FIRST AMENDMENT TO FIRST AMENDED AND
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RESTATED REVOLVING CREDIT AGREEMENT AND GUARANTY
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(AQUIA)
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT AND GUARANTY (this "Amendment") made as of this thirtieth day of
March, 2010, by and among RAMCO-XXXXXXXXXX PROPERTIES, L.P., a Delaware limited
partnership ("Borrower"), RAMCO-XXXXXXXXXX PROPERTIES TRUST, a Maryland real
estate investment trust ("Trust"), RAMCO VIRGINIA PROPERTIES, L.L.C., a Michigan
limited liability company ("Aquia"; the Trust and Aquia are hereinafter referred
to collectively as the "Guarantors"), KEYBANK NATIONAL ASSOCIATION ("KeyBank"),
and KEYBANK NATIONAL ASSOCIATION, as Agent (the "Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, Borrower, Trust, Aquia, Agent and KeyBank entered into that
certain First Amended and Restated Revolving Credit Agreement dated as of
December 11, 2009 (the "Loan Agreement");
WHEREAS, Guarantors executed and delivered to Agent and the Banks that
certain Unconditional Guaranty of Payment and Performance dated as of December
16, 2008 (the "Original Guaranty"), as amended by that certain Omnibus Amendment
of Loan Documents dated as of December 11, 2009 among Borrower, Guarantors, and
Agent (the "Omnibus Amendment"; the Original Guaranty as amended by the Omnibus
Amendment, the "Guaranty");
WHEREAS, Borrower has requested that Agent and the Banks modify certain
provisions of the Loan Agreement; and WHEREAS, the Agent and the Banks have
consented to such modification, subject to the execution and delivery of this
Amendment.
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. Definitions. All terms used herein which are not otherwise defined
herein shall have the meanings set forth in the Loan Agreement.
2. Amendment of Loan Agreement. Borrower, Guarantors, Agent and the Banks
do hereby modify and amend the Loan Agreement as follows:
(a) By deleting in its entirety the definition of "Quarterly Reduction
Date" appearing in Sec.1.1 of the Loan Agreement, appearing on page 15 thereof;
(b) By deleting in its entirety Sec.3.2(d) of the Loan Agreement, appearing
on page 25 thereof, and inserting the following: "(d) Intentionally Omitted."
(c) By inserting the following as new Sec.4.15(b) (v) of the Loan
Agreement:
"(v) Total Commitment. As of the then effective Maturity Date (without
regard to such extension request), the Total Commitment shall have been
permanently reduced to $15,000,000.00 or less."
(d) By deleting in its entirety Sec.4.15(c) of the Loan Agreement,
appearing on page 31 thereof, and inserting in lieu thereof the following:
"(c) In the event that the Maturity Date has been extended as provided
in Sec.4.15(a) and (b), then 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 an Extension Request to the Agent not more than
one hundred twenty (120) days and not less than sixty (60) days prior to
the scheduled Maturity Date, subject to the terms and conditions set forth
in this Agreement, to extend the Maturity Date by twelve (12) additional
months to December 31, 2012. The request by the Borrower for extension of
the Maturity Date shall constitute a representation and warranty by the
Borrower that all of the conditions set forth in this Section shall have
been satisfied on the date of such request. The obligation of the Agent and
the Banks to extend the Maturity Date as provided in this Sec.4.15(c) shall
be subject to the satisfaction again of each and every condition set forth
in Sec.4.15(a) and (b), except that for the purposes of this Sec.4.15(c),
the reference in Sec.4.15(b)(v) to "$15,000,000.00" shall instead be
"$10,000,000.00," such that Borrower may not obtain an extension of the
Maturity Date unless (subject to the satisfaction of the other conditions
herein) the Total Commitment has been permanently reduced to $10,000,000.00
or less."
(e) By deleting in its entirety Sec.5.2(j) of the Loan Agreement,
appearing on page 34 thereof, and inserting in lieu thereof the following:
"(j) Prepayment of Loans. Borrower shall have paid to Agent the
greater of (i) any amounts which would be due under Sec.3.2(c) as a result
of such Permitted Transfer, or (ii) the gross cash proceeds received by
Aquia as result of the mortgage loan from a third party lender after
deduction for reasonable and customary loan closing costs, or joint venture
with respect to the Office Property, Residential Property or the Hotel
Property, as the case may be. The Total Commitment shall automatically and
without further action be permanently reduced by the amount of the payment
made pursuant to this Sec.5.2(j), and the Commitment of each Bank shall be
reduced by its Commitment Percentage of the reduction in the Total
Commitment."
