exv10w19



 



Exhibit 10.19


CONSTRUCTION CREDIT AGREEMENT



Dated as of June 23, 2003



among



GENERAL MOTORS ACCEPTANCE CORPORATION, as Lender,



and



CAPITAL AUTOMOTIVE L.P.,



and



CERTAIN REAL ESTATE SUBSIDIARIES, as Borrowers



 






 





Table of Contents




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE I	DEFINITIONS	 	1	 
	 	 	
Section 1.01
	 	Definitions
	 	 	1	 
	 	 	
Section 1.02
	 	Certain UCC and Accounting Terms
	 	 	6	 
	ARTICLE II	LOANS	 	 	7	 
	 	 	
Section 2.01
	 	Amount and Term of Loans
	 	 	7	 
	 	 	
Section 2.02
	 	Notes
	 	 	7	 
	 	 	
Section 2.03
	 	Making the Loans
	 	 	7	 
	 	 	
Section 2.04
	 	Extension, Termination and Reduction of the Credit Commitment
	 	 	9	 
	 	 	
Section 2.05
	 	Payment; Interest Rate; Default Rate
	 	 	9	 
	 	 	
Section 2.06
	 	Payment on Non-Business Days
	 	 	10	 
	 	 	
Section 2.07
	 	Inability to Ascertain the LIBOR Rate
	 	 	10	 
	 	 	
Section 2.08
	 	Use of Proceeds
	 	 	10	 
	 	 	
Section 2.09
	 	Effect of Full Payment
	 	 	10	 
	ARTICLE III	CONDITIONS OF LENDING	 	 	11	 
	 	 	
Section 3.01
	 	Conditions Precedent to Loans
	 	 	11	 
	 	 	
Section 3.02
	 	Additional Conditions Precedent To Each Construction Draw
	 	 	15	 
	 	 	
Section 3.03
	 	Conditions Precedent to All Loans
	 	 	17	 
	 	 	
Section 3.04
	 	Conversion of an Acquisition Loan into a Construction Loan
	 	 	18	 
	ARTICLE IV	REPRESENTATIONS AND WARRANTIES	 	 	18	 
	 	 	
Section 4.01
	 	Capacity and Power
	 	 	18	 
	 	 	
Section 4.02
	 	Authorization of Borrowing: No Conflict as to Law or Agreements
	 	 	18	 
	 	 	
Section 4.03
	 	Legal Agreements
	 	 	18	 
	 	 	
Section 4.04
	 	Subsidiaries
	 	 	19	 
	 	 	
Section 4.05
	 	Financial Condition
	 	 	19	 
	 	 	
Section 4.06
	 	Adverse Change
	 	 	19	 
	 	 	
Section 4.07
	 	Litigation
	 	 	19	 
	 	 	
Section 4.08
	 	Taxes
	 	 	19	 
	 	 	
Section 4.09
	 	Titles and Liens
	 	 	19	 
	 	 	
Section 4.10
	 	Real Property Collateral Documents
	 	 	19	 
	 	 	
Section 4.11
	 	Other Security Interests
	 	 	19	 
	 	 	
Section 4.12
	 	Compliance with Laws
	 	 	19	 
	 	 	
Section 4.13
	 	Other Agreements
	 	 	20	 
	 	 	
Section 4.14
	 	Solvency
	 	 	20	 
	 	 	
Section 4.15
	 	Accuracy of Information
	 	 	20	 
	 	 	
Section 4.16
	 	Wetlands
	 	 	20	 
	 	 	
Section 4.17
	 	Environmental Matters
	 	 	20	 



i






 



Table of Contents
(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE V	AFFIRMATIVE COVENANTS	 	 	21	 
	 	 	
Section 5.01
	 	Financial Statements
	 	 	22	 
	 	 	
Section 5.02
	 	Books and Records; Inspection and Examination
	 	 	23	 
	 	 	
Section 5.03
	 	Compliance with Laws
	 	 	23	 
	 	 	
Section 5.04
	 	Payment of Taxes and Other Claims
	 	 	24	 
	 	 	
Section 5.05
	 	Maintenance of Properties
	 	 	24	 
	 	 	
Section 5.06
	 	Insurance
	 	 	24	 
	 	 	
Section 5.07
	 	Restoration Following Casualty
	 	 	26	 
	 	 	
Section 5.08
	 	Application of Proceeds
	 	 	27	 
	 	 	
Section 5.09
	 	Financial Covenants
	 	 	28	 
	 	 	
Section 5.10
	 	Use of Mortgaged Property
	 	 	28	 
	 	 	
Section 5.11
	 	Condemnation—General
	 	 	28	 
	 	 	
Section 5.12
	 	Leases
	 	 	30	 
	 	 	
Section 5.13
	 	Construction Responsibilities
	 	 	31	 
	 	 	
Section 5.14
	 	Completion of Improvements
	 	 	31	 
	 	 	
Section 5.15
	 	Payment of Costs
	 	 	31	 
	 	 	
Section 5.16
	 	Additional Advances
	 	 	32	 
	ARTICLE VI	NEGATIVE COVENANTS	 	 	32	 
	 	 	
