EXHIBIT 10.63
FIRST AMENDMENT TO
FOURTH AMENDED AND RESTATED MASTER REVOLVING CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS
THIS FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED MASTER REVOLVING
CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS (this "Amendment") made as of this
29th day of December, 2004, 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 ("FB"),
DEUTSCHE BANK TRUST COMPANY AMERICAS ("Deutsche"), XX XXXXXX XXXXX BANK, N.A.
(successor by merger to Bank One, N.A. (Main Office Chicago)) ("XX Xxxxxx") ,
STANDARD FEDERAL BANK N.A. ("Standard"), HUNTINGTON NATIONAL BANK
("Huntington"), U.S. BANK NATIONAL ASSOCIATION ("USB"), PNC BANK, NATIONAL
ASSOCIATION ("PNC") and KEYBANK NATIONAL ASSOCIATION ("KeyBank"; FB, Deutsche,
XX Xxxxxx, Standard, Huntington, USB, PNC and KeyBank are hereinafter referred
to collectively as the "Banks"), and FLEET NATIONAL BANK, as Agent for the Banks
(the "Agent").
WITNESSETH:
WHEREAS, Borrower, Guarantor, Agent and the Banks a party thereto entered
into that certain Fourth Amended and Restated Master Revolving Credit Agreement
dated as of December 30, 2002 (the "Credit Agreement"); and
WHEREAS, Guarantor executed that certain Fourth Amended and Restated
Unconditional Guaranty of Payment and Performance dated December 30, 2002 (the
"Guaranty"); and
WHEREAS, the parties hereto have agreed to certain modifications and
desire to enter into this Amendment to effect such changes.
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 Credit Agreement.
2. Modification of the Credit Agreement. Borrower, Guarantor, the Banks
and Agent do hereby modify and amend the Credit Agreement as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by adding
the definitions of "Aggregate Borrowing Base Value", "Swing Line", "Swing Line
Borrowing", "Swing Line Lender", "Swing Line Loan", "Swing Line Loan Notice,"
"Swing Line Note," and "Swing Line Sublimit" as follows:
"Aggregate Borrowing Base Value. As of any date of determination,
the Aggregate Borrowing Base Value is the sum of the Appraised Values of
the Mortgaged
Property included in the Borrowing Base as most recently determined as
provided under Section 5.2 or Section 10.16 hereof; provided that if Agent
receives satisfactory evidence that any Mortgaged Property has
demonstrated improvement in occupancy or rental revenue from the date of
the last determination of Appraised Value of such Mortgaged Property, then
an amount equal to the Operating Cash Flow of such Mortgaged Property for
the period covered by the four previous consecutive fiscal quarters
(treated as a single accounting period) divided by 9.00% capitalization
rate shall be utilized instead of the Appraised Value for such Mortgaged
Property.
Swing Line. The revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.10.
Swing Line Borrowing. A borrowing of a Swing Line Loan pursuant to
Section 2.10.
Swing Line Lender. Fleet National Bank, in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
Swing Line Loan. See Section 2.10(a).
Swing Line Loan Notice. A notice of a Swing Line Borrowing pursuant
to Section 2.10(b), which, if in writing, shall be substantially in the
form of Exhibit F attached hereto.
Swing Line Note. See Section 2.10(g).
Swing Line Sublimit. An amount equal to $16,000,000.00, as such
amount may increase as provided in Section 2.10. The Swing Line Sublimit
is part of, and not in addition to, the Total Commitments."
(b) The definition of "Applicable Margin" in Section 1.1 of the
Credit Agreement, appearing on page 2 thereof, is hereby amended by deleting the
figures in the column under the heading "LIBOR Rate Loans" and inserting in lieu
thereof the following:
LIBOR Rate Loans
----------------
"Pricing Level 1 ........................................ 1.15%
Pricing Xxxxx 0 ......................................... 1.25%
Pricing Xxxxx 0 ......................................... 1.40%
Pricing Xxxxx 0 ......................................... 1.55%"
(c) The definition of "Approved Subsidiary" in Section 1.1 of the
Credit Agreement, appearing on page 3 thereof, is hereby deleted in its entirety
and the following definition is hereby inserted in lieu thereof:
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"Approved Subsidiary. A wholly-owned Subsidiary of the Borrower, the
formation and organizational structure of which and the ownership of real
estate assets by which has been approved in writing by the Majority Banks
and whose Real Estate will be or is proposed to be included as part of the
Collateral."
(d) The definition of "Arranger" in Section 1.1 of the Credit
Agreement, appearing on page 3 thereof, is hereby deleted in its entirety and
the following definition is hereby inserted in lieu thereof:
"Arranger. Banc of America Securities LLC, as successor to Fleet
Securities, Inc."
(e) The definition of "Borrowing Base" in Section 1.1 of the Credit
Agreement, appearing on page 4 thereof, is hereby deleted in its entirety and
the following definition is hereby inserted in lieu thereof:
"Borrowing Base. At any time with respect to the Borrower and any
Approved Subsidiary, the Borrowing Base shall be the Borrowing Base for
Eligible Real Estate included in the Mortgaged Property owned by the
Borrower or any Approved Subsidiary. The Borrowing Base for Eligible Real
Estate included in the Mortgaged Property shall be the amount which is the
lesser of (a) seventy percent (70%) of the Aggregate Borrowing Base Value;
and (b) the sum of the Debt Service Coverage Amounts for each Mortgaged
Property, and the amount which is the lesser of (a) and (b) shall be the
Borrowing Base for Eligible Real Estate included in the Mortgaged
Property; and provided, however, that the portion of the Borrowing Base
attributable to Regular Real Estate shall at no time be less than
sixty-five percent (65%) of the entire Borrowing Base. Notwithstanding the
foregoing, the Borrowing Base attributable to a Mortgaged Property shall
not exceed the amount to which recovery under the applicable Security Deed
is limited, unless such Security Deed is amended to increase any such
limit."
(f) The definition of "Commitment" in Section 1.1 of the Credit
Agreement, appearing on page 6 thereof, is hereby deleted in its entirety and
the following definition is hereby inserted in lieu thereof:
"Commitment. With respect to each Bank, the amount set forth on
Schedule 1 hereto as the amount of such Bank's Commitment to make or
maintain Loans to the Borrower and to participate in Letters of Credit and
Swing Line Loans for the account of the Borrower, as the same may be
changed from time to time in accordance with the terms of this Agreement."
