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EXHIBIT 10.47
FIRST AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDED AND RESTATED LOAN AGREEMENT (this "Agreement") is
entered into as of August 13, 1999, by and between MMR HOLDINGS, L.L.C., a North
Carolina limited liability company ("MMR Holdings"), whose address is c/o
Capital Automotive L.P., 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, XxXxxx, Xxxxxxxx
00000, MMR TENNESSEE, L.L.C., a North Carolina limited liability company ("MMR
Tennessee"), whose address is c/o Capital Automotive L.P., 0000 Xxxxxx Xxxx
Xxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000, MMR VIKING INVESTMENT ASSOCIATES, L.P.,
a Texas limited partnership ("Viking"), whose address is c/o Capital Automotive
L.P., 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000 (collectively,
MMR Tennessee and Viking are referred to as "Guarantors"; collectively, MMR
Holdings and Guarantors are referred to as "Borrower"), and FORD MOTOR CREDIT
COMPANY, a Delaware corporation ("Lender"), whose address is 0000 Xxxxxxxxx
Xxxx, Xxxxxxxx 000, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Lender's Address").
RECITALS
A. On November 19, 1998, Lender made a credit line/mortgage loan to
MMR Holdings in an amount of up to $150,000,000.00 (the "Original Loan")
pursuant to that certain Loan Agreement dated November 19, 1998, between
Borrower, O. Xxxxxx Xxxxx ("Released Guarantor") and Lender (the "Original Loan
Agreement") to finance the acquisition of certain real property consisting of
various parcels of land (the "Land"), located in various cities and states, as
more particularly described in Schedule A attached hereto.
B. The Original Loan is evidenced by that certain Promissory Note
(the "Original Note") dated November 19, 1998, from MMR Holdings to the order of
Lender in the original principal amount of $150,000,000.00.
C. The Original Loan is guaranteed by Guarantor and Released
Guarantor, pursuant to guaranties dated November 19, 1998 (collectively, the
"Original Guaranties" and individually, an "Original Guaranty").
D. The Original Loan is secured by various deeds of trust and
mortgages (the "Original Deeds of Trust") from Borrower secured by the Property
(as defined herein).
E. The ownership interests in MMR Holdings have been transferred to
CAR MMR L.L.C., a Delaware limited liability company ("CAR MMR").
F. The ownership interests in MMR Tennessee owned by Released
Guarantor are being transferred to CAR MMR.
G. The ownership interests in Viking owned by Released Guarantor are
being transferred to CAR MMR.
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H. Borrower has requested and Lender has agreed to consent to such
transfer, provided the following documents are executed and the Original Loan is
amended in accordance with the terms of this Agreement (the "Loan"):
1. The First Amended and Restated Promissory Note (the
"Amended Note").
2. The First Amendments to Deeds of Trust (Mortgages) for each
of the Original Deeds of Trust (collectively, the "Amendments") for the
Properties identified on Schedule A.
3. The Deeds of Trust for the Properties to be mortgaged as of
the date hereof, identified on Schedule A.
4. The Assignment of Leases, Rents and Profits for each
Property.
5. The Subordination of Lease, Non-Disturbance and Attornment
Agreement and Acknowledgment of Assignment of Rents and Leases and Release of
Prior Subordination of Lease, Non-Disturbance and Attornment Agreement and
Acknowledgement of Assignment of Rents and Leases for each Property (except for
Property 11, Property 17, Property 23 and Property 49).
6. The Release of Subordination Agreement, releasing the
Subordination Agreement dated December 29, 1998, between Lender and Released
Guarantor.
7. The Guaranties from Guarantor.
8. Unsecured Indemnity Agreement from Borrower.
9. Such others documents requested by Lender which are
necessary to evidence or secure the Loan.
I. Borrower has requested and Lender has agreed to release Released
Guarantor from his obligations under the Original Guaranty.
J. Borrower has requested and Lender has agreed to release the
Pledged Stock (as defined in the Original Loan Agreement).
K. Borrower has requested and Lender has agreed to the payment in
full of the Subordinated Promissory Note from Borrower to Released Guarantor
dated December 29, 1998, in the original principal amount of $40,000,000.00.
L. Borrower has requested and Lender has agreed to release the
Pledged Ownership Interests (as defined in the Original Loan Agreement).
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AGREEMENT
Borrower and Lender agree as follows:
A. Incorporation by Reference and Defined Terms. The parties hereby
incorporate the foregoing recitals (and the defined terms contained therein) in
this Agreement as though fully set forth herein, agreeing that such recitals are
material, true and correct.
B. Release of Released Guarantor. Lender hereby releases Released
Guarantor from his obligations under his Original Guaranty, pursuant to the
Release of Guaranty dated as of even date herewith.
C. Release of Pledged Stock. Lender hereby releases the Pledged
Stock, pursuant to the Release of Pledged Stock dated as of even date herewith.
D. Release of Pledged Ownership Interests. Lender hereby releases the
Pledged Ownership Interests, pursuant to the Release of Pledged Ownership
Interests dated as of even date herewith.
E. Principal Balance. Borrower and Lender hereby acknowledge that the
aggregate Principal Balance as of the date hereof under the Original Note is
$127,895,960.
F. Amendment to Original Note. The Original Note is hereby amended in
accordance with the Amended Note.
G. Amendment to Deeds of Trust. The Deeds of Trust are hereby amended
in accordance with the Amendments from Borrower and Lender dated as of even date
herewith.
H. Amendment to Original Loan Agreement. Borrower and Lender hereby
agree that the Original Loan Agreement is hereby amended and restated in its
entirety as follows:
1. Definitions. Any terms not otherwise specifically defined herein
shall have the meaning assigned to such terms in the Loan Documents. As used
herein, the following terms shall have the following meanings:
(a) Additional Properties. Any additional parcel of land and
the improvements located thereon, which Borrower proposes to mortgage to Lender
after the date hereof, as substitute or additional security for the Loan.
(b) Advance. Any advance of the proceeds of the Loan by Lender
to Borrower or on behalf of Borrower.
(c) Advance Termination Date. The last date on which Advances
may be made to Borrower under the Loan, which shall be September 30, 1999.
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(d) Allocated Loan Value. The values designated for each
Property on Schedule A attached hereto and as such Schedule A is amended, from
time to time.
(e) Closing Date. The date for the closing of the Loan which
shall be mutually satisfactory to Borrower and Lender but in no event later than
September 30, 1999.
(f) Deeds of Trust. Collectively, or any one or each, of the
(Purchase Money) Deeds of Trust (Deed to Secure Debt) and Assignment of Leases
and Rents and Security Agreement (and Financing Statement and Fixture Filing)
and the (Open End) Mortgages and Assignment of Leases and Rents and Security
Agreement (and Financing Statement and Fixture Filing), executed in multiple
counterparts from any one or more Borrower, as grantor, or mortgagor, as the
case may be, to the trustees named therein, in trust for Lender, as beneficiary,
or to Lender, as mortgagee, as the case may be, dated November 19, 1998, January
13, 1999, March 4, 1999, March 31, 1999, April 23, 1999, May 25, 1999, June 30,
1999, August 3, 1999, and as of even date herewith and hereafter (if
applicable), as amended by the Amendments which will constitute a first priority
lien on the Properties, subject only to the Permitted Encumbrances. The term
"Deeds of Trust" shall include other deeds of trust and mortgages from any one
or more Borrower, as grantor or mortgagor, as the case may be, to the trustee
named therein in trust for Lender, as beneficiary, or to Lender as mortgagee, as
the case may be, hereafter granted in connection with the Loan.
(g) Guaranty. The guaranty, or collectively the guaranties,
dated as of even date herewith, executed by Guarantor guaranteeing the
obligations of MMR Holdings under this Agreement, the Deeds of Trust, the Note
and the other Loan Documents.
(h) Improvements. Any and all improvements to the Land,
consisting of full sales and service automobile dealership facilities and
related improvements thereto, and the improvements for: (i) Abra Auto Body and
Glass facility located on Property 23, and (ii) HMC Financial Company located on
Property 24 A, all as described in Schedule A attached hereto, explicitly
excluding therefrom any of the right, title and interest in and to the same of
any and all Tenants (as defined in the Deeds of Trust).
(i) Leases. Any and all leases, subleases, licenses,
concessions or grants of other possessory interests now or hereafter in force,
oral or written, and all amendments thereto, covering or affecting the Property,
or any part thereof, together with all rights, powers, privileges, options and
other benefits of Borrower thereunder.