Section 6.01
	 	Consolidation and Merger
	 	 	32	 
	 	 	
Section 6.02
	 	Restrictions on Further Encumbrances or Indebtedness
on Real Estate
	 	 	32	 
	 	 	
Section 6.03
	 	Management Fees
	 	 	32	 
	ARTICLE VII	EVENTS OF DEFAULT, RIGHTS AND REMEDIES	 	 	33	 
	 	 	
Section 7.01
	 	Events of Default
	 	 	33	 
	 	 	
Section 7.02
	 	Rights and Remedies
	 	 	34	 
	ARTICLE VIII	MISCELLANEOUS	 	 	35	 
	 	 	
Section 8.01
	 	No Waiver; Cumulative Remedies
	 	 	35	 
	 	 	
Section 8.02
	 	Amendments, Etc.
	 	 	35	 
	 	 	
Section 8.03
	 	Addresses for
Notices, Etc.
	 	 	35	 
	 	 	
Section 8.04
	 	Costs and Expenses
	 	 	36	 
	 	 	
Section 8.05
	 	Execution in Counterparts
	 	 	36	 
	 	 	
Section 8.06
	 	Binding Effect; Assignment
	 	 	36	 
	 	 	
Section 8.07
	 	Governing Law
	 	 	36	 
	 	 	
Section 8.08
	 	Severability of Provisions
	 	 	36	 
	 	 	
Section 8.09
	 	Headings
	 	 	37	 
	 	 	
Section 8.10
	 	Venue and Waiver of Jury Trial
	 	 	37	 
	 	 	
Section 8.11
	 	Indemnification by Loan Parties
	 	 	37	 
	 	 	
Section 8.12
	 	Joint and Several Liability
	 	 	37	 
	 	 	
Section 8.13
	 	Reimbursement Among Borrowers
	 	 	38	 
	 	 	
Section 8.14
	 	Appointment of Capital as Representative
	 	 	38	 



ii






 




	 	 	 
	SHEDULES:	 	 
	 	 	 
	Schedule 4.04	 	
Subsidiaries
	 	 	 
	Schedule 4.17	 	
Environmental Matters
	 	 	 
	EXHIBITS:	 	 
	 	 	 
	Exhibit A	 	
Form of Note
	 	 	 
	Exhibit B	 	
Form of Draw Certificate
	 	 	 
	Exhibit C	 	
Form of Joinder Agreement
	 	 	 
	Exhibit D	 	
Form of Guaranty
	 	 	 
	Exhibit E	 	
Form of Assignment of Interest In Construction Documents
	 	 	 
	Exhibit F	 	
Form of Contractor Consent and Agreement
	 	 	 
	Exhibit G	 	
Form of Agreement of Subordination of Lien By Contractor
	 	 	 
	Exhibit H	 	
Form of Opinion of Borrower’s Counsel
	 	 	 
	Exhibit I	 	
Form of Subordination Agreement




 










 



CONSTRUCTION CREDIT AGREEMENT



     This Construction Credit Agreement (this “Credit
Agreement”) is made and entered into as of June 23, 2003 by and among
Capital Automotive L.P., a Delaware limited partnership
(“Capital”), and certain subsidiaries of Capital from time
to time party hereto (collectively, the “Real Estate
Subsidiaries”; Capital and its Real Estate Subsidiaries are
collectively referred to as the “Borrowers”), jointly and
severally; and General Motors Acceptance Corporation, a Delaware corporation
(“GMAC”).


W I T N E S S E T H:



     WHEREAS, Borrowers desire GMAC to provide certain extensions of credit,
loans or other financial accommodations to Borrowers in a maximum aggregate
principal amount not to exceed One Hundred Million and no/100 Dollars
($100,000,000) for the purpose of (i) acquiring certain parcels of improved and
unimproved real property and (ii) financing improvements made by tenants on
certain parcels of real property owned by the Borrowers or certain Affiliates
thereof from time to time; and


     WHEREAS, GMAC is willing to provide the financial accommodations provided
for herein to Borrowers, but solely on the terms and subject to the conditions
set forth in this Credit Agreement and the other documents, instruments and
agreements executed and delivered pursuant to this Credit Agreement or
referenced herein.