(g) Line 7 of the definition of "Consolidated Total Adjusted Asset
Value" in Section 1.1 of the Credit Agreement, appearing on page 6 thereof, is
hereby amended by deleting the phrase "(B) nine and one half percent (9.5%)
capitalization rate" and inserting in lieu thereof the following: "(B) nine
percent (9.00%) capitalization rate."
(h) The definition of "Debt Service Coverage Amount" in Section 1.1
of the Credit Agreement, appearing on page 8 thereof, is hereby deleted in its
entirety and the following definition is hereby inserted in lieu thereof:
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"Debt Service Coverage Amount. At any time determined by the Agent, an
amount equal to the maximum principal loan amount which, when bearing
interest at a rate per annum equal to the greater of (i) the then-current
annual yield on ten (10) year obligations issued by the United States
Treasury most recently prior to the date of determination plus 2.0%
payable based on a 25 year mortgage style amortization schedule (expressed
as a mortgage constant percentage) and (ii) eight percent (8.0%), would be
payable by the monthly principal and interest payment amount resulting
from dividing (a) the Operating Cash Flow from an individual Mortgaged
Property for the preceding four fiscal quarters divided by 1.40 by (b) 12.
Attached hereto as Schedule 2.1 is an example of the calculation of Debt
Service Coverage Amount (such example is meant only as an illustration
based upon the assumptions set forth in such example, and shall not be
interpreted so as to limit the Agent in its good faith determination of
the Debt Service Coverage Amount hereunder as hereinafter provided). The
determination of the Debt Service Coverage Amount and the components
thereof by the Agent shall, so long as the same shall be determined in
good faith, be conclusive and binding absent manifest error. In the event
that the Borrower or any Approved Subsidiary shall have owned a Mortgaged
Property for less than four consecutive fiscal quarters, then for the
purpose of determining the Debt Service Coverage Amount, the Operating
Cash Flow with respect to such Mortgaged Property shall be annualized in
such manner as the Agent shall reasonably determine. For the purpose of
calculating Operating Cash Flow under this definition as to any Mortgaged
Property, the Operating Cash Flow Rental Adjustment shall be applied to
any Mortgaged Property affected by any of the events described in the
definition of Operating Cash Flow Rental Adjustment."
(i) The definition of "Loans" in Section 1.1 of the Credit
Agreement, appearing on page 17 thereof, is hereby deleted in its entirety and
the following definition is hereby inserted in lieu thereof:
"Loans. See Section 2.1. Swing Line Loans shall constitute "Loans" for all
purposes under this Agreement (provided that only the Swing Line Lender
shall be obligated to make a Swing Line Loan), but shall not be considered
the utilization of a Bank's Commitment."
(j) The definition of "Maturity Date" in Section 1.1 of the Credit
Agreement, appearing on page 17 thereof, is hereby deleted in its entirety and
the following definition is hereby inserted in lieu thereof:
"Maturity Date. December 29, 2005, as the same may be extended by
the Borrower as provided in Section 4.16, or such earlier date on which
the Loans shall become due and payable pursuant to the terms hereof."
(k) The definition of "Notes" in Section 1.1 of the Credit
Agreement, appearing on page 18 thereof, is hereby deleted in its entirety and
the following definition is hereby inserted in lieu thereof:
"Notes. See Section 2.3. Swing Line Notes shall constitute Notes for all
purposes under this Agreement."
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(l) Section 2.1 of the Credit Agreement, appearing on page 24
thereof, is hereby deleted in its entirety and the following is inserted in lieu
thereof:
"SECTION 2.1 COMMITMENT TO LEND. Subject to the terms and conditions
set forth in this Agreement, each of the Banks severally agrees to lend to
the Borrower (the "Loans"), and the Borrower may borrow (and repay and
reborrow) from time to time between the Closing Date and the Maturity Date
upon notice by the Borrower to the Agent given in accordance with Section
2.5, such sums as are requested by the Borrower for the purposes set forth
in Section 7.11 up to a maximum aggregate principal amount Outstanding
(after giving effect to all amounts requested and the amount of Swing Line
Loans and Letters of Credit Outstanding) at any one time equal to the
lesser of (a) such Bank's Commitment minus an amount equal to such Bank's
participations in the Outstanding Swing Line Loans and aggregate Letters
of Credit Outstanding and (b) an amount equal to the Borrowing Base
multiplied by such Bank's Commitment Percentage minus an amount equal to
such Bank's participations in the Swing Line Loans and aggregate Letters
of Credit Outstanding; provided, that, in all events no Default or Event
of Default shall have occurred and be continuing; and provided, further
that the Outstanding Loans (including the Swing Line Loans, after giving
effect to all amounts requested) and the Letters of Credit Outstanding
shall not at anytime exceed the Total Commitment. The Loans shall be made
pro rata in accordance with each Bank's Commitment Percentage. Each
request for a Loan hereunder shall constitute a representation and
warranty by the Borrower that all of the conditions set forth in Section
10 and Section 11, in the case of the initial Loan, and Section 11, in the
case of all other Loans, have been satisfied on the date of such request."
(m) Section 2.7(a) of the Credit Agreement, appearing on pages 27
and 28 thereof, is hereby deleted in its entirety and the following is inserted
in lieu thereof:
"(a) Subject to the terms and conditions hereof and provided that
all of the conditions contained in Sections 10 and 11 have been satisfied,
the Agent agrees to issue Letters of Credit for the account of the
Borrower, from the date of this Agreement to, but not including, the
Maturity Date at such times as the Borrower may request; provided,
however, that the aggregate amount of Letters of Credit (including such
requested Letter of Credit) at any one time Outstanding shall not exceed
the lesser of (i) the lesser of (A) the Total Commitment or (B) the amount
of the Borrowing Base, in each case, minus the aggregate amount of
Outstanding Loans (including any Swing Line Loans and amounts drawn under
any Letters of Credit and not yet reimbursed by the Borrower), or (ii)
$10,000,000.00. The issuance of a Letter of Credit pursuant to this
Section 2.7(a) shall be deemed to reduce the aggregate of the unborrowed
Commitments of the Banks then in effect by an amount equal to the undrawn
face amount of such Letter of Credit as set forth herein. In no event
shall any amount drawn under a Letter of Credit be available for
reinstatement or a subsequent drawing under a Letter of Credit. Each Bank
severally agrees to participate in each such Letter of Credit issued by
the Agent in an amount equal to its Commitment Percentage of the total
amount of the Letter of Credit requested by the Borrower; provided,
however, that no Bank shall be required to participate in any Letter of
Credit to the extent that its participation therein plus (x) such Bank's
participation in the aggregate of all other Letters of Credit Outstanding,
and (y) such Bank's Commitment Percentage of the amount of any Loans
Outstanding (including any Swing
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Line Loans and amounts drawn under any Letters of Credit and not yet
reimbursed by the Borrower), would exceed an amount equal to such Bank's
Commitment as then in effect. Each Bank agrees with the Agent that it will
participate in each Letter of Credit issued by the Agent to the extent
required by the preceding sentence. No Bank's obligation to participate in
a Letter of Credit shall be affected by any other Bank's failure to
participate in the same or any other Letter of Credit."
