EXHIBIT 10.42
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED UNSECURED TERM LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED UNSECURED TERM LOAN
AGREEMENT AND OTHER LOAN DOCUMENTS (this "Amendment") made as of this 15th day
of February, 2002, by and among RAMCO-XXXXXXXXXX PROPERTIES, L. P., a Delaware
limited partnership ("Borrower"), RAMCO-XXXXXXXXXX PROPERTIES TRUST, a Maryland
real estate investment trust ("Guarantor"), FLEET NATIONAL BANK ("Fleet"), and
FLEET NATIONAL BANK, as Agent (the "Agent").
W I T N E S S E T H:
WHEREAS, Borrower, Guarantor, Agent and Fleet entered into that certain
First Amended and Restated Unsecured Term Loan Agreement dated as of September
29, 2000 (the "Loan Agreement"); and
WHEREAS, pursuant to the Loan Agreement, Borrower executed and
delivered that certain Note, dated September 29, 2000, payable to Fleet in the
principal face amount of $25,000,000.00 (the "Note"); and
WHEREAS, Guarantor has executed and delivered to Agent for the benefit
of Agent and the "Banks" (as defined in the Loan Agreement) that certain First
Amended and Restated Unconditional Guaranty of Payment and Performance dated as
of September 29, 2000 (the "Guaranty"); and
WHEREAS, Borrower has requested that Fleet make an additional advance
of $5,000,000.00 to Borrower; and
WHEREAS, the Agent and Fleet have agreed to make such advance subject
to the execution and delivery by Borrower and Guarantor of this Amendment;
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. Definitions. All terms used herein which are not otherwise defined
herein shall have the meanings set forth in the Loan Agreement.
2. Additional Advance. Subject to the terms and conditions set forth in
this Amendment, each of the Banks severally agrees to lend to the Borrower on
the date hereof its Commitment Percentage of the sum of FIVE MILLION AND NO/100
DOLLARS ($5,000,000.00) (the "Additional Advance"). The Additional Advance shall
constitute a Loan under the Loan Agreement when advanced and shall be evidenced
by the Note (as amended herein). Interest shall be payable with respect thereto
as provided in the Loan Agreement, as amended herein. The Additional Advance
shall be used for working capital purposes of the Borrower and not for any
purpose described in Section 6.17 of the Loan Agreement. The
Additional Advance shall be a LIBOR Rate Loan having an interest period of three
(3) months. In no event shall any Interest Period with respect to the Additional
Advance extend beyond May 15, 2002.
3. Modification of the Loan Agreement. Borrower, Guarantor, Fleet and
Agent do hereby modify and amend the Loan Agreement as follows:
(a) By inserting the following definition in Section 1.1 of
the Loan Agreement:
"Additional Advance. The additional advance of proceeds of the
Loan in the amount of $5,000,000.00, such advance being made on
February 15, 2002."
(b) By deleting in its entirety the definition of "Maturity
Date" contained in Section 1.1 of the Loan Agreement, appearing on page 10
thereof, and inserting in lieu thereof the following definition:
"Maturity Date. September 28, 2003, or such earlier date on
which the Loans shall become due and payable pursuant to the terms
hereof."
(c) By deleting in its entirety the definition of "Total
Commitment" contained in Section 1.1 of the Loan Agreement, appearing on page 13
thereof, and inserting in lieu thereof the following definition:
"Total Commitment. The sum of the Commitment of the Banks, as
in effect from time to time. The Total Commitment is Twenty-Seven
Million One Hundred Twenty-Five Thousand and No/100 Dollars
($27,125,000.00).";
(d) By inserting the following paragraph as Section 2.3(e) of
the Loan Agreement:
"(e) Notwithstanding anything in this Section 2.3 to the
contrary, (i) any portion of the Additional Advance which is a Base
Rate Loan shall bear interest for the period commencing with the
Drawdown Date thereof and ending on the date on which such Base Rate
Loan is repaid or is converted to a LIBOR Rate Loan at the per annum
rate equal to the sum of the Base Rate plus one and one-fourth percent
(1.25%), and (ii) any portion of the Additional Advance which is a
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
LIBOR Rate determined for such Interest Period plus three percent
(3%)."
(e) By inserting the following sentence at the end of Section
3.2 of the Loan Agreement, appearing on page 16 thereof:
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"Except with respect to the mandatory payment set forth in
Section 3.5 below, the principal of the Loans relating to the
Additional Advance shall not be prepayable in whole or in part."