(j) Liabilities. The principal of and interest on and all other
amounts, payments, premiums, advances and other indebtedness of Borrower to
Lender and any and all of the covenants, promises and other obligations of
Borrower to Lender under the Loan Documents, including any amendments,
modifications, renewals and extensions of any of the Loan Documents.
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(k) Licenses. All certificates, permits, licenses and other
approvals, governmental or otherwise, necessary for the conduct of Borrower's
business at the Property, including, without limitation, the operation of the
Property pursuant to the Leases.
(l) Loan Documents. This Agreement, the Note, the Deeds of
Trust, the Unsecured Indemnity Agreement dated as of even date herewith from
Borrower to Lender, the Guaranty and any and all promissory notes, loan
agreements, guaranties, assignments, and other instruments from Borrower to
Lender evidencing the Loan and creating or securing the Liabilities, including
any amendments, modifications, renewals, increases and extensions thereof. Any
one of the foregoing documents may be referred to herein as a "Loan Document".
(m) Maturity Date. September 29, 2011.
(n) Non-Compliant Properties. Any Property(ies): (i) at which a
violation or asserted violation of any Restrictions, Licenses or Environmental
Laws materially adversely affects the ability of the Tenant of such Property to
conduct business in accordance with its Lease in the manner contemplated by this
Agreement and the other Loan Documents; or (ii) with respect to which the entry
into or the performance of this Agreement, the Loan Documents or any other
instrument executed by Borrower pursuant hereto or thereto will constitute a
violation of any statute, rule or regulation applicable to any Borrower or such
Property.
(o) Note. The Original Note, made by MMR Holdings to the order
of Lender, in the principal amount of $150,000,000.00, dated November 19, 1998,
as amended and restated by the Amended Note dated as of even date herewith,
together with all extensions, renewals, modifications and amendments thereof,
secured, in part, by the Deeds of Trust.
(p) Permitted Encumbrances. The encumbrances described, with
particularity, in Schedule B of the Deeds of Trust.
(q) Property(ies). The Land and the Improvements.
(r) Restrictions. All conditions, restrictions, reservations
(whether or not of record), statutes, regulations and ordinances affecting the
Property, including, without limitation, all pollution control, environmental
protection, zoning and land use regulations, building codes and all restrictions
and requirements imposed by the jurisdictions where the Property is located and
all other governmental entities with respect to the Property and the
contemplated uses of the Property.
2. The Loan. (a) Lender hereby agrees to make, and Borrower hereby
agrees to accept, the Loan under the terms and conditions set forth in this
Agreement and the other Loan Documents. The proceeds of the Loan are to be used
for the acquisition of the ownership interests of Borrower by CAR MMR and the
financing of the Property.
(b) The Loan shall be evidenced by the Note, and payment of the
Loan will be secured by the Loan Documents. Reference is hereby made to the Note
and the Loan
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Documents for particulars relating to the Loan, which provisions are
incorporated herein by this reference.
(c) All payments of principal and interest on the Loan shall be
made without the right of set-off and without deduction of any present and
future taxes, levies, duties, imposts, deductions, charges or withholdings
imposed by any existing or future law, rule, regulation, treaty, directive or
requirement whether or not having the force of law, which amounts shall be paid
by Borrower. Borrower will pay the amounts necessary such that the gross amount
of the principal and interest received by Lender is not less than that required
by this Agreement and the Loan Documents. All stamp and documentary taxes shall
be paid by Borrower. If, notwithstanding the foregoing, Lender pays such taxes
(which Lender shall not do unless and until Borrower fails to do the same within
thirty (30) days after written notice from Lender), Borrower will reimburse
Lender for the amount paid, within five (5) days of Lender's demand for payment.
Upon Lender's written request from time to time, Borrower will furnish Lender
official tax receipts or other evidence of payment of all such amounts.
(d) Upon compliance by Borrower with all of the terms and
conditions of this Agreement, and so long as no Event of Default, or event which
with notice or lapse of time or both, would become an Event of Default, shall
have occurred and be continuing, Lender will make one or more Advances of the
Loan from time to time, up to and including the Advance Termination Date, upon
satisfaction of the conditions set forth in Section 4. In the event the Loan is
not fully funded on the Advance Termination Date, an Advance may be made, at
Borrower's request, equal to the undisbursed funds (the "Escrowed Funds"), to
Chicago Title Insurance Corporation, to be held in escrow, upon terms and
conditions satisfactory to Lender. The Escrowed Funds shall be disbursed upon
such time or times Borrower has satisfied the conditions required to add an
Additional Property(ies), as provided in Section 4 herein. If the Escrowed Funds
are not fully disbursed by June 30, 2000, then the Escrowed Funds shall be
applied to the principal balance of the Note, and shall be subject to the
payment of the Prepayment Consideration (as defined in the Note). If Borrower
elects not to advance the undisbursed funds on the Advance Termination Date,
Borrower shall immediately pay the Breakage Costs (as defined in Section 9(s)
herein) to Lender.
3. Representations and Warranties of Borrower. As of the date first
above written, Borrower hereby represents and warrants to Lender as follows:
(a) Organization; Existence. Borrower is validly existing under
the laws of its state of organization.
(b) Authority. Borrower has the power and authority to execute
and deliver this Agreement, the Loan Documents and all other documents and
instruments required hereunder to be executed by Borrower and to comply with the
terms hereof and thereof. All of such documents have been duly authorized,
executed and delivered by Borrower and constitute the legal, valid and binding
obligations of Borrower, enforceable in accordance with their respective terms,
except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of creditors'
rights generally,
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and (ii) general equitable principals (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) Title. On or before the Closing Date, each Borrower, as the
case may be, has, or will have, good and marketable (or, in the case of
Properties located in the State of Texas, indefeasible) title to the Properties,
subject only to the Permitted Encumbrances.
(d) Restrictions. Borrower is familiar with the "Restrictions",
and has obtained (to the best of Borrower's knowledge), or will be able to
obtain, or will cause the Tenants to obtain, all permits, approvals, consents
and other authorizations necessary under the Restrictions to enable business to
be conducted on the Property in accordance with the Leases and in the manner
contemplated by this Agreement and the other Loan Documents. As of the date
hereof, to the best of Borrower's knowledge, and except at Non-Compliant
Properties, there is no violation or asserted violation of any Restrictions or
the existing or contemplated use thereof. Borrower is not aware of any action or
proceeding pending or threatened before any court or governmental agency with
respect to the validity of any Restrictions or any permit, approval, consent or
other authorization necessary under or in connection therewith.
(e) Financial Statements. All financial statements delivered to
Lender by or on behalf of CAR MMR concerning Borrower fairly and accurately
present their financial condition and have been prepared in accordance with
generally accepted accounting principles, and there are no contingent
liabilities not disclosed thereby which would materially adversely affect the
financial condition of Borrower. No event has occurred, including, without
limitation, any litigation or administrative proceedings, and no condition
exists or, to the knowledge of Borrower, is threatened, which (i) might render
Borrower unable to perform its obligations hereunder or under the Loan Documents
or any other document contemplated herein or therein, (ii) constitutes or, after
notice or lapse of time or both, would constitute an Event of Default, or (iii)
might materially adversely affect the validity or priority of the lien of the
Deeds of Trust or the financial condition of Borrower.
(f) No Violation. To the best of Borrower's knowledge, Borrower
is not in violation of any agreement (which, together with all violated
agreements does not exceed in the aggregate $200,000) or instrument to which it
is a party or to which any of its property is subject or of any judgment,
decree, order, franchise or permit applicable to Borrower, nor has Borrower
received any written notice that it is in violation of any statute, rule or
regulation applicable to its Property. Neither the entry into nor the
performance of this Agreement, the Loan Documents or any other instrument
executed by Borrower pursuant hereto or thereto will: (i) result in any
violation of, or be in conflict with, or result in the creation of, any
mortgage, deed of trust, lien or encumbrance (other than those contemplated in
this Agreement) upon any of the properties or assets of Borrower pursuant to, or
constitute a default under, any mortgage, deed of trust, indenture, contract,
agreement, or instrument to which Borrower is a party or to which any of its
property is subject, or (ii) constitute a violation of any permit, judgment,
decree or order applicable to Borrower, or (iii) constitute a violation of the
articles of incorporation, articles of organization, limited partnership
certificate, bylaws, operating agreement, partnership
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agreement, trust agreement or any other corporate governance document
applicable to any Borrower or its operations; or (iv) to the best of Borrower's
knowledge, and except with respect to Non-Compliant Properties and the
Borrowers owning such Properties, constitute a violation of any statute, rule
or regulation applicable to any Borrower or any Property.