(n) Section 2.9(a) of the Credit Agreement, appearing on page 32
thereof, is hereby deleted in its entirety and the following is inserted in lieu
thereof:
"(a) Provided that no Default or Event of Default shall have
occurred and be continuing, the Borrower shall have the option, by giving
written notice to the Agent (the "Increase Notice"), subject to the terms
and conditions set forth in this Agreement, to increase the Total
Commitment by an amount up to $40,000,000.00 (the amount of the requested
increase to be set forth in the Increase Notice) (which, assuming no
previous reduction in the Commitments, would result in a maximum Total
Commitment of $200,000,000). The execution and delivery of the Increase
Notice by Borrower shall constitute a representation and warranty by the
Borrower that all the conditions set forth in this Section 2.9 shall have
been satisfied on the date of such Increase Notice."
(o) The Credit Agreement is hereby amended by adding the following
as a new Section 2.10 thereof:
"SECTION 2.10 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of
the other Banks set forth in this Section 2.10, to make loans (each such
loan, a "Swing Line Loan") to the Borrower from time to time on any
Business Day prior to the Maturity Date (or, if earlier, the date of
termination of Commitments pursuant to Section 12.4 hereof) in an
aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Commitment Percentage of the Outstanding Loans
and Letters of Credit Outstanding of the Bank acting as Swing Line Lender,
may exceed the amount of such Bank's Commitment; provided, however, that
after giving effect to any Swing Line Loan, (i) the Outstanding Loans,
Letters of Credit Outstanding and Swing Line Loans Outstanding shall not
exceed the Total Commitment, and (ii) the aggregate Outstanding Loans of
any Bank (other than the Swing Line Lender), plus such Bank's Commitment
Percentage of the Letters of Credit Outstanding, plus such Bank's
Commitment Percentage of the amount of all Swing Line Loans Outstanding
shall not exceed such Bank's Commitment; provided, further, that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance
any Outstanding Swing Line Loan; and provided, further, that in all events
no Default or Event of Default shall have occurred and be continuing.
Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.10, prepay under
Section 3 hereof, and reborrow under this Section 2.10. Each Swing Line
Loan shall be a Base Rate Loan. Immediately upon the making of a Swing
Line Loan, each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase
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from the Swing Line Lender a risk participation in such Swing Line Loan in
an amount equal to the product of such Bank's Commitment Percentage times
the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made
upon the Borrower's irrevocable notice to the Swing Line Lender and the
Agent, which may be given by telephone. Each such notice must be received
by the Swing Line Lender and the Agent not later than 1:00 p.m. (Boston
time) on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $500,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice
must be confirmed promptly by delivery to the Swing Line Lender and the
Agent of a written Swing Line Loan Notice, appropriately completed and
signed by the Borrower. Promptly after receipt by the Swing Line Lender of
any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm
with the Agent (by telephone or in writing) that the Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Agent (by telephone or in writing) of the contents
thereof. Unless the Swing Line Lender has received notice (by telephone or
in writing) from the Agent (including at the request of any Bank) prior to
2:00 p.m. (Boston time) on the date of the proposed Swing Line Borrowing
(A) directing the Swing Line Lender not to make such Swing Line Loan as a
result of the limitations set forth in the proviso to the first sentence
of Section 2.10(a), or (B) that one or more of the applicable conditions
specified in Section 11 is not then satisfied, then, subject to the terms
and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. (Boston time) on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower
at its office by crediting the account of the Borrower on the books of the
Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Bank make a Base Rate Loan in an amount equal to
such Bank's Commitment Percentage of the amount of Swing Line Loans
then Outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Loan Request for purposes
hereof) and in accordance with the requirements of Section 2.5,
without regard to the minimum and multiples specified therein for
the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Total Commitments and the conditions set
forth in Section 11. The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Loan Request promptly after
delivering such notice to the Agent. Each Bank shall make an amount
equal to its Commitment Percentage of the amount specified in such
Loan Request available to the Agent in immediately available funds
for the account of the Swing Line Lender at the Agent's Head Office
not later than 1:00 p.m. (Boston time) on the day specified in such
Loan Request, whereupon, subject to Section 2.10(c)(ii), each Bank
that so makes funds available shall be deemed to have made a Base
Rate
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Loan to the Borrower in such amount. The Agent shall remit the funds
so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with Section
2.10(c)(i), the request for Base Rate Loans submitted by the Swing
Line Lender as set forth herein shall be deemed to be a request by
the Swing Line Lender that each of the Banks fund its risk
participation in the relevant Swing Line Loan and each Bank's
payment to the Agent for the account of the Swing Line Lender
pursuant to Section 2.10(c)(i) shall be deemed payment in respect of
such participation.
(iii) If any Bank fails to make available to the Agent for the
account of the Swing Line Lender any amount required to be paid by
such Bank pursuant to the foregoing provisions of this Section
2.10(c) by the time specified in Section 2.10(c)(i), the Swing Line
Lender shall be entitled to recover from such Bank (acting through
the Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a
rate per annum equal to the greater of the Federal Funds Effective
Rate and a rate determined by the Swing Line Lender in accordance
with banking industry rules on interbank compensation. A certificate
of the Swing Line Lender submitted to any Bank (through the Agent)
with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Bank's obligation to make Committed Loans or to
purchase and fund risk participations in Swing Line Loans pursuant
to this Section 2.10(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Bank may
have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a
Default or Event of Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Bank's obligation to make Committed Loans
pursuant to this Section 2.10(c) is subject to the conditions set
forth in Section 11. No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.
(v) The Borrower shall repay each Swing Line Loan on the
earlier to occur of (i) the date five (5) Business Days after such
Swing Line Loan is made and (ii) the Maturity Date.
(d) Repayment of Participations.
