credit Agreement including the loans and advances made to the Debtor
thereunder, and it will be to the Guarantor's direct interest and economic
benefit to assist the Debtor in procuring said financial accommodations from
the Banks;
NOW, THEREFORE, for and in consideration of the premises and
in order to induce the Agent and the Banks to enter into the Credit Agreement
and the Banks to make loans thereunder, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Guarantor hereby agrees as follows (unless otherwise defined herein all
capitalized terms used herein shall have their meanings as set forth in the
Credit Agreement):
1. Guaranty of Payment.
(a) The Guarantor hereby unconditionally guaranties the
full and prompt payment to the Agent, on behalf of the Banks when due,
upon demand, at maturity or by reason of acceleration or otherwise and at all
times thereafter, of any and all of the Indebtedness.
(b) The Guarantor acknowledges that valuable consideration
supports this Guaranty, including, without limitation, the consideration set
forth in the recitals above as well as any commitment to lend,
extension of credit or other financial accommodation, whether heretofore or
hereafter made by the Banks to the Debtor; any extension, renewal or
replacement of any of the Indebtedness; any forbearance with respect to any of
the Indebtedness or otherwise; any cancellation of an existing guaranty; any
purchase of any of the Debtor's assets by the Banks; or any other valuable
consideration.
(c) The Guarantor agrees that all payments under
this Guaranty shall be made in United States currency and the same manner as
provided for the Indebtedness.
2. The Banks' Costs and Expenses.
The Guarantor agrees to pay on demand, if not paid by
the Debtor, all reasonable costs and expenses of every kind incurred by the
Agent or the Banks: (a) in enforcing this Guaranty, (b) in collecting any of
the Indebtedness from the Debtor or the Guarantor, (c) in realizing upon or
protecting any collateral for this Guaranty or for payment of any of the
Indebtedness, and (d) for any other purpose related to the Indebtedness or this
Guaranty. "Costs and expenses" as used in the preceding sentence shall
include, without limitation, the actual reasonable attorneys' fees incurred by
the Agent or any Bank in retaining counsel for advice, suit, appeal, any
insolvency or other proceedings under the United States Bankruptcy Code or
otherwise, or for any purpose specified in the preceding sentence.
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<PAGE> 3
3. Nature of Guaranty: Continuing, Absolute and Unconditional.
(a) This Guaranty is and is intended to be a
continuing guaranty of payment of the Indebtedness, independent of and in
addition to any other guaranty, indorsement, collateral or other agreement held
by the Agent or the Banks therefor or with respect thereto, whether or not
furnished by the Guarantor. The obligations of the Guarantor to repay the
Indebtedness hereunder shall be unlimited. The Guarantor shall have no right
of subrogation with respect to any payments made by the Guarantor hereunder,
and hereby waives any benefit of, and any right to participate in, any security
or collateral given to the Agent or the Banks to secure payment of the
Indebtedness, until all of the Indebtedness outstanding or contracted or
committed for (whether or not outstanding) is paid in full, and the Guarantor
agrees that it will not take any action to enforce any obligations of the
Debtor to the Guarantor prior to the Indebtedness being paid in full, provided
that, in the event of the bankruptcy or insolvency of the Debtor, the Agent, on
behalf of the Banks, shall be entitled notwithstanding the foregoing, to file
in the name of the Guarantor or in its own name a claim for any and all
indebtedness owing to the Guarantor by the Debtor, vote such claim and to apply
the proceeds of any such claim to the Indebtedness.
(b) Except as otherwise provided for in Section
8.7 of the Credit Agreement, for the further security of the Banks and without
in any way diminishing the liability of the Guarantor, following the occurrence
of an Event of Default under the Credit Agreement and acceleration of the
Indebtedness, all debts and liabilities, present or future of the Debtor to the
Guarantor and all monies received from the Debtor or for its account by the
Guarantor in respect thereof shall be received in trust for the Banks and
forthwith upon receipt shall be paid over to the Agent, on behalf of the Banks,
until all of the Indebtedness has been paid in full. This assignment and
postponement is independent of and severable from this Guaranty and shall
remain in full effect whether or not the Guarantor is liable for any amount
under this Guaranty.
(c) This Guaranty is absolute and unconditional
and shall not be changed or affected by any representation, oral agreement, act
or thing whatsoever, except as herein provided. This Guaranty is intended by
the Guarantor to be the final, complete and exclusive expression of the
guaranty agreement between the Guarantor and the Agent, on behalf of the Banks.
No modification or amendment of any provision of this Guaranty shall be
effective unless in writing and signed by a duly authorized officer of the
Agent, on behalf of the Banks.
(d) In the event of the business failure of
Guarantor or if there shall be pending any bankruptcy or insolvency case or
proceeding with respect to Guarantor under federal bankruptcy law or any other
applicable law or in connection with the insolvency of Guarantor, or if a
liquidator, receiver, or trustee shall have been appointed for Guarantor or
Guarantor's properties or assets, Agent on behalf of the Banks may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of Agent on behalf of the Banks allowed in any
proceedings relative to Guarantor, or any of Guarantor's properties or assets,
and, irrespective of whether the indebtedness or other obligations of Debtor
guaranteed hereby shall then be due and payable, by declaration or otherwise,
Agent on behalf of the Banks shall be entitled and empowered to file and prove
a claim for the whole amount of any sums or sums owing with respect to the
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<PAGE> 4
indebtedness or other obligations of Debtor guaranteed hereby, and to collect
and receive any moneys or other property payable or deliverable on any such
claim. Guarantor covenants and agrees that upon the commencement of a
voluntary or involuntary bankruptcy proceeding by or against Debtor or any
other guarantor, Guarantor shall not seek a supplemental stay or otherwise
pursuant to 11 U.S.C. Section 105 or any other provision of the Bankruptcy
Reform Act of 1978, as amended, or any other debtor relief law (whether
statutory, common law, case law, or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become applicable, to stay,
interdict, condition, reduce or inhibit the ability of Agent to enforce any
rights of Agent against Guarantor by virtue of this Guaranty or otherwise.
4. Certain Rights and Obligations.
(a) The Guarantor authorizes the Agent and the
Banks, without notice, demand or any reservation of rights against the
Guarantor and without affecting the Guarantor's obligations hereunder, from
time to time: (i) to renew, extend, increase, accelerate or otherwise change
the time for payment of, the terms of or the interest on the Indebtedness or
any part thereof or grant other indulgences to the Debtor or others; (ii) to
accept from any Person and hold collateral for the payment of the Indebtedness
or any part thereof, and to modify, exchange, enforce or refrain from
enforcing, or release, compromise, settle, waive, subordinate or surrender,
with or without consideration, such collateral or any part thereof; (iii) to
accept and hold any indorsement or guaranty of payment of the Indebtedness or
any part thereof, and to discharge, release or substitute any such obligation
of any such indorser or guarantor, or any Person who has given any security
interest in any collateral as security for the payment of the Indebtedness or
any part thereof, or any other Person in any way obligated to pay the
Indebtedness or any part thereof, and to enforce or refrain from enforcing, or
compromise or modify, the terms of any obligation of any such indorser,
guarantor, or Person; (iv) to dispose of any and all collateral securing the
Indebtedness in any manner as the Banks, in their sole discretion, may deem
appropriate, and to direct the order or manner of such disposition and the
enforcement of any and all endorsements and guaranties relating to the
Indebtedness or any part thereof as the Banks in their sole discretion may
determine; (v) except as otherwise provided in the Credit Agreement, to
determine the manner, amount and time of application of payments and credits,
if any, to be made on all or any part of any component or components of the
Indebtedness (whether principal, interest, fees, costs, and expenses, or
otherwise); and (vi) to take advantage or refrain from taking advantage of any
security or accept or make or refrain from accepting or making any compositions
or arrangements when and in such manner as the Agent or the Banks, in their
sole discretion, may deem appropriate and generally do or refrain from doing
any act or thing which might otherwise, at law or in equity, release the
liability of Guarantor as a guarantor or surety in whole or in part, and in no
case shall the Agent or the Banks be responsible or shall the Guarantor be
released either in whole or in part for any act or omission in connection with
the Agent or the Banks having sold any security at an under value.
(b) If any default shall be made in the payment
of any of the Indebtedness and any grace period has expired with respect
thereto, the Guarantor hereby agrees to pay the same in full to the extent
hereinafter provided: (i) without deduction by reason of any setoff, defense
(other than payment) or counterclaim of the Debtor; (ii) without requiring
presentment, protest or notice
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<PAGE> 5
of nonpayment or notice of default to the Guarantor, to the Debtor or to any
other Person, except as required pursuant to the Credit Agreement; (iii)
without demand for payment or proof of such demand or filing of claims with a
court in the event of receivership, bankruptcy or reorganization of the Debtor;
(iv) without requiring the Agent or the Banks to resort first to the Debtor
(this being a guaranty of payment and not of collection) or to any other
guaranty or any collateral which the Banks may hold; (v) without requiring
notice of acceptance hereof or assent hereto by the Agent or the Banks; and
(vi) without requiring notice that any of the Indebtedness has been incurred,
extended or continued or of the reliance by the Agent or the Banks upon this
Guaranty; all of which the Guarantor hereby waives.
(c) The Guarantor's obligation hereunder shall
not be affected by any of the following, all of which the Guarantor hereby
waives: (i) any failure to perfect or continue the perfection of any security
interest in or other lien on any collateral securing payment of any of the
Indebtedness or the Guarantor's obligation hereunder; (ii) the invalidity,
unenforceability, propriety of manner of enforcement of, or loss or change in
priority of any such security interest or other lien or guaranty of the
Indebtedness; (iii) any failure to protect, preserve or insure any such
collateral; (iv) failure of the Guarantor to receive notice of any intended
disposition of such collateral; (v) any defense arising by reason of the
cessation from any cause whatsoever of liability of the Debtor, including,
without limitation, any failure, negligence or omission by the Agent or the
Banks in enforcing their claims against the Debtor; (vi) any release,
settlement or compromise of any obligation of the Debtor, other than as a
result of the payment of the Indebtedness; (vii) the invalidity or
unenforceability of any of the Indebtedness; (viii) any change of ownership of
the Debtor or the insolvency, bankruptcy or any other change in the legal
status of the Debtor; (ix) any change in, or the imposition of, any law,
decree, regulation or other governmental act which does or might impair, delay
or in any way affect the validity, enforceability or the payment when due of
the Indebtedness; (x) the existence of any claim, setoff or other rights which
the Guarantor may have at any time against the Agent, any Bank or the Debtor in
connection herewith or any unrelated transaction; (xi) the Banks' election, in
any case instituted under chapter 11 of the United States Bankruptcy Code, of
the application of section 1111(b)(2) of the United States Bankruptcy Code;
(xii) any borrowing, use of cash collateral, or grant of a security interest by
the Debtor, as debtor in possession, under sections 363 or 364 of the United
States Bankruptcy Code; (xiii) the disallowance of all or any portion of any of
the Banks' claims for repayment of the Indebtedness under sections 502 or 506
of the United States Bankruptcy Code; or (xiv) any other fact or circumstance
which might otherwise constitute grounds at law or equity for the discharge or
release of the Guarantor from its obligations hereunder, all whether or not the
Guarantor shall have had notice or knowledge of any act or omission referred to
in the foregoing clauses (i) through (xiv) of this paragraph.
5. Representations and Warranties.
The Guarantor further represents and warrants to the
Agent and the Banks that: (i) it is a business trust duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, and has full power, authority and legal right to own its property
and assets and to transact the business in which it is engaged; (ii) it has
full power, authority and legal right to execute and deliver, and to perform
its obligations under, this Guaranty, and has taken all
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<PAGE> 6
necessary action to authorize the guarantee hereunder on the terms and
conditions of this Guaranty and to authorize the execution, delivery and
performance of this Guaranty; and (iii) this Guaranty has been duly executed
and delivered by the Guarantor and constitutes a legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor in accordance
with its terms.
6. Security; Assets - Negative Pledge.
The Guarantor warrants and represents to and
covenants with the Agent and the Banks that: (i) the Guarantor has good,
indefeasible and merchantable title to all of its assets, and (ii) the
Guarantor shall not grant a security interest in or permit a lien, claim or
encumbrance upon any of its assets in favor of any third party.
7. Termination.
This Guaranty shall remain in full force and effect
until all of the Indebtedness shall be finally and irrevocably paid in full and
the commitments under the Credit Agreement shall have been terminated. Payment
of all of the Indebtedness from time to time shall not operate as a
discontinuance of this Guaranty. The Guarantor further agrees that, to the
extent that the Debtor makes a payment or payments to the Agent or any of the
Banks on the Indebtedness, or the Agent or the Banks receive any proceeds of
collateral securing the Indebtedness which payment or receipt of proceeds or
any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be returned or repaid to the Debtor, its
estate, trustee, receiver, debtor in possession or any other Person, including,
without limitation, any Guarantor, under any insolvency or bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
payment, return or repayment, the obligation or part thereof which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the date when such initial payment, reduction or
satisfaction occurred, and this Guaranty shall continue in full force
notwithstanding any contrary action which may have been taken by the Agent or
the Banks in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent's or the Banks' rights under this
Guaranty and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
8. Guaranty of Performance.
The Guarantor also guaranties the full, prompt and
unconditional performance of all obligations and agreements of every kind owed
or hereafter to be owed by the Debtor to the Agent or the Banks. Every
provision for the benefit of the Agent or the Banks contained in this Guaranty
shall apply to the guaranty of performance given in this paragraph.
9. Assumption of Liens and Indebtedness.
To the extent that the Guarantor has received or
shall hereafter receive contributions to its capital consisting of assets of
the Debtor that are subject, at the time of such contribution, to liens and
security interests in favor of the Agent or the Banks in accordance with the
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<PAGE> 7
Credit Agreement, the Guarantor hereby expressly agrees that (i) it shall
hold such assets subject to such liens and security interests and subject to
the terms of the Credit Agreement and (ii) it shall be liable for the payment
of the Indebtedness secured thereby. The Guarantor's obligations under this
Section 9 shall be in addition to its obligations as set forth in other
sections of this Guaranty and not in substitution therefor or in lieu thereof.
10. Miscellaneous.
(a) The terms "Debtor" and the "Guarantor" as
used in this Guaranty shall include: (i) any successor individual or
individuals, association, partnership or corporation to which all or a
substantial part of the business or assets of the Debtor or the Guarantor shall
have been transferred and (ii) any other corporation into or with which the
Debtor or the Guarantor shall have been merged, consolidated, reorganized, or
absorbed.
(b) Without limiting any other right of the
Banks, whenever the Agent or the Banks have the right to declare any of the
Indebtedness to be immediately due and payable (whether or not it has been so
declared), subject to the notice requirements and other limitations set forth
in Section 13 of the Credit Agreement, the Banks at their sole election without
notice to the undersigned may appropriate and set off against the Indebtedness:
(i) any and all indebtedness or other moneys due or to become due to the
Guarantor by the Agent or the Banks in any capacity and (ii) any credits or
other property belonging to the Guarantor (including all account balances,
whether provisional or final and whether or not collected or available) at any
time held by or coming into the possession of the Agent or any of the Banks, or
any affiliate of the Agent or any of the Banks, whether for deposit or
otherwise, whether or not the Indebtedness or the obligation to pay such moneys
owed by the Agent or Banks is then due, and the Agent or the Banks shall be
deemed to have exercised such right of set off immediately at the time of such
election even though any charge therefor is made or entered on the Agent's or
the Banks' records subsequent thereto.
(c) The Guarantor's obligation hereunder is to
pay the Indebtedness in full when due according to the Credit Agreement to the
extent provided herein, and shall not be affected by any stay or extension of
time for payment by the Debtor resulting from any proceeding under the United
States Bankruptcy Code or any similar law.
(d) No course of dealing between the Debtor or
the Guarantor and the Agent or the Banks and no act, delay or omission by the
Banks in exercising any right or remedy hereunder or with respect to any of the
Indebtedness shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. The Agent or
the Banks may remedy any default by the Debtor under any agreement with the
Debtor or with respect to any of the Indebtedness in any reasonable manner
without waiving the default remedied and without waiving any other prior or
subsequent default by the Debtor. All rights and remedies of the Banks
hereunder are cumulative.
(e) The term "Banks" as used herein shall have
the same meaning as in the Credit Agreement and this Agreement shall inure to
the benefit of the Agent and such Banks.
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(f) Captions of the sections of this Guaranty are
solely for the convenience of the Agent, the Banks and the Guarantor, and are
not an aid in the interpretation of this Guaranty.
(g) If any provision of this Guaranty is
unenforceable in whole or in part for any reason, the remaining provisions
shall continue to be effective.
(h) THIS GUARANTY IS A CONTRACT 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 GUARANTOR AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS GUARANTY MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH
OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN THE
OPENING PARAGRAPH HEREOF. THE GUARANTOR 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.
11. Waivers.
(A) THE GUARANTOR WAIVES THE BENEFIT OF ALL
VALUATION, APPRAISAL AND EXEMPTION LAWS.
(B) IN THE EVENT OF A DEFAULT UNDER THE CREDIT
AGREEMENT, THE GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY
KIND PRIOR TO THE EXERCISE BY THE AGENT OR THE BANKS OF THEIR RIGHTS TO
REPOSSESS THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY
UPON THE COLLATERAL WITHOUT PRIOR NOTICE OR HEARING. THE GUARANTOR
ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO
THIS TRANSACTION AND THIS GUARANTY.
(C) THE GUARANTOR ACKNOWLEDGES THAT THE TIME AND
EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE REQUIRED FOR A
BENCH TRIAL AND HEREBY WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY,
ANY OBJECTION BASED ON FORUM NON CONVENIENS, ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER, AND WAIVES ANY BOND OR SURETY OR SECURITY UPON
SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE AGENT OR THE
BANKS.
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12. Trust Exculpation.
All persons having a claim against the Guarantor, the
general partner of the Debtor whose signature is affixed hereto as said general
partner, hereunder or in connection with any matter that is subject hereof
shall look solely to the trust assets of the trust, and in no event shall the
obligations of the Guarantor be enforceable against any shareholder, trustee,
officer, employee or agent of the Guarantor personally.
13. Specific Waiver of Statutory Appraisal Rights.
The laws of South Carolina provide that in any real
estate foreclosure proceeding a defendant against whom a personal judgment is
taken or asked may within thirty days after the sale of the mortgaged property
apply to the court for an order of appraisal. The statutory appraisal value as
approved by the court would be substituted for the high bid and may decrease
the amount of any deficiency owing in connection with the transaction. THE
UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH
MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE
DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED PROPERTY.
[IN ORDER TO BE EFFECTIVE THIS WAIVER MUST APPEAR ON A PAGE CONTAINING THE
SIGNATURE OF THE PERSON OR ENTITY MAKING THE WAIVER]
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed as of the day and year first written above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, President
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<PAGE> 1
EXHIBIT 10.7
UNSECURED TERM LOAN AGREEMENT
DATED AS OF OCTOBER 30, 1997
among
RAMCO-GERSHENSON PROPERTIES, L.P.
as Borrower,
and
RAMCO-GERSHENSON PROPERTIES TRUST,
as Guarantor,
and
BANKBOSTON, N.A.
as a Bank,
and
THE OTHER BANKS WHICH MAY BECOME PARTIES TO THIS AGREEMENT
and
BANKBOSTON, N.A.
as Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Section 1. DEFINITIONS AND RULES OF INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Rules of Interpretation . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2. THE TERM LOAN FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.1. Commitment to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.2. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.3. Interest on Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3. REPAYMENT OF THE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.1. Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.2. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.3. Partial Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.4. Proceeds from Debt or Equity Offering . . . . . . . . . . . . . . . . . 16
Section 4. CERTAIN GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.1. Conversion Options . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.2. Commitment and Syndication Fee . . . . . . . . . . . . . . . . . . . . . 17
Section 4.3. [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
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<TABLE>
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<S> <C>
Section 4.4. Funds for Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.5. Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.6. Inability to Determine LIBOR Rate . . . . . . . . . . . . . . . . . . 18
Section 4.7. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.8. Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.9. Additional Costs, Etc . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.10. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.11. Indemnity of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.12. Interest on Overdue Amounts; Late Charge . . . . . . . . . . . . . . . 20
Section 4.13. HLT Classification . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.14. Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.15. Limitation on Interest . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.16. Extension of Maturity Date . . . . . . . . . . . . . . . . . . . . . . 22
Section 5. COLLATERAL SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.1. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE BORROWER . . . . . . . . . . 23
Section 6.1. Corporate Authority, Etc . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.2. Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . 24
</TABLE>
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<TABLE>
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<S> <C>
Section 6.3. Title to Properties; Lease . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.5. No Material Changes . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.6. Franchises, Patents, Copyrights, Etc . . . . . . . . . . . . . . . . . 25
Section 6.7. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.8. No Materially Adverse Contracts, Etc . . . . . . . . . . . . . . . . . 25
Section 6.9. Compliance with Other Instruments, Laws, Etc . . . . . . . . . . . . . 26
Section 6.10. Tax Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.11. No Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.12. Holding Company and Investment Company Acts . . . . . . . . . . . . . . 26
Section 6.13. Absence of UCC Financing Statements, Etc . . . . . . . . . . . . . . . 26
Section 6.14. [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.15. Certain Transactions . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.16. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.17. Regulations U and X . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.18. Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.19. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.20. [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.21. Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.22. Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.23. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
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Section 6.24. Other Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.25. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.26. Contribution Agreement . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.27. No Fraudulent Intent . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.28. Transaction in Best Interests of Borrower; Consideration . . . . . . . 30
Section 6.29. Stock Purchase Commitment . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7. AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER . . . . . . . . . . . . . . . 31
Section 7.1. Punctual Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.2. Maintenance of Office . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.3. Records and Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.4. Financial Statements, Certificates and Information . . . . . . . . . . 31
Section 7.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.6. Existence; Maintenance of Properties . . . . . . . . . . . . . . . . . 36
Section 7.7. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.9. Inspection of Properties and Books . . . . . . . . . . . . . . . . . . 37
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits . . . . . . . . 37
Section 7.11. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.12. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
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Section 7.13. Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.14. Limiting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.15. Ownership of Real Estate . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.16. More Restrictive Agreements . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.17. Interest Rate Contract . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8. CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER . . . . . . . . . . . . 39
Section 8.1. Restrictions on Indebtedness . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.2. Restrictions on Liens Etc . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.3. Restrictions on Investments . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.4. Merger, Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.5. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 8.6. Compliance with Environmental Laws . . . . . . . . . . . . . . . . . . . 45
Section 8.7. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 8.8. Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 8.9. Development Activity . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 9. FINANCIAL COVENANTS OF THE GUARANTOR AND THE BORROWER . . . . . . . . . . . . . . . . . 48
Section 9.1. Liabilities to Assets Ratio . . . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
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Section 9.2. Debt Service Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 9.3. Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . 48
Section 10. CLOSING CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.1. Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.2. Certified Copies of Organizational Documents . . . . . . . . . . . . . . . 49
Section 10.3. Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.4. Incumbency Certificate; Authorized Signers . . . . . . . . . . . . . . . . 49
Section 10.5. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 10.6. Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.7. Performance; No Default . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.8. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.9. Proceedings and Documents . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.10. Stockholder and Partner Consents . . . . . . . . . . . . . . . . . . . . . 50
Section 10.11. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.12. Revolving Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.13. Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.14. No Legal Impediment . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.15. Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.16. Proceedings and Documents . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.17. Maintenance of Interest Rate Contract . . . . . . . . . . . . . . . . . . 51
</TABLE>
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Section 10.18. Principal Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.19. Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 11. [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 12.1. Events of Default and Acceleration . . . . . . . . . . . . . . . . . . . . 52
Section 12.2. Limitation of Cure Periods . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.3. [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.4. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.5. Distribution of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 13. SETOFF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 14. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 14.1. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 14.2. Employees and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 14.3. No Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 14.4. No Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 14.5. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 14.6. Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
</TABLE>
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Section 14.7. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 14.8. Agent as Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 14.9. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 14.10. Duties in the Case of Enforcement . . . . . . . . . . . . . . . . . . . . 59
Section 14.11. Removal of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 15. EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 16. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 17. SURVIVAL OF COVENANTS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 18. ASSIGNMENT AND PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 18.1. Conditions to Assignment by Banks . . . . . . . . . . . . . . . . . . . . . 62
Section 18.2. Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 18.3. New Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 18.4. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 18.5. Pledge by Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 18.6. No Assignment by Borrower or Guarantor . . . . . . . . . . . . . . . . . . 64
Section 18.7. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 18.8. Amendments to Loan Documents . . . . . . . . . . . . . . . . . . . . . . . 64
</TABLE>
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Section 19. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 20. RELATIONSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE . . . . . . . . . . . . . . . . . . . 66
Section 22. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 23. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 24. ENTIRE AGREEMENT, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS . . . . . . . . . . . . . . . . . . . . . 67
Section 26. DEALINGS WITH THE BORROWER OR THE GUARANTOR . . . . . . . . . . . . . . . . . . . . . . . 67
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 28. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 29. TIME OF THE ESSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
</TABLE>
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Section 30. NO UNWRITTEN AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 31. TRUST EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
</TABLE>
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<PAGE> 12
UNSECURED TERM LOAN AGREEMENT
This UNSECURED TERM LOAN AGREEMENT is made as of the 30th day of
October, 1997 by and among RAMCO-GERSHENSON PROPERTIES, L.P. (the "Borrower"), a
Delaware limited partnership, RAMCO-GERSHENSON PROPERTIES TRUST (the
"Guarantor"), a Massachusetts business trust, BANKBOSTON, N.A., a national
banking association (formerly known as The First National Bank of Boston)
("BankBoston"), and the other lending institutions which may become parties
hereto pursuant to Section 18 (the "Banks"), and BANKBOSTON, N.A., a national
banking association (formerly known as The First National Bank of Boston), as
Agent for the Banks (the "Agent").
RECITALS
WHEREAS, the Borrower and the Guarantor have requested that the Banks
provide an unsecured term loan facility to the Borrower; and
WHEREAS, the Agent and the Banks are willing to provide such facility
to the Borrower upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the terms and conditions herein,
and of any loans, advances, or extensions of credit now or hereafter made to or
for the benefit of the Borrower by the Banks, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1. DEFINITIONS. The following terms shall have the meanings
set forth n this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
Additional REMIC Properties. The Real Estate identified as the
Additional REMIC Properties on Schedule 2 attached hereto.
Affiliate. An Affiliate, as applied to any Person, shall mean any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means (a) the
possession, directly or indirectly, of the power to vote ten percent (10%) or
more of the stock, shares, voting trust certificates, beneficial interest,
partnership interests, member interests or other interests having voting power
for the election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise, or (b) the ownership
of (i) a general partnership interest, (ii) a managing member's interest in a
limited liability company or (iii) a limited partnership interest or preferred
stock (or other ownership interest) representing ten percent (10%) or more of
the outstanding limited partnership interests, preferred stock or other
ownership interests of such Person.
<PAGE> 13
Agent. BankBoston, N.A., acting as agent for the Banks, its successors
and assigns.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time by notice to the Borrower and the Banks.
Agent's Special Counsel. Long Aldridge & Norman LLP or such other
counsel as may be approved by the Agent.
Agreement. This Unsecured Term Loan Agreement, including the Schedules
and Exhibits hereto.
Applicable Margin. On any date, the applicable margin set forth below
based on the ratio of the Consolidated Total Liabilities of the Borrower to the
Consolidated Total Adjusted Asset Value of the Borrower (expressed as a
percentage):
Ratio LIBOR Rate Loans
----- ----------------
less than 55% 2.50%
equal to or greater than 55% 2.75%
The Applicable Margin shall not be reduced to any percentage based upon such
ratio until five (5) Business Days following the delivery by the Borrower to the
Agent of such evidence as the Agent may require (including without limitation,
the delivery of the Compliance Certificate to the Agent) that such ratio
corresponds to the percentage as would justify such lesser percentage of
Applicable Margin. In the event of any change in such ratio that would cause the
Applicable Margin to increase, the Borrower shall notify the Agent within five
(5) Business Days of such event, and regardless of whether the Agent has
received notice of such event, such event shall effect a change in the
Applicable Margin on the first to occur of (a) the first Business Day after the
delivery of such notice to the Agent of such event or (b) six (6) Business Days
following any such increase of such ratio.
Balance Sheet Date. June 30, 1997.
BankBoston. As defined in the preamble hereto.
Banks. BankBoston and any other Person who becomes an assignee of any
rights of a Bank pursuant to Section 18.
Base Rate. The annual rate of interest announced from time to time by
the Agent at the Agent's Head Office as its "base rate". Any change in the rate
of interest payable hereunder resulting from a change in the Base Rate shall
become effective as of the opening of business on the date on which such change
in the Base Rate becomes effective.
2
<PAGE> 14
Base Rate Loans. Those Loans bearing interest calculated by reference
to the Base Rate.
Borrower. As defined in the preamble hereto.
Building. With respect to each parcel of Real Estate, all of the
buildings, structures and improvements now or hereafter located thereon.
Business Day. Any day on which banking institutions located in the same
city and state as the Agent's Head Office are open for the transaction of
banking business and, in the case of LIBOR Rate Loans, which also is a LIBOR
Business Day.
Capital Expenditure Reserve Amount. With respect to any Person or
property, a reserve for replacements and capital expenditures equal to $.10 per
square foot of building space located on all Real Estate owned by such Person,
other than Real Estate subject to long term leases having a remaining term of at
least five (5) years, exclusive of unexpired options, which provide that the
tenant is responsible for all building maintenance.
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 ss.10 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Bank, the amount set forth on Schedule
1 hereto as the amount of such Bank's Commitment to make or maintain Loans to
the Borrower, as the same may be changed from time to time in accordance with
the terms of this Agreement.
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
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.
3
<PAGE> 15
Consolidated Tangible Net Worth. The amount by which Consolidated
Adjusted Total Asset Value exceeds Consolidated Total Liabilities, and less the
sum of:
(a) the total book value of all assets of a Person and its
Subsidiaries properly classified as intangible assets under generally accepted
accounting principles, including such items as good will, the purchase price of
acquired assets in excess of the fair market value thereof, trademarks, trade
names, service marks, brand names, copyrights, patents and licenses, and rights
with respect to the foregoing; and
(b) all amounts representing any write-up in the book value of
any assets of such Person or its Subsidiaries resulting from a revaluation
thereof subsequent to the Balance Sheet Date.
Consolidated Total Adjusted Asset Value. With respect to any Person,
the sum of (i) all assets of such Person and its Subsidiaries determined on a
Consolidated basis in accordance with generally accepted accounting principles,
provided that all Real Estate that is improved and not Under Development shall
be valued at an amount equal to (A) the Operating Cash Flow of such Person and
its Subsidiaries from such Real Estate for the period covered by the four
previous consecutive fiscal quarters (treated as a single accounting period)
divided by (B) a ten percent (10%) capitalization rate, plus (ii) the Stock
Purchase Commitment Allowance provided that (i) prior to such time as the
Borrower or any of its Approved Subsidiaries has owned and operated any parcel
of Real Estate for four full fiscal quarters, the Operating Cash Flow with
respect to such parcel of Real Estate for the number of full fiscal quarters
which the Borrower or any of its Approved Subsidiaries has owned and operated
such parcel of Real Estate as annualized shall be utilized, and (ii) the
Operating Cash Flow for any parcel of Real Estate without a full quarter of
performance shall be annualized in such manner as the Agent shall approve, such
approval not to be unreasonably withheld. For the purpose of calculating
Operating Cash Flow under this definition as to any parcel of Real Estate, the
Operating Cash Flow Rental Adjustment shall be applied to any parcel of Real
Estate affected by any of the events described in the definition of Operating
Cash Flow Rental Adjustment. The assets of the Borrower and its Subsidiaries on
the consolidated financial statements of the Borrower and its Subsidiaries shall
be adjusted to reflect the Borrower's allocable share of such asset, for the
relevant period or as of the date of determination, taking into account (a) the
relative proportion of each such item derived from assets directly owned by the
Borrower and from assets owned by its respective Subsidiaries, and (b) the
Borrower's respective ownership interest in its Subsidiaries.
Consolidated Total Liabilities. All liabilities of a Person and its
Subsidiaries determined on a Consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of such Person and its
Subsidiaries, whether or not so classified, including any liabilities arising in
connection with sale and leaseback transactions.
Contribution Agreement (Term Loan). That certain Contribution Agreement
dated of even date herewith among the Borrower, the Guarantor and the REMIC
Subsidiary.
4
<PAGE> 16
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 4.1.
Debt Offering. The issuance and sale by the Borrower or the Guarantor
of any debt securities of the Borrower or the Guarantor.
Debt Service. For any period, the sum of all interest, including
capitalized interest not paid in cash, bond related expenses, and mandatory
principal/sinking fund payments due and payable during such period excluding any
balloon payments due upon maturity of any Indebtedness.
Default. See Section 12.1. In addition, any "Default" (as defined in
the Revolving Credit Agreement) shall also be a Default hereunder.
Defaulting Bank. Any Bank which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Business Days after notice
from the Agent.
Distribution. With respect to any Person, the declaration or payment of
any cash, cash flow, dividend or distribution on or in respect of any shares of
any class of capital stock or other beneficial interest of such Person other
than dividends or distributions payable solely in equity securities of such
Person; the purchase, redemption, exchange or other retirement of any shares of
any class of capital stock or other beneficial interest of such Person, directly
or indirectly through a Subsidiary of such Person or otherwise; the return of
capital by such Person to its shareholders or partners as such; or any other
distribution on or in respect of any shares of any class of capital stock or
other beneficial interest of such Person.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which any Loan which is made prior to the Maturity Date is converted
or combined in accordance with Section 4.1.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower, the
Guarantor or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 6.18(a).
5
<PAGE> 17
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 ss.4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Event of Default. See Section 12.1.
Federal Funds Effective Rate. For any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent.
Funds from Operations. With respect to any Person for any fiscal
period, the Net Income of such Person computed in accordance with generally
accepted accounting principles, excluding financing costs and gains (or losses)
from debt restructuring and sales of property, plus depreciation (other than
non-real estate depreciation) and amortization (other than amortization of
deferred financing costs) and other noncash items.
Generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Person
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
the Guarantor or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guarantor. Ramco-Gershenson Properties Trust.
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Guaranty. The 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 ss.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.
Initial REMIC Properties. The Real Estate identified as the Initial
REMIC Properties on Schedule 2 attached hereto.
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 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
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above, as selected by the Borrower in a Conversion Request; provided that all of
the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period with respect to a
LIBOR Rate Loan would otherwise end on a day that is not a
LIBOR Business Day, that Interest Period shall end and the
next Interest Period shall commence on the next preceding or
succeeding LIBOR Business Day as determined conclusively by
the Reference Bank in accordance with the then current bank
practice in the London Interbank Market;
(ii) if the Borrower shall fail to give
notice as provided in ss.4.1, the Borrower shall be deemed to
have requested a conversion of the affected LIBOR Rate Loan to
a Base Rate Loan on the last day of the then current Interest
Period with respect thereto; and
(iii) no Interest Period relating to any
LIBOR Rate Loan shall extend beyond the Maturity Date.
Interest Rate Contracts. Interest rate swap, collar, cap or similar
agreements providing interest rate protection.
Investments. With respect to any Person, all shares of capital stock,
evidences of Indebtedness and other securities issued by any other Person, all
loans, advances, or extensions of credit to, or contributions to the capital of,
any other Person, all purchases of the securities or business or integral part
of the business of any other Person and commitments and options to make such
purchases, all interests in real property, and all other investments; provided,
however, that the term "Investment" shall not include (i) equipment, inventory
and other tangible personal property acquired in the ordinary course of
business, or (ii) current trade and customer accounts receivable for services
rendered in the ordinary course of business and payable in accordance with
customary trade terms. In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any Investment represented
as a guaranty shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (b) there shall be included as an
Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (c) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (d) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (b) may be deducted when paid; and (e) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
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LIBOR Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan,
the rate per annum as determined by the Reference Bank's LIBOR Lending Office to
be the rate (rounded upwards to the nearest 1/16 of one percent) at which Dollar
deposits are offered to prime banks, by such banks in the London Interbank
Market as are selected in good faith by the Reference Bank, at approximately
11:00 a.m. London time two (2) LIBOR Business Days prior to the beginning of
such Interest Period for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the LIBOR Rate Loan to which such Interest Period applies.
LIBOR Rate Loans. The Loans bearing interest calculated by reference to
a LIBOR Rate.
Loan Documents. This Agreement, the Notes, the Guaranty, the REMIC
Subsidiary Guaranty, and all other documents, instruments or agreements now or
hereafter executed or delivered by or on behalf of the Borrower, the Guarantor
or the REMIC Subsidiary in connection with the Loans.
Loans. See Section 2.1.
Majority Banks. As of any date, any Bank or collection of Banks whose
aggregate Commitment Percentage is more than fifty percent (50%); provided,
that, in determining said percentage at any given time, all then existing
Defaulting Banks will be disregarded and excluded and the Commitment Percentages
of the Banks shall be redetermined for voting purposes only, to exclude the
Commitment Percentages of such Defaulting Bank(s); and provided, further that
the Agent must always be among the Majority Banks except that after an Event of
Default described in ss.12.1 (a) or (b) decisions of the Majority Banks to
accelerate and/or exercise remedies pursuant to ss.12.5 shall be made without
regard to whether the Agent is among the Majority Banks.
Maryland REIT. See Section 8.4(b).
Master Agreement. The Amended and Restated Master Agreement dated as of
December 27, 1995, by and among RPS Realty Trust, Ramco-Gershenson, Inc. and
certain other parties as set forth therein, as amended by First Amendment to
Amended and Restated Master Agreement dated as of March 19, 1996.
Maturity Date. May 1, 1999, as the same may be extended by the Borrower
as provided in ss.4.16, or such earlier date on which the Loans shall become due
and payable pursuant to the terms hereof.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower, the
Guarantor or any ERISA Affiliate.
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Net Income (or Deficit). With respect to any Person (or any asset of
any Person) for any fiscal period, the net income (or deficit) of such Person
(or attributable to such asset), after deduction of all expenses, taxes and
other proper charges, determined in accordance with generally accepted
accounting principles.
Net Offering Proceeds. The gross cash proceeds received by the Borrower
or the Guarantor as a result of a Debt Offering or an Equity Offering less the
customary and reasonable costs, fees, expenses, underwriting commissions and
discounts incurred by the Borrower or the Guarantor in connection therewith.
Non-recourse Indebtedness. Indebtedness of a Person which is secured by
one or more parcels of Real Estate and related personal property or interests
therein and Short-term Investments and is not a general obligation of such
Person, the holder of such Indebtedness having recourse solely to the parcels of
Real Estate securing such Indebtedness, the Building and any leases thereon and
the rents and profits thereof and the Short-term Investments securing such
Indebtedness.
Notes. See Section 2.2.
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 or the Notes, or other instruments at any time evidencing any of the
foregoing, whether existing on the date of this Agreement or arising or incurred
hereafter, direct or indirect, joint or several, absolute or contingent, matured
or unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise.
Operating Cash Flow. With respect to any Person (or any asset of any
Person) for any period, an amount equal to the sum of (a) the Net Income of such
Person (or attributable to such asset) for such period plus (b) depreciation and
amortization, interest expense, and any extraordinary or nonrecurring losses
deducted in calculating such Net Income, minus (c) any extraordinary or
nonrecurring gains included in calculating such Net Income, minus (d) the
Capital Expenditure Reserve Amount, all as determined in accordance with
generally accepted accounting principles.
Operating Cash Flow Rental Adjustment. For the purposes of calculating
Operating Cash Flow, with respect to any parcel of Real Estate as to which the
Borrower or any Approved Subsidiary shall obtain a replacement tenant for vacant
space in excess of 10,000 rentable square feet, the rent from such tenant shall
be from the date such tenant takes possession and begins paying rent be included
for one-half (1/2) of the period for which such space was vacant during the
period for which Operating Cash Flow is being calculated.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
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PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.8.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Principal Documents. The Master Agreement, the RPS Contribution
Agreements and the Ramco Agreements.
Purchase Agreement. Those certain Sales Contracts between the Borrower
and various entities relating to the purchase by the Borrower of certain retail
properties managed by D.R.A.
Advisors, Inc.
Ramco Agreements. As defined in the Master Agreement.
Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to any Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by any
Bank with respect to any Loan referred to in such Note.
Reference Bank. BankBoston.
Register. See Section 18.2.
REIT Status. With respect to the Guarantor, its status as a real estate
investment trust as defined in Section 856(a) of the Code.
Release. See Section 6.18(c)(iii).
REMIC Properties. The Initial REMIC Properties and the Additional REMIC
Properties.
REMIC Subsidiary. Ramco Properties Associates Limited Partnership, a
Michigan limited partnership.
REMIC Subsidiary Guaranty (Term Loan). The Unconditional Guaranty of
Payment and Performance dated of even date herewith made by the REMIC Subsidiary
in favor of the Agent and the Banks, as the same may be modified or amended,
such REMIC Subsidiary Guaranty (Term Loan) to be in form and substance
satisfactory to the Agent.
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REMIC Transaction. The release of the REMIC Properties from the liens
thereon under the Revolving Credit Agreement and related loan documents in
connection with the encumbrance of the REMIC Properties by mortgages, deeds of
trust or similar instruments substantially in accordance with the terms of the
proposed transaction described in that certain Loan Commitment dated October 13,
1997, from Morgan Stanley Mortgage Capital, Inc. to Borrower, a true copy of
which has been delivered to the Agent.
Revolving Credit Agreement. The Second Amended and Restated Master
Revolving Credit Agreement dated of even date herewith among the Borrower, the
Guarantor, BankBoston, individually and as agent, and the other banks that are
or become parties thereto, as the same may be amended, modified or restated.
RPS Contribution Agreements. As defined in the Master Agreement.
SEC. The federal Securities and Exchange Commission.
Short-term Investments. Investments described in subsections (a)
through (g), inclusive, of Section 8.3.
State. A state of the United States of America.
Stock Purchase Commitment. That certain Preferred Units and Stock
Purchase Agreement dated as of September 30, 1997, among Borrower, Guarantor,
Stichting Bedrijspensioenfonds Voor de Metaalnijrerheid, Stichting Pensionfonds
ABP, MS Real Estate Special Situations Inc., The Morgan Stanley Real Estate
Special Situations Fund I, L.P., The Morgan Stanley Real Estate Special
Situations Fund II, L.P., The Morgan Stanley Real Estate Special Situations Fund
III, L.P. and Special Situations RG REIT, Inc.
Stock Purchase Commitment Allowance. At any time, an amount equal to
the amount then unpaid and available to be funded or paid pursuant to the Stock
Purchase Commitment, including any amounts which may be paid under the
"Buyer/Kimco Stock Purchase Agreement" (as defined in the Stock Purchase
Commitment); provided that (a) no Stock Purchase Buyer has notified the Borrower
or the Guarantor of a refusal to pay all or any portion of the purchase price
pursuant to the Stock Purchase Commitment, or notice of its intention to so
refuse to pay all or any portion of the purchase price, (b) no Stock Purchase
Buyer has claimed that a default or event of default by Borrower or Guarantor
has occurred under the Stock Purchase Commitment such that such Stock Purchase
Buyer is not obligated to pay amounts pursuant to the Stock Purchase Commitment,
(c) none of the events described in Section 12.1(g), (h) or (i) have occurred
with respect to any Stock Purchase Buyer, (d) no Stock Purchase Buyer (i)
has denied that it has any liability or obligation under the Stock Purchase
Commitment, (ii) has notified the Borrower or the Guarantor of such Stock
Purchase Buyer's intention to attempt to cancel or terminate the Stock Purchase
Commitment, or (iii) has failed to observe or comply with any term, covenant,
condition or agreement under the Stock Purchase Commitment, (e) no event has
occurred which would permit any Stock Purchase Buyer to refuse to
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pay amounts pursuant to the Stock Purchase Commitment, or (f) the Stock Purchase
Commitment has not expired or been terminated.
Stock Purchase Buyer. Any one or more of Stichting Bedrijspensioenfonds
Voor de Metaalnijrerheid, Stichting Pensionfonds ABP, MS Real Estate Special
Situations Inc., The Morgan Stanley Real Estate Special Situations Fund I, L.P.,
The Morgan Stanley Real Estate Special Situations Fund II, L.P., The Morgan
Stanley Real Estate Special Situations Fund III, L.P., Special Situations RG
REIT, Inc. or Kimco Realty Corporation.
Subsidiary. Any corporation, association, partnership, trust, or other
business entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes or controlling interests) of the outstanding Voting Interests. The
REMIC Subsidiary is a wholly-owned Subsidiary of the Borrower.
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time. As of the date of this Agreement, the Total Commitment is
Forty Five Million Dollars ($45,000,000.00).
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate
Loan.
Under Development. Any Real Estate shall be considered under
development until such time as (i) a Certificate of Occupancy has been obtained
or the Borrower has delivered to the Agent other evidence satisfactory to the
Agent indicating that occupancy of such development is lawful, and (ii) the
gross income from the operation of such Real Estate on an accrual basis shall
have equaled or exceeded operating costs on an accrual basis for three (3)
months.
Voting Interests. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage,
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
SECTION 1.2.RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
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(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles applied on
a consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of Michigan, have the meanings
assigned to them therein.
(i) Reference to a particular " ss. ", refers to that section
of this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
SECTION 2.THE TERM LOAN 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 on the Closing Date the amount of its Commitment (the "Loans");
provided, that the outstanding principal amount of the Loans shall not at
anytime exceed the Total Commitment. The Loans shall be made pro rata in
accordance with each Bank's Commitment Percentage. Once repaid, sums hereunder
may not be reborrowed.
SECTION 2.2.NOTES. The Loans shall be evidenced by separate promissory
notes of the Borrower in substantially the form of Exhibit A hereto
(collectively, the "Notes"), dated of even date as this Agreement and completed
with appropriate insertions. One Note shall be payable to the order of each Bank
in the principal amount equal to such Bank's Commitment, plus interest accrued
thereon as set forth below. The Borrower irrevocably authorizes each Bank 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 such Bank's Record reflecting the making of such Loan or (as the
case may be) the receipt of such payment. The outstanding amount of the Loans
set forth on such Bank's Record shall be prima facie evidence of the principal
amount thereof owing and unpaid to such Bank, but the failure to record, or any
error in so recording, any such amount on such
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Bank's Record shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Note to make payments of principal of or
interest on any Note when due.
SECTION 2.3.INTEREST ON LOANS.
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on which such
Base Rate Loan is converted to a LIBOR Rate Loan at the per annum rate equal to
the Base Rate.
(b) Each LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to the sum of
the Applicable Margin plus the LIBOR Rate determined for such Interest Period.
(c) The Borrower promises to pay interest on each Loan to it
in arrears on each Interest Payment Date with respect thereto. In the event that
any additional interest becomes due and payable for any period with respect to a
Loan as a result of the Applicable Margin being determined based on the ratio of
Consolidated Total Liabilities to Consolidated Total Adjusted Asset Value or any
change in such ratio, and the interest for such period has previously been paid
by the Borrower, the Borrower shall pay to the Agent for the account of the
Banks the amount of such increase within ten (10) days of demand.
(d) Base Rate Loans and LIBOR Rate Loans may be converted to
Loans of the other Type as provided in ss.4.1.
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. 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 ss.3.2 may be made only on the last day of the Interest Period
relating thereto except as otherwise required pursuant to ss.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 ss.3.2,
in each case specifying the proposed date of payment of Loans and the principal
amount to be paid.
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SECTION 3.3.PARTIAL PREPAYMENTS. Each partial prepayment of the Loans
under ss.3.2 shall be in an integral multiple of $ 100,000, shall be accompanied
by the payment of accrued interest on the principal prepaid to the date of
payment and, after payment of such interest, shall be applied, in the absence of
instruction by the Borrower, first to the principal of Base Rate Loans and then
to the principal of LIBOR Rate Loans.
SECTION 3.4.PROCEEDS FROM DEBT OR EQUITY OFFERING. So long as no
"Default" or "Event of Default" (as such terms are defined in the Revolving
Credit Agreement) has occurred and is continuing or would occur as a result of
the following described payment, the Borrower shall cause any Net Offering
Proceeds of any Equity Offering (excluding proceeds received in connection with
the Stock Purchase Commitment) to be paid by the Borrower or the Guarantor to
the Agent for the account of the Banks as a prepayment of the Loans to the
Borrower or which are guaranteed by the Guarantor within ten (10) days of the
date of such offering to be applied first to the then outstanding principal of
the Loans and then to accrued and unpaid interest on the Loans.
SECTION 4.CERTAIN GENERAL PROVISIONS.
SECTION 4.1. CONVERSION OPTIONS.
(a) The Borrower may elect from time to time to convert the
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 four
(4) LIBOR Rate Loans outstanding at any one time; and (iii) no Loan may be
converted into a LIBOR Rate Loan when any Default or Event of Default has
occurred and is continuing. All or any part of the outstanding Loans of any Type
may be converted as provided herein, provided that no partial conversion shall
result in a Base Rate Loan in an aggregate principal amount of less than
$1,000,000 or a LIBOR Rate Loan in an aggregate principal amount of less than
$2,000,000 and that the aggregate principal amount of each Loan shall be in an
integral multiple of $100,000. On the date on which such conversion is being
made, each Bank shall take such action as is necessary to transfer its
Commitment Percentage of such Loans to its Domestic Lending Office or its LIBOR
Lending Office, as the case may be. Each Conversion Request relating to the
conversion of a Base Rate Loan to a LIBOR Rate Loan shall be irrevocable by the
Borrower.
(b) Any Loan may be continued as such Type upon the expiration
of an Interest Period with respect thereto by compliance by the Borrower with
the terms of ss.4.1(a); provided that no LIBOR Rate Loan may be continued as
such when any Default or Event of Default has occurred
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and is continuing, but shall be automatically converted to a Base Rate Loan on
the last day of the Interest Period relating thereto ending during the
continuance of any Default or Event of Default.
