EXHIBIT 10.91
SECURED REVOLVING CREDIT
LOAN AGREEMENT
BY AND AMONG
KR LIVONIA LLC,
PLYMOUTH PLAZA ASSOCIATES, L.P.,
000 XXXX XXXXXXXXXX PIKE LLC,
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
$9,000,000 SECURED REVOLVING LINE OF CREDIT
July 19, 2004
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS, CERTAIN RULES OF CONSTRUCTION............................ 1
1.1 Construct of Definitions.............................................. 6
1.2 Accounting Reports and Principles..................................... 6
1.3 Business Day.......................................................... 6
1.4 Charging Accounts..................................................... 6
1.5 Lender's Costs........................................................ 6
1.6 Other Terms........................................................... 6
ARTICLE 2 THE LOANS............................................................. 6
2.1 Revolving Credit...................................................... 6
2.2 Repayment of Principal and Interest on Revolving Credit............... 7
2.3 Note.................................................................. 7
2.4 General Provisions.................................................... 7
ARTICLE 3 CONDITIONS PRECEDENT.................................................. 9
3.1 Closing............................................................... 9
3.2 All Loan Fundings..................................................... 10
ARTICLE 4 REPRESENTATIONS AND WARRANTIES........................................ 11
4.1 Borrowers Represent................................................... 11
4.2 Accuracy of Representations; No Default............................... 14
ARTICLE 5 AFFIRMATIVE COVENANTS................................................. 14
5.1 Borrowers' Covenants.................................................. 14
5.2 Indemnification....................................................... 16
ARTICLE 6 NEGATIVE COVENANTS.................................................... 17
6.1 Borrowers' Negative Covenants......................................... 17
ARTICLE 7 DEFAULT............................................................... 18
7.1 Events of Default..................................................... 18
7.2 Remedies on Default................................................... 20
7.3 Set-Off Rights Upon Default........................................... 20
7.4 Singular or Multiple Exercise; Non-Waiver............................. 20
ARTICLE 8 MISCELLANEOUS......................................................... 20
8.1 Integration........................................................... 20
8.2 Modification.......................................................... 21
8.3 Amendments and Waivers................................................ 21
8.4 Notices............................................................... 21
8.5 Survival.............................................................. 22
8.6 Closing...............,............................................... 22
8.7 Successors and Assigns; Governing Law................................. 22
8.8 Jurisdiction.......................................................... 22
8.9 Waiver of Jury Trial.................................................. 22
8.10 Participation......................................................... 23
8.11 Joint and Several..................................................... 23
8.12 Excess Payments....................................................... 23
8.13 Partial Invalidity.................................................... 23
8.14 Compliance with Rules................................................. 23
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8.15 Headings.............................................................. 23
8.16 Counterparts.......................................................... 24
Schedules
Schedule 2.4.1 - Notice of Borrowing
Schedule 4.1.4 - Schedule of Litigation
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SECURED
REVOLVING CREDIT
LOAN AGREEMENT
THIS SECURED REVOLVING CREDIT LOAN AGREEMENT, made as of this 19th
day of July, 2004, by and among KR LIVONIA LLC, a Delaware limited liability
company, PLYMOUTH PLAZA ASSOCIATES, L.P., a Delaware limited partnership and 000
XXXX XXXXXXXXXX PIKE LLC, a Delaware limited liability company ("BORROWERS"),
and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
("LENDER").
BACKGROUND
Borrowers own and operate certain real estate situate in Livonia,
Xxxxx County, Michigan, and Plymouth Township, Xxxxxxxxxx County, Pennsylvania
(the "BUSINESS"). Borrowers desire to establish a committed secured revolving
credit facility with Lender. Lender has agreed to extend such credit facility to
Borrowers, subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE 1
DEFINITIONS, CERTAIN RULES OF CONSTRUCTION
"AFFILIATE" of a Person means a Person controlled by, controlling or
in common control with another Person.
"AGREEMENT" means this Secured Revolving Credit Loan Agreement, and
any schedules, exhibits, riders, extensions, supplements, amendments, or
modifications to this Secured Revolving Credit Loan Agreement.
"APPLICABLE SPREAD" means one and three quarters of one percent
(1.75%) per annum (that is, 175 "basis points").
"APPRAISAL" means an appraisal of real estate prepared in accordance
with Lender's then-current appraisal requirements and in accordance with all
applicable Rules by a licensed real estate appraiser selected by Lender.
"AUTHORIZED SIGNER" means any of the Persons listed on the
certificates in form and substance acceptable to Lender, to be delivered to
Lender at Closing in accordance with Section 3.1.11 hereof or any replacement
certificate with respect thereto subsequently delivered to Lender.
"BANKRUPTCY CODE" means Title 11 of the United States Code as now or
hereafter in effect, or any successor statute.
"BORROWER" means each of KR Livonia, Plymouth, and 550, which
collectively are the "BORROWERS".
"BUSINESS DAY" means any day other than a Saturday, a Sunday, or any
day designated by Lender as a "holiday".
"CLOSING" and "CLOSING DATE" mean the day on which this Agreement is
executed by Borrowers and Lender.
"CODE" means the Internal Revenue Code of 1986, as amended, from
time to time, and any successor code or statute.
"COMMITMENT AMOUNT" means $9,000,000, subject to increase as
provided in Section 2.5 hereof.
"DEPOSIT ACCOUNT" means a deposit account maintained by a Borrower
with Lender.
"DOLLARS" and the symbol "$" mean the lawful money of the United
States of America.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"EST" means Eastern Standard Time.
"EVENT OF DEFAULT" means each of the events set forth in Section 8.1
hereof.
"FINANCIAL STATEMENTS" means a consolidated balance sheet, statement
of income and expenses and statement of cash flows as at and for a designated
period, all in accordance with GAAP, together with all notes pertaining thereto,
and any other statements that Borrower may be required to deliver.
"FISCAL QUARTER" means a fiscal quarter of Borrowers and KRT, which
currently end on the last day of each March, June, September, and December.
"FISCAL YEAR" means the fiscal year of Borrowers and KRT, which
currently ends on December 31 of each year.
"FUNDING DATE" means the Business Day on which a Loan is made.
"GAAP" means, at any time, generally accepted accounting principles
as set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board.
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"GOVERNMENTAL APPROVALS" means all material authorizations,
consents, approvals, licenses and exemptions of, registrations and filings with,
and reports to all governmental bodies.
"GUARANTOR" means each of Kramont Operating Partnership, L.P., a
Delaware limited partnership, and Kramont Realty Trust, a Maryland real estate
investment trust, which collectively are the "GUARANTORS".
"GUARANTY" means a joint and several guaranty and suretyship
agreement executed by Guarantors with respect to the Indebtedness.
"INDEBTEDNESS" means all amounts due from Borrowers to Lender
pursuant to Article 2 and otherwise arising out of or in connection with this
Agreement or any other Loan Document.
"INTEREST RATE" means, on any day, the rate of interest then being
charged by Lender on the outstanding principal balance of all Loans, which rate
of interest shall, prior to the occurrence of any Event of Default, be equal to
the LIBOR Market Index Rate plus the Applicable Spread.
"KR LIVONIA" means KR Livonia LLC, a Delaware limited liability
company.
"KRT" means Kramont Realty Trust, a Maryland real estate investment
trust.
"KRT TOTAL DEBT" means all debt of KRT as reflected on KRT's
Financial Statements determined in accordance with GAAP, including, but not
limited to, indebtedness for borrowed money, guarantee obligations,
reimbursement obligations for letters of credit and other contingent
liabilities.
"LAST REPORTED FISCAL YEAR" means, at any time, the most recently
concluded fiscal year of the subject person for which financial statements have
been delivered to Lender.
"LENDER" means Wachovia Bank, National Association, a national
banking association.