(f) By deleting in its entirety Section 3.5 of the Loan
Agreement, appearing on pages 16 and 17 hereof, and inserting in lieu thereof
the following:
"Required Amortization. On each December 31, March 31, June 30
and September 30 during the term of the Loans (with the first such date
being December 31, 2000) the principal amount of the Loans shall be
repaid in separate installments (the "Amortization Payments") on the
dates and in the amounts set forth below (each such payment being
separate and not in the aggregate):
Amortization Amortization
Payment Dates Payments for each Date
------------- ----------------------
December 31, 2000, March 31, 2001, $500,000.00
June 30, 2001 and September 30, 2001
December 31, 2001, March 31, 2002, $875,000.00
June 30, 2002 and September 30, 2002
December 31, 2002, March 31, 2003 $1,125,000.00
and June 30, 2003
Maturity Date Remaining balance of Loans
In addition, Borrower shall pay to Agent for the account of the Banks
on May 15, 2002 a separate payment in the amount of $5,000,000.00 as an
additional mandatory prepayment of the principal amount of the Loan,
which prepayment shall be the prepayment of the Additional Advance.
Such prepayment of the Additional Advance shall not be an Amortization
Payment. Such prepayment shall be accompanied by the payment of all
accrued and unpaid interest on the Additional Advance. None of the
Amortization Payments made pursuant to the table set forth above shall
be applied against the Additional Advance.
Prepayments of the Loans pursuant to Section 3.2 shall be applied
against the Amortization Payments in the order of earliest maturity.
Borrower shall pay to Agent together with all such principal payments
such additional amounts as may be due pursuant to Section 4.8."; and
(g) By deleting in its entirety Schedule 1 attached to and
made a part of the Loan Agreement and inserting in lieu thereof Schedule 1
attached to this Amendment and made a part hereof.
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4. Modification of the Note. Borrower, Fleet and Agent do hereby modify
and amend the Note as follows:
(a) By deleting the figure "$25,000,000.00" appearing in the
top left corner of the Note, and inserting in lieu thereof the figure
"$27,125,000.00"; and
(b) By deleting the words and figures "TWENTY-FIVE MILLION AND
No/100 Dollars ($25,000,000.00)" appearing on Page 1 of the Note, and inserting
in lieu thereof the words and numbers "TWENTY-SEVEN MILLION ONE HUNDRED
TWENTY-FIVE THOUSAND AND No/100 Dollars ($27,125,000.00)".
5. Modification of Guaranty. Guarantor, Agent and Fleet do hereby
modify and amend the Guaranty by deleting the figure "$25,000,000" appearing in
the fourth (4th) line of the second page of the Guaranty, and inserting in lieu
thereof the figure "$27,125,000".
6. Loan Balance. Borrower and Guarantor acknowledge and agree that,
following the making of the Additional Advance to Borrower, the outstanding
principal balance of the Loans is $27,125,000.00. Borrower and Guarantor
represent and warrant to Agent and Fleet that the Additional Advance constitutes
Indebtedness permitted pursuant to Section 8.1(h) of the Revolving Credit
Agreement and Section 8.1(h) of the Loan Agreement.
7. References to Loan Agreement, Note and Guaranty. All references in
the Loan Documents to the Loan Agreement, the Note and the Guaranty shall be
deemed a reference to the Loan Agreement, the Note and the Guaranty as modified
and amended herein.
8. Loan Fee. Simultaneously with the effective date of this Amendment,
the Borrower has paid to the Agent for the further payment to each of the Banks
a loan commitment and structuring fee in the amount of $10,000.00 for the
Additional Advance, which fee shall be fully earned when paid and nonrefundable
under any circumstances.
9. Consent of Guarantor. By execution of this Amendment, Guarantor
hereby expressly consents to the modifications and amendments relating to the
Loan Agreement and the Note as set forth herein, and Borrower and Guarantor
hereby acknowledge, represent and agree that the Loan Documents (including
without limitation the Guaranty) remain in full force and effect and constitute
the valid and legally binding obligation of Borrower and Guarantor,
respectively, enforceable against such Persons in accordance with their
respective terms, and that the Guaranty extends to and applies to the foregoing
documents as modified and amended.