(c) In the event that the Borrower does not notify the Agent
of its election hereunder with respect to any Loan, 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
BankBoston certain fees for services rendered or to be rendered in connection
with the Loan as provided pursuant to the Agreement Regarding Fees as of even
date herewith between the Borrower and BankBoston.
SECTION 4.3.[INTENTIONALLY OMITTED]
SECTION 4.4.FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, closing fees and any
other amounts due hereunder or under any of the other Loan Documents shall be
made to the Agent, for the respective accounts of the Banks and the Agent, as
the case may be, at the Agent's Head Office, not later than 1:00 p.m. (Boston
time) on the day when due, in each case in immediately available funds. The
Agent is hereby authorized to charge the accounts of the Borrower with
BankBoston designated by the Borrower, on the dates when the amount thereof
shall become due and payable, with the amounts of the principal of and interest
on the Loans and all fees, charges, expenses and other amounts owing to the
Agent and/or the Banks under the Loan Documents.
(b) All payments by the Borrower hereunder and under any of
the other Loan Documents shall be made without setoff or counterclaim and free
and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount payable
by them hereunder or under any of the other Loan Documents, the Borrower will
pay to the Agent, for the account of the Banks or (as the case may be) the
Agent, on the date on which such amount is due and payable hereunder or under
such other Loan Document, such additional amount in Dollars as shall be
necessary to enable the Banks or the Agent to receive the same net amount which
the Banks or the Agent would have received on such due date had no such
obligation been imposed upon the Borrower. The Borrower will deliver promptly to
the Agent certificates or other valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made by the Borrower hereunder or
under such other Loan Document.
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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 conversion to a LIBOR Rate Loan shall
be automatically withdrawn and shall be deemed a request for a Base Rate Loan
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 provide 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 provide LIBOR Rate Loans or convert another Type to LIBOR Rate
Loans shall forthwith be suspended and (b) the LIBOR Rate Loans then outstanding
shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such LIBOR Rate Loans or within such earlier
period as may be required by law.
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, 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
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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.
SECTION 4.9. ADDITIONAL COSTS, ETC. Notwithstanding anything herein to
the contrary, if any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any governmental or other
regulatory body or official with appropriate jurisdiction charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment or the Loans (other
than taxes based upon or measured by the income or profits of such Bank or the
Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of the principal
of or the interest on any Loans or any other amounts payable to any Bank under
this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or commitments of an office of
any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, such Bank's Commitment, or any class of loans or commitments of which any
of the Loans or such Bank's Commitment forms a part; and the result of any of
the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of
the Loans or such Bank's Commitment, or
(ii) to reduce the amount of principal, interest or
other amount payable to such Bank or the Agent hereunder on
account of such Bank's Commitment or any of the Loans, or
(iii) to require such Bank or the Agent to make any
payment or to forego any interest or other sum payable
hereunder, the amount of which payment or foregone interest or
other sum is calculated by reference to the gross amount of
any
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sum receivable or deemed received by such Bank or the Agent
from the Borrower hereunder,
then, and in each such case, the Borrower will within fifteen (15) days after
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent such additional amounts as such Bank or the Agent shall determine
in good faith to be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or other sum. Each Bank
and the Agent in determining such amounts may use any reasonable averaging and
attribution methods, generally applied by such Bank or the Agent.
SECTION 4.10. CAPITAL ADEQUACY. If after the date hereof any Bank
determines that (a) the adoption of or change in any law, rule, regulation or
guideline regarding capital requirements for banks or bank holding companies or
any change in the interpretation or application thereof by any governmental
authority charged with the administration thereof, or (b) compliance by such
Bank or its parent bank holding company with any guideline, request or directive
of any such entity regarding capital adequacy (whether or not having the force
of law), has the effect of reducing the return on such Bank's or such holding
company's capital as a consequence of such Bank's commitment to make Loans
hereunder to a level below that which such Bank or holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's or such holding company's then existing policies with respect to
capital adequacy and assuming the full utilization of such entity's capital) by
any amount deemed by such Bank to be material, then such Bank may notify the
Borrower thereof. The Borrower agrees to pay to such Bank the amount of such
reduction in the return on capital as and when such reduction is determined,
upon presentation by such Bank of a statement of the amount and setting forth
such Bank's calculation thereof. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
SECTION 4.11.INDEMNITY OF BORROWER. The Borrower agrees to indemnify
each Bank and to hold each Bank harmless from and against any loss, cost or
expense that such Bank may sustain or incur as a consequence of (a) default by
the Borrower in payment of the principal amount of or any interest on any LIBOR
Rate Loans as and when due and payable, including any such loss or expense
arising from interest or fees payable by such Bank to lenders of funds obtained
by it in order to maintain its LIBOR Rate Loans, or (b) default by the Borrower
in making a conversion after the Borrower has given (or is deemed to have given)
a Conversion Request.
SECTION 4.12.INTEREST ON OVERDUE AMOUNTS; LATE CHARGE. Overdue
principal and all other overdue amounts payable hereunder or under any of the
other Loan Documents (other than interest on the Loans) shall, following the
expiration of any applicable cure period expressly provided for in this
Agreement, bear interest payable on demand at a rate per annum equal to five
percent (5.0%) above the Base Rate until such amount shall be paid in full
(after as well as before judgment). Overdue interest on the Loans shall,
following the expiration of any applicable cure period expressly provided for in
this Agreement, bear interest payable on demand at a rate equal to the lesser of
(i) a per annum rate equal to five percent (5.0%) above the Base Rate or (ii)
the maximum annual rate of
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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 the applicable cure period
expressly provided for in this Agreement
SECTION 4.13.HLT CLASSIFICATION. The Banks acknowledge that as of the
date hereof neither the Commitments nor the Loans are classified as "highly
leveraged transactions". Notwithstanding the foregoing, if after the date
hereof, the Agent determines, or is advised by any Bank that such Bank has
determined or has received notice from any governmental authority, central bank
or comparable agency having jurisdiction over such Bank, that any of the
Commitments or Loans are classified as a "highly leveraged transaction" (an "HLT
Classification") pursuant to any existing regulations regarding "highly
leveraged transactions" or any modification, amendment or interpretation
thereof, or the adoption of new regulations regarding "highly leveraged
transactions" after the date hereof by any governmental authority, central bank
or comparable agency, the Agent shall promptly give notice of such HLT
Classification to the Borrower and the Banks (which date is hereafter referred
to as the "HLT Notice Date"). The Agent, the Banks and the Borrower shall
thereupon commence negotiations in good faith to agree on the extent to which
fees, interest rates and/or margins hereunder should be increased so as to
reflect such HLT Classification. If the Borrower and the Majority Banks agree on
the amount of such increase or increases, this Agreement shall be promptly
amended to give effect to such increase or increases. If the Borrower and the
Majority Banks fail to so agree and the Borrower has failed to refinance the
Loans within ninety (90) days after the HLT Notice Date, then the Agent shall,
if so requested by the Majority Banks, by notice to the Borrower terminate the
Commitments and accelerate the maturity date of the Loans and the Loans shall
become due and payable in full on the date specified in such notice, which date
shall be not earlier than one hundred eighty (180) days after the HLT Notice
Date. The Agent and the Banks acknowledge that an HLT Classification is not a
Default or an Event of Default.
SECTION 4.14.CERTIFICATE. A certificate setting forth any amounts
payable pursuant to ss.4.8, ss.4.9, ss.4.10, ss.4.11, ss.4.12 or ss.4.13 and a
brief explanation of such amounts which are due, submitted by any Bank or the
Agent to the Borrower, shall be conclusive in the absence of manifest error.
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
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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 4.16.EXTENSION OF MATURITY DATE.
(a) Provided that no Default or Event of Default shall have
occurred and be continuing, the Borrower shall have the option, to be exercised
by giving written notice to the Agent in the form of Exhibit "C" hereto at least
90 days prior to the initial scheduled Maturity Date of May 1, 1999, subject to
the terms and conditions set forth in this Agreement, to extend the Maturity
Date to October 1, 2000. The request by the Borrower for extension of the
Maturity Date shall constitute a representation and warranty by the Borrower
that all of the conditions set forth in this Section shall have been satisfied
on the date of such request.
(b) The obligations of the Agent and the Banks to extend the
Maturity Date as provided in ss.4.16(a) shall be subject to the satisfaction of
the following conditions precedent on or prior to the scheduled Maturity Date of
May 1, 1999:
(i) Payment of Extension Fee. The Borrower shall pay
to BankBoston certain fees pursuant to the Agreement Regarding Fees of even date
herewith and BankBoston will pay a portion of such fees to the Banks pursuant to
the separate agreement among BankBoston and the Banks.
(ii) No Default. On the date of the exercise of such
extension option and on May 1, 1999, there shall exist no Default or Event of
Default.
(iii) Representations and Warranties. The
representations and warranties made by the Borrower or 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 on May 1,
1999.
(iv) Interest Rate Protection. The Borrower shall
have obtained or extended prior to May 1, 1999, the Interest Rate Contract
described in ss.10.17 or such other Interest Rate Contract as the Agent may
approve in its discretion (and which shall not expire before October 1, 2000)
and shall have provided evidence thereof to the Agent.
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SECTION 5.COLLATERAL SECURITY
SECTION 5.1.Collateral. The Banks have agreed to make the Loans to the
Borrower on an unsecured basis. Notwithstanding the foregoing, the Obligations
shall be guaranteed pursuant to the terms of the Guaranty and the REMIC
Subsidiary Guaranty (Term Loan). The REMIC Subsidiary Guaranty (Term Loan) shall
be marked canceled and returned to the REMIC Subsidiary upon consummation of the
REMIC Transaction and thereupon the Contribution Agreement (Term Loan) may be
terminated by the Borrower, the guarantor and the REMIC Subsidiary.
SECTION 6.REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR AND THE
BORROWER.
The Borrower and the Guarantor, jointly and severally, represent and
warrant to the Agent and the Banks as follows.
SECTION 6.1.CORPORATE AUTHORITY, ETC.
(a) Incorporation; Good Standing. The Borrower is a Delaware
limited partnership duly organized pursuant to its limited partnership agreement
dated December 21, 1994, as amended as of January 1, 1995, and as amended and
restated on May 1, 1996, and as further amended by a first amendment dated as of
June 25, 1996, a second amendment dated as of September 29, 1997, a third
amendment dated as of October 3, 1997, and a fourth amendment dated as of
October 8, 1997, and a Certificate of Limited Partnership and amendments thereto
filed with the Secretary of the State of Delaware and is validly existing and in
good standing under the laws of the State of Delaware. The Guarantor is a
Massachusetts business trust duly organized pursuant to its amended and restated
trust agreement dated June 14, 1988, and a Certificate of Trust and amendments
thereto filed with the Secretary of the Commonwealth of Massachusetts and is
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts. Each of the Borrower and the Guarantor (i) has all requisite
power to own its respective property and conduct its respective business as now
conducted and as presently contemplated, and (ii) as to the Borrower is in good
standing as a foreign entity and is duly authorized to do business in the
jurisdictions where the Real Estate 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 ss.856 of the Code.
(b) Subsidiaries. Each of the Subsidiaries of the Borrower and
the Guarantor (i) is a corporation, limited partnership, limited liability
company or trust duly organized under the laws of its State of organization and
is validly existing and in good standing under the laws thereof, (ii) has all
requisite power to own its property and conduct its business as now conducted
and as presently contemplated and (iii) is in good standing and is duly
authorized to do business in each jurisdiction where Real Estate held by it is
located and in each other jurisdiction where a failure to be so qualified could
have a materially adverse effect on the business, assets or financial condition
of the Borrower,
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the Guarantor, or such Subsidiary. The REMIC Subsidiary is a wholly-owned direct
Subsidiary of the Borrower.
(c) Authorization. The execution, delivery and performance of
this Agreement and the other Loan Documents to which the Borrower, the Guarantor
or any of their respective Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (i) are within the authority of
such Person, (ii) have been duly authorized by all necessary proceedings on the
part of such Person, (iii) do not and will not conflict with or result in any
breach or contravention of any provision of law, statute, rule or regulation to
which such Person is subject or any judgment, order, writ, injunction, license
or permit applicable to such Person, (iv) do not and will not conflict with or
constitute a default (whether with the passage of time or the giving of notice,
or both) under any provision of the articles of incorporation, partnership
agreement, declaration of trust or other charter documents or bylaws of, or any
agreement or other instrument binding upon, such Person or any of its
properties, and (v) do not and will not result in or require the imposition of
any lien or other encumbrance on any of the properties, assets or rights of such
Person.
(d) Enforceability. The execution and delivery of this
Agreement and the other Loan Documents to which the Borrower, the Guarantor or
any of their respective Subsidiaries is or is to become a party are valid and
legally binding obligations of such Person enforceable in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
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.
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SECTION 6.4.FINANCIAL STATEMENTS. The Borrower has delivered to each of
the Banks: (a) the consolidated balance sheet of the Guarantor and its
respective Subsidiaries as of the Balance Sheet Date, and (b) certain other
financial information relating to the Borrower, the Guarantor and the Real
Estate. Such balance sheet and other information have been prepared in
accordance with generally accepted accounting principles and fairly present the
financial condition of the Borrower, the Guarantor and their respective
Subsidiaries as of such dates and the results of the operations of the Borrower,
the Guarantor and their respective Subsidiaries for such periods. There are no
liabilities, contingent or otherwise, of the Borrower, the Guarantor or any of
their respective Subsidiaries involving material amounts not disclosed in said
financial statements and the related notes thereto.
SECTION 6.5. NO MATERIAL CHANGES. Since the Balance Sheet Date, there
has occurred no materially adverse change in the financial condition or business
of the Borrower, the Guarantor, and their respective Subsidiaries taken as a
whole as shown on or reflected in the consolidated balance sheet of the Borrower
and the Guarantor as of the Balance Sheet Date, or its consolidated statement of
income or cash flows for the fiscal year then ended, other than changes in the
ordinary course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial condition
of such Person.
SECTION 6.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower, the
Guarantor and their respective Subsidiaries possess all franchises, patents,
copyrights, trademarks, trade names, servicemarks, licenses and permits, and
rights in respect of the foregoing, adequate for the conduct of their business
substantially as now conducted without known conflict with any rights of others.
SECTION 6.7.LITIGATION. Except as stated on Schedule 6.7 there are no
actions, suits, proceedings or investigations of any kind pending or to the
knowledge of such person threatened against the Borrower, the Guarantor or any
of their respective Subsidiaries before any court, tribunal 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.
SECITON 6.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the
Borrower, the Guarantor or any of their respective Subsidiaries is subject to
any charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation that has or is expected in the future to have a
materially adverse effect on the business, assets or financial condition of such
Person. None of the Borrower, the Guarantor, nor any of their respective
Subsidiaries is a party to any contract or 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.
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SECTION 6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrower, the Guarantor or any of their respective Subsidiaries is in violation
of any provision of its charter or other organizational documents, bylaws, or
any agreement or instrument to which it may be subject or by which it or any of
its properties may be bound or any decree, order, judgment, statute, license,
rule or regulation, in any of the foregoing cases in a manner that could result
in the imposition of substantial penalties or materially and adversely affect
the financial condition, properties or business of such Person.
SECTION 6.10.TAX STATUS. The Borrower, the Guarantor and each of their
respective Subsidiaries (a) has made or filed all federal and state income and
all other tax returns, reports and declarations required by any jurisdiction to
which it is subject, (b) has paid all taxes and other governmental assessments
and charges shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and by appropriate
proceedings and (c) has set aside on its books provisions reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction,
and the partners or officers of such Person know of no basis for any such claim.
SECTION 6.11.NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
SECTION 6.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrower, the Guarantor, or any of their respective Subsidiaries is or after
giving effect to any Loan will be, subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940 or to any federal or state statute or regulation limiting
its ability to incur indebtedness for borrowed money.
SECTION 6.13. ABSENCE OF UCC FINANCING STATEMENTS, ETC. Except with
respect to Permitted Liens, there is no financing statement, security agreement,
chattel mortgage, real estate mortgage or other document filed or recorded with
any filing records, registry, or other public office, that purports to cover,
affect or give notice of any present or possible future lien on, or security
interest or security title in, any property of the Borrower, the Guarantor or
any of their respective Subsidiaries or rights thereunder.
SECTION 6.14. [INTENTIONALLY OMITTED]
SECTION 6.15. CERTAIN TRANSACTIONS. Except as set forth on Schedule
6.15, none of the officers, trustees, directors, or employees of the Borrower,
the Guarantor or any of their respective Subsidiaries is a party to any
transaction with either or both of the Borrower, the Guarantor or any of their
respective Subsidiaries (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
trustee, director or such employee or, to the knowledge of the Borrower, the
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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 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 U and X of the Board of Governors
of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
SECTION 6.18. ENVIRONMENTAL COMPLIANCE. The Borrower and the Guarantor
each has taken all commercially reasonable steps to investigate the past and
present conditions and usage of the Real Estate and the operations conducted
thereon and, based upon such investigation makes the following representations
and warranties.
(a) To the best of the Borrower's and the Guarantor's
knowledge, none of the Borrower, the Guarantor or their respective Subsidiaries
or any operator of the Real Estate, or any operations thereon is in violation,
or alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including, without limitation,
those arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation, ordinance,
order or decree relating to the environment (hereinafter "Environmental Laws"),
which violation involves the Real Estate and would have a material adverse
effect on the business, assets or financial condition of the Borrower, the
Guarantor or any of their respective Subsidiaries.
(b) None of the Borrower, the Guarantor or any of their
respective Subsidiaries has received notice from any third party including,
without limitation, any federal, state or local governmental authority, (i) that
it has been identified by the United States Environmental Protection Agency
("EPA") as a potentially responsible party under CERCLA with respect to a site
listed on the
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National Priorities List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that any
hazardous waste, as defined by 42 U.S.C. ss.9601(5), any hazardous substances as
defined by 42 U.S.C. ss.9601(14), any pollutant or contaminant as defined by 42
U.S.C. ss.9601(33) or any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Substances") which it has generated, transported or disposed of have been found
at any site at which a federal, state or local agency or other third party has
conducted or has ordered that the Borrower, the Guarantor or any of their
respective Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise) arising out of
any third party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances.
(c) To the best of the Borrower's and the Guarantor's
knowledge, except as specifically set forth in writing to the Agent as of the
date hereof, or in the case of Real Estate acquired after the date hereof, to
the best of the Borrower's and Guarantor's knowledge except as may be disclosed
to the Agent in writing upon the acquisition of the same: (i) no portion of the
Real Estate has been used for the handling, processing, storage or disposal of
Hazardous Substances except in accordance with applicable Environmental Laws in
all material respects, and no underground tank or other underground storage
receptacle for Hazardous Substances is located on any portion of the Real
Estate; (ii) in the course of any activities conducted by either the Borrower,
the Guarantor, their Subsidiaries or the operators of its properties, no
Hazardous Substances have been generated or are being used on the Real Estate
except in the ordinary course of business and in accordance with applicable
Environmental Laws in all material respects; (iii) there has been no past or
present releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (a "Release") or
threatened Release of Hazardous Substances on, upon, into or from any of the
Real Estate, or, to the best of the Borrower's or the Guarantor's knowledge, on,
upon, into or from the other properties of the Borrower, the Guarantor or their
respective Subsidiaries, which Release would have a material adverse effect on
the value of any of the Real Estate or adjacent properties or the environment;
(iv) to the best of the Borrower's or the Guarantor's knowledge, there have been
no Releases on, upon, from or into any real property in the vicinity of any of
the Real Estate which through soil or groundwater contamination, may have come
to be located on, and which would have a material adverse effect on the value
of, the Real Estate; and (v) any Hazardous Substances that have been generated
on any of the Real Estate have been transported off-site only by carriers having
an identification number issued by the EPA or approved by a state or local
environmental regulatory authority having jurisdiction regarding the
transportation of such substance and treated or disposed of only by treatment or
disposal facilities maintaining valid permits as required under all applicable
Environmental Laws, which transporters and facilities have been and are, to the
best of the Borrower's or the Guarantor's knowledge, operating in compliance
with such permits and applicable Environmental Laws.
(d) None of the Borrower, the Guarantor, their respective
Subsidiaries, or the Real Estate is subject to any applicable Environmental Law
requiring the performance of Hazardous Substances site assessments, or the
removal or remediation of Hazardous Substances, or the giving
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of notice to any governmental agency or the recording or delivery to other
Persons of an environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby.
SECTION 6.19. SUBSIDIARIES. 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. [INTENTIONALLY OMITTED]
SECTION 6.21. LOAN DOCUMENTS. All of the representations and warranties
made by or on behalf of the Borrower, the Guarantor, and their respective
Subsidiaries in this Agreement and the other Loan Documents or any document or
instrument delivered to the Agent or the Banks pursuant to or in connection with
any of such Loan Documents are true and correct in all material respects, and
neither the Borrower, the Guarantor nor any of their respective Subsidiaries has
failed to disclose such information as is necessary to make such representations
and warranties not misleading.
SECTION 6.22. PROPERTY. All of the Borrower's and its Subsidiaries'
Real Estate is in good condition and working order subject to ordinary wear and
tear. The Borrower further has completed an appropriate investigation of the
environmental condition of each such property owned or leased by the Borrower or
its Subsidiaries as of the later of the date of the Borrower's or such
Subsidiaries' purchase thereof or the date upon which such property was last
given as security for Indebtedness of the Borrower or such Subsidiary, including
preparation or updating of a "Phase I" report and, if recommended by the "Phase
I" report, a "Phase II" report, in each case prepared by a recognized
environmental engineer in accordance with customary standards which discloses
that such property is not in violation of the representations and covenants set
forth in this Agreement, unless satisfactory remediation actions are being
taken. There are no unpaid or outstanding real estate or other taxes or
assessments on or against any property of the Borrower or any of its
Subsidiaries which are payable by the Borrower or its Subsidiaries (except only
real estate or other taxes or assessments, that are not yet due and payable or
are being protested as permitted by this Agreement). There are no pending
eminent domain proceedings against any property of the Borrower or its
Subsidiaries or any part thereof, and, to the knowledge of the Borrower, no such
proceedings are presently threatened or contemplated by any taking authority
which may individually or in the aggregate have any materially adverse effect on
the business or financial condition of the Borrower. None of the property of the
Borrower or its Subsidiaries is now damaged as a result of any fire, explosion,
accident, flood or other casualty in any manner which individually or in the
aggregate would have any materially adverse effect on the business or financial
condition of the Borrower.
SECTION 6.23. BROKERS. None of the Borrower, the Guarantor, or any of
their respective Subsidiaries has engaged or otherwise dealt with any broker,
finder or similar entity in connection with this Agreement or the Loans
contemplated hereunder.
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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. The Borrower has delivered or
made available to the Agent a true, correct and complete copy of the
Contribution Agreement (Term Loan). The Contribution Agreement (Term Loan) 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 (Term Loan), 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 and indirect benefits
to inure to the Borrower, the Guarantor and each of their respective
Subsidiaries pursuant to this Agreement and the other Loan Documents constitute
substantially more than "reasonably equivalent value" (as such term is used in
Section 548 of the Bankruptcy Code) and "valuable consideration," "fair value,"
and "fair consideration," (as such terms are used in any applicable state
fraudulent conveyance law), in exchange for the benefits to be provided by the
Borrower, the Guarantor and each of their respective Subsidiaries pursuant to
this Agreement and the other Loan Documents, and but for the willingness of the
Guarantor and the REMIC Subsidiary to guaranty the Loan, Borrower would be
unable to obtain the financing contemplated hereunder which financing will
enable the Borrower and its Subsidiaries (including the REMIC Subsidiary) to
have available financing to close the transaction under the Purchase Agreement
(including the
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acquisition of the Initial REMIC Properties and other real property therein
described) and to conduct and expand their business.
SECTION 6.29. STOCK PURCHASE COMMITMENT. The Stock Purchase Commitment
is in full force and effect and no defaults or breaches have occurred
thereunder. A "Closing" (as defined in the Stock Purchase Commitment) has
occurred and as of the date of this Agreement the sum of $11,666,675.00 has been
funded under the Stock Purchase Commitment.
SECTION 7. AFFIRMATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER.
The Guarantor (to the extent hereinafter provided) and the Borrower
covenant and agree that, so long as any Loan or Note is outstanding or any Bank
has any obligation to make any Loans:
SECTION 7.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually
pay or cause to be paid the principal and interest on the Loans and all interest
and fees provided for in this Agreement, all in accordance with the terms of
this Agreement and the Notes as well as all other sums owing pursuant to the
Loan Documents.
SECTION 7.2. MAINTENANCE OF OFFICE. The Borrower will maintain its
chief executive office at 27600 Northwestern Highway, Suite 200, Southfield,
Michigan, 48034, or at such other place in the United States of America as the
Borrower shall designate upon prior written notice to the Agent and the Banks,
where notices, presentations and demands to or upon the Borrower in respect of
the Loan Documents may be given or made.
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
ss.6.4 or (y) change its fiscal year.
SECTION 7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower and the Guarantor will deliver or cause to be delivered to each of the
Banks:
(a) as soon as practicable, but in any event not later than
one hundred (100) days after the end of each fiscal year of the Guarantor, the
audited Consolidated balance sheet of the Guarantor and its Subsidiaries at the
end of such year, and the related audited Consolidated statements of income,
changes in shareholder's equity and cash flows for such year, each setting forth
in comparative form the figures for the previous fiscal year and all such
statements to be in reasonable
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detail, prepared in accordance with generally accepted accounting principles,
and accompanied by an auditor's report prepared without qualification by
Deloitte & Touche, or by another "Big Six" accounting firm, the Form 10-K filed
with the SEC (unless the SEC has approved an extension, in which event the
Guarantor will deliver to the Agent and each of the Banks a copy of the Form
10-K simultaneously with delivery to the SEC), a statement of the Borrower's
taxable net income for the prior fiscal year, and any other information the
Banks may need to complete a financial analysis of the Guarantor and its
Subsidiaries;
(b) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower and the Guarantor, respectively, copies of the
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries and
the Guarantor and its Subsidiaries, respectively, as at the end of such quarter,
and the related unaudited Consolidated statements of income, changes in
shareholder's equity and cash flows for the portion of the Borrower's and the
Guarantor's, respectively, fiscal year then elapsed, all in reasonable detail
and prepared in accordance with generally accepted accounting principles (which,
as to the Guarantor, may be provided by inclusion in the Form 10-Q of the
Guarantor for such period provided pursuant to subsection (c) below), together
with a certification by the principal financial or accounting officer of the
Borrower and the Guarantor, respectively, that the information contained in such
financial statements fairly presents the financial position of such Person and
its Subsidiaries on the date thereof (subject to year-end adjustments);
provided, however, that unless otherwise requested by the Agent or the Majority
Banks, the Borrower shall not be required to deliver the balance sheets,
statements or other matters required by this ss.7.4(b) to the extent the same
are incorporated in the balance sheets, statements and other matters delivered
to the Banks by the Guarantor;
(c) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Guarantor in each year, copies of Form 10-Q filed with the SEC
(unless the SEC has approved an extension in which event the Guarantor will
deliver such copies of the Form 10-Q to the Agent and each of the Banks
simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of the first three (3) fiscal quarters of the
Borrower, copies of a Consolidated statement of Operating Cash Flow for such
fiscal quarter for the Borrower and its Subsidiaries and a statement of
Operating Cash Flow for such fiscal quarter for the Borrower, prepared on a
basis consistent with the statement furnished pursuant to ss.6.4(c) together
with a certification by the chief financial or chief accounting officer of the
general partner of the Borrower, that the information contained in such
statement fairly presents the Operating Cash Flow of the Borrower and its
Subsidiaries for such period;
(e) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement (a
"Compliance Certificate") certified by the principal financial or accounting
officer of the general partner of the Borrower in the form of Exhibit B hereto
(or in such other form as the Agent may approve from time to time) setting forth
in reasonable detail
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computations evidencing compliance with the covenants contained in ss.9 and the
other covenants described therein, and (if applicable) reconciliations to
reflect changes in generally accepted accounting principles since the Balance
Sheet Date;
(f) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the SEC or sent to the
stockholders of the Guarantor or the partners of the Borrower;
(g) as soon as practicable but in any event not later than
fifty-five (55) days after the end of each of the first three (3) fiscal
quarters of the Borrower, an updated rent roll aggregating information for all
Real Estate and operating statements and tenant sales reports with respect to
all Real Estate with respect to such fiscal quarter, such statements and reports
to be in form reasonably satisfactory to the Agent;
(h) as soon as practicable but in any event not later than one
hundred (100) days after the end of the fourth fiscal quarter of the Borrower,
an updated rent roll aggregating information for all Real Estate and rolling
four (4) quarter operating statements and tenant sales reports with respect to
all Real Estate, such statements and reports to be in form reasonably
satisfactory to the Agent;
(i) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, the following with
respect to each acquisition of an interest in Real Estate having a fair market
value in excess of $10,000,000.00 by the Borrower or any of its Subsidiaries
(which for the purposes of this ss.7.4(h) shall include the Investments
described in ss.8.3(i), provided that with respect to the Investments described
in ss.8.3(i), the following items shall be provided to the extent reasonably
available to the Borrower or its Subsidiaries): (i) the closing statement
relating to such acquisition, (ii) a description of the property acquired, (iii)
a certificate from the chief financial or accounting officer of the Borrower
stating that (A) an environmental site assessment has been prepared by an
environmental engineer and such assessment contains no material qualifications
with respect to such Real Estate and (B) a statement of condition of such Real
Estate has been prepared by a construction engineer and such statement contains
no material qualifications, and (iv) a historical operating statement of such
Real Estate for such period as may be available to the Borrower and a current
rent roll for such Real Estate;
(j) promptly after they are filed with the Internal Revenue
Service, copies of all annual federal income tax returns and amendments thereto
of the Borrower and the Guarantor;
(k) promptly upon completion, copies of such market studies
relating to the Real Estate as are from time to time prepared by or on behalf of
the Borrower or its Subsidiaries;
(l) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, each of the following
with respect to each acquisition of an interest
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in a Subsidiary: (i) the name and structure of the Subsidiary, (ii) a
description of the property owned by such Subsidiary, and (iii) such other
information as the Agent may reasonably request;
(m) simultaneously with the delivery of the financial
statement referred to in subsection (a) above, a statement (i) listing the Real
Estate owned by the Borrower and its Subsidiaries (or in which the Borrower or
its Subsidiaries owns an interest) and stating the location thereof, the date
acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrower
and its Subsidiaries (excluding Indebtedness of the type described in
ss.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
ss.8.9) and providing a brief summary of the status of such development;
(n) not later than thirty (30) days prior to the end of each
fiscal year of the Borrower a budget and business plan for the next fiscal year;
(o) as soon as practicable, but in any event not later than
one hundred (100) days after the end of each fiscal year of the Borrower, the
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries at the
end of such year, and the related unaudited consolidated statements of income,
changes in shareholder's equity and cash flows for such year, each setting forth
in comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by a certification by the
principal financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial position of
the Borrower and its Subsidiaries on the date thereof (provided, however, that
Borrower shall not be required to provide such statements in the event that such
statements would be substantially similar to the consolidated statements
provided by the Guarantor); and
(p) within five (5) days of the funding of any amount pursuant
to the Stock Purchase Commitment, notice of such funding and the amount thereof;
(q) as soon as practicable, but in any event not later than
two (2) Business Days after the Borrower or the Guarantor acquires knowledge of
the same, (i) written notice that any Stock Purchase Buyer has notified the
Borrower or the Guarantor of a refusal to fund an amount pursuant to the Stock
Purchase Commitment, or notice of its intention to so refuse to make an advance,
(ii) a claim by any Stock Purchase Buyer of an event of default or default by
the Borrower or the Guarantor under the Stock Purchase Commitment, or (iii) the
occurrence of any of the events described in ss.12.1(g), (h) or (i) with respect
to any Stock Purchase Buyer; and
(r) from time to time such other financial data and
information in the possession of the Borrower, the Guarantor or their respective
Subsidiaries (including without limitation auditors' management letters,
property inspection and environmental reports and information as to zoning and
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other legal and regulatory changes affecting the Borrower or the Guarantor) as
the Agent may reasonably request.
SECTION 7.5. NOTICES
(a) Defaults. The Borrower will promptly notify the Agent in
writing of the occurrence of any Default or Event of Default. If any Person
shall give any notice or take any other action in respect of a claimed default
(whether or not constituting an Event of Default) under this Agreement or under
any note, evidence of indebtedness, indenture or other obligation to which or
with respect to which the Borrower, the Guarantor or any of their respective
Subsidiaries is a party or obligor, whether as principal or surety, and such
default would permit the holder of such note or obligation or other evidence of
indebtedness to accelerate the maturity thereof, which acceleration would have a
material adverse effect on the Borrower or the Guarantor, the Borrower shall
forthwith give written notice thereof to the Agent and each of the Banks,
describing the notice or action and the nature of the claimed default.
(b) Environmental Events. The Borrower will promptly give
notice to the Agent (i) upon the Borrower obtaining knowledge of any potential
or known Release of any Hazardous Substances at or from any Real Estate; (ii) of
any violation of any Environmental Law that the Borrower or any of its
Subsidiaries reports in writing or is reportable by such Person in writing (or
for which any written report supplemental to any oral report is made) to any
federal, state or local environmental agency and (iii) upon becoming aware
thereof, of any inquiry, proceeding, investigation, or other action, including a
notice from any agency of potential environmental liability, of any federal,
state or local environmental agency or board, that in either case involves any
Real Estate or has the potential to materially affect the assets, liabilities,
financial conditions or operations of the Borrower or any Subsidiary.
(c) Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting the Borrower, the Guarantor or any of their respective
Subsidiaries or to which the Borrower, the Guarantor or any of their respective
Subsidiaries is or is to become a party involving an uninsured claim against the
Borrower, the Guarantor or any of their respective Subsidiaries that could
reasonably be expected to have a materially adverse effect on the Borrower or
the Guarantor and stating the nature and status of such litigation or
proceedings. The Borrower will give notice to the Agent, in writing, in form and
detail satisfactory to the Agent and each of the Banks, within ten (10) days of
any judgment not covered by insurance, whether final or otherwise, against the
Borrower, the Guarantor or any of their respective Subsidiaries in an amount in
excess of $100,000.
(d) Notice of Proposed Sales, Encumbrances, Refinance or
Transfer of Real Estate. The Borrower will give notice to the Agent of any
proposed or completed sale, encumbrance, refinance or transfer of any Real
Estate or other Investment described in ss.8.3(i) of the Borrower, the Guarantor
or their respective Subsidiaries within any fiscal quarter of the Borrower, such
notice to
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be submitted, in the case of any such sale, encumbrance, refinance or transfer
in an amount in excess of $25,000,000.00, together with the Compliance
Certificate provided or required to be provided to the Banks under ss.7.4 with
respect to such fiscal quarter. The Compliance Certificate shall with respect to
any proposed or completed sale, encumbrance, refinance or transfer be adjusted
in the best good faith estimate of the Borrower to give effect to such sale,
encumbrance, refinance or transfer and demonstrate that no Default or Event of
Default with respect to the covenants referred to therein shall exist after
giving effect to such sale, encumbrance, refinance or transfer. Notwithstanding
the foregoing, in the event of any sale, encumbrance, refinance or transfer of
any Real Estate or other Investment described in ss.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 ss.6.4 or
ss.7.4 adjusted as provided in the preceding sentence.
(e) Notification of Banks. Promptly after receiving any notice
under this ss.7.5, the Agent will forward a copy thereof to each of the Banks,
together with copies of any certificates or other written information that
accompanied such notice.
SECTION 7.6. EXISTENCE; MAINTENANCE OF PROPERTIES.
(a) The Borrower will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
Delaware limited partnership. The Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a Massachusetts business trust; provided, however, that Guarantor may become a
Maryland real estate investment trust pursuant to the terms of ss.8.4(b), and if
Guarantor does become a Maryland real estate investment trust pursuant to the
terms of ss.8.4(b), Guarantor will do or cause to be done all things necessary
to preserve and keep in full force and effect its existence as a Maryland real
estate investment trust. The Borrower will cause each of its Subsidiaries to do
or cause to be done all things necessary to preserve and keep in full force and
effect its legal existence. The Borrower shall continue to own directly or
indirectly one hundred percent (100%) of the Voting Interests and economic
interests in the REMIC Subsidiary, subject to any approval rights of any
independent director appointed in order for the REMIC Subsidiary to be
considered as a "bankruptcy remote" entity. The Borrower and the Guarantor will
do or cause to be done all things necessary to preserve and keep in full force
all of their respective rights and franchises and those of their Subsidiaries.
The Borrower will, and will cause each of its Subsidiaries to, continue to
engage primarily in the businesses now conducted by it and in related
businesses.
(b) The Borrower (i) will cause all of its properties and
those of its Subsidiaries used or useful in the conduct of its business or the
business of its Subsidiaries to be maintained and kept in good condition, repair
and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment, and (ii) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof in all cases in
which the failure so to do would have a material
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adverse effect on the condition of any Real Estate or on the financial
condition, assets or operations of the Borrower and its Subsidiaries.
SECTION 7.7. INSURANCE. The Borrower will procure and maintain or cause
to be procured and maintained insurance covering the Borrower and the Guarantor
and their respective Subsidiaries and their respective properties (the cost of
such insurance to be borne by the insured thereunder) in such amounts and
against such risks and casualties as are customary for properties of similar
character and location, due regard being given to the type of improvements
thereon, their construction, location, use and occupancy.
SECTION 7.8. TAXES. The Borrower and each Subsidiary will duly pay and
discharge, or cause to be paid and discharged, before the same shall become
overdue, all taxes, assessments and other governmental charges imposed upon it
and upon the Real Estate, sales and activities, or any part thereof, or upon the
income or profits therefrom as well as all claims for labor, materials, or
supplies that if unpaid might by law become a lien or charge upon any of its
property; provided that any such tax, assessment, charge, levy or claim need not
be paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Borrower or such Subsidiary shall
have set aside on its books adequate reserves with respect thereto; and
provided, further that forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor, the Borrower and
each Subsidiary of the Borrower either (i) will provide a bond issued by a
surety reasonably acceptable to the Agent and sufficient to stay all such
proceedings or (ii) if no such bond is provided, will pay each such tax,
assessment, charge, levy or claim.
SECTION 7.9. INSPECTION OF PROPERTIES AND BOOKS. The Borrower shall
permit the Banks, through the Agent or any representative designated by the
Agent, at the Borrower's expense to visit and inspect any of the properties of
the Borrower or any of its Subsidiaries, to examine the books of account of the
Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of the Borrower and
its Subsidiaries with, and to be advised as to the same by, its officers, all at
such reasonable times and intervals as the Agent or any Bank may reasonably
request, provided that so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower shall not be required to pay for such
visits and inspections more often than once in any twelve (12) month period. The
Banks shall use good faith efforts to coordinate such visits and inspections so
as to minimize the interference with and disruption to the Borrower's normal
business operations.
SECTION 7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS.
The Borrower will comply with, and will cause each of its Subsidiaries to comply
in all respects with (i) all applicable laws and regulations now or hereafter in
effect wherever its business is conducted, including all Environmental Laws,
(ii) the provisions of its corporate charter, partnership agreement or
declaration of trust, as the case may be, and other charter documents and
bylaws, (iii) all agreements and instruments to which it is a party or by which
it or any of its properties may be bound, (iv) all applicable decrees, orders,
and judgments, and (v) all licenses and permits required by applicable laws and
regulations for the conduct of its business or the ownership, use or operation
of its properties.
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If at any time while any Loan or Note is outstanding or the Banks have any
obligation to make Loans hereunder, any authorization, consent, approval, permit
or license from any officer, agency or instrumentality of any government shall
become necessary or 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 solely to provide short-term financing for the acquisition of fee
interests by the Borrower in certain Real Estate and improvements located
thereon in accordance with the Purchase Agreement (including the payment of
transaction costs in connection therewith).
SECTION 7.12. FURTHER ASSURANCES. Each of the Borrower and the
Guarantor will cooperate with, and will cause each of its Subsidiaries to
cooperate with the Agent and the Banks and execute such further instruments and
documents as the Banks or the Agent shall reasonably request to carry out to
their satisfaction the transactions contemplated by this Agreement and the other
Loan Documents.
SECTION 7.13. COMPLIANCE. The Borrower shall operate its business, and
shall cause each of its Subsidiaries to operate its business, in compliance with
the terms and conditions of this Agreement and the other Loan Documents. The
Guarantor shall at all times comply with all requirements of applicable laws
necessary to maintain REIT Status and shall operate its business in compliance
with the terms and conditions of this Agreement and the other Loan Documents.
SECTION 7.14.LIMITING AGREEMENTS.
(a) Neither Borrower, the Guarantor nor any of their
respective Subsidiaries shall enter into, any agreement, instrument or
transaction which has or may have the effect of prohibiting or limiting
Borrower's, the Guarantor's or any of their respective Subsidiaries' ability to
pledge to Agent any assets which are owned by the Borrower, the Guarantor or any
such Subsidiary and which are not otherwise subject to liens permitted by
ss.8.2(vi), (vii) and (viii) as security for the Loans. Borrower shall take, and
shall cause the Guarantor and their respective Subsidiaries to take, such
actions as are necessary to preserve the right and ability of Borrower, the
Guarantor and their respective Subsidiaries to pledge such assets as security
for the Loans without any such pledge after the date hereof causing or
permitting the acceleration (after the giving of notice or the passage of time,
or otherwise) of any other Indebtedness of Borrower, the Guarantor or any of
their respective Subsidiaries.
(b) Borrower shall, upon demand, provide to the Agent such
evidence as the Agent may reasonably require to evidence compliance with this
ss.7.14, which evidence shall include, without limitation, copies of any
agreements or instruments which would in any way restrict or limit the
Borrower's, any Guarantor's or any Subsidiary's ability to pledge assets as
security for Indebtedness, or which provide for the occurrence of a default
(after the giving of notice or the
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passage of time, or otherwise) if assets are pledged in the future as security
for Indebtedness of the Borrower or Guarantor.
SECTION 7.15. OWNERSHIP OF REAL ESTATE. Without the prior written
consent of the Majority Banks, which consent may be withheld by the Majority
Banks in their sole discretion, all interests (whether direct or indirect) of
the Borrower or the Guarantor in real estate assets acquired after the date
hereof shall be owned directly by the Borrower; provided, however, that the
Initial REMIC Properties may be owned by the REMIC Subsidiary; and provided
further, however, that the Initial REMIC Properties shall be conveyed by the
REMIC Subsidiary to the Borrower if the REMIC Transaction is not consummated
within sixty (60) days of the date of this Agreement.
SECTION 7.16. MORE RESTRICTIVE AGREEMENTS. Should the Borrower, the
Guarantor or any of their respective Subsidiaries enter into or modify any
agreements or documents pertaining to any existing or future Indebtedness, Debt
Offering or Equity Offering, which agreements or documents include covenants,
whether affirmative or negative (or any other provision which may have the same
practical effect as any of the foregoing), which are individually or in the
aggregate more restrictive against the Borrower, the Guarantor or their
respective Subsidiaries than those set forth in ss.8 and ss.9 of this Agreement,
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 ss.7.16 shall
not apply to covenants contained in any agreements or documents evidencing or
securing Non-recourse Indebtedness or covenants in agreements or documents
relating to recourse Indebtedness that relate only to specific Real Estate that
is collateral for such Indebtedness.
SECTOPM 7.17. INTEREST RATE CONTRACT. From and after the date of this
Agreement, the Borrower shall at all times maintain in full force and effect the
Interest Rate Contract described in ss. 10.17. The Borrower shall upon the
request of the Agent provide to the Agent evidence that such Interest Rate
Contract is in effect.
SECTION 8.CERTAIN NEGATIVE COVENANTS OF THE GUARANTOR AND THE BORROWER.
The Borrower and the Guarantor, jointly and severally, covenant and
agree that, so long as any Loan or Note is outstanding or any of the Banks has
any obligation to make any Loans:
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U8.1. 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:
(a) Indebtedness to the Banks arising under any of the
Loan Documents;
(b) current liabilities of the Borrower or its
Subsidiaries incurred in the ordinary course of business but not incurred
through (i) the borrowing of money, or (ii) the obtaining of credit except for
credit on an open account basis customarily extended and in fact extended in
connection with normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and supplies to
the extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards that
have been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the Borrower
shall at the time in good faith be prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been obtained
pending such appeal or review;
(e) endorsements for collection, deposit or negotiation
and warranties of products or services, in each case incurred in the ordinary
course of business;
(f) subject to the provisions of Section 9, Non-recourse
Indebtedness of the Borrower or any of its Subsidiaries, provided that neither
the Borrower nor any of its Subsidiaries shall incur any Non-recourse
Indebtedness unless the Borrower shall have provided to the Banks a statement
that no Default or Event of Default exists and a Compliance Certificate
demonstrating that the Borrower will be in compliance with the covenants
referred to therein after giving effect to such incurrence, and environmental
indemnities and customary exceptions to exculpatory language shall be permitted
in any such Non-recourse Indebtedness;
(g) Indebtedness in respect of reverse repurchase
agreements having a term of not more than one hundred eighty (180) days with
respect to Investments described in Section 8.3(d) or (e);
(h) subject to the provisions of Section 9, other
unsecured recourse Indebtedness of the Borrower and its Subsidiaries in an
aggregate outstanding principal amount (excluding the Obligations) not
exceeding $2,500,000.00; provided that neither the Borrower nor any of its
Subsidiaries shall incur any recourse Indebtedness described in this Section
8.1(h) unless the Borrower shall have provided to the Banks a statement that no
Default or Event of Default exists and a
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Compliance Certificate demonstrating that the Borrower will be in compliance
with the covenants referred to therein after giving effect to such incurrence;
(i) Indebtedness in respect of purchase money financing
for equipment, computers and vehicles acquired in the ordinary course of the
Borrower's business not exceeding $1,000,000.00;
(j) subject to the provisions of Section 9, recourse debt
to obtain a construction loan or loans in an aggregate amount not exceeding
$50,000,000.00;
(k) subject to the provisions of Section 9, other secured
recourse Indebtedness in a principal amount not to exceed $160,000,000.00 prior
to the consummation of the REMIC Transaction, and not to exceed $110,000,000.00
after the consummation of the REMIC Transaction;
(l) subject to the provisions of Section 9, Indebtedness
arising under any Interest Rate Contract required by the holder of Indebtedness
described in Section 8.1(k), provided that any such Indebtedness does not
materially exceed the Indebtedness under the Interest Rate Contract required by
the Revolving Credit Agreement as of the date hereof; and
(m) recourse Indebtedness existing on the date of this
Agreement and listed and described on Schedule 8.1 hereto; provided, however,
that Indebtedness permitted under this Section 8.1(m) shall not include any
Indebtedness arising out of or related to any refinancing or purported
refinancing of such existing recourse Indebtedness.
U8.2. Restrictions on Liens Etc Neither the Guarantor nor the Borrower will, nor
will either of them permit any of its Subsidiaries to, (a) create or incur or
suffer to be created or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of any kind upon any of
its property or assets of any character whether now owned or hereafter
acquired, or upon the income or profits therefrom; (b) transfer any of its
property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) acquire, or
agree or have an option to acquire, any property or assets upon conditional
sale or other title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; or (e)
sell, assign, pledge or otherwise transfer any accounts, contract rights,
general intangibles, chattel paper or instruments, with or without recourse;
provided that the Borrower, the Guarantor and any Subsidiary of either of them
may create or incur or suffer to be created or incurred or to exist:
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(i) liens in favor of the Borrower or
the Guarantor on all or part of the assets of Subsidiaries of
such Person securing Indebtedness owing by Subsidiaries of
such Person to such Person;
(ii) liens on properties to secure taxes,
assessments and other governmental charges or claims for
labor, material or supplies in respect of obligations not
overdue;
(iii) deposits or pledges made in
connection with, or to secure payment of, workers'
compensation, unemployment insurance, old age pensions or
other social security obligations;
(iv) liens on properties or any interest
therein (including the rents, issues and profits therefrom) in
respect of judgments, awards or indebtedness, the Indebtedness
with respect to which is permitted by Section 8.1(d) or
Section 8.1(f);
(v) encumbrances on properties
consisting of easements, rights of way, zoning restrictions,
restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's
liens under leases to which the Borrower, the Guarantor or a
Subsidiary of such Person is a party, and other minor liens or
encumbrances none of which interferes materially with the use
of the property affected in the ordinary conduct of the
business of the Borrower, the Guarantor or their Subsidiaries,
which defects do not individually or in the aggregate have a
materially adverse effect on the business of the Borrower or
the Guarantor individually or of such Person and its
Subsidiaries on a Consolidated basis;
(vi) liens on the specific personal
property acquired by Indebtedness permitted by Section 8.1(i);
(vii) liens on properties or interests
therein to secure Indebtedness permitted by Section 8.1(k);
(viii) liens and encumbrances on Real
Estate that is the subject of a construction loan permitted
under the terms of Section 8.1(j); and
(ix) the liens described on Schedule 8.2
hereto with respect to Indebtedness permitted under Section
8.1(m).