"LENDER'S COSTS" means all reasonable costs and expenses of any kind
paid or incurred by Lender in connection with the preparation, execution,
delivery, amendment, modification, administration or termination of this
Agreement or any other Loan Document, any amendments thereto, any transaction
contemplated herein or any existing or future related agreements and the
preservation, enforcement, defense and protection of Lender's rights, remedies,
obligations and liabilities in any manner concerning this Agreement or any other
Loan Document, or any transaction contemplated herein, including, but not
limited to: (a) reasonable attorneys' fees and other expenses paid or incurred
by Lender in enforcing, obtaining legal advice in preparing, reviewing,
consummating, amending, restructuring, extending, terminating, defending, or
preserving or protecting Lender's rights, remedies, obligations or liabilities
in any manner concerning, this Agreement, any other Loan Document or any
amendments thereto, or any transaction contemplated herein or any existing or
future related agreements; and (b) wire transfer charges in such amounts as
Lender may from time to time establish for such service.
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"LIEN" means any interest in specific property securing an
obligation owed to, or a claim, right or interest of, any Person, whether
created by agreement, statute, common law or judicial or governmental authority
action or proceeding, including, but not limited to, any security interest,
lien, encumbrance, mortgage, assignment, pledge, conditional sale, lease,
consignment or bailment.
"LIBOR MARKET INDEX RATE" means, for any day, the rate for 1-month
U.S. dollar deposits as reported on Dow Xxxxx Telerate page 3750 as of 11:00
a.m., London time, on such day, or if such day is not a London business day,
then the immediately preceding London business day (or if not so reported, then
as determined by Lender from another recognized source or interbank quotation).
"LOAN DOCUMENTS" means this Agreement, the Note, the Mortgages, and
every other document executed by any Borrower in favor of Lender delivered
pursuant to this Agreement.
"LOANS" means all advances made under the Revolving Credit.
"LOAN YEAR" means each of the twelve-month periods that commences on
August 1st of any calendar year during the term of this Agreement.
"MATERIALLY ADVERSE EFFECT" means, with respect to Borrowers, a
materially adverse effect upon Borrowers' ability to perform their obligations
under the Loan Documents in accordance with their respective terms, as
reasonably determined by Lender.
"MORTGAGE" means each of the mortgages and security agreements
granted by a Borrower to Lender as security for the Indebtedness and mat
encumbers a portion of the Mortgaged Property.
"MORTGAGED PROPERTY" means the Real Estate, including all land, all
structures, all easements appurtenant to or benefiting the Real Estate, the
improvements and all fixtures, machinery and equipment necessary or incidental
to the general operation and maintenance thereof and all replacements thereof or
additions thereto.
"NOTE" means the note executed by Borrowers in favor of Lender to
evidence Borrowers' repayment obligations under this Agreement.
"NOTICE OF BORROWING" means a notice substantially in the form of
Schedule 2.4.1 attached hereto and made a part hereof executed by any one of the
Borrowers.
"OP" means Kramont Operating Partnership, L.P., a Delaware limited
partnership.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PERMITTED LIENS" means (i) liens for taxes, assessments or
governmental charges or claims which are not overdue (or which are being
contested in good faith by appropriate proceedings promptly instated and
diligently conducted, if a reserve or other
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appropriate provision, if any, as shall be required by GAAP shall have been made
therefor); (ii) any judgment lien in an amount not in excess of $250,000;
provided that, within 30 days after the entry of the judgment secured thereby,
such judgment shall be vacated, satisfied, bonded or otherwise discharged or
execution thereof shall be stayed pending appeal; and further provided that such
judgment shall be discharged within 60 days after the expiration of any such
stay; (iii) easements, rights-of-way, encroachments, covenants, conditions,
restrictions and other similar charges and encumbrances not interfering with the
ordinary conduct of the business of a Borrower and that have been approved by
Lender; (iv) zoning provisions and governmental restrictions not interfering
with the ordinary conduct of the business of a Borrower; and (v) trade payables
in the ordinary course of any Borrower's business.
"PERSON" means an individual, corporation, partnership, joint
venture, trust or unincorporated organization, or a government or any agency or
political subdivision thereof.
"PLYMOUTH" means Plymouth Plaza Associates, L.P., a Delaware limited
partnership.
"PRIME RATE" means that rate of interest per annum established by
the Lender from time to time as its "prime rate", which may not represent the
lowest rate charged by the Lender to other borrowers, or to any class of
borrowers, at any time or from time to time.
"REAL ESTATE" means (i) the real property owned by KR Livonia that
is located in Livonia, Xxxxx County, Michigan, (ii) the real property owned by
Plymouth that is located in Plymouth Township, Xxxxxxxxxx County, Pennsylvania,
and (iii) the real property that is owned by 550 that is located in Plymouth
Township, Xxxxxxxxxx County, Pennsylvania, all as described in the Mortgage.
"REVOLVING CREDIT" means the Loans which may be borrowed, repaid and
reborrowed in the maximum amount outstanding at any one time of the Commitment
Amount, all as more fully described in Section 2.1 hereof.
"RICO" means the Racketeer Influenced and Corrupt Organization Act,
as amended by the Comprehensive Crime Control Act of 1984, 18 USC Sections
1961-68.
"RULES" means any law, regulation, or rule of practice whether or
not having the force of law by which Lender is bound or to which it adheres.
"TERMINATION DATE" means August 1, 2007, or such extension of the
Termination Date that may be effected pursuant to Section 2.4.7 hereof or as may
otherwise be agreed to in writing by Lender.
"TRANSACTION FEE" means the transaction fee provided for in Section
2.4.6 of the Agreement.
"UNMATURED EVENT OF DEFAULT" means and refers to any event, act or
occurrence which with the passage of time or giving of notice or both becomes an
Event of Default.
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"550" means 000 Xxxx Xxxxxxxxxx Pike LLC, a Delaware limited
liability company.
1.1 Construct of Definitions. All terms defined herein shall be
construed to include the plural or the singular, and references to persons in
the masculine or neuter gender shall refer to all persons or entities, as the
context requires.
1.2 Accounting Reports and Principles. The character or amount of
any asset, liability, account or reserve and of any item of income or expense to
be determined, and any consolidation or other accounting computation to be
made, and the construction of any definition containing a financial term,
pursuant to this Agreement or any other Loan Document, shall be construed,
determined or made, as the case may be, in accordance with GAAP, consistently
applied, unless such principles are inconsistent with any express provision of
this Agreement.
1.3 Business Day. Whenever any payment or other obligation
hereunder, whether under the Note or under another Loan Document, is due on a
day other than a Business Day, such shall be paid or performed on the Business
Day next following the prescribed due date, except as otherwise specifically
provided for herein to the contrary, and such extension of time shall be
included in the computation of interest and charges. Any reference made herein
or in any other Loan Document to an hour of day shall refer to the then
prevailing Philadelphia, Pennsylvania time, unless specifically provided herein
to the contrary.
1.4 Charging Accounts. Whenever Borrowers are obligated, pursuant to
Article 2 hereof or pursuant to the Note or any other Loan Document, to make a
payment of any nature to Lender, Lender shall be entitled, and Borrowers hereby
authorize Lender to draw against, any Deposit Account owned by any Borrower on
account of such fees and expenses or payments due. Upon such drawing, Lender
shall deliver to the affected Borrower a notice setting forth, in reasonable
detail, the amount of the fees, expenses and/or payments to be satisfied by such
draw, and the name or number of the account or accounts from which the draw was
made.
1.5 Lender's Costs. Borrowers shall, upon the request of Lender, pay
Lender the amount of all unpaid Lender's Costs within fifteen (15) days after
such notice. Until payment is received by Lender, all past due and owing
interest payments, fees and all past due Lender's Costs shall be deemed to be
part of the principal balance of the Loan and bear interest at the Prime Rate.