(i) At any time after any Bank has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Bank its Commitment Percentage
of such payment
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(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Bank's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion),
each Bank shall pay to the Swing Line Lender its Commitment
Percentage thereof on demand of the Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at
a rate per annum equal to the Federal Funds Effective Rate. The
Agent will make such demand upon the request of the Swing Line
Lender. The obligations of the Banks under this clause shall survive
the payment in full of the Obligations and the termination of this
Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing
Line Loans. Until each Bank funds its Base Rate Loan or risk participation
pursuant to this Section 2.10 to refinance such Bank's Commitment
Percentage of any Swing Line Loan, interest in respect of such Commitment
Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
(g) Swing Line Note. At the Swing Line Lender's option, the Swing
Line Loans shall be evidenced by a separate promissory note of the
Borrower in substantially the form of Exhibit G hereto (the "Swing Line
Note"), dated the date of this Agreement and completed with appropriate
insertions. The Swing Line Note shall be payable to the order of the Swing
Line Lender in the principal face amount equal to the Swing Line Loan and
shall be subject to mandatory prepayment in the amounts and under the
circumstances set forth in Section 3 of this Agreement, and may be prepaid
in whole or from time to time in part, all as set forth in Section 3 of
this Agreement. The Borrower irrevocably authorizes the Swing Line Lender
to make or cause to be made, at or about the time of the Drawdown Date of
any Swing Line Loan or at the time of receipt of any payment of principal
thereof, an appropriate notation on the Swing Line Lender's Record
reflecting the making of such Swing Line Loan or (as the case may be) the
receipt of such payment. The amount of the Swing Line Loans Outstanding
set forth on the Swing Line Lender's Record shall be prima facie evidence
of the principal amount thereof owing and unpaid to the Swing Line Lender,
but the failure to record, or any error in so recording, any such amount
on the Swing Line Lender's Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under the Swing Line Note to make
payments of principal of or interest on any Swing Line Note when due.
(h) Swing Line Lender. The Swing Line Lender shall be deemed a
"Bank" for all purposes under this Agreement.
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(i) Increase of Commitment. In the event that the Total Commitment
is increased pursuant to Section 2.9, then the Swing Line Sublimit shall
increase by an amount equal to ten percent (10%) of the increase in the
Total Commitment (rounded to the next lowest $100,000), subject to the
terms hereof; provided that in no event shall the Swing Line Sublimit
exceed $20,000,000.00. As a condition to such increase, Borrower shall
deliver to the Swing Line Lender a replacement Swing Line Note, and
execute and deliver such other amendments to the Loan Documents as may be
reasonably required by Swing Line Lender or Agent and pay the costs of any
mortgagee's title insurance policy or endorsement or update thereof, all
recording costs and fees, and any and all intangibles taxes or other
documentary and mortgage taxes, assessments or charges or any similar
fees, taxes or expenses which are demanded by any governmental agency in
connection with such increase (it being acknowledged that the requirements
of this sentence may be satisfied in connection with and as a part of the
satisfaction of the requirements of Section 2.9(b)(iv) with respect to the
corresponding increase of the Total Commitment)."
(p) Section 3.2 of the Credit Agreement, appearing on page 33
thereof, is hereby deleted in its entirety and the following is inserted in lieu
thereof:
"SECTION 3.2 MANDATORY PREPAYMENTS. If at any time the aggregate of
the Outstanding Loans (including any Swing Line Loans) and Letters of
Credit Outstanding exceeds (a) the Total Commitment, or (b) the Borrowing
Base, then the Borrower shall pay the amount of such excess to the Agent
for the respective accounts of the Banks for application to the Loans
within the time period provided for in Section 12.3, subject to the
Borrower's right to provide additional Collateral pursuant to Section
12.2, except that the amount of any Swing Line Loan shall be paid solely
to the Swing Line Lender."
(q) Section 3.4 of the Credit Agreement, appearing on page 33
thereof, is hereby deleted in its entirety and the following is inserted in lieu
thereof:
"SECTION 3.4 PARTIAL PREPAYMENTS. Each partial prepayment of the
Loans under Section 3.2 and Section 3.3 shall be an integral multiple of
$100,000, shall be accompanied by the payment of accrued interest on the
principal prepaid to the date of payment and, after payment of such
interest, shall be applied, in the absence of instruction by the Borrower,
first to the principal of any Outstanding Swing Line Loan, then to the
principal of the other Base Rate Loans and then to the principal of LIBOR
Rate Loans."
(r) The Credit Agreement is hereby amended by adding the following
as a new Section 4.16 thereof:
"4.16 EXTENSION OF MATURITY DATE.
(a) Provided that no Default or Event of Default shall have occurred
and be continuing, the Borrower shall have the option, to be exercised by
giving written notice to the Agent in the form of Exhibit E hereto not
more than one hundred twenty (120) days and not less than sixty (60) days
prior to the initial scheduled Maturity Date (an "Extension Request"),
subject to the terms and conditions set forth in this Agreement, to extend
the Maturity Date by one (1) year to December 29, 2006. The request by the
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Borrower for extension of the Maturity Date shall constitute a
representation and warranty by the Borrower that all of the conditions set
forth in this Section shall have been satisfied on the date of such
request.
(b) The obligations of the Agent and the Banks to extend the
Maturity Date as provided in Section 4.16(a) shall be subject to the
satisfaction of the following conditions precedent on the then effective
Maturity Date (without regard to such extension request):
(i) Payment of Extension Fee. The Borrower shall pay to the
Agent on or before the then effective Maturity Date for the pro rata
account of the Banks in accordance with their respective Commitment
Percentages an extension fee equal to .20% of the then Total
Commitment, which fee shall, when paid, be fully earned and
non-refundable under any circumstances.
(ii) No Default. On the date the Extension Request is given
there shall exist no Event of Default, and on the Maturity Date (as
determined without regard to such extension) there shall exist no
Default or Event of Default.
(iii) Representations and Warranties. The representations and
warranties made by the Borrower, the Guarantor or any of their
respective subsidiaries in the Loan Documents or otherwise made by
or on behalf of such Persons in connection therewith or after the
date thereof shall have been true and correct in all material
respects when made and shall also be true and correct in all
material respects on the Maturity Date (as determined without regard
to such extension), except to the extent of changes resulting from
transactions contemplated or permitted by this Agreement and the
other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse,
except to the extent that such representations and warranties relate
expressly to an earlier date, and except as disclosed to the Agent
and the Banks in writing and approved by the Agent and the Majority
Banks in writing.