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U8.3. Restrictions on Investments Neither the Borrower nor the Guarantor will,
nor will either of them permit any of its Subsidiaries to, make or permit to
exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the
United States of America that mature within one (1) year from the date of
purchase by the Borrower or its Subsidiary;
(b) marketable direct obligations of any of the
following: Federal Home Loan Mortgage Corporation, Student Loan Marketing
Association, Federal Home Loan Banks, Federal National Mortgage Association,
Government National Mortgage Association, Bank for Cooperatives, Federal
Intermediate Credit Banks, Federal Financing Banks, Export-Import Bank of the
United States, Federal Land Banks, or any other agency or instrumentality of
the United States of America;
(c) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $100,000,000; provided, however, that the aggregate amount at any
time so invested with any single bank having total assets of less than
$1,000,000,000 will not exceed $200,000;
(d) securities commonly known as "commercial paper"
issued by a corporation organized and existing under the laws of the United
States of America or any State which at the time of purchase are rated by
Moody's Investors Service, Inc. or by Standard & Poor's Corporation at not less
than "P 1" if then rated by Moody's Investors Service, Inc., and not less than
"A 1", if then rated by Standard & Poor's Corporation;
(e) mortgage-backed securities guaranteed by the
Government National Mortgage Association, the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation and other
mortgage-backed bonds which at the time of purchase are rated by Moody's
Investors Service, Inc. or by Standard & Poor's Corporation at not less than
"Aa" if then rated by Moody's Investors Service, Inc. and not less than "AA" if
then rated by Standard & Poor's Corporation;
(f) repurchase agreements having a term not greater than
ninety (90) days and fully secured by securities described in the foregoing
subsection (a), (b) or (e) with banks described in the foregoing subsection (c)
or with financial institutions or other corporations having total assets in
excess of $500,000,000;
(g) shares of so-called "money market funds" registered
with the SEC under the Investment Company Act of 1940 which maintain a level
per-share value, invest principally in investments described in the foregoing
subsections (a) through (f) and have total assets in excess of $50,000,000;
(h) Investments in Subsidiaries of the Borrower or the
Guarantor, but only with the consent of the Majority Banks; provided, however,
that, subject to the obligation of the
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REMIC Subsidiary to convey the Initial REMIC Properties to the Borrower in
accordance with the provisions of Section 7.15, the REMIC Subsidiary may be
formed and an Investment made therein in the form of the transfer of the
Initial REMIC Properties to the REMIC Subsidiary upon acquisition of the
Initial REMIC Properties and the transfer of the Additional REMIC Properties to
the REMIC Subsidiary upon consummation of the REMIC Transaction and a cash
Investment not to exceed $10,000,000.00; and provided further, however, that no
additional Investments in the REMIC Subsidiary may be made without the consent
of the Majority Banks;
(i) the acquisition of fee interests by the Borrower in
Real Estate which is utilized principally for shopping centers, and, subject to
the restrictions set forth in Section 8.9 for development of new shopping
centers, the acquisition of undeveloped Real Estate;
(j) subject to the restrictions set forth in Section 8.9,
investments in real estate investment trusts which own real property which is
used principally for fee interests in Real Estate utilized principally for
shopping centers located within the United States, provided that in no event
shall the aggregate costs of all Investments pursuant to this Section 8.3(j)
exceed the amount set forth with respect thereto in the Borrower's annual
budget and business plan delivered to the Agent pursuant to Section 7.4(j); and
(k) Investments in Affiliates of the Borrower, which
Affiliates are engaged in development activity pursuant to Section 8.9, the
accounts of which Affiliate are not consolidated with the accounts of Borrower
and Investments in mortgages and notes receivables from such Affiliates,
provided that in no event shall such Investments (including the principal
amount payable pursuant to such notes) exceed fifteen percent (15%) of the
Borrower's Consolidated Total Adjusted Asset Value (provided that for purposes
of this Section 8.3(k), the Borrower's Consolidated Total Adjusted Asset Value
shall not include the amount of the Stock Purchase Commitment Allowance). For
the purposes hereof, notes receivable from Affiliates shall be valued at face
value (subject to reduction as a result of payments thereon).
U8.4. Merger, Consolidation
(a) Neither the Borrower nor the Guarantor will, nor will
either of them permit any of its Subsidiaries to, become a party to any merger
or consolidation except (i) the merger or consolidation of one or more of the
Subsidiaries of the Borrower with and into the Borrower, (ii) the merger or
consolidation of two or more Subsidiaries of the Borrower or (iii) the merger
of Guarantor in accordance with the provisions of Section 8.4(b).
(b) The Borrower has advised the Agent and the Banks that
Guarantor may reincorporate under Maryland law as a Maryland real estate
investment trust. Such reincorporation shall be accomplished through a merger
of Guarantor into a newly created Maryland real estate investment trust (the
"Maryland REIT") created solely for the purpose of effectuating such merger.
Notwithstanding any other provision of this Agreement or the other Loan
Documents to the contrary, the Banks shall consent to such merger provided that
(i) the Agent receives such evidence as the Agent may reasonably require that
all representations,
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warranties and covenants (other than representations relating to the
organization of Guarantor as of the date hereof) of or concerning the Borrower
and the Guarantor in this Agreement or the Guaranty are and shall remain true
and correct following such merger; (ii) the Agent receives and approves (such
approval not to be unreasonably withheld) certified copies of the chartering
documents of the Maryland REIT and the merger documents and evidence that the
Maryland REIT shall assume all assets and liabilities (including, without
limitation, all liabilities of Guarantor under the Loan Documents) of
Guarantor; (iii) the Maryland REIT executes and delivers to Agent a new
Guaranty in the form of the Guaranty, with such changes thereto as the Agent
may reasonably require; (iv) such merger shall not cause or result in a
dissolution of Borrower; (v) the Agent receives such evidence as the Agent may
require that the Guarantor has received all necessary consents or
authorizations for such merger including, without limitation, shareholder and
governmental consents; (vi) the Agent receives such evidence as the Agent may
require that all necessary filings with governmental authorities with respect
to such merger have been made; (vii) such merger shall not cause a Default or
Event of Default to occur; and (viii) the Agent receives such opinions of
counsel to the Maryland REIT as may be reasonably required by the Agent. From
and after the merger of Guarantor into the Maryland REIT, the Maryland REIT
shall be the Guarantor for all purposes of this Agreement and the other Loan
Documents.
U8.5. Conduct of 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 8.9, development
activities may be conducted through Affiliates of the Borrower. No
reorganizations, spin-offs or new business lines shall be established or occur
without the prior written consent of the Majority Banks.
U8.6. Compliance with Environmental Laws Neither the Borrower nor the Guarantor
will, nor will either of them permit any of its Subsidiaries, to do any of the
following: (a) use any of the Real Estate or any portion thereof as a facility
for the handling, processing, storage or disposal of Hazardous Substances,
except for small quantities of Hazardous Substances used in the ordinary course
of business and in compliance with all applicable Environmental Laws, (b) cause
or permit to be located on any of the Real Estate any underground tank or other
underground storage receptacle for Hazardous Substances except in full
compliance with Environmental Laws, (c) generate any Hazardous Substances on
any of the Real Estate except in full compliance with Environmental Laws, (d)
conduct any activity at any Real Estate or use any Real Estate in any manner so
as to cause a Release of Hazardous Substances on, upon or into the Real Estate
or any surrounding properties or any threatened Release of Hazardous Substances
which might give rise to liability under CERCLA or any other Environmental Law,
or (e) directly or indirectly transport or arrange for the transport of any
Hazardous Substances (except in compliance with all Environmental Laws).
The Borrower shall:
(i) in the event of any change in
Environmental Laws governing the assessment, release or
removal of Hazardous Substances, which change would
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lead a prudent lender to require additional testing to avail
itself of any statutory insurance or limited liability, take
all action (including, without limitation, the conducting of
engineering tests at the sole expense of the Borrower) to
confirm that no Hazardous Substances are or ever were Released
or disposed of on the Mortgaged Property; and
(ii) if any Release or disposal of
Hazardous Substances shall occur or shall have occurred on the
Real Estate (including without limitation any such Release or
disposal occurring prior to the acquisition of such Real
Estate by the Borrower), cause the prompt containment and
removal of such Hazardous Substances and remediation of the
Real Estate in full compliance with all applicable laws and
regulations and to the satisfaction of the Majority Banks;
provided, that the Borrower shall be deemed to be in
compliance with Environmental Laws for the purpose of this
clause so long as it or a responsible third party with
sufficient financial resources is taking reasonable action to
remediate or manage any event of noncompliance to the
satisfaction of the Majority Banks and no action shall have
been commenced by any enforcement agency. The Majority Banks
may engage their own Environmental Engineer to review the
environmental assessments and the Borrower's compliance with
the covenants contained herein.
At any time after an Event of Default shall have occurred hereunder,
or, whether or not an Event of Default shall have occurred, at any time that
the Agent or the Majority Banks shall have reasonable grounds to believe that a
Release or threatened Release of Hazardous Substances may have occurred,
relating to any Real Estate, or that any of the Real Estate is not in
compliance with the Environmental Laws, the Agent may at its election (and will
at the request of the Majority Banks) obtain such environmental assessments of
such Real Estate prepared by an Environmental Engineer as may be necessary or
advisable for the purpose of evaluating or confirming (i) whether any Hazardous
Substances are present in the soil or water at or adjacent to such Real Estate
and (ii) whether the use and operation of such Real Estate comply with all
Environmental Laws. Environmental assessments may include detailed visual
inspections of such Real Estate including, without limitation, any and all
storage areas, storage tanks, drains, dry wells and leaching areas, and the
taking of soil samples, as well as such other investigations or analyses as are
necessary or appropriate for a complete determination of the compliance of such
Real Estate and the use and operation thereof with all applicable Environmental
Laws. All such environmental assessments shall be at the sole cost and expense
of the Borrower.
U8.7. Distributions Neither the Borrower nor the Guarantor shall make any
Distributions which would cause it to violate any of the following covenants:
(a) The Borrower shall not pay any Distribution to its
partners if such Distribution is in excess of the amount which, when added to
the amount of all other Distributions paid in the same fiscal quarter and the
preceding three (3) fiscal quarters would
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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;
(b) In the event that an Event of Default shall have
occurred and be continuing, neither the Borrower nor the Guarantor shall make
any Distributions by the Borrower to the Guarantor and by the Guarantor other
than the minimum Distributions required under the Code to maintain the REIT
Status of the Guarantor, as evidenced by a certification of the principal
financial or accounting officer of the Guarantor containing calculations in
reasonable detail satisfactory in form and substance to Agent; and
(c) Notwithstanding the foregoing, at any time when an
Event of Default shall have occurred and the maturity of the Obligations has
been accelerated, neither the Borrower nor the Guarantor shall make any
Distributions whatsoever, directly or indirectly.
U8.8. Asset Sales Neither the Borrower, the Guarantor nor any Subsidiary thereof
shall sell, transfer or otherwise dispose of any Real Estate having an
Appraised Value in excess of $25,000,000.00 (except (i) as the result of a
condemnation or casualty, or (ii) for the granting of Permitted Liens, or (iii)
for the sale, transfer or other disposition in the ordinary course of business
of Real Estate securing Indebtedness permitted under by Section 8.1(k)) unless
there shall have been delivered to the Banks a statement that no Default or
Event of Default exists immediately prior to such sale, transfer or other
disposition or would exist after giving effect to such sale, transfer or other
disposition; provided, however, that the Additional REMIC Properties may be
transferred to the REMIC Subsidiary upon consummation of the REMIC Transaction.
U8.9. 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 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
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for a fixed amount with respect to the cost of such construction upon
completion of such construction by such tenant. The Borrower and the Guarantor
each acknowledges that the decision of the Majority Banks to grant or withhold
such consent shall be based on such factors as the Majority Banks deem relevant
in their sole discretion, including without limitation, evidence of sufficient
funds both from borrowings and equity to complete such development and evidence
that the Borrower (or any Affiliate thereof), the Guarantor or either of its
Subsidiaries has the resources and expertise necessary to complete such
project. Nothing herein shall prohibit the Borrower, the Guarantor or any of
their respective Subsidiaries thereof from entering into an agreement to
acquire Real Estate which has been developed and initially leased by another
Person. Neither the Borrower (or any Affiliate thereof), the Guarantor nor any
Subsidiary shall acquire or hold any number of undeveloped parcels of Real
Estate which in the aggregate exceed five percent (5%) of the Consolidated
Total Adjusted Asset Value of the Borrower and the Guarantor without the prior
written consent of the Majority Banks, provided that the acquisition or holding
of any outlots or property adjacent to any Real Estate owned by the Borrower
(or any Affiliate thereof), the Guarantor or any Subsidiary shall not be deemed
to be an undeveloped parcel of Real Estate for this purpose and options to
acquire any property shall not be deemed an acquisition or holding of such
property. Further, any new development project permitted under the terms of
this Section 8.9 engaged in by the Borrower (or any Affiliate thereof), the
Guarantor or any Subsidiary shall be either (a) at least seventy percent (70%)
pre-leased, including all anchors, or under a purchase agreement and all
construction bids shall be in place and any such development shall continue to
be deemed an undeveloped parcel until such time as construction commences, or
(b) sufficiently pre-leased such that based on such leases the gross income
from such leases upon completion of such project shall equal or exceed
projected operating expenses (including reserves for expenses not paid on a
monthly basis). For purposes of this Section 8.9, Consolidated Total Adjusted
Asset Value shall not include the amount of the Stock Purchase Commitment
Allowance.
U9. FINANCIAL COVENANTS OF THE GUARANTOR AND THE BORROWER The Borrower and
the Guarantor, jointly and severally, covenant and agree that, so long as any
Loan or Note is outstanding or any Bank has any obligation to make any Loans,
each of them will comply with the following:
U9.1. Liabilities to Assets Ratio Each of the Borrower and the Guarantor will
not permit the ratio of its Consolidated Total Liabilities to Consolidated
Total Adjusted Asset Value to exceed 0.65 to 1.
U9.2. Debt Service Coverage The Borrower will not permit the Borrower's
Consolidated Operating Cash Flow for the period covered by the four (4)
previous consecutive fiscal quarters (treated as a single accounting period) to
be less than 1.70 times the Debt Service of the Borrower for such period,
provided that for purposes of determining compliance with this covenant, prior
to such time as the Borrower has owned and operated a parcel of Real Estate for
four (4) full fiscal quarters, the Operating Cash Flow with respect to such
parcel of Real Estate for the number of full fiscal quarters which the Borrower
has owned and operated such parcel of Real Estate as annualized shall be
utilized. For the purpose of calculating Consolidated
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Operating Cash Flow under this Section 9.2 for any parcel of Real Estate, the
Operating Cash Flow Rental Adjustment shall be applied to any parcel of Real
Estate affected by any of the events described in the definition of Operating
Cash Flow Rental Adjustment.
U9.3. Consolidated Tangible Net Worth The Borrower will not permit its
Consolidated Tangible Net Worth to be less than $100,000,000.00 plus
seventy-five percent (75%) of any Net Offering Proceeds received by the
Borrower or the Guarantor after the Closing Date.
U10. CLOSING CONDITIONS The obligations of the Agent and the Banks to make
the Loans shall be subject to the satisfaction of the following:
U10.1. Loan Documents Each of the Loan Documents shall have been duly executed
and delivered by the respective parties thereto, shall be in full force and
effect and shall be in form and substance reasonably satisfactory to the
Majority Banks. The Agent shall have received a fully executed copy of each
such document, except that each Bank shall have received a fully executed
counterpart of its Note.
U10.2. Certified Copies of Organizational Documents The Agent shall have
received from the Borrower a copy, certified as of a recent date by the
appropriate officer of each State in which the Borrower, the Guarantor or any
of their respective Subsidiaries, as applicable, is organized or in which the
Real Estate is located and a duly authorized partner or officer of such Person,
as applicable, to be true and complete, of the partnership agreement, corporate
charter, declaration of trust or other organizational documents of the
Borrower, the Guarantor, or any Subsidiary, as applicable, or its qualification
to do business, as applicable, as in effect on such date of certification.
U10.3. Resolutions All action on the part of the Borrower, the Guarantor and any
of their respective Subsidiaries necessary for the valid execution, delivery
and performance by such Person of this Agreement and the other Loan Documents
to which such Person is or is to become a party shall have been duly and
effectively taken, and evidence thereof satisfactory to the Agent shall have
been provided to the Agent. The Agent shall have received from the Guarantor
true copies of the resolutions adopted by its board of directors authorizing
the transactions described herein, each certified by its secretary as of a
recent date to be true and complete.
U10.4. Incumbency Certificate; Authorized Signers The Agent shall have received
incumbency certificates, dated as of the Closing Date, signed by a duly
authorized officer of the Guarantor (with respect to the Borrower and the
Guarantor) and an authorized representative of the REMIC Subsidiary and giving
the name and bearing a specimen signature of each individual who shall be
authorized to sign, in the name and on behalf of the Borrower, the Guarantor
and the REMIC Subsidiary, 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 Closing Date, signed by a duly authorized partner
of the Borrower and giving the name and specimen signature of each individual
who shall be authorized to make Loan and Conversion Requests, and give notices
and to take other action on behalf of the Borrower under the Loan Documents.
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U10.5. Opinion of Counsel The Agent shall have received a favorable opinion
addressed to the Banks and the Agent and dated as of the Closing Date, in form
and substance satisfactory to the Banks and the Agent, from counsel of the
Borrower, the Guarantor and the REMIC Subsidiary as to such matters as the
Agent shall reasonably request.
U10.6. Payment of Fees The Borrower shall have paid to BankBoston the fees
required to be paid at closing pursuant to Section 4.2.
U10.7. Performance; No Default The Borrower 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.
U10.8. Representations and Warranties The representations and warranties made
by the Borrower, the Guarantor and their Subsidiaries in the Loan Documents or
otherwise made by or on behalf of the Borrower, the Guarantor or any of their
respective Subsidiaries in connection therewith or after the date thereof shall
have been true and correct in all material respects when made and shall also be
true and correct in all material respects on the Closing Date.
U10.9. Proceedings and Documents All proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be reasonably satisfactory to the Agent and the Agent's Special Counsel in form
and substance, and the Agent shall have received all information and such
counterpart originals or certified copies of such documents and such other
certificates, opinions or documents as the Agent and the Agent's Special
Counsel may reasonably require.
U10.10. Stockholder and Partner Consents The Agent shall have received evidence
satisfactory to the Agent that all necessary stockholder and partner consents
required in connection with the consummation of the transactions contemplated
by this Agreement and the other Loan Documents have been obtained.
U10.11. Compliance Certificate A Compliance Certificate dated as of the date of
the Closing Date demonstrating compliance with each of the covenants calculated
therein as of the most recent fiscal quarter end for which the Borrower or the
Guarantor has provided financial statements under Section 6.4, adjusted in the
best good faith estimate of the Borrower or the Guarantor, as applicable, dated
as of the date of the Closing Date shall have been delivered to the Agent.
U10.12. Revolving Credit Agreement The Revolving Credit Agreement shall have
been duly executed and delivered by the parties thereto.
U10.13. Purchase Agreement The transactions contemplated by the Purchase
Agreement shall have closed in accordance with the provisions of the Purchase
Agreement.
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U10.14. No Legal Impediment No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable
opinion of any Bank would make it illegal for such Bank to make such Loan.
U10.15. Governmental Regulation Each Bank shall have received such statements
in substance and form reasonably satisfactory to such Bank as such Bank shall
require for the purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the Federal Reserve
System.
U10.16. Proceedings and Documents All proceedings in connection with the Loan
shall be satisfactory in substance and in form to the Majority Banks, and the
Majority Banks shall have received all information and such counterpart
originals or certified or other copies of such documents as the Majority Banks
may reasonably request.
U10.17. Maintenance of Interest Rate Contract The Borrower shall have taken all
actions necessary to maintain in full force and effect the Interest Rate
Contract required to be maintained as of the date hereof under the Revolving
Credit Agreement. The term of such Interest Rate Contract shall not expire
before the Maturity Date. The Interest Rate Contract shall be provided by any
Bank which is a party to the Revolving Credit Agreement or a bank or other
financial institution that has unsecured, uninsured and unguaranteed long-term
debt which is rated at least A-3 by Moody's Investor Service, Inc. or at least
A- by Standard & Poor Corporation. The Borrower shall deliver to the Agent
such documents or other information as the Agent may require to evidence
compliance with this Section 10.17.
U10.18. Principal Documents On the date of this Agreement: (i) the Agent shall
have received executed or conformed copies of the Master Agreement and each of
the Ramco Agreements and RPS Contribution Agreements and any amendments
thereto; (ii) the Principal Documents shall be in full force and effect and no
material term or condition thereof shall have been amended, modified or waived
after the execution thereof, except with the prior written consent of the
Agent; (iii) none of the parties to the Principal Documents shall have failed
to perform any material obligation or covenant required by the Principal
Documents to be performed or complied with by it on or before the date of this
Agreement; and (iv) the Agent shall have received a certificate from the chief
executive or chief financial officer of the general partner of the Borrower to
the effect set forth in clauses (i), (ii) and (iii) above.
U10.19. 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.
U11. [Intentionally Omitted]
U12. EVENTS OF DEFAULT; ACCELERATION; ETC U12.1. Events of Default
and AccelerationIf any of the following events ("Events of Default" or, if the
giving of notice or the lapse of time or both is required, then, prior to such
notice or lapse of time, "Defaults") shall occur:
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(a) the Borrower shall fail to pay any principal of the
Loans after the same shall become due and payable, whether at the stated date
of maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the
Loans, or any other fees or sums due hereunder or under any of the other Loan
Documents, within ten (10) days after the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity or
at any other date fixed for payment;
(c) the Borrower or the Guarantor shall fail to comply
with any covenant contained in Section 9, and such failure shall continue for
thirty (30) days after written notice thereof shall have been given to the
Borrower by the Agent;
(d) the Borrower or the Guarantor or any of its
Subsidiaries shall fail to perform any other material term, covenant or
agreement contained herein or in any of the other Loan Documents (other than
those specified above in this Section 12), and such failure shall continue for
thirty (30) days after written notice thereof shall have been given to the
Borrower by the Agent; provided, however, that in the event that such failure
shall be a failure to comply with the terms of Section 8.7(a), the Borrower
shall be afforded a period of one (1) fiscal quarter to cure such failure
provided that the Distribution which caused such failure was historically
consistent with prior dividends;
(e) any representation or warranty made by or on behalf
of the Borrower, the Guarantor or any of their respective Subsidiaries in this
Agreement or any other Loan Document, or in any report, certificate, financial
statement, request for a Loan, or in any other document or instrument delivered
pursuant to or in connection with this Agreement, any advance of a Loan or any
of the other Loan Documents shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower, the Guarantor or any of their
respective Subsidiaries shall fail to pay at maturity, or within any applicable
period of grace, any obligation for borrowed money or credit received or other
Indebtedness, or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing any such borrowed money or credit received or other Indebtedness for
such period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof, provided that the events
described in this Section 12.1(f) shall not constitute an Event of Default
unless such failure to perform, together with other failures to perform as
described in this Section 12.1(f), involve singly or in the aggregate
obligations for borrowed money or credit received totaling in excess of
$5,000,000.00;
(g) the Borrower, the Guarantor or any of their
respective Subsidiaries, (i) shall make an assignment for the benefit of
creditors, or admit in writing its general inability to pay or generally fail
to pay its debts as they mature or become due, or shall petition or apply for
the appointment of a trustee or other custodian, liquidator or receiver of any
such Person or of any
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substantial part of the assets of any thereof; (ii) shall commence any case or
other proceeding relating to any such Person under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, or
(iii) shall take any action to authorize or in furtherance of any of the
foregoing;
(h) a petition or application shall be filed for the
appointment of a trustee or other custodian, liquidator or receiver of any of
the Borrower, the Guarantor or any of their respective Subsidiaries or any
substantial part of the assets of any thereof, or a case or other proceeding
shall be commenced against any such Person under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, and
any such Person shall indicate its approval thereof, consent thereto or
acquiescence therein or such petition, application, case or proceeding shall
not have been dismissed within sixty (60) days following the filing or
commencement thereof;
(i) a decree or order is entered appointing any trustee,
custodian, liquidator or receiver or adjudicating any of the Borrower, the
Guarantor or any of their respective Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or order
for relief is entered in respect of any such Person in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;
(j) there shall remain in force, undischarged,
unsatisfied and unstayed, for more than sixty (60) days, whether or not
consecutive, any uninsured final judgment against any of the Borrower, the
Guarantor or any of their respective Subsidiaries that, with other outstanding
uninsured final judgments, undischarged, against such Persons exceeds in the
aggregate $1,000,000.00;
(k) any of the Loan Documents shall be canceled,
terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Banks, or any action at law, suit in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower, the Guarantor, any of their respective Subsidiaries or
any of their respective holders of Voting Interests, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction shall
make a determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(l) any dissolution, termination, partial or complete
liquidation, merger or consolidation of the Borrower or the Guarantor or any of
their respective Subsidiaries or any sale, transfer or other disposition of the
assets of the Borrower or any of its Subsidiaries other than as permitted under
the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against the
Borrower or the Guarantor or any of their respective Subsidiaries which in the
good faith business judgment of the Majority
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Banks after giving consideration to the likelihood of success of such suit or
proceeding and the availability of insurance to cover any judgment with respect
thereto and based on the information available to them if adversely determined,
would have a materially adverse effect on the ability of the Borrower, the
Guarantor or any of their respective Subsidiaries to perform each and every one
of its obligations under and by virtue of the Loan Documents and such suit or
proceeding is not dismissed within sixty (60) days following the filing or
commencement thereof;
(n) the Borrower shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any assets of such Person,
including the Real Estate;
(o) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could be
expected to result in liability of the Borrower, the Guarantor or any of their
respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $1,000,000 and such event in the circumstances
occurring reasonably could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan; or a trustee shall have been appointed by the United States District
Court to administer such Plan or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
(p) without the prior written approval of the Agent, Joel
Gershenson, Dennis Gershenson, Richard Gershenson, Bruce Gershenson and Michael
Ward, their family members or estate planning trusts established for their
benefit, shall in the aggregate own, directly or indirectly, less than fifty
percent (50%) of the issued and outstanding partnership interests or shares of
the Borrower and the Guarantor, as applicable, on a Consolidated basis, owned
by such Persons as of June 16, 1997, as such ownership interests as of June 16,
1997, are shown on Schedule 3 hereto;
(q) either of the Chairman or Chief Executive Officer of
the Borrower approved by the Majority Banks as of the date of this Agreement
shall cease to be the Chairman or Chief Executive Officer, as applicable, of
the Borrower and a competent and experienced successor for such Person shall
not be approved by the Agent within six (6) months of such event, such approval
not to be unreasonably withheld;
(r) any Event of Default (as defined in any of the other
Loan Documents) shall occur; or
(s) any "Event of Default" (as defined in the Revolving
Credit Agreement) shall occur;
then, and in any such event, the Agent may, and upon the request of the
Majority Banks shall, by notice in writing to the Borrower declare all amounts
owing with respect to this Agreement, the Notes, and the other Loan Documents
to be, and they shall thereupon forthwith become,
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immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower.
U12.2. Limitation of Cure Periods Notwithstanding the provisions of subsections
(b), (c) and (d) of Section 12.1, the cure periods provided therein shall not
be allowed and the occurrence of a Default thereunder immediately shall
constitute an Event of Default for all purposes of this Agreement and the other
Loan Documents if, within the period of twelve (12) months immediately
preceding the occurrence of such Default, there shall have occurred two (2)
periods of cure or portions thereof under any one or more than one of said
subsections.
U12.3. [Intentionally Omitted]
U12.4. Remedies In case any one or more of the Events of Default shall have
occurred and be continuing, and whether or not the Banks shall have accelerated
the maturity of the Loans pursuant to Section 12.1, the Agent on behalf of the
Banks may, with the consent of the Majority Banks but not otherwise, proceed to
protect and enforce their rights and remedies under this Agreement, the Notes,
or any of the other Loan Documents by suit in equity, action at law or other
appropriate proceeding, whether for the specific performance of any covenant or
agreement contained in this Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations are evidenced, including to the
full extent permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right. No remedy herein conferred upon the Agent or the
holder of any Note is intended to be exclusive of any other remedy and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or any other provision of law. In the event that all or any portion of the
Obligations is collected by or through an attorney-at-law, the Borrower shall
pay all costs of collection including, but not limited to, reasonable
attorneys' fees.
U12.5. Distribution of Proceeds In the event that, following the occurrence or
during the continuance of any Event of Default, any monies are received in
connection with the enforcement of any of the Loan Documents, or otherwise with
respect to the realization upon any of the assets of the Borrower or the
Guarantor, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or sustained
by the Agent in connection with the collection of such monies by the Agent, for
the exercise, protection or enforcement by the Agent of all or any of the
rights, remedies, powers and privileges of the Agent under this Agreement or
any of the other Loan Documents or in support of any provision of adequate
indemnity to the Agent against any taxes or liens which by law shall have, or
may have, priority over the rights of the Agent to such monies;
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(b) Second, to all other Obligations in such order of
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) 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 (iii) 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
(c) Third, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
U13. SETOFF Regardless of the adequacy of any collateral, during the
continuance of any Event of Default, any deposits (general or specific, time or
demand, provisional or final, regardless of currency, maturity, or the branch
of where such deposits are held) or other sums credited by or due from any of
the Banks to the Borrower or the Guarantor and any securities or other property
of the Borrower or the Guarantor in the possession of such Bank may be applied
to or set off against the payment of Obligations of such Person and any and all
other liabilities, direct, or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, of such Person to such Bank.
Each of the Banks agrees with each other Bank that if such Bank shall receive
from the Borrower or the Guarantor, whether by voluntary payment, exercise of
the right of setoff, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Bank any amount in excess of its ratable portion
of the payments received by all of the Banks with respect to the Notes held by
all of the Banks, such Bank will make such disposition and arrangements with
the other Banks with respect to such excess, either by way of distribution, pro
tanto assignment of claims, subrogation or otherwise as shall result in each
Bank receiving in respect of the Notes held by it its proportionate payment as
contemplated by this Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
U14. THE AGENT U14.1. 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.
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U14.2. 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.
U14.3. 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.
U14.4. No Representations The Agent shall not be responsible for the execution
or validity or enforceability of this Agreement, the Notes, any of the other
Loan Documents or any instrument at any time constituting, or intended to
constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of
any such amounts owing with respect to the Notes, or for any recitals or
statements, warranties or representations made herein or in any of the other
Loan Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrower, the Guarantor or any of their respective
Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or
in any other of the Loan Documents. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to it by the Borrower,
the Guarantor or any holder of any of the Notes shall have been duly authorized
or is true, accurate and complete. The Agent has not made nor does it now make
any representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the creditworthiness or financial
condition of the Borrower, the Guarantor or any of their respective
Subsidiaries or the value of any of the assets of the Borrower, the Guarantor
or their respective Subsidiaries. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
upon such information and documents as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, based upon such information and documents as it deems
appropriate at the time, continue to make its own credit analysis and decisions
in taking or not taking action under this Agreement and the other Loan
Documents.
U14.5. Payments
(a) A payment by the Borrower or the Guarantor to the
Agent hereunder or under any of the other Loan Documents for the account of any
Bank shall constitute a payment to such Bank. The Agent agrees to distribute
to each Bank not later than one Business Day after the Agent's receipt of good
funds, determined in accordance with the Agent's customary practices,
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such Bank's pro rata share of payments received by the Agent for the account of
the Banks except as otherwise expressly provided herein or in any of the other
Loan Documents. In the event the Agent fails to distribute such amounts within
one Business Day as provided above, the Agent shall pay interest on such amount
at a rate per annum equal to the Federal Funds Effective Rate from time to time
in effect.
(b) If in the opinion of the Agent the distribution of
any amount received by it in such capacity hereunder, under the Notes or under
any of the other Loan Documents might involve it in liability, it may refrain
from making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such distribution shall have
been made shall either repay to the Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court. In the event that the Agent
shall refrain from making any distribution of any amount received by it as
provided in this Section 14.5(b), the Agent shall endeavor to hold such amounts
in an interest bearing account and at such time as such amounts may be
distributed to the Banks, the Agent shall distribute to each Bank, based on
their respective Commitment Percentages, its pro rata share of the interest or
other earnings from such deposited amount.
(c) Notwithstanding anything to the contrary contained in
this Agreement or any of the other Loan Documents, any Bank that fails (i) to
make available to the Agent its pro rata share of any Loan or (ii) to comply
with the provisions of Section 13 with respect to making dispositions and
arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Banks, in each case as, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a "Delinquent Bank") and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A Delinquent Bank shall be deemed
to have assigned any and all payments due to it from the Borrower, whether on
account of outstanding Loans, interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction of, their respective pro
rata shares of all outstanding Loans. The Delinquent Bank hereby authorizes
the Agent to distribute such payments to the nondelinquent Banks in proportion
to their respective pro rata shares of all outstanding Loans. A Delinquent
Bank shall be deemed to have satisfied in full a delinquency when and if, as a
result of application of the assigned payments to all outstanding Loans of the
nondelinquent Banks or as a result of other payments by the Delinquent Banks to
the nondelinquent Banks, the Banks' respective pro rata shares of all
outstanding Loans have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
U14.6. 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.
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U14.7. 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.
U14.8. Agent as Bank In its individual capacity, BankBoston shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes as
it would have were it not also the Agent.
U14.9. 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 Moody's Investors Service, Inc. or not less than
"A" or its equivalent by Standard & Poor's Rating Group Inc. and which has a
net worth of not less than $500,000,000. If no successor Agent shall have been
so appointed by the Majority Banks and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be any Bank or a bank whose debt obligations are
rated not less than "A" or its equivalent by Moody's Investors Service, Inc. or
not less than "A" or its equivalent by Standard & Poor's Rating Group Inc. and
which has a net worth of not less than $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder as Agent. After any
retiring Agent's resignation, the provisions of this Agreement and the other
Loan Documents shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
U14.10. Duties in the Case of 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 exercise all or any legal and equitable and
other rights or remedies as it may have. The Majority Banks may direct the
Agent in writing as to the method and the extent of any such exercise, the
Banks hereby agreeing to indemnify and hold the Agent harmless from all
liabilities incurred in respect of all actions taken or omitted in accordance
with such directions, provided that the Agent need not comply with any such
direction to the extent that the Agent reasonably believes the Agent's
compliance with such direction to be unlawful or commercially unreasonable in
any applicable jurisdiction.
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U14.11. 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.
U15. EXPENSES The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Agreement, the other Loan Documents and the
other agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Banks (other than taxes based upon the Agent's or any Bank's gross or net
income), (c) the reasonable fees, expenses and disbursements of the counsel to
the Agent and any local counsel to the Agent incurred in connection with the
preparation, administration or interpretation of the Loan Documents and other
instruments mentioned herein (excluding, however, the preparation of agreements
evidencing participation granted under Section 18.4), each closing hereunder,
and amendments, modifications, approvals, consents or waivers hereto or
hereunder, (d) the reasonable fees, expenses and disbursements of the Agent
incurred by the Agent in connection with the preparation or interpretation of
the Loan Documents and other instruments mentioned herein, and the making of
each advance hereunder, (e) all reasonable out- of-pocket expenses (including
reasonable attorneys' fees and costs, which attorneys may be employees of any
Bank or the Agent and the fees and costs of appraisers, engineers, investment
bankers or other experts retained by any Bank or the Agent) incurred by any
Bank or the Agent in connection with (i) the enforcement of or preservation of
rights under any of the Loan Documents against the Borrower or the Guarantor or
the administration thereof after the occurrence of a Default or Event of
Default and (ii) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to the Agent's or any of the Bank's
relationship with the Borrower or the Guarantor, (f) all reasonable fees,
expenses and disbursements of any Bank or the Agent incurred in connection with
UCC searches, UCC filings, title rundowns, title searches or mortgage
recordings, (g) all reasonable fees, expenses and disbursements (including
reasonable attorneys' fees and costs) which may be incurred by BankBoston and
the other Banks in connection with the execution and delivery of this Agreement
and the other Loan Documents, and (h) all reasonable fees and expenses and
disbursements (including reasonable attorneys' fees and costs), not to exceed
$5,000.00 in the aggregate, which may be incurred by BankBoston in connection
with each and every assignment of interests in the Loans pursuant to Section
18.1. The covenants of this Section 15 shall survive payment or satisfaction
of payment of amounts owing with respect to the Notes.
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U16. INDEMNIFICATION The Borrower and the Guarantor, jointly and
severally, agree to indemnify and hold harmless the Agent and the Banks and
each director, officer, employee, agent and Person who controls the Agent or
any Bank from and against any and all claims, actions and suits, whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of or relating
to this Agreement or any of the other Loan Documents or the transactions
contemplated hereby and thereby including, without limitation (a) any leasing
fees and any brokerage, finders or similar fees asserted against any Person
indemnified under this Section 16 based upon any agreement, arrangement or
action made or taken, or alleged to have been made or taken, by the Borrower,
the Guarantor or any of their respective Subsidiaries, (b) any condition of the
Real Estate, (c) any actual or proposed use by the Borrower or the Guarantor of
the proceeds of any of the Loans, (d) any actual or alleged infringement of any
patent, copyright, trademark, service mark or similar right of any of the
Borrower, the Guarantor or any of their respective Subsidiaries, (e) the
Borrower entering into or performing this Agreement or any of the other Loan
Documents, (f) any actual or alleged violation of any law, ordinance, code,
order, rule, regulation, approval, consent, permit or license relating to the
Real Estate, or (g) with respect to the Borrower, the Guarantor and their
respective Subsidiaries and their respective properties and assets, the
violation of any Environmental Law, the Release or threatened Release of any
Hazardous Substances or any action, suit, proceeding or investigation brought
or threatened with respect to any Hazardous Substances (including, but not
limited to, claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding;
provided, however, that neither the Borrower nor the Guarantor shall be
obligated under this Section 16 to indemnify any Person for liabilities arising
from such Person's own gross negligence or willful misconduct. In litigation,
or the preparation therefor, the Banks and the Agent shall be entitled to
select a single nationally recognized law firm as their own counsel and, in
addition to the foregoing indemnity, the Borrower and the Guarantor agree to
pay promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Borrower and the Guarantor under this
Section 16 are unenforceable for any reason, the Borrower and the Guarantor
hereby agree to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law. The provisions of
this Section 16 shall survive the repayment of the Loans and the termination of
the obligations of the Banks hereunder.
U17. SURVIVAL OF COVENANTS, ETC. All covenants, agreements, representations
and warranties made herein, in the Notes, in any of the other Loan Documents or
in any documents or other papers delivered by or on behalf of the Borrower, the
Guarantor or any of their respective Subsidiaries pursuant hereto or thereto
shall be deemed to have been relied upon by the Banks and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of any of the Loans, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Agreement or the Notes or any of the other Loan Documents
remains outstanding or any Bank has any obligation to make any Loans. The
indemnification obligations of the Borrower and the Guarantor provided herein
and the other Loan Documents shall survive the full repayment of
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amounts due and the termination of the obligations of the Banks hereunder and
thereunder to the extent provided herein and therein. All statements contained
in any certificate or other paper delivered to any Bank or the Agent at any
time by or on behalf of the Borrower, the Guarantor or any of their respective
Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by such
Person hereunder.
U18. ASSIGNMENT AND PARTICIPATION U18.1. Conditions to Assignment by 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, together with
any Notes subject to such assignment, (d) in no event shall any voting, consent
or approval rights of a Bank be assigned to any Person controlling, controlled
by or under common control with, or which is not otherwise free from influence
or control by, any of the Borrower or the Guarantor, which rights shall instead
be allocated pro rata among the other remaining Banks, (e) such assignee shall
have a net worth as of the date of such assignment of not less than
$500,000,000, (f) such assignee shall acquire an interest in the Loans of not
less than $5,000,000, (g) the assignor shall assign its entire interest in the
Loans or retain an interest in the Loans of not less than $5,000,000 and (h)
each such assignment shall be subject to the approval of the Agent, which
approval shall not be unreasonably withheld. Upon such execution, delivery,
acceptance and recording, of such notice of assignment, (i) the assignee
thereunder shall be a party hereto and all other Loan Documents executed by the
Banks and, to the extent provided in such assignment, have the rights and
obligations of a Bank hereunder, and (ii) the assigning Bank shall, to the
extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in Section 18.2, be released from its obligations
under this Agreement. In connection with each assignment, the assignee shall
represent and warrant to the Agent, the assignor and each other Bank as to
whether such assignee is controlling, controlled by, under common control with
or is not otherwise free from influence or control by, the Borrower or the
Guarantor. In the event that, as of result of any such assignment, the Agent
in its capacity as a Bank retains an interest in the Loans of less than
$15,000,000 and such amount is less than the retained interest of any other
Bank, then the Agent shall offer to resign as Agent for the Banks. Upon any
such assignment, the Agent may unilaterally amend Schedule 1 to reflect any
such assignment.
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U18.2. Register The Agent shall maintain a copy of each assignment delivered to
it and a register or similar list (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment Percentages of, and
principal amount of the Loans owing to the Banks from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and
the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,000.
U18.3. New 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.
U18.4. 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.
U18.5. 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. 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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U18.6. 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.
U18.7. 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.
U18.8. 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.
U19. NOTICES Each notice, demand, election or request provided for or
permitted to be given pursuant to this Agreement (hereinafter in this Section
19 referred to as "Notice"), but specifically excluding to the maximum extent
permitted by law any notices of the institution or commencement of foreclosure
proceedings, must be in writing and shall be deemed to have been properly given
or served by personal delivery or by sending same by overnight courier or by
depositing same in the United States Mail, postpaid and registered or
certified, return receipt requested, or as expressly permitted herein, by
telegraph, telecopy, telefax or telex, and addressed as follows:
If to the Agent or BankBoston:
BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
With a copy to:
BankBoston, N.A.
115 Perimeter Center Place, NE
Suite 500
Atlanta, Georgia 30346
Attn: Daniel L. Silbert
Telecopy No.: (770) 390-8434
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and to:
Long Aldridge & Norman LLP
5300 SunTrust Tower
303 Peachtree Street
Atlanta, Georgia 30308
Attn: William F. Timmons, Esq.
Telecopy No: (404) 527-4198
If to the Borrower or the Guarantor:
Ramco-Gershenson Properties, L.P.
Ramco-Gershenson Properties Trust
27600 Northwestern Highway
Southfield, Michigan 48034
Attn: Chief Executive Officer
Telecopy No. (248) 350-9925
With a copy to:
Honigman Miller Schwartz & Cohn
2290 First National Building
Detroit, MI 48226
Attn: Alan M. Hurvitz, Esq.
Telecopy No. (313) 962-0176
and to each other Bank which may hereafter become a party to this Agreement at
such address as may be designated by such Bank. Each Notice shall be effective
upon being personally delivered or upon being sent by overnight courier or upon
being deposited in the United States Mail as aforesaid. The time period in
which a response to such Notice must be given or any action taken with respect
thereto (if any), however, shall commence to run from the date of receipt if
personally delivered or sent by overnight courier, or if so deposited in the
United States Mail, the earlier of three (3) Business Days following such
deposit or the date of receipt as disclosed on the return receipt. Rejection
or other refusal to accept or the inability to deliver because of changed
address for which no notice was given shall be deemed to be receipt of the
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.
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U20. RELATIONSHIP Neither the Agent nor any Bank has any fiduciary
relationship with or fiduciary duty to the Borrower, the Guarantor or their
respective Subsidiaries arising out of or in connection with this Agreement or
the other Loan Documents or the transactions contemplated hereunder and
thereunder, and the relationship between each Bank and the Borrower is solely
that of a lender and borrower, and nothing contained herein or in any of the
other Loan Documents shall in any manner be construed as making the parties
hereto partners, joint venturers or any other relationship other than lender
and borrower.
U21. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE THIS AGREEMENT AND
EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF MICHIGAN AND SHALL FOR
ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH
STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE
BORROWER AND THE GUARANTOR EACH AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS
OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR THE GUARANTOR BY MAIL
AT THE ADDRESS SPECIFIED IN SECTION 19. THE BORROWER AND THE GUARANTOR EACH
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
U22. HEADINGS The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
U23. COUNTERPARTS This Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
U24. ENTIRE AGREEMENT, ETC The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding
of the parties with respect to the transactions contemplated hereby. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in Section 27.
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U25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS EACH OF THE BORROWER,
THE GUARANTOR, THE AGENT AND THE BANKS HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE
BORROWER AND THE GUARANTOR EACH HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. THE BORROWER AND THE GUARANTOR EACH (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 25.
U26. DEALINGS WITH THE BORROWER OR THE GUARANTOR The Banks and their
affiliates may accept deposits from, extend credit to and generally engage in
any kind of banking, trust or other business with the Borrower, the Guarantor,
their respective Subsidiaries or any of their affiliates regardless of the
capacity of the Bank hereunder.
U27. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise expressly
provided in this Agreement, any consent or approval required or permitted by
this Agreement may be given and any term of this Agreement or of any other
instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower or the Guarantor of any terms of this
Agreement or such other instrument or the continuance of any Default or Event
of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Majority Banks. Notwithstanding the foregoing, none of the following
may occur without the written consent of each Bank: a change in the rate of
interest on and the term of the Notes; the amount of the Commitments of the
Banks; a reduction or waiver of the principal of any unpaid Loan or any
interest thereon; the amount of any fee (other than late fees) payable to a
Bank hereunder; the release of the Borrower or the Guarantor except as
otherwise provided herein; or an amendment of the definition of Majority Banks
or of any requirement for consent by all of the Banks. The amount of the
Agent's fee payable for the Agent's account and the provisions of Section 14
may not be amended without the written consent of the Agent. The Borrower and
the Guarantor each agrees to enter into such modifications or amendments of
this Agreement or the other Loan Documents as may be reasonably requested by
BankBoston in connection with the acquisition by each Bank acquiring all or a
portion of the Commitment, provided that no such amendment or modification
materially affects or increases any of the obligations of the Borrower or the
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Guarantor hereunder. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of dealing
or delay or omission on the part of the Agent or any Bank in exercising any
right shall operate as a waiver thereof or otherwise be prejudicial thereto.
No notice to or demand upon the Borrower or the Guarantor shall entitle the
Borrower and the Guarantor to other or further notice or demand in similar or
other circumstances.
U28. SEVERABILITY The provisions of this Agreement are severable, and
if any one clause or provision hereof shall be held invalid or unenforceable in
whole or in part in any jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision, or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
U29. TIME OF THE ESSENCE Time is of the essence with respect to each and every
covenant, agreement and obligation of the Borrower or the Guarantor under this
Agreement and the other Loan Documents.
U30. NO UNWRITTEN AGREEMENTS THE WRITTEN LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. ANY ADDITIONAL TERMS OF THE
AGREEMENT BETWEEN THE PARTIES ARE SET FORTH BELOW.
U31. TRUST EXCULPATION All persons having a claim against the Guarantor, the
general partner of the Borrower whose signature is affixed hereto as said
general partner, hereunder or in connection with any matter that is subject
hereof shall look solely to the trust assets of the trust, and in no event
shall the obligations of the Guarantor be enforceable against any shareholder,
trustee, officer, employee or agent of the Guarantor personally.
[SIGNATURE PAGES FOLLOW]
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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-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
-----------------------------
Dennis Gershenson, President
RAMCO-GERSHENSON PROPERTIES, L.P.
By: Ramco-Gershenson Properties
Trust, its General Partner
By: Dennis Gershenson
----------------------------
Dennis Gershenson, President
<PAGE> 81
BANKBOSTON, N.A.,
individually and as Agent
By: /s/ Jeffrey L. Warwick
-------------------------
Jeffrey L. Warwick
Director
<PAGE> 82
EXHIBIT A
FORM OF NOTE
EXHIBIT B
FORM OF
COMPLIANCE CERTIFICATE
EXHIBIT C
FORM OF REQUEST FOR EXTENSION OF LOAN
SCHEDULE 1
BANKS AND COMMITMENTS
SCHEDULE 2
REMIC PROPERTIES
SCHEDULE 3
PARTNERSHIP AND SHARE OWNERSHIP
<PAGE> 83
AS OF JUNE 16, 1997
SCHEDULE 6.7
LITIGATION
SCHEDULE 6.15
AFFILIATE TRANSACTIONS
SCHEDULE 6.19
SUBSIDIARIES OF THE BORROWER
SCHEDULE 6.22
AGREEMENTS
<PAGE> 1
EXHIBIT 10.8
NOTE
$45,000,000.00 October 30, 1997
FOR VALUE RECEIVED, the undersigned RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership, hereby promises to pay to BANKBOSTON, N.A., a
national banking association, or order, in accordance with the terms of that
certain Unsecured Term Loan Agreement dated as of October 30, 1997 (the "Term
Loan Agreement"), as from time to time in effect, among the undersigned,
BankBoston, N.A., for itself and as Agent, and such other Banks as may be from
time to time named therein, to the extent not sooner paid, on or before the
Maturity Date, the principal sum of Forty-Five Million and No/100 Dollars
($45,000,000.00), or such amount as may be advanced by the payee hereof under
the Term Loan Agreement with daily interest from the date hereof, computed as
provided in the Term Loan Agreement, on the principal amount hereof from time
to time unpaid, at a rate per annum on each portion of the principal amount
which shall at all times be equal to the rate of interest applicable to such
portion in accordance with the Term Loan Agreement, and with interest on
overdue principal and, to the extent permitted by applicable law, on overdue
installments of interest and late charges at the rates provided in the Term
Loan Agreement. Interest shall be payable on the dates specified in the Term
Loan Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Term Loan Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, 100 Federal Street, Boston, Massachusetts 02110.
This Note is one of one or more Notes evidencing borrowings under and
is entitled to the benefits and subject to the provisions of the Term Loan
Agreement. The principal of this Note may be due and payable in whole or in
part prior to the maturity date stated above and is subject to mandatory
prepayment in the amounts and under the circumstances set forth in the Term
Loan Agreement, and may be prepaid in whole or from time to time in part, all
as set forth in the Term Loan Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Borrower and the Banks and the Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited
so that in no contingency, whether by reason of acceleration of the maturity of
any of the Obligations or otherwise, shall the interest contracted for, charged
or received by the Banks exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Banks in excess of the maximum lawful amount, the interest payable to
the Banks shall be reduced to the maximum amount permitted under applicable
law; and if from any circumstance the Banks shall ever receive anything of
value deemed interest by applicable law in excess of the maximum lawful amount,
an amount equal to any excessive interest shall be applied to the reduction of
the principal balance of the Obligations of the
<PAGE> 2
undersigned Borrower and to the payment of interest or, if such excessive
interest exceeds the unpaid balance of principal of the Obligations of the
undersigned Borrower, such excess shall be refunded to the undersigned
Borrower. All interest paid or agreed to be paid to the Banks shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations of the undersigned Borrower (including the period of any renewal or
extension thereof) so that the interest thereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between the undersigned Borrower and the Banks and the
Agent.