(g) Condemnation. No taking of the Properties or any part
thereof through eminent domain, conveyance in lieu thereof, condemnation or
similar proceeding is pending or, to the knowledge of Borrower, threatened by
any governmental agency, except as shown on Schedule C attached hereto.
(h) Actions. There is no action, proceeding or investigation
pending or threatened (or any basis therefor) which questions, directly or
indirectly, the validity of the Agreement, the Loan Documents or any other
document pertaining to the Loan or any action taken or to be taken pursuant
hereto or thereto, or which affects Borrower or to the best of Borrower's
knowledge, the Property, or which could result in forfeiture of the Property.
(i) Legality. Borrower is engaged in no illegal activities and
the intended use of the proceeds of the Loan is for legally permitted uses.
(j) Brokers. Borrower and Lender have not dealt with any
person, firm or corporation who is or may be entitled to any finder's fee,
brokerage commission, loan commission or other sum in connection with the Loan.
Borrower and Lender hereby agree to indemnify and defend each other and hold
each other harmless against any and all loss, liability, cost or expense,
including reasonable attorneys' fees, which the other may suffer or sustain
should such warranty or representation prove inaccurate in whole or in part.
(k) Statements. Neither this Agreement, the Loan Documents nor
any document, certificate or statement furnished to Lender by or on behalf of
CAR MMR concerning Borrower, its agents or employees, in connection with the
Loan, Borrower or the Property, whether or not referred to herein, contains any
material misrepresentation or omits to state a material fact.
(l) Hazardous Materials. Except as disclosed in the
Environmental Audit Reports (as hereinafter defined), no release (a "Release")
of any Hazardous Materials has occurred which has not been remediated in
compliance with applicable law, on the Land, and Borrower has not received any
notice from any governmental agency or from any Tenant under a Lease or from any
other party with respect to any such Release. Except as disclosed in the
Environmental Audit Reports, and except for Non-Compliant Properties, each
Property complies with all laws, rules, regulations and orders relating to
industrial hygiene and/or environmental conditions, including soil and ground
water conditions, and all laws, rules, regulations and orders relating to the
use, generation and storage of Hazardous Materials on, under or about the
Property ("Environmental Laws"). Except as disclosed in the Environmental Audit
Reports, to the knowledge of Borrower, no Hazardous Materials are manufactured
or disposed on the Property, except in accordance with applicable law.
(m) Existing Leases and Contracts. Other than the leases listed
in Schedule A attached hereto, there are no leases, or, to the knowledge of
Borrower, subleases affecting
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the Property. To the best of Borrower's knowledge, there are no contracts or
agreements to which Borrower is a party, affecting the use, operation or
maintenance of the Property other than (i) the management agreement(s) between
Borrower and Capital Automotive L.P., (ii) documents of record, (iii)
agreements to which Lender is a party, and those expressly referred to in this
Agreement.
(n) Non-Foreign Entity; Tax Identification Number. Section 1445
of the Internal Revenue Code of 1986, as amended (the "Code"), provides that a
transferee of a real property interest in the United States must withhold tax if
the transferor is a foreign person. To inform Lender that the withholding of tax
will not be required in the event of a disposition of the Property pursuant to
the terms of this Agreement and the Deeds of Trust, Borrower hereby certifies
that it is not a foreign person, foreign corporation, foreign partnership,
foreign trust or foreign estate (as such terms are defined in the Code and the
regulations promulgated thereunder) and that its principal place of business is
at the address set forth for notices to Borrower in the Deeds of Trust. The tax
identification number of each Borrower is listed in Schedule A attached hereto.
It is agreed that Lender may disclose the contents of this certification to the
Internal Revenue Service.
(o) Insurance. All insurance coverages required to be obtained
and maintained pursuant to the Leases have been obtained and are in full force
and effect, and such insurance satisfies the requirements as set forth in
Section 4 (h) hereof.
(p) Licenses. Borrower has obtained (to the best of Borrower's
knowledge), or will be able to obtain, or will cause the Tenants to obtain, all
Licenses necessary to enable business to be conducted on the Property in
accordance with the Leases and in the manner contemplated by this Agreement and
the other Loan Documents. As of the date hereof, to the best of Borrower's
knowledge, and except with respect to the Non-Compliant Properties, all Licenses
are in full force and effect and there is no violation or asserted violation of
any License.
(q) Allocated Loan Value of Non-Compliant Properties. The
aggregate Allocated Loan Value of all Non-Compliant Properties is less than
$15,000,000.00.
4. Conditions Precedent to Amending the Loan and Advancing Funds
under the Loan. Lender's obligation to amend the Loan and to advance funds under
the Loan, is subject to each of the following conditions being satisfied prior
to the Closing Date (or in the case of Additional Properties to be added or
substituted, to be satisfied as of the date such Additional Properties are added
or substituted):
(a) Amount of the Loan. The amount of the Loan (and the sums
advanced thereunder) shall be the lesser of $150,000,000.00 or the lesser of
72.42% of the Historical Cost or 89% of the Adjusted Value of the Properties.
The "Historical Cost" shall mean the most recent purchase price for a Property
in an unrelated arms-length transaction, as evidenced by documentation
satisfactory to Lender. The "Adjusted Value" shall mean the value of the
Properties, in instances where Lender has received M.A.I. appraisals (addressed
to Lender or
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subject to a reliance letter from the appraiser), dated within one year of
submission of such appraisal(s) to Lender, and adjusted by Lender, in its sole
discretion, together with the value of the remaining Properties (in instances
where Lender has not received M.A.I. appraisals, as described above), equal to
85% of the purchase price of such Properties, when such Properties were
purchased by Borrower (as designated on Schedule A). The amount advanced under
the Loan shall be determined in accordance with the provisions set forth in the
Loan Documents and described herein.
(b) Loan Documents. Borrower shall have executed and delivered
to Lender this Agreement, the Amended Note, the Amendments, the Deeds of Trust
(for Properties to be mortgaged on the Closing Date, or thereafter, as the case
may be), in form and substance satisfactory to Lender and all other Loan
Documents required by Lender.
(c) Environmental Audit Report. Borrower shall have delivered
to Lender and Lender shall have approved a written report prepared by a
consultant or other person acceptable to Lender relating to the presence of
Hazardous Materials in, on or around the Property (the "Environmental Audit
Report"), and confirming that all Hazardous Materials described in such report
have been mitigated in accordance with the requirements of any applicable
government agency.
(d) Entity Documents. Borrower shall have delivered to Lender
and Lender shall have approved:
(i) Entity Documentation. Certified copies of Borrower's
amended and restated operational and organizational documents recorded in the
official records of the counties, if required, where the Property is located and
the Secretary of State (or equivalent authority) of organization and operation,
together with certified copies of any amendments thereto.
(ii) Authority. Copies of all necessary actions taken by
Borrower to authorize the execution, delivery and performance by Borrower of
this Agreement, the Note, the Amendments and all other Loan Documents.
(e) Recordation and Title Policy. (i) In connection with the
amendment to the Loan and the advancing of funds under the Loan on the Closing
Date, all Amendments (and in the cases where Lender is mortgaging a Property on
the Closing Date, the Deeds of Trust for such Properties) on the Property shall
have been duly executed and Lender shall have received the endorsements (and in
the cases where Lender is mortgaging a Property on the Closing Date, Lender
shall receive a title policy(ies) which comply with Section (ii) below) to its
title policies (or if such endorsements are unavailable, title policies),
insuring, as of the effective date of such endorsements (or title policies, as
the case may be) that fee simple title to the Property is vested in Borrower and
that the lien of the Deeds of Trust, as amended, are valid first priority liens
on the Property, subject only to the Permitted Encumbrances acceptable to Lender
in its sole discretion, and increasing the amount of coverage to the amount of
the Loan, with allocated value for each Property (based on 100% of the lesser of
the Historical Cost or
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Adjusted Value for aggregated policies and 125% of the lesser of the Historical
Cost or Adjusted Value for non-aggregated policies), as determined by Lender in
its sole discretion, and such additional endorsements as may be reasonably
required by Lender.