(iv) Additional Documents and Fees. The Borrower shall also
execute and deliver to Agent and the Banks such additional
documents, instruments and certifications as the Agent may
reasonably require, including, without limitation, updated
Appraisals for the Mortgaged Properties as reasonably required by
Agent (it being acknowledged that any Appraisal for a Mortgaged
Property that was prepared more than six (6) months prior to the
then effective Maturity Date (without regard to such extension) may
be required to be updated), any amendments to Security Documents, as
Agent may reasonably require, and the Borrower shall upon demand pay
the cost of any mortgagee's title insurance policy or any
endorsement or update thereto or any updated UCC searches, in each
case as reasonably required by Agent, all recording costs and fees,
and any and all intangible taxes or other documentary stamp or
mortgage taxes, assessments or charges or any similar fees, taxes or
expenses which are demanded by any government agency in connection
with such extension of the Maturity Date and the recording of any
amendments.
11
(c) The Agent shall notify each of the Banks in the event that the
Maturity Date is extended as provided in this Section 4.16."
(s) The first sentence of Section 7.15 of the Credit Agreement,
appearing on page 66 thereof, is hereby amended by deleting the first sentence
in its entirety and inserting in lieu thereof the following:
"The Borrower shall at all times from and after the date hereof maintain
in full force and effect, an Interest Rate Contract(s) in form and
substance satisfactory to Agent in an amount necessary to insure that not
more than twenty-five percent (25%) of all outstanding "Debt" (as
hereinafter defined) of Borrower and its Subsidiaries is variable rate
Debt."
(t) Line 7 of Section 8.3(k) of the Credit Agreement is hereby
amended by deleting the figure "30,000,000.00" and inserting in lieu thereof
"50,000,000.00".
(u) Section 9.4 of the Credit Agreement, appearing on page 76
thereof, is hereby amended by deleting such section in its entirety and
inserting in lieu thereof the following:
"Section 9.4 CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not
permit its Consolidated Tangible Net Worth to be less than $300,000,000.00
plus seventy-five percent (75%) of any Net Offering Proceeds received by
the Borrower or the Guarantor after September 30, 2004."
(v) Section 12.6(b) of the Credit Agreement, appearing on pages 85
and 86 thereof, is hereby amended by deleting said section in its entirety and
inserting in lieu thereof the following:
"(b) Second, to all other Obligations in such order or preference as
the Majority Banks shall determine; provided, however, that (i) Swing Line
Loans shall be repaid first, (ii) distributions in respect of such
Obligations shall be made pari passu among Obligations with respect to the
Agent's fee payable pursuant to Section 4.3 and all other Obligations,
(iii) in the event that any Bank shall have wrongfully failed or refused
to make an advance under Section 2.6, Section 2.7(f) or Section 2.10(c)
and such failure or refusal shall be continuing, advances made by other
Banks during the pendency of such failure or refusal shall be entitled to
be repaid as to principal and accrued interest in priority to the other
Obligations described in this subsection (b), (iv) Obligations owing to
the Banks with respect to each type of Obligation such as interest,
principal, fees and expenses (but excluding the Swing Line Loans), shall
be made among the Banks pro rata, and (iv) amounts received or realized
from the Borrower shall be applied against the Obligations of the
Borrower; and provided, further that the Majority Banks may in their
discretion make proper allowance to take into account any Obligations not
then due and payable;"
(w) Section 13 of the Credit Agreement, appearing on page 86
thereof, is hereby amended by deleting said section in its entirety and
inserting in lieu thereof the following:
"SECTION 13. SETOFF. Regardless of the adequacy of any collateral,
during the continuance of any Event of Default, any deposits (general or
specific, time or demand,
12
provisional or final, regardless of currency, maturity, or the branch of
where such deposits are held) or other sums credited by or due from any of
the Banks to the Borrower or the Guarantor and any securities or other
property of the Borrower or the Guarantor in the possession of such Bank
may be applied to or set off against the payment of Obligations of such
Person and any and all other liabilities, direct, or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, of
such Person to such Bank. Each of the Banks agrees with each other Bank
that if such Bank shall receive from the Borrower or the Guarantor,
whether by voluntary payment, exercise of the right of setoff, or
otherwise, and shall retain and apply to the payment of the Note or Notes
held by such Bank (but excluding any Swing Line Note) any amount in excess
of its ratable portion of the payments received by all of the Banks with
respect to the Notes held by all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with respect to such
excess, either by way of distribution, pro tanto assignment of claims,
subrogation or otherwise as shall result in each Bank receiving in respect
of the Notes held by it its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is
thereafter recovered from such Bank, such disposition and arrangements
shall be rescinded and the amount restored to the extent of such recovery,
but without interest."
(x) Section 27 of the Credit Agreement, appearing on pages 98 and 99
thereof, is hereby amended by deleting said section in its entirety and
inserting in lieu thereof the following:
"SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
expressly provided in this Agreement, any consent or approval required or
permitted by this Agreement may be given and any term of this Agreement or
of any other instrument related hereto or mentioned herein may be amended,
and the performance or observance by the Borrower or the Guarantor of any
terms of this Agreement or such other instrument or the continuance of any
Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Majority Banks. Notwithstanding the
foregoing, (a) none of the following may occur without the written consent
of each Bank: a decrease in the rate of interest on the Notes; a change in
the Maturity Date of the Notes, except as provided in Section 4.16 hereof;
an increase in the amount of the Commitments of the Banks except pursuant
to Section 18.1 or Section 2.9; a forgiveness, reduction or waiver of the
principal of any unpaid Loan or any interest thereon; the postponement of
any date fixed for any payment of principal of or interest on the Loans; a
decrease of the amount of any fee (other than late fees) payable to a Bank
hereunder; the release of the Borrower, the Guarantor or any Collateral
except as otherwise provided herein; a change in the manner of
distribution of any payments to the Banks or the Agent; an amendment of
the definition of Majority Banks or Required Banks or of any requirement
for consent by the Required Banks or all of the Banks; a modification,
amendment or waiver of the provisions of Section 9.1 or any of the
definitions used therein or any of the definitions used in the definition
of "Borrowing Base"; or an amendment of this Section 27 and (b) the
provisions of Sections 5.3(b)(vi) and the proviso following Section
5.3(b)(vi), 8.3(k), 9.2 and 9.3 or any of the definitions used therein may
not be modified, amended or waived without the written consent of the
Required Banks. The amount of the Agent's fee payable for the Agent's
account and the provisions of Section 14 may not be amended without the
written consent of the
13
Agent. There shall be no amendment, modification or waiver of any
provision in the Loan Documents with respect to Swing Line Loans without
the consent of the Swing Line Lender. The Borrower and the Guarantor each
agrees to enter into such modifications or amendments of this Agreement or
the other Loan Documents as may be reasonably requested by Fleet in
connection with the acquisition by each Bank acquiring all or a portion of
the Commitment, provided that no such amendment or modification materially
affects or increases any of the obligations of the Borrower or the
Guarantor hereunder. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon. No course of
dealing or delay or omission on the part of the Agent or any Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower or the
Guarantor shall entitle the Borrower and the Guarantor to other or further
notice or demand in similar or other circumstances."