     NOW,
THEREFORE, in consideration of the financial accommodations provided
for herein, the mutual promises and understandings of GMAC and the Borrowers
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, GMAC and the Borrowers hereby
agree as follows:


ARTICLE I



DEFINITIONS



     Section 1.01 Definitions. The following words, terms
and/or phrases shall have the meanings set forth thereafter and such meanings
shall be applicable to the singular and plural form thereof, giving effect to
the numerical difference.


     “Acquisition” means the acquisition by Capital and/or
its Real Estate Subsidiaries of the fee interest in a Project Property to be
operated in accordance with Section 5.10.


     “Acquisition Loan” shall have the meaning specified in
Section 2.01.


     “Affiliate” means any Person (a) that directly or
indirectly, through one or more intermediaries, controls or is controlled by,
or is under common control with any other Person or one or more Affiliates, (b)
that directly or beneficially owns or holds 20% or more of any equity interest
in any other Person or one or more Affiliates or (c) 20% or more of whose
voting stock (or in the case of a person that is not a corporation, 20% or more
of any equity interest) is owned directly or beneficially or held by any other
Person or one or more Affiliates. For purposes of
this definition and this Agreement, the term “control” shall mean,
directly or indirectly, the


 






 


power to direct or cause the direction of the
management or policies of a Person, whether through ownership interest or
otherwise, including without limitation the power to elect or appoint, directly
or indirectly, a majority of the members of its governing board or body.


     “Borrowers’ Liabilities” means all obligations and
liabilities of each Borrower in the aggregate to GMAC (including, without
limitation, all debts, claims, reimbursement obligations and indebtedness)
whether primary, secondary, direct, contingent, fixed or otherwise,
theretofore, now and/or from time to time hereafter owing, due or payable,
however evidenced, created, incurred, acquired or owing and however arising,
whether under this Agreement or the Other Agreements, or by oral agreement or
operation of law or otherwise.


     “Business Day” means any day on which GMAC is open for
the transaction of business in Detroit, Michigan other than a Saturday or
Sunday.


     “CARS” means Capital Automotive REIT, a Maryland real
estate investment trust.


     “Construction Contract” has the meaning specified in
Section 3.01(b)(vii).


     “Construction Loan” shall have the meaning specified in
Section 2.01.


     “Construction Project” means each construction project
and all improvements related thereto which are financed with the proceeds of a
Construction Loan.


     “Contractor” has the meaning specified in
Section 3.01(b)(vii).


     “Cost Analysis” has the meaning specified in
Section 3.01(b)(v).


     “Credit Commitment” means One Hundred Million Dollars
($100,000,000), unless said amount is reduced in accordance with
Section 2.04, in which event it means the amount to which
said amount is reduced.


     “Debt Service Coverage Ratio” means, with respect to
CARS measured as of December 31 of each year, the ratio expressed as a
fraction, the numerator of which is consolidated EBITDA and the denominator of
which is the scheduled principal paid during such year plus interest expense
during the year.


     “Debt to Total Assets Ratio” means, with respect to
CARS measured as of December 31 of each year, the ratio expressed as a
fraction, the numerator of which is the consolidated long-term Indebtedness
(less payments due within one year) of CARS and the denominator of which is
Total Assets plus accumulated depreciation and amortization (less goodwill)
reflected on CARS’ audited financial statements.


     “Draw Certificate” has the meaning set forth in
Section 2.03.


     “EBITDA” means, for any period, operating income for
CARS (determined on a consolidated basis without duplication in accordance with
GAAP) for such period (calculated before taxes, interest expense, depreciation
and amortization) excluding any extraordinary or unusual gains or losses during
such period.


2






 


     “Environmental Assessment” has the meaning set forth in
Section 3.01(a)(xiv).


     “Environmental Laws” means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit or
license regulating, relating to, or imposing liability or standards of conduct
concerning, environmental matters or conditions, environmental protection or
conservation, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended; the Superfund
Amendments and Reauthorization Act of 1986, as amended; the Resource
Conservation and Recovery Act, as amended; the Toxic Substances Control Act, as
amended; the Clean Air Act, as amended; the Clean Water Act, as amended;
together with all regulations promulgated thereunder, and any other “Superfund”
or “Superlien” law.


     “Event of Default” has the meaning specified in
Section 7.01.


     “GAAP” means United States generally accepted
accounting principles, as in effect from time to time.


     “Guarantor” means an Affiliate of any Borrower
guaranteeing Borrowers’ Liabilities.