In case an Event of Default shall occur, the entire principal amount
of this Note may become or be declared due and payable in the manner and with
the effect provided in said Term Loan Agreement. In addition to and not in
limitation of the foregoing and the provisions of the Term Loan Agreement
hereinabove defined, the undersigned further agrees, subject only to any
limitation imposed by applicable law, to pay all expenses, including reasonable
attorneys' fees and legal expenses, incurred by the holder of this Note in
endeavoring to collect any amounts payable hereunder which are not paid when
due, whether by acceleration or otherwise.
This Note shall be governed by and construed in accordance with the
laws of the State of Michigan (without giving effect to the conflict of laws
rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Term Loan Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without
notice.
IN WITNESS WHEREOF the undersigned has by its duly authorized
officers, executed this Note under seal as of the day and year first above
written.
RAMCO-GERSHENSON PROPERTIES, L.P.
By: Ramco-Gershenson Properties Trust,
its General Partner
By: /s/ Dennis Gershenson
------------------------------------
Title: President, Dennis Gershenson
---------------------------------
<PAGE> 1
EXHIBIT 10.9
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE is made
as of this 30th day of October, 1997, by Ramco-Gershenson Properties Trust, a
Massachusetts real estate investment trust, having its principal place of
business and chief executive office at 27600 Northwestern Highway, Suite 200,
Southfield, Michigan 48034 (the "Guarantor"), in favor of BankBoston, N.A., as
Agent on behalf of the Banks, having an office at 100 Federal Street, Boston,
Massachusetts 02110 (the "Agent").
WHEREAS, the Guarantor is the general partner and owner of
approximately 68.77% of the partnership interests of Ramco-Gershenson
Properties, L.P., a Delaware limited partnership (the "Debtor"); and
WHEREAS, the Agent (in its capacity as agent and in its
capacity as a Bank) is entering into an Unsecured Term Loan Agreement of even
date herewith (as the same may hereafter be amended, supplemented or modified
from time to time, the "Term Loan Agreement") with the Guarantor and the Debtor,
whereby the Debtor will become liable for the "Obligations" (as that term is
defined in the Term Loan Agreement) including, without limitation, loans and
other financial accommodations from the Banks (including the Agent in its
capacity as a Bank thereunder) under the Term Loan Agreement of $45,000,000 (all
Obligations being hereinafter referred to as the "Indebtedness"); and
WHEREAS, it is a condition precedent to the effectiveness of
the Term Loan Agreement that this Guaranty be executed and delivered by the
Guarantor in favor of the Agent; and
WHEREAS, the Guarantor will derive substantial benefit and
advantage from the financial accommodations to the Debtor set forth in the Term
Loan Agreement including the loans and advances made to the Debtor thereunder,
and it will be to the Guarantor's direct interest and economic benefit to assist
the Debtor in procuring said financial accommodations from the Banks;
NOW, THEREFORE, for and in consideration of the premises and
in order to induce the Agent and the Banks to enter into the Term Loan Agreement
and the Banks to make loans thereunder, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows (unless otherwise defined herein all
capitalized terms used herein shall have their meanings as set forth in the Term
Loan Agreement):
1. Guaranty of Payment.
(a) The Guarantor hereby unconditionally guaranties the full
and prompt payment to the Agent, on behalf of the Banks when due, upon demand,
at maturity or by reason of acceleration or otherwise and at all times
thereafter, of any and all of the Indebtedness.
<PAGE> 2
(b) The Guarantor acknowledges that valuable consideration
supports this Guaranty, including, without limitation, the consideration set
forth in the recitals above as well as any commitment to lend, extension of
credit or other financial accommodation, whether heretofore or hereafter made by
the Banks to the Debtor; any extension, renewal or replacement of any of the
Indebtedness; any forbearance with respect to any of the Indebtedness or
otherwise; any cancellation of an existing guaranty; any purchase of any of the
Debtor's assets by the Banks; or any other valuable consideration.
(c) The Guarantor agrees that all payments under this Guaranty
shall be made in United States currency and the same manner as provided for the
Indebtedness.
2. The Banks' Costs and Expenses.
The Guarantor agrees to pay on demand, if not paid by the
Debtor, all reasonable costs and expenses of every kind incurred by the Agent or
the Banks: (a) in enforcing this Guaranty, (b) in collecting any of the
Indebtedness from the Debtor or the Guarantor, (c) in realizing upon or
protecting any collateral for this Guaranty or for payment of any of the
Indebtedness, and (d) for any other purpose related to the Indebtedness or this
Guaranty. "Costs and expenses" as used in the preceding sentence shall include,
without limitation, the actual reasonable attorneys' fees incurred by the Agent
or any Bank in retaining counsel for advice, suit, appeal, any insolvency or
other proceedings under the United States Bankruptcy Code or otherwise, or for
any purpose specified in the preceding sentence.
3. Nature of Guaranty: Continuing, Absolute and Unconditional.
(a) This Guaranty is and is intended to be a continuing
guaranty of payment of the Indebtedness, independent of and in addition to any
other guaranty, indorsement, collateral or other agreement held by the Agent or
the Banks therefor or with respect thereto, whether or not furnished by the
Guarantor. The obligations of the Guarantor to repay the Indebtedness hereunder
shall be unlimited. The Guarantor shall have no right of subrogation with
respect to any payments made by the Guarantor hereunder, and hereby waives any
benefit of, and any right to participate in, any security or collateral given to
the Agent or the Banks to secure payment of the Indebtedness, until all of the
Indebtedness outstanding or contracted or committed for (whether or not
outstanding) is paid in full, and the Guarantor agrees that it will not take any
action to enforce any obligations of the Debtor to the Guarantor prior to the
Indebtedness being paid in full, provided that, in the event of the bankruptcy
or insolvency of the Debtor, the Agent, on behalf of the Banks, shall be
entitled notwithstanding the foregoing, to file in the name of the Guarantor or
in its own name a claim for any and all indebtedness owing to the Guarantor by
the Debtor, vote such claim and to apply the proceeds of any such claim to the
Indebtedness.
(b) Except as otherwise provided for in Section 8.7 of the
Term Loan Agreement, for the further security of the Banks and without in any
way diminishing the liability of the Guarantor, following the occurrence of an
Event of Default under the Term Loan Agreement and
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<PAGE> 3
acceleration of the Indebtedness, all debts and liabilities, present or future
of the Debtor to the Guarantor and all monies received from the Debtor or for
its account by the Guarantor in respect thereof shall be received in trust for
the Banks and forthwith upon receipt shall be paid over to the Agent, on behalf
of the Banks, until all of the Indebtedness has been paid in full. This
assignment and postponement is independent of and severable from this Guaranty
and shall remain in full effect whether or not the Guarantor is liable for any
amount under this Guaranty.
(c) This Guaranty is absolute and unconditional and shall not
be changed or affected by any representation, oral agreement, act or thing
whatsoever, except as herein provided. This Guaranty is intended by the
Guarantor to be the final, complete and exclusive expression of the guaranty
agreement between the Guarantor and the Agent, on behalf of the Banks. No
modification or amendment of any provision of this Guaranty shall be effective
unless in writing and signed by a duly authorized officer of the Agent, on
behalf of the Banks.
(d) In the event of the business failure of Guarantor or if
there shall be pending any bankruptcy or insolvency case or proceeding with
respect to Guarantor under federal bankruptcy law or any other applicable law or
in connection with the insolvency of Guarantor, or if a liquidator, receiver, or
trustee shall have been appointed for Guarantor or Guarantor's properties or
assets, Agent on behalf of the Banks may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of Agent on behalf of the Banks allowed in any proceedings relative to
Guarantor, or any of Guarantor's properties or assets, and, irrespective of
whether the indebtedness or other obligations of Debtor guaranteed hereby shall
then be due and payable, by declaration or otherwise, Agent on behalf of the
Banks shall be entitled and empowered to file and prove a claim for the whole
amount of any sums or sums owing with respect to the indebtedness or other
obligations of Debtor guaranteed hereby, and to collect and receive any moneys
or other property payable or deliverable on any such claim. Guarantor covenants
and agrees that upon the commencement of a voluntary or involuntary bankruptcy
proceeding by or against Debtor or any other guarantor, Guarantor shall not seek
a supplemental stay or otherwise pursuant to 11 U.S.C. ss.105 or any other
provision of the Bankruptcy Reform Act of 1978, as amended, or any other debtor
relief law (whether statutory, common law, case law, or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, to stay, interdict, condition, reduce or inhibit the ability of
Agent to enforce any rights of Agent against Guarantor by virtue of this
Guaranty or otherwise.
4. Certain Rights and Obligations.
(a) The Guarantor authorizes the Agent and the Banks, without
notice, demand or any reservation of rights against the Guarantor and without
affecting the Guarantor's obligations hereunder, from time to time: (i) to
renew, extend, increase, accelerate or otherwise change the time for payment of,
the terms of or the interest on the Indebtedness or any partthereof or grant
other indulgences to the Debtor or others; (ii) to accept from any Person and
hold collateral for the payment of the Indebtedness or any part thereof, and to
modify, exchange, enforce or refrain from enforcing, or release, compromise,
settle, waive, subordinate or surrender, with or without
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<PAGE> 4
consideration, such collateral or any part thereof; (iii) to accept and hold any
indorsement or guaranty of payment of the Indebtedness or any part thereof, and
to discharge, release or substitute any such obligation of any such indorser or
guarantor, or any Person who has given any security interest in any collateral
as security for the payment of the Indebtedness or any part thereof, or any
other Person in any way obligated to pay the Indebtedness or any part thereof,
and to enforce or refrain from enforcing, or compromise or modify, the terms of
any obligation of any such indorser, guarantor, or Person; (iv) to dispose of
any and all collateral securing the Indebtedness in any manner as the Banks, in
their sole discretion, may deem appropriate, and to direct the order or manner
of such disposition and the enforcement of any and all endorsements and
guaranties relating to the Indebtedness or any part thereof as the Banks in
their sole discretion may determine; (v) except as otherwise provided in the
Term Loan Agreement, to determine the manner, amount and time of application of
payments and credits, if any, to be made on all or any part of any component or
components of the Indebtedness (whether principal, interest, fees, costs, and
expenses, or otherwise); and (vi) to take advantage or refrain from taking
advantage of any security or accept or make or refrain from accepting or making
any compositions or arrangements when and in such manner as the Agent or the
Banks, in their sole discretion, may deem appropriate and generally do or
refrain from doing any act or thing which might otherwise, at law or in equity,
release the liability of Guarantor as a guarantor or surety in whole or in part,
and in no case shall the Agent or the Banks be responsible or shall the
Guarantor be released either in whole or in part for any act or omission in
connection with the Agent or the Banks having sold any security at an under
value.
(b) If any default shall be made in the payment of any of the
Indebtedness and any grace period has expired with respect thereto, the
Guarantor hereby agrees to pay the same in full to the extent hereinafter
provided: (i) without deduction by reason of any setoff, defense (other than
payment) or counterclaim of the Debtor; (ii) without requiring presentment,
protest or notice of nonpayment or notice of default to the Guarantor, to the
Debtor or to any other Person, except as required pursuant to the Term Loan
Agreement; (iii) without demand for payment or proof of such demand or filing of
claims with a court in the event of receivership, bankruptcy or reorganization
of the Debtor; (iv) without requiring the Agent or the Banks to resort first to
the Debtor (this being a guaranty of payment and not of collection) or to any
other guaranty or any collateral which the Banks may hold; (v) without requiring
notice of acceptance hereof or assent hereto by the Agent or the Banks; and (vi)
without requiring notice that any of the Indebtedness has been incurred,
extended or continued or of the reliance by the Agent or the Banks upon this
Guaranty; all of which the Guarantor hereby waives.
(c) The Guarantor's obligation hereunder shall not be affected
by any of the following, all of which the Guarantor hereby waives: (i) any
failure to perfect or continue the perfection of any security interest in or
other lien on any collateral securing payment of any of the Indebtedness or the
Guarantor's obligation hereunder; (ii) the invalidity, unenforceability,
propriety of manner of enforcement of, or loss or change in priority of any such
security interestor other lien or guaranty of the Indebtedness; (iii) any
failure to protect, preserve or insure any such collateral; (iv) failure of the
Guarantor to receive notice of any intended disposition of such collateral; (v)
any defense arising by reason of the cessation from any cause whatsoever of
liability of the Debtor,
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<PAGE> 5
including, without limitation, any failure, negligence or omission by the Agent
or the Banks in enforcing their claims against the Debtor; (vi) any release,
settlement or compromise of any obligation of the Debtor, other than as a result
of the payment of the Indebtedness; (vii) the invalidity or unenforceability of
any of the Indebtedness; (viii) any change of ownership of the Debtor or the
insolvency, bankruptcy or any other change in the legal status of the Debtor;
(ix) any change in, or the imposition of, any law, decree, regulation or other
governmental act which does or might impair, delay or in any way affect the
validity, enforceability or the payment when due of the Indebtedness; (x) the
existence of any claim, setoff or other rights which the Guarantor may have at
any time against the Agent, any Bank or the Debtor in connection herewith or any
unrelated transaction; (xi) the Banks' election, in any case instituted under
chapter 11 of the United States Bankruptcy Code, of the application of section
1111(b)(2) of the United States Bankruptcy Code; (xii) any borrowing, use of
cash collateral, or grant of a security interest by the Debtor, as debtor in
possession, under sections 363 or 364 of the United States Bankruptcy Code;
(xiii) the disallowance of all or any portion of any of the Banks' claims for
repayment of the Indebtedness under sections 502 or 506 of the United States
Bankruptcy Code; or (xiv) any other fact or circumstance which might otherwise
constitute grounds at law or equity for the discharge or release of the
Guarantor from its obligations hereunder, all whether or not the Guarantor shall
have had notice or knowledge of any act or omission referred to in the foregoing
clauses (i) through (xiv) of this paragraph.
5. Representations and Warranties.
The Guarantor further represents and warrants to the Agent and
the Banks that: (i) it is a business trust duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, and has
full power, authority and legal right to own its property and assets and to
transact the business in which it is engaged; (ii) it has full power, authority
and legal right to execute and deliver, and to perform its obligations under,
this Guaranty, and has taken all necessary action to authorize the guarantee
hereunder on the terms and conditions of this Guaranty and to authorize the
execution, delivery and performance of this Guaranty; and (iii) this Guaranty
has been duly executed and delivered by the Guarantor and constitutes a legal,
valid and binding obligation of the Guarantor enforceable against the Guarantor
in accordance with its terms.
6. Security; Assets - Negative Pledge.
The Guarantor warrants and represents to and covenants with
the Agent and the Banks that: (i) the Guarantor has good, indefeasible and
merchantable title to all of its assets, and (ii) the Guarantor shall not grant
a security interest in or permit a lien, claim or encumbrance upon any of its
assets in favor of any third party.
7. Termination.
This Guaranty shall remain in full force and effect until all
of the Indebtedness shall be finally and irrevocably paid in full and the
commitments under the Term Loan Agreement shall have been terminated. Payment of
all of the Indebtedness from time to time shall not operate
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<PAGE> 6
as a discontinuance of this Guaranty. The Guarantor further agrees that, to the
extent that the Debtor makes a payment or payments to the Agent or any of the
Banks on the Indebtedness, or the Agent or the Banks receive any proceeds of
collateral securing the Indebtedness which payment or receipt of proceeds or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be returned or repaid to the Debtor, its
estate, trustee, receiver, debtor in possession or any other Person, including,
without limitation, any Guarantor, under any insolvency or bankruptcy law, state
or federal law, common law or equitable cause, then to the extent of such
payment, return or repayment, the obligation or part thereof which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the date when such initial payment, reduction or
satisfaction occurred, and this Guaranty shall continue in full force
notwithstanding any contrary action which may have been taken by the Agent or
the Banks in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent's or the Banks' rights under this
Guaranty and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
8. Guaranty of Performance.
The Guarantor also guaranties the full, prompt and
unconditional performance of all obligations and agreements of every kind owed
or hereafter to be owed by the Debtor to the Agent or the Banks. Every provision
for the benefit of the Agent or the Banks contained in this Guaranty shall apply
to the guaranty of performance given in this paragraph.
9. Assumption of Liens and Indebtedness.
To the extent that the Guarantor has received or shall
hereafter receive contributions to its capital consisting of assets of the
Debtor that are subject, at the time of such contribution, to liens and security
interests in favor of the Agent or the Banks in accordance with the Term Loan
Agreement, the Guarantor hereby expressly agrees that (i) it shall hold such
assets subject to such liens and security interests and subject to the terms of
the Term Loan Agreement and (ii) it shall be liable for the payment of the
Indebtedness secured thereby. The Guarantor's obligations under this Section 9
shall be in addition to its obligations as set forth in other sections of this
Guaranty and not in substitution therefor or in lieu thereof.
10. Miscellaneous.
(a) The terms "Debtor" and the "Guarantor" as used in this
Guaranty shall include: (i) any successor individual or individuals,
association, partnership or corporation to which all or a substantial part of
the business or assets of the Debtor or the Guarantor shall have been
transferred and (ii) any other corporation into or with which the Debtor or the
Guarantor shall have been merged, consolidated, reorganized, or absorbed.
(b) Without limiting any other right of the Banks, whenever
the Agentor the Banks have the right to declare any of the Indebtedness to be
immediately due and payable
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<PAGE> 7
(whether or not it has been so declared), subject to the notice requirements and
other limitations set forth in Section 13 of the Term Loan Agreement, the Banks
at their sole election without notice to the undersigned may appropriate and set
off against the Indebtedness: (i) any and all indebtedness or other moneys due
or to become due to the Guarantor by the Agent or the Banks in any capacity and
(ii) any credits or other property belonging to the Guarantor (including all
account balances, whether provisional or final and whether or not collected or
available) at any time held by or coming into the possession of the Agent or any
of the Banks, or any affiliate of the Agent or any of the Banks, whether for
deposit or otherwise, whether or not the Indebtedness or the obligation to pay
such moneys owed by the Agent or Banks is then due, and the Agent or the Banks
shall be deemed to have exercised such right of set off immediately at the time
of such election even though any charge therefor is made or entered on the
Agent's or the Banks' records subsequent thereto.
(c) The Guarantor's obligation hereunder is to pay the
Indebtedness in full when due according to the Term Loan Agreement to the extent
provided herein, and shall not be affected by any stay or extension of time for
payment by the Debtor resulting from any proceeding under the United States
Bankruptcy Code or any similar law.
(d) No course of dealing between the Debtor or the Guarantor
and the Agent or the Banks and no act, delay or omission by the Banks in
exercising any right or remedy hereunder or with respect to any of the
Indebtedness shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. The Agent or the
Banks may remedy any default by the Debtor under any agreement with the Debtor
or with respect to any of the Indebtedness in any reasonable manner without
waiving the default remedied and without waiving any other prior or subsequent
default by the Debtor. All rights and remedies of the Banks hereunder are
cumulative.
(e) The term "Banks" as used herein shall have the same
meaning as in the Term Loan Agreement and this Agreement shall inure to the
benefit of the Agent and such Banks.
(f) Captions of the sections of this Guaranty are solely for
the convenience of the Agent, the Banks and the Guarantor, and are not an aid in
the interpretation of this Guaranty.
(g) If any provision of this Guaranty is unenforceable in
whole or in part for any reason, the remaining provisions shall continue to be
effective.
(h) THIS GUARANTY IS A CONTRACT 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 GUARANTOR AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS GUARANTY
MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS
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<PAGE> 8
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN THE
OPENING PARAGRAPH HEREOF. THE GUARANTOR 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.
11. Waivers.
(A) THE GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION,
APPRAISAL AND EXEMPTION LAWS.
(B) IN THE EVENT OF A DEFAULT UNDER THE TERM LOAN AGREEMENT,
THE GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR
TO THE EXERCISE BY THE AGENT OR THE BANKS OF THEIR RIGHTS TO REPOSSESS THE
COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE
COLLATERAL WITHOUT PRIOR NOTICE OR HEARING. THE GUARANTOR ACKNOWLEDGES THAT IT
HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND
THIS GUARANTY.
(C) THE GUARANTOR ACKNOWLEDGES THAT THE TIME AND EXPENSE
REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE REQUIRED FOR A BENCH
TRIAL AND HEREBY WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY, ANY
OBJECTION BASED ON FORUM NON CONVENIENS, ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER, AND WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND
WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE AGENT OR THE BANKS.
12. Trust Exculpation.
All persons having a claim against the Guarantor, the general
partner of the Debtor whose signature is affixed hereto as said general partner,
hereunder or in connection with any matter that is subject hereof shall look
solely to the trust assets of the trust, and in no event shall the obligations
of the Guarantor be enforceable against any shareholder, trustee, officer,
employee or agent of the Guarantor personally.
[SIGNATURE PAGE FOLLOWS]
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<PAGE> 9
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed as of the day and year first written above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /S/ Dennis Gershenson, President
--------------------------------
Dennis Gershenson, President
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<PAGE> 1
EXHIBIT 10.10
CONTRACT OF SALE
BETWEEN
DRM THIRTY-TWO REALTY CORPORATION
SELLER
AND
RAMCO-GERSHENSON PROPERTIES, L.P.
PURCHASER
Dated: July 7, 1997
Shopping Center Premises:
Highland Square, Crossville, Tennessee
<PAGE> 2
TABLE OF CONTENTS
PAGE
----
1. DEFINITIONS.................................................... 1
2. SUBJECT OF SALE................................................ 4
3. PURCHASE PRICE................................................. 4
4. "SUBJECT TO" PROVISIONS........................................ 5
5. SPACE LEASES................................................... 6
6. LEASING PRACTICE............................................... 6
7. APPORTIONMENTS AND REIMBURSEMENTS.............................. 7
8. VIOLATIONS..................................................... 10
9. PENDING TAX PROCEEDINGS........................................ 10
10. "AS-IS"........................................................ 10
11. BROKER......................................................... 11
12. DESTRUCTION OR CONDEMNATION.................................... 11
13. STATUS OF TITLE................................................ 12
14. CLOSING........................................................ 12
15. NOTICES........................................................ 12
16. FRANCHISE TAXES................................................ 13
17. TITLE REPORT................................................... 13
18. NON-PERMITTED TITLE OBJECTIONS................................. 13
19. RETURN OF DEPOSIT.............................................. 15
20. AFFIDAVIT REGARDING JUDGMENTS.................................. 15
21. ASSIGNMENT OF THIS CONTRACT.................................... 15
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22. DEED; TRANSFER TAXES............................................ 16
23. PURCHASER'S DEFAULT............................................. 16
24. ESCROW OF DEPOSIT............................................... 17
25. REPRESENTATIONS................................................. 18
26. CLOSING DOCUMENTS............................................... 21
27. FURTHER ASSURANCES.............................................. 23
28. PURCHASER'S DUE DILIGENCE PERIOD................................ 24
29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS.................... 25
30. MISCELLANEOUS................................................... 26
EXHIBITS AND SCHEDULES:
Schedule A: Description of Property
Schedule B: Permitted Exceptions
Schedule C: Rent Roll
Schedule D: Escrowee's Wire Transfer Instructions
Schedule E: Existing Mortgage
Schedule F: List of Tax Protests
Exhibit 1: Form of Assignment and Assumption of Space Leases
Exhibit 2: Form of Tenant Estoppel Certificate
Exhibit 3: Form of Assignment and Assumption of Service Contracts
Exhibit 4: Form of Letter of Credit
Exhibit 5: Form of Title Certification
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CONTRACT (this "Contract") made this 7th day of July, 1997 by
and between DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation having an
address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York
10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited
partnership having an address at 27600 Northwestern Highway (Suite 200)
Southfield, Michigan 48034 ("Purchaser").
W I T N E S S E T H :
WHEREAS, upon the terms and conditions hereinafter set forth,
Seller agrees to sell and convey fee title to that certain parcel of land
described on Schedule A, annexed hereto and made a part hereof, with the
buildings and improvements erected thereon (which parcel of land and the
improvements erected thereon are herein referred to as the "Property") to
Purchaser and Purchaser agrees to purchase the Property.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. The terms defined in this Section 1 shall for
all purposes of this Contract have the meaning herein specified unless the
context requires otherwise.
(a) "Additional Deposit" shall have the meaning ascribed to
it in Section 3(a).
(b) "Affiliates" shall have the meaning ascribed to it in
Section 25(a)(xii). (c) "Anchor Space Tenant" shall have the meaning ascribed to
it in Section 12(b).
(d) "Arrears" shall have the meaning ascribed to it in
Section 7(a)(i)(A).
(e) "Cash Deposit" shall have the meaning ascribed to it in
Section 3(a)(i). (f) "Closing" shall have the meaning ascribed to it in Section
14(a).
(g) "Closing Date" shall have the meaning ascribed to it in
Section 14(a).
(h) "Code" shall have the meaning ascribed to it in Section
25(a)(vii).
(i) "Consent and Assumption Agreement" shall have the
meaning ascribed to it in Section 4(b)(i).
(j) "Deed" shall have the meaning ascribed to it in Section
22(a).
(k) "Deposit" shall have the meaning ascribed to it in
Section 3(a).
<PAGE> 5
(l) "ERISA" shall have the meaning ascribed to it in
Section 29(c).
(m) "Escrowee" shall have the meaning ascribed to it in
Section 3(a).
(n) "Estoppel Certificate" shall have the meaning ascribed
to it in Section 26(a)(vii).
(o) "Estoppel Default" shall have the meaning ascribed to
it in Section 26(a)(vii)(B).
(p) "Existing Mortgage" shall have the meaning ascribed to
it in Section 4(a).
(q) "Evaluation Material" shall have the meaning ascribed
to it in Section 28(d).
(r) "Initial Deposit" shall have the meaning ascribed to it
in Section 3(a).
(s) "Letter of Credit" shall have the meaning ascribed to
it in Section 3(a)(i).
(t) "Lender" shall have the meaning ascribed to it in
Section 4(b)(i).
(u) "Loan Documents" shall have the meaning ascribed to it
in Section 4(a).
(v) "Maximum Representation Expense" shall have the meaning
ascribed to it in Section 25(e).
(w) "Maximum Title Expense" shall have the meaning ascribed
to it in Section 18(c).
(x) "Mortgage Expenses" shall have the meaning ascribed to
it in Section 4(d).
(y) "New Space Lease" shall have the meaning ascribed to it
in Section 6(a).
(z) "Non-Permitted Title Objections" shall have the meaning
ascribed to it in Section 18(a).
(aa) "Obligors" shall have the meaning ascribed to it in
Section 4(b)(i).
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<PAGE> 6
(ab) "Overage Rent" shall have the meaning provided in
Section 7(a)(i)(B).
(ac) "Permitted Exceptions" shall have the meaning ascribed
to it in Section 13.
(ad) "Premises" shall have the meaning ascribed it in
Section 2(b).
(ae) "Property" shall have the meaning ascribed to it in
the "WHEREAS" paragraph in this Contract.
(af) "Purchase Price" shall have the meaning ascribed to it
in Section 3.
(ag) "Purchaser's Due Diligence Period" shall have the
meaning ascribed to it in Section 28(a).
(ah) "Related Parties" shall have the meaning ascribed to
it in Section 28(e).
(ai) "Seller's Certificate" shall have the meaning ascribed
to it in Section 26(a)(vii)(A).
(aj) "Service Contracts" shall have the meaning ascribed to
it in Section 25(a)(iv).
(ak) "Space Leases" shall have the meaning ascribed to it
in Section 5.
(al) "Space Tenants" shall have the meaning ascribed to it
in Section 5.
(am) "Substantial Loss" shall have the meaning ascribed to
it in Section 12(b).
(an) "Title Company" shall have the meaning ascribed to it
in Section 17.
(ao) "Transfer Tax" shall have the meaning ascribed to it
in Section 22(b).
(ap) "Violation(s) " shall have the meaning ascribed to it
in Section 8.
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<PAGE> 7
2. SUBJECT OF SALE.
(a) Seller agrees to sell and convey to Purchaser the Premises
and Purchaser agrees to purchase from Seller the Premises subject to the terms
and conditions contained in this Contract.
(b) This sale includes any right, title and interest of Seller
in and to: (i) the Property (and any other property adjacent thereto owned by
Seller); (ii) any land lying in the bed of any street, road or avenue opened or
proposed, in front of or adjoining the Property, to the center line thereof, and
all right, title and interest of Seller in and to any award made or to be made
in lieu thereof and in and to any unpaid award for damage to the Property by
reason of change of grade of any street; and Seller will execute and deliver to
the Purchaser at the Closing, or thereafter, on demand, all proper instruments
for the conveyance of such title and the assignment and collection of any such
award; (iii) trade names, easements, permits, licenses and utility agreements,
and other appurtenances appurtenant to the Property, if any; (iv) fixtures,
equipment and other personal property attached to and appurtenant to the
Property and not owned by the Space Tenants, if any, but no part of the Purchase
Price shall be deemed to be paid for such fixtures, equipment or personal
property; (v) the Space Leases and the security deposits listed on Schedule C
annexed hereto; (vi) all plans and specifications for improvements to the
Property in the possession of Seller and any contracts, warranties and
guarantees, if any, with regard to the foregoing; and (vii) any mineral rights,
waters, water courses and hereditaments belonging to the Property and owned by
Seller ((i) through (vii) being referred to collectively as the "Premises").
3. PURCHASE PRICE.
The purchase price for the Premises is the sum of Nine Million
Fifty- Nine Thousand and 00/100 Dollars ($9,059,000.00), (the "Purchase Price")
which shall be paid by Purchaser to Seller as follows:
(a) (i) Sixty-Six Thousand Six Hundred Sixty-Six and 67/100
Dollars ($66,666.67) (the "Initial Deposit") on the signing of this Contract
payable to Tenzer Green- blatt LLP ("Escrowee"), receipt of which is hereby
acknowledged by the Escrowee and (ii) Two Hundred Sixty-Six Thousand Six Hundred
Sixty-Six and 67/100 Dollars ($266,666.67) (the "Additional Deposit") payable to
Escrowee on or before September 5, 1997, time being of the essence. The Initial
Deposit and the Additional Deposit, to the extent actually paid and received,
together with any interest earned thereon is referred to collectively herein as
the "Deposit." The Deposit shall include the Cash Deposit or any Letter of
Credit or the proceeds therefrom. The Initial Deposit and the Additional Deposit
may be paid, at Purchaser's option, by (A) electronic wire transfer in
accordance with the instructions set forth on Schedule D attached hereto of
immediately available federal funds, or by good certified check of Purchaser or
bank teller's check to the order of Escrowee (individually or collectively (the
"Cash Deposit") or (B) delivering to Escrowee an irrevocable letter of credit,
in the amount of the Initial Deposit and/or the Additional Deposit issued to
Escrowee,
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<PAGE> 8
as beneficiary, by BankBoston, N.A. in the form of Exhibit 4 (individually or
collectively, the "Letter of Credit"); and
(b) On the Closing Date, Eight Million Seven Hundred
Twenty-Five Thousand Six Hundred Sixty-Six and 66/100 Dollars ($8,725,666.66)
plus the amount of any Letter of Credit constituting all or a portion of the
Deposit, subject to the apportionments set forth in Section 7, as follows:
(i) approximately $5,947,170.14 by Purchaser assuming, and
taking title subject to, the then unpaid principal balance under the Existing
Mortgage (subject to the provisions of Section 4); and
(ii) the balance by electronic wire transfer of
immediately available federal funds pursuant to wiring instructions to be given
by Seller to Purchaser prior to the Closing.
4. "SUBJECT TO" PROVISIONS; MORTGAGE.
(a) The Premises are sold subject to (i) the exceptions set
forth on Schedule B attached hereto and (ii) the Existing Mortgage. "Existing
Mortgage" refers collectively to the mortgage loans described on Schedule E
attached hereto. Seller has delivered to Purchaser, and Purchaser acknowledges
receipt of, copies of the documents listed on Schedule E evidencing and securing
the Existing Mortgage (the "Loan Documents").
(b) Seller agrees not to partially or wholly prepay the
Existing Mortgage prior to the Closing (other than with respect to scheduled
monthly payments) provided the following conditions have been satisfied:
(i) Purchaser has, at its sole cost and expense, by not
later than September 5, 1997 entered into and provided Seller with a true copy
of an agreement, reasonably acceptable to Seller with respect to provisions
binding on Seller or relating to the release of Seller from liability (the
"Consent and Assumption Agreement") with the holder or holders (collectively the
"Lender") of the Existing Mortgage whereby the Lender consents to the sale of
the Property subject to the Existing Mortgage and Purchaser agrees to assume the
obligations of each borrower, guarantor and any other obligor (collectively, the
"Obligors") under the Loan Documents. Seller agrees to reasonably cooperate with
Purchaser in connection with obtaining the Consent and Assumption Agreement;
(ii) Purchaser complies with all of the requirements of
the Lender and the Consent and Assumption Agreement through the Closing Date;
and
(iii) as of the Closing, the Lender has released the
Obligors (and their partners, members, officers and/or shareholders) from any
and all obligations and liabilities under the Loan Documents which arise from
and after the Closing Date.
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<PAGE> 9
(c) If any of the conditions set forth in subparagraph (b)
above are not satisfied with respect to the Existing Mortgage as of the date
then scheduled for the Closing, Seller, at its sole election, may either: (i)
close title and elect to pay off the applicable Existing Mortgage or (ii)
adjourn the Closing for such time as may be necessary to satisfy the conditions
or to pay off the Existing Mortgage.
(d) Purchaser shall, at the Closing, pay all fees and
expenses (the "Mortgage Expenses") due (or incurred by Seller) in connection
with or arising out of (i) the payoff of the Existing Mortgage (including any
prepayment charges) and/or (ii) Purchaser's assumption of the Existing Mortgage.
The provisions of this Section 4(d) shall survive the Closing.
(e) At the Closing, unless the Existing Mortgage is paid
off, Purchaser shall assume the obligations under the Existing Mortgage and the
Loan Documents and shall indemnify and hold Seller (and its partners, members,
officers and/or shareholders) harmless from and against all claims, causes of
action, liabilities, losses, deficiencies and damages, as well as costs and
expenses (including attorneys' fees and court costs), interest and penalties
related thereto, asserted against, or incurred by, Seller by reason of, or
resulting or arising from, events occurring under the Existing Mortgage and the
Loan Documents from and after the Closing Date. The provisions of this Section
4(e) shall survive the Closing.
5. SPACE LEASES. With respect to tenancies and occupancies set
forth on Schedule C attached hereto and made a part hereof, Purchaser represents
that it has examined, or will examine prior to the expiration of Purchaser's Due
Diligence Period, all leases and amendments thereto relating to such tenancies
and occupancies (which leases and any New Space Leases are collectively referred
to herein as the "Space Leases" and the lessees thereunder are herein called
"Space Tenants").
6. LEASING PRACTICE.
(a) Subject to Section 6(b) below, Seller may continue to
lease the Premises in a manner consistent with its past course of business and
in a commercially reasonable manner, including, without limitation and in its
sole discretion, the termination of existing Space Leases and/or the entering
into of new leases or renewals or modifications of existing Spaces Leases (such
new space lease, termination, renewal or modification is herein referred to as a
"New Space Lease") .
(b) (i) Prior to the expiration of Purchaser's Due
Diligence Period, Seller shall be permitted to enter into any New Space Lease
without the approval of Purchaser, provided Seller promptly notifies Purchaser
of the same. (ii) After the expiration of Purchaser's Due Diligence Period
provided Purchaser is not in default under this Contract, Seller shall not (A)
enter into a New Space Lease covering more than 7,500 square feet of rentable
space without obtaining the prior written consent of Purchaser, which consent
shall not be unreasonably withheld or delayed or (B) terminate any Space Lease
without the prior written consent of Purchaser except in the event of a default
by a Space Tenant under a
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<PAGE> 10
Space Lease. Any New Space Lease which does not require Purchaser's consent
shall be arms-length and on then fair market terms and conditions (and shall
otherwise be consistent with Seller's customary leasing standards). (iii) Seller
and Purchaser shall apportion, at Closing, any tenant improvement expenses or
allowances and leasing commissions on account of a New Space Lease based on
their respective periods of ownership of the Premises during the term of such
New Space Lease.
(c) If Purchaser's consent is required under this Section 6
for the execution of a New Space Lease, Purchaser agrees to grant or deny its
consent in writing (and provide, in reasonable detail, the reasons for any
denial) within four (4) business days after request therefor. Purchaser's
failure to duly respond to Seller's request within four (4) business days after
request therefor shall be deemed a consent to the proposed New Space Lease. If
Purchaser's consent is not required, Seller's sole obligation shall be to notify
Purchaser prior to entering into any New Space Lease or terminating any Space
Lease.
(d) (i) Purchaser acknowledges and agrees that no
representation has been made and no responsibility has been assumed by Seller
with respect to the continued occupancy of the Premises, or any part thereof, by
the Space Tenants. Seller does not undertake or guarantee that the Space Tenants
will be in occupancy at the Closing. Prior to the Closing, Seller shall have the
right, but not the obligation, to enforce its rights against the Space Tenants
by summary proceeding or in any other manner. (ii) Notwithstanding the
provisions of subsection (d)(i) above, but subject to the provisions of
subsection (d)(iii) below, Purchaser shall have the right to cancel this
Contract in the event that, on the Closing Date, an Anchor Space Tenant shall
have filed a petition in bankruptcy and (A) an order has been executed by the
Bankruptcy Court granting such Anchor Space Tenant's application to reject its
Space Lease in bankruptcy or (B) fails to assume its Space Lease in bankruptcy.
(iii) In the event that, following the date of this Contract any Anchor Space
Tenant shall file a petition in bankruptcy, Seller, at Seller's election, shall
have the privilege to (C) reinstate such Anchor Space Tenant's Space Lease by
entering into a New Space Lease with such Anchor Space Tenant on substantially
similar terms and conditions as in such prior Space Lease, or (D) obtain
evidence, reasonably satisfactory to Purchaser, that such Anchor Space Tenant
has assumed its Space Lease in bankruptcy or (E) procure a substitute tenant for
the space covered by the Space Lease in question pursuant to a New Space Lease
reasonably acceptable to Purchaser, and for any purpose provided in
subparagraphs (C), (D) or (E) Seller shall be entitled to one or more
adjournments of the Closing for a period not to exceed one (1) year in the
aggregate; provided, however, that Purchaser shall have no obligation to close
title if, during such period of adjournment, an event occurs which materially
and adversely affects the Premises and such event is not corrected or cured to
the reasonable satisfaction of Purchaser.
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<PAGE> 11
7. APPORTIONMENTS AND REIMBURSEMENTS.
(a) Unless otherwise provided, at the Closing the
following are to be reimbursed or apportioned as of 11:59 P.M. on the day
preceding the Closing Date based upon the respective party's period of ownership
for the item being apportioned. Notwithstanding the foregoing, in the event
Seller (or its designee) does not receive the funds to be wired pursuant to
Section 3(b) in time for Seller (or its designee) to invest same (or, if
applicable, to timely pay off the Existing Mortgage) on the Closing Date, then
in such event, the items set forth in this Section 7 shall be apportioned as of
11:59 P.M. on the Closing Date based upon the respective party's period of
ownership for the item being apportioned (The reimbursements and apportionments
shall be made based upon the actual number of days in the month in which the
Closing Date occurs.):
(i) Rent and additional rent under any Space
Leases for the month of Closing, as and when collected.
(A) If on the Closing Date there are any
past due rentals which have been billed to or are due by Space Tenants and not
collected (collectively "Arrears") Purchaser and Seller agree that the first
moneys received after the Closing by Purchaser or Seller from such Space Tenants
shall be applied (i) first to Seller and Purchaser for the month in which the
Closing occurred, prorated in accordance with this Section 7, (ii) then to
Purchaser toward any then current amounts owed by a Space Tenant to Purchaser
and (iii) then to Seller toward the Arrears owed by such Space Tenant. Purchaser
and Seller agree to remit promptly to the other the Arrears collected from time
to time to which the other is so entitled as hereinbefore provided. Purchaser
shall bill Space Tenants in Purchaser's customary manner and use reasonable
efforts in pursuing the collection of all Arrears for one (1) year following the
date of Closing. Purchaser shall have the right to deduct the greater of the
allocable share of Purchaser's reasonable out-of-pocket costs incurred in
collecting such Arrears or one (1%) percent of the Arrears collected on Seller's
behalf from amounts otherwise due Seller. The provisions of this Section
7(a)(i)(A) shall survive the Closing.
(B) As to any Space Lease(s) that
provide for the payment of additional rent based upon a percentage of the Space
Tenant's business during a specified annual or other period, or based upon
reimbursement for or payment of real estate taxes, operating expenses or
insurance expenses or otherwise (such additional rent being collectively called
"Overage Rent"), if the Closing shall occur prior to the time when any such
Overage Rent is payable, then such Overage Rent for the applicable accounting
period in which the Closing occurs shall be apportioned subsequent to the
Closing. Purchaser agrees that it will receive and hold such Overage Rent in
trust and pay over to the Seller the proportion of such Overage Rent as the
portion of such accounting period during which Seller was in title to the
Premises bears to the entire such accounting period. As to any Overage Rent in
respect to an accounting period that shall have expired prior to the Closing but
which shall become payable after the Closing, the Purchaser agrees that it will
receive and hold such Overage Rent in trust and pay the entire amount over to
the Seller upon receipt thereof. Purchaser shall have the right to deduct the
greater of the allocable share of
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<PAGE> 12
Purchaser's reasonable out-of-pocket costs incurred in collecting such Overage
Rent or one (1%) percent of the Overage Rent collected on Seller's behalf from
amounts otherwise due Seller. Seller shall furnish to Purchaser all information
(including the form of the bill to be rendered) necessary for the billing of
such Overage Rent. Purchaser agrees that it shall render bills (calculated by
Seller if applicable to a period during Seller's ownership) for Overage Rent
following the Closing and shall, upon receipt thereof, promptly pay to the
Seller the amount to which the Seller is entitled as above provided. If
requested by either party, both parties will join in a letter to the respective
Space Tenants under such leases directing the division of Overage Rents in
accordance with the foregoing provisions hereof. To the extent that a Space
Tenant has the express right under its Space Lease to offset Overage Rent
against other amounts due under its Space Lease, same will be taken into account
in determining Overage Rent apportionments. Promptly after the calendar year in
which the Closing occurs, Seller and Purchaser shall reconcile all Overage Rent
due for such calendar year based upon actual expenses incurred during such year,
and such reconciled Overage Rent shall be reapportioned between Seller and
Purchaser (taking into account any Overage Rent retained by Seller at Closing
and collected by Purchaser after the Closing). The provisions of this Section
7(a)(i)(B) shall survive the Closing.
(ii) Water rates and water meter charges, if any, not
payable by the Space Tenants on the basis of the fiscal period for which
assessed. If there be a water meter, or meters, on the Premises (other than
meters under which charges are payable by the Space Tenant under the Space Lease
with Wal-Mart Stores, Inc.), the unfixed meter charges and the unfixed sewer
rent thereon for the time intervening from the date of the last reading shall be
apportioned on the basis of such last reading, and shall be appropriately
readjusted after the Closing on the basis of the next subsequent bills. As to
any water charges payable by the Space Tenant as aforementioned, if the Space
Tenant shall have failed to pay such water charges, such unpaid charges and the
liens, if any, resulting therefrom shall not be objections to title, or be the
basis of any claim whatsoever by Purchaser against Seller and Purchaser shall
close title in accordance with the terms of this Contract subject to such unpaid
charges and rents and such liens without abatement or credit against the
Purchase Price. The provisions of this Section 7(a)(ii) shall survive the
Closing.
(iii) Real estate, school and sewer taxes then due and
payable by Seller. As to any real estate, school and sewer taxes payable by the
Space Tenant under the Space Lease with Wal-Mart Stores, Inc., if such Space
Tenant shall have failed to pay such taxes, such unpaid taxes and the liens, if
any, resulting therefrom shall not be objections to title, or be the basis of
any claim whatsoever by Purchaser against Seller and Purchaser shall close title
in accordance with the terms of this Contract subject to such unpaid charges and
rents and such liens without abatement or credit against the Purchase Price. The
provisions of this Section 7(a)(iii) shall survive the Closing.
(iv) Charges under Service Contracts not terminated on or
prior to Closing and other expenses in connection with the operation of the
Premises.
(v) Unless the Existing Mortgage is paid off at Closing,
interest due under the Existing Mortgage for the month in which the Closing
occurs.
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(vi) Leasing expenses pursuant to Section
6(b), if any.
(b) At the Closing, Seller shall deliver to Purchaser the
Space Tenants' security deposits set forth in Schedule C annexed hereto, or
credit the Purchase Price on account of said security deposits; provided,
however, that if any Space Tenant is in default under the terms of its Space
Lease and has vacated its premises, Seller may retain so much of such Space
Tenant's security deposit as shall be sufficient to cover Seller's loss by
reason of the default. It is further agreed that nothing herein contained shall
be deemed to prevent Seller from applying security deposits prior to Closing in
order to liquidate any claim under any Space Lease or to compromise, adjust or
settle with any Space Tenant for the disposition of any claim by the application
of such security deposits provided such Space Tenant has vacated its premises.
(c) At the Closing, Seller shall receive a credit equal to
any escrows held by Lender which are transferred to Purchaser.
8. VIOLATIONS. (a) Subject to the provisions of subsection (b)
below, Purchaser shall accept the Premises subject to any notes or notices or
violations of law or municipal ordinances, orders or requirements imposed or
issued by any governmental or quasi-governmental authority having or asserting
jurisdiction, against or affecting the Premises (individually a "Violation" and
collectively "Violations") and any conditions which may result in Violations.
Purchaser shall be responsible for all Violations from and after the Closing
Date. (b) If, after the expiration of Purchaser's Due Diligence Period, any
Violations are imposed which require a cost in excess of $100,000, in the
aggregate, to cure as determined by a reputable contractor or engineer selected
by Seller (and reasonably acceptable to Purchaser) Seller shall, at its election
(i) cure such Violations and, for such purpose, be entitled to adjourn the
Closing for a period not to exceed sixty (60) days or (ii) allow Purchaser a
credit against the Purchase Price equal to the sum required to cure such
Violations less $100,000 or (iii) if Seller reasonably disputes the validity of
such Violations, indemnify Purchaser from and against any and all claims, loss,
liability or damage, which exceed $100,000, that may arise as a result of such
Violations, Seller's liability being limited under such indemnity to $100,000 in
the aggregate. (c) The provisions of this Section 8 shall survive the Closing.
9. PENDING TAX PROCEEDINGS. Seller represents that there are
no proceedings to review real estate tax assessment of the Premises other than
as set forth in Schedule F. Seller shall have sole authority to prosecute,
settle and withdraw proceedings to review any real estate tax assessment for the
Premises for period relating to tax years prior to, and including, the year in
which the Closing occurs. Purchaser and Seller agree that if there should be a
refund of any real estate taxes paid by Seller in respect of the fiscal year in
which the Closing occurs, such refund, less reasonable attorneys' fees and
disbursements, shall be apportioned between Seller and Purchaser as of the
Closing Date and shall be paid promptly upon receipt thereof. Seller and
Purchaser shall pay their respective share of any amounts reimbursable to Space
Tenants in respect to such refund. Purchaser acknowledges that it has no
interest in any proceedings or refunds applicable to any fiscal tax year prior
to
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the year in which the Closing occurs. The provisions of this Section 9 shall
survive the Closing.
10. "AS-IS". Purchaser represents to Seller that (i) Purchaser
has or will, prior to the expiration of the Purchaser's Due Diligence Period,
independently examined, inspected, and investigated to the full satisfaction of
Purchaser, the physical nature and condition of the Premises and the income,
operating expenses and carrying charges affecting the Premises, (ii) except as
expressly set forth in this Contract, neither Seller nor any agent, officer,
employee, or representative of Seller has made any representation whatsoever
regarding the subject matter of this Contract or any part thereof, including
(without limiting the generality of the foregoing) representations as to the
physical nature or condition of the Premises, the existence or non-existence of
asbestos, hazardous substances or wastes, underground storage tanks or any other
environmental hazards on or about the Premises, or the Space Leases, or
operating expenses or carrying charges affecting the Premises, and (iii)
Purchaser, in executing, delivering and performing this Contract, does not rely
upon any statement, offering material, operating statement, historical budget,
engineering structural report, any environmental reports, information, or
representation to whomsoever made or given, whether to Purchaser or others, and
whether directly or indirectly, verbally or in writing, made by any person, firm
or corporation except as expressly set forth herein, and Purchaser acknowledges
that any such statement, information, offering material, operating statement,
historical budget, report or representation, if any, does not represent or
guarantee future performance of the Premises. Without limiting the foregoing,
but in addition thereto, except as otherwise expressly set forth in this
Contract, Seller shall deliver, and Purchaser shall take, the Premises in their
"as is" condition on the Closing Date subject to Section 12.
11. BROKER. Seller and Purchaser represent to each other that
neither party has dealt with any broker or real estate consultant in connection
with the transactions contemplated by this Contract. Seller and Purchaser shall
indemnify and hold the other free and harmless from and against any damages,
costs or expenses (including, but not limited to, reasonable attorneys' fees and
disbursements) suffered by the indemnified party arising from a
misrepresentation or a breach of any covenant made by the indemnifying party
pursuant to this Section 11. The provisions of this Section 11 shall survive the
Closing.