10. Representations. Borrower and Guarantor represent and warrant to
Agent and the Banks as follows:
(a) Authorization. The execution, delivery and performance of
this Amendment and the transactions contemplated hereby (i) are within the
authority of Borrower and Guarantor, (ii) have been duly authorized by all
necessary proceedings on the part of such Persons, (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 any of such Persons is subject or any
judgment, order, writ, injunction, license or permit applicable to such Persons,
(iv) do not and will not conflict with or constitute a default (whether with the
passage of time or the giving of
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notice, or both) under any provision of the partnership agreement or
certificate, certificate of formation, operating agreement, articles of
incorporation or other charter documents or bylaws of, or any mortgage,
indenture, agreement, contract or other instrument binding upon, any of such
Persons or any of its properties or to which any of such Persons is subject, 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 Persons, other
than the liens and encumbrances created by the Loan Documents.
(b) Enforceability. The execution and delivery of this
Amendment are valid and legally binding obligations of Borrower and Guarantor
enforceable in accordance with the respective terms and provisions hereof,
except as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors' rights and the effect of general principles of equity.
(c) Approvals. The execution, delivery and performance of this
Amendment and the transactions contemplated hereby do not require the approval
or consent of or approval of any Person or the authorization, consent, approval
of or any license or permit issued by, or any filing or registration with, or
the giving of any notice to, any court, department, board, commission or other
governmental agency or authority other than those already obtained.
11. No Default. By execution hereof, the Borrower and Guarantor certify
that the Borrower and Guarantor are and will be in compliance with all
covenants under the Loan Documents after the execution and delivery of this
Amendment, and that no Default or Event of Default has occurred and is
continuing.
12. Closing Conditions. The obligation of the Banks to make the
Additional Advance and the effectiveness of this Amendment shall be subject to
the satisfaction of the following:
(a) This Amendment shall have been duly executed and delivered
by the respective parties thereto and shall be in full force and effect.
(b) All action on the part of the Borrower and the Guarantor
for the valid execution, delivery and performance of this Agreement to which
such Person is or 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.
(c) The Borrower shall pay to the Agent the fees required to
be paid pursuant to this Amendment.
(d) The Borrower and Guarantor shall perform and comply with
all terms and conditions herein required to be performed or complied with by or
prior to the effectiveness of this Amendment, and there shall exist no Default
or Event of Default.
(e) The representations and warranties made by the Borrower
and Guarantor and their Subsidiaries under 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
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the date thereof shall have been true and correct in all material respects when
made and also shall be true and correct in all material respects as of the date
hereof.
(f) The Agent shall have received such other documents,
instruments, certificates, assurances, consents and approvals as the Agent may
reasonably have requested.
13. Waiver of Claims. Borrower and Guarantor acknowledge, represent and
agree that Borrower and Guarantor as of the date hereof have no defenses,
setoffs, claims, counterclaims or causes of action of any kind or nature
whatsoever with respect to the Loan Documents, the administration or funding of
the Loans or with respect to any acts or omissions of Agent or any of the Banks,
or any past or present officers, agents or employees of Agent or any of the
Banks, and each of Borrower and Guarantor does hereby expressly waive, release
and relinquish any and all such defenses, setoffs, claims, counterclaims and
causes of action, if any.
14. Ratification. Except as hereinabove set forth, all terms, covenants
and provisions of the Loan Agreement, the Note and the Guaranty remain unaltered
and in full force and effect, and the parties hereto do hereby expressly ratify
and confirm the Loan Agreement, the Note and the Guaranty as modified and
amended herein. Nothing in this Amendment shall be deemed or construed to
constitute, and there has not otherwise occurred, a novation, cancellation,
satisfaction, release, extinguishment or substitution of the indebtedness
evidenced by the Note or the other obligations of Borrower and Guarantor under
the Loan Documents (including without limitation the Guaranty).
15. Counterparts. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
16. Miscellaneous. This Amendment shall be construed and enforced in
accordance with the laws of the State of Michigan. This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors, successors-in-title and assigns as provided in
the Loan Documents.
[SIGNATURES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWER:
--------
RAMCO-XXXXXXXXXX PROPERTIES, L.P., a
Delaware limited partnership, by its sole general
partner
By: Ramco-Xxxxxxxxxx Properties Trust, a
Maryland real estate investment trust
By:
---------------------------------------
Name:
Title:
[SEAL]
GUARANTOR:
---------
RAMCO-XXXXXXXXXX PROPERTIES TRUST,
a Maryland real estate investment trust
By:
-----------------------------------------------
Name:
Title:
[SEAL]
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FLEET NATIONAL BANK, individually and as
Agent
By:
-------------------------------------
Xxx Xxxxxxx, Director
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SCHEDULE 1
BANKS AND COMMITMENTS
Commitment
Commitment Percentage
---------- ----------
Fleet National Bank $27,125,000.00 100%
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
LIBOR Lending Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
Total $27,125,000.00 100%