     “Hazardous Material” means any pollutant, contaminant,
or hazardous, toxic or dangerous waste, substance or material (including,
without limitation, petroleum products, asbestos-containing materials and
lead), the generation, handling, storage, transportation, disposal, treatment,
release, discharge or emission of which is subject to any Environmental Law.


     “Indebtedness” means all of a Person’s liabilities,
obligations and indebtedness to any Person of any and every kind and nature,
whether primary, secondary, direct, indirect, absolute, contingent, fixed or
otherwise, heretofore, now and/or from time to time hereafter owing, due or
payable, however evidenced, created, incurred, acquired or owing and however
arising, whether under written or oral agreement, by operation of law or
otherwise. Without in any way limiting the generality of the foregoing,
Indebtedness specifically includes (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar instruments,
(iii) obligations to pay the deferred purchase price of property or services,
(iv) obligations as lessee under leases which shall have been or should be, in
accordance with GAAP, recorded as capital leases, (v) obligations under direct
or indirect guaranties in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds referred
to in clauses (i) through (iv) above which shall have been or should have been
recorded as indebtedness under GAAP, and (vi) liabilities in respect of
unfunded vested benefits under plans and multiemployer plans covered by Title
IV of ERISA.


     “Interest Rate” shall have the meaning specified in
Section 2.05.


     “Leases” means any and all leases, licenses,
concessions or other agreements (written or verbal, now or hereafter in effect)
through which Borrowers directly or indirectly grant a possessory interest in
and to, or the right to occupy and use, all or any portion of the Mortgaged
Property that constitutes real property, together with any renewals or
extensions thereof and all leases, subleases, licenses, concessions or other
agreements in substitution therefor.


3






 


     “LIBOR Rate” means, with respect to any Loan, a rate
per annum equal to the offered rate for 30-day deposits in Dollars for each day
of a monthly billing period that appears on Telerate Page 3750 as of
approximately 11:00 A.M. (London time). “Telerate Page 3750” means the display
designated as “Page 3750” on the Telerate Service (or such other page as may
replace page 3750 on that service or such other service as may be nominated by
the British Lenders’ Association as the information vendor for the purpose of
displaying British Lenders’ Association Interest Settlement Rates for Dollar
deposits). The LIBOR Rate applicable to any day on which no rate so appears or
is published will be the rate last quoted prior to such day.


     “Lien” means, with respect to any asset of any
Borrower, any mortgage, pledge, security interest, encumbrance, lien or charge
of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the nature
thereof and the filing of or agreement to give any financing statement under
the Uniform Commercial Code in effect in any jurisdiction).


     “Loan” or “Loans” means and includes
all Acquisition Loans and Construction Loans issued under this Credit
Agreement.


     “Loan Documents” means each of the documents set forth
in Section 3.1 (a) and (b).


     “Loan Party” or “Loan Parties” means
and includes each Borrower and each Guarantor.


     “Maturity Date” means June 23, 2004, unless otherwise
extended in accordance with Section 2.04.


     “Maximum Advance Rate for Acquisition Loans” means,
with respect to each Acquisition Loan, eighty five percent (85%) of the lesser
of (a) the cash purchase price (excluding commissions, transaction fees and
other expenses associated with such purchase) for the Mortgaged Property
securing such Acquisition Loan and (b) the appraised value for the Mortgaged
Property securing such Acquisition Loan (as determined by GMAC in its sole
discretion).


     “Maximum Advance Rate for Construction Loans” means,
with respect to each Construction Loan, ninety percent (90%) of the lesser of
(a) the cash purchase price (excluding commissions, transaction fees and other
expenses associated with such purchase) for the Mortgaged Property securing
such Construction Loan and (b) the appraised value for the Mortgaged Property
securing such Construction Loan (as determined by GMAC in its sole
discretion), plus, in instances where the Project Property is the
Mortgaged Property, an additional amount equal to ninety percent (90%) of the
lesser of (x) the cost of the improvements to be constructed on the Mortgaged
Property, and (y) the appraised value of the improvements (excluding the value
of the land and all existing improvements thereon) to be constructed on the
Mortgaged Property, in each case as determined by GMAC in its sole discretion.


     “Mortgage” means each Deed of Trust, Mortgage,
Leasehold Mortgage, Leasehold Deed of Trust, Security Agreement, Fixture
Filing, Assignment of Leases and Rents and Financing Statement or substantially
similar document, instrument or agreement executed by any Borrower or any
Guarantor from time to time in favor of GMAC, as each may be amended, modified
or supplemented from time to time.


4






 


     “Mortgaged Property” means each parcel of real property
which secures the Loans.