(ii) In connection with the substitution or addition of
Additional Property in accordance with Section 5 herein (and in the cases where
Lender is mortgaging a Property on the Closing Date), all Deeds of Trust on the
Property shall have been duly executed by Borrower and Lender shall have
received the title policy or policies, or a marked commitment(s) in form and
substance acceptable to Lender evidencing the title Company's irrevocable
commitment to issue the insurance therein described, which must have a liability
in the amount of the Loan, with allocated loan value for each Property (based on
100% of the lesser of the Historical Cost or Adjusted Value for aggregated
policies and 125% of the lesser of the Historical Cost or Adjusted Value for
non-aggregated policies), as determined by Lender in its sole discretion,
insuring, as of the effective date of such title policy, that fee simple title
to the Property is vested in Borrower, and that the lien of such Deeds of Trust
are a valid first priority lien on the Property, subject only to the Permitted
Encumbrances acceptable to Lender in its sole discretion, and containing the
following endorsements, to the extent available by law in a given jurisdiction
(the "Endorsements"):
(A) Comprehensive Endorsement (form ALTA 9 or equivalent);
(B) ALTA form 3.1 Zoning Endorsement (or equivalent) (or
opinion of counsel or other evidence acceptable to Lender
in its sole discretion, in lieu thereof);
(C) Truth in Lending Endorsement;
(D) Usury Endorsement;
(E) Tie-in Endorsement;
(F) Survey Endorsement;
(G) Last Dollar Endorsement;
(H) Aggregation Endorsement;
(I) Tax Parcel Endorsement;
(J) Contiguity Endorsement;
(K) Endorsement eliminating the Creditor's Rights Exception;
(L) Access;
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(M) Endorsement providing affirmative coverage over the Leases;
and
(N) Such additional endorsements as may be reasonably required
by Lender based upon its review of the title policy and survey (the "Title
Policy").
(f) UCC Filings. Lender shall have received and approved a
search of the records of the filing office in the state and county where each
Property is located and in the state where each Borrower is organized showing
all financing statements and fixture filings.
(g) Compliance With Loan Documents. All of the representations
and warranties of Borrower in Section 3 hereof shall be true and correct, and
Borrower shall be in compliance with all applicable covenants set forth in
Section 6 hereof, and Lender shall have received such documents and opinions as
it may request regarding the substance thereof. All documents and materials
required by Lender shall be satisfactory in form and substance to Lender.
(h) Insurance. Borrower shall have delivered to Lender, and
Lender shall have approved, insurance binders, policies or certificates
evidencing the obtaining and premium payment of all policies of insurance
required by the Deeds of Trust, and as follows:
(i) During the term of the Loan, the Improvements shall
be insured against physical damage under policies issued by companies
satisfactory to Lender containing endorsements naming Lender as mortgagee and
additional insured under a standard mortgagee clause acceptable to Lender and
insuring the replacement cost of the Improvements. Such policies shall be in
amounts not less than full replacement cost of the Improvements, full
replacement cost being the cost of replacing the Improvements exclusive of the
cost of excavation, foundations and footings below the lowest basement floor,
less physical depreciation of the Improvements, and subject to a maximum
deductible of $25,000 per occurrence.
(ii) Borrower shall obtain, or shall cause the Tenants to
obtain, liability coverage satisfactory to Lender, including public liability
coverage for the project in minimum amounts of $3,000,000.00.
(iii) If the Improvements are located in a flood-prone
area as designated by HUD, Borrower shall obtain and maintain, or shall cause
the Tenants to obtain and maintain, flood insurance in an amount equal to the
lesser of the principal amount of the Loan or the maximum limit of coverage
available for the Property under the National Flood Insurance Program.
(i) Financial Condition. Lender shall have given final approval
of the financial condition of Borrower.
(j) Commitment Fee. The commitment fee (the "Commitment Fee")
in the amount of $750,000.00 shall be paid by Borrower.
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(k) Survey. Lender shall have received with respect to each
Additional Property (or a Property to be mortgaged on the Closing Date), an
ALTA (or equivalent) survey of the Land and Improvements prepared by a licensed
surveyor or civil engineer reasonably satisfactory to Lender and the Title
Company in conformance with the requirements set forth in the then-applicable
ALTA/ACSM (or equivalent) Minimum Standard Requirements, including Items 1-4,
6-11 and 13 of Table A, and including, but not limited to, whether the Property
is located in an area identified as a flood plain area as defined by the U.S.
Department of Housing and Urban Development pursuant to the Flood Disaster
Protection Act of 1973.
(l) Evidence of Compliance. Evidence of compliance with the
Restrictions, including, without limitation, evidence that (1) each parcel of
the Land is a legal and separate lot under any applicable subdivision acts and
for tax assessment purposes, and (2) Borrower has complied with all building and
zoning Restrictions.
(m) Leases. Borrower shall have delivered to Lender, and Lender
shall have approved copies of all Leases, as amended, of the Property (except
for Property 11, Property 17, Property 23 and Property 49), which Leases shall
be subordinated to the Lender's mortgage or deed of trust pursuant to
Subordination and Non-Disturbance Agreements satisfactory to Lender. Lender's
approval of the Leases and the Tenants under such Leases shall be in Lender's
sole and absolute discretion. For all Additional Properties and Properties to be
mortgaged on the Closing Date, Borrower shall deliver to Lender the following
documents for each Property, and with respect to each Tenant, to assist Lender
in its review of the Leases and Tenants:
(i) Certified statement from Borrower, setting forth the
purchase price of each Property, which shall be subject to verification by
Lender of Borrower's purchase agreements and all due diligence performed by
Borrower pursuant thereto;
(ii) Copies of Tenant's financial statements provided to
the Borrower, prepared as of (i) the end of the month or quarter, as the case
may be, immediately preceding the execution of the purchase agreement (the
"Purchase Agreement") by and between Borrower or its affiliate, as purchaser and
Tenant or its affiliate as seller, for the acquisition of the Property, and (ii)
the end of the year for the two years immediately preceding the execution of the
Purchase Agreement for the acquisition of the Property; and the Tenant's
statements of profit and loss for such periods; and
(iii) Such other financial or other statements respecting
the condition, operation and affairs of tenant and its property as Lender may
from time to time reasonably request and are provided for in the applicable
lease.
(n) Property Inspection Report. For each Additional Property
and for Properties to be mortgaged on the Closing Date, Borrower shall have
delivered to Lender, and Lender shall have approved, copies of the report(s)
addressed to Borrower (and subject to reliance letters from the inspector),
dated within one year of the Closing Date (or the date an
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Additional Property is added as collateral to the Loan, as the case may be),
detailing the construction of the Improvements and the condition of the systems
located thereon, performed by an engineer acceptable to Lender, and identifying
all deferred maintenance and the cost to remediate such deferred maintenance.
(o) Inspection of Property by Lender. Subject to the terms of
the leases, Lender shall be allowed, at Lender's expense, to conduct an on-site
inspection of all Properties to be mortgaged as of the Closing Date (and all
Additional Properties prior to such Additional Properties being added as
security for the Loan), prior to the Closing Date and the results of such
inspections must be satisfactory to Lender in its sole and absolute discretion.
Borrower shall make all appointments for the inspections at mutually agreeable
times; and, at Borrower's expense, Borrower's representative shall accompany
Lender during such on-site inspections.
(p) No Damage. No part of the Improvements shall have been
materially injured or damaged by fire or other casualty unless Lender shall have
received insurance proceeds sufficient in its judgment to effect the
satisfactory restoration thereof.
(q) No Material Adverse Change. There shall have occurred no
material adverse change in the condition of Borrower or in the Property, and no
event shall have occurred which will give Lender reasonable cause to believe
that the Borrower cannot carry out the terms of this Agreement and the Loan
Documents.
(r) Compliance With Loan Documents. The representations and
warranties of Borrower set forth in Section 3 hereof shall be true and correct
in all respects, Borrower shall be in compliance with all applicable conditions
set forth in Section 4 and all applicable covenants set forth in Section 8
hereof and, if requested by Lender, Borrower shall have delivered a certificate
to such effect together with any corroborating materials as Lender shall
request. No Event of Default, or event which with notice or lapse of time or
both, would become an Event of Default, shall then exist.
(s) Legal Advance. The funding of the Loan on the Closing Date
and all Advances made thereafter, shall be legally permissible under the laws
and regulations to which Lender is subject and Borrower shall have delivered to
Lender such factual certificates or other evidence as Lender or its counsel may
reasonably request in order to establish compliance with this condition.
(t) Expenses. Borrower pays all of Lender's expenses, on the
Closing Date, related to the closing of the Loan including but not limited to
appraisal fees, escrow fees, recording fees and taxes, environmental reports,
legal fees and expenses and title insurance premiums; provided, however, that
legal fees and expenses of Lender in connection with the initial closing of the
Loan shall not exceed $150,000.00 in the aggregate.