1.6 Other Terms. The words "herein", "hereof, "hereunder" and other
words of similar import refer to this Agreement as a whole, including the
exhibits hereto, as the same may from, time to time be amended, modified or
supplemented, and not to any particular section, subsection or clause contained
in this Agreement. Any reference to an "Article", a "Section", or an "Exhibit"
shall refer to the relevant Article of, Section of, or Exhibit to this
Agreement, unless otherwise specifically indicated.
ARTICLE 2
THE LOANS
2.1 Revolving Credit. Provided that no Event of Default has occurred
and is continuing, and subject to the terms and conditions set forth herein,
commencing on the Closing
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Date and expiring on the Termination Date, Lender shall extend to Borrowers the
Revolving Credit pursuant to which Lender shall make Loans to Borrowers up to an
aggregate of the Commitment Amount outstanding at any one time, which any
Borrower may from time to time, borrow, repay and reborrow.
2.2 Repayment of Principal and Interest on Revolving Credit.
2.2.1 Interest on the outstanding principal balance of all
Loans shall be charged the then-current Interest Rate.
2.2.2 Principal of the Revolving Credit shall be paid in full
on the Termination Date.
2.2.3 Interest at the Interest Rate (calculated on the basis
of a 360 day year but charged for the actual number of days in any year or part
thereof) on all Loans from time to time outstanding shall be payable from the
Funding Date thereof to maturity, monthly in arrears, on the tenth (10th) day of
each calendar month, with the first payment to be made on the tenth (10th) day
of the month following the month in which the first Loan is made, and at
maturity.
2.3 Note. To evidence Borrowers' obligations under the Revolving
Credit and this Agreement, Borrowers shall execute and deliver the Note to
Lender at Closing.
2.4 General Provisions.
2.4.1 Notice of Borrowing. Whenever a Borrower desires to
borrow under this Agreement, such Borrower shall deliver by telecopy to Lender a
properly completed and executed Notice of Borrowing, in the form attached hereto
as Schedule 2.4.1, no later than 10 a.m., EST on the proposed Funding Date. The
Notice of Borrowing shall specify (a) the proposed Funding Date (which shall be
a Business Day), (b) the amount of the proposed Loan and (c) the Deposit Account
into which the proceeds of the Loan shall be deposited.
2.4.2 Funding. Provided that there then exists no Event of
Default or Unmatured Event of Default, Lender shall cause Loans to be made
available to the requesting Borrower on or before 1:00 p.m., EST on the Funding
Date pertaining thereto by depositing the amount thereof in the designated
Deposit Account.
2.4.3 Post-Maturity Interest. Any principal payments on the
Loans not paid when due and, to the extent permitted by applicable law, any
interest payment on the Loans not paid when due, and any other amount due to
Lender under this Agreement or any other Loan Document not paid when due, in any
case whether at stated maturity, by acceleration or otherwise, shall thereafter
bear interest payable upon demand at a rate which is 2% per annum in excess of
the Prime Rate from time to time in effect.
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2.4.4 Prepayment. Borrowers may prepay all or any portion of
the Loans at any time, and from time to time, without penalty or premium.
2.4.5 Manner and Time of Payment. All payments of principal,
interest and fees hereunder and under the Note shall be made by Borrowers
without notice, set off or counterclaim and in immediately available same day
funds and delivered to Lender not later than 2:00 p.m.. on the date due at
Lender's office located at PA 1245, 000 X. Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx, 00000 for the account of Lender. Funds received by Lender after
that time shall be deemed to have been paid by Borrowers on the next succeeding
Business Day.
2.4.6 Transaction Fee. Borrower agrees to pay to Lender an
initial Transaction Fee in the amount of $50,000, which Transaction Fee shall be
due and payable at Closing without notice or demand.
2.4.7 Postponement of Termination Date. Borrower may, by
written notice to Lender not earlier than five (5) months nor later than three
(3) months before the then-current Termination Date, elect to postpone the
Termination Date for one (1) year, which election may be exercised repeatedly,
provided that the Termination Date may not be so postponed to a date that is
later than August 3, 2009. No such election, however, shall be effective (i) if
at the time such notice is received by Lender or on the then-current Termination
Date there exists any Event of Default or (ii) if Borrowers fail to pay to
Lender, prior to the then-current Termination Date, an extension fee equal to
one-quarter of one percent (0.25%) of the Commitment Amount or (iii) if the
expiration date of any environmental insurance policy delivered to Lender
pursuant to Section 3.1.13 hereof is sooner than the date to which the
Termination Date is so postponed, unless such expiration date shall be extended,
prior to the date to which the Termination Date is so postponed, for at least
the additional year.
2.4.8 Lender's Records Conclusive. Lender's records of
all Loans and repayments of Loans shall be conclusive in the absence of manifest
error.
2.4.9 Conditional Payment. Borrowers agree that checks
and other instruments received by Lender in payment or on account of the
Indebtedness constitute only conditional payment until such items are actually
paid to Lender. Borrowers waive any right Borrowers may have to direct the
application of any and all payments at any time or times hereafter received by
Lender on account of the Indebtedness. Borrowers agree that Lender shall have
the continuing exclusive right to apply and reapply such payments, as set forth
in the Note, in any order as Lender may deem advisable, notwithstanding any
entry by Lender upon its books.
2.5 Increase in Commitment Amount. The Commitment Amount shall
automatically increase by an amount equal to eighty percent (80%) of the amount
by which the Appraisal for the real property owned by KR Livonia that is located
in Livonia, Xxxxx County, Michigan exceeds $4,520,000.00, provided, however,
that in no event shall the Commitment Amount exceed $10,000,000.
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ARTICLE 3
CONDITIONS PRECEDENT
The performance by Lender of any of its obligations hereunder
subject to the following conditions precedent:
3.1 Closing. Borrowers shall deliver or cause to be delivered to
Lender on the Closing Date (except as otherwise indicated herein), in form and
substance satisfactory to Lender and its counsel, in addition to this Agreement,
the following documents and instruments and the following transactions shall
have been consummated:
3.1.1. The Note;
3.1.2. The Mortgages;
3.1.3 An Absolute Assignment of Leases and Rents with respect
to the Mortgaged Property, executed and acknowledged by each Borrower;
3.1.4. The Guaranty;
3.1.5. A copy of KR Livonia's limited liability company
operating agreement and certificate of formation, and a copy of resolutions of
KR Livonia authorizing the execution, delivery and performance by KR Livonia of
this Agreement and of the Note, all other Loan Documents and all other documents
and instruments required by Lender for the implementation of this Agreement to
which KR Livonia is a party, all certified by the manager of KR Livonia to be
true and correct copies of the originals and to be in full force and effect as
of the Closing Date;
3.1.6. Copies of the limited partnership agreement and
certificate of limited partnership of each of Plymouth, 550 and OP, and a copy
of resolutions of each of Plymouth, 550 and OP, authorizing the execution,
delivery and performance of the Loan Documents and all other documents and
instruments required by Lender for the implementation of this Agreement to which
Plymouth, 550 or OP is a party, all certified by the appropriate general partner
of Plymouth, 550 and OP to be true and correct copies of the originals and to be
in full force and effect as of the Closing Date;
3.1.7. A copy of KRT's Trust Agreement, and a copy of
resolutions adopted by KRT's Board of Trustees authorizing the execution,
delivery and performance of the Guaranty and the other Loan Documents to which
KRT is a party, certified by an officer of KRT to be true, correct and complete
copies of the originals and to be in full force and effect as of the Closing
Date;
3.1.8. An incumbency and signature certificate with respect to
each Person authorized to execute and deliver, on behalf of each Borrower, of
KRT and of OP, this Agreement, the Note, the other Loan Documents, and all other
documents and instruments required by Lender for the implementation of this
Agreement;
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3.1.9. An opinion of Borrowers' and Guarantors' counsel, in
form acceptable to Lender;
3.1.10. A Notice of Borrowing with respect to any Loan, the
funding of which is requested as of the Closing Date;
3.1.11. A certificate executed by the manager or general
partner of each Borrower, designating the Authorized Signers on behalf of such
Borrower;
3.1.12. A current Appraisal of the portions of the Mortgaged
Property owned by Plymouth and 550;
3.1.13. A Phase I Environmental Assessment Report of the
portion of the Mortgaged Property owned by 550, prepared by a reputable
engineering firm approved by, and in form and content acceptable to, Lender or,
in lieu of such report, a policy of environmental insurance with respect to such
portion of the Mortgaged Property, the coverages, terms and conditions of which
policy are, and which policy is issued by an insurer, acceptable to Lender in
good faith, which policy insures Lender with respect to such portion of the
Mortgaged Property for a term ending no earlier than the Termination Date;
3.1.14. Current property condition reports for the Real Estate
owned by KR Livonia and by Plymouth;
3.1.15. A current ALTA/ACSM survey of the Mortgaged Property
that is owned by KR Livonia and Plymouth, respectively, certified to KR Livonia
and Plymouth, respectively, Lender and Lender's title insurer, prepared in
accordance with the most current ALTA/ACSM standards, in form acceptable to
Lender;
3.1.16 A marked-up title commitment, issued by a national
title insurance company acceptable to Lender, insuring each Mortgage as a first
lien on good and marketable fee simple title to the applicable portion of the
Mortgaged Property, subject only to matters of record acceptable to Lender in
good faith; and
3.1.17. Such additional documents or instruments as may be
required by this Agreement or as Lender may reasonably require.