     “Note” or “Notes” has the meaning
specified in Section 2.02.


     “Operating Documents” shall mean with respect to any
corporation, limited liability company, partnership, limited partnership,
limited liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership agreement,
limited partnership agreement or other applicable documents relating to the
operation, governance or management of such entity.


     “Organizational Documents” shall mean with respect to
any corporation, limited liability company, partnership, limited partnership,
limited liability partnership or other legally authorized incorporated or
unincorporated entity, the articles of incorporation, certificate of
incorporation, articles of organization, certificate of limited partnership or
other applicable organizational or charter documents relating to the creation
of such entity.


     “Other Agreements” means all agreements, instruments
and documents, including, without limitation, letters of credit, guaranties,
mortgages, deeds of trust, pledges, powers of attorney, consents, assignments,
contracts, notices, security agreements, subordination agreements, financing
statements and all other written matter heretofore, now and/or from time to
time hereafter executed by any Borrower or any Guarantor relating to any Loan
and delivered to GMAC including, without limitation, each of the Loan
Documents.


     “Person” means and includes an individual, a
partnership, a joint venture, a corporation (whether or not for profit), a
limited liability company, a trust, an unincorporated organization, a
government or any department or agency thereof or any other entity or
organization.


     “Plan” means, at any time, any single-employer plan, as
defined in Section 4001(a) and subject to Title IV of ERISA,
which is maintained, or at any time during the five calendar years preceding
the time in question was maintained, for employees of any Borrower or any
Subsidiary.


     “Prime Rate” shall mean a variable rate of interest per
annum equal to the higher of (a) the rate of interest from time to time
published by the Board of Governors of the Federal Reserve System as the “Bank
Prime Loan” rate in Federal Reserve Statistical Release H.15(519) entitled
“Selected Interest Rates” or any successor publication of the Federal Reserve
System reporting the Bank Prime Loan rate or its equivalent, or (b) the Federal
Funds Rate. The statistical release generally sets forth a Bank Prime Loan
rate for each Business Day. In the event the Board of Governors of the Federal
Reserve System ceases to publish a Bank Prime Loan rate or its equivalent, the
term “Base Rate” shall mean a variable rate of interest per annum equal to the
highest of the “prime rate,” “reference rate,” “base rate,” or other similar
rate published from time to time by The Wall Street Journal, Central Edition,
or its successors, with the understanding that any such rate may merely be a
reference rate and may not necessarily represent the lowest or best rate
actually charged to any customer by any financial institution.


     “Project Property” means each parcel of real estate
which is or will become the subject of the improvements financed with the
proceeds of a Construction Loan.


5






 


     “Revolving Credit Agreement” means that certain Credit
Agreement dated as of March 22, 2000 by and among GMAC, Capital and certain
Subsidiaries of Capital from time to time party thereto, as amended by that
certain First Amendment to Credit Agreement dated as of March 20, 2002 and that
certain Second Amendment to Credit Agreement of even date herewith, as further
amended, modified or restated from time to time.


     “Reportable Event” means a “Reportable Event” described
in Section 4.03 of the Employee Income Retirement Security
Act of 1974, as the same may be amended from time to time, and any successor
statute.


     “Representative” has the meaning specified in
Section 8.14.


     “Subsidiary” shall mean, with respect to any Person, a
corporation, partnership, limited liability company or other entity of which
such Person and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares or other ownership interests as have more than
fifty percent (50%) of the ordinary voting power for the election of directors
or other managers of such corporation, partnership, limited liability company
or other entity. Unless the context otherwise requires, each reference to
Subsidiaries herein shall be a reference to Subsidiaries of the Borrowers.


     “Title Company” means, with respect to a particular
Loan, such title insurance company as agreed upon by Representative and GMAC.


     “Total Assets” means the aggregate book value of all
assets of CARS reflected on its audited financial statements for the relevant
period.


     “Trustee” means the Individual Trustees (as defined in
the applicable Mortgage for any Mortgaged Property), as applicable, or such
title insurance company as agreed to by GMAC and Representative.


     Section 1.02 Certain UCC and Accounting Terms. Except
as otherwise defined in this Agreement or the Other Agreements, all words,
terms and/or phrases used herein
and therein shall be defined by the applicable definition therefor (if
any) in the Uniform Commercial Code as then in effect in the State of Michigan.
Notwithstanding the foregoing, any accounting terms used in this Agreement
which are not specifically defined herein shall have the meanings customarily
given to them in accordance with GAAP. All financing computations hereunder
shall be computed, unless otherwise specifically provided herein, in accordance
with GAAP as consistently applied.