(u) Conditions Solely for the Benefit of Lender. All conditions
of Lender's obligation to amend the Loan and advance funds under the Loan are
solely for the benefit of Lender, its successors and assigns. No other person
shall have standing to require satisfaction
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of any condition, and no other person shall be deemed a beneficiary of any
condition or have any right to rely on any determination made by Lender, any
and all of which may be freely waived in whole or in part by Lender in Lender's
sole discretion.
(v) Other. Any other information or material relating to the
Property as reasonably requested by Lender.
5. Substitution and Release of Property. During the term of the Loan,
Lender will release its lien on any individual Property provided the following
conditions are met:
(a) Prior to such release, Borrower provides Lender 60 days
advance written notice of its request to have a certain Property released;
(b) Borrower pays a release fee, on the date on which the
Property is released, equal to .25% of the then allocated portion of the Loan
for the Property to be released;
(c) The original value of the released Property, together with
all other released Properties during the term of the Loan, shall not exceed (i)
$51,500,000 of the total "Original Purchase Price" (as designated on Schedule A)
with respect to Properties to be released pursuant to that certain agreement
entitled "Sonic Agreement" dated June 30, 1999, plus an additional (ii) 10% of
the total original Adjusted Value for all other Properties securing the Loan;
(d) Prior to such release, at Lender's request, Borrower shall
deliver to Lender supplemental information that addresses what effect the
requested release might have on the remaining Properties, the operations
thereon, or any uses thereof (including public utilities, public access roads
and the automobile dealerships), and Lender shall be reasonably satisfied that
the release will have no adverse effect on the remaining Properties;
(e) At the time of such partial release, Borrower shall deliver
to Lender an endorsement to the Title Policy insuring Lender's first lien
granted under the mortgage or deed of trust securing such Property, in form and
substance satisfactory to Lender, assuring that Lender's first lien remains in
full force and effect, subject only to the Permitted Encumbrances, and is in no
way adversely affected by such release, and remains in the full Loan amount;
(f) Prior to such partial release, Borrower shall provide
evidence reasonably acceptable and satisfactory to Lender demonstrating that the
requested release will not violate any local, state or other governmental plat
act or other governmental regulatory restriction, or any covenant, condition,
restriction, limitation, zoning or other requirement applicable to the Property
or any portion thereof;
(g) There exists no Event of Default under the Loan;
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(h) Borrower shall pay Lender's out of pocket expenses related
to any such partial release, including but not limited to, escrow fees, legal
fees and expenses, appraisal fees, recording fees and endorsements to Lender's
title policy; and
(i) Borrower provides an Additional Property(ies) of greater or
equal value of the original Adjusted Value of the Property to be released which
meets all the criteria to qualify as a "Property" under the Loan, acceptable to
Lender in its sole discretion. Lender shall determine whether such Additional
Properties are acceptable, in its sole discretion. Borrower shall be required,
at its expense, to furnish to Lender all the items listed in Section 4, with
respect to the proposed Additional Property(ies), all of which shall be in form
and substance satisfactory to Lender. When (1) Lender has received all of the
foregoing, and any other items it reasonably requires, with respect to the
Additional Property(ies) and all conditions have been satisfied; (2) Lender has
determined, in its sole discretion that the Additional Property(ies) satisfy
all conditions herein, and (3) the Title Company is unconditionally obligated
to insure Lender's deed of trust on the Additional Property(ies) as a first
lien subject only to Permitted Encumbrances acceptable to Lender, each such
Additional Property shall be deemed a "Property" and a part of the "Properties"
under the terms of the Loan and the other Loan Documents. All covenants and
conditions contained in the Loan Documents relating to the Properties initially
mortgaged to secure the Loan shall apply to such Additional Properties. All
appraisal fees, reasonable legal fees, recording costs, taxes and documentary
stamps, abstracting and title insurance premiums and cost, survey charges, and
other costs incurred in connection with the adding of such Additional
Properties to the Properties shall be paid by Borrower as a condition of
Lender's acceptance of the Additional Property(ies) as Properties.
(j) If the Additional Property(ies) is accepted as a Property
under the Loan and the owner thereof is not a Borrower hereunder, such owner
shall become a Borrower hereunder by executing and delivering a Joinder
Agreement, in the form attached hereto as Schedule B.
6. Covenants of Borrower. In addition to the covenants contained
elsewhere in this Agreement and in the other Loan Documents, Borrower agrees as
follows:
(a) Additional Indebtedness. During the term of the Loan, the
entities comprising Borrower shall not create or permit to exist any
indebtedness, without the prior written consent of Lender.
(b) Restrictions of Management Fees. During the term of the
Loan, without the prior written consent of Lender, no Borrower shall (i) pay or
incur management fees in excess of 1% of rental income on each Property financed
by Lender under the Loan, which management fees shall be subordinated to Lender,
or (ii) enter into a management agreement for the management of the Properties.
(c) Minimum Debt Service Coverage Ratios. (i) From September
30, 1999, to and including September 30, 2001, Borrower shall maintain a Minimum
Aggregate Debt Service Coverage Ratio (as defined herein) for Properties
financed by Lender under the Loan
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of 1.62:1 ("Minimum Aggregate Debt Service Coverage Ratio" shall mean total
annual rental income, less management fees, on Lender financed Properties
divided by total annual debt service on the Loan).
(ii) From October 1, 2001, to and including the Maturity
Date, Borrower shall maintain a Minimum Aggregate Debt Service Coverage Ratio
for Properties financed by Lender under the Loan of 1.42:1.
(d) Maximum Debt to Asset Ratio. During the term of the Loan,
Capital Automotive REIT, a Maryland real estate investment trust ("CARS") shall
maintain a maximum aggregate debt to asset ratio of 65% (total debt less
payables and accruals divided by the value of all real estate assets plus real
estate depreciation and amortization).
(e) Junior Financing. During the term of the Loan, Borrower
shall not create or permit to exist any liens on or security interests in the
Property or any other property on which Lender has a lien to secure the Loan,
and shall not enter into a lease of all or any portion of the Property, which is
outside the leasing criteria to be agreed upon between Borrower and Lender,
without the prior written consent of Lender, provided, however, if a Lease
requires the consent of Borrower, subject to the prior written consent of
Lender, Tenants may mortgage their leasehold interest, provided such mortgages
do not require subordination of Borrower's fee interest in the Property.
Borrower shall not agree to any mortgage, hypothecation, pledge, encumbrance or
transfer by Tenant without Lender's consent, such consent not to be unreasonably
conditioned, withheld or delayed.
(f) Due on Sale. In the event of (i) any lease of one year or
longer (other than the Leases), sale, transfer, assignment, agreement for deed,
conveyance, hypothecation or encumbrance, whether voluntary or involuntary, of
all or any part of the Property or any interest therein, or (ii) without the
prior written consent of Lender (which consent shall not be unreasonably
withheld, conditioned or delayed), any sale, assignment, pledge, encumbrance or
transfer to a third party of more than 49% of the corporate voting stock of
Borrower, if such entity is a corporation, or more than 49% of the partnership
interests of Borrower, if such entity is a partnership, or more than 49% of the
ownership interests of Borrower, if such entity is a limited liability Company
or other form of ownership organization, or (iii) without the prior written
consent of Lender, CARS (or a wholly owned corporate subsidiary of CARS) shall
fail to be the sole General Partner of Capital Automotive L.P., a Delaware
limited partnership, or Capital Automotive L.P. (or a wholly owned subsidiary of
Capital Automotive L.P.) shall fail to be the general partner or manager of
Borrower, or the manager of the general partner or manager of Borrower, or (iv)
the seizure of the Property or attachment of any lien on the Property, whether
voluntary or involuntary, in an aggregate amount in excess of $3,500,000.00 for
all Properties, which has not been removed or bonded off to Lender's
satisfaction within 60 days of such attachment, then and in such event Lender
may, by written notice to Borrower, accelerate and declare the principal balance
of the Loan and interest accrued thereon immediately due and payable. Borrower
shall notify Lender promptly in writing of any transaction or event that may
give rise to a right of acceleration hereunder.
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(g) Use of Property. If for any reason the Property ceases to
be used primarily as an automobile dealership facility for the sale and/or
service of both new and used automobiles, and the current use of the
improvements for: (i) the Abra Auto Body and Glass facility located on Property
23, and (ii) HMC Financial Company located on Property 24 A, or such other use
permitted by Lender as of the Closing Date ("Permitted Use"), immediately upon
Borrower receiving notice of such event, Borrower shall immediately provide
notice to Lender, and the following provisions shall govern:
(i) Lease not in Default. If no other default exists
under the Borrower's Lease, and so long as the aggregate debt service coverage
ratio with respect to the Loan is 1.3 to 1 or greater at all times during which
the Property ceases to be operated as a Permitted Use, the failure of the
Property to be so operated for a period not to exceed 24 months (and in the case
where a Property is non-conforming use, for a period not to exceed the period of
time allowed under the zoning regulations applicable thereto to maintain the use
variance for such Property) from the cessation of the Permitted Use, shall not
constitute an Event of Default hereunder. Subject to the foregoing conditions,
at the expiration of such 24 month period Borrower shall take one of the actions
in sub-paragraph (iii) below.