(y) Appendix A to the Compliance Certificate attached as Exhibit C
to the Credit Agreement, appearing on pages C-3 through C-4 thereof, is hereby
amended by deleting Appendix A in its entirety and inserting in lieu thereof the
Exhibit C Appendix A attached hereto.
(z) The Credit Agreement is hereby amended by inserting Exhibit E
attached hereto as new Exhibit E to the Credit Agreement.
(aa) The Credit Agreement is hereby amended by inserting Exhibit F
attached hereto as new Exhibit F to the Credit Agreement.
(bb) The Credit Agreement is hereby amended by deleting Schedule 1
thereof in its entirety and inserting in lieu thereof the Schedule 1 attached
hereto (provided that the Commitments shown therein are subject to the terms of
Paragraph 7 below).
(cc) The Credit Agreement is hereby amended by inserting Exhibit G
attached hereto as new Exhibit G to the Credit Agreement.
(dd) The Credit Agreement is hereby amended by deleting Schedule 2
thereof in its entirety and inserting in lieu thereof the Schedule 2 attached
hereto.
3. References to Credit Agreement; Loan. All references in the Loan
Documents to the Credit Agreement shall be deemed a reference to the Credit
Agreement as modified and amended herein. All references in the Loan Documents
to the Loans shall be deemed a reference to Loans in the maximum amount of up to
$160,000,000.00, as the same may be increased as provided in Section 2.9 of the
Credit Agreement.
4. Consent of Guarantor. By execution of this Amendment, Guarantor hereby
expressly consents to the modifications and amendments relating to the Credit
Agreement 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.
14
5. 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 any other agreements executed and delivered in connection herewith
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 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 and
any other agreements executed and delivered in connection herewith 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 any other agreements executed and delivered in connection herewith
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 and the filing of the
Security Documents in the appropriate records office with respect thereto.
(d) Representations and Warranties in Loan Documents. 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 the date thereof were true and correct in all material
respects when made and are true and correct in all material respects as of the
date hereof, except to the extent of changes resulting from transactions
contemplated or permitted by the Loan Documents and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, except to the extent that such representations and warranties relate
expressly to an earlier date, and except as disclosed to the Agent and the Banks
in writing and approved by the Agent and the Majority Banks in writing.
6. Closing Conditions. In connection with the execution and delivery of
this Amendment, Borrower shall deliver to Agent the following, each in form and
substance satisfactory to Agent:
15
(a) Payment to Agent and the Banks of all fees required by this
Agreement;
(b) Delivery of such evidence of authority of the Borrower and
Guarantor and legal opinions of Borrower and Guarantor's counsel as Agent may
reasonably require; and
(c) Such other documents, instruments and agreements as the Agent
may reasonably require.
7. Increase of Commitment.
(a) Borrower has requested that the Banks increase the Total
Commitment to the sum of One Hundred Sixty Million and No/100 Dollars
($160,000,000.00). In connection therewith, Borrower has executed and delivered
replacement Notes to such Banks that have acquired the increase in the Total
Commitment, and Borrower has paid to Agent and such increasing Banks such fees
as are due and payable to the Agent and such Banks in connection therewith,
which fees are fully earned and nonrefundable under any circumstances. The Banks
have made such adjustments to the outstanding Loans of such Banks so that after
giving effect to such increase, the outstanding Loans are consistent with their
pro rata share. Notwithstanding the foregoing, the increase of the Total
Commitment in the amount of $35,000,000.00 shall not be available to be borrowed
by Borrower until satisfaction of the following conditions, each of which shall
be satisfied on or before January 31, 2005 and which shall each be in form and
substance reasonably satisfactory to Agent:
(i) Delivery to Agent of such amendments, documents,
instruments and agreements as the Agent may reasonably require to reflect the
modification of the Credit Agreement and the increase of the Total Commitment;
(ii) Delivery to Agent of endorsements to each Title Policy
with respect to each Mortgaged Property; and
(iii) Payment of any mortgage, recording, intangible,
documentary stamp or other similar taxes and charges which the Agent reasonably
determines to be payable as a result of the increase of the Total Commitment;
and
(iv) Such other documents, instruments and agreements as the
Agent may reasonably require.
(b) Notwithstanding that the increase in the Total Commitment is not
available to be borrowed by Borrower until the satisfaction and conditions set
forth in paragraph 7(a) above, the increased Commitment shall be applicable for
all other purposes of the Loan Documents, including the determination of
Required Banks and the payment of unused facility fees pursuant to Section 2.2
of the Credit Agreement.
8. Admission of PNC.
(a) By execution of this Amendment, PNC hereby assumes all
obligations of a Bank from and after the date hereof with respect to its
Commitment as if PNC were an original
16
Bank under and signatory to the Credit Agreement and the intercreditor agreement
among the Agent and the Banks (the "Intercreditor Agreement").
(b) PNC (i) represents and warrants that it is legally authorized
to, and has full power and authority to, enter into this Amendment and perform
its obligations under this Amendment and the Loan Documents; (ii) confirms that
it has received copies of such documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Amendment and the Loan Documents; (iii) agrees that it has and will,
independently and without reliance upon any Bank or the Agent and based upon
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in evaluating the Loans, the Loan
Documents, the Collateral, the creditworthiness of the Borrower and the
Guarantors and the value of the assets of the Borrower and the Guarantors, and
taking or not taking action under the Loan Documents and the Intercreditor
Agreement; and (iv) appoints and authorizes the Agent to take such action as
Agent on its behalf and to exercise such powers as are reasonably incidental
thereto pursuant to the terms of the Loan Documents and the Intercreditor
Agreement. Neither Agent nor any other Bank makes to PNC any representation or
warranty, express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability, genuineness or
sufficiency of any Loan Document or any other instrument or document furnished
pursuant thereto or in connection with the Loan, the collectability of the
Loans, the continued solvency of the Borrower or the Guarantors or the continued
existence, sufficiency or value of the Collateral or any assets of the Borrower
or the Guarantors which may be realized upon for the repayment of the Loans, or
the performance or observance by the Borrower or the Guarantors of any of their
respective obligations under the Loan Documents to which it is a party or any
other instrument or document delivered or executed pursuant thereto or in
connection with the Loan.