6






 


ARTICLE II



LOANS



     Section 2.01 Amount and Term of Loans.


          (a) Amount. GMAC agrees, on the terms and subject to
the conditions hereinafter set forth, to make Loans to the Borrowers for the
purpose of (i) financing certain improvements to parcels of real property (the
proceeds of which may or may not be used for improvements to Mortgaged
Property) from time to time (referred to herein as “Construction Loans”) and
(ii) purchasing the fee interest in certain improved or unimproved parcels of
Project Property (the proceeds of which may or may not be used for purchasing
Mortgaged Property) from time to time (referred to herein as “Acquisition
Loans”) until the Maturity Date or the earlier date of termination in whole of
the Credit Commitment pursuant to Section 7.02, in such
aggregate amounts as Borrowers may from time to time request but in no event
shall (x) the aggregate amount of all outstanding Loans exceed the amount of
the Credit Commitment at any time; (y) the aggregate amount of any Construction
Loan exceed the Maximum Advance Rate for Construction Loans at any time; or (z)
the amount of any Acquisition Loan exceed the Maximum Advance Rate for
Acquisition Loans at any time. Further, if any Mortgaged Property secures more
than one (1) Loan, the applicable advance rate shall account for all Loans in
the aggregate secured by such Mortgaged Property.



          (b) Term. Loans under the Credit Commitment shall be
available to Borrowers by means of individual Loans, it being understood that
Loans advanced to acquire or to make improvements to a particular parcel of
Project Property which are repaid may not be reborrowed under the applicable
Note. Each Construction Loan made by GMAC shall have a maturity date which is
eighteen (18) months from the date of the original advance of such Loan as set
forth in the applicable Note and each Acquisition Loan made by GMAC shall have
a maturity date which is twelve (12) months from the date of the original
advance of such Loan as set forth in the applicable Note, unless otherwise
extended by GMAC in its sole discretion.



     Section 2.02 Notes. Each Loan made by GMAC pursuant to
Section 2.01 shall be evidenced by and repayable with
interest in accordance with a promissory note executed, jointly and severally,
by Capital and each applicable Borrower (each referred to herein as a
“Note” and collectively as the “Notes”)
payable to the order of GMAC, substantially in the form of Exhibit
A attached hereto, dated the date of the Loan hereunder. Each Person
that owns the Mortgaged Property securing a Loan shall be an “applicable”
Borrower for purposes of the preceding sentence and this Agreement or shall be
a Guarantor, with the applicable Guaranty secured by the Mortgage. The unpaid
principal amount of each Loan shall bear interest and be due and payable as
provided in this Agreement and each Note. Each Note shall bear interest on the
unpaid principal amount thereof from the date thereof until paid at the
Interest Rate.


     Section 2.03 Making the Loans.


          (a) Loan Requests. The Representative may in writing
request a Loan from GMAC, which request shall specify and/or include, as the
case may be, (i) a
statement as to what the proceeds of the Loan will be utilized for,
including a description of the existing



7






 





improvements and the improvements to be
constructed with the proceeds of each Construction Loan, (ii) the date of the
requested Loan, (iii) the amount of such advance, (iv) the address of the
Project Property which is to be acquired and/or improved with the proceeds of
the Loan, (v) the address and owner of the Mortgaged Property securing the Loan
and the land to be acquired with the Loan, as applicable, (vi) the purchase
price of the Mortgaged Property securing the Loan and the land to be acquired
with the Loan, as applicable, (vii) each of the documents specified in
Section 3.01, as applicable, and (viii) such other
documents, certificates and opinions as GMAC may request, in each case in form
and substance acceptable to GMAC.