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3. Amendment to Guaranty. Guarantors, Agent and the Banks do hereby
modify the Guaranty by deleting the words "Unsecured Master Loan Agreement"
wherever the same appear in the Guaranty, and inserting in lieu thereof the
words "Secured Credit Agreement."
4. Reduction of Total Commitment. Prior to the execution and delivery of
this Amendment, Borrower has paid to Agent for the account of the Banks as a
prepayment of the principal of the Loans the sum of $1,250,000. By execution
hereof, Borrower agrees that such prepayment shall also result in an automatic
and permanent reduction of the Total Commitment and of the Commitments of each
of the Banks in accordance with their Commitment Percentages. Borrower and
Guarantors acknowledge that, after giving effect to such payment, the
outstanding principal balance of the Loans is $18,750,000, the Total Commitment
is $18,750,000 and the Commitment of KeyBank is $18,750,000.00.
5. References to Loan Agreement. All references in the Loan Documents to
the Loan Agreement and the Guaranty shall be deemed a reference to the Loan
Agreement and the Guaranty as modified and amended herein.
6. Consent of Guarantors. By execution of this Amendment, Guarantors hereby
expressly consent to the modifications and amendments relating to the Loan
Agreement, the Guaranty and the Loan Documents as set forth herein, and Borrower
and Guarantors 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 Guarantors,
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.
7. Representations. Borrower and Guarantors represent and warrant to Agent
and the Banks as follows:
(a) The execution, delivery and performance of this Amendment and any
other agreements executed and delivered contemporaneously herewith and the
transactions contemplated hereby and thereby (i) are within the authority of
Borrower and Guarantors, (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.
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(b) The execution and delivery of this Amendment and any other agreements
executed and delivered contemporaneously herewith are valid and legally binding
obligations of Borrower and Guarantors 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) The execution, delivery and performance of this Amendment and any other
agreements executed and delivered contemporaneously herewith and the
transactions contemplated hereby and thereby 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.
(d) The representations and warranties made by the Borrower and the
Guarantors under the Loan Documents or otherwise made by or on behalf of the
Borrower or a Guarantor 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.
8. No Release. Each Guarantor acknowledges and agrees that nothing in
this Amendment, or in any other document executed contemporaneously herewith,
shall release, discharge, diminish or impair any liability of either Guarantor
under any of the Loan Documents, including without limitation the Guaranty.
9. No Default. By execution hereof, the Borrower and Guarantors certify
that the Borrower and Guarantors 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 Guarantors acknowledge, represent and
agree that Borrower and Guarantors as of the date hereof have no defenses,
setoffs, claims, counterclaims or causes of action of any kind or nature
whatsoever with respect to the Loan Documents, the administration or funding of
the Loans or with respect to any acts or omissions of Agent or any of the Banks,
or any past or present officers, agents or employees of Agent or any of the
Banks, and each of Borrower and Guarantors 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 Loan Agreement, the Notes, the Guaranty and the other Loan
Documents remain unaltered and in full force and effect, and the parties hereto
do hereby expressly ratify and confirm the Loan Agreement, as modified and
amended herein, the Guaranty, as modified and amended herein, the Notes, and the
other Loan Documents. Nothing in this Amendment shall be deemed or construed to
constitute, and there has not otherwise occurred, a novation, cancellation,
satisfaction, release, extinguishment or substitution of the indebtedness
evidenced by the Notes or the other obligations of Borrower and Guarantors under
the Loan Documents (including without limitation the Guaranty).
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12. Counterparts. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
13. 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.
14. Effective Date. This Amendment shall be deemed effective and in full
force and effect as of the date hereof upon the execution and delivery of this
Amendment by Borrower, Guarantors, the Banks and the Agent.
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IN WITNESS WHEREOF, the parties hereto have hereto set their hands as of
the day and year first above written.
BORROWER:
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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/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: President and Chief Executive
Officer
TRUST:
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RAMCO-XXXXXXXXXX PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: President and Chief Executive
Officer
AQUIA:
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RAMCO VIRGINIA PROPERTIES, L.L.C., a
Michigan limited liability company
By: /s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: President and Chief Executive
Officer
[SIGNATURES CONTINUE ON NEXT PAGE]
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AGENT AND THE BANKS:
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KEYBANK NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Vice President
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