12. DESTRUCTION OR CONDEMNATION. (a) If on or prior to the
date set for Closing there is a casualty or condemnation affecting the Property
which constitutes a Substantial Loss, Purchaser shall have the option of
cancelling this Contract within fifteen (15) days after notice of such casualty
or condemnation, in which event, the Deposit shall be returned to the Purchaser
and this Contract deemed cancelled and of no force and effect and neither party
shall have any further rights or liabilities against or to the other. In the
event of a Substantial Loss, and Purchaser does not elect to cancel this
Contract, or in the event that the casualty or condemnation does not constitute
a Substantial Loss, then the Purchaser and Seller shall consummate the
transaction contemplated by this Contract without any reduction or abatement in
the Purchase Price and Seller, upon the Closing, shall assign to the Purchaser
all of its rights in and to any insurance proceeds (and shall pay to Purchaser,
or allow on account the Purchase Price, a sum equal to the amount of the
deductible, if any, on
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Seller's casualty insurance policy for the Premises) or condemnation awards, as
the case may be, in connection with such casualty or condemnation.
(b) As used herein, "Substantial Loss" with respect to the
Property shall mean a casualty or condemnation that either (i) shall entitle any
anchor Space Tenant denoted as such on Schedule C annexed hereto (each an
"Anchor Space Tenant" and collectively the "Anchor Space Tenants") to terminate
its Space Lease on or after the Closing Date and Seller has failed to obtain a
waiver of such termination right or (ii) requires repairs or restoration costs
in excess of Seven Hundred Fifty Thousand ($750,000.00) Dollars. In the event
Purchaser elects to cancel this Contract in accordance with subparagraph (a)
above, Seller may rescind such cancellation by (iii) delivering, within one (1)
year after the receipt of Purchaser's notice of cancellation, a waiver by each
Anchor Space Tenant which was entitled to terminate its Space Lease by reason of
the casualty or condemnation of its right or option to so terminate and (iv)
within one (1) year after receipt of Purchaser's notice of cancellation,
restorating and repairing the Property (A) if in connection with a casualty,
substantially to its condition immediately prior to the casualty or (B) if in
connection with a condemnation, as may be reasonably necessary as a result of
the taking of property; provided, however, that Purchaser shall have no
obligation to close title if, during such period of adjournment, an event occurs
which materially and adversely affects the Premises and such event is not
corrected or cured to the reasonable satisfaction of Purchaser.
(c) The estimated cost of repairs or restoration in
connection with a casualty or condemnation shall be determined by a reputable
contractor or engineer selected by Seller and approved by Purchaser (which
approval shall not be unreasonably withheld or delayed). The Closing shall be
postponed for such periods as may be necessary to allow Seller to comply with
the provisions of this Section 12.
(d) The provisions of this Section 12 supersede the
provisions of any applicable statutory or decisional law with respect to the
subject matter contained in this Section 12.
13. STATUS OF TITLE. Seller shall deliver and Purchaser shall
accept title to the Premises and consummate the transaction contemplated by this
Contract subject to (a) the title exceptions set forth in Schedule B, (b) the
Existing Mortgage, (c) title exceptions created or suffered by the Space Tenants
or Purchaser and (d) such other title exceptions which Seller may, in accordance
with the provisions of this Contract, cause the Title Company to omit or
affirmatively insure will not be collected out of the Premises provided that
Purchaser has reasonably approved the affirmative insurance (the title
exceptions, whether liens, encumbrances, defects, encroachments or other
objections, described in (a), (b), (c) and (d) being sometimes referred to
collectively as "Permitted Exceptions"). Seller shall not enter into any
agreements, indemnities or other understandings with the Title Company which
will enable the Title Company to omit any matter of record without the knowledge
of Purchaser.
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14. CLOSING.
(a) The closing of title (the "Closing") shall take place
on September 30, 1997 (the actual date of Closing being herein referred to as
the "Closing Date") at the offices of Tenzer Greenblatt LLP, 405 Lexington
Avenue, New York, New York 10174 at 9:00 o'clock in the forenoon on that day,
time being of the essence (except that Seller may adjourn the Closing in
accordance with other express provisions of this Contract,) at which time the
Deed to the Property shall be delivered upon payment to Seller of the Purchase
Price. Notwithstanding anything contained herein or at law or in equity,
Purchaser expressly agrees that it shall have no right or privilege to adjourn
the Closing except as expressly permitted by this Contract and Purchaser's
inability or refusal to close title on the date scheduled for Closing shall be a
default under this Contract.
(b) The parties agree to finalize documents necessary for
the Closing and to cause their representatives to attend a customary
"pre-closing" at least one (1) business day prior to the date scheduled for
Closing.
15. NOTICES. All notices hereunder shall be sent by certified
or registered mail, return receipt requested, or may be sent by Federal Express
or other overnight courier which obtains a signature upon delivery, or may be
delivered by hand delivery addressed to Seller at the address set forth above or
at such other address as Seller shall designate from time to time by notice to
Purchaser with copies of all such notices to be likewise sent to:
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attention: Martin Luskin, Esq.
and to Purchaser at the address given for Purchaser at the beginning of this
Contract or at such other address as Purchaser shall from time to time designate
by notice to Seller with copies of all such notices to Purchaser to be likewise
sent to:
Honigman, Miller, Schwartz & Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Alan Hurvitz, Esq.
Notices shall be deemed served three (3) business days after mailing, and in the
case of overnight courier or hand delivery, on the date actually delivered to
the intended recipient, except for notice(s) which advise the other party of a
change of address of the party sending such notice or of such party's attorney,
which notice shall not be deemed served until actually received by the party to
whom such notice is addressed or delivery is refused by such party. Notices on
behalf of the respective parties may be given by their attorneys and such
notices shall have the same effect as if in fact subscribed by the party on
whose behalf it is given. Notwithstanding the foregoing provisions of this
Section 15, notices served by
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hand delivery shall be deemed served on the date of delivery if delivered at or
prior to 5:00 P.M., and on the next business day if delivered after 5:00 P.M.
16. FRANCHISE TAXES. Unpaid franchise or corporation taxes,
dissolution taxes or any other similar taxes so levied, of any corporation in
the chain of title shall be no objection to title so long as the Title Company
insures against collection of any such taxes out of or enforcement against the
Premises without special or additional premium or if such special or additional
premium is required, if Seller shall pay such special or additional premium.
17. TITLE REPORT. Purchaser shall promptly order a title
report from Commonwealth Land Title Insurance Company (the "Title Company") and
a survey or survey update, all at Purchaser's sole cost and expense. Purchaser
shall from time to time, promptly after obtaining knowledge thereof, notify
Seller of any Non-Permitted Title Objections. Purchaser shall pay all premiums
charged in connection with procuring a policy of title insurance.
18. NON-PERMITTED TITLE OBJECTIONS.
(a) If on the Closing it should appear that the Premises
are affected by any lien, encumbrance, defect, encroachment or objection which
is not a Permitted Exception (collectively, "Non-Permitted Title Objections"),
then in such event, Seller, at Seller's election, shall have the privilege to
remove or satisfy the same, and shall, for that purpose, be entitled to one or
more adjournments of the Closing for a period not exceeding in the aggregate
sixty (60) days.
(b) If Seller elects to adjourn the Closing pursuant to
this Section 18, this Contract shall remain in effect for the period or periods
of adjournment, in accordance with its terms.
(c) Except as provided below, Seller shall not be required
to bring any action or proceeding or to otherwise incur any expense to remove or
discharge any NonPermitted Title Objection; provided, however, that if there
exists Non-Permitted Title Objection(s) which can be removed or discharged by
payment of a sum of money only, and if both (1) such removal or discharge can
reasonably be expected to be accomplished within a period of sixty (60) days and
(2) the sum of money required to accomplish all such removals or discharges with
respect to the Premises shall not exceed in the aggregate Two Hundred Fifty
Thousand and 00/100 ($250,000.00) Dollars (the "Maximum Title Expense"), then,
and in such event, Seller agrees to either (i) adjourn the Closing for the
period required to remove or discharge such Non-Permitted Title Objections, and
to expend an amount not to exceed the Maximum Title Expense to remove or
discharge such Non-Permitted Title Objections, or (ii) indemnify Purchaser, in
an amount not to exceed the Maximum Title Expense, from any damage, cost,
expense or claim which Purchaser may incur as a result of such Non-Permitted
Title Objection (in which case Purchaser shall accept title subject to such
Non-Permitted Title Objection). Notwithstanding the foregoing provisions,
Purchaser may, at any time, accept such title as Seller can convey
notwithstanding the existence of any Non-
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Permitted Title Objections without reduction of the Purchase Price or any credit
or allowance on account thereof or any claim against Seller, provided, however,
if there shall be any NonPermitted Title Objections that can be removed or
discharged by the payment of a sum of money only which exceeds the Maximum Title
Expense, or that can be removed by the payment of less than the Maximum Title
Expense but not within the available time, and Seller elects not to or cannot
remove or discharge such Non-Permitted Title Objections within the available
time, then if Purchaser elects to accept such title as Seller can convey the
Purchase Price shall be reduced, by the lesser of the Maximum Title Expense or
the amount required to remove or discharge said Non-Permitted Title Objection.
The acceptance of the Deed by Purchaser shall be deemed to be a full performance
and discharge of every agreement and obligation on the part of Seller to be
performed pursuant to this Contract, except those, if any, that are herein
specifically stated or made to survive the Closing (but, except as expressly set
forth in this Contract, nothing herein shall be deemed to obligate Purchaser to
accept title subject to any Non-Permitted Title Objection). Anything in this
Section 18(c) to the contrary notwithstanding, an attempt by Seller to remove or
discharge any Non-Permitted Title Objection shall not be deemed to be or create
an obligation of Seller to remove or discharge the same.
(d) The foregoing provisions of this Section 18 to the
contrary notwithstanding, Seller agrees to remove or discharge any monetary lien
voluntarily created or suffered by Seller and any Non-Permitted Title Objections
voluntarily created or suffered by Seller after the date hereof; provided,
however, that Seller shall not be deemed to have voluntarily created or suffered
(nor shall Seller be liable for) any Non-Permitted Title Objections if caused or
created by an act or omission of Purchaser or by an act or omission of any Space
Tenant. Seller shall remove or discharge any Non-Permitted Title Objection in
the manner set forth in subparagraph (c) above, but, for purposes of this
subparagraph (d), without regard to the Maximum Title Expense.
19. RETURN OF DEPOSIT; SELLER'S DEFAULT
If, for any reason whatsoever, Seller shall be unable to
convey title subject to and in accordance with the terms of this Contract, the
sole obligation of Seller shall be to cause the refund of the Deposit, and upon
the making of such refund this Contract shall be null and void and of no further
force or effect, no party hereto shall have any further claim against the other
by reason of this Contract; provided, however, that if Seller's inability to
convey shall result from (i) Seller's willful default or (ii) Seller's default
under Section 18 above, then Purchaser shall, in either case under clause (i) or
(ii) of this proviso, be entitled to the remedy of either (A) specific
performance or (B) cancelling this Contract and receiving (1) the return of the
Deposit and (2) reimbursement of Purchaser's actual out-of-pocket expenses
incurred in procuring environmental and engineering reports not to exceed
$6,500.00 in the aggregate, and upon receipt by Purchaser of the Deposit and
such reimbursement no party hereto shall have any further claim against the
other by reason of this Contract.
20. AFFIDAVIT REGARDING JUDGMENTS. If a search of the
title discloses judgments, bankruptcies or other returns against other persons
having names the same as or
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similar to that of Seller but who are not Seller or its affiliates or
subsidiaries, Seller will deliver to Purchaser and the Title Company an
affidavit(s) showing that such judgments, bankruptcies or other returns are not
against Seller or, at Seller's option, deliver an indemnity agreement to the
Title Company, in such form and content that the Title Company will remove such
judgments, bankruptcies or other returns as exceptions to title or will insure
against collection of such judgments out of the Premises.
21. ASSIGNMENT OF THIS CONTRACT. This Contract may not be
assigned by Purchaser without the prior written consent of Seller. The foregoing
notwithstanding, Purchaser shall have the right to assign this Contract to an
entity whose decisions are made by Purchaser (or by an entity wholly owned by
Purchaser) provided Purchaser owns at least fifty (50%) percent of the economic
interests in such entity and provided further that such entity assumes all
obligations of Purchaser under this Contract. A transfer, sale or assignment of
the majority stock or membership interest in a corporate or limited liability
company purchaser or in a corporate or limited liability general partner of a
partnership purchaser, or of a general partnership interest in a partnership
purchaser, shall constitute an assignment of this Contract, which assignment or
attempted assignment shall be void if made without the written consent of
Seller. No assignment of this Contract, whether or not permitted, shall be
deemed to relieve or release Purchaser from any of its obligations (whether to
be performed prior to or after Closing) set forth herein. Seller shall not have
the right to assign its interests under this Contract except to entities
affiliated with or related to Seller.
22. DEED; TRANSFER TAXES; EXISTING MORTGAGE EXPENSES
(a) The deed to the Premises shall be the usual special
warranty deed (the "Deed") all in proper statutory form for recording and shall
be duly executed and acknowledged so as to convey to Purchaser the fee simple of
the portion of the Premises covered thereby, free of all liens and encumbrances,
except as herein stated.
(b) At the Closing, Seller shall pay the cost of any
amount of documentary stamps, transfer tax or similar conveyance tax imposed in
connection with the delivery of the Deed (collectively, the "Transfer Tax") and
Purchaser and Seller shall execute and deliver any returns and/or affidavits in
connection with the recording of the Deed or the payment of the Transfer Tax.
(c) (i) Anything in subdivision (b) to the contrary
notwithstanding, Seller may, at its option, elect by notice given not later than
three (3) business days prior to the Closing that Purchaser pay all required
Transfer Tax, in which event at the Closing, Purchaser shall receive a credit
against Purchase Price in the amount paid by Purchaser.
(ii) Purchaser hereby indemnifies and holds Seller
harmless from and against any interest or penalty charges imposed by reason of
the untimely delivery to the appropriate recording officer of any of the checks
required under Subdivision (c)(i).
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(d) At the Closing, Purchaser shall pay the cost of
any documentary stamps, recording taxes or other tax or expense imposed in
connection with the Existing Mortgage.
(e) The provisions of this Section 22 shall survive
the Closing.
23. PURCHASER'S DEFAULT. In the event Purchaser should
default under this Contract (including, but not limited to, Purchaser's failure
to timely deliver the Additional Deposit), the parties agree that the damages
that Seller will sustain as a result thereof will be difficult, if not
impossible, to ascertain and, in such event Seller shall, as its sole and
exclusive remedy, direct Escrowee to pay the Deposit to Seller who shall retain
it as and for its liquidated damages hereunder.
24. ESCROW OF DEPOSIT. With respect to the Deposit,
Escrowee is instructed as follows:
(a) Upon the Closing, the Cash Deposit shall be paid
over to Seller and any Letter of Credit shall be delivered to Purchaser upon
payment by Purchaser to Seller of the Purchase Price.
(b) (i) Escrowee shall draw the full proceeds under
any Letter of Credit if (A) Escrowee shall receive a written statement signed by
Seller as follows: "Purchaser has defaulted in its obligations under that
certain Contract of Sale dated July 7, 1997"; or (B) the Letter of Credit will
expire by its terms within thirty (30) days. Escrowee shall promptly upon
receipt forward a copy of Seller's statement to Purchaser. Any such proceeds
paid to and received by Escrowee shall be treated and disposed of hereunder as
Cash Deposit.
(ii) In the event Purchaser should default under
this Contract, Escrowee shall, if directed by Seller, pay the Cash Deposit to
Seller who shall retain it as and for its liquidated damages hereunder.
(c) In the event Seller shall fail to close title by
reason of a default by Seller or in the event this Contract is terminated in
accordance with its terms through no fault of Purchaser, the Deposit shall be
paid over to Purchaser.
(d) Escrowee shall invest the proceeds of the Deposit
in such bank or money market accounts or United States Government Treasury Bills
as Seller shall direct. Any interest earned on Deposit when received shall
similarly be held in escrow by the Escrowee and if under the terms of this
Contract (i) the Deposit is to be paid over to Purchaser, then such interest
shall be paid over to Purchaser, or (ii) the Deposit is to be paid over to
Seller, then such interest shall be paid over to Seller. If the Closing occurs,
any interest earned on the Deposit shall be considered a credit of Purchaser to
be applied against the Purchase Price.
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(e) Escrowee, by signing this Contract at the end
hereof where indicated, signifies its agreement to hold the Deposit for the
purposes as provided in this Contract. In the event of any dispute, Escrowee
shall have the right to deposit the Deposit in court to await the resolution of
such dispute. In any event, Escrowee shall not be personally liable so long as
it acts in good faith.
(f) Escrowee shall not incur any liability by reason
of any action or non-action taken by Escrowee in good faith or pursuant to the
judgment or order of a court of competent jurisdiction. Escrowee shall have the
right to rely upon the genuineness of all certificates, notices and instruments
delivered to it pursuant hereto, and all the signatures thereto or to any other
writing received by Escrowee purporting to be signed by any party hereto, and
upon the truth of the contents thereof. Before making payment or delivery of any
moneys or documents held by Escrowee pursuant hereto, Escrowee shall have the
right to require delivery to it of an executed and acknowledged receipt for the
subject matter of the delivery to be made by it. In the event of any dispute
between the parties as to whether either party is in default hereunder or as to
any other material fact, Escrowee shall have the right to refrain from taking
any further action with respect to the subject matter of the escrow until it is
reasonably satisfied that such dispute is resolved or action by Escrowee is
required by an order or judgment of a court of competent jurisdiction. Escrowee
shall be entitled to consult with other counsel in connection with its duties
hereunder. Seller and Purchaser jointly and severally, agree to indemnify
Escrowee from any and all liability that may arise hereunder and to reimburse
Escrowee for its reasonable costs and expenses, including reasonable attorneys'
fees (either paid to retained attorneys or representing the fair value of legal
services rendered by Escrowee to itself) incurred as a result of any dispute or
litigation arising hereunder.
(g) Escrowee or any member of its firm shall be
permitted to act as counsel for Seller in any dispute as to the disbursement of
the Deposit or any other dispute between the parties whether or not Escrowee is
in possession of the Deposit and continues to act as Escrowee.
25. REPRESENTATIONS.
(a) Seller, represents that, unless otherwise
herein stated, as of the date hereof:
(i) Schedule C represents a true, accurate
and complete list in all material respects of (A) all Space Tenants; (B) the
current base rent and (C) the security deposits presently held by Seller. Other
than the Space Tenants (and parties claiming rights under Space Leases,
including sublessees, licensees, assignees and concessionees) no party has any
right to possess or use the Premises except as may be contemplated by the
Permitted Exceptions.
(ii) Except as set forth on Schedule C
hereof, the Spaces Leases are in full force and effect. Seller has not received
notice of any unfulfilled obligations as to security deposits to prior tenants.
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(iii) Except as set forth on Schedule C,
Seller has not received rents from the Space Tenants (other than security
deposits) in excess of one (1) month in advance.
(iv) There are no written service contracts
or management agreements (the "Service Contracts") affecting the Premises or the
operation or use thereof which will be binding upon Purchaser after the Closing
except those which may be cancelled upon not more than thirty (30) days notice.
(v) There is no litigation pending (A)
between Seller, as landlord, under the Space Leases and any Space Tenant, except
as may be covered by insurance, or (B) affecting title to the Premises or this
Contract.
(vi) Seller is, and at the Closing shall be
a duly organized and validly existing Alabama corporation and authorized to do
business in the state where the Property is located. The execution, delivery and
performance of this Contract in accordance with its terms, has been duly
authorized by all necessary action of Seller, does not violate the articles of
incorporation, by-laws, operating agreement, partnership agreement or
certificate of partnership of Seller, or any contract, agreement, commitment,
order, judgment or decree to which Seller is a party or by which it, or the
Premises, are bound, or result in the creation of any lien, charge or
encumbrance upon the Premises or any part thereof. This Contract has been duly
executed by Seller and constitutes legal, valid and binding obligations of
Seller. Seller will have the right, power and authority to make and perform its
obligations under this Contract without the need for governmental approval,
consent or filing and this Contract shall be a valid and binding obligation of
Seller enforceable against Seller in accordance with its terms.
(vii) Seller is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code").
(viii) Seller has not received written
notice of any condemnation proceedings, eminent domain proceedings, proceedings
to change the zoning or similar actions or proceedings which are pending against
the Premises or any part thereof.
(ix) There are no employees of Seller at the
Properties for which Purchaser shall be responsible after the Closing.
(x) The principal balance as of June 30,
1997 of the Existing Mortgage is set forth on Schedule E attached hereto. The
Lender is not holding escrow deposits other than any deposits for real estate
taxes and/or insurance.
(xi) The Loan Documents constitute all the
documents which are material in connection with the Existing Mortgage. Seller
shall not modify the Loan Documents during the term of this Contract without the
consent of Purchaser or voluntarily and knowingly cause a monetary or other
material default under the Loan Documents which is not cured within any
applicable grace period.
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(xii) Neither Seller nor any of its
affiliates as described in Sections 414(b), (c) and (m) of the Code
("Affiliates") has incurred any liability which could subject Purchaser or any
asset to be acquired by Purchaser pursuant to this Contract to any lien or
material liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of
ERISA or Section 401(a)(29) or 412 of the Code.
(b) As used herein items in the "possession" of
Seller or "received" by Seller shall mean only writings actually delivered into
the possession of Seller (at the New York City office of DRA Advisors, Inc.) and
shall not include writings addressed to Seller but sent or delivered to the
Space Tenants or other third parties or to other locations.
(c) The representations contained in subsection (a)
above shall survive for a period of six (6) months following the Closing Date,
and any claim by Purchaser in connection therewith must be made within such six
(6) month period. Notwithstanding anything to the contrary, any representation
which results in a reduction of the Purchase Price pursuant to subparagraph (e)
below shall not survive the Closing.
(d) Subject to the succeeding provisions of this
subparagraph (d) and of subparagraph (e) below, if any representation of Seller
shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be
to terminate this Contract and receive the return of the Deposit, and upon the
receipt of same this Contract shall be null and void and of no further force or
effect and neither party shall have any rights or obligations against or to the
other. Seller shall, in any event, have the option (i) to rescind Purchaser's
termination of the Contract and adjourn the Closing for a period not to exceed
sixty (60) days in order to make such representation true, or (ii) unless
Purchaser waives all liability of Seller by reason of such untrue
representation, to terminate this Contract and promptly return the Deposit to
Purchaser, and upon the making of such return this Contract shall be null and
void and of no further force or effect and neither party hereto shall have any
rights or obligations against or to the other. If Purchaser waives such
liability, then in such event, the Closing shall take place without abatement or
reduction in the Purchase Price. If the Closing shall take place without
Purchaser making an objection (by notice delivered at the Closing) to an untrue
representation of which Purchaser shall have knowledge, Purchaser shall be
deemed to have waived all liability of Seller by reason of such untrue
representation. The untruth of any non-material representation of Seller shall
not affect the rights and obligations of the parties hereto.
(e) The provisions of subparagraph (d) hereof to the
contrary notwithstanding, if any representations shall fail to be true and such
representations can be made true by the payment of a sum of money only, and if
both (i) such representation(s) can reasonably be expected to be made true
within a period of sixty (60) days and (ii) the sum of money requited to make
such representation(s) true shall not exceed Two Hundred Fifty Thousand and
00/100 ($250,000.00) Dollars in the aggregate (the "Maximum Representation
Expense"), then, and in such event, Seller agrees to (i) adjourn the Closing for
the period required to make such representations true and to expend (or, at
Seller's election, to obligate itself to expend by indemnity agreement, bond or
any other manner) an amount not to exceed the Maximum Representation Expense, or
(ii) indemnify Purchaser, in an amount not to
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exceed the Maximum Representation Expense, from any damage, cost, expense or
claim that Purchaser may incur as a result of such untrue representation.
Notwithstanding the provisions of the preceding sentence, Purchaser may at any
time accept such title as Seller can convey notwithstanding the existence of any
such untrue material representation(s) without reduction of the Purchase Price
or any credit or allowance on account thereof or any claim against Seller;
provided, however, if there shall be any untrue material representation(s) which
can be made true by the payment of a sum of money only which exceeds the Maximum
Representation Expense or which can be made true by the payment of less than the
Maximum Representation Expense but not within the available time and Seller
elects not to, or cannot, make such material representation(s) true within the
available time, then if Purchaser elects to accept such title as Seller can
convey, the Purchase Price shall be reduced by the lesser of the sum of money
required to make such representations true, or the Maximum Representation
Expense. The acceptance of the Deeds by Purchaser shall be deemed to be a full
performance and discharge of every agreement and obligation on the part of the
Seller to be performed pursuant to the provisions of this Contract, except
those, if any, which are herein specifically stated or made to survive the
Closing and Seller shall have no further liability with respect to such untrue
material representation(s).
(f) Following the Closing, Seller agrees to maintain
at least $50,000.00 in its operating account until the end of the calendar year
in which the Closing occurs, it being understood that such amount shall not be
deemed to be the limit of Seller's liability, if any, after the Closing Date.
26. CLOSING DOCUMENTS. At the Closing (unless otherwise
expressly indicated):
(a) Seller shall deliver to Purchaser the following
items:
(i) the Deed in accordance with Section 22
hereof.
(ii) the Assignment of Space Leases executed by
Seller, which assignment shall be in the form of Exhibit 1 attached hereto.
(iii) duplicate originals, or if duplicate
originals are not available, true and complete copies certified as true by
Seller, of all of the Space Leases.
(iv) to the extent in Seller's possession, the
real estate tax bills then payable for the then current real estate tax year.
(v) a duly executed certificate of Seller, in
the applicable form set forth in Treasury Regulations Section 1.1445-2(b)(2).
(vi) the checks, return and/or affidavit in
accordance with Section 22 hereof.
21
<PAGE> 25
(vii) subject to the terms of Sections
26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the
Closing Date, estoppel certificates ("Estoppel Certificates"), in form and
substance which does not vary materially from the form annexed hereto as Exhibit
2 executed by each of the Space Tenants; provided, however, with respect to
Anchor Space Tenants, Seller shall only be required to deliver such Estoppel
Certificates which are usual and customary for such Anchor Space Tenants (except
that, other than for the Estoppel Certificate to be delivered by Wal-Mart
Stores, Inc. [or its assignee] the Estoppel Certificates of all other Anchor
Space Tenants shall cover at least the matters set forth in paragraphs 2 and 3
of Exhibit 2).
(A) If the required Estoppel Certificates
cannot be timely delivered, or if the Estoppel Certificates which are timely
delivered do not cover the material applicable matters set forth in Exhibit 2
Seller may, but shall not be obligated to, adjourn the Closing for a period not
to exceed sixty (60) days, to obtain satisfactory Estoppel Certificates, or
deliver its certificate ("Seller's Certificate") with respect to not more than
forty (40%) percent of rentable square feet of space leased by non-Anchor Space
Tenants as of the date hereof, covering all of the matters set forth in Exhibit
2 if no Estoppel Certificate is delivered by a Space Tenant or covering the
matters not covered by an Estoppel Certificate which is delivered by a Space
Tenant. Subsequent to the Closing, Seller may deliver to Purchaser Estoppel
Certificates or supplemental Estoppel Certificates covering those matters not
covered by the previously delivered Estoppel Certificates. Upon delivery of such
Estoppel Certificates, Seller shall be entirely released from any liability
arising out of Seller's Certificate delivered at the Closing as Seller's
Certificate relates to the particular Space Tenant and/or Space Lease covered by
the Estoppel Certificate, to the extent the information contained in such
Estoppel Certificates is consistent with the information contained in Seller's
Certificate. If Seller does not or cannot deliver an Estoppel Certificate or
Seller's Certificate, Purchaser's sole remedy shall be to terminate this
Contract and receive the return of the Deposit or to close title notwithstanding
the lack of the Estoppel Certificate or Seller's Certificate without any
reduction of the Purchase Price and without any liability of Seller relative
thereto.
(B) (1) In the event any Estoppel
Certificate or Seller's Certificate shall indicate a default by landlord under a
Space Lease (such default hereinafter being referred to as an "Estoppel
Default"), then Seller may, but shall not be obligated to, elect to cure any
such Estoppel Default and shall, for that purpose, be entitled to adjourn the
Closing for a period not to exceed sixty (60) days, provided, however, that in
the event Seller elects not to cure such Estoppel Default or is unable to cure
such Estoppel Default within such period of time, Purchaser's sole remedy shall
be as set forth in the last sentence of subparagraph (A) above.
(2) Notwithstanding subsection
26(a)(vii)(B)(1), above, if, in Seller's good faith judgment either (x) the
potential liability of any Estoppel Default is less than $250,000, and Seller
indemnifies Purchaser from and against any and all claims, loss, liability,
damage, cost or expense, including reasonable attorneys' fees, that may arise as
a result of such Estoppel Default or (y) the potential liability of any Estoppel
Default is $250,000 or more and Seller and Purchaser agree upon a
22
<PAGE> 26
mutually acceptable resolution to such Estoppel Default, then, the rights and
obligations of the parties hereto shall not be affected thereby, this Contract
shall remain in full force and effect and Purchaser shall, at the Closing,
accept such Estoppel Certificate or Seller's Certificate, and the Space Lease
corresponding thereto, subject to such Estoppel Default without any reduction of
the Purchase Price. Subsequent to the Closing, Seller may deliver an Estoppel
Certificate confirming that the Estoppel Default no longer exists, whereupon
Seller shall be entirely released from any liability arising out of the
indemnity, if any, given pursuant to clause (x) above.
(viii) to the extent then in Seller's
possession and control, copies of plans and specifications relating to the
Property.
(ix) a bill of sale without representation
or warranty for any personal property (including tradenames and warranties, if
any) being conveyed pursuant to this Contract;
(x) the Assignment of Service Contracts
existing on the Closing Date executed by Seller, which assignment shall be in
the form of Exhibit 3 attached hereto; and
(xi) a title certification substantially in
the form of Exhibit 5 attached hereto.
(b) Purchaser shall (i) pay to Seller or as Seller
may direct, the Purchase Price as provided in Section 3 hereof, (ii) pay all
Mortgage Expenses and (iii) deliver the Lender's release of the Obligors (and
their partners, members, officers and/or shareholders) from any and all
obligations and liabilities under the Loan Documents in accordance with Section
4(b). Escrowee shall deliver the Cash Deposit to Seller.
(c) Purchaser shall execute, acknowledge (where
required) and deliver to Seller:
(i) the Assignment of the Space Leases.
(ii) the Assignment of the Service Contracts.
(iii) the checks, returns and/or affidavits in
accordance with Section 22 hereof.
(iv) a copy, certified as true and complete by
Purchaser, of the Consent and Assumption Agreement in accordance with Section
4(b).
(d) Seller and Purchaser shall execute a notice to
each of the Space Tenants stating in substance that Purchaser has succeeded to
Seller's interest as landlord under the Space Leases.
23
<PAGE> 27
27. FURTHER ASSURANCES. The parties each agree to do such
other and further acts and things, and to execute and deliver such instruments
and documents (not creating any obligations additional to those otherwise
imposed by this Contract), as either may reasonably request from time to time,
whether at or after the Closing, in furtherance of the purposes of this
Contract. The provisions of this Section 27 shall survive the Closing.
28. PURCHASER'S DUE DILIGENCE PERIOD.
(a) Purchaser shall have the right to cancel this
Contract on or before September 5, 1997 by notice to Seller and Escrowee of such
cancellation to be received by Seller on or before such date (the period of time
from the date hereof through and including September 5, 1997 is herein referred
to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels this
Contract in accordance with this subparagraph, this Contract shall be deemed
terminated and of no further force or effect and the Deposit shall be promptly
returned to Purchaser. If Purchaser does not duly cancel this Contract in
accordance with this subparagraph or if Purchaser waives its right to cancel
this Contract, (i) this Contract shall remain in full force and effect and
Purchaser shall have no further right to cancel this Contract under this
subparagraph and (ii) Purchaser shall be deemed to have waived any liability of
Seller and any right to refuse to consummate the Closing by reason of a
misrepresentation, Non-Permitted Title Objection or other condition known to
Purchaser as of the expiration of Purchaser's Due Diligence Period.
(b) Time shall be of the essence with respect to the
dates in this Section for the expiration of Purchaser's Due Diligence Period and
the giving of Purchaser's cancellation notice.
(c) Notwithstanding anything to the contrary, if
Purchaser's environmental and engineering consultants have not inspected the
Property by August 8, 1997 Seller may elect to cancel this Contract in which
event the Deposit shall be promptly returned to Purchaser. In the event
Purchaser concludes based upon any of its due diligence investigations that it
is not prepared to proceed to Closing it will promptly so notify Seller and
cancel the Contract.
(d) Purchaser agrees to keep confidential as
hereinafter provided all information furnished to Purchaser by Seller concerning
the Premises, including, without limitation, Space Leases, Loan Documents,
Service Contracts or other contracts or agreements, various papers, documents,
legal instruments, studies, brochures, computer output, and other material, and
any discussions or visitations of the Premises (all of the aforementioned
information is collectively referred to as "Evaluation Material").
(e) All Evaluation Material shall not be used or
duplicated by Purchaser in any way detrimental to Seller, or for any purpose
other than evaluating a possible purchase of the Property by Purchaser.
Purchaser agrees to keep all Evaluation Material (other than information which
is a matter of public record or is provided in other sources readily available
to the public other than as a result of disclosure thereof by Purchaser or
Related Parties) strictly confidential; provided, however, that the Evaluation
24
<PAGE> 28
Material may be disclosed to the directors, officers, and employees and partners
of Purchaser, and to Purchaser's attorneys and accounting firm, other
consultants, underwriters and financial institutions (all of whom are
collectively referred to as "Related Parties") who need to know such information
for the purpose of evaluating a possible purchase of the Premises. These Related
Parties shall be informed of the confidential nature of the Evaluation Material
and shall be directed to keep all such information in the strictest confidence
and use such information only for the purpose of evaluating a possible purchase
by Purchaser. Purchaser will promptly, upon request of Seller, deliver to Seller
all Evaluation Material furnished to them by Seller, whether furnished before or
after the date hereof, without retaining copies thereof. Purchaser will direct
Related Parties to whom Evaluation Material is made available not to make
similar disclosures and any such disclosure shall be deemed made by and be the
responsibility of Purchaser.
(f) Purchaser shall have the right to conduct
non-intrusive investigations of the Premises during the term of this Contract
(including a Phase I environmental investigation and a structural analysis).
Such investigations may be conducted by Purchaser or its designees, including,
but not limited to engineers, accountants, architects and Purchaser's employees
during normal business hours and upon reasonable advance notice to Seller
provided there is no disturbance to or interference with the business of any
Space Tenant. Purchaser hereby indemnifies and holds harmless Seller from and
against any claims, costs, damages, liabilities or expenses (including
reasonably attorneys' fees) incurred or, suffered by Seller by reason of damage
or injury to persons or property caused by Purchaser's investigations.
(g) Seller agrees to deliver to Purchaser true and
complete copies of all Space Leases (and any modifications thereof) in Seller's
possession.
(h) The provisions of Section 28(d), (e) and (f)
shall survive the termination of this Contract.
29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS.
(a) At the Closing, Seller and Purchaser shall each
deliver any and all appropriate partnership consents or certificates by the
secretary of each corporation (including any corporate general partner)
certifying as to the corporate resolution authorizing this transaction.
(b) Purchaser represents that: (i) it is, and will at
the Closing be, a limited partnership duly organized and validly existing under
the laws of Delaware and qualified to do business in the state in which the
Property is located; (ii) the execution, delivery and performance of this
Contract in accordance with its terms, do not violate the corporate charter,
by-laws or certificate of incorporation of Purchaser, or any contract,
agreement, commitment, order, judgment or decree to which Purchaser is a party
or by which it is bound; (iii) Purchaser has the right, power and authority to
make and perform its obligations under this Contract; (iv) this Contract is a
valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms. Purchaser covenants
25
<PAGE> 29
and warrants that the representations in the preceding sentences of this Section
29(b) will be true on the Closing with respect to Purchaser or any permitted
assignee of Purchaser; (v) Purchaser will have the right, power and authority to
make and perform its obligations under this Contract without the need for
governmental approval, consent or filing and this Contract shall be a valid and
binding obligation of Purchaser enforceable against Purchaser in accordance with
its terms and (vi) Purchaser has the current financial ability to pay the
Purchase Price and otherwise perform its obligations under this Contract.
(c) Purchaser represents and warrants that: (i)
Purchaser is not an "employee benefit plan" as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is
subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute
"plan assets" of one or more plans within the meaning of 29 C.F.R. ss.2510-101;
(iii) Purchaser is not a "governmental plan" within the meaning of Section 3(32)
of ERISA; (iv) transactions by or with Purchaser are not subject to state
statutes regulating investments of and fiduciary obligations with respect to
governmental plans; and (v) Purchaser is not a "party in interest" to Seller
within the meaning of ERISA. Purchaser covenants and warrants that the
representations in the preceding sentences of this Section 28(c) will be true on
the Closing.
30. MISCELLANEOUS.
(a) This Contract and the Schedules and Exhibits
annexed hereto constitute the entire agreement between the parties hereto with
respect to the subject matter hereof, and except for any other documents
executed contemporaneously herewith all understandings and agreements heretofore
or simultaneously had between the parties hereto, including without limitation,
any letter of intent or initial escrow agreement, are merged into and are
superseded in their entirety by this Contract.
(b) This Contract may not be waived, changed,
modified or discharged orally, but only by an agreement in writing signed by the
party against which any waiver, change, modification or discharge is sought.
(c) The captions or article titles contained in this
Contract and the Index, if any, are for convenience and reference only and shall
not be deemed a part of the text of this Contract.
(d) The terms "hereof," "herein," and "hereunder,"
and words of similar import, shall be construed to refer to this Contract as a
whole, and not to any particular article or provision, unless expressly so
stated.
(e) The Schedules and Exhibits annexed hereto are
hereby incorporated in and made part of this Contract.
(f) All words or terms used in this Contract,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
26
<PAGE> 30
(g) This Contract shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns, if any, but nothing
contained herein shall be deemed a waiver of the provisions of Section 21
hereof. None of the provisions of this Contract are intended to be, nor shall
they be construed to be, for the benefit of any third party.
(h) If a party is required to perform an act or give
a notice on a date that is a Saturday, Sunday or national holiday, the date such
performance or notice is due shall be deemed to be the next business day.
(i) This Contract is to be governed and construed in
accordance with the laws of the State of New York.
(j) The terms "affiliates" and "subsidiaries" shall
be given the same meaning as used in the broadest sense in any provision of the
rules and regulations governing federal taxation and securities.
(k) Neither Seller nor Purchaser may record this
Contract or a memorandum of this Contract. Purchaser hereby waives, to the
extent permitted by law, any right to file a lis pendens or other form of
attachment against the Properties in connection with this Contract or the
transactions contemplated hereby, other than a lis pendens or other such form of
attachment that may be filed by Purchaser contemporaneously with the
commencement by Purchaser of an action for a specific performance under Section
19 hereof. To the extent any such filing is made in violation of this Contract,
Purchaser shall indemnify Seller against any damages incurred by Seller in
connection therewith. In the event Purchaser shall be unsuccessful in an action
for a specific performance, it shall immediately cause any lis pendens or other
such form of attachment to be cancelled and removed from the public record. The
provisions of this section shall survive the termination of this Contract.
(l) The parties acknowledge that this transaction
contemplates only the sale and purchase of the Premises and that Seller is not
selling a business nor do the parties intend that Purchaser be deemed a
successor of Seller with respect to any liabilities of Seller to any third
parties other than as set forth in this Contract and the Permitted Exceptions.
Accordingly, except as set forth in this Contract, Purchaser shall neither
assume nor be liable for any of the debts, liabilities, taxes or obligations of,
or claims against, Seller, or of any other person or entity, of any kind or
nature, whether existing now, on the Closing Date or at any time thereafter. The
debts, liabilities, taxes, obligations and claims for which Seller alone is
liable shall include, without limitation, all payments, benefits, and
contribution obligations with respect to past and/or present employees of Seller
or its Affiliates in connection with the business of Seller or its Affiliates
(including, but not limited to, salaries, wages, commissions, bonuses, vacation
pay, health and welfare benefits or contributions [including any group health
continuation coverage obligation under COBRA], pension and/or profit sharing
contributions, severance or termination pay, or any other form of compensation
or employee benefit).
27
<PAGE> 31
(m) Seller shall operate the Premises in a manner
substantially consistent with its past practice.
[SPACE INTENTIONALLY LEFT BLANK]
28
<PAGE> 32
IN WITNESS WHEREOF, the parties hereto have duly executed this
Contract the day and year first above written.
SELLER:
Fed ID No.: DRM THIRTY-TWO REALTY CORPORATION, an
Alabama corporation
13-3598002
By /s/ Authorized Signature
---------------------------
Name:
Title:
PURCHASER:
Fed ID No.: RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO-GERSHENSON PROPERTIES
TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature
---------------------------
Name:
Title:
As to Section 24:
ESCROWEE:
TENZER GREENBLATT LLP
BY /s/ Authorized Signature
---------------------------
Name:
Title:
29
<PAGE> 33
SCHEDULE A:
DESCRIPTION OF PROPERTY
<PAGE> 34
SCHEDULE B:
"SUBJECT TO" PROVISIONS
1. Any laws, regulations or ordinances presently in effect or which will
be in effect on the Closing (including, but not limited to, zoning,
building and environment protection) as to the use, occupancy,
subdivision or improvement of this Property adopted or imposed by any
governmental body or the effect of any noncompliance with or any
violation thereof.
2. The Space Leases and the rights of Space Tenants thereunder pertaining
to this Property listed on Schedule C attached to and forming part of
this Contract to which this Schedule is attached as well as any
permitted renewals or extensions thereof and any permitted new leases
created after the date of this Contract as same may be affected by rent
regulations or laws now or hereafter in effect, and rulings, decisions
or interpretations by any court, agency or administrative body.
3. Real estate taxes, vault taxes and water and sewer charges not due and
payable (it being understood that the lien of real estate taxes payable
in arrears shall be a Permitted Exception).
4. State of facts shown on Survey dated , last revised and Survey
dated prepared by and such additional state of facts an
accurate survey of the Premises may show.
5. Maintenance and Service Contracts pertaining to this Premises set forth
on Schedule D to this Contract.
6. Violations of laws, regulations, ordinances, orders or requirements, if
any, noted in or issued by any governmental or quasi-governmental
department or authority having or asserting jurisdiction over the
Premises issued subsequent to the date hereof, and any conditions
constituting such violations, although not so noted or issued.
7. Rights of utility companies to lay, maintain, install, operate and
repair pipes, lines, poles, wires, cables, conduits, cable boxes,
distribution boxes and related equipment on, over and under the
Property.
8. Additional usual and customary exclusions and exceptions from coverage
obtaining in the standard form of insuring agreement employed by the
Title Company at the standard rates of such Title Company.
<PAGE> 35
SCHEDULE C
RENT ROLL
<PAGE> 36
SCHEDULE D
ESCROWEE'S WIRE TRANSFER INSTRUCTIONS
SCHEDULE E
EXISTING MORTGAGE
SCHEDULE F
LIST OF TAX PROTESTS
EXHIBIT 1
FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE
EXHIBIT 2
FORM OF SPACE TENANT ESTOPPEL CERTIFICATE
EXHIBIT 3
FORM OF ASSIGNMENT OF SERVICE CONTRACTS
EXHIBIT 4
FORM OF LETTER OF CREDIT
EXHIBIT 5
FORM OF TITLE CERTIFICATION
<PAGE> 1
EXHIBIT 10.11
CONTRACT OF SALE
BETWEEN
DRM SIX REALTY CORPORATION
SELLER
AND
RAMCO-GERSHENSON PROPERTIES, L.P.
PURCHASER
Dated: July 7, 1997
Shopping Center Premises:
Indian Hills, Calhoun, Georgia
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. SUBJECT OF SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. "SUBJECT TO" PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. SPACE LEASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. LEASING PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. APPORTIONMENTS AND REIMBURSEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. VIOLATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. PENDING TAX PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10. "AS-IS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11. BROKER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12. DESTRUCTION OR CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13. STATUS OF TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
14. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16. FRANCHISE TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17. TITLE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18. NON-PERMITTED TITLE OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
19. RETURN OF DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
20. AFFIDAVIT REGARDING JUDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
21. ASSIGNMENT OF THIS CONTRACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C>
22. DEED; TRANSFER TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
23. PURCHASER'S DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
24. ESCROW OF DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
25. REPRESENTATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
26. CLOSING DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
27. FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
28. PURCHASER'S DUE DILIGENCE PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . 25
30. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
</TABLE>
EXHIBITS AND SCHEDULES:
Schedule A: Description of Property
Schedule B: Permitted Exceptions
Schedule C: Rent Roll
Schedule D: Escrowee's Wire Transfer Instructions
Schedule E: List of Tax Protests
Exhibit 1: Form of Assignment and Assumption of Space Leases
Exhibit 2: Form of Tenant Estoppel Certificate
Exhibit 3: Form of Assignment and Assumption of Service Contracts
Exhibit 4: Form of Letter of Credit
Exhibit 5: Form of Title Certification
-1-
<PAGE> 4
CONTRACT (this "Contract") made this 7th day of July, 1997 by
and between DRM SIX REALTY CORPORATION, a Delaware corporation having an
address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York
10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited
partnership having an address at 27600 Northwestern Highway (Suite 200)
Southfield, Michigan 48034 ("Purchaser").
W I T N E S S E T H :
WHEREAS, upon the terms and conditions hereinafter set forth,
Seller agrees to sell and convey fee title to that certain parcel of land
described on Schedule A, annexed hereto and made a part hereof, with the
buildings and improvements erected thereon (which parcel of land and the
improvements erected thereon are herein referred to as the "Property") to
Purchaser and Purchaser agrees to purchase the Property.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. The terms defined in this Section 1
shall for all purposes of this Contract have the meaning herein specified
unless the context requires otherwise.
(a) "Additional Deposit" shall have the meaning
ascribed to it in Section 3(a).
(b) "Affiliates" shall have the meaning ascribed
to it in Section 25(a)(x).
(c) "Anchor Space Tenant" shall have the meaning
ascribed to it in Section 12(b).
(d) "Arrears" shall have the meaning ascribed to
it in Section 7(a)(i)(A).
(e) "Cash Deposit" shall have the meaning
ascribed to it in Section 3(a)(i).
(f) "Closing" shall have the meaning ascribed to
it in Section 14(a).
(g) "Closing Date" shall have the meaning
ascribed to it in Section 14(a).
(h) "Code" shall have the meaning ascribed to it
in Section 25(a)(vii).
(i) "Deed" shall have the meaning ascribed to it
in Section 22(a).
(j) "Deposit" shall have the meaning ascribed to
it in Section 3(a).
(k) "ERISA" shall have the meaning ascribed to it
in Section 29(c).
(l) "Escrowee" shall have the meaning ascribed to
it in Section 3(a).
(m) "Estoppel Certificate" shall have the meaning
ascribed to it in Section 26(a)(vii).
<PAGE> 5
(n) "Estoppel Default" shall have the meaning
ascribed to it in Section 26(a)(vii)(B).
(o) "Evaluation Material" shall have the meaning
ascribed to it in Section 28(d).
(p) "Initial Deposit" shall have the meaning
ascribed to it in Section 3(a).
(q) "Letter of Credit" shall have the meaning
ascribed to it in Section 3(a)(i).
(r) "Maximum Representation Expense" shall have
the meaning ascribed to it in Section 25(e).
(s) "Maximum Title Expense" shall have the
meaning ascribed to it in Section 18(c).
(t) "New Space Lease" shall have the meaning
ascribed to it in Section 6(a).
(u) "Non-Permitted Title Objections" shall have
the meaning ascribed to it in Section 18(a).
(v) "Overage Rent" shall have the meaning
provided in Section 7(a)(i)(B).
(w) "Permitted Exceptions" shall have the meaning
ascribed to it in Section 13.
(x) "Premises" shall have the meaning ascribed it
in Section 2(b).
(y) "Property" shall have the meaning ascribed to
it in the "WHEREAS" paragraph in this Contract.
(z) "Purchase Price" shall have the meaning
ascribed to it in Section 3.
(aa) "Purchaser's Due Diligence Period" shall have
the meaning ascribed to it in Section 28(a).
(ab) "Related Parties" shall have the meaning
ascribed to it in Section 28(e).
(ac) "Seller's Certificate" shall have the meaning
ascribed to it in Section 26(a)(vii).
(ad) "Service Contracts" shall have the meaning
ascribed to it in Section 25(a)(iv).
(ae) "Space Leases" shall have the meaning
ascribed to it in Section 5.
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(af) "Space Tenants" shall have the meaning
ascribed to it in Section 5.
(ag) "Substantial Loss" shall have the meaning
ascribed to it in Section 12(b).
(ah) "Title Company" shall have the meaning
ascribed to it in Section 17.
(ai) "Transfer Tax" shall have the meaning
ascribed to it in Section 22(b).
(aj) "Violation(s) " shall have the meaning
ascribed to it in Section 8.
2. SUBJECT OF SALE.
(a) Seller agrees to sell and convey to Purchaser
the Premises and Purchaser agrees to purchase from Seller the Premises subject
to the terms and conditions contained in this Contract.
(b) This sale includes any right, title and
interest of Seller in and to: (i) the Property (and any other property
adjacent thereto owned by Seller); (ii) any land lying in the bed of any
street, road or avenue opened or proposed, in front of or adjoining the
Property, to the center line thereof, and all right, title and interest of
Seller in and to any award made or to be made in lieu thereof and in and to any
unpaid award for damage to the Property by reason of change of grade of any
street; and Seller will execute and deliver to the Purchaser at the Closing, or
thereafter, on demand, all proper instruments for the conveyance of such title
and the assignment and collection of any such award; (iii) trade names,
easements, permits, licenses and utility agreements, and other appurtenances
appurtenant to the Property, if any; (iv) fixtures, equipment and other
personal property attached to and appurtenant to the Property and not owned by
the Space Tenants, if any, but no part of the Purchase Price shall be deemed to
be paid for such fixtures, equipment or personal property; (v) the Space Leases
and the security deposits listed on Schedule C annexed hereto; (vi) all plans
and specifications for improvements to the Property in the possession of Seller
and any contracts, warranties and guarantees, if any, with regard to the
foregoing; and (vii) any mineral rights, waters, water courses and
hereditaments belonging to the Property and owned by Seller ((i) through (vii)
being referred to collectively as the "Premises").