3.2 All Loan Fundings. On the Funding Date: (a) Lender shall have
received a Notice of Borrowing as required by Section 2.4.1; (b) the
representations and warranties set forth in Article 4 hereof shall be true and
correct on and as of such date with the same effect as though made on and as of
such date, except to the extent such representations and warranties relate to an
earlier date or changes have theretofore been disclosed to Lender in writing and
not objected to; (c) no Event of Default shall have occurred and be continuing;
and (d) Borrowers shall be in compliance with all of the terms and conditions
hereof, of the Note, and of all other Loan Documents, in each case on and as of
the date of the performance of such obligations by Lender.
Each Loan shall be deemed to constitute a representation and
warranty by Borrowers on the respective Funding Date as to the matters specified
in clauses (b), (c) and (d) of this Section 3.2.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Borrowers represent and warrant to Lender as follows:
4.1.1 Good Standing.
4.1.1.1 Each Borrower has the power and authority to own
and operate such Borrower's properties and to carry on such Borrower's Business
where and as contemplated; is a limited liability company or limited partnership
duly qualified to do business in, and is in good standing in, the State of
Delaware (as to all Borrowers), Michigan (as to KR Livonia), Pennsylvania (as to
Plymouth and 550) and in every other jurisdiction where the nature of any
Borrower's Business requires such qualification except where the failure to do
so will not have a Materially Adverse Effect on such Borrower.
4.1.1.2 KRT has the power and authority to own and
operate its properties and to carry on its business where and as contemplated;
is duly qualified to do business in, and is in good standing in, the State of
Maryland and in every jurisdiction where the nature of KRT's business requires
such qualification except where the failure to do so will not have a Materially
Adverse Effect on KRT.
4.1.1.3 OP has the power and authority to own and
operate OP's properties and to carry on OP's business where and as contemplated;
is a limited partnership duly qualified to do business in, and is in good
standing in, the State of Delaware and in every jurisdiction where the nature of
OP's business requires such qualification except where the failure to do so will
not have a Materially Adverse Effect on OP.
4.1.2 Power and Authority.
4.1.2.1 The making, execution, issuance and performance
by Borrowers of this Agreement, the Note and the other Loan Documents, have been
duly authorized by all necessary limited liability company action and will not
violate any provision of law or regulation or of the operating agreement or
limited partnership agreement of any Borrower; will not violate any agreement,
trust or other indenture or instrument to which any Borrower is a party or by
which any Borrower or any of its property is bound, so that this Agreement, the
Note, and the other Loan Documents, when executed and delivered, will be valid
and binding obligations of any Borrower, enforceable in accordance with their
respective terms.
4.1.2.2 The making, execution, issuance and performance
by KRT of the Guaranty have been duly authorized by all necessary trust action
and will not violate any provision of law or regulation or of the trust
agreement of KRT; will not violate any agreement, trust or other indenture or
instrument to which KRT is a party or by which KRT or any of its property is
bound, so that the Guaranty, when executed and delivered, will be valid and
binding obligations of KRT, enforceable in accordance with its terms.
4.1.2.3 The making, execution, issuance and performance
by OP of the Guaranty, have been duly authorized by all necessary partnership
action and will not violate any provision of law or regulation or of the limited
partnership agreement of OP; will not
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violate any agreement, trust or other indenture or instrument to which OP is a
party or by which OP or any of its property is bound, so that the Guaranty, when
executed and delivered, will be valid and binding obligation of OP, enforceable
in accordance with its terms.
4.1.3 Financial Condition. The audited Financial Statements of
Borrowers and the Guarantors, together with income and surplus statements as at
and for the year ended December 31, 2003 heretofore furnished to Lender, are
complete and correct in all material respects, have been prepared in accordance
with GAAP, consistently applied, and fairly present the financial condition of
Borrowers and the Guarantors as of said dates and the results of Borrowers' and
Guarantor's operations for the periods then ended. Except as set forth on such
statements, neither Guarantor has any fixed, accrued or contingent obligation or
liability for taxes or otherwise that is not disclosed or reserved against on
its balance sheets which would have a Materially Adverse Effect on such
Guarantor. Borrowers and Guarantors have filed all federal, state and local tax
returns required to be filed by it with any taxing authority. Since December 31,
2003 (or with respect to fundings after the date hereof, the date of the balance
sheet most recently delivered to Lender), there has been no material adverse
change in the condition of any Borrower's or either Guarantor's financial
position or otherwise from that set forth in the balance sheet as of said date.
Borrowers do not believe, and have no reason to believe, that there has been or
will be a change relating to the Business of any Borrower or of the business of
Guarantors that would cause a Materially Adverse Effect on any Borrower or
either Guarantor.
4.1.4 No Litigation. Except as set forth on Schedule 4.1.4
hereto, there are no suits or proceedings pending, or, to the knowledge of
Borrower, threatened against or affecting any Borrower or either Guarantor,
title to the Mortgaged Property or any part thereof, issuance or validity of any
zoning variance or other zoning or sub-division approval affecting the Mortgaged
Property or any license or certificate of occupancy which has been issued in
connection with the Mortgaged Property, that would have a Materially Adverse
Effect on any Borrower or either Guarantor, and neither any Borrower nor either
Guarantor is in default in the performance of any agreement to which any
Borrower or such Guarantor may be a party or by which any Borrower or such
Guarantor is bound, except as previously disclosed to Bank in writing, or with
respect to any order, writ, injunction, or any decree of any court, or any
federal, state, municipal or other government agency or instrumentality,
domestic or foreign, which is likely to have a Materially Adverse Effect on any
Borrower.
4.1.5 Compliance. Each Borrower, to the best of Borrowers'
knowledge, has all Governmental Approvals necessary for the conduct of each
Borrower's Business, and the conduct of each Borrower's Business is not and has
not been in violation of any such Governmental Approvals or any applicable
federal or state law, rule or regulation, the failure of which to obtain or to
comply with would, in any such case, have a Materially Adverse Effect on any
Borrower. No Borrower requires any Governmental Approvals to enter into, or
perform under, this Agreement, the Note or any other Loan Document.
4.1.6 Compliance with Regulations T, U and X. No Borrower is
engaged principally, or as one of such Borrower's important activities, in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meanings of Regulations T, U and X of the Board of Governors
of the Federal Reserve System).