          (b) Procedures for Construction Loans. Once the
conditions described below and in Section 3.01 for a
particular Construction Loan have been met, such Construction Loan shall be
made pursuant to various construction disbursements made in accordance with the
progress of construction as determined by GMAC and in accordance with the other
terms hereof. If the Project Property is also the Mortgaged Property securing
the applicable Construction Loan or if GMAC has made other loans which are
secured by the Project Property, such construction disbursements shall be made
to the applicable Borrower by deposit into a construction escrow established
with the Title Company, in form and substance satisfactory to GMAC in its sole
discretion. The amount of each Construction Loan disbursement so determined by
GMAC may be subject to a retainage to be determined by GMAC and GMAC at all
times shall have the right to retain sufficient funds which it reasonably
determines are adequate to assure completion of the work to be performed under
the Construction Contract, which shall not exceed ten percent (10%) of the cost
of the Construction Project unless GMAC reasonably determines that a larger
retention is necessary. Unless otherwise waived by GMAC, all disbursements of
a Construction Loan for construction and installation of the improvements will
be made monthly by GMAC to Borrowers. Unless otherwise waived by GMAC, GMAC
shall not be required to make more than one disbursement under any Construction
Loan in any calendar month. GMAC must be furnished with a complete application
for payment at least five (5) business days prior to the proposed date of any
disbursement under a Construction Loan (“Draw Certificate”).
Such Draw Certificate shall be in form of Exhibit B
attached hereto and made a part hereof and executed by an executive officer of
Capital. GMAC shall be entitled to accept and rely upon a signature on the
Draw Certificate transmitted from Borrowers to GMAC by facsimile. Borrowers
shall provide a Draw Certificate with an original signature upon request by
GMAC. In addition, upon receipt by GMAC, Borrowers shall cause any Contractor
seeking payment under a Construction Contract to execute and deliver to GMAC an
Application and Certificate for Payment (AIA Document G702 (1992)) and
Continuation Sheet (AIA Document G703 (1992)), or such other forms of such
documents as are agreed to by GMAC and Representative, which documents shall be
acceptable to GMAC in both form and substance. Funds deposited with Borrowers
shall be used only for payment of costs of labor, materials and services
supplied for the construction of improvements specified in the Cost Analysis,
other costs specified in the Cost Analysis, and any other costs which directly
relate to the Project Property for which Borrowers have previously deposited a
sufficient amount of their own funds and/or which are specifically approved by
GMAC in writing. Notwithstanding anything to the contrary contained herein, at
the election of GMAC, any amount to be disbursed by GMAC to enable Borrowers to
make payment to any third party payee may be disbursed by GMAC directly to the
appropriate payee. Disbursements hereunder may be made by GMAC upon the
written request of any person who has been
authorized by Borrowers to request such disbursements until such time as
written notice of Borrowers’ revocation of such authority is received by GMAC.
Notwithstanding any of the



8






 



foregoing to the contrary, GMAC has no obligation to
monitor or determine Borrowers’ use or application of any disbursements. The
making of any disbursement shall not be deemed a waiver of GMAC’s rights
hereunder with respect to any further disbursement, nor shall it be construed
to be a waiver of any of the conditions precedent to GMAC’s obligations to make
further advances.


          (c) Requirements For All Loans. Notwithstanding
anything to the contrary contained herein, the continued performance,
observance and compliance by Borrowers and each Guarantor of and with all of
the covenants, conditions and agreements of Borrowers and each Guarantor
contained herein (whether or not non-performance constitutes an Event of
Default) and in the Other Agreements shall be further conditions precedent to
any disbursements of the proceeds of any Loan. In addition, GMAC shall not be
required to disburse proceeds of any Loan at any time that (i) any proceedings
have been commenced or any Borrower or any Guarantor has received written
notice of the commencement of proceedings by any public or quasi-public body to
acquire the entire Project Property or any Mortgaged Property or any material
part thereof or interest therein (as determined by GMAC in its sole and
absolute discretion) by eminent domain or by condemnation proceedings, (ii) any
legislation has been passed or any suit or other proceeding has been instituted
the effect of which is to prohibit, enjoin (or to declare unlawful or improper)
or otherwise have a material adverse affect, in GMAC’s sole judgment, on the
performance by any party of any of its obligations hereunder as contemplated
hereby, or (iii) GMAC has reasonable cause to believe that the Project Property
and the improvements or any Mortgaged Property might be subject to forfeiture
under any RICO related law. GMAC’s refusal to disburse any proceeds of any
Loan on account of the provisions of this Section 2.03 shall
not alter or diminish any Borrower’s other obligations hereunder or otherwise
prevent any breach or default of any Borrower hereunder from becoming an Event
of Default. Each request for a Loan and each application for payment submitted
by Borrowers under a Construction Loan shall constitute an affirmation that
Borrowers have performed, observed and complied with their covenants,
conditions and agreements contained herein in all material respects and that
all representations and warranties made by Borrowers hereunder continue to be
true and correct.



     Section 2.04 Extension, Termination and Reduction of the Credit
Commitment. The Credit Commitment shall automatically renew on an
annual basis for periods of one (1) year unless either of GMAC or the
Representative provides such other party written notice of such party’s intent
to not renew the Credit Commitment on or prior to ninety (90) days before the
applicable Maturity Date. The Borrowers shall have the right at any time and
from time to time upon three (3) business days’ prior notice to GMAC to
permanently terminate in whole or permanently reduce in part the Credit
Commitment, without penalty or premium; provided, however, that no reduction
shall reduce the Credit Commitment to an amount less than the aggregate amount
of all Loans outstanding at the time with respect thereto. GMAC may also
terminate the Credit Commitment as provided in Section 7.02.