9. 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.
10. Waiver of Claims. Borrower and Guarantor acknowledge, represent and
agree that Borrower and Guarantor 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.
11. Ratification. Except as hereinabove set forth or in any other document
previously executed or executed in connection herewith, all terms, covenants and
provisions of the Credit Agreement and the other Loan Documents remain unaltered
and in full force and effect, and the parties hereto do hereby expressly ratify
and confirm the Credit Agreement and the other Loan Documents as modified and
amended herein or therein. Nothing in this Amendment or in any other document
executed in connection herewith shall be deemed or construed to constitute, and
there has not otherwise occurred, a novation, cancellation, satisfaction,
release, extinguishment
17
or substitution of the indebtedness evidenced by the Notes or the other
obligations of Borrower and Guarantor under the Loan Documents (including
without limitation the Guaranty).
12. Counterparts. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
13. Release of Cox Creek. By execution hereof, the Banks authorize Agent
to, and Agent does hereby, release Ramco Cox Creek, LLC as a Subsidiary
Guarantor from all of its obligations under the Subsidiary Guaranty and all
other Loan Documents.
14. Miscellaneous. This Amendment shall be construed and enforced in
accordance with the laws of the State of Michigan (excluding the laws applicable
to conflicts or choice of law). 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.
15. Effective Date. This Amendment shall be deemed effective and in full
force and effect as of the date hereof upon (i) the execution and delivery of
this Amendment by Borrower, Guarantor, Agent and all of the Banks, (ii) the
satisfaction of the conditions to closing set forth in this Amendment; and (iii)
the Agent confirming the satisfaction of all requirements for effectiveness of
that certain First Amendment to Unsecured Revolving Loan Agreement dated as of
even date herewith among Borrower, Guarantor, Fleet, individually and as Agent,
and the other parties which are signatories thereto, other than the
effectiveness of this Amendment.
16. USA PATRIOT Act Notice. Each Bank that is subject to the Act (as
hereinafter defined) and the Agent (for itself and not on behalf of any Bank)
hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Bank or the Agent, as
applicable, to identify the Borrower in accordance with the Act.
[Remainder of page intentionally left blank]
18
IN WITNESS WHEREOF, the parties hereto have hereto set their hands 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: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
GUARANTOR:
RAMCO-XXXXXXXXXX PROPERTIES TRUST, a
Maryland real estate investment trust
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
19
FLEET NATIONAL BANK, as a Bank and as Agent
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
20
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Xxxxxx Xxxxx
Title : Xxxxxx Xxxxx
By: /s/ Xxxxx Xxxx
Title : Xxxxx Xxxx
21
XX XXXXXX XXXXX BANK, N.A.
(SUCCESSOR BY MERGER TO BANK ONE, N.A.
(MAIN OFFICE CHICAGO))
By: ______________________________________
Title:
22
STANDARD FEDERAL BANK, N.A.
By: ______________________________________
Title:
23
HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx X. XxXxxx
Title: Vice President
24
U.S. BANK NATIONAL ASSOCIATION
By: ___________________________________
Title:
25
KEYBANK NATIONAL ASSOCIATION
By: Xxxxxx X. Xxxxxxx
Title: Vice President
26
PNC BANK, NATIONAL ASSOCIATION
By: Xxxxx X. Xxxxxxx
Title: Vice President
27
[EXHIBIT C]
APPENDIX A
TO
COMPLIANCE CERTIFICATE
A Outstanding Loans, including Swing Line Loans, and Letters of Credit of
Borrower cannot exceed the Borrowing Base (Section 9.1)
1 Outstanding principal balance of the Loans (including Swing Line
Loans):
2 Outstanding and undrawn amount of Letters of Credit:
3 Aggregate Borrowing Base Value:
4 Line 3 X 70%:
5 Debt Service Coverage Amount of Mortgaged Properties:
6 Lesser of Line 4 or Line 5 must be > than or = to line 1.
B Borrower and Guarantor Leverage cannot exceed 65% (Section 9.2)
Borrower
1 Consolidated Total Liabilities:
2 Consolidated Total Assets per balance sheet (excluding Real Estate
that is improved and not Under Development, but including any
Redevelopment Property held for less than twelve (12) months):
3 Rolling 4Q Operating Cash Flow from Real Estate that is improved and
not Under Development:
4 Consolidated Total Adjusted Asset Value:
((a) line 2 plus (b) line 3 divided by 9.00%):
5 Company Leverage (line 1 divided by line 4):
6 Line 5 cannot exceed .65.
Guarantor
1 Consolidated Total Liabilities:
2 Consolidated Total Assets per balance sheet (excluding Real Estate
that is improved and not Under Development, but including any
Redevelopment Property held for less than twelve (12) months):
3 Rolling 4Q Operating Cash Flow from Real Estate that is improved and
not Under Development:
4 Consolidated Total Adjusted Asset Value:
((a) line 2 plus (b) line 3 divided by 9.00%):
5 Company Leverage:(line 1 divided by line 4):
6 Line 5 cannot exceed .65.
C Borrower Debt Service Coverage must exceed 1.6X - rolling 4Q's
(Section 9.3)
1 Net Income:
2 Depreciation & Amortization:
EXHIBIT C-1
3 Interest Expense:
4 Extraordinary/Non-recurring losses:
5 Extraordinary/Non-recurring gains:
6 CapX Reserve Amount ($.10 psf):
7 Operating Cash Flow:
(Lines 1+2+3+4-5-6)
8 Debt Service:
9 DSC Ratio:
(line 7 divided by line 8)
10 Line 9 must exceed 1.6.
D Borrower Minimum Consolidated Tangible Net Worth (Section 9.4)
1 Consolidated Total Adjusted Asset Value:
2 Consolidated Total Liabilities:
3 Initial Consolidated Tangible Net Worth:
(line 1 minus line 2)
4 Book value intangible assets:
5 Write-up of book value of any assets due to revaluation:
6 Consolidated Tangible Net Worth:
(line 3 minus the sum of lines 4 and 5)
7 Net Offering Proceeds from offerings after September 30, 2004:
8 75% of line 7:
9 Minimum Consolidated Tangible Net Worth:
($300,000,000 + line 8)