(ii) Lease in Default. If the Tenant for such Property is
in default under its Lease (other than a violation of the Permitted Use),
Borrower shall take one of the actions in sub-paragraph (iii) below.
(iii) Borrower's Action. Borrower shall take one of the
following actions, in the following order of preference: (A) re-let the Property
within 12 months, to a tenant and for a lawful use that does not diminish the
value of the Property, such tenant and use to be satisfactory to Lender in its
sole reasonable discretion, (B) substitute an Additional Property for the
Property in accordance with Section 5 (Section 5 (b) and 5 (c) herein shall not
be applicable to any such substitution hereunder), or (C) pay to the Lender, in
reduction of the principal balance of the Loan, an amount equal to the then
allocated portion of the Loan associated with such Property, plus any prepayment
consideration required pursuant to the Note.
(iv) Lender's Action. If Borrower fails to take any of
the actions in sub-paragraph (iii) above, Lender may, at its option, declare a
default under the Loan and declare the unpaid portion of the Loan immediately
due and payable.
(h) Insurance. (i) During the term of the Loan, the
Improvements shall be insured against physical damage under policies issued by
companies satisfactory to Lender containing endorsements naming Lender as
mortgagee and additional insured under a standard mortgagee clause acceptable to
Lender and insuring the replacement cost of the Improvements. Such policies
shall be in amounts not less than full replacement cost of the Improvements,
full replacement cost being the cost of replacing the Improvements exclusive of
the cost of excavation, foundations and footings below the lowest basement
floor, less physical depreciation of the Improvements, and subject to a maximum
deductible of $25,000 per occurrence.
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(ii) Borrower shall obtain liability coverage
satisfactory to Lender, including public liability coverage for the Property in
minimum amounts of $3,000,000.00.
(iii) If the Improvements are located in a flood-prone
area as designated by HUD, Borrower shall obtain and maintain flood insurance in
an amount equal to the lesser of the principal amount of the Loan or the maximum
limit of coverage available for the Property under the National Flood Insurance
Program.
(i) Insurance and Condemnation Proceeds. The following
provisions shall apply to the application of insurance and condemnation proceeds
payable in respect of any Property:
(i) Insurance Proceeds.
(A) Lease Allows Termination. If the Lease allows
Borrower or Tenant to terminate the Lease upon occurrence of a casualty event,
and the Lease is terminated in accordance with its terms, Borrower at its sole
discretion may substitute an Additional Property, in accordance with Section 5
hereof (Section 5 (b) and 5 (c) herein shall not be applicable to any such
substitution hereunder), and if Borrower elects, not to substitute an Additional
Property, then, at Lender's sole option, (1) that portion of the insurance
proceeds equal to the Allocated Loan Value for the Property shall be used to
reduce the outstanding principal balance of the Loan (such payment shall not be
subject to the prepayment premium), with the balance being payable to Borrower
and such Property shall be released from the Deed of Trust, or (2) all insurance
proceeds shall be used to restore the Improvements. If insurance proceeds are
less than the Allocated Loan Value for the Property, Borrower shall pay to
Lender the difference between the amount of the insurance proceeds and the
Allocated Loan Value.
(B) Lease Requires Restoration. If the Lease requires
Tenant to restore the Improvements after a casualty, insurance proceeds will be
made available to Borrower, in accordance with Lender's then current
construction loan disbursement procedures.
(ii) Condemnation Proceeds.
(A) Full Condemnation. In the event of a full
condemnation of a Property, or partial condemnation which allows Borrower or
Tenant to terminate the Lease and the Lease is terminated in accordance with its
terms, at Borrower's option, (1) that portion of condemnation proceeds equal to
the Allocated Loan Value for the Property, shall be used to reduce the reduce
the outstanding principal balance of the Loan (such payment shall not be subject
to the prepayment premium) with the balance being payable to Borrower and such
Property shall be released from the Deed of Trust, or (2) all condemnation
proceeds shall be remitted to Borrower provided Borrower substitutes an
Additional Property in accordance with Section 5 herein (Section 5 (b) and 5 (c)
herein shall not be applicable to any such substitution hereunder). In the event
Borrower elects (1) above and condemnation proceeds are less than
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the Allocated Loan Value for the Property, Borrower shall pay to Lender the
difference between the amount of the condemnation proceeds and the Allocated
Loan Value.
(B) Partial Condemnation. In the event of a partial
condemnation, where the value of the condemned portion of the Property is
finally determined to be $300,000.00 or less, and provided the aggregate of the
condemned portion of all Properties at any given time does not exceed
$3,000,000.00, and further provided such partial condemnation does not impair
the use of Improvements or ingress or egress to the Property, condemnation
proceeds shall be made available to Borrower for restoration of the
Improvements, if impaired.
(C) Partial Condemnation in Excess of the Amounts
Specified in Subparagraph (B). In the event of a partial condemnation, where the
value of the condemned Property is in excess of the limitation set forth in
subsection (B) above, and such partial condemnation does not impair the use of
the Improvements or ingress or egress to the Property, the condemnation proceeds
shall be made available to Borrower for restoration of the Improvements if
impaired, in accordance with Lender's then current construction loan
disbursement procedures.
(iii) Costs and Expenses. In addition to any amounts Borrower is
to pay under this Section 6 (i), Borrower shall reimburse Lender for Lender's
out of pocket expenses and reasonable attorneys' fees incurred in connection
with collecting the condemnation proceeds and insurance proceeds, and such
amount shall not reduce any amounts payable to Lender under this Section 6 (i).
(j) Financial Statements. During the term of the Loan, both
Borrower and CARS will maintain full and complete books of account and other
records reflecting the results of its operations (in conjunction with its other
operations as well as its operation of the Property), in accordance with
generally accepted accounting principles, and furnish or cause to be furnished
to Lender such financial data as Lender shall, from time to time, reasonably
request with respect to Borrower and the ownership and operation of the
Property, and Lender shall have the right, at reasonable times and with
reasonable notice, to audit Borrower's and CARS' books of account and records.
(k) Inspection; Books and Records. Borrower shall keep, at its
principal place of business or cause the Tenants under the Leases to keep, at
the Property, the records, books of accounting and all other documents, reports
and papers relating to the use and operation of the Improvements. Subject to the
terms of the Leases, Lender shall be entitled, at any reasonable time, to
inspect the Property (including, without limitation, inspections to determine
the existence of Hazardous Materials thereon and the compliance of the Property
and its use with any law, rule or regulation relating to industrial hygiene or
environmental conditions, including soil and ground water conditions and the
compliance of the Borrower and the Property with the conditions and covenants
set forth herein and the Loan Documents with respect to Hazardous Materials),
all records relating to the Property, and the books and other financial records
of Borrower and Borrower shall cooperate with Lender in enabling Lender to
accomplish such inspection and permit Lender to make such copies as Lender may
request.
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This authority is for Lender's protection only and Lender shall not be deemed
to have assumed any responsibility to Borrower or any third party as a result
of any such action.
(l) Compliance with Restrictions, Laws and Contracts. The
Property shall be maintained in compliance in all material respects with all
applicable Restrictions. Borrower shall not violate any law of any nature that
could result in the forfeiture of all or any portion of the Property. Borrower
shall comply with the material terms of all contracts entered into by Borrower
relating to the Property and the use and operation of the Improvements
(collectively, "Contracts"). Borrower will not amend any of the Contracts
without the prior written consent of Lender and will not terminate any of the
Contracts or accept a surrender thereof or waive, excuse, condone or in any
manner release or discharge any party to any of the Contracts from the
obligations and agreements of such party to be performed thereunder without the
prior written consent of Lender.
(m) Title Exceptions. Borrower shall not impose any restrictive
covenants, easements, rights of way or encumbrances upon the Property without
the prior written consent of Lender. Notwithstanding the foregoing, Lender's
consent shall not be required for the imposition of any utility easements, or
other easements and encumbrances required by law or local authorities, or
necessary for the continued lawful use and operation of the Property, provided
such easements and encumbrances do not materially adversely affect the value of
the Property and do not contain any continuing maintenance or expense
obligations on the part of Borrower. Lender shall join in, and otherwise
reasonably cooperate with the imposition of any restrictions, the imposition of
which it approves or for which its approval is not required, at no cost to
Lender.