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4.1.7 ERISA. With respect to each employee pension benefit
plan (within the meaning of Section 3(2) of ERISA other than any multiemployer
plan" within the meaning of Section 3 (3 7) of ERISA) (hereinafter, a "Plan"),
maintained for employees of any Borrower or of any trade or business (whether or
not incorporated) which is under common control with any Borrower (within the
meaning of Section 4001 (b)(1) of ERISA), (i) there is no accumulated funding
deficiency (within the meaning of Section 302 of ERISA or Section 412 of the
Code), as of the last day of the most recent plan year of such Plan heretofore
ended, taking into account contributions made or to be made within the time
prescribed by Section 412(c)(10) of the Code; (ii) each such Plan has been
maintained in accordance with its terms and ERISA; and (iii) mere has been no
"reportable event" within the meaning of Section 4043 of ERISA and the
regulations thereunder for which the 30-day notice requirement has not been
waived. No Borrower has incurred any liability to the PBGC other than required
insurance premiums, all of which, that have become due as of the date hereof,
have been paid. No Borrower is party to any multiemployer plan.
4.1.8 Environmental.
4.1.8.1 Except where failure to comply would not have or
result in a Materially Adverse Effect on any Borrower or as set forth in any
environmental site assessment heretofore delivered by any Borrower to Lender,
each Borrower has, to the best of Borrowers' knowledge, in the conduct of its
Business, and the ownership and use of its properties, complied, in all material
respects, with all federal, state and local, laws, rules, regulations, judicial
decisions and decrees pertaining to the use, storage or disposal of hazardous
waste or toxic materials.
4.1.8.2 Except where failure to comply would not have or
result in a Materially Adverse Effect on Borrowers or as set forth in the
aforesaid environmental site assessments, to the best of Borrowers' knowledge:
(i) no hazardous substance, pollutant or contaminant (as defined in Section 101
of the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C. Section 9601, as amended by the Superfund Amendments and
Re-authorization Act of 1986 (Pub. L. Xx. 00-000, 000 Xxxx. 0000 (1986) (XXXX)
or 40 CFR Part 261, whichever is applicable) is present on the Mortgaged
Property in any quantity in excess of those allowed by applicable law; (ii)
except for dry cleaning establishments, retail gasoline stations, retail stores
customarily found in shopping centers, printing and photocopying services and
normal maintenance activities, the primary operations of any business being
conducted on any portion the Real Estate do not involve any hazardous substance
or waste within the meaning of any other applicable state or local environmental
laws, rules, regulations or ordinances; (iii) no Borrower has been identified in
any litigation, administrative proceedings or investigation as a responsible
party for any liability under the above referenced laws or otherwise; and (iv)
all materials that are located on any of the Mortgaged Property in lawful
amounts are properly stored and maintained in containers appropriate or such
purposes.
4.1.9 Other Contractual Obligations. This Agreement does not,
and the performance by Borrowers and Guarantors of their respective obligations
and covenants under the Loan Documents to which they are a party will not,
violate any other contractual obligation of any Borrower or either party
Guarantor.
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4.1.10 Investment Company Act. No Borrower is an Investment
Company within the meaning of the Investment Company Act of 1940.
4.1.11 Public Utility Holding Company Act. No Borrower is a
Public Utility Holding Company within the meaning of the Public Utility Holding
Act.
4.1.12 RICO. No Borrower has engaged in any conduct or taken
or, to its knowledge, omitted to take any action which violates RICO,
4.2 Accuracy of Representations; No Default. The information set
forth herein and on each of the Schedules hereto, in the Note, the other Loan
Documents and each document delivered to Lender in connection herewith is
complete and accurate and contains full and true disclosure of pertinent
financial and other information in connection with the Loan. None of the
foregoing contains any untrue statement of a material fact or omits to state a
material fact necessary to make the information contained herein or therein not
misleading or incomplete. No Event of Default or, to Borrowers' knowledge,
Unmatured Event of Default hereunder, under the Note or the other Loan
Documents, has occurred.
ARTICLE 5
AFFIRMATIVE COVENANTS
5.1 Borrowers' Covenants. As long as any portion of the Indebtedness
remains outstanding and unpaid or Lender has any obligation to extend Loans
hereunder, Borrowers covenant and agree that, in the absence of prior written
consent of Lender, Borrowers will:
5.1.1 Deliver to the Lender, (i) with respect to each
Borrower, within 45 days after the end of each Fiscal Quarter of each Borrower
and (ii) with respect to KRT, when KRT's quarterly financial results are made
public, (a) an income and expense statement, balance sheet, and statement of
cash flows, with respect to the operations and financial condition of each
Borrower and of the Guarantors, which may be on a consolidated basis, during and
as of the last day of such Fiscal Quarter, prepared and certified by KRT's chief
financial officer or chief accounting officer and, solely as to statements of
the Guarantors, reviewed by KRT's regularly engaged independent certified public
accountants, (b) a copy of KRT's Form 10-Q that is then required to be filed
with the U.S. Securities and Exchange Commission, and (c) also an income and
expense statement for such Fiscal Quarter, current rent-roll, leasing status
report and reported gross sales by tenant for each of the separate properties
that constitute the Mortgaged Property;
5.1.2 Deliver to the Lender, within 120 days after the end of
each Fiscal Year of Borrower and the Guarantors, (i) audited consolidated
financial statements of the Guarantors, including an income and expense
statement, balance sheet, statement of cash flows, and a statement of contingent
liabilities, which financial statements shall include the unqualified opinion of
a national firm of certified public accountants reasonably acceptable to Lender,
(ii) a copy of KRT's Form 10-K that is then required to be filed with the U.S.