3. PURCHASE PRICE.
The purchase price for the Premises is the sum of
Seven Million Three Hundred Eighty-Three Thousand and 00/100 Dollars
($7,383,000.00), (the "Purchase Price") which shall be paid by Purchaser to
Seller as follows:
(a) (i) Sixty-Six Thousand Six Hundred Sixty-Six
and 67/100 Dollars ($66,666.67) (the "Initial Deposit") on the signing of this
Contract payable to Tenzer Greenblatt LLP ("Escrowee"), receipt of which is
hereby acknowledged by the Escrowee and (ii) Two Hundred Sixty-Six Thousand Six
Hundred Sixty-Six and 67/100 Dollars ($266,666.67) (the "Additional Deposit")
payable to Escrowee on or before September 5, 1997, time being of the essence.
The Initial Deposit and the Additional Deposit, to the extent actually paid and
received, together with any interest earned thereon is referred to collectively
herein as the "Deposit." The Deposit shall include the Cash Deposit
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or any Letter of Credit or the proceeds therefrom. The Initial Deposit and the
Additional Deposit may be paid, at Purchaser's option, by (A) electronic wire
transfer in accordance with the instructions set forth on Schedule D attached
hereto of immediately available federal funds, or by good certified check of
Purchaser or bank teller's check to the order of Escrowee (individually or
collectively (the "Cash Deposit") or (B) delivering to Escrowee an irrevocable
letter of credit, in the amount of the Initial Deposit and/or the Additional
Deposit issued to Escrowee, as beneficiary, by BankBoston, N.A. in the form of
Exhibit 4 (individually or collectively, the "Letter of Credit"); and
(b) On the Closing Date, Seven Million Forty-Nine
Thousand Six Hundred Sixty-Six and 66/100 Dollars ($7,049,666.66) plus the
amount of any Letter of Credit constituting a portion of the Deposit, subject
to the apportionments set forth in Section 7, by electronic wire transfer of
immediately available federal funds pursuant to wiring instructions to be given
by Seller to Purchaser prior to the Closing.
4. "SUBJECT TO" PROVISIONS.
(a) The Premises are sold subject to the
exceptions set forth on Schedule B attached hereto.
5. SPACE LEASES. With respect to tenancies and
occupancies set forth on Schedule C attached hereto and made a part hereof,
Purchaser represents that it has examined, or will examine prior to the
expiration of Purchaser's Due Diligence Period, all leases and amendments
thereto relating to such tenancies and occupancies (which leases and any New
Space Leases are collectively referred to herein as the "Space Leases" and the
lessees thereunder are herein called "Space Tenants").
6. LEASING PRACTICE.
(a) Subject to Section 6(b) below, Seller may
continue to lease the Premises in a manner consistent with its past course of
business and in a commercially reasonable manner, including, without limitation
and in its sole discretion, the termination of existing Space Leases and/or the
entering into of new leases or renewals or modifications of existing Spaces
Leases (such new space lease, termination, renewal or modification is herein
referred to as a "New Space Lease") .
(b) (i) Prior to the expiration of Purchaser's
Due Diligence Period, Seller shall be permitted to enter into any New Space
Lease without the approval of Purchaser, provided Seller promptly notifies
Purchaser of the same. (ii) After the expiration of Purchaser's Due Diligence
Period provided Purchaser is not in default under this Contract, Seller shall
not (A) enter into a New Space Lease covering more than 7,500 square feet of
rentable space without obtaining the prior written consent of Purchaser, which
consent shall not be unreasonably withheld or delayed or (B) terminate any
Space Lease without the prior written consent of Purchaser except in the event
of a default by a Space Tenant under a Space Lease. Any New Space Lease which
does not require Purchaser's consent shall be arms-length and on then fair
market terms and conditions (and shall otherwise be consistent with Seller's
customary leasing standards). (iii) Seller and Purchaser shall apportion, at
Closing, any tenant improvement expenses or allowances and leasing commissions
on account of a New Space Lease based on their respective periods of ownership
of the Premises during the term of such New Space Lease.
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<PAGE> 8
(c) If Purchaser's consent is required under this
Section 6 for the execution of a New Space Lease, Purchaser agrees to grant or
deny its consent in writing (and provide, in reasonable detail, the reasons for
any denial) within four (4) business days after request therefor. Purchaser's
failure to duly respond to Seller's request within four (4) business days after
request therefor shall be deemed a consent to the proposed New Space Lease. If
Purchaser's consent is not required, Seller's sole obligation shall be to
notify Purchaser prior to entering into any New Space Lease or terminating any
Space Lease.
(d) (i) Purchaser acknowledges and agrees that
no representation has been made and no responsibility has been assumed by
Seller with respect to the continued occupancy of the Premises, or any part
thereof, by the Space Tenants. Seller does not undertake or guarantee that the
Space Tenants will be in occupancy at the Closing. Prior to the Closing,
Seller shall have the right, but not the obligation, to enforce its rights
against the Space Tenants by summary proceeding or in any other manner. (ii)
Notwithstanding the provisions of subsection (d)(i) above, but subject to the
provisions of subsection (d)(iii) below, Purchaser shall have the right to
cancel this Contract in the event that, on the Closing Date, an Anchor Space
Tenant shall have filed a petition in bankruptcy and (A) an order has been
executed by the Bankruptcy Court granting such Anchor Space Tenant's
application to reject its Space Lease in bankruptcy or (B) fails to assume its
Space Lease in bankruptcy. (iii) In the event that, following the date of this
Contract any Anchor Space Tenant shall file a petition in bankruptcy, Seller,
at Seller's election, shall have the privilege to (C) reinstate such Anchor
Space Tenant's Space Lease by entering into a New Space Lease with such Anchor
Space Tenant on substantially similar terms and conditions as in such prior
Space Lease, or (D) obtain evidence, reasonably satisfactory to Purchaser, that
such Anchor Space Tenant has assumed its Space Lease in bankruptcy or (E)
procure a substitute tenant for the space covered by the Space Lease in
question pursuant to a New Space Lease reasonably acceptable to Purchaser, and
for any purpose provided in subparagraphs (C), (D) or (E) Seller shall be
entitled to one or more adjournments of the Closing for a period not to exceed
one (1) year in the aggregate; provided, however, that Purchaser shall have no
obligation to close title if, during such period of adjournment, an event
occurs which materially and adversely affects the Premises and such event is
not corrected or cured to the reasonable satisfaction of Purchaser.
7. APPORTIONMENTS AND REIMBURSEMENTS.
(a) Unless otherwise provided, at the Closing the
following are to be reimbursed or apportioned as of 11:59 P.M. on the day
preceding the Closing Date based upon the respective party's period of
ownership for the item being apportioned. Notwithstanding the foregoing, in
the event Seller (or its designee) does not receive the funds to be wired
pursuant to Section 3(b) in time for Seller (or its designee) to invest same on
the Closing Date, then in such event, the items set forth in this Section 7
shall be apportioned as of 11:59 P.M. on the Closing Date based upon the
respective party's period of ownership for the item being apportioned (The
reimbursements and apportionments shall be made based upon the actual number of
days in the month in which the Closing Date occurs.):
(i) Rent and additional rent under any
Space Leases for the month of Closing, as and when collected.
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(A) If on the Closing Date there
are any past due rentals which have been billed to or are due by Space Tenants
and not collected (collectively "Arrears") Purchaser and Seller agree that the
first moneys received after the Closing by Purchaser or Seller from such Space
Tenants shall be applied (i) first to Seller and Purchaser for the month in
which the Closing occurred, prorated in accordance with this Section 7, (ii)
then to Purchaser toward any then current amounts owed by a Space Tenant to
Purchaser and (iii) then to Seller toward the Arrears owed by such Space
Tenant. Purchaser and Seller agree to remit promptly to the other the Arrears
collected from time to time to which the other is so entitled as hereinbefore
provided. Purchaser shall bill Space Tenants in Purchaser's customary manner
and use reasonable efforts in pursuing the collection of all Arrears for one
(1) year following the date of Closing. Purchaser shall have the right to
deduct the greater of the allocable share of Purchaser's reasonable
out-of-pocket costs incurred in collecting such Arrears or one (1%) percent of
the Arrears collected on Seller's behalf from amounts otherwise due Seller.
The provisions of this Section 7(a)(i)(A) shall survive the Closing.
(B) As to any Space Lease(s) that
provide for the payment of additional rent based upon a percentage of the Space
Tenant's business during a specified annual or other period, or based upon
reimbursement for or payment of real estate taxes, operating expenses or
insurance expenses or otherwise (such additional rent being collectively called
"Overage Rent"), if the Closing shall occur prior to the time when any such
Overage Rent is payable, then such Overage Rent for the applicable accounting
period in which the Closing occurs shall be apportioned subsequent to the
Closing. Purchaser agrees that it will receive and hold such Overage Rent in
trust and pay over to the Seller the proportion of such Overage Rent as the
portion of such accounting period during which Seller was in title to the
Premises bears to the entire such accounting period. As to any Overage Rent in
respect to an accounting period that shall have expired prior to the Closing
but which shall become payable after the Closing, the Purchaser agrees that it
will receive and hold such Overage Rent in trust and pay the entire amount over
to the Seller upon receipt thereof. Purchaser shall have the right to deduct
the greater of the allocable share of Purchaser's reasonable out-of-pocket
costs incurred in collecting such Overage Rent or one (1%) percent of the
Overage Rent collected on Seller's behalf from amounts otherwise due Seller.
Seller shall furnish to Purchaser all information (including the form of the
bill to be rendered) necessary for the billing of such Overage Rent. Purchaser
agrees that it shall render bills (calculated by Seller if applicable to a
period during Seller's ownership) for Overage Rent following the Closing and
shall, upon receipt thereof, promptly pay to the Seller the amount to which the
Seller is entitled as above provided. If requested by either party, both
parties will join in a letter to the respective Space Tenants under such leases
directing the division of Overage Rents in accordance with the foregoing
provisions hereof. To the extent that a Space Tenant has the express right
under its Space Lease to offset Overage Rent against other amounts due under
its Space Lease, same will be taken into account in determining Overage Rent
apportionments. Promptly after the calendar year in which the Closing occurs,
Seller and Purchaser shall reconcile all Overage Rent due for such calendar
year based upon actual expenses incurred during such year, and such reconciled
Overage Rent shall be reapportioned between Seller and Purchaser (taking into
account any Overage Rent retained by Seller at Closing and collected by
Purchaser after the Closing). The provisions of this Section 7(a)(i)(B) shall
survive the Closing.
(ii) Water rates and water meter charges,
if any, not payable by the Space Tenants on the basis of the fiscal period for
which assessed. If there be a water meter, or meters,
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on the Premises (other than meters under which charges are payable by the Space
Tenant under the Space Lease with Wal-Mart Stores, Inc.), the unfixed meter
charges and the unfixed sewer rent thereon for the time intervening from the
date of the last reading shall be apportioned on the basis of such last
reading, and shall be appropriately readjusted after the Closing on the basis
of the next subsequent bills. As to any water charges payable by the Space
Tenant as aforementioned, if the Space Tenant shall have failed to pay such
water charges, such unpaid charges and the liens, if any, resulting therefrom
shall not be objections to title, or be the basis of any claim whatsoever by
Purchaser against Seller and Purchaser shall close title in accordance with the
terms of this Contract subject to such unpaid charges and rents and such liens
without abatement or credit against the Purchase Price. The provisions of this
Section 7(a)(ii) shall survive the Closing.
(iii) Real estate, school and sewer taxes
then due and payable by Seller. As to any real estate, school and sewer taxes
payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc.,
if such Space Tenant shall have failed to pay such taxes, such unpaid taxes and
the liens, if any, resulting therefrom shall not be objections to title, or be
the basis of any claim whatsoever by Purchaser against Seller and Purchaser
shall close title in accordance with the terms of this Contract subject to such
unpaid charges and rents and such liens without abatement or credit against the
Purchase Price. The provisions of this Section 7(a)(iii) shall survive the
Closing.
(iv) Charges under Service Contracts not
terminated on or prior to Closing and other expenses in connection with the
operation of the Premises.
(v) Leasing expenses pursuant to Section
6(b), if any.
(b) At the Closing, Seller shall deliver to
Purchaser the Space Tenants' security deposits set forth in Schedule C annexed
hereto, or credit the Purchase Price on account of said security deposits;
provided, however, that if any Space Tenant is in default under the terms of
its Space Lease and has vacated its premises, Seller may retain so much of such
Space Tenant's security deposit as shall be sufficient to cover Seller's loss
by reason of the default. It is further agreed that nothing herein contained
shall be deemed to prevent Seller from applying security deposits prior to
Closing in order to liquidate any claim under any Space Lease or to compromise,
adjust or settle with any Space Tenant for the disposition of any claim by the
application of such security deposits provided such Space Tenant has vacated
its premises.
8. VIOLATIONS. (a) Subject to the provisions of subsection
(b) below, Purchaser shall accept the Premises subject to any notes or notices
or violations of law or municipal ordinances, orders or requirements imposed or
issued by any governmental or quasi- governmental authority having or asserting
jurisdiction, against or affecting the Premises (individually a "Violation" and
collectively "Violations") and any conditions which may result in Violations.
Purchaser shall be responsible for all Violations from and after the Closing
Date. (b) If, after the expiration of Purchaser's Due Diligence Period, any
Violations are imposed which require a cost in excess of $100,000, in the
aggregate, to cure as determined by a reputable contractor or engineer selected
by Seller (and reasonably acceptable to Purchaser) Seller shall, at its
election (i) cure such Violations and, for such purpose, be entitled to adjourn
the Closing for a period not to exceed sixty (60) days or (ii) allow Purchaser
a credit against the Purchase Price equal to the sum required to cure such
Violations less $100,000 or (iii) if Seller
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reasonably disputes the validity of such Violations, indemnify Purchaser from
and against any and all claims, loss, liability or damage, which exceed
$100,000, that may arise as a result of such Violations, Seller's liability
being limited under such indemnity to $100,000 in the aggregate. (c) The
provisions of this Section 8 shall survive the Closing.
9. PENDING TAX PROCEEDINGS. Seller represents that
there are no proceedings to review real estate tax assessment of the Premises
other than as set forth in Schedule E. Seller shall have sole authority to
prosecute, settle and withdraw proceedings to review any real estate tax
assessment for the Premises for period relating to tax years prior to, and
including, the year in which the Closing occurs. Purchaser and Seller agree
that if there should be a refund of any real estate taxes paid by Seller in
respect of the fiscal year in which the Closing occurs, such refund, less
reasonable attorneys' fees and disbursements, shall be apportioned between
Seller and Purchaser as of the Closing Date and shall be paid promptly upon
receipt thereof. Seller and Purchaser shall pay their respective share of any
amounts reimbursable to Space Tenants in respect to such refund. Purchaser
acknowledges that it has no interest in any proceedings or refunds applicable
to any fiscal tax year prior to the year in which the Closing occurs. The
provisions of this Section 9 shall survive the Closing.
10. "AS-IS". Purchaser represents to Seller that (i)
Purchaser has or will, prior to the expiration of the Purchaser's Due Diligence
Period, independently examined, inspected, and investigated to the full
satisfaction of Purchaser, the physical nature and condition of the Premises
and the income, operating expenses and carrying charges affecting the Premises,
(ii) except as expressly set forth in this Contract, neither Seller nor any
agent, officer, employee, or representative of Seller has made any
representation whatsoever regarding the subject matter of this Contract or any
part thereof, including (without limiting the generality of the foregoing)
representations as to the physical nature or condition of the Premises, the
existence or non-existence of asbestos, hazardous substances or wastes,
underground storage tanks or any other environmental hazards on or about the
Premises, or the Space Leases, or operating expenses or carrying charges
affecting the Premises, and (iii) Purchaser, in executing, delivering and
performing this Contract, does not rely upon any statement, offering material,
operating statement, historical budget, engineering structural report, any
environmental reports, information, or representation to whomsoever made or
given, whether to Purchaser or others, and whether directly or indirectly,
verbally or in writing, made by any person, firm or corporation except as
expressly set forth herein, and Purchaser acknowledges that any such statement,
information, offering material, operating statement, historical budget, report
or representation, if any, does not represent or guarantee future performance
of the Premises. Without limiting the foregoing, but in addition thereto,
except as otherwise expressly set forth in this Contract, Seller shall deliver,
and Purchaser shall take, the Premises in their "as is" condition on the
Closing Date subject to Section 12.
11. BROKER. Seller and Purchaser represent to each other
that neither party has dealt with any broker or real estate consultant in
connection with the transactions contemplated by this Contract. Seller and
Purchaser shall indemnify and hold the other free and harmless from and against
any damages, costs or expenses (including, but not limited to, reasonable
attorneys' fees and disbursements) suffered by the indemnified party arising
from a misrepresentation or a breach of any covenant made by the indemnifying
party pursuant to this Section 11. The provisions of this Section 11 shall
survive the Closing.
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12. DESTRUCTION OR CONDEMNATION. (a) If on or prior to the
date set for Closing there is a casualty or condemnation affecting the Property
which constitutes a Substantial Loss, Purchaser shall have the option of
cancelling this Contract within fifteen (15) days after notice of such casualty
or condemnation, in which event, the Deposit shall be returned to the Purchaser
and this Contract deemed cancelled and of no force and effect and neither party
shall have any further rights or liabilities against or to the other. In the
event of a Substantial Loss, and Purchaser does not elect to cancel this
Contract, or in the event that the casualty or condemnation does not constitute
a Substantial Loss, then the Purchaser and Seller shall consummate the
transaction contemplated by this Contract without any reduction or abatement in
the Purchase Price and Seller, upon the Closing, shall assign to the Purchaser
all of its rights in and to any insurance proceeds (and shall pay to Purchaser,
or allow on account the Purchase Price, a sum equal to the amount of the
deductible, if any, on Seller's casualty insurance policy for the Premises) or
condemnation awards, as the case may be, in connection with such casualty or
condemnation.
(b) As used herein, "Substantial Loss" with
respect to the Property shall mean a casualty or condemnation that either (i)
shall entitle any anchor Space Tenant denoted as such on Schedule C annexed
hereto (each an "Anchor Space Tenant" and collectively the "Anchor Space
Tenants") to terminate its Space Lease on or after the Closing Date and Seller
has failed to obtain a waiver of such termination right or (ii) requires
repairs or restoration costs in excess of Seven Hundred Fifty Thousand
($750,000.00) Dollars. In the event Purchaser elects to cancel this Contract
in accordance with subparagraph (a) above, Seller may rescind such cancellation
by (iii) delivering, within one (1) year after the receipt of Purchaser's
notice of cancellation, a waiver by each Anchor Space Tenant which was entitled
to terminate its Space Lease by reason of the casualty or condemnation of its
right or option to so terminate and (iv) within one (1) year after receipt of
Purchaser's notice of cancellation, restorating and repairing the Property (A)
if in connection with a casualty, substantially to its condition immediately
prior to the casualty or (B) if in connection with a condemnation, as may be
reasonably necessary as a result of the taking of property; provided, however,
that Purchaser shall have no obligation to close title if, during such period
of adjournment, an event occurs which materially and adversely affects the
Premises and such event is not corrected or cured to the reasonable
satisfaction of Purchaser.
(c) The estimated cost of repairs or restoration
in connection with a casualty or condemnation shall be determined by a
reputable contractor or engineer selected by Seller and approved by Purchaser
(which approval shall not be unreasonably withheld or delayed). The Closing
shall be postponed for such periods as may be necessary to allow Seller to
comply with the provisions of this Section 12.
(d) The provisions of this Section 12 supersede
the provisions of any applicable statutory or decisional law with respect to
the subject matter contained in this Section 12.
13. STATUS OF TITLE. Seller shall deliver and Purchaser
shall accept title to the Premises and consummate the transaction contemplated
by this Contract subject to (a) the title exceptions set forth in Schedule B,
(b) title exceptions created or suffered by the Space Tenants or Purchaser and
(c) such other title exceptions which Seller may, in accordance with the
provisions of this Contract, cause the Title Company to omit or affirmatively
insure will not be collected out of the
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Premises provided that Purchaser has reasonably approved the affirmative
insurance (the title exceptions, whether liens, encumbrances, defects,
encroachments or other objections, described in (a), (b) and (c) being
sometimes referred to collectively as "Permitted Exceptions"). Seller shall
not enter into any agreements, indemnities or other understandings with the
Title Company which will enable the Title Company to omit any matter of record
without the knowledge of Purchaser.
14. CLOSING.
(a) The closing of title (the "Closing") shall
take place on September 30, 1997 (the actual date of Closing being herein
referred to as the "Closing Date") at the offices of Tenzer Greenblatt LLP, 405
Lexington Avenue, New York, New York 10174 at 9:00 o'clock in the forenoon on
that day, time being of the essence (except that Seller may adjourn the Closing
in accordance with other express provisions of this Contract,) at which time
the Deed to the Property shall be delivered upon payment to Seller of the
Purchase Price. Notwithstanding anything contained herein or at law or in
equity, Purchaser expressly agrees that it shall have no right or privilege to
adjourn the Closing except as expressly permitted by this Contract and
Purchaser's inability or refusal to close title on the date scheduled for
Closing shall be a default under this Contract.
(b) The parties agree to finalize documents
necessary for the Closing and to cause their representatives to attend a
customary "pre-closing" at least one (1) business day prior to the date
scheduled for Closing.
15. NOTICES. All notices hereunder shall be sent by
certified or registered mail, return receipt requested, or may be sent by
Federal Express or other overnight courier which obtains a signature upon
delivery, or may be delivered by hand delivery addressed to Seller at the
address set forth above or at such other address as Seller shall designate from
time to time by notice to Purchaser with copies of all such notices to be
likewise sent to:
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attention: Martin Luskin, Esq.
and to Purchaser at the address given for Purchaser at the beginning of this
Contract or at such other address as Purchaser shall from time to time
designate by notice to Seller with copies of all such notices to Purchaser to
be likewise sent to:
Honigman, Miller, Schwartz & Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Alan Hurvitz, Esq.
Notices shall be deemed served three (3) business days after mailing, and in
the case of overnight courier or hand delivery, on the date actually delivered
to the intended recipient, except for notice(s) which advise the other party of
a change of address of the party sending such notice or of such party's
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attorney, which notice shall not be deemed served until actually received by
the party to whom such notice is addressed or delivery is refused by such
party. Notices on behalf of the respective parties may be given by their
attorneys and such notices shall have the same effect as if in fact subscribed
by the party on whose behalf it is given. Notwithstanding the foregoing
provisions of this Section 15, notices served by hand delivery shall be deemed
served on the date of delivery if delivered at or prior to 5:00 P.M., and on
the next business day if delivered after 5:00 P.M.
16. FRANCHISE TAXES. Unpaid franchise or corporation
taxes, dissolution taxes or any other similar taxes so levied, of any
corporation in the chain of title shall be no objection to title so long as the
Title Company insures against collection of any such taxes out of or
enforcement against the Premises without special or additional premium or if
such special or additional premium is required, if Seller shall pay such
special or additional premium.
17. TITLE REPORT. Purchaser shall promptly order a title
report from Commonwealth Land Title Insurance Company (the "Title Company") and
a survey or survey update, all at Purchaser's sole cost and expense. Purchaser
shall from time to time, promptly after obtaining knowledge thereof, notify
Seller of any Non-Permitted Title Objections. Purchaser shall pay all premiums
charged in connection with procuring a policy of title insurance.
18. NON-PERMITTED TITLE OBJECTIONS.
(a) If on the Closing it should appear that the
Premises are affected by any lien, encumbrance, defect, encroachment or
objection which is not a Permitted Exception (collectively, "Non-Permitted
Title Objections"), then in such event, Seller, at Seller's election, shall
have the privilege to remove or satisfy the same, and shall, for that purpose,
be entitled to one or more adjournments of the Closing for a period not
exceeding in the aggregate sixty (60) days.
(b) If Seller elects to adjourn the Closing
pursuant to this Section 18, this Contract shall remain in effect for the
period or periods of adjournment, in accordance with its terms.
(c) Except as provided below, Seller shall not be
required to bring any action or proceeding or to otherwise incur any expense to
remove or discharge any Non-Permitted Title Objection; provided, however, that
if there exists Non-Permitted Title Objection(s) which can be removed or
discharged by payment of a sum of money only, and if both (1) such removal or
discharge can reasonably be expected to be accomplished within a period of
sixty (60) days and (2) the sum of money required to accomplish all such
removals or discharges with respect to the Premises shall not exceed in the
aggregate Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars (the
"Maximum Title Expense"), then, and in such event, Seller agrees to either (i)
adjourn the Closing for the period required to remove or discharge such Non-
Permitted Title Objections, and to expend an amount not to exceed the Maximum
Title Expense to remove or discharge such Non-Permitted Title Objections, or
(ii) indemnify Purchaser, in an amount not to exceed the Maximum Title Expense,
from any damage, cost, expense or claim which Purchaser may incur as a result
of such Non-Permitted Title Objection (in which case Purchaser shall accept
title subject to such Non-Permitted Title Objection). Notwithstanding the
foregoing provisions, Purchaser may, at any time, accept such title as Seller
can convey notwithstanding the existence of any Non-Permitted Title Objections
without reduction of the
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Purchase Price or any credit or allowance on account thereof or any claim
against Seller, provided, however, if there shall be any Non- Permitted Title
Objections that can be removed or discharged by the payment of a sum of money
only which exceeds the Maximum Title Expense, or that can be removed by the
payment of less than the Maximum Title Expense but not within the available
time, and Seller elects not to or cannot remove or discharge such Non-Permitted
Title Objections within the available time, then if Purchaser elects to accept
such title as Seller can convey the Purchase Price shall be reduced, by the
lesser of the Maximum Title Expense or the amount required to remove or
discharge said Non- Permitted Title Objection. The acceptance of the Deed by
Purchaser shall be deemed to be a full performance and discharge of every
agreement and obligation on the part of Seller to be performed pursuant to this
Contract, except those, if any, that are herein specifically stated or made to
survive the Closing (but, except as expressly set forth in this Contract,
nothing herein shall be deemed to obligate Purchaser to accept title subject to
any Non-Permitted Title Objection). Anything in this Section 18(c) to the
contrary notwithstanding, an attempt by Seller to remove or discharge any
Non-Permitted Title Objection shall not be deemed to be or create an obligation
of Seller to remove or discharge the same.
(d) The foregoing provisions of this Section 18
to the contrary notwithstanding, Seller agrees to remove or discharge any
monetary lien voluntarily created or suffered by Seller and any Non-Permitted
Title Objections voluntarily created or suffered by Seller after the date
hereof; provided, however, that Seller shall not be deemed to have voluntarily
created or suffered (nor shall Seller be liable for) any Non-Permitted Title
Objections if caused or created by an act or omission of Purchaser or by an act
or omission of any Space Tenant. Seller shall remove or discharge any
Non-Permitted Title Objection in the manner set forth in subparagraph (c)
above, but, for purposes of this subparagraph (d), without regard to the
Maximum Title Expense.
19. RETURN OF DEPOSIT; SELLER'S DEFAULT
If, for any reason whatsoever, Seller shall be unable
to convey title subject to and in accordance with the terms of this Contract,
the sole obligation of Seller shall be to cause the refund of the Deposit, and
upon the making of such refund this Contract shall be null and void and of no
further force or effect, no party hereto shall have any further claim against
the other by reason of this Contract; provided, however, that if Seller's
inability to convey shall result from (i) Seller's willful default or (ii)
Seller's default under Section 18 above, then Purchaser shall, in either case
under clause (i) or (ii) of this proviso, be entitled to the remedy of either
(A) specific performance or (B) cancelling this Contract and receiving (1) the
return of the Deposit and (2) reimbursement of Purchaser's actual out-of-pocket
expenses incurred in procuring environmental and engineering reports not to
exceed $6,500.00 in the aggregate, and upon receipt by Purchaser of the Deposit
and such reimbursement no party hereto shall have any further claim against the
other by reason of this Contract.
20. AFFIDAVIT REGARDING JUDGMENTS. If a search of the
title discloses judgments, bankruptcies or other returns against other persons
having names the same as or similar to that of Seller but who are not Seller or
its affiliates or subsidiaries, Seller will deliver to Purchaser and the Title
Company an affidavit(s) showing that such judgments, bankruptcies or other
returns are not against Seller or, at Seller's option, deliver an indemnity
agreement to the Title Company, in such form and
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content that the Title Company will remove such judgments, bankruptcies or
other returns as exceptions to title or will insure against collection of such
judgments out of the Premises.
21. ASSIGNMENT OF THIS CONTRACT. This Contract may not
be assigned by Purchaser without the prior written consent of Seller. The
foregoing notwithstanding, Purchaser shall have the right to assign this
Contract to an entity whose decisions are made by Purchaser (or by an entity
wholly owned by Purchaser) provided Purchaser owns at least fifty (50%) percent
of the economic interests in such entity and provided further that such entity
assumes all obligations of Purchaser under this Contract. A transfer, sale or
assignment of the majority stock or membership interest in a corporate or
limited liability company purchaser or in a corporate or limited liability
general partner of a partnership purchaser, or of a general partnership
interest in a partnership purchaser, shall constitute an assignment of this
Contract, which assignment or attempted assignment shall be void if made
without the written consent of Seller. No assignment of this Contract, whether
or not permitted, shall be deemed to relieve or release Purchaser from any of
its obligations (whether to be performed prior to or after Closing) set forth
herein. Seller shall not have the right to assign its interests under this
Contract except to entities affiliated with or related to Seller.
22. DEED; TRANSFER TAXES.
(a) The deed to the Premises shall be the usual
special warranty deed (the "Deed") all in proper statutory form for recording
and shall be duly executed and acknowledged so as to convey to Purchaser the
fee simple of the portion of the Premises covered thereby, free of all liens
and encumbrances, except as herein stated.
(b) At the Closing, Seller shall pay the cost of
any amount of documentary stamps, transfer tax or similar conveyance tax
imposed in connection with the delivery of the Deed (collectively, the
"Transfer Tax") and Purchaser and Seller shall execute and deliver any returns
and/or affidavits in connection with the recording of the Deed or the payment
of the Transfer Tax.
(c) (i) Anything in subdivision (b) to the
contrary notwithstanding, Seller may, at its option, elect by notice given not
later than three (3) business days prior to the Closing that Purchaser pay all
required Transfer Tax, in which event at the Closing, Purchaser shall receive a
credit against Purchase Price in the amount paid by Purchaser.
(ii) Purchaser hereby indemnifies and
holds Seller harmless from and against any interest or penalty charges imposed
by reason of the untimely delivery to the appropriate recording officer of any
of the checks required under Subdivision (c)(i).
(d) The provisions of this Section 22 shall
survive the Closing.
23. PURCHASER'S DEFAULT. In the event Purchaser should
default under this Contract (including, but not limited to, Purchaser's failure
to timely deliver the Additional Deposit), the parties agree that the damages
that Seller will sustain as a result thereof will be difficult, if not
impossible, to ascertain and, in such event Seller shall, as its sole and
exclusive remedy, direct Escrowee to pay the Deposit to Seller who shall retain
it as and for its liquidated damages hereunder.
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<PAGE> 17
24. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee
is instructed as follows:
(a) Upon the Closing, the Cash Deposit shall be paid
over to Seller and any Letter of Credit shall be delivered to Purchaser upon
payment by Purchaser to Seller of the Purchase Price.
(b) (i) Escrowee shall draw the full proceeds
under any Letter of Credit if (A) Escrowee shall receive a written statement
signed by Seller as follows: "Purchaser has defaulted in its obligations under
that certain Contract of Sale dated July 7, 1997"; or (B) the Letter of Credit
will expire by its terms within thirty (30) days. Escrowee shall promptly upon
receipt forward a copy of Seller's statement to Purchaser. Any such proceeds
paid to and received by Escrowee shall be treated and disposed of hereunder as
Cash Deposit.
(ii) In the event Purchaser should default under
this Contract, Escrowee shall, if directed by Seller, pay the Cash Deposit to
Seller who shall retain it as and for its liquidated damages hereunder.
(c) In the event Seller shall fail to close title by
reason of a default by Seller or in the event this Contract is terminated in
accordance with its terms through no fault of Purchaser, the Deposit shall be
paid over to Purchaser.
(d) Escrowee shall invest the proceeds of the
Deposit in such bank or money market accounts or United States Government
Treasury Bills as Seller shall direct. Any interest earned on Deposit when
received shall similarly be held in escrow by the Escrowee and if under the
terms of this Contract (i) the Deposit is to be paid over to Purchaser, then
such interest shall be paid over to Purchaser, or (ii) the Deposit is to be
paid over to Seller, then such interest shall be paid over to Seller. If the
Closing occurs, any interest earned on the Deposit shall be considered a credit
of Purchaser to be applied against the Purchase Price.
(e) Escrowee, by signing this Contract at the end
hereof where indicated, signifies its agreement to hold the Deposit for the
purposes as provided in this Contract. In the event of any dispute, Escrowee
shall have the right to deposit the Deposit in court to await the resolution of
such dispute. In any event, Escrowee shall not be personally liable so long as
it acts in good faith.
(f) Escrowee shall not incur any liability by reason
of any action or non-action taken by Escrowee in good faith or pursuant to the
judgment or order of a court of competent jurisdiction. Escrowee shall have
the right to rely upon the genuineness of all certificates, notices and
instruments delivered to it pursuant hereto, and all the signatures thereto or
to any other writing received by Escrowee purporting to be signed by any party
hereto, and upon the truth of the contents thereof. Before making payment or
delivery of any moneys or documents held by Escrowee pursuant hereto, Escrowee
shall have the right to require delivery to it of an executed and acknowledged
receipt for the subject matter of the delivery to be made by it. In the event
of any dispute between the parties as to whether either party is in default
hereunder or as to any other material fact, Escrowee shall have the right to
refrain from taking any further action with respect to the subject matter of
the escrow until it is reasonably satisfied that such dispute is resolved or
action by Escrowee is required by an order or judgment of a court of competent
jurisdiction. Escrowee shall be entitled to consult with other counsel
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in connection with its duties hereunder. Seller and Purchaser jointly and
severally, agree to indemnify Escrowee from any and all liability that may
arise hereunder and to reimburse Escrowee for its reasonable costs and
expenses, including reasonable attorneys' fees (either paid to retained
attorneys or representing the fair value of legal services rendered by Escrowee
to itself) incurred as a result of any dispute or litigation arising hereunder.
(g) Escrowee or any member of its firm shall be
permitted to act as counsel for Seller in any dispute as to the disbursement of
the Deposit or any other dispute between the parties whether or not Escrowee is
in possession of the Deposit and continues to act as Escrowee.
25. REPRESENTATIONS.
(a) Seller, represents that, unless otherwise
herein stated, as of the date hereof:
(i) Schedule C represents a true, accurate
and complete list in all material respects of (A) all Space Tenants; (B) the
current base rent and (C) the security deposits presently held by Seller.
Other than the Space Tenants (and parties claiming rights under Space Leases,
including sublessees, licensees, assignees and concessionees) no party has any
right to possess or use the Premises except as may be contemplated by the
Permitted Exceptions.
(ii) Except as set forth on Schedule C
hereof, the Spaces Leases are in full force and effect. Seller has not
received notice of any unfulfilled obligations as to security deposits to prior
tenants.
(iii) Except as set forth on Schedule C,
Seller has not received rents from the Space Tenants (other than security
deposits) in excess of one (1) month in advance.
(iv) There are no written service
contracts or management agreements (the "Service Contracts") affecting the
Premises or the operation or use thereof which will be binding upon Purchaser
after the Closing except those which may be cancelled upon not more than thirty
(30) days notice.
(v) There is no litigation pending (A)
between Seller, as landlord, under the Space Leases and any Space Tenant,
except as may be covered by insurance, or (B) affecting title to the Premises
or this Contract.
(vi) Seller is, and at the Closing shall be
a duly organized and validly existing Delaware corporation and authorized to do
business in the state where the Property is located. The execution, delivery
and performance of this Contract in accordance with its terms, has been duly
authorized by all necessary action of Seller, does not violate the articles of
incorporation, by-laws, operating agreement, partnership agreement or
certificate of partnership of Seller, or any contract, agreement, commitment,
order, judgment or decree to which Seller is a party or by which it, or the
Premises, are bound, or result in the creation of any lien, charge or
encumbrance upon the Premises or any part thereof. This Contract has been duly
executed by Seller and constitutes legal, valid and binding obligations of
Seller. Seller will have the right, power and authority to make and perform
its
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obligations under this Contract without the need for governmental approval,
consent or filing and this Contract shall be a valid and binding obligation of
Seller enforceable against Seller in accordance with its terms.
(vii) Seller is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code").
(viii) Seller has not received written
notice of any condemnation proceedings, eminent domain proceedings, proceedings
to change the zoning or similar actions or proceedings which are pending
against the Premises or any part thereof.
(ix) There are no employees of Seller at the
Properties for which Purchaser shall be responsible after the Closing.
(x) Neither Seller nor any of its affiliates
as described in Sections 414(b), (c) and (m) of the Code ("Affiliates") has
incurred any liability which could subject Purchaser or any asset to be
acquired by Purchaser pursuant to this Contract to any lien or material
liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of ERISA or
Section 401(a)(29) or 412 of the Code.
(b) As used herein items in the "possession" of
Seller or "received" by Seller shall mean only writings actually delivered into
the possession of Seller (at the New York City office of DRA Advisors, Inc.)
and shall not include writings addressed to Seller but sent or delivered to the
Space Tenants or other third parties or to other locations.
(c) The representations contained in subsection (a)
above shall survive for a period of six (6) months following the Closing Date,
and any claim by Purchaser in connection therewith must be made within such six
(6) month period. Notwithstanding anything to the contrary, any representation
which results in a reduction of the Purchase Price pursuant to subparagraph (e)
below shall not survive the Closing.
(d) Subject to the succeeding provisions of this
subparagraph (d) and of subparagraph (e) below, if any representation of Seller
shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be
to terminate this Contract and receive the return of the Deposit, and upon the
receipt of same this Contract shall be null and void and of no further force or
effect and neither party shall have any rights or obligations against or to the
other. Seller shall, in any event, have the option (i) to rescind Purchaser's
termination of the Contract and adjourn the Closing for a period not to exceed
sixty (60) days in order to make such representation true, or (ii) unless
Purchaser waives all liability of Seller by reason of such untrue
representation, to terminate this Contract and promptly return the Deposit to
Purchaser, and upon the making of such return this Contract shall be null and
void and of no further force or effect and neither party hereto shall have any
rights or obligations against or to the other. If Purchaser waives such
liability, then in such event, the Closing shall take place without abatement
or reduction in the Purchase Price. If the Closing shall take place without
Purchaser making an objection (by notice delivered at the Closing) to an untrue
representation of which Purchaser shall have knowledge, Purchaser shall be
deemed to have waived all liability of Seller by reason of such
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untrue representation. The untruth of any non-material representation of
Seller shall not affect the rights and obligations of the parties hereto.
(e) The provisions of subparagraph (d) hereof to the
contrary notwithstanding, if any representations shall fail to be true and such
representations can be made true by the payment of a sum of money only, and if
both (i) such representation(s) can reasonably be expected to be made true
within a period of sixty (60) days and (ii) the sum of money requited to make
such representation(s) true shall not exceed Two Hundred Fifty Thousand and
00/100 ($250,000.00) Dollars in the aggregate (the "Maximum Representation
Expense"), then, and in such event, Seller agrees to (i) adjourn the Closing
for the period required to make such representations true and to expend (or, at
Seller's election, to obligate itself to expend by indemnity agreement, bond or
any other manner) an amount not to exceed the Maximum Representation Expense,
or (ii) indemnify Purchaser, in an amount not to exceed the Maximum
Representation Expense, from any damage, cost, expense or claim that Purchaser
may incur as a result of such untrue representation. Notwithstanding the
provisions of the preceding sentence, Purchaser may at any time accept such
title as Seller can convey notwithstanding the existence of any such untrue
material representation(s) without reduction of the Purchase Price or any
credit or allowance on account thereof or any claim against Seller; provided,
however, if there shall be any untrue material representation(s) which can be
made true by the payment of a sum of money only which exceeds the Maximum
Representation Expense or which can be made true by the payment of less than
the Maximum Representation Expense but not within the available time and Seller
elects not to, or cannot, make such material representation(s) true within the
available time, then if Purchaser elects to accept such title as Seller can
convey, the Purchase Price shall be reduced by the lesser of the sum of money
required to make such representations true, or the Maximum Representation
Expense. The acceptance of the Deeds by Purchaser shall be deemed to be a full
performance and discharge of every agreement and obligation on the part of the
Seller to be performed pursuant to the provisions of this Contract, except
those, if any, which are herein specifically stated or made to survive the
Closing and Seller shall have no further liability with respect to such untrue
material representation(s).
(f) Following the Closing, Seller agrees to
maintain at least $50,000.00 in its operating account until the end of the
calendar year in which the Closing occurs, it being understood that such amount
shall not be deemed to be the limit of Seller's liability, if any, after the
Closing Date.
26. CLOSING DOCUMENTS. At the Closing (unless otherwise
expressly indicated):
(a) Seller shall deliver to Purchaser the following
items:
(i) the Deed in accordance with Section
22 hereof.
(ii) the Assignment of Space Leases
executed by Seller, which assignment shall be in the form of Exhibit 1 attached
hereto.
(iii) duplicate originals, or if duplicate
originals are not available, true and complete copies certified as true by
Seller, of all of the Space Leases.
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(iv) to the extent in Seller's possession,
the real estate tax bills then payable for the then current real estate tax
year.
(v) a duly executed certificate of
Seller, in the applicable form set forth in Treasury Regulations Section
1.1445-2(b)(2).
(vi) the checks, return and/or affidavit
in accordance with Section 22 hereof.
(vii) subject to the terms of Sections
26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the
Closing Date, estoppel certificates ("Estoppel Certificates"), in form and
substance which does not vary materially from the form annexed hereto as
Exhibit 2 executed by each of the Space Tenants; provided, however, with
respect to Anchor Space Tenants, Seller shall only be required to deliver such
Estoppel Certificates which are usual and customary for such Anchor Space
Tenants (except that, other than for the Estoppel Certificate to be delivered
by Wal-Mart Stores, Inc. [or its assignee] the Estoppel Certificates of all
other Anchor Space Tenants shall cover at least the matters set forth in
paragraphs 2 and 3 of Exhibit 2).
(A) If the required Estoppel
Certificates cannot be timely delivered, or if the Estoppel Certificates which
are timely delivered do not cover the material applicable matters set forth in
Exhibit 2 Seller may, but shall not be obligated to, adjourn the Closing for a
period not to exceed sixty (60) days, to obtain satisfactory Estoppel
Certificates, or deliver its certificate ("Seller's Certificate") with respect
to not more than forty (40%) percent of rentable square feet of space leased by
non-Anchor Space Tenants as of the date hereof, covering all of the matters set
forth in Exhibit 2 if no Estoppel Certificate is delivered by a Space Tenant or
covering the matters not covered by an Estoppel Certificate which is delivered
by a Space Tenant. Subsequent to the Closing, Seller may deliver to Purchaser
Estoppel Certificates or supplemental Estoppel Certificates covering those
matters not covered by the previously delivered Estoppel Certificates. Upon
delivery of such Estoppel Certificates, Seller shall be entirely released from
any liability arising out of Seller's Certificate delivered at the Closing as
Seller's Certificate relates to the particular Space Tenant and/or Space Lease
covered by the Estoppel Certificate, to the extent the information contained in
such Estoppel Certificates is consistent with the information contained in
Seller's Certificate. If Seller does not or cannot deliver an Estoppel
Certificate or Seller's Certificate, Purchaser's sole remedy shall be to
terminate this Contract and receive the return of the Deposit or to close title
notwithstanding the lack of the Estoppel Certificate or Seller's Certificate
without any reduction of the Purchase Price and without any liability of Seller
relative thereto.
(B) (1) In the event any Estoppel
Certificate or Seller's Certificate shall indicate a default by landlord under
a Space Lease (such default hereinafter being referred to as an "Estoppel
Default"), then Seller may, but shall not be obligated to, elect to cure any
such Estoppel Default and shall, for that purpose, be entitled to adjourn the
Closing for a period not to exceed sixty (60) days, provided, however, that in
the event Seller elects not to cure such Estoppel Default or is unable to cure
such Estoppel Default within such period of time, Purchaser's sole remedy shall
be as set forth in the last sentence of subparagraph (A) above.
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(2) Notwithstanding subsection
26(a)(vii)(B)(1), above, if, in Seller's good faith judgment either (x) the
potential liability of any Estoppel Default is less than $250,000, and Seller
indemnifies Purchaser from and against any and all claims, loss, liability,
damage, cost or expense, including reasonable attorneys' fees, that may arise
as a result of such Estoppel Default or (y) the potential liability of any
Estoppel Default is $250,000 or more and Seller and Purchaser agree upon a
mutually acceptable resolution to such Estoppel Default, then, the rights and
obligations of the parties hereto shall not be affected thereby, this Contract
shall remain in full force and effect and Purchaser shall, at the Closing,
accept such Estoppel Certificate or Seller's Certificate, and the Space Lease
corresponding thereto, subject to such Estoppel Default without any reduction
of the Purchase Price. Subsequent to the Closing, Seller may deliver an
Estoppel Certificate confirming that the Estoppel Default no longer exists,
whereupon Seller shall be entirely released from any liability arising out of
the indemnity, if any, given pursuant to clause (x) above.
(viii) to the extent then in Seller's
possession and control, copies of plans and specifications relating to the
Property.
(ix) a bill of sale without representation
or warranty for any personal property (including tradenames and warranties, if
any) being conveyed pursuant to this Contract;
(x) the Assignment of Service Contracts
existing on the Closing Date executed by Seller, which assignment shall be in
the form of Exhibit 3 attached hereto; and
(xi) a title certification substantially
in the form of Exhibit 5 attached hereto.
(b) Purchaser shall pay to Seller or as Seller may
direct, the Purchase Price as provided in Section 3 hereof. Escrowee shall
deliver the Cash Deposit to Seller.
(c) Purchaser shall execute, acknowledge (where
required) and deliver to Seller:
(i) the Assignment of the Space Leases.
(ii) the Assignment of the Service
Contracts.
(iii) the checks, returns and/or
affidavits in accordance with Section 22 hereof.
(d) Seller and Purchaser shall execute a notice
to each of the Space Tenants stating in substance that Purchaser has succeeded
to Seller's interest as landlord under the Space Leases.
27. FURTHER ASSURANCES. The parties each agree to do
such other and further acts and things, and to execute and deliver such
instruments and documents (not creating any obligations additional to those
otherwise imposed by this Contract), as either may reasonably request from time
to
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time, whether at or after the Closing, in furtherance of the purposes of this
Contract. The provisions of this Section 27 shall survive the Closing.
28. PURCHASER'S DUE DILIGENCE PERIOD.
(a) Purchaser shall have the right to cancel this
Contract on or before September 5, 1997 by notice to Seller and Escrowee of
such cancellation to be received by Seller on or before such date (the period
of time from the date hereof through and including September 5, 1997 is herein
referred to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels
this Contract in accordance with this subparagraph, this Contract shall be
deemed terminated and of no further force or effect and the Deposit shall be
promptly returned to Purchaser. If Purchaser does not duly cancel this
Contract in accordance with this subparagraph or if Purchaser waives its right
to cancel this Contract, (i) this Contract shall remain in full force and
effect and Purchaser shall have no further right to cancel this Contract under
this subparagraph and (ii) Purchaser shall be deemed to have waived any
liability of Seller and any right to refuse to consummate the Closing by reason
of a misrepresentation, Non-Permitted Title Objection or other condition known
to Purchaser as of the expiration of Purchaser's Due Diligence Period.
(b) Time shall be of the essence with respect to
the dates in this Section for the expiration of Purchaser's Due Diligence
Period and the giving of Purchaser's cancellation notice.
(c) Notwithstanding anything to the contrary, if
Purchaser's environmental and engineering consultants have not inspected the
Property by August 8, 1997 Seller may elect to cancel this Contract in which
event the Deposit shall be promptly returned to Purchaser. In the event
Purchaser concludes based upon any of its due diligence investigations that it
is not prepared to proceed to Closing it will promptly so notify Seller and
cancel the Contract.
(d) Purchaser agrees to keep confidential as
hereinafter provided all information furnished to Purchaser by Seller
concerning the Premises, including, without limitation, Space Leases, Service
Contracts or other contracts or agreements, various papers, documents, legal
instruments, studies, brochures, computer output, and other material, and any
discussions or visitations of the Premises (all of the aforementioned
information is collectively referred to as "Evaluation Material").
(e) All Evaluation Material shall not be used or
duplicated by Purchaser in any way detrimental to Seller, or for any purpose
other than evaluating a possible purchase of the Property by Purchaser.
Purchaser agrees to keep all Evaluation Material (other than information which
is a matter of public record or is provided in other sources readily available
to the public other than as a result of disclosure thereof by Purchaser or
Related Parties) strictly confidential; provided, however, that the Evaluation
Material may be disclosed to the directors, officers, and employees and
partners of Purchaser, and to Purchaser's attorneys and accounting firm, other
consultants, underwriters and financial institutions (all of whom are
collectively referred to as "Related Parties") who need to know such
information for the purpose of evaluating a possible purchase of the Premises.
These Related Parties shall be informed of the confidential nature of the
Evaluation Material and shall be directed to
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keep all such information in the strictest confidence and use such information
only for the purpose of evaluating a possible purchase by Purchaser. Purchaser
will promptly, upon request of Seller, deliver to Seller all Evaluation
Material furnished to them by Seller, whether furnished before or after the
date hereof, without retaining copies thereof. Purchaser will direct Related
Parties to whom Evaluation Material is made available not to make similar
disclosures and any such disclosure shall be deemed made by and be the
responsibility of Purchaser.