(n) Injunction Defense and Notice. If any proceedings are filed
seeking to enjoin or otherwise prevent or declare invalid or unlawful the
occupancy, maintenance or operation of the Property or any portion thereof,
Borrower, upon receiving written notice of the same, will give prompt written
notice thereof to Lender and will cause such proceedings to be vigorously
contested in good faith and, in the event of any adverse ruling or decision,
prosecute all allowable appeals.
(o) Publicity and Advertisement. Subject to the terms of the
Leases (and any other confidentiality agreements with the Tenants or their
affiliates) and Borrower's prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed), (i) Borrower shall permit Lender
to publicize its involvement in the Property, and (ii) Borrower shall consent to
the taking of photographs and the publication thereof.
(p) Further Assurances. Borrower will, at the request of
Lender, execute, deliver and furnish such documents or take such further action
as Lender may deem reasonably necessary or desirable to evidence the Loan,
perfect the security therefor, or otherwise carry out the terms of this
Agreement and any of the other documents delivered to Lender in connection
herewith.
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(q) No Further Liens. All equipment, personal property,
fixtures and other property subject to the lien of the security interest granted
to Lender in the Deeds of Trust shall be fully paid for by Borrower and no
security interest, lien or other encumbrance, other than that granted to Lender
and the Permitted Encumbrances, shall exist thereon.
(r) Removal of Liens. If at any time an encumbrance, lien or
charge is placed or claimed upon the Property, Borrower shall satisfy and remove
such encumbrance, lien or charge by bonding or by other method satisfactory to
Lender or cause the Title Company to provide affirmative coverage over such
liens, as Lender may require. In addition to all other rights and remedies of
Lender referred to in this Agreement, if such encumbrance, lien or charge is
not removed within sixty (60) days, Lender, at its sole discretion, may pay off
the same and Borrower shall reimburse Lender within five (5) days of Lender's
demand for payment.
(s) Notices Received. Borrower shall comply with and promptly
furnish to Lender true and complete copies of any notices pertaining to the
Property by any governmental authority of the United States, the state, cities,
counties, or any other political subdivision in which the Property is located or
which exercises jurisdiction over Borrower or the Property. Borrower shall
promptly notify Lender of any fire or other casualty or any notice of taking or
eminent domain proceeding affecting the Property of which it acquires notice.
Borrower shall promptly notify Lender of any action, proceeding or investigation
of the nature described in Section 3(h) above of which it acquires notice.
(t) Hazardous Materials and Environmental Indemnity. Borrower
shall not cause or permit (except (i) as disclosed in the Environmental Audit
Reports and (ii) with respect to Non-Compliant Properties) the violation of any
law relating to industrial hygiene or environmental conditions in connection
with the Property, including soil and ground water conditions; or use, generate,
manufacture, store or dispose of any Hazardous Materials on, under or about the
Property, except in accordance with all applicable laws. The term "Property"
shall include the groundwater in or under the Property. Borrower shall not
install underground storage tanks on the Land. Borrower shall indemnify and hold
Lender harmless from any loss, liability, cost, expense and/or claim (including
without limitation the cost of any fines, remedial action, damage to the
environment and cleanup and the fees of attorneys and other experts) arising
from (i) the use, Release or disposal of any Hazardous Materials on, under or
about the Property or the transport of any Hazardous Materials to or from the
Property; and (ii) the violation of any law relating to industrial hygiene or
environmental conditions in connection with the Property, including soil and
ground water conditions; and (iii) the breach of any of the representations,
warranties and covenants of Borrower with respect to Hazardous Materials set
forth in this Agreement or any other Loan Documents.
(u) Insurance. Borrower shall, or shall cause the Tenants to,
pay all premiums on all insurance policies required from time to time under this
Agreement, and thirty (30) days prior to expiration of any such policies,
Borrower shall, or shall cause the Tenants to, furnish to Lender with premiums
prepaid, additional and renewal policies (or binders to be followed by policies
in due course) in form, and with companies, coverage, deductibles and
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amounts satisfactory to Lender. In the event of failure by Borrower to provide
such insurance, Lender may place insurance and treat the amounts expended
therefor as Advances.
(v) Notice of Breach. Borrower shall promptly give to Lender
notice of the occurrence of any event which does or would with the passage of
time or the giving of notice, or both, constitute a default under this
Agreement, any of the other Loan Documents, or have any adverse effect on any
security for the Loan or on Borrower's ability to perform its obligations
hereunder.
(w) Approvals, Consents, Authorizations and Restrictions and
Licenses. Subject to Section 6 (x) below, Borrower will keep, or cause the
Tenants to keep, in full force and effect during the Loan term: (i) all permits,
approvals, consents and other authorizations necessary under the Restrictions to
enable business to be conducted on the Property in accordance with the Leases
and in the manner contemplated by this Agreement and the other Loan Documents;
and (ii) all Licenses.
(x) Maximum Allocated Loan Value of Non-Compliant Properties.
During the term of the Loan, the maximum aggregate Allocated Loan Value of all
Non-Compliant Properties shall not at any one time exceed $15,000,000.00.
Borrower expressly acknowledges and agrees that the existence of any condition
at any Property, or the occurrence of any act or omission by Borrower or any
Tenant that renders a Property a Non-Compliant Property, shall in no way
constitute any acquiescence or approval by Lender of, or operate to place on
Lender any liability or responsibility for, any such condition, occurrence, act
or omission, and Borrower agrees that it shall: (i) at all times use
commercially reasonable efforts to cure or cause to be cured the existence of
any condition at any Property, or the occurrence of any act or omission by
Borrower or any Tenant, that renders a Property a Non-Compliant Property; and
(ii) indemnify and hold Lender harmless from any action, proceeding, claim,
cost, expense and other liability of whatever form and nature arising from or by
reason of the fact that a Property is a Non-Compliant Property.
(y) Tenant's Exercise of Right to Purchase. In the event a
Tenant exercises its right to purchase a Property, pursuant to the terms of its
Lease, Borrower, upon receiving notice from such Tenant of its election, agrees
to give immediate written notification to Lender. All proceeds to be paid to
Borrower from the purchase and sale of the Property ("Sale Proceeds") shall be
paid to Lender. Borrower shall then have the option to either (i) substitute the
Property in accordance with Section 5 herein, in which event Lender shall remit
the Sale Proceeds to Borrower, or (ii) apply the Sale Proceeds to the
Indebtedness in an amount equal to the Allocated Loan Value for such Property
(such payment shall be subject to the prepayment premium, as set forth in the
Note), with any excess Sale Proceeds remitted to Borrower.
7. Defaults by Borrower. An "Event of Default" shall be deemed to
have occurred under this Agreement as and when an "Event of Default" shall have
occurred under the Deeds of Trust.
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8. Remedies. (a) Upon the occurrence of any Event of Default, in
addition to those remedies provided in the Deeds of Trust, Lender shall be
entitled to declare all sums evidenced by the Note and secured by the other Loan
Documents to be immediately due and payable and to enforce all of its rights and
remedies contained in this Agreement, the Deeds of Trust and other Loan
Documents, or otherwise provided by law or equity. Each right and remedy
provided in this Agreement or the other Loan Documents is distinct and
cumulative to all other rights or remedies under this Agreement and the other
Loan Documents, or afforded by law or equity, and may be exercised concurrently,
independently, or successively, in any order whatsoever.
(b) Power of Attorney. Borrower hereby constitutes and appoints
Lender its true and lawful attorney in fact with the power and authority,
including full power of substitution, to, in its sole discretion to: (i)
prosecute and defend all actions and proceedings in connection with the
Property; and (ii) execute, acknowledge and deliver all instruments and
documents in the name of Borrower as Lender deems proper which may be necessary
or desirable, and to do any and every act with respect to the Property which
Borrower might do on its own behalf. This power of attorney is a power coupled
with an interest and cannot be revoked. Lender agrees that it shall not exercise
its rights under this Section 8 (b) unless and until an Event of Default has
occurred.
(c) Disclaimer. No advance of Loan funds by Lender will cure
any default of Borrower unless Lender agrees otherwise in writing. Whether or
not Lender elects to employ any or all of the remedies available to it, Lender
shall not be liable for payment of any expenses incurred in connection with the
exercise of any remedy available to Lender or for the performance or
non-performance of any obligation of Borrower.