Securities and Exchange Commission; (iii) an income and expense settlement for
each Borrower, balance sheet and
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statement of cash flows for such fiscal year, prepared and certified by KRT's
chief financial officer or chief accounting officer;
5.1.3 With reasonable promptness furnish to Lender such
additional information and data concerning the business and financial condition
of Borrowers and the Guarantors as may be reasonably requested by Lender;
afford, and cause to be afforded, Lender or its agents reasonable access to the
financial books and records, computer records and properties of Borrowers and
the Guarantors at all reasonable times during normal business hours and permit,
and cause Guarantors to permit, Lender or its agents during normal business
hours to make copies and abstracts of same and to remove such copies and
abstracts from Borrowers' and Guarantors' premises and permit Lender or its
agents the right to converse directly with the independent accounting firm then
engaged by KRT to prepare its audited Financial Statements;
5.1.4 Cause the prompt payment and discharge of all taxes,
governmental charges and assessments levied and assessed or imposed upon the
Mortgaged Property or any portion thereof, and pay all other claims which, if
unpaid, might become liens or charges upon the Mortgaged Property, provided,
however, that nothing in this Section shall require Borrowers to pay any such
taxes, claims or assessments which are not overdue or which are being contested
in good faith and by appropriate proceedings, with adequate reserves therefore
being available or having been set aside if required by Lender in good faith;
5.1.5 Maintain each Borrower's existence as a limited
liability company or a limited partnership and cause KRT to maintain its
existence as a "real estate investment trust" under Section 856 of the Internal
Revenue Code of 1986, as amended from time to time; maintain, and cause KRT to
maintain, and all necessary foreign qualifications in good standing; continue to
comply with all applicable statutes, rules and regulations with respect to the
conduct of Borrowers' Business or KRT's business as presently conducted to the
extent the same are material to the financial condition of Borrowers or the
conduct of Borrowers' Business or KRT's business as presently conducted;
maintain such necessary licenses and permits required for the conduct of
Borrowers' Business or KRT's business as presently conducted, in each case if
the failure so to maintain or comply would have a Materially Adverse Effect on
Borrowers or KRT;
5.1.6 Promptly defend, and cause KRT to defend, all actions,
proceedings or claims which would have a Materially Adverse Effect on Borrowers
or KRT and promptly notify Lender of the institution of, or any change in, any
such action, proceeding or claim if the same is in excess of $250,000 for any
single action, proceeding or claim and $500,000 (other than claims covered by
insurance in the ordinary course of business and booked on Borrowers' or KRT's
balance sheet) in the aggregate, or would have a Materially Adverse Effect on
Borrowers or KRT if adversely determined;
5.1.7 Comply in all material respects with the requirements of
ERISA applicable to any employee pension benefit plan (within the meaning of
Section 3 (2) of ERISA), sponsored by a Borrower. With respect to any such plan,
other than any "multiemployer plan" (within the meaning of Section 3 (37) of
ERISA), in the case of a "reportable event" within the meaning of Section 404.3
of ERISA and the regulations thereunder for which the 30-day notice requirement
has not been waived, or in the case of any other event or condition which
presents a material risk of the termination of any such plan by action of the
PBGC or a Borrower, the
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subject Borrower shall furnish to Lender a certificate of the Chief Financial
Officer of the subject Borrower identifying such reportable event or such other
event or condition and setting forth the action, if any, that the subject
Borrower intends to take or has taken with respect thereto, together with a copy
of any notice of such reportable event or such other event or condition filed
with the PBGC or any notice received by the subject Borrower from the PBGC
evidencing the intent of the PBGC to institute proceedings to terminate any such
plan. Such certificate of the Chief Financial Officer or such other notice to be
furnished to Lender in accordance with the preceding sentence shall be given in
the manner provided for in Section 8.4 hereof: (i) within 30 days after the
Borrower knows of such reportable event or such other event or condition; (ii)
as soon as possible upon receipt of any such notice from the PBGC; or (iii)
concurrently with the filing of any such notice with the PBGC, as the case may
be. For purposes of this Section, Borrowers shall be deemed to have all
knowledge attributable to the administrator of any such plan;
5.1.8 Immediately notify Lender of: (i) the occurrence or
imminent occurrence of any event which causes or would imminently cause (A) any
change in the business, property, prospects or financial condition of Borrowers
or a Guarantor that would have a Materially Adverse Effect on Borrowers or
either Guarantor or (B) the occurrence of any other Event of Default hereunder;
and (ii) the institution of, or the issuance of any order, judgment, decree or
other process in, any litigation, investigation, prosecution, proceeding or
other action by any governmental authority or other Person against any Borrower
or either Guarantor and that have a Materially Adverse Effect on Borrowers.
5.1.9 Maintain in effect policies of insurance insuring the
Borrowers and the Mortgaged Property, as required by the terms of the Mortgage.
5.1.10 Cause each component of the Mortgaged Property to be
managed by an Affiliate of KRT.
5.1.11 Cause the outstanding principal balance of the
Revolving Credit to be not more than $2,000,000 for a period of at least thirty
(30) consecutive days during each Loan Year.
5.2 Indemnification. Borrowers hereby indemnify and agrees to
protect, defend, and hold harmless Lender and Lender's directors, officers,
employees, agents, attorneys and shareholders from and against any and all
losses, damages, expenses or liabilities of any kind or nature and from any
suits, claims, or demands, including all reasonable counsel fees incurred in
investigating, evaluating or defending such claim, suffered by any of them and
caused by, relating to, arising out of, resulting from, or in any way connected
with this Agreement, the Note the other Loan Documents and any transaction
contemplated herein or therein including, but not limited to, claims based upon
any act or failure to act by Lender in connection with this Agreement, the Note,
the other Loan Documents and any transaction contemplated herein or therein;
provided that Borrowers shall not be liable for any portion of such losses,
damages, expenses or liability resulting from Lender's gross negligence or
willful misconduct or that of Lender's directors, officers, employees, agents,
attorneys or shareholders. If Borrowers shall have knowledge of any claim or
liability hereby indemnified against, it shall promptly give written notice
thereof to Lender. THIS COVENANT SHALL SURVIVE PAYMENT OF THE INDEBTEDNESS.
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5.2.1 Lender shall promptly give Borrowers written notice of
all suits or actions instituted against Lender with respect to which Borrowers
have indemnified Lender, and Borrowers shall timely proceed to defend any such
suit or action. Lender shall also have the right, at the expense of Borrowers,
to participate in or, at Lender's election, assume the defense or prosecution of
such suit, action, or proceeding, and in the latter event Borrowers may employ
counsel and participate therein. Lender shall have the right to adjust, settle,
or compromise any claim, suit, or judgment after notice to Borrowers, unless any
Borrower desires to litigate such claim, defend such suit, or appeal such
judgment and simultaneously therewith deposits with Lender additional collateral
security sufficient to pay any judgment rendered, with interest, costs, legal
fees and expenses; and the right of Lender to indemnification under this
Agreement shall extend to any money paid by Lender in settlement or compromise
of any such claims, suits, and judgments in good faith, after notice to
Borrowers.
5.2.2 If any suit, action, or other proceeding is brought by
Lender against Borrowers for breach of Borrowers' covenant of indemnity herein
contained, separate suits may be brought as causes of action accrue, without
prejudice or bar to the bringing of subsequent suits on any other cause or
causes of action, whether theretofore or thereafter accruing.
ARTICLE 6
NEGATIVE COVENANTS
6.1 Borrowers' Negative Covenants. As long as any portion of the
Indebtedness shall remain outstanding and unpaid or Lender has any obligation to
extend Loans hereunder, Borrowers covenant and agree that, in the absence of
prior written consent of Lender, no Borrower will:
6.1.1 Materially change the general character of such
Borrower's Business from that in which it is currently engaged; enter into or
permit a Guarantor to enter into, proceedings in total or partial dissolution;
or otherwise take any action or omit to take any action which would have a
Materially Adverse Effect on Borrowers or such Borrower's Business;
6.1.2 Use any part of the proceeds of the Loans to purchase or
carry, or to reduce, retire or refinance any credit incurred to purchase or
carry, any margin stock (within the meaning of Regulations T, U and X of the
Board of Governors of the Federal Reserve System) or to extend credit to others
for the purpose of purchasing or carrying any margin stock;
6.1.3 Except in such manner as will not have a Materially
Adverse Effect on any Borrower, use, generate, treat, store, dispose of, or
otherwise introduce any hazardous substances, pollutants, contaminants,
hazardous waste, residual waste or solid waste (as defined above) into or the
Mortgaged Property and will not knowingly cause, suffer, allow, or permit anyone
else to do so in violation of any applicable statute, law, ordinance rule or
regulation;
6.1.4 Engage in any conduct or take or fail to take any action
which will, or would, if the facts and circumstances relative thereto were
discovered, violate RICO;
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6.1.5 Merge with any other Person, regardless of whether a
Borrower is the surviving entity; or
6.1.6 Permit any lien or encumbrance to exist against any
portion of the Mortgaged Property, other than Permitted Liens.