(f) Purchaser shall have the right to conduct
non-intrusive investigations of the Premises during the term of this Contract
(including a Phase I environmental investigation and a structural analysis).
Such investigations may be conducted by Purchaser or its designees, including,
but not limited to engineers, accountants, architects and Purchaser's employees
during normal business hours and upon reasonable advance notice to Seller
provided there is no disturbance to or interference with the business of any
Space Tenant. Purchaser hereby indemnifies and holds harmless Seller from and
against any claims, costs, damages, liabilities or expenses (including
reasonably attorneys' fees) incurred or, suffered by Seller by reason of damage
or injury to persons or property caused by Purchaser's investigations.
(g) Seller agrees to deliver to Purchaser true and
complete copies of all Space Leases (and any modifications thereof) in Seller's
possession.
(h) The provisions of Section 28(d), (e) and (f)
shall survive the termination of this Contract.
29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS.
(a) At the Closing, Seller and Purchaser shall
each deliver any and all appropriate partnership consents or certificates by
the secretary of each corporation (including any corporate general partner)
certifying as to the corporate resolution authorizing this transaction.
(b) Purchaser represents that: (i) it is, and
will at the Closing be, a limited partnership duly organized and validly
existing under the laws of Delaware and qualified to do business in the state
in which the Property is located; (ii) the execution, delivery and performance
of this Contract in accordance with its terms, do not violate the corporate
charter, by-laws or certificate of incorporation of Purchaser, or any contract,
agreement, commitment, order, judgment or decree to which Purchaser is a party
or by which it is bound; (iii) Purchaser has the right, power and authority to
make and perform its obligations under this Contract; (iv) this Contract is a
valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms. Purchaser covenants and warrants that the
representations in the preceding sentences of this Section 29(b) will be true
on the Closing with respect to Purchaser or any permitted assignee of
Purchaser; (v) Purchaser will have the right, power and authority to make and
perform its obligations under this Contract without the need for governmental
approval, consent or filing and this Contract shall be a valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms and (vi) Purchaser has the current financial ability to pay the Purchase
Price and otherwise perform its obligations under this Contract.
-21-
<PAGE> 25
(c) Purchaser represents and warrants that: (i)
Purchaser is not an "employee benefit plan" as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is
subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute
"plan assets" of one or more plans within the meaning of 29 C.F.R. Section
2510-101; (iii) Purchaser is not a "governmental plan" within the meaning of
Section 3(32) of ERISA; (iv) transactions by or with Purchaser are not subject
to state statutes regulating investments of and fiduciary obligations with
respect to governmental plans; and (v) Purchaser is not a "party in interest"
to Seller within the meaning of ERISA. Purchaser covenants and warrants that
the representations in the preceding sentences of this Section 28(c) will be
true on the Closing.
30. MISCELLANEOUS.
(a) This Contract and the Schedules and Exhibits
annexed hereto constitute the entire agreement between the parties hereto with
respect to the subject matter hereof, and except for any other documents
executed contemporaneously herewith all understandings and agreements
heretofore or simultaneously had between the parties hereto, including without
limitation, any letter of intent or initial escrow agreement, are merged into
and are superseded in their entirety by this Contract.
(b) This Contract may not be waived, changed,
modified or discharged orally, but only by an agreement in writing signed by
the party against which any waiver, change, modification or discharge is
sought.
(c) The captions or article titles contained in
this Contract and the Index, if any, are for convenience and reference only and
shall not be deemed a part of the text of this Contract.
(d) The terms "hereof," "herein," and
"hereunder," and words of similar import, shall be construed to refer to this
Contract as a whole, and not to any particular article or provision, unless
expressly so stated.
(e) The Schedules and Exhibits annexed hereto are
hereby incorporated in and made part of this Contract.
(f) All words or terms used in this Contract,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
(g) This Contract shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns, if any, but
nothing contained herein shall be deemed a waiver of the provisions of Section
21 hereof. None of the provisions of this Contract are intended to be, nor
shall they be construed to be, for the benefit of any third party.
(h) If a party is required to perform an act or
give a notice on a date that is a Saturday, Sunday or national holiday, the
date such performance or notice is due shall be deemed to be the next business
day.
-22-
<PAGE> 26
(i) This Contract is to be governed and construed
in accordance with the laws of the State of New York.
(j) The terms "affiliates" and "subsidiaries"
shall be given the same meaning as used in the broadest sense in any provision
of the rules and regulations governing federal taxation and securities.
(k) Neither Seller nor Purchaser may record this
Contract or a memorandum of this Contract. Purchaser hereby waives, to the
extent permitted by law, any right to file a lis pendens or other form of
attachment against the Properties in connection with this Contract or the
transactions contemplated hereby, other than a lis pendens or other such form
of attachment that may be filed by Purchaser contemporaneously with the
commencement by Purchaser of an action for a specific performance under Section
19 hereof. To the extent any such filing is made in violation of this
Contract, Purchaser shall indemnify Seller against any damages incurred by
Seller in connection therewith. In the event Purchaser shall be unsuccessful
in an action for a specific performance, it shall immediately cause any lis
pendens or other such form of attachment to be cancelled and removed from the
public record. The provisions of this section shall survive the termination of
this Contract.
(l) The parties acknowledge that this transaction
contemplates only the sale and purchase of the Premises and that Seller is not
selling a business nor do the parties intend that Purchaser be deemed a
successor of Seller with respect to any liabilities of Seller to any third
parties other than as set forth in this Contract and the Permitted Exceptions.
Accordingly, except as set forth in this Contract, Purchaser shall neither
assume nor be liable for any of the debts, liabilities, taxes or obligations
of, or claims against, Seller, or of any other person or entity, of any kind or
nature, whether existing now, on the Closing Date or at any time thereafter.
The debts, liabilities, taxes, obligations and claims for which Seller alone is
liable shall include, without limitation, all payments, benefits, and
contribution obligations with respect to past and/or present employees of
Seller or its Affiliates in connection with the business of Seller or its
Affiliates (including, but not limited to, salaries, wages, commissions,
bonuses, vacation pay, health and welfare benefits or contributions [including
any group health continuation coverage obligation under COBRA], pension and/or
profit sharing contributions, severance or termination pay, or any other form
of compensation or employee benefit).
(m) Seller shall operate the Premises in a manner
substantially consistent with its past practice.
[SPACE INTENTIONALLY LEFT BLANK]
-23-
<PAGE> 27
IN WITNESS WHEREOF, the parties hereto have duly executed this
Contract the day and year first above written.
SELLER:
Fed ID No.: DRM SIX REALTY CORPORATION,
a Delaware corporation
58-1818283
By /s/ Authorized Signature
-----------------------------
Name:
Title:
PURCHASER:
Fed ID No.: RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO-GERSHENSON PROPERTIES
TRUST, a Massachusetts Business
Trust
By /s/ Authorized Signature
---------------------------
Name:
Title:
As to Section 24:
ESCROWEE:
TENZER GREENBLATT LLP
BY /s/ Authorized Signature
------------------------------------
Name:
Title:
-24-
<PAGE> 28
SCHEDULE A:
DESCRIPTION OF PROPERTY
<PAGE> 29
SCHEDULE B:
"SUBJECT TO" PROVISIONS
1. Any laws, regulations or ordinances presently in effect or which will
be in effect on the Closing (including, but not limited to, zoning,
building and environment protection) as to the use, occupancy,
subdivision or improvement of this Property adopted or imposed by any
governmental body or the effect of any noncompliance with or any
violation thereof.
2. The Space Leases and the rights of Space Tenants thereunder pertaining
to this Property listed on Schedule C attached to and forming part of
this Contract to which this Schedule is attached as well as any
permitted renewals or extensions thereof and any permitted new leases
created after the date of this Contract as same may be affected by
rent regulations or laws now or hereafter in effect, and rulings,
decisions or interpretations by any court, agency or administrative
body.
3. Real estate taxes, vault taxes and water and sewer charges not due and
payable (it being understood that the lien of real estate taxes
payable in arrears shall be a Permitted Exception).
4. State of facts shown on Survey dated , last revised
and Survey dated prepared by and such additional
state of facts an accurate survey of the Premises may show.
5. Maintenance and Service Contracts pertaining to this Premises set
forth on Schedule D to this Contract.
6. Violations of laws, regulations, ordinances, orders or requirements,
if any, noted in or issued by any governmental or quasi- governmental
department or authority having or asserting jurisdiction over the
Premises issued subsequent to the date hereof, and any conditions
constituting such violations, although not so noted or issued.
7. Rights of utility companies to lay, maintain, install, operate and
repair pipes, lines, poles, wires, cables, conduits, cable boxes,
distribution boxes and related equipment on, over and under the
Property.
8. Additional usual and customary exclusions and exceptions from coverage
obtaining in the standard form of insuring agreement employed by the
Title Company at the standard rates of such Title Company.
<PAGE> 30
SCHEDULE C
RENT ROLL
<PAGE> 31
SCHEDULE D
ESCROWEE'S WIRE TRANSFER INSTRUCTIONS
The Chase Manhattan Bank
4 New York Plaza
New York, New York 10004
A/C# 114-026610
Tenzer Greenblatt LLP Attorney Trust Account
ABA# 021-000021
Our Ref. C/M #18996-0102
<PAGE> 32
SCHEDULE E
LIST OF TAX PROTESTS
1996 and 1997 tax years under appeal.
<PAGE> 33
EXHIBIT 1
FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE
ASSIGNMENT OF SPACE LEASE
KNOW ALL MEN that ________________________, a
___________________________ ("Assignor"), in consideration of Ten ($10.00)
Dollars and other good and valuable consideration, received from
, ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of
its right, title and interest in and to the leases, together with all security
deposits presently held by Assignor in connection therewith (collectively, the
"Leases") affecting the premises known as ________________________ more
particularly described on Schedule A annexed hereto.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions of said Leases.
AND Assignee does hereby acknowledge receipt of said Leases
(including the security deposits) so delivered, and does hereby (a) accept the
within assignment, (b) assume the performance of all the terms, covenants and
conditions of the said Leases on the part of the lessor which are to be
performed or which arise from and after the date hereof, and (c) indemnify and
hold Assignor free and harmless from and against any and all costs, expenses,
claims, losses or damages, liabilities and judgments (including reasonable
attorneys' fees and disbursements) which Assignor may suffer in respect of any
claim arising out of any default on the part of Assignee to perform said terms,
covenants and conditions or the security deposits.
Except as may be expressly set forth in that certain Contract
of Sale between Assignor and Assignee dated _________, 1997, this assignment is
made without warranty or representation by the Assignor and without recourse to
the Assignor in any manner whatsoever.
This assignment and assumption agreement shall inure to the
benefit of Assignee and Assignor and their respective successors and assigns.
This assignment and assumption agreement may not be modified, altered or
amended, or its terms waived, except by an instrument if writing signed by the
parties hereto.
None of the provisions of this instrument are intended to be,
nor shall they be construed to be, for the benefit of any third party.
-1-
<PAGE> 34
IN WITNESS WHEREOF, Assignor and Assignee have only executed
this agreement this day of , 1997.
I.D. No.: __________________________,
a __________________________
By:______________________________
I.D. No.:
INC., a
____________________________
By:________________________________
[SCHEDULE A - PROPERTY DESCRIPTION]
-2-
<PAGE> 35
EXHIBIT 2
FORM OF SPACE TENANT ESTOPPEL CERTIFICATE
Tenant Estoppel Certificate
, 1997
TO:
RE: Lease with ___________ ("Landlord") for space in the __________
Shopping Center located in ___________, __________.
Gentlemen:
The undersigned, having the power and authority to do so, hereby
certifies and affirms the following:
1. The undersigned is occupying the space demised by the above-referenced
lease and the lease is in full force and effect.
2. Neither the undersigned nor, to the best of our knowledge, the landlord
is in default under the lease.
3. The lease is unmodified or, if there have been modifications, they are
referenced as follows:
__________________________________
__________________________________
4. The yearly amount of base rent payable by Tenant is $____________;
current charges for common area maintenance, insurance and taxes are
__________________ per month. Base rent has been paid through
____________ and additional rent for common area maintenance,
insurance premiums and taxes has been paid through ______________.
5. The Landlord is currently holding a security deposit in the amount of
$_____________.
6. The term under the lease commenced on _________________, and expires
on ____________________.
-1-
<PAGE> 36
This certification may be relied upon by the above addresses and their
successors and assigns and any purchaser or mortgagee of the shopping center.
TENANT:
__________________________
BY: ____________________________
Its:______________________
Dated:_________________________
-2-
<PAGE> 37
EXHIBIT 3
FORM OF ASSIGNMENT OF SERVICE CONTRACTS
KNOW ALL MEN that ___________________________ ("Assignor"), in
consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable
consideration, received from ______________________________ ("Assignee"), does
hereby assign, transfer and deliver onto Assignee, all of its right, title and
interest in and to those certain service contracts relating to the operation or
maintenance of the premises known as ___________________________, which service
contracts are listed in Schedule A annexed hereto (the "Contracts").
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained.
AND Assignee does hereby acknowledge receipt of the Contracts
so delivered, and does hereby (a) accept the within assignment and (b) assume
the performance of all the terms, covenants and conditions of the Contracts on
the Assignor's part to be performed thereunder from and after the date hereof.
This assignment is made without warranty or representation by
Assignor and without recourse to assignor in any manner whatsoever, express or
implied. This assignment and assumption agreement shall inure to the benefit
of Assignee and Assignor and their respective successors and assigns, and shall
be governed by the laws of the State of _____________. This assignment and
assumption agreement may not be modified, altered or amended, or its terms
waived, except by an instrument in writing signed by the parties hereto.
None of the provisions of this instrument are intended to be,
nor shall they be construed to be, for the benefit of any third party.
-1-
<PAGE> 38
IN WITNESS WHEREOF, Assignor and Assignee have executed this
agreement this _____ day of _______________ 1997.
ASSIGNOR:
___________________________________
By:________________________________
ASSIGNEE:
____________________________________
By:_________________________________
Name:
Title:
-2-
<PAGE> 39
EXHIBIT 4
FORM OF LETTER OF CREDIT
SEE ATTACHED
<PAGE> 40
EXHIBIT 5
FORM OF TITLE CERTIFICATION
The undersigned, hereby certifies:
THAT _________________________________________
________________________________, is the owner ("Owner") of certain premises
situated in the City/Village/Township of _______________________, County of
_________________, State of __________, described in Commitment No.
_________________________.
CHECK ONE
_________[] THAT during the period of 120 days immediately preceding the
date of this certification no improvements or alterations have been made to the
subject property by Owner and that no claims of laborers or materialmen remain
unpaid (or if unpaid will be paid in the ordinary course of business) and that
no material incorporated into the property is subject to a security interest
(other than in connection with the Existing Mortgage).
OR
[] THAT during the period of 120 days immediately preceding the
date of this certification certain work has been done and material furnished to
or by Owner in connection with _______________________________________________
(state the general nature of work) upon said premises in the approximate total
sum of $ _________ but that except as stated below all of said work and
materials have been fully paid for. That to the knowledge of the undersigned
said work was completed on ____________ and that no significant work remains to
be done and that no significant material remains to be furnished to complete
the work. Attached hereto is a list of all persons or companies which have
furnished any labor or material (having a value in excess of $50,000) from the
beginning of the construction, together with waivers in full form all of said
parties.
Work not completed or not paid for: __________________________
_______________________________.
THAT only the following parties are direct tenants of Owner
under written leases:
Owner agrees not to cause any lien or other encumbrance to be
filed against the premises on or after the date hereof.
THAT this certification is made for the purpose of inducing
Commonwealth Land Title Insurance Company to issue its title policy insuring
the above-described premises.
-2-
<PAGE> 41
THAT Owner hereby indemnifies and agrees to save harmless
Commonwealth Land Title Insurance Company against any loss or expense,
including attorneys' fees, sustained because any statement herein is false or
inaccurate.
Dated this ____ day of _______, 1997.
By: _______________________
Its: ______________________
Subscribed and sworn to before me this
______ day of __________, 1997.
_________________________________
Notary Public
County of ______________________
State of _______________________
My commission expires: _________
-3-
<PAGE> 42
***
[ACKNOWLEDGMENTS]
***
EXHIBIT A
BENEFITTED PROPERTY
***
EXHIBIT B
BURDENED PROPERTY
<PAGE> 1
EXHIBIT 10.12
CONTRACT OF SALE
BETWEEN
DRM THIRTY-THREE REALTY CORPORATION
SELLER
AND
RAMCO-GERSHENSON PROPERTIES, L.P.
PURCHASER
Dated: July 7, 1997
Shopping Center Premises:
Mays Crossing, Stockbridge, Georgia
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1. DEFINITIONS..................................................1
2. SUBJECT OF SALE..............................................4
3. PURCHASE PRICE...............................................4
4. "SUBJECT TO" PROVISIONS......................................5
5. SPACE LEASES.................................................6
6. LEASING PRACTICE.............................................6
7. APPORTIONMENTS AND REIMBURSEMENTS............................7
8. VIOLATIONS..................................................10
9. PENDING TAX PROCEEDINGS.....................................10
10. "AS-IS".....................................................10
11. BROKER......................................................11
12. DESTRUCTION OR CONDEMNATION.................................11
13. STATUS OF TITLE.............................................12
14. CLOSING.....................................................12
15. NOTICES.....................................................12
16. FRANCHISE TAXES.............................................13
17. TITLE REPORT................................................13
18. NON-PERMITTED TITLE OBJECTIONS..............................13
19. RETURN OF DEPOSIT...........................................15
20. AFFIDAVIT REGARDING JUDGMENTS...............................15
21. ASSIGNMENT OF THIS CONTRACT.................................15
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
22. DEED TRANSFER TAXES........................................16
23. PURCHASER'S DEFAULT........................................16
24. ESCROW OF DEPOSIT..........................................17
25. REPRESENTATIONS............................................18
26. CLOSING DOCUMENTS..........................................21
27. FURTHER ASSURANCES.........................................23
28. PURCHASER'S DUE DILIGENCE PERIOD...........................24
29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS...............25
30. MISCELLANEOUS..............................................26
</TABLE>
EXHIBITS AND SCHEDULES:
Schedule A: Description of Property
Schedule B: Permitted Exceptions
Schedule C: Rent Roll
Schedule D: Escrowee's Wire Transfer Instructions
Schedule E: Existing Mortgage
Schedule F: List of Tax Protests
Exhibit 1: Form of Assignment and Assumption of Space Leases
Exhibit 2: Form of Tenant Estoppel Certificate
Exhibit 3: Form of Assignment and Assumption of Service Contracts
Exhibit 4: Form of Letter of Credit
Exhibit 5: Form of Title Certification
ii
<PAGE> 4
CONTRACT (this "Contract") made this 7th day of July, 1997 by
and between DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation having
an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New
York 10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited
partnership having an address at 27600 Northwestern Highway (Suite 200)
Southfield, Michigan 48034 ("Purchaser").
W I T N E S S E T H :
WHEREAS, upon the terms and conditions hereinafter set forth,
Seller agrees to sell and convey fee title to that certain parcel of land
described on Schedule A, annexed hereto and made a part hereof, with the
buildings and improvements erected thereon (which parcel of land and the
improvements erected thereon are herein referred to as the "Property") to
Purchaser and Purchaser agrees to purchase the Property.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. The terms defined in this Section 1 shall
for all purposes of this Contract have the meaning herein specified unless the
context requires otherwise.
(a) "Additional Deposit" shall have the meaning
ascribed to it in Section 3(a).
(b) "Affiliates" shall have the meaning ascribed it
in Section 25(a)(xii).
(c) "Anchor Space Tenant" shall have the meaning
ascribed to it in Section 12(b).
(d) "Arrears" shall have the meaning ascribed to it
in Section 7(a)(i)(A).
(e) "Cash Deposit" shall have the meaning ascribed to
it in Section 3(a)(i).
(f) "Closing" shall have the meaning ascribed to it
in Section 14(a).
(g) "Closing Date" shall have the meaning ascribed to
it in Section 14(a).
(h) "Code" shall have the meaning ascribed to it in
Section 25(a)(vii).
(i) "Deed" shall have the meaning ascribed to it in
Section 22(a).
(j) "Deposit" shall have the meaning ascribed to it
in Section 3(a).
(k) "ERISA" shall have the meaning ascribed to it in
Section 29(c).
(l) "Escrowee" shall have the meaning ascribed to it
in Section 3(a).
(m) "Estoppel Certificate" shall have the meaning
ascribed to it in Section 26(a)(vii).
1
<PAGE> 5
(n) "Estoppel Default" shall have the meaning
ascribed to it in Section 26(a)(vii)(B).
(o) "Existing Mortgage" shall have the meaning
ascribed to it in Section 4(b).
(p) "Evaluation Material" shall have the meaning
ascribed to it in Section 28(d).
(q) "Initial Deposit" shall have the meaning ascribed
to it in Section 3(a).
(r) "Letter of Credit" shall have the meaning
ascribed to it in Section 3(a)(i).
(s) "Loan Documents" shall have the meaning ascribed
to it in Section 4(a).
(t) "Maximum Representation Expense" shall have the
meaning ascribed to it in Section 25(e).
(u) "Maximum Title Expense" shall have the meaning
ascribed to it in Section 18(c).
(v) "Mortgage Expenses" shall have the meaning
ascribed to it in Section 4(d).
(w) "New Space Lease" shall have the meaning ascribed
to it in Section 6(a).
(x) "Non-Permitted Title Objections" shall have the
meaning ascribed to it in Section 18(a).
(y) "Overage Rent" shall have the meaning provided in
Section 7(a)(i)(B).
(z) "Permitted Exceptions" shall have the meaning
ascribed to it in Section 13.
(aa) "Premises" shall have the meaning ascribed it in
Section 2(b).
(ab) "Property" shall have the meaning ascribed to it
in the "WHEREAS" paragraph in this Contract.
(ac) "Purchase Price" shall have the meaning ascribed
to it in Section 3.
(ad) "Purchaser's Due Diligence Period" shall have the
meaning ascribed to it in Section 28(a).
(ae) "Related Parties" shall have the meaning ascribed
to it in Section 28(e).
(af) "Seller's Certificate" shall have the meaning
ascribed to it in Section 26(a)(vii).
2
<PAGE> 6
(ag) "Service Contracts" shall have the meaning
ascribed to it in Section 25(a)(iv).
(ah) "Space Leases" shall have the meaning ascribed to
it in Section 5.
(ai) "Space Tenants" shall have the meaning ascribed
to it in Section 5.
(aj) "Substantial Loss" shall have the meaning
ascribed to it in Section 12(b).
(ak) "Title Company" shall have the meaning ascribed
to it in Section 17.
(al) "Transfer Tax" shall have the meaning ascribed to
it in Section 22(b).
(am) "Violation(s) " shall have the meaning ascribed
to it in Section 8.
2. SUBJECT OF SALE.
(a) Seller agrees to sell and convey to Purchaser the
Premises and Purchaser agrees to purchase from Seller the Premises subject to
the terms and conditions contained in this Contract.
(b) This sale includes any right, title and interest
of Seller in and to: (i) the Property (and any other property adjacent
thereto owned by Seller); (ii) any land lying in the bed of any street, road or
avenue opened or proposed, in front of or adjoining the Property, to the center
line thereof, and all right, title and interest of Seller in and to any award
made or to be made in lieu thereof and in and to any unpaid award for damage to
the Property by reason of change of grade of any street; and Seller will execute
and deliver to the Purchaser at the Closing, or thereafter, on demand, all
proper instruments for the conveyance of such title and the assignment and
collection of any such award; (iii) trade names, easements, permits, licenses
and utility agreements, and other appurtenances appurtenant to the Property, if
any; (iv) fixtures, equipment and other personal property attached to and
appurtenant to the Property and not owned by the Space Tenants, if any, but no
part of the Purchase Price shall be deemed to be paid for such fixtures,
equipment or personal property; (v) the Space Leases and the security deposits
listed on Schedule C annexed hereto; (vi) all plans and specifications for
improvements to the Property in the possession of Seller and any contracts,
warranties and guarantees, if any, with regard to the foregoing; and (vii) any
mineral rights, waters, water courses and hereditaments belonging to the
Property and owned by Seller ((i) through (vii) being referred to collectively
as the "Premises").
3. PURCHASE PRICE.
The purchase price for the Premises is the sum of Seven
Million Eighty-Seven Thousand and 00/100 Dollars ($7,087,000.00), (the
"Purchase Price") which shall be paid by Purchaser to Seller as follows:
(a) (i) Sixty-Six Thousand Six Hundred Sixty-Six and
67/100 Dollars ($66,666.67) (the "Initial Deposit") on the signing of this
Contract payable to Tenzer Greenblatt LLP
3
<PAGE> 7
("Escrowee"), receipt of which is hereby acknowledged by the Escrowee and (ii)
Two Hundred Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars
($266,666.67) (the "Additional Deposit") payable to Escrowee on or before
September 5, 1997, time being of the essence. The Initial Deposit and the
Additional Deposit, to the extent actually paid and received, together with any
interest earned thereon is referred to collectively herein as the "Deposit."
The Deposit shall include the Cash Deposit or any Letter of Credit or the
proceeds therefrom. The Initial Deposit and the Additional Deposit may be
paid, at Purchaser's option, by (A) electronic wire transfer in accordance with
the instructions set forth on Schedule D attached hereto of immediately
available federal funds, or by good certified check of Purchaser or bank
teller's check to the order of Escrowee (individually or collectively (the
"Cash Deposit") or (B) delivering to Escrowee an irrevocable letter of credit,
in the amount of the Initial Deposit and/or the Additional Deposit issued to
Escrowee, as beneficiary, by BankBoston, N.A. in the form of Exhibit 4
(individually or collectively, the "Letter of Credit"); and
(b) On the Closing Date, Six Million Seven Hundred
Fifty-Three Thousand Six Hundred Sixty-Six and 66/100 Dollars ($6,753,666.66)
plus the amount of any Letter of Credit constituting a portion of the Deposit,
subject to the apportionments set forth in Section 7, by electronic wire
transfer of immediately available federal funds pursuant to wiring instructions
to be given by Seller to Purchaser prior to the Closing.
4. "SUBJECT TO" PROVISIONS; MORTGAGE.
(a) The Premises are sold subject to the exceptions
set forth on Schedule B attached hereto.
(b) "Existing Mortgage" refers collectively to the
mortgage loans described on Schedule E attached hereto. Seller has delivered
to Purchaser, and Purchaser acknowledges receipt of, copies of the documents
listed on Schedule E evidencing and securing the Existing Mortgage (the "Loan
Documents").
(c) If on the date then scheduled for the Closing,
Seller is unable to pay off the Existing Mortgage by reason of the applicable
prepayment requirements, Seller may adjourn the Closing for such time as may be
necessary to satisfy such requirements.
(d) Purchaser shall, at the Closing, pay all fees and
expenses (the "Mortgage Expenses") due (or incurred by Seller) in connection
with or arising out of the payoff of the Existing Mortgage (including any
prepayment charges).
5. SPACE LEASES. With respect to tenancies and occupancies
set forth on Schedule C attached hereto and made a part hereof, Purchaser
represents that it has examined, or will examine prior to the expiration of
Purchaser's Due Diligence Period, all leases and amendments thereto relating to
such tenancies and occupancies (which leases and any New Space Leases are
collectively referred to herein as the "Space Leases" and the lessees
thereunder are herein called "Space Tenants").
6. LEASING PRACTICE.
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(a) Subject to Section 6(b) below, Seller may
continue to lease the Premises in a manner consistent with its past course of
business and in a commercially reasonable manner, including, without limitation
and in its sole discretion, the termination of existing Space Leases and/or the
entering into of new leases or renewals or modifications of existing Spaces
Leases (such new space lease, termination, renewal or modification is herein
referred to as a "New Space Lease") .
(b) (i) Prior to the expiration of Purchaser's Due
Diligence Period, Seller shall be permitted to enter into any New Space Lease
without the approval of Purchaser, provided Seller promptly notifies Purchaser
of the same. (ii) After the expiration of Purchaser's Due Diligence Period
provided Purchaser is not in default under this Contract, Seller shall not (A)
enter into a New Space Lease covering more than 7,500 square feet of rentable
space without obtaining the prior written consent of Purchaser, which consent
shall not be unreasonably withheld or delayed or (B) terminate any Space Lease
without the prior written consent of Purchaser except in the event of a default
by a Space Tenant under a Space Lease. Any New Space Lease which does not
require Purchaser's consent shall be arms-length and on then fair market terms
and conditions (and shall otherwise be consistent with Seller's customary
leasing standards). (iii) Seller and Purchaser shall apportion, at Closing,
any tenant improvement expenses or allowances and leasing commissions on
account of a New Space Lease based on their respective periods of ownership of
the Premises during the term of such New Space Lease.
(c) If Purchaser's consent is required under this
Section 6 for the execution of a New Space Lease, Purchaser agrees to grant or
deny its consent in writing (and provide, in reasonable detail, the reasons for
any denial) within four (4) business days after request therefor. Purchaser's
failure to duly respond to Seller's request within four (4) business days after
request therefor shall be deemed a consent to the proposed New Space Lease. If
Purchaser's consent is not required, Seller's sole obligation shall be to
notify Purchaser prior to entering into any New Space Lease or terminating any
Space Lease.
(d) (i) Purchaser acknowledges and agrees that no
representation has been made and no responsibility has been assumed by Seller
with respect to the continued occupancy of the Premises, or any part thereof,
by the Space Tenants. Seller does not undertake or guarantee that the Space
Tenants will be in occupancy at the Closing. Prior to the Closing, Seller
shall have the right, but not the obligation, to enforce its rights against the
Space Tenants by summary proceeding or in any other manner. (ii)
Notwithstanding the provisions of subsection (d)(i) above, but subject to the
provisions of subsection (d)(iii) below, Purchaser shall have the right to
cancel this Contract in the event that, on the Closing Date, an Anchor Space
Tenant shall have filed a petition in bankruptcy and (A) an order has been
executed by the Bankruptcy Court granting such Anchor Space Tenant's
application to reject its Space Lease in bankruptcy or (B) fails to assume its
Space Lease in bankruptcy. (iii) In the event that, following the date of this
Contract any Anchor Space Tenant shall file a petition in bankruptcy, Seller,
at Seller's election, shall have the privilege to (C) reinstate such Anchor
Space Tenant's Space Lease by entering into a New Space Lease with such Anchor
Space Tenant on substantially similar terms and conditions as in such prior
Space Lease, or (D) obtain evidence, reasonably satisfactory to Purchaser, that
such Anchor Space Tenant has assumed its Space Lease in bankruptcy or (E)
procure a substitute tenant for the space covered by the Space Lease in
question pursuant to a New Space Lease reasonably acceptable to Purchaser, and
for any purpose provided in subparagraphs (C), (D) or (E) Seller shall be
entitled to one or more adjournments of the Closing for
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a period not to exceed one (1) year in the aggregate; provided, however, that
Purchaser shall have no obligation to close title if, during such period of
adjournment, an event occurs which materially and adversely affects the
Premises and such event is not corrected or cured to the reasonable
satisfaction of Purchaser.
7. APPORTIONMENTS AND REIMBURSEMENTS.
(a) Unless otherwise provided, at the Closing the
following are to be reimbursed or apportioned as of 11:59 P.M. on the
day preceding the Closing Date based upon the respective party's period of
ownership for the item being apportioned. Notwithstanding the foregoing, in the
event Seller (or its designee) does not receive the funds to be wired pursuant
to Section 3(b) in time for Seller (or its designee) to invest same (or to
timely pay off the Existing Mortgage) on the Closing Date, then in such event,
the items set forth in this Section 7 shall be apportioned as of 11:59 P.M. on
the Closing Date based upon the respective party's period of ownership for the
item being apportioned (The reimbursements and apportionments shall be made
based upon the actual number of days in the month in which the Closing Date
occurs.):
(i) Rent and additional rent under any Space Leases
for the month of Closing, as and when collected.
(A) If on the Closing Date there are any past due
rentals which have been billed to or are due by Space Tenants and not collected
(collectively "Arrears") Purchaser and Seller agree that the first moneys
received after the Closing by Purchaser or Seller from such Space Tenants shall
be applied (i) first to Seller and Purchaser for the month in which the Closing
occurred, prorated in accordance with this Section 7, (ii) then to Purchaser
toward any then current amounts owed by a Space Tenant to Purchaser and (iii)
then to Seller toward the Arrears owed by such Space Tenant. Purchaser and
Seller agree to remit promptly to the other the Arrears collected from time to
time to which the other is so entitled as hereinbefore provided. Purchaser
shall bill Space Tenants in Purchaser's customary manner and use reasonable
efforts in pursuing the collection of all Arrears for one (1) year following
the date of Closing. Purchaser shall have the right to deduct the greater of
the allocable share of Purchaser's reasonable out-of-pocket costs incurred in
collecting such Arrears or one (1%) percent of the Arrears collected on
Seller's behalf from amounts otherwise due Seller. The provisions of this
Section 7(a)(i)(A) shall survive the Closing.
(B) As to any Space Lease(s) that provide for
the payment of additional rent based upon a percentage of the Space Tenant's
business during a specified annual or other period, or based upon reimbursement
for or payment of real estate taxes, operating expenses or insurance expenses
or otherwise (such additional rent being collectively called "Overage Rent"),
if the Closing shall occur prior to the time when any such Overage Rent is
payable, then such Overage Rent for the applicable accounting period in which
the Closing occurs shall be apportioned subsequent to the Closing. Purchaser
agrees that it will receive and hold such Overage Rent in trust and pay over to
the Seller the proportion of such Overage Rent as the portion of such
accounting period during which Seller was in title to the Premises bears to the
entire such accounting period. As to any Overage Rent in respect to an
accounting period that shall have expired prior to the Closing but which shall
become payable after the Closing, the Purchaser agrees that it will receive and
hold such Overage Rent in trust
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and pay the entire amount over to the Seller upon receipt thereof. Purchaser
shall have the right to deduct the greater of the allocable share of
Purchaser's reasonable out-of-pocket costs incurred in collecting such Overage
Rent or one (1%) percent of the Overage Rent collected on Seller's behalf from
amounts otherwise due Seller. Seller shall furnish to Purchaser all
information (including the form of the bill to be rendered) necessary for the
billing of such Overage Rent. Purchaser agrees that it shall render bills
(calculated by Seller if applicable to a period during Seller's ownership) for
Overage Rent following the Closing and shall, upon receipt thereof, promptly
pay to the Seller the amount to which the Seller is entitled as above provided.
If requested by either party, both parties will join in a letter to the
respective Space Tenants under such leases directing the division of Overage
Rents in accordance with the foregoing provisions hereof. To the extent that a
Space Tenant has the express right under its Space Lease to offset Overage Rent
against other amounts due under its Space Lease, same will be taken into
account in determining Overage Rent apportionments. Promptly after the
calendar year in which the Closing occurs, Seller and Purchaser shall reconcile
all Overage Rent due for such calendar year based upon actual expenses incurred
during such year, and such reconciled Overage Rent shall be reapportioned
between Seller and Purchaser (taking into account any Overage Rent retained by
Seller at Closing and collected by Purchaser after the Closing). The
provisions of this Section 7(a)(i)(B) shall survive the Closing.
(ii) Water rates and water meter charges, if any, not
payable by the Space Tenants on the basis of the fiscal period for which
assessed. If there be a water meter, or meters, on the Premises (other than
meters under which charges are payable by the Space Tenant under the Space
Lease with Wal-Mart Stores, Inc.), the unfixed meter charges and the unfixed
sewer rent thereon for the time intervening from the date of the last reading
shall be apportioned on the basis of such last reading, and shall be
appropriately readjusted after the Closing on the basis of the next subsequent
bills. As to any water charges payable by the Space Tenant as aforementioned,
if the Space Tenant shall have failed to pay such water charges, such unpaid
charges and the liens, if any, resulting therefrom shall not be objections to
title, or be the basis of any claim whatsoever by Purchaser against Seller and
Purchaser shall close title in accordance with the terms of this Contract
subject to such unpaid charges and rents and such liens without abatement or
credit against the Purchase Price. The provisions of this Section 7(a)(ii)
shall survive the Closing.
(iii) Real estate, school and sewer taxes then due and
payable by Seller. As to any real estate, school and sewer taxes payable by
the Space Tenant under the Space Lease with Wal-Mart Stores, Inc., if such
Space Tenant shall have failed to pay such taxes, such unpaid taxes and the
liens, if any, resulting therefrom shall not be objections to title, or be the
basis of any claim whatsoever by Purchaser against Seller and Purchaser shall
close title in accordance with the terms of this Contract subject to such
unpaid charges and rents and such liens without abatement or credit against the
Purchase Price. The provisions of this Section 7(a)(iii) shall survive the
Closing.
(iv) Charges under Service Contracts not terminated on
or prior to Closing and other expenses in connection with the operation of the
Premises.
(v) Leasing expenses pursuant to Section 6(b), if
any.
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(b) At the Closing, Seller shall deliver to Purchaser the
Space Tenants' security deposits set forth in Schedule C annexed hereto, or
credit the Purchase Price on account of said security deposits; provided,
however, that if any Space Tenant is in default under the terms of its Space
Lease and has vacated its premises, Seller may retain so much of such Space
Tenant's security deposit as shall be sufficient to cover Seller's loss by
reason of the default. It is further agreed that nothing herein contained
shall be deemed to prevent Seller from applying security deposits prior to
Closing in order to liquidate any claim under any Space Lease or to compromise,
adjust or settle with any Space Tenant for the disposition of any claim by the
application of such security deposits provided such Space Tenant has vacated
its premises.
8. VIOLATIONS. (a) Subject to the provisions of subsection
(b) below, Purchaser shall accept the Premises subject to any notes or notices
or violations of law or municipal ordinances, orders or requirements imposed or
issued by any governmental or quasi- governmental authority having or asserting
jurisdiction, against or affecting the Premises (individually a "Violation" and
collectively "Violations") and any conditions which may result in Violations.
Purchaser shall be responsible for all Violations from and after the Closing
Date. (b) If, after the expiration of Purchaser's Due Diligence Period, any
Violations are imposed which require a cost in excess of $100,000, in the
aggregate, to cure as determined by a reputable contractor or engineer selected
by Seller (and reasonably acceptable to Purchaser) Seller shall, at its
election (i) cure such Violations and, for such purpose, be entitled to adjourn
the Closing for a period not to exceed sixty (60) days or (ii) allow Purchaser
a credit against the Purchase Price equal to the sum required to cure such
Violations less $100,000 or (iii) if Seller reasonably disputes the validity of
such Violations, indemnify Purchaser from and against any and all claims, loss,
liability or damage, which exceed $100,000, that may arise as a result of such
Violations, Seller's liability being limited under such indemnity to $100,000
in the aggregate. (c) The provisions of this Section 8 shall survive the
Closing.
9. PENDING TAX PROCEEDINGS. Seller represents that there are
no proceedings to review real estate tax assessment of the Premises other than
as set forth in Schedule F. Seller shall have sole authority to prosecute,
settle and withdraw proceedings to review any real estate tax assessment for
the Premises for period relating to tax years prior to, and including, the year
in which the Closing occurs. Purchaser and Seller agree that if there should
be a refund of any real estate taxes paid by Seller in respect of the fiscal
year in which the Closing occurs, such refund, less reasonable attorneys' fees
and disbursements, shall be apportioned between Seller and Purchaser as of the
Closing Date and shall be paid promptly upon receipt thereof. Seller and
Purchaser shall pay their respective share of any amounts reimbursable to Space
Tenants in respect to such refund. Purchaser acknowledges that it has no
interest in any proceedings or refunds applicable to any fiscal tax year prior
to the year in which the Closing occurs. The provisions of this Section 9
shall survive the Closing.
10. "AS-IS". Purchaser represents to Seller that (i)
Purchaser has or will, prior to the expiration of the Purchaser's Due Diligence
Period, independently examined, inspected, and investigated to the full
satisfaction of Purchaser, the physical nature and condition of the Premises
and the income, operating expenses and carrying charges affecting the Premises,
(ii) except as expressly set forth in this Contract, neither Seller nor any
agent, officer, employee, or representative of Seller has made any
representation whatsoever regarding the subject matter of this Contract or any
part thereof, including (without limiting the generality of the foregoing)
representations as to the physical nature or condition
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of the Premises, the existence or non-existence of asbestos, hazardous
substances or wastes, underground storage tanks or any other environmental
hazards on or about the Premises, or the Space Leases, or operating expenses or
carrying charges affecting the Premises, and (iii) Purchaser, in executing,
delivering and performing this Contract, does not rely upon any statement,
offering material, operating statement, historical budget, engineering
structural report, any environmental reports, information, or representation to
whomsoever made or given, whether to Purchaser or others, and whether directly
or indirectly, verbally or in writing, made by any person, firm or corporation
except as expressly set forth herein, and Purchaser acknowledges that any such
statement, information, offering material, operating statement, historical
budget, report or representation, if any, does not represent or guarantee
future performance of the Premises. Without limiting the foregoing, but in
addition thereto, except as otherwise expressly set forth in this Contract,
Seller shall deliver, and Purchaser shall take, the Premises in their "as is"
condition on the Closing Date subject to Section 12.
11. BROKER. Seller and Purchaser represent to each other that
neither party has dealt with any broker or real estate consultant in connection
with the transactions contemplated by this Contract. Seller and Purchaser
shall indemnify and hold the other free and harmless from and against any
damages, costs or expenses (including, but not limited to, reasonable
attorneys' fees and disbursements) suffered by the indemnified party arising
from a misrepresentation or a breach of any covenant made by the indemnifying
party pursuant to this Section 11. The provisions of this Section 11 shall
survive the Closing.
12. DESTRUCTION OR CONDEMNATION. (a) If on or prior to the
date set for Closing there is a casualty or condemnation affecting the Property
which constitutes a Substantial Loss, Purchaser shall have the option of
cancelling this Contract within fifteen (15) days after notice of such casualty
or condemnation, in which event, the Deposit shall be returned to the Purchaser
and this Contract deemed cancelled and of no force and effect and neither party
shall have any further rights or liabilities against or to the other. In the
event of a Substantial Loss, and Purchaser does not elect to cancel this
Contract, or in the event that the casualty or condemnation does not constitute
a Substantial Loss, then the Purchaser and Seller shall consummate the
transaction contemplated by this Contract without any reduction or abatement in
the Purchase Price and Seller, upon the Closing, shall assign to the Purchaser
all of its rights in and to any insurance proceeds (and shall pay to Purchaser,
or allow on account the Purchase Price, a sum equal to the amount of the
deductible, if any, on Seller's casualty insurance policy for the Premises) or
condemnation awards, as the case may be, in connection with such casualty or
condemnation.
(b) As used herein, "Substantial Loss" with respect
to the Property shall mean a casualty or condemnation that either (i) shall
entitle any anchor Space Tenant denoted as such on Schedule C annexed hereto
(each an "Anchor Space Tenant" and collectively the "Anchor Space Tenants") to
terminate its Space Lease on or after the Closing Date and Seller has failed to
obtain a waiver of such termination right or (ii) requires repairs or
restoration costs in excess of Seven Hundred Fifty Thousand ($750,000.00)
Dollars. In the event Purchaser elects to cancel this Contract in accordance
with subparagraph (a) above, Seller may rescind such cancellation by (iii)
delivering, within one (1) year after the receipt of Purchaser's notice of
cancellation, a waiver by each Anchor Space Tenant which was entitled to
terminate its Space Lease by reason of the casualty or condemnation of its
right or option to so terminate and (iv) within one (1) year after receipt of
Purchaser's notice of
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cancellation, restorating and repairing the Property (A) if in connection with
a casualty, substantially to its condition immediately prior to the casualty or
(B) if in connection with a condemnation, as may be reasonably necessary as a
result of the taking of property; provided, however, that Purchaser shall have
no obligation to close title if, during such period of adjournment, an event
occurs which materially and adversely affects the Premises and such event is
not corrected or cured to the reasonable satisfaction of Purchaser.
(c) The estimated cost of repairs or restoration in
connection with a casualty or condemnation shall be determined by a reputable
contractor or engineer selected by Seller and approved by Purchaser (which
approval shall not be unreasonably withheld or delayed). The Closing shall be
postponed for such periods as may be necessary to allow Seller to comply with
the provisions of this Section 12.
(d) The provisions of this Section 12 supersede the
provisions of any applicable statutory or decisional law with respect to the
subject matter contained in this Section 12.
13. STATUS OF TITLE. Seller shall deliver and Purchaser shall
accept title to the Premises and consummate the transaction contemplated by
this Contract subject to (a) the title exceptions set forth in Schedule B, (b)
title exceptions created or suffered by the Space Tenants or Purchaser and (c)
such other title exceptions which Seller may, in accordance with the provisions
of this Contract, cause the Title Company to omit or affirmatively insure will
not be collected out of the Premises provided that Purchaser has reasonably
approved the affirmative insurance (the title exceptions, whether liens,
encumbrances, defects, encroachments or other objections, described in (a),
(b), and (c) being sometimes referred to collectively as "Permitted
Exceptions"). Seller shall not enter into any agreements, indemnities or other
understandings with the Title Company which will enable the Title Company to
omit any matter of record without the knowledge of Purchaser.
14. CLOSING.
(a) The closing of title (the "Closing") shall take
place on September 30, 1997 (the actual date of Closing being herein referred
to as the "Closing Date") at the offices of Tenzer Greenblatt LLP, 405
Lexington Avenue, New York, New York 10174 at 9:00 o'clock in the forenoon on
that day, time being of the essence (except that Seller may adjourn the Closing
in accordance with other express provisions of this Contract) at which time the
Deed to the Property shall be delivered upon payment to Seller of the Purchase
Price. Notwithstanding anything contained herein or at law or in equity,
Purchaser expressly agrees that it shall have no right or privilege to adjourn
the Closing except as expressly permitted by this Contract and Purchaser's
inability or refusal to close title on the date scheduled for Closing shall be
a default under this Contract.
(b) The parties agree to finalize documents necessary
for the Closing and to cause their representatives to attend a customary
"pre-closing" at least one (1) business day prior to the date scheduled for
Closing.
15. NOTICES. All notices hereunder shall be sent by certified
or registered mail, return receipt requested, or may be sent by Federal Express
or other overnight courier which obtains a
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signature upon delivery, or may be delivered by hand delivery addressed to
Seller at the address set forth above or at such other address as Seller shall
designate from time to time by notice to Purchaser with copies of all such
notices to be likewise sent to:
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Attention: Martin Luskin, Esq.
and to Purchaser at the address given for Purchaser at the beginning of this
Contract or at such other address as Purchaser shall from time to time
designate by notice to Seller with copies of all such notices to Purchaser to
be likewise sent to:
Honigman, Miller, Schwartz & Cohn
2290 First National Building
Detroit, Michigan 48226
Attention: Alan Hurvitz, Esq.
Notices shall be deemed served three (3) business days after mailing, and in
the case of overnight courier or hand delivery, on the date actually delivered
to the intended recipient, except for notice(s) which advise the other party of
a change of address of the party sending such notice or of such party's
attorney, which notice shall not be deemed served until actually received by
the party to whom such notice is addressed or delivery is refused by such
party. Notices on behalf of the respective parties may be given by their
attorneys and such notices shall have the same effect as if in fact subscribed
by the party on whose behalf it is given. Notwithstanding the foregoing
provisions of this Section 15, notices served by hand delivery shall be deemed
served on the date of delivery if delivered at or prior to 5:00 P.M., and on
the next business day if delivered after 5:00 P.M.
16. FRANCHISE TAXES. Unpaid franchise or corporation taxes,
dissolution taxes or any other similar taxes so levied, of any corporation in
the chain of title shall be no objection to title so long as the Title Company
insures against collection of any such taxes out of or enforcement against the
Premises without special or additional premium or if such special or additional
premium is required, if Seller shall pay such special or additional premium.
17. TITLE REPORT. Purchaser shall promptly order a title
report from Commonwealth Land Title Insurance Company (the "Title Company") and
a survey or survey update, all at Purchaser's sole cost and expense. Purchaser
shall from time to time, promptly after obtaining knowledge thereof, notify
Seller of any Non-Permitted Title Objections. Purchaser shall pay all premiums
charged in connection with procuring a policy of title insurance.
18. NON-PERMITTED TITLE OBJECTIONS.
(a) If on the Closing it should appear that the
Premises are affected by any lien, encumbrance, defect, encroachment or
objection which is not a Permitted Exception (collectively, "Non-Permitted
Title Objections"), then in such event, Seller, at Seller's election, shall
have the
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privilege to remove or satisfy the same, and shall, for that purpose, be
entitled to one or more adjournments of the Closing for a period not exceeding
in the aggregate sixty (60) days.
(b) If Seller elects to adjourn the Closing pursuant
to this Section 18, this Contract shall remain in effect for the period or
periods of adjournment, in accordance with its terms.
(c) Except as provided below, Seller shall not be
required to bring any action or proceeding or to otherwise incur any expense to
remove or discharge any Non-Permitted Title Objection; provided, however, that
if there exists Non-Permitted Title Objection(s) which can be removed or
discharged by payment of a sum of money only, and if both (1) such removal or
discharge can reasonably be expected to be accomplished within a period of
sixty (60) days and (2) the sum of money required to accomplish all such
removals or discharges with respect to the Premises shall not exceed in the
aggregate Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars (the
"Maximum Title Expense"), then, and in such event, Seller agrees to either (i)
adjourn the Closing for the period required to remove or discharge such
Non-Permitted Title Objections, and to expend an amount not to exceed the
Maximum Title Expense to remove or discharge such Non-Permitted Title
Objections, or (ii) indemnify Purchaser, in an amount not to exceed the Maximum
Title Expense, from any damage, cost, expense or claim which Purchaser may
incur as a result of such Non-Permitted Title Objection (in which case
Purchaser shall accept title subject to such Non-Permitted Title Objection).