9. Miscellaneous Provisions.
(a) Notice. Any notice given hereunder shall be given in the
manner prescribed in the Deeds of Trust.
(b) No Assignment. Borrower shall not assign any of its rights
under this Agreement without the prior written consent of Lender (which consent
shall not be unreasonably withheld, conditioned or delayed) and any purported
assignment in violation of this Section without such prior written consent shall
be void. Without limiting the generality of the foregoing provisions of this
Section 9 (b), it is expressly agreed that any sale, assignment, pledge,
encumbrance or transfer that does not require Lender's consent pursuant to
Section 6 (f) (ii) shall not be deemed an assignment of Borrower's rights under
this Agreement.
(c) Time. Time is of the essence hereunder.
(d) Headings. The captions and headings of various sections of
this Agreement are for convenience only and are not to be considered as defining
and limiting in any way the scope or intent of the provisions hereof.
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(e) Successors. This Agreement shall be binding upon and shall
inure to the benefit of all successors and permitted assigns of the parties.
(f) No Partnership; Indemnity. Lender shall not be deemed to be
a partner or joint venturer with Borrower in connection with the Loan or any
action taken under this Agreement and Borrower shall indemnify, hold Lender
harmless and defend Lender from and against any and all loss, cost, damage,
expense or liability, including reasonable attorneys' fees, arising out of or
resulting from such a construction of the parties and their relationship or
resulting from any actual or alleged defect in the construction of the
Improvements. None of the rights granted to Lender under the Loan Documents
shall be deemed to diminish or substitute for Borrower's management powers and
responsibilities with respect to the Property, and the existence of, and/or
Lender's exercise of such rights shall not constitute participation in
management by Lender. The provisions of this Section 9 (f) shall survive
payment of the Loan.
(g) Effectiveness. This Agreement shall continue in full force
and effect so long as Borrower remains obligated to Lender under the Loan.
(h) No Waiver. No failure on Lender's part at any time to
require the performance by Borrower of any term of this Agreement shall in any
way affect Lender's rights to subsequently enforce such term, nor shall any
omission on Lender's part to notify Borrower of any event which with notice or
the passage of time or both would constitute an Event of Default be construed as
a waiver of such Event of Default or any right or remedy of Lender, nor shall
any waiver by Lender of any term hereof be taken or held to be a waiver of any
other term hereof.
(i) Governing Law. This Agreement shall be interpreted and
enforced under the laws of the State of Michigan.
(j) WAIVER OF RIGHT TO TRIAL BY JURY. TO FACILITATE EACH
PARTY'S DESIRE TO RESOLVE DISPUTES IN AN EFFICIENT AND ECONOMICAL MANNER, EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENTS, OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS RELATED HERETO
OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
ARISING IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(k) Complete Agreement. The parties hereto hereby represent and
acknowledge that the Loan Documents are fully integrated and contain the
complete understanding and agreements of the parties with respect to the Loan
and all matters relative thereto and accurately reflect the intentions of the
parties. All prior agreements, negotiations,
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drafts and other extrinsic communications relating thereto have been
incorporated into or are superseded by the terms of the Loan Documents and have
no further significance or evidentiary effect.
(l) Counterparts. This Agreement may be executed in one or more
counterparts, each of which together shall constitute one and the same
instrument.
(m) Lender's Advances. All expenditures by Lender permitted
under this Agreement and any other Loan Documents shall be deemed to be an
advance under the Loan from the date made. In the event the total advances under
the Loan exceed the maximum amount of the Loan, Borrower and Lender acknowledge
and authorize that such excess amount shall be deemed an additional loan to
Borrower, payable within five (5) days of Lender's demand for payment, secured
by the Deeds of Trust and bearing interest at the Default Rate.
(n) Attorneys' Fees. In the event that an attorney be employed
or expenses be incurred to compel payment of the Loan or any portion thereof or
in connection with any default hereunder or under any other Loan Documents
whether or not any action or proceeding is commenced by Lender, Borrower
promises to pay all such expenses and reasonable attorneys' fees, including but
not limited to, reasonable attorneys' fees incurred in any bankruptcy
(including, without limitation, an action for relief from the automatic stay of
any bankruptcy proceeding) or judicial or non-judicial foreclosure proceedings.
(o) Severability. In the event any one or more of the
provisions contained in this Agreement, or in any of the other Loan Documents
shall for any reason be held to be invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall at the option of Lender, not affect any other provision
of this Agreement, or any such other Loan Documents, and this Agreement and any
such other Loan Documents shall be construed as if such invalid, illegal or
unenforceable provision had never been contained therein.
(p) Set-Off. Without limitation of any other right or remedy of
Lender hereunder or provided by law, any indebtedness now or hereafter owing to
Lender by Borrower (including, without limitation, any amounts on deposit in any
demand, time, savings, or like account maintained by Borrower with Lender) may
be offset and applied by Lender hereunder, or under the Note, the Deeds of Trust
or the other Loan Documents.
(q) No Violation. Notwithstanding anything in this Agreement or
to the contrary, Lender will not be required to make any advance or perform any
other act under this Agreement if as a result thereof, Lender will violate any
law, statute, ordinance, rule, regulation or judicial decision applicable
thereto.
(r) Stated Value of Properties. Borrower hereby acknowledges
and agrees that the stated values of each Property on Schedule A are agreed upon
values for said Properties for purposes of determining the documentary stamp
tax, intangible tax and title insurance premiums as between the various states
wherein the Properties are located, as
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applicable, and such stated values shall in no way impair, affect, prejudice,
or otherwise constitute a waiver or defense to the rights of Lender under the
Note, the Deeds of Trust, or any other Loan Documents relating to Borrower's
obligations to repay the Loan or perform any obligations under the Loan
Documents or otherwise with respect to the Loan secured thereby. Further,
Borrower absolutely, unconditionally and irrevocably waives any and all right
to assert any setoff, counterclaim or cross claim based in whole or in part
upon the allocation of stated values as set forth in Schedule A with respect to
the obligation of the Borrower to pay the Indebtedness and perform all non
monetary obligations in accordance with the Note, the Deeds of Trust and the
Loan Documents in any action or proceeding brought by the Lender to collect the
Indebtedness, or any portion thereof, or to enforce by foreclosure, and realize
upon the liens and security interests.
(s) Breakage Costs. In the event, except by default by Lender,
the Loan is not fully funded on or before September 30, 1999, Borrower agrees to
pay Lender's damages, losses, liabilities, costs, fees and expenses, including
breakage, unwind and similar costs, fees and expenses related to the amount not
advanced (collectively, the "Breakage Costs"). Borrower will be fully
responsible for all Breakage Costs, which are required to be paid, upon demand.
THIS LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
AGREEMENTS OF THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
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IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement,
under seal, as of the date first above written.
MMR HOLDINGS, L.L.C., a North Carolina limited
liability Company
By: CAR MMR L.L.C., a Delaware
limited liability Company, its
Managing Member
By: Capital Automotive L.P.,
a Delaware limited partnership,
its Managing Member
By: Capital Automotive REIT,
a Maryland real estate
investment trust, its
General Partner
By: /s/ Xxxxx X. Xxxxx [SEAL]
----------------------------
Xxxxx X. Xxxxx
Its: Vice President and
Treasurer
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT]
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement,
under seal, as of the date first above written.
MMR TENNESSEE, L.L.C., a North Carolina
limited liability company
By: CAR MMR L.L.C., a Delaware
limited liability company, its
Managing Member
By: Capital Automotive L.P.,
a Delaware limited partnership,
its Managing Member
By: Capital Automotive REIT,
a Maryland real estate
investment trust, its
General Partner
By: /s/ Xxxx X. Xxxxxx [SEAL]
--------------------------
Xxxx X. Xxxxxx
Its: Vice President
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT]
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, Borrower and Lender have executed this
Agreement, under seal, as of the date first above written.
MMR VIKING INVESTMENT ASSOCIATES, L.P.,
a Texas limited partnership
By: CAR MMR L.L.C., a Delaware
limited liability company, its
Managing Member
By: Capital Automotive L.P.,
a Delaware limited partnership,
its Managing Member
By: Capital Automotive REIT,
a Maryland real estate
investment trust, its
General Partner
By: /s/ Xxxx X. Xxxxxx [SEAL]
--------------------------
Xxxx X. Xxxxxx
Its: Vice President
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT]
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement,
under seal, as of the date first above written.
FORD MOTOR CREDIT COMPANY, a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxx, XX .
-----------------------------------
Xxxxxxx X. Xxxx, XX
Its: National Account Manager
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT]
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