ARTICLE 7
DEFAULT
7.1 Events of Default. The occurrence of any one or more of the
following events, conditions or states of affairs, shall constitute an "Event of
Default" hereunder, under the Note and under each of the other Loan Documents,
provided however, that nothing contained in this Article 7 shall be deemed to
enlarge or extend any grace period provided for in the Note or any other Loan
Document:
7.1.1 Failure by Borrowers to pay the Indebtedness or any
portion thereof within five (5) days after the date on which the same becomes
due;
7.1.2 Failure by Borrowers to observe or perform any
agreement, condition, undertaking or covenant in this Agreement (other than
payment of the Indebtedness), or in any other agreement by and between Borrowers
and Lender that is not a Loan Document or between Lender and any of a Borrower's
subsidiaries or Affiliates, including without limitation thereto, any note or
guaranty heretofore or hereafter executed by any Borrower in favor of Lender and
arising out of a transaction other than the one contemplated by this Agreement,
which failure, if it does not consist of the failure to pay money to Lender and
is susceptible to being cured, is not cured within twenty (20) days after
written notice from Lender (but if such failure cannot reasonably be cured
within such twenty (20) day period, such shall not be an Event of Default if a
Borrower or its subsidiaries or Affiliates has commenced such cure within such
twenty (20) day period and thereafter diligently pursues such cure to its
completion);
7.1.3 The occurrence of any "Event of Default" as defined in
the Note, any Mortgage or any other Loan Document;
7.1.4 The occurrence of any monetary event of default in
excess of $1,000,000 under any document that evidences or secures any portion of
KRT's Total Debt, after expiration of any applicable grace period provided in
such document, and the occurrence of any event of default under any such
document which results in the acceleration of any portion of KRT's Total Debt;
7.1.5 Any representation or warranty of the Borrower made, or
deemed made pursuant to Section 3.2 hereof, in this Agreement, the Note, the
other Loan Documents or any statement or information in any report, certificate,
Financial Statement or other instrument furnished by Borrowers in connection
with making of this Agreement, the making of any Loan hereunder or in compliance
with the provisions hereof or any other Loan Document shall have been false or
misleading in any material respect when so made, deemed made or furnished;
7.1.6 Any Borrower shall become insolvent or unable to pay its
debts as they mature, or file a voluntary petition or proceeding seeking
liquidation, reorganization or
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other relief with respect to itself under any provision of the Bankruptcy Code
or any state bankruptcy or insolvency statute, or make an assignment or any
other transfer of assets for the benefit of its creditors, or apply for or
consent to the appointment of a receiver for its assets, or suffer the filing
against its property of any attachment or garnishment or take any action to
authorize any of the foregoing; or an involuntary case or other proceeding shall
be commenced against any Borrower seeking liquidation, reorganization or other
relief with respect to its debts under the Bankruptcy Code or any other
bankruptcy, insolvency or similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a period of
sixty (60) days (it being understood that no delay period applies with respect
to any default arising under this Section by reason of the filing of a voluntary
petition by a Borrower under the Bankruptcy Code or any state bankruptcy or
insolvency statute or the making of an assignment or other transfer of assets
for the benefit of a Borrower's creditors or by reason of a Borrower applying
for or consenting to the appointment of a receiver for Borrower's assets); or an
order for relief shall be entered against any Borrower under any provision of
the Bankruptcy Code or any state bankruptcy or insolvency statute as now or
hereafter in effect;
7.1.7 Entry of a final judgment or judgments against any
Borrower by a court of law for the payment of money in an amount exceeding an
aggregate of $250,000 outstanding at any one time: (i) which is not fully (other
than to the extent of the applicable deductible) or unconditionally covered by
insurance; or (ii) for which such Borrower has not established a cash or cash
equivalent reserve in the amount of such judgment or judgments that were entered
by a court of record against such Borrower; or (iii) enforcement of such
judgment or judgments has not been stayed or said judgment or judgments shall
continue in effect for a period of sixty (60) consecutive days without being
vacated, discharged, satisfied or bonded pending appeal;
7.1.8 Except as between or among Borrowers and their
Affiliates, there shall be any sale, conveyance, transfer, mortgage, pledge,
hypothecation or grant of any security interest in or of any ownership interest
in Borrower by a Person, or there shall be a transfer of day-to-day management
and control of KRT to a Person other than an Affiliate, except in connection
with a merger, consolidation or acquisition involving either Guarantor, without
the prior written consent of Lender, which shall not be unreasonably withheld;
or
7.1.9 Regardless of the intent or knowledge of Borrower, if
the validity, binding nature or enforceability of any material term, provision,
condition, covenant or agreement contained in this Agreement, the Note, any
other Loan Document or in any other existing or future agreement between any
Borrower and Lender shall be wrongfully disputed by, on behalf of, or in the
right or name of any Borrower or if any such material term, provision,
condition, covenant or agreement shall be found or declared to be invalid,
non-binding, unenforceable or avoidable by any governmental authority or court
and the parties cannot agree upon substitutions therefor within 30 days;
then, and in every such event, the Lender may, at its election, (i) by notice to
Borrowers terminate the commitment to lend contained in this Agreement, and it
shall thereupon terminate, and (ii) without notice to any Borrower, other than
as specifically required by this Agreement,
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declare the Note (together with accrued interest thereupon) to be, and the Note
shall thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
Borrowers. For purposes of this Section 7.1, the occurrence of any of the events
described in Sections 7.1.6 or 7.1.7 pertaining to a Guarantor shall also be an
Event of Default.
7.2 Remedies on Default. Upon the occurrence and continuation of any
Event of Default, Lender may at its election forthwith declare all Indebtedness
to be immediately due and payable, without protest, demand or other notice
(which are hereby expressly waived by Borrowers) and, in addition to the rights
specifically granted hereunder or now or hereafter existing in equity, at law,
by virtue of statute or otherwise (each of which rights may be exercised at any
time and from time to time), Lender may exercise the rights and remedies
available to Lenders at law or in equity or under this Agreement, the Note, the
Mortgages, the Guaranty and any of the other Loan Documents or any other
agreement by and between Borrower and Lender in accordance with the respective
provisions thereof.
7.3 Set-Off Rights Upon Default. Upon and during the continuance of
any Event of Default, Lender, in addition to any remedies set forth above, shall
have the right at any time and from time to time without notice to any Borrower
(to the extent permitted by law) (any such notice being expressly waived by
Borrowers and to the fullest extent permitted by applicable Rules, to set off,
to exercise any banker's lien or any right of attachment or garnishment and
apply any and all balances, credits, deposits (general or special, time or
demand, provisional or final) , accounts or monies at any time held by Lender
and other indebtedness at any time owing by Lender to or for the account of any
Borrower against any and all Indebtedness or other obligations of any Borrower
now or hereafter existing under this Agreement, the Note or any other Loan
Document, whether or not Lender shall have made any demand hereunder or
thereunder.
7.4 Singular or Multiple Exercise; Non-Waiver. The remedies provided
herein, in the Note and in the other Loan Documents or otherwise available to
Lender at law or in equity, shall be cumulative and concurrent, and may be
pursued singly, successively or together at the sole discretion of Lender, and
may be exercised as often as occasion therefor shall occur; and the failure to
exercise any such right or remedy shall in no event be construed as a waiver or
release of the same.
ARTICLE 8
MISCELLANEOUS
8.1 Integration. This Agreement, the Note and the other Loan
Documents shall be construed as one agreement, and in the event of any
inconsistency, the provisions of the Note shall control over the provision of
this Agreement or any other Loan Document, and the provisions of this Agreement
shall control over the provisions of any other Loan Document. This Agreement,
the Note and the other Loan Documents contain all the agreements of the parties
hereto with respect to the subject matter of each thereof and supersede all
prior or contemporaneous discussions and agreements with respect to such subject
matter.
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8.2 Modification. Modifications or amendments of or to the
provisions of this Agreement, the Note or any other Loan Document shall be
effective only if set forth in a written instrument signed by Lender and
Borrowers.
8.3 Amendments and Waivers. Any provision of this Agreement or the
Note may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by Borrowers and Lender.
8.4 Notices. Except as hereinelsewhere specifically allowed with
respect to a Notice of Borrowing, any notice or other communication by one party
hereto to the other shall be in writing and shall be deemed to have been validly
given upon receipt if by hand delivery, or by overnight delivery service or by
telecopier, or two days after mailing if mailed, first class mail, postage
prepaid, return receipt requested, addressed as follows:
If to any Borrower:
c/o Kramont Realty Trust
Plymouth Plaza
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Treasurer
Telecopier: (000)000-0000
All with a copy to:
Kramont Realty Trust
Plymouth Plaza
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopier: (000)000-0000
If to the Lender:
Wachovia Bank, National Association
PA 1245
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Vice President
Telecopier: (000)000-0000
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With a copy to:
Xxxxxxx X. Xxxxxxxxx, Esquire
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier: (000)000-0000
8.5 Survival. The terms of this Agreement and all agreements,
representations, warranties and covenants made by Borrowers and Lender in any
other Loan Document shall survive the issuance and payment of the Note and shall
continue as long as any portion of the Indebtedness shall remain outstanding and
unpaid; provided, however, that the covenants set forth in Sections 5.2, 8.8,
and 8.9 hereof and all other covenants of Borrowers to indemnify Lender shall
survive the payment of the Indebtedness. Borrowers hereby acknowledge that
Lender has relied upon the foregoing in making the Loan.