Notwithstanding the foregoing provisions, Purchaser may, at any time, accept
such title as Seller can convey notwithstanding the existence of any
Non-Permitted Title Objections without reduction of the Purchase Price or any
credit or allowance on account thereof or any claim against Seller, provided,
however, if there shall be any Non-Permitted Title Objections that can be
removed or discharged by the payment of a sum of money only which exceeds the
Maximum Title Expense, or that can be removed by the payment of less than the
Maximum Title Expense but not within the available time, and Seller elects not
to or cannot remove or discharge such Non-Permitted Title Objections within the
available time, then if Purchaser elects to accept such title as Seller can
convey the Purchase Price shall be reduced, by the lesser of the Maximum Title
Expense or the amount required to remove or discharge said Non-Permitted Title
Objection. The acceptance of the Deed by Purchaser shall be deemed to be a
full performance and discharge of every agreement and obligation on the part of
Seller to be performed pursuant to this Contract, except those, if any, that
are herein specifically stated or made to survive the Closing (but, except as
expressly set forth in this Contract, nothing herein shall be deemed to
obligate Purchaser to accept title subject to any Non-Permitted Title
Objection). Anything in this Section 18(c) to the contrary notwithstanding, an
attempt by Seller to remove or discharge any Non-Permitted Title Objection
shall not be deemed to be or create an obligation of Seller to remove or
discharge the same.
(d) The foregoing provisions of this Section 18 to
the contrary notwithstanding, Seller agrees to remove or discharge any monetary
lien voluntarily created or suffered by Seller and any Non-Permitted Title
Objections voluntarily created or suffered by Seller after the date hereof;
provided, however, that Seller shall not be deemed to have voluntarily created
or suffered (nor shall Seller be liable for) any Non-Permitted Title Objections
if caused or created by an act or omission of Purchaser or by an act or
omission of any Space Tenant. Seller shall remove or discharge any
Non-Permitted Title Objection in the manner set forth in subparagraph (c)
above, but, for purposes of this subparagraph (d), without regard to the
Maximum Title Expense.
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19. RETURN OF DEPOSIT; SELLER'S DEFAULT
If, for any reason whatsoever, Seller shall be unable to
convey title subject to and in accordance with the terms of this Contract, the
sole obligation of Seller shall be to cause the refund of the Deposit, and upon
the making of such refund this Contract shall be null and void and of no
further force or effect, no party hereto shall have any further claim against
the other by reason of this Contract; provided, however, that if Seller's
inability to convey shall result from (i) Seller's willful default or (ii)
Seller's default under Section 18 above, then Purchaser shall, in either case
under clause (i) or (ii) of this proviso, be entitled to the remedy of either
(A) specific performance or (B) cancelling this Contract and receiving (1) the
return of the Deposit and (2) reimbursement of Purchaser's actual out-of-
pocket expenses incurred in procuring environmental and engineering reports not
to exceed $6,500.00 in the aggregate, and upon receipt by Purchaser of the
Deposit and such reimbursement no party hereto shall have any further claim
against the other by reason of this Contract.
20. AFFIDAVIT REGARDING JUDGMENTS. If a search of the title
discloses judgments, bankruptcies or other returns against other persons having
names the same as or similar to that of Seller but who are not Seller or its
affiliates or subsidiaries, Seller will deliver to Purchaser and the Title
Company an affidavit(s) showing that such judgments, bankruptcies or other
returns are not against Seller or, at Seller's option, deliver an indemnity
agreement to the Title Company, in such form and content that the Title Company
will remove such judgments, bankruptcies or other returns as exceptions to
title or will insure against collection of such judgments out of the Premises.
21. ASSIGNMENT OF THIS CONTRACT. This Contract may not be
assigned by Purchaser without the prior written consent of Seller. The
foregoing notwithstanding, Purchaser shall have the right to assign this
Contract to an entity whose decisions are made by Purchaser (or by an entity
wholly owned by Purchaser) provided Purchaser owns at least fifty (50%) percent
of the economic interests in such entity and provided further that such entity
assumes all obligations of Purchaser under this Contract. A transfer, sale or
assignment of the majority stock or membership interest in a corporate or
limited liability company purchaser or in a corporate or limited liability
general partner of a partnership purchaser, or of a general partnership
interest in a partnership purchaser, shall constitute an assignment of this
Contract, which assignment or attempted assignment shall be void if made
without the written consent of Seller. No assignment of this Contract, whether
or not permitted, shall be deemed to relieve or release Purchaser from any of
its obligations (whether to be performed prior to or after Closing) set forth
herein. Seller shall not have the right to assign its interests under this
Contract except to entities affiliated with or related to Seller.
22. DEED; TRANSFER TAXES.
(a) The deed to the Premises shall be the usual
special warranty deed (the "Deed") all in proper statutory form for recording
and shall be duly executed and acknowledged so as to convey to Purchaser the
fee simple of the portion of the Premises covered thereby, free of all liens
and encumbrances, except as herein stated.
(b) At the Closing, Seller shall pay the cost of any
amount of documentary stamps, transfer tax or similar conveyance tax imposed in
connection with the delivery of the Deed
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(collectively, the "Transfer Tax") and Purchaser and Seller shall execute and
deliver any returns and/or affidavits in connection with the recording of the
Deed or the payment of the Transfer Tax.
(c) (i) Anything in subdivision (b) to the contrary
notwithstanding, Seller may, at its option, elect by notice given not later
than three (3) business days prior to the Closing that Purchaser pay all
required Transfer Tax, in which event at the Closing, Purchaser shall receive a
credit against Purchase Price in the amount paid by Purchaser.
(ii) Purchaser hereby indemnifies and holds Seller
harmless from and against any interest or penalty charges imposed by reason of
the untimely delivery to the appropriate recording officer of any of the checks
required under Subdivision (c)(i).
(d) The provisions of this Section 22 shall survive
the Closing.
23. PURCHASER'S DEFAULT. In the event Purchaser should
default under this Contract (including, but not limited to, Purchaser's
failure to timely deliver the Additional Deposit), the parties agree that the
damages that Seller will sustain as a result thereof will be difficult, if not
impossible, to ascertain and, in such event Seller shall, as its sole and
exclusive remedy, direct Escrowee to pay the Deposit to Seller who shall retain
it as and for its liquidated damages hereunder.
24. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee
is instructed as follows:
(a) Upon the Closing, the Cash Deposit shall be paid over
to Seller and any Letter of Credit shall be delivered to Purchaser upon payment
by Purchaser to Seller of the Purchase Price.
(b) (i) Escrowee shall draw the full proceeds under
any Letter of Credit if (A) Escrowee shall receive a written statement signed
by Seller as follows: "Purchaser has defaulted in its obligations under that
certain Contract of Sale dated July 7, 1997"; or (B) the Letter of Credit will
expire by its terms within thirty (30) days. Escrowee shall promptly upon
receipt forward a copy of Seller's statement to Purchaser. Any such proceeds
paid to and received by Escrowee shall be treated and disposed of hereunder as
Cash Deposit.
(ii) In the event Purchaser should default under this
Contract, Escrowee shall, if directed by Seller, pay the Cash Deposit to
Seller who shall retain it as and for its liquidated damages hereunder.
(c) In the event Seller shall fail to close title by
reason of a default by Seller or in the event this Contract is terminated in
accordance with its terms through no fault of Purchaser, the Deposit shall be
paid over to Purchaser.
(d) Escrowee shall invest the proceeds of the Deposit in
such bank or money market accounts or United States Government Treasury Bills
as Seller shall direct. Any interest earned on Deposit when received shall
similarly be held in escrow by the Escrowee and if under the terms of this
Contract (i) the Deposit is to be paid over to Purchaser, then such interest
shall be paid over to Purchaser, or (ii) the Deposit is to be paid over to
Seller, then such interest shall be paid over to Seller.
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If the Closing occurs, any interest earned on the Deposit shall be considered a
credit of Purchaser to be applied against the Purchase Price.
(e) Escrowee, by signing this Contract at the end hereof
where indicated, signifies its agreement to hold the Deposit for the purposes
as provided in this Contract. In the event of any dispute, Escrowee shall have
the right to deposit the Deposit in court to await the resolution of such
dispute. In any event, Escrowee shall not be personally liable so long as it
acts in good faith.
(f) Escrowee shall not incur any liability by reason of
any action or non-action taken by Escrowee in good faith or pursuant to the
judgment or order of a court of competent jurisdiction. Escrowee shall have
the right to rely upon the genuineness of all certificates, notices and
instruments delivered to it pursuant hereto, and all the signatures thereto or
to any other writing received by Escrowee purporting to be signed by any party
hereto, and upon the truth of the contents thereof. Before making payment or
delivery of any moneys or documents held by Escrowee pursuant hereto, Escrowee
shall have the right to require delivery to it of an executed and acknowledged
receipt for the subject matter of the delivery to be made by it. In the event
of any dispute between the parties as to whether either party is in default
hereunder or as to any other material fact, Escrowee shall have the right to
refrain from taking any further action with respect to the subject matter of
the escrow until it is reasonably satisfied that such dispute is resolved or
action by Escrowee is required by an order or judgment of a court of competent
jurisdiction. Escrowee shall be entitled to consult with other counsel in
connection with its duties hereunder. Seller and Purchaser jointly and
severally, agree to indemnify Escrowee from any and all liability that may
arise hereunder and to reimburse Escrowee for its reasonable costs and
expenses, including reasonable attorneys' fees (either paid to retained
attorneys or representing the fair value of legal services rendered by Escrowee
to itself) incurred as a result of any dispute or litigation arising hereunder.
(g) Escrowee or any member of its firm shall be
permitted to act as counsel for Seller in any dispute as to the disbursement of
the Deposit or any other dispute between the parties whether or not Escrowee is
in possession of the Deposit and continues to act as Escrowee.
25. REPRESENTATIONS.
(a) Seller, represents that, unless otherwise herein
stated, as of the date hereof:
(i) Schedule C represents a true, accurate and
complete list in all material respects of (A) all Space Tenants; (B) the
current base rent and (C) the security deposits presently held by Seller.
Other than the Space Tenants (and parties claiming rights under Space Leases,
including sublessees, licensees, assignees and concessionees) no party has any
right to possess or use the Premises except as may be contemplated by the
Permitted Exceptions.
(ii) Except as set forth on Schedule C hereof, the
Spaces Leases are in full force and effect. Seller has not received notice of
any unfulfilled obligations as to security deposits to prior tenants.
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(iii) Except as set forth on Schedule C, Seller has not
received rents from the Space Tenants (other than security deposits) in excess
of one (1) month in advance.
(iv) There are no written service contracts or
management agreements (the "Service Contracts") affecting the Premises or the
operation or use thereof which will be binding upon Purchaser after the Closing
except those which may be cancelled upon not more than thirty (30) days notice.
(v) There is no litigation pending (A) between Seller,
as landlord, under the Space Leases and any Space Tenant, except as may be
covered by insurance, or (B) affecting title to the Premises or this Contract.
(vi) Seller is, and at the Closing shall be a duly
organized and validly existing Alabama corporation and authorized to do
business in the state where the Property is located. The execution, delivery
and performance of this Contract in accordance with its terms, has been duly
authorized by all necessary action of Seller, does not violate the articles of
incorporation, by-laws, operating agreement, partnership agreement or
certificate of partnership of Seller, or any contract, agreement, commitment,
order, judgment or decree to which Seller is a party or by which it, or the
Premises, are bound, or result in the creation of any lien, charge or
encumbrance upon the Premises or any part thereof. This Contract has been duly
executed by Seller and constitutes legal, valid and binding obligations of
Seller. Seller will have the right, power and authority to make and perform
its obligations under this Contract without the need for governmental approval,
consent or filing and this Contract shall be a valid and binding obligation of
Seller enforceable against Seller in accordance with its terms.
(vii) Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code").
(viii) Seller has not received written notice of any
condemnation proceedings, eminent domain proceedings, proceedings to change the
zoning or similar actions or proceedings which are pending against the Premises
or any part thereof.
(ix) There are no employees of Seller at the Proper-
ties for which Purchaser shall be responsible after the Closing.
(x) The principal balance as of June 30, 1997 of
the Existing Mortgage is set forth on Schedule E attached hereto.
(xi) The Loan Documents constitute all the documents
which are material in connection with the prepayment of Existing Mortgage.
Seller shall not modify the prepayment provisions of the Loan Documents during
the term of this Contract without the consent of Purchaser.
(xii) Neither Seller nor any of its affiliates as
described in Sections 414(b), (c) and (m) of the Code ("Affiliates") has
incurred any liability which could subject Purchaser or any
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asset to be acquired by Purchaser pursuant to this Contract to any lien or
material liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of
ERISA or Section 401(a)(29) or 412 of the Code.
(b) As used herein items in the "possession" of Seller or
"received" by Seller shall mean only writings actually delivered into the
possession of Seller (at the New York City office of DRA Advisors, Inc.) and
shall not include writings addressed to Seller but sent or delivered to the
Space Tenants or other third parties or to other locations.
(c) The representations contained in subsection (a) above
shall survive for a period of six (6) months following the Closing Date, and
any claim by Purchaser in connection therewith must be made within such six (6)
month period. Notwithstanding anything to the contrary, any representation
which results in a reduction of the Purchase Price pursuant to subparagraph (e)
below shall not survive the Closing.
(d) Subject to the succeeding provisions of this
subparagraph (d) and of subparagraph (e) below, if any representation of Seller
shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be
to terminate this Contract and receive the return of the Deposit, and upon the
receipt of same this Contract shall be null and void and of no further force or
effect and neither party shall have any rights or obligations against or to the
other. Seller shall, in any event, have the option (i) to rescind Purchaser's
termination of the Contract and adjourn the Closing for a period not to exceed
sixty (60) days in order to make such representation true, or (ii) unless
Purchaser waives all liability of Seller by reason of such untrue
representation, to terminate this Contract and promptly return the Deposit to
Purchaser, and upon the making of such return this Contract shall be null and
void and of no further force or effect and neither party hereto shall have any
rights or obligations against or to the other. If Purchaser waives such
liability, then in such event, the Closing shall take place without abatement
or reduction in the Purchase Price. If the Closing shall take place without
Purchaser making an objection (by notice delivered at the Closing) to an untrue
representation of which Purchaser shall have knowledge, Purchaser shall be
deemed to have waived all liability of Seller by reason of such untrue
representation. The untruth of any non-material representation of Seller shall
not affect the rights and obligations of the parties hereto.
(e) The provisions of subparagraph (d) hereof to the
contrary notwithstanding, if any representations shall fail to be true and such
representations can be made true by the payment of a sum of money only, and if
both (i) such representation(s) can reasonably be expected to be made true
within a period of sixty (60) days and (ii) the sum of money requited to make
such representation(s) true shall not exceed Two Hundred Fifty Thousand and
00/100 ($250,000.00) Dollars in the aggregate (the "Maximum Representation
Expense"), then, and in such event, Seller agrees to (i) adjourn the Closing
for the period required to make such representations true and to expend (or, at
Seller's election, to obligate itself to expend by indemnity agreement, bond or
any other manner) an amount not to exceed the Maximum Representation Expense,
or (ii) indemnify Purchaser, in an amount not to exceed the Maximum
Representation Expense, from any damage, cost, expense or claim that Purchaser
may incur as a result of such untrue representation. Notwithstanding the
provisions of the preceding sentence, Purchaser may at any time accept such
title as Seller can convey notwithstanding the existence of any such untrue
material representation(s) without reduction of the Purchase Price or any
credit or allowance on account thereof or any claim against Seller; provided,
however, if there shall be any untrue material
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representation(s) which can be made true by the payment of a sum of money only
which exceeds the Maximum Representation Expense or which can be made true by
the payment of less than the Maximum Representation Expense but not within the
available time and Seller elects not to, or cannot, make such material
representation(s) true within the available time, then if Purchaser elects to
accept such title as Seller can convey, the Purchase Price shall be reduced by
the lesser of the sum of money required to make such representations true, or
the Maximum Representation Expense. The acceptance of the Deeds by Purchaser
shall be deemed to be a full performance and discharge of every agreement and
obligation on the part of the Seller to be performed pursuant to the provisions
of this Contract, except those, if any, which are herein specifically stated or
made to survive the Closing and Seller shall have no further liability with
respect to such untrue material representation(s).
(f) Following the Closing, Seller agrees to maintain
at least $50,000.00 in its operating account until the end of the calendar year
in which the Closing occurs, it being understood that such amount shall not be
deemed to be the limit of Seller's liability, if any, after the Closing Date.
26. CLOSING DOCUMENTS. At the Closing (unless otherwise
expressly indicated):
(a) Seller shall deliver to Purchaser the following
items:
(i) the Deed in accordance with Section
22 hereof.
(ii) the Assignment of Space Leases exe-
cuted by Seller, which assignment shall be in the form of Exhibit 1 attached
hereto.
(iii) duplicate originals, or if duplicate
originals are not available, true and complete copies certified as true by
Seller, of all of the Space Leases.
(iv) to the extent in Seller's possession,
the real estate tax bills then payable for the then current real estate tax
year.
(v) a duly executed certificate of
Seller, in the applicable form set forth in Treasury Regulations Section
1.1445- 2(b)(2).
(vi) the checks, return and/or affidavit
in accordance with Section 22 hereof.
(vii) subject to the terms of Sections
26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the
Closing Date, estoppel certificates ("Estoppel Certificates"), in form and
substance which does not vary materially from the form annexed hereto as
Exhibit 2 executed by each of the Space Tenants; provided, however, with
respect to Anchor Space Tenants, Seller shall only be required to deliver such
Estoppel Certificates which are usual and customary for such Anchor Space
Tenants (except that, other than for the Estoppel Certificate to be delivered
by Wal-Mart Stores, Inc. [or its assignee] the Estoppel Certificates of all
other Anchor Space Tenants shall cover at least the matters set forth in
paragraphs 2 and 3 of Exhibit 2).
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(A) If the required Estoppel Certificates cannot
be timely delivered, or if the Estoppel Certificates which are timely delivered
do not cover the material applicable matters set forth in Exhibit 2 Seller may,
but shall not be obligated to, adjourn the Closing for a period not to exceed
sixty (60) days, to obtain satisfactory Estoppel Certificates, or deliver its
certificate ("Seller's Certificate") with respect to not more than forty (40%)
percent of rentable square feet of space leased by non-Anchor Space Tenants as
of the date hereof, covering all of the matters set forth in Exhibit 2 if no
Estoppel Certificate is delivered by a Space Tenant or covering the matters not
covered by an Estoppel Certificate which is delivered by a Space Tenant.
Subsequent to the Closing, Seller may deliver to Purchaser Estoppel
Certificates or supplemental Estoppel Certificates covering those matters not
covered by the previously delivered Estoppel Certificates. Upon delivery of
such Estoppel Certificates, Seller shall be entirely released from any
liability arising out of Seller's Certificate delivered at the Closing as
Seller's Certificate relates to the particular Space Tenant and/or Space Lease
covered by the Estoppel Certificate, to the extent the information contained in
such Estoppel Certificates is consistent with the information contained in
Seller's Certificate. If Seller does not or cannot deliver an Estoppel
Certificate or Seller's Certificate, Purchaser's sole remedy shall be to
terminate this Contract and receive the return of the Deposit or to close title
notwithstanding the lack of the Estoppel Certificate or Seller's Certificate
without any reduction of the Purchase Price and without any liability of Seller
relative thereto.
(B) (1) In the event any Estoppel Certificate or
Seller's Certificate shall indicate a default by landlord under a Space Lease
(such default hereinafter being referred to as an "Estoppel Default"), then
Seller may, but shall not be obligated to, elect to cure any such Estoppel
Default and shall, for that purpose, be entitled to adjourn the Closing for a
period not to exceed sixty (60) days, provided, however, that in the event
Seller elects not to cure such Estoppel Default or is unable to cure such
Estoppel Default within such period of time, Purchaser's sole remedy shall be
as set forth in the last sentence of subparagraph (A) above.
(2) Notwithstanding subsection
26(a)(vii)(B)(1), above, if, in Seller's good faith judgment either (x) the
potential liability of any Estoppel Default is less than $250,000, and Seller
indemnifies Purchaser from and against any and all claims, loss, liability,
damage, cost or expense, including reasonable attorneys' fees, that may arise
as a result of such Estoppel Default or (y) the potential liability of any
Estoppel Default is $250,000 or more and Seller and Purchaser agree upon a
mutually acceptable resolution to such Estoppel Default, then, the rights and
obligations of the parties hereto shall not be affected thereby, this Contract
shall remain in full force and effect and Purchaser shall, at the Closing,
accept such Estoppel Certificate or Seller's Certificate, and the Space Lease
corresponding thereto, subject to such Estoppel Default without any reduction
of the Purchase Price. Subsequent to the Closing, Seller may deliver an
Estoppel Certificate confirming that the Estoppel Default no longer exists,
whereupon Seller shall be entirely released from any liability arising out of
the indemnity, if any, given pursuant to clause (x) above.
(viii) to the extent then in Seller's possession and
control, copies of plans and specifications relating to the Property.
(ix) a bill of sale without representation or warranty
for any personal property (including tradenames and warranties, if any) being
conveyed pursuant to this Contract;
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(x) the Assignment of Service Contracts existing on
the Closing Date executed by Seller, which assignment shall be in the form of
Exhibit 3 attached hereto; and
(xi) a title certification substantially in the form
of Exhibit 5 attached hereto.
(b) Purchaser shall (i) pay to Seller or as Seller may
direct, the Purchase Price as provided in Section 3 hereof and (ii) pay all
Mortgage Expenses. Escrowee shall deliver the Cash Deposit to Seller.
(c) Purchaser shall execute, acknowledge (where required)
and deliver to Seller:
(i) the Assignment of the Space Leases.
(ii) the Assignment of the Service Contracts.
(iii) the checks, returns and/or affidavits in
accordance with Section 22 hereof.
(d) Seller and Purchaser shall execute a notice to
each of the Space Tenants stating in substance that Purchaser has succeeded to
Seller's interest as landlord under the Space Leases.
27. FURTHER ASSURANCES. The parties each agree to do such
other and further acts and things, and to execute and deliver such instruments
and documents (not creating any obligations additional to those otherwise
imposed by this Contract), as either may reasonably request from time to time,
whether at or after the Closing, in furtherance of the purposes of this
Contract. The provisions of this Section 27 shall survive the Closing.
28. PURCHASER'S DUE DILIGENCE PERIOD.
(a) Purchaser shall have the right to cancel this
Contract on or before September 5, 1997 by notice to Seller and Escrowee of
such cancellation to be received by Seller on or before such date (the period
of time from the date hereof through and including September 5, 1997 is herein
referred to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels
this Contract in accordance with this subparagraph, this Contract shall be
deemed terminated and of no further force or effect and the Deposit shall be
promptly returned to Purchaser. If Purchaser does not duly cancel this
Contract in accordance with this subparagraph or if Purchaser waives its right
to cancel this Contract, (i) this Contract shall remain in full force and
effect and Purchaser shall have no further right to cancel this Contract under
this subparagraph and (ii) Purchaser shall be deemed to have waived any
liability of Seller and any right to refuse to consummate the Closing by reason
of a misrepresentation, Non-Permitted Title Objection or other condition known
to Purchaser as of the expiration of Purchaser's Due Diligence Period.
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(b) Time shall be of the essence with respect to the
dates in this Section for the expiration of Purchaser's Due Diligence Period
and the giving of Purchaser's cancellation notice.
(c) Notwithstanding anything to the contrary, if
Purchaser's environmental and engineering consultants have not inspected the
Property by August 8, 1997 Seller may elect to cancel this Contract in which
event the Deposit shall be promptly returned to Purchaser. In the event
Purchaser concludes based upon any of its due diligence investigations that it
is not prepared to proceed to Closing it will promptly so notify Seller and
cancel the Contract.
(d) Purchaser agrees to keep confidential as hereinafter
provided all information furnished to Purchaser by Seller concerning the
Premises, including, without limitation, Space Leases, Loan Documents, Service
Contracts or other contracts or agreements, various papers, documents, legal
instruments, studies, brochures, computer output, and other material, and any
discussions or visitations of the Premises (all of the aforementioned
information is collectively referred to as "Evaluation Material").
(e) All Evaluation Material shall not be used or
duplicated by Purchaser in any way detrimental to Seller, or for any purpose
other than evaluating a possible purchase of the Property by Purchaser.
Purchaser agrees to keep all Evaluation Material (other than information which
is a matter of public record or is provided in other sources readily available
to the public other than as a result of disclosure thereof by Purchaser or
Related Parties) strictly confidential; provided, however, that the Evaluation
Material may be disclosed to the directors, officers, and employees and
partners of Purchaser, and to Purchaser's attorneys and accounting firm, other
consultants, underwriters and financial institutions (all of whom are
collectively referred to as "Related Parties") who need to know such
information for the purpose of evaluating a possible purchase of the Premises.
These Related Parties shall be informed of the confidential nature of the
Evaluation Material and shall be directed to keep all such information in the
strictest confidence and use such information only for the purpose of
evaluating a possible purchase by Purchaser. Purchaser will promptly,
upon request of Seller, deliver to Seller all Evaluation Material furnished to
them by Seller, whether furnished before or after the date hereof, without
retaining copies thereof. Purchaser will direct Related Parties to whom
Evaluation Material is made available not to make similar disclosures and any
such disclosure shall be deemed made by and be the responsibility of Purchaser.
(f) Purchaser shall have the right to conduct
non-intrusive investigations of the Premises during the term of this Contract
(including a Phase I environmental investigation and a structural analysis).
Such investigations may be conducted by Purchaser or its designees, including,
but not limited to engineers, accountants, architects and Purchaser's employees
during normal business hours and upon reasonable advance notice to Seller
provided there is no disturbance to or interference with the business of any
Space Tenant. Purchaser hereby indemnifies and holds harmless Seller from and
against any claims, costs, damages, liabilities or expenses (including
reasonably attorneys' fees) incurred or, suffered by Seller by reason of damage
or injury to persons or property caused by Purchaser's investigations.
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(g) Seller agrees to deliver to Purchaser true and
complete copies of all Space Leases (and any modifications thereof) in Seller's
possession.
(h) The provisions of Section 28(d), (e) and (f) shall
survive the termination of this Contract.
29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS.
(a) At the Closing, Seller and Purchaser shall each
deliver any and all appropriate partnership consents or certificates by the
secretary of each corporation (including any corporate general partner)
certifying as to the corporate resolution authorizing this transaction.
(b) Purchaser represents that: (i) it is, and will
at the Closing be, a limited partnership duly organized and validly existing
under the laws of Delaware and qualified to do business in the state in which
the Property is located; (ii) the execution, delivery and performance of this
Contract in accordance with its terms, do not violate the corporate charter,
by-laws or certificate of incorporation of Purchaser, or any contract,
agreement, commitment, order, judgment or decree to which Purchaser is a party
or by which it is bound; (iii) Purchaser has the right, power and authority to
make and perform its obligations under this Contract; (iv) this Contract is a
valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms. Purchaser covenants and warrants that the
representations in the preceding sentences of this Section 29(b) will be true
on the Closing with respect to Purchaser or any permitted assignee of
Purchaser; (v) Purchaser will have the right, power and authority to make and
perform its obligations under this Contract without the need for governmental
approval, consent or filing and this Contract shall be a valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms and (vi) Purchaser has the current financial ability to pay the Purchase
Price and otherwise perform its obligations under this Contract.
(c) Purchaser represents and warrants that: (i)
Purchaser is not an "employee benefit plan" as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is
subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute
"plan assets" of one or more plans within the meaning of 29 C.F.R. Section
2510-101; (iii) Purchaser is not a "governmental plan" within the meaning of
Section 3(32) of ERISA; (iv) transactions by or with Purchaser are not subject
to state statutes regulating investments of and fiduciary obligations with
respect to governmental plans; and (v) Purchaser is not a "party in interest"
to Seller within the meaning of ERISA. Purchaser covenants and warrants that
the representations in the preceding sentences of this Section 28(c) will be
true on the Closing.
30. MISCELLANEOUS.
(a) This Contract and the Schedules and Exhibits
annexed hereto constitute the entire agreement between the parties hereto with
respect to the subject matter hereof, and except for any other documents
executed contemporaneously herewith all understandings and agreements
heretofore or simultaneously had between the parties hereto, including without
limitation, any letter of intent or initial escrow agreement, are merged into
and are superseded in their entirety by this Contract.
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(b) This Contract may not be waived, changed,
modified or discharged orally, but only by an agreement in writing signed by
the party against which any waiver, change, modification or discharge is
sought.
(c) The captions or article titles contained in this
Contract and the Index, if any, are for convenience and reference only and
shall not be deemed a part of the text of this Contract.
(d) The terms "hereof," "herein," and "hereunder,"
and words of similar import, shall be construed to refer to this Contract as a
whole, and not to any particular article or provision, unless expressly so
stated.
(e) The Schedules and Exhibits annexed hereto are
hereby incorporated in and made part of this Contract.
(f) All words or terms used in this Contract,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
(g) This Contract shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns, if any, but
nothing contained herein shall be deemed a waiver of the provisions of Section
21 hereof. None of the provisions of this Contract are intended to be, nor
shall they be construed to be, for the benefit of any third party.
(h) If a party is required to perform an act or give
a notice on a date that is a Saturday, Sunday or national holiday, the date
such performance or notice is due shall be deemed to be the next business day.
(i) This Contract is to be governed and construed in accordance with the
laws of the State of New York.
(j) The terms "affiliates" and "subsidiaries" shall
be given the same meaning as used in the broadest sense in any provision of the
rules and regulations governing federal taxation and securities.
(k) Neither Seller nor Purchaser may record this
Contract or a memorandum of this Contract. Purchaser hereby waives, to the
extent permitted by law, any right to file a lis pendens or other form of
attachment against the Properties in connection with this Contract or the
transactions contemplated hereby, other than a lis pendens or other such form
of attachment that may be filed by Purchaser contemporaneously with the
commencement by Purchaser of an action for a specific performance under Section
19 hereof. To the extent any such filing is made in violation of this
Contract, Purchaser shall indemnify Seller against any damages incurred by
Seller in connection therewith. In the event Purchaser shall be unsuccessful
in an action for a specific performance, it shall immediately cause any lis
pendens or other such form of attachment to be cancelled and removed from the
public record. The provisions of this section shall survive the termination of
this Contract.
23
<PAGE> 27
(l) The parties acknowledge that this transaction
contemplates only the sale and purchase of the Premises and that Seller is not
selling a business nor do the parties intend that Purchaser be deemed a
successor of Seller with respect to any liabilities of Seller to any third
parties other than as set forth in this Contract and the Permitted Exceptions.
Accordingly, except as set forth in this Contract, Purchaser shall neither
assume nor be liable for any of the debts, liabilities, taxes or obligations
of, or claims against, Seller, or of any other person or entity, of any kind or
nature, whether existing now, on the Closing Date or at any time thereafter.
The debts, liabilities, taxes, obligations and claims for which Seller alone is
liable shall include, without limitation, all payments, benefits, and
contribution obligations with respect to past and/or present employees of
Seller or its Affiliates in connection with the business of Seller or its
Affiliates (including, but not limited to, salaries, wages, commissions,
bonuses, vacation pay, health and welfare benefits or contributions [including
any group health continuation coverage obligation under COBRA], pension and/or
profit sharing contributions, severance or termination pay, or any other form
of compensation or employee benefit).
(m) Seller shall operate the Premises in a manner sub-
stantially consistent with its past practice.
[SPACE INTENTIONALLY LEFT BLANK]
24
<PAGE> 28
IN WITNESS WHEREOF, the parties hereto have duly executed this
Contract the day and year first above written.
SELLER:
Fed ID No.: DRM THIRTY-THREE REALTY CORPORATION,an
Alabama corporation
13-3598004
By /s/ Authorized Signature
------------------------------------
Name:
Title:
PURCHASER:
Fed ID No.: RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO-GERSHENSON PROPERTIES
TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature
------------------------------------
Name:
Title:
As to Section 24:
ESCROWEE:
TENZER GREENBLATT LLP
BY /s/ Authorized Signature
--------------------------------
Name:
Title:
25
<PAGE> 29
SCHEDULE A:
DESCRIPTION OF PROPERTY
1
<PAGE> 30
SCHEDULE B:
"SUBJECT TO" PROVISIONS
1. Any laws, regulations or ordinances presently in effect or which will
be in effect on the Closing (including, but not limited to, zoning,
building and environment protection) as to the use, occupancy,
subdivision or improvement of this Property adopted or imposed by any
governmental body or the effect of any noncompliance with or any
violation thereof.
2. The Space Leases and the rights of Space Tenants thereunder
pertaining to this Property listed on Schedule C attached to and
forming part of this Contract to which this Schedule is attached as
well as any permitted renewals or extensions thereof and any
permitted new leases created after the date of this Contract as same
may be affected by rent regulations or laws now or hereafter in
effect, and rulings, decisions or interpretations by any court,
agency or administrative body.
3. Real estate taxes, vault taxes and water and sewer charges not due
and payable (it being understood that the lien of real estate taxes
payable in arrears shall be a Permitted Exception).
4. State of facts shown on Survey dated , last revised
and Survey dated prepared by and such additional
state of facts an accurate survey of the Premises may show.
5. Maintenance and Service Contracts pertaining to this Premises set
forth on Schedule D to this Contract.
6. Violations of laws, regulations, ordinances, orders or requirements,
if any, noted in or issued by any governmental or quasi- governmental
department or authority having or asserting jurisdiction over the
Premises issued subsequent to the date hereof, and any conditions
constituting such violations, although not so noted or issued.
7. Rights of utility companies to lay, maintain, install, operate and
repair pipes, lines, poles, wires, cables, conduits, cable boxes,
distribution boxes and related equipment on, over and under the
Property.
8. Additional usual and customary exclusions and exceptions from
coverage obtaining in the standard form of insuring agreement
employed by the Title Company at the standard rates of such Title
Company.
1
<PAGE> 31
SCHEDULE C
RENT ROLL
1
<PAGE> 32
SCHEDULE D
ESCROWEE'S WIRE TRANSFER INSTRUCTIONS
The Chase Manhattan Bank
4 New York Plaza
New York, New York 10004
A/C# 114-026610
Tenzer Greenblatt LLP Attorney Trust Account
ABA# 021-000021
Our Ref. C/M #18996-0102
1
<PAGE> 33
SCHEDULE E
EXISTING MORTGAGE
1
<PAGE> 34
SCHEDULE F
LIST OF TAX PROTESTS
None.
1
<PAGE> 35
EXHIBIT 1
FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE
ASSIGNMENT OF SPACE LEASE
KNOW ALL MEN that ________________________, a
___________________________ ("Assignor"), in consideration of Ten ($10.00)
Dollars and other good and valuable consideration, received from
, ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of
its right, title and interest in and to the leases, together with all security
deposits presently held by Assignor in connection therewith (collectively, the
"Leases") affecting the premises known as ________________________ more
particularly described on Schedule A annexed hereto.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions of said Leases.
AND Assignee does hereby acknowledge receipt of said Leases
(including the security deposits) so delivered, and does hereby (a) accept the
within assignment, (b) assume the performance of all the terms, covenants and
conditions of the said Leases on the part of the lessor which are to be
performed or which arise from and after the date hereof, and (c) indemnify and
hold Assignor free and harmless from and against any and all costs, expenses,
claims, losses or damages, liabilities and judgments (including reasonable
attorneys' fees and disbursements) which Assignor may suffer in respect of any
claim arising out of any default on the part of Assignee to perform said terms,
covenants and conditions or the security deposits.
Except as may be expressly set forth in that certain Contract
of Sale between Assignor and Assignee dated _________, 1997, this assignment is
made without warranty or representation by the Assignor and without recourse to
the Assignor in any manner whatsoever.
This assignment and assumption agreement shall inure to the
benefit of Assignee and Assignor and their respective successors and assigns.
This assignment and assumption agreement may not be modified, altered or
amended, or its terms waived, except by an instrument if writing signed by the
parties hereto.
None of the provisions of this instrument are intended to be,
nor shall they be construed to be, for the benefit of any third party.
1
<PAGE> 36
IN WITNESS WHEREOF, Assignor and Assignee have only executed
this agreement this day of , 1997.
I.D. No.:
--------------------------------------,
a
-------------------------------------
By:
------------------------------
I.D. No.: INC., a
--------------------------
By:
------------------------------
[SCHEDULE A - PROPERTY DESCRIPTION]
2
<PAGE> 37
EXHIBIT 2
FORM OF SPACE TENANT ESTOPPEL CERTIFICATE
Tenant Estoppel Certificate
, 1997
TO:
RE: Lease with ___________ ("Landlord") for space in the __________
Shopping Center located in ___________, __________.
Gentlemen:
The undersigned, having the power and authority to do so, hereby
certifies and affirms the following:
1. The undersigned is occupying the space demised by the
above-referenced lease and the lease is in full force and effect.
2. Neither the undersigned nor, to the best of our knowledge, the
landlord is in default under the lease.
3. The lease is unmodified or, if there have been modifications, they
are referenced as follows:
__________________________________
__________________________________
4. The yearly amount of base rent payable by Tenant is $____________;
current charges for common area maintenance, insurance and taxes are
__________________ per month. Base rent has been paid through
____________ and additional rent for common area maintenance,
insurance premiums and taxes has been paid through ______________.
5. The Landlord is currently holding a security deposit in the amount of
$_____________.
6. The term under the lease commenced on _________________, and expires
on ____________________.
1
<PAGE> 38
This certification may be relied upon by the above addresses and
their successors and assigns and any purchaser or mortgagee of the shopping
center.
TENANT:
__________________________
BY: ____________________________
Its:______________________
Dated:_________________________
2
<PAGE> 39
EXHIBIT 3
FORM OF ASSIGNMENT OF SERVICE CONTRACTS
KNOW ALL MEN that ___________________________ ("Assignor"), in
consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable
consideration, received from ______________________________ ("Assignee"), does
hereby assign, transfer and deliver onto Assignee, all of its right, title and
interest in and to those certain service contracts relating to the operation or
maintenance of the premises known as ___________________________, which service
contracts are listed in Schedule A annexed hereto (the "Contracts").
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained.
AND Assignee does hereby acknowledge receipt of the Contracts
so delivered, and does hereby (a) accept the within assignment and (b) assume
the performance of all the terms, covenants and conditions of the Contracts on
the Assignor's part to be performed thereunder from and after the date hereof.
This assignment is made without warranty or representation by
Assignor and without recourse to assignor in any manner whatsoever, express or
implied. This assignment and assumption agreement shall inure to the benefit
of Assignee and Assignor and their respective successors and assigns, and shall
be governed by the laws of the State of _____________. This assignment and
assumption agreement may not be modified, altered or amended, or its terms
waived, except by an instrument in writing signed by the parties hereto.
None of the provisions of this instrument are intended to be,
nor shall they be construed to be, for the benefit of any third party.
1
<PAGE> 40
IN WITNESS WHEREOF, Assignor and Assignee have executed this
agreement this _____ day of _______________ 1997.
ASSIGNOR:
___________________________________
By:________________________________
ASSIGNEE:
____________________________________
By:_________________________________
Name:
Title:
2
<PAGE> 41
EXHIBIT 4
FORM OF LETTER OF CREDIT
SEE ATTACHED
1
<PAGE> 42
EXHIBIT 5
FORM OF TITLE CERTIFICATION
The undersigned, hereby certifies:
THAT _________________________________________
________________________________, is the owner ("Owner") of certain premises
situated in the City/Village/Township of _______________________, County of
_________________, State of __________, described in Commitment No.
_________________________.
CHECK ONE
__________[] THAT during the period of 120 days immediately preceding the
date of this certification no improvements or alterations have been made to the
subject property by Owner and that no claims of laborers or materialmen remain
unpaid (or if unpaid will be paid in the ordinary course of business) and that
no material incorporated into the property is subject to a security interest
(other than in connection with the Existing Mortgage).
OR
[] THAT during the period of 120 days immediately preceding the
date of this certification certain work has been done and material furnished to
or by Owner in connection with _______________________________________________
(state the general nature of work) upon said premises in the approximate total
sum of $ _________ but that except as stated below all of said work and
materials have been fully paid for. That to the knowledge of the undersigned
said work was completed on ____________ and that no significant work remains to
be done and that no significant material remains to be furnished to complete
the work. Attached hereto is a list of all persons or companies which have
furnished any labor or material (having a value in excess of $50,000) from the
beginning of the construction, together with waivers in full form all of said
parties.
Work not completed or not paid for: __________________________________________.
THAT only the following parties are direct tenants of Owner under written
leases:
Owner agrees not to cause any lien or other encumbrance to be
filed against the premises on or after the date hereof.
THAT this certification is made for the purpose of inducing
Commonwealth Land Title Insurance Company to issue its title policy insuring
the above-described premises.
2
<PAGE> 43
THAT Owner hereby indemnifies and agrees to save harmless
Commonwealth Land Title Insurance Company against any loss or expense,
including attorneys' fees, sustained because any statement herein is false or
inaccurate.
Dated this ____ day of _______, 1997.
By: _______________________
Its: ______________________
Subscribed and sworn to before me this
______ day of __________, 1997.
_________________________________
Notary Public
County of ______________________
State of _______________________
My commission expires: _________
3
<PAGE> 44
***
[ACKNOWLEDGMENTS]
***
EXHIBIT A
BENEFITTED PROPERTY
***
EXHIBIT B
BURDENED PROPERTY
4
<PAGE> 1
EXHIBIT 10.13
AGREEMENT
Agreement (this "Agreement") made this 7th day of July, 1997
by and between DRM THIRTEEN REALTY CORPORATION, a Delaware corporation, DRM
THIRTY-THREE REALTY CORPORATION, an Alabama corporation, DRM THIRTY-TWO REALTY
CORPORATION, an Alabama corporation, DRM TWENTY-FIVE REALTY CORPORATION, a
Delaware corporation, DRM TWENTY-FOUR REALTY CORPORATION, a Delaware
corporation, DRM EIGHTEEN REALTY CORPORATION, a Delaware corporation, DRM FOUR
REALTY CORPORATION, a Delaware corporation, DRM TWENTY-TWO REALTY CORPORATION, a
Delaware corporation, DRM SEVENTEEN REALTY CORPORATION, a Delaware corporation,
DRM SIX REALTY CORPORATION, a Delaware corporation, DRM FOURTEEN REALTY
CORPORATION, a Delaware corporation, KINGSPORT ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership, all having an address c/o DRA Advisors, Inc., 1180
Avenue of the Americas, New York, New York 10036 (individually and collectively,
"Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership
having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan
48034 ("Purchaser").
W I T N E S S E T H :
WHEREAS, each Seller has entered into one or more contracts of
sale (each a "Contract" and collectively the "Contracts") each dated July 7,
1997 with Purchaser with respect to each Property referred to in the Contracts
(collectively, the "Properties"); and
WHEREAS, Seller and Purchaser desire to supplement the terms
and provisions of the Contracts as herein provided.
NOW THEREFORE, the parties agree as follows:
1. Except as otherwise defined, all capitalized terms used
herein shall have the same meanings ascribed to them in the Contracts.
2. In addition to any rights of Seller under the Contracts to
adjourn the Closing, Seller shall have the right to adjourn the Closing under
one or more of the Contracts to such date as would allow the Closing under all
of the Contracts to occur simultaneously. The preceding sentence
notwithstanding, if Seller adjourns the Closing under (a) the Contract relating
to Highland Square, Crossville, Tennessee ("Crossville") pursuant to Section
4(c)(ii) thereof to satisfy the Existing Mortgage thereunder or (b) any Contract
pursuant to Sections 6(d)(iii) or 12(c) for more than sixty (60) days, Seller
shall not be entitled, solely by reason thereof, to adjourn the Closing under
the other Contracts.
3. A default under any Contract or under this Agreement shall
be deemed a default under all of the Contracts.
<PAGE> 2
4. (a) Except as provided in subparagraph (b) below, upon
election by Purchaser or Seller to cancel or terminate a Contract for any reason
whatsoever (including, but not limited to, pursuant to Sections 18, 19, 25, 26
or 28 thereunder) Seller may elect, for any or no reason whatsoever, to cancel
all of the Contracts. Seller shall make such election by notice to Purchaser
within fifteen (15) business days after (i) receipt of Purchaser's notice of
canecellation or termination or (ii) giving Seller's notice of cancellation or
termination. If Seller elects to cancel all of the Contracts, Seller shall
reimburse Purchaser for its actual out-of-pocket expenses incurred in procuring
environmental and engineering reports for each Property, not to exceed $6,500.00
per Property, provided that Purchaser delivers to Seller true and complete
copies of the reports for which reimbursement is being requested together with a
certification from each of the consultants or contractors who prepared the
report stating that Seller may rely on the contents of the reports. Seller shall
have no reimbursement obligation if any Contract is cancelled pursuant to
Section 28 thereof or by reason of a default of Purchaser.
(b) Notwithstanding the provisions of subparagraph
(a) above, Seller shall not have the right to elect that Purchaser be deemed to
cancel all of the Contracts if Purchaser elects after the expiration of
Purchaser's Due Diligence Period to cancel a Contract solely by reason of the
provisions of Section 6(d)(ii) or Section 12 thereof.
5. Except with respect to the Existing Mortgage affecting
Crossville, Purchaser may elect, by notice given to Seller on or before August
1, 1997, that Seller discharge any Existing Mortgage which was otherwise
contemplated by a Contract to continue to encumber a Property. Such election by
Purchaser shall be irrevocable.
6. Notwithstanding the provisions of Sections 8, 18 and 25 of
the Contracts each reference to the sum of (a) $100,000 in Section 8, (b) the
Maximum Title Expense in Section 18 and (c) the Maximum Representation Expense
in Section 25, shall be deemed to be a reference to an aggregate amount with
respect to all of the Contracts and all of the Properties. For example, if the
sum of money required to remove a Non-Permitted Title Objection under Section
18(c) of a Contract exceeds the Maximum Title Expense (viz. $250,000) Seller
shall have no obligation to remove any Non-Permitted Title Objection pursuant to
Section 18(c) of any other Contract.
7. Any assignment permitted under Section 21 of the Contract
shall be conditioned upon (a) the simultaneous assignment of all Contracts and
this Agreement to the same Assignee and (b) the assumption by said Assignee of
all obligations of Purchaser under the Contracts and this Agreement. Except as
permitted pursuant to Section 21 of the Contract, this Agreement may not be
assigned by Purchaser without the prior written consent of Seller.
8. The Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement the day and year first above written.
SELLER:
2
<PAGE> 3
Fed ID No.: DRM THIRTEEN REALTY CORPORATION, a Delaware
corporation
62-1405098
By /s/ Authorized Signature
----------------------------
Name:
Title:
Fed ID No.: DRM THIRTY-THREE REALTY CORPORATION, an
Alabama corporation
13-3598004
By /s/ Authorized Signature
----------------------------
Name:
Title:
Fed ID No.: DRM THIRTY-TWO REALTY CORPORATION, an
Alabama corporation
13-3598002
By /s/ Authorized Signature
----------------------------
Name:
Title:
Fed ID No.: DRM TWENTY-FIVE REALTY CORPORATION, a
Delaware corporation
62-1412732
By /s/ Authorized Signature
----------------------------
Name:
Title:
Fed ID No.: DRM TWENTY-FOUR REALTY CORPORATION, a
Delaware corporation
13-3554624
By /s/ Authorized Signature
----------------------------
Name:
Title:
3
<PAGE> 4
Fed ID No.: DRM EIGHTEEN REALTY CORPORATION, a Delaware
corporation
57-0896362
By /s/ Authorized Signature
-----------------------------
Name:
Title:
Fed ID No.: DRM FOUR REALTY CORPORATION, a Delaware
corporation
62-1373896
By /s/ Authorized Signature
-----------------------------
Name:
Title:
Fed ID No.: DRM TWENTY-TWO REALTY CORPORATION, a
Delaware corporation
62-1412736
By /s/ Authorized Signature
-----------------------------
Name:
Title:
Fed ID No.: DRM SEVENTEEN REALTY CORPORATION, a
Delaware corporation
57-0902535
By /s/ Authorized Signature
-----------------------------
Name:
Title:
Fed ID No.: DRM SIX REALTY CORPORATION, a Delaware
corporation
58-1818283
By /s/ Authorized Signature
-----------------------------
Name:
Title:
Fed ID No.: DRM FOURTEEN REALTY CORPORATION, a Delaware
corporation
58-1857903
By /s/ Authorized Signature
-----------------------------
Name:
Title:
4
<PAGE> 5
Fed ID No.: KINGSPORT ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
13-3765439
By: DRM THIRTY-FOUR REALTY CORPORATION,
a Delaware Corporation
By /s/ Authorized Signature
--------------------------------
Name:
Title:
PURCHASER:
Fed ID No.: RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO-GERSHENSON PROPERTIES TRUST,
a Massachusetts Business Trust
By /s/ Authorized Signature
--------------------------------
Name:
Title:
ESCROWEE:
TENZER GREENBLATT LLP
BY /s/ Authorized Signature
--------------------------------
Name:
Title:
5
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM (A) THE
CONSOLIDATED BALANCE SHEETS, STATEMENTS OF OPERATIONS, STATEMENT OF SHAREHOLDERS
EQUITY, STATEMENTS OF CASH FLOWS AND NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH (B) FORM 10-Q FOR THE
QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 2,407
<SECURITIES> 0
<RECEIVABLES> 5,190
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 335,902
<DEPRECIATION> 12,508
<TOTAL-ASSETS> 342,870
<CURRENT-LIABILITIES> 14,538
<BONDS> 168,045
0
0
<COMMON> 0
<OTHER-SE> 117,771
<TOTAL-LIABILITY-AND-EQUITY> 342,870
<SALES> 0
<TOTAL-REVENUES> 42,211
<CGS> 0
<TOTAL-COSTS> 13,004
<OTHER-EXPENSES> 9,997
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 9,588
<INCOME-PRETAX> 9,622
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,882
<EPS-PRIMARY> .97
<EPS-DILUTED> .97
</TABLE>