10 Line 6 must be > than or = to line 9.
E Distributions cannot exceed 95% of Funds From Operations (Section 8.7(a))
1 Current Quarter Distributions:
2 Prior 3 Quarters Distributions:
3 Total Distributions last 4Q's:
4 GAAP Net Income for last 4Q's:
5 Adjustments to Net Income:
(exclude financing costs and gains (losses) from debt restructuring
and sales of property)
6 Depreciation (other than non-real estate depreciation) and
Amortization (other than amortization of deferred financing costs):
7 Other non-cash items:
8 Funds from Operations:
(lines 4-5+6+7=)
9 Distributions to Funds from Operations Ratio:
(line 3 divided by line 8)
10 Line 9 cannot exceed .95.
EXHIBIT C-2
EXHIBIT E
FORM OF REQUEST FOR EXTENSION OF LOANS
Fleet National Bank
______________
Ladies and Gentlemen:
Pursuant to the provisions of Section 4.16 of the Fourth Amended and
Restated Master Revolving Credit Agreement, dated as of December 30, 2002, as
amended, restated, extended, supplemented or otherwise modified from time to
time (the "Credit Agreement"), among RAMCO-XXXXXXXXXX PROPERTIES, L. P., a
Delaware limited partnership ("Borrower"), RAMCO-XXXXXXXXXX PROPERTIES TRUST, a
Maryland real estate investment trust ("Guarantor") and Fleet National Bank, as
a Bank and as Agent, and the other Banks from time to time party thereto,
Borrower hereby requests and certifies as follows:
1. Extension Request. Borrower hereby irrevocably requests that the
Maturity Date be extended to December 29, 2006.
2. No Default. The undersigned chief financial or chief accounting officer
of Borrower certifies that no Default or Event of Default has occurred and is
continuing.
3. Other Conditions. All other conditions to the extension to the Maturity
Date requested hereby set forth in Section 4.16 of the Credit Agreement have
been satisfied.
4. Definitions. Terms defined in the Credit Agreement are used herein with
the meanings so defined.
[remainder of page intentionally left blank]
EXHIBIT E-1
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
______________, 200___.
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:
EXHIBIT E-2
EXHIBIT F
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Fleet National Bank, as Swing Line Lender
Fleet National Bank, as Agent
Ladies and Gentlemen:
Reference is made to that certain Fourth Amended and Restated Master Revolving
Credit Agreement, dated as of December 30, 2002 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among RAMCO-XXXXXXXXXX PROPERTIES, L.P.(the "Borrower"), the Banks from time to
time party thereto, and Fleet National Bank, as Agent, Swing Line Lender, and
certain other parties.
The undersigned hereby requests a Swing Line Loan:
1. On __________________________________ (a Business Day).
2. In the amount of $____________________.
The Swing Line Borrowing requested herein complies with the requirements of the
provisos to the first sentence of Section 2.10(a) of the Agreement.
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:
EXHIBIT F-1
EXHIBIT G
FORM OF SWING LINE NOTE
$______________ _____________, 2002
FOR VALUE RECEIVED, the undersigned, RAMCO-XXXXXXXXXX PROPERTIES, L.P., a
Delaware limited partnership ("Maker"), hereby promises to pay to FLEET NATIONAL
BANK ("Payee"), or order, in accordance with the terms of that certain Fourth
Amended and Restated Master Revolving Credit Agreement, dated as of December 30,
2002, as from time to time in effect, among Maker, Fleet National Bank, for
itself and as Agent, such other Banks as may be from time to time named therein
(the "Credit Agreement"), and certain other parties, to the extent not sooner
paid, on or before the Maturity Date, the principal sum of _________________
($__________), or such amount as may be advanced by the Payee under the Credit
Agreement as a Swing Line Loan with daily interest from the date thereof,
computed as provided in the Credit Agreement, on the principal amount hereof
from time to time unpaid, at a rate per annum on each portion of the principal
amount which shall at all times be equal to the rate of interest applicable to
such portion in accordance with the Credit Agreement, and with interest on
overdue principal and, to the extent permitted by applicable law, on overdue
installments of interest and late charges at the rates provided in the Credit
Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Credit Agreement.
Payments hereunder shall be made to the Agent for the Payee at
______________________________, or at such other address as Agent may designate
from time to time.
This Note is one of one or more Swing Line Notes evidencing borrowings
under and is entitled to the benefits and subject to the provisions of the
Credit Agreement. The principal of this Note may be due and payable in whole or
in part prior to the Maturity Date and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Credit Agreement, and may
be prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Maker and the Banks and the Agent, whether now existing
or hereafter arising and whether written or oral, are hereby limited so that in
no contingency, whether by reason of acceleration of the maturity of any of the
Obligations or otherwise, shall the interest contracted for, charged or received
by the Banks exceed the maximum amount permissible under applicable law. If,
from any circumstance whatsoever, interest would otherwise be payable to the
Banks in excess of the maximum lawful amount, the interest payable to the Banks
shall be reduced to the maximum amount permitted under applicable law; and if
from any circumstance the Banks shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
principal balance of the Obligations of the undersigned Maker and to the payment
of interest or,
EXHIBIT G-1
if such excessive interest exceeds the unpaid balance of principal of the
Obligations of the undersigned Maker, such excess shall be refunded to the
undersigned Maker. All interest paid or agreed to be paid to the Banks shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations of the undersigned Maker (including the period of any renewal or
extension thereof) so that the interest thereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between the undersigned Maker and the Banks and the
Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the laws
of the State of Michigan (without giving effect to the conflict of laws rules of
any jurisdiction).
Recourse to the general partner of Borrower shall be limited as provided
in Section 32 of the Credit Agreement.
The undersigned Maker and all guarantors and endorsers hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without notice.
IN WITNESS WHEREOF, the undersigned has duly executed this Note on 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:
EXHIBIT G-2
SCHEDULE 1
BANKS AND COMMITMENTS
SCHEDULE 1 - PAGE 1
SCHEDULE 2
DEBT SERVICE COVERAGE AMOUNT CALCULATION
OCF - Mortgaged Properties $
Outstandings - Secured Revolver $
Greater of:
10 - year Treasury Rate plus 2.0%
(____%) amortized over 25 years
(___%)
or 8.0%
Debt Service Coverage Amount: $
Coverage: x
Minimum Coverage 1.40x
SCHEDULE 2 - PAGE 1