8.6 Closing. Closing hereunder shall not occur later than July 31,
2004 at the offices of Lender's counsel, or at such other time and place as the
parties hereto may determine.
8.7 Successors and Assigns; Governing Law. This Agreement shall be
binding upon and inure to the benefit of the respective successors and assigns
of the parties hereto; provided, however that Borrowers shall not assign this
Agreement, or any rights or duties arising hereunder, without the express prior
written consent of Lender and that, subject to the right to enter into
participation arrangements under Section 8.10 hereof, Lender may not assign its
rights or duties arising hereunder without the express prior written consent of
Borrowers. This Agreement shall be construed and enforced in accordance with the
internal laws of the Commonwealth of Pennsylvania for contracts made and to be
performed in Pennsylvania.
8.8 Jurisdiction. IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER. ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
RELATIONSHIP EVIDENCED HEREBY, BORROWERS HEREBY IRREVOCABLY SUBMIT TO THE
NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY IN
THE COMMONWEALTH OF PENNSYLVANIA WHERE LENDER MAINTAINS AN OFFICE AND AGREES NOT
TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF
THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. BORROWERS AGREE THAT SERVICE OF
PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY
THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO BORROWERS.
8.9 Waiver of Jury Trial. BORROWERS HEREBY WAIVE, AND LENDER BY ITS
ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
ANY OTHER LOAN DOCUMENT, OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS
A MATERIAL
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INDUCEMENT FOR LENDER TO ENTER INTO, ACCEPT OR RELY UPON THIS AGREEMENT.
8.10 Participation. Lender may, upon the prior consent of Borrowers,
such consent not to be unreasonably withheld, enter into a participation
arrangement with respect to the Revolving Credit or any Loan made or committed
to be made under this Agreement and may provide all information in its
possession relating to Borrowers to any current or prospective participating
lender.
8.11 Joint and Several. The obligations and liabilities of Borrowers
under this Agreement shall be joint and several.
8.12 Excess Payments. If Borrowers shall pay any interest under the
terms of the Note at a rate higher than the maximum rate allowed by applicable
law, then such excess payment shall be credited as a payment of principal Loans,
unless a Borrower notifies Lender in writing to return the excess payment to
Borrowers.
8.13 Partial Invalidity. If any provision of this Agreement shall
for any reason be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof, but this Agreement
shall be construed as if such invalid or unenforceable provision had never been
contained herein.
8.14 Compliance with Rules. Lender shall not be required by
operation or effect of any provision of this Agreement to violate any statute or
regulation under state or federal law, including all Rules.
8.15 Headings. The heading of any Article or Section contained in
this Agreement is for convenience of reference only and shall not be deemed to
amplify, limit, modify or give full notice of the provisions thereof.
8.16 Exculpation of Borrowers. This Agreement and all documents,
agreements, understandings, and arrangements relating to this transaction have
been executed by an individual in his capacities as an officer of Plymouth Plaza
LLC, a Delaware limited liability company ("Plymouth GP"), which is the general
partner of Plymouth Plaza Associates, L.P., a Delaware limited partnership
("Plymouth"), 000 Xxxx Xxxxxxxxxx Pike Manager LLC, a Delaware limited liability
company ("550 Manager"), which is the managing member of 000 Xxxx Xxxxxxxxxx
Pike LLC, a Delaware limited liability company ("550") and KR Livonia Manager
LLC, a Delaware limited liability company ("Livonia Manager"), which is the
manager of KR Livonia LLC ("Livonia"), respectively (Plymouth, 550 and Livonia
being referred to, collectively, as the "Owners" and together with Plymouth GP,
550 Manager and Livonia Manager, collectively, as the "Subsidiaries"), each of
which is an indirect subsidiary of Kramont Realty Trust (the "Trust") which has
been formed as a Maryland Real Estate Investment Trust pursuant to a Declaration
of Trust of Kramont Realty Trust dated November 12, 1999, and not individually,
and neither the officer executing this Agreement, the officers, managers,
members or partners of the Subsidiaries, the trustees, officers, or shareholders
of the Trust, nor any of the Trust's subsidiaries other than Plymouth, 550 and
Livonia, shall be bound or have any personal liability hereunder. The party
contracting with the Owners shall look solely to the estate and
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property of the Owners in the Property for satisfaction of any liability of the
Owners in respect of this Agreement and all documents, agreements,
understandings, and arrangements relating to this transaction, and will not seek
recourse or commence any action against the officer executing this Agreement,
the officers, manager's, members or partners of the Subsidiaries, the trustees,
officers, or shareholders of the Trust, nor any of the Trust's subsidiaries
other than Plymouth, 550 and Livonia, or any of their personal assets for the
performance or payment of any obligation hereunder or thereunder.
Notwithstanding the foregoing, this Section 8.16 does not affect or limit the
liability of any person under any separate documents executed by such person in
favor of Mortgagee, which liability shall only be limited as set forth in such
other documents. The foregoing shall also apply to any future documents,
agreements, understandings, arrangements, and transactions between the parties
hereto.
8.17 Counterparts. This Agreement may be signed in counterparts each
of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, Borrowers and Lender have executed this
Agreement under seal, intending to be legally bound hereby, as of the day and
year first above written.
000 XXXX XXXXXXXXXX PIKE LLC,
a Delaware limited liability company
By: 000 Xxxx Xxxxxxxxxx Pike
Manager LLC, a Delaware limited
liability company, its managing
member
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President
KR LIVONIA LLC,
a Delaware limited liability company
By: KR Livonia Manager LLC, a Delaware
limited liability company,
its manager
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President
(Signatures continued on next page)
- 24 -
PLYMOUTH PLAZA ASSOCIATES, L.P.,
a Delaware limited partnership
By: Plymouth Plaza LLC, a Delaware
limited liability company, its
general partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxx,
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx,
Title: Vice President
- 25 -
SCHEDULE 2.4.1
NOTICE OF BORROWING
________________________
Wachovia Bank, National Association
PA 1245
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
_________________, 200_
This Notice of Borrowing ( "Notice") is provided to Wachovia Bank,
National Association (the "Lender") to evidence the desire of
_________________________________ ("Borrower") to borrow funds in the form of a
Loan pursuant to Section 2.1 of the Secured Revolving Credit Loan Agreement,
dated as of ________________________, 2004, by and among Borrower, certain
Affiliates of Borrower and Lender (the "Loan Agreement"). All capitalized terms
not defined herein shall have the same meaning as provided in the Loan Agreement
unless the context clearly requires to the contrary.
Borrower desires to borrow $_________________________ to be funded
on ______________________, 200__ (the "Funding Date"). Such Loan shall be
deposited into Borrower's Deposit Account #_______________.
The undersigned hereby certifies that no Event of Default or, to its
knowledge, Unmatured Event of Default under the Loan Agreement has occurred and
is continuing.
[Borrower Name]
By: _____________________________________
Name:
Title:
SCHEDULE 4.1.4
LITIGATION
Neither any Borrower nor either Guarantor is presently involved in any
material litigation, nor to Borrowers' knowledge is any material litigation
threatened against any Borrower, either Guarantor or any of their properties,
other than routine litigation arising in the ordinary course of business and
which is expected to be covered by liability insurance.