     Section 2.05 Payment; Interest Rate; Default Rate.


          (a) The unpaid principal amount of each Loan shall bear interest from the
date of such Loan until maturity (whether by acceleration or otherwise) at an
interest rate per annum mutually acceptable to GMAC and Capital, which interest
rate shall be determined prior to



9






 





entering into each Note and shall be set
forth in the applicable Note evidencing such Loan (the “Interest
Rate”), with such interest payable in accordance with
Section 2.05(c) below. Notwithstanding anything contained
herein to the contrary, to the extent GMAC and Capital are unable to reach
agreement on the Interest Rate, GMAC shall have no obligation to fund the
applicable Loan.


          (b) If an Event of Default shall have occurred and be continuing
hereunder, all Loans shall bear interest from the date of such Event of
Default, payable on demand, at a rate per annum (the “Default
Rate”) equal to the sum of two percent (2%) plus the then applicable
Interest Rate.



          (c) Interest on Loans shall accrue from and including the date of any such
Loan to but excluding the date of any repayment thereof and shall be payable
(i) monthly in arrears for each month on the first Business Day of the next
following calendar month and (ii) at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.



          (d) All payments of principal and interest under each Note hereunder shall
be made to GMAC in immediately available funds. Borrowers agree that the
amount shown on the books and records of GMAC as being the aggregate amount of
the Loan outstanding under each Note shall be prima facie evidence of the
principal amount of such Note then outstanding.



     Section 2.06 Payment on Non-Business Days. Whenever
any payment to be made hereunder or under any Note shall be stated to be due on
a day which is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest on the applicable Note or
the fees hereunder, as the case may be.


     Section 2.07 Inability to Ascertain the LIBOR Rate.
Notwithstanding any other provision of this Agreement or the Notes to the
contrary, to the extent the Interest Rate has been determined based upon the
LIBOR Rate, if GMAC shall determine in good faith by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the LIBOR Rate (to the extent the Interest Rate is based upon the
LIBOR Rate), then GMAC shall promptly give notice thereof to Representative,
and all outstanding Loans commencing as of the next monthly billing period
shall bear interest at the Prime Rate.


     Section 2.08 Use of Proceeds. The proceeds of each
Acquisition Loan shall be used solely for purchasing improved or unimproved
Project Property by Capital and/or its Real Estate Subsidiaries. The proceeds
of each Construction Loan shall be used solely for completing construction and
improvements to certain parcels of Project Property owned by Capital and/or its
Real Estate Subsidiaries. All Loans shall be secured by a first priority
perfected security interest in the Mortgaged Property (which proceeds may or
may not be used to (a) finance completion of improvements to the Mortgaged
Property by its tenant or (b) acquire
the Mortgaged Property) in accordance with the terms and conditions set
forth in Section 2.03.


     Section 2.09 Effect of Full Payment. Upon the full
payment and satisfaction of principal and interest of any particular Note and
the written cancellation of such Note by GMAC, the applicable Borrower (other
than Capital) obligated on such Note shall be released from all


10






 


liability under
this Agreement, the Note and the Other Agreements and each corresponding
Mortgage securing such Note shall be released (but only if all Notes secured by
such Mortgage have been fully paid, satisfied and cancelled). It is understood
and agreed that Capital shall assume all responsibility and obligation of such
Borrower to indemnify Lender pursuant to Section 8.11 herein
after full payment of the applicable Borrower’s Note.


ARTICLE III



CONDITIONS OF LENDING



     Section 3.01 Conditions Precedent to Loans.


          (a) Acquisition Loans and Construction Loans. The
obligation of GMAC to make any Loan is subject to the condition precedent that
GMAC shall have received on or before the day of such Loan all of the
following, each dated (unless otherwise indicated) as of the date of such Loan,
in each case in form and substance satisfactory to GMAC unless otherwise agreed
to by GMAC and Borrowers in writing:




		
	 	         (i) Joinder Agreement. Executed original of the
Joinder Agreement in the form attached hereto as Exhibit
C pursuant to which the Affiliate utilizing the proceeds of
each Loan agrees to become a Borrower under this Agreement.
	 
	 	         (ii) Mortgage. The Borrower or Guarantor, as
applicable, which is the mortgagor will own the respective Mortgaged
Property in fee simple and shall execute a Mortgage which when recorded
will grant to GMAC a first priority security interest in each parcel of
Mortgaged Property securing all present and future Loans.
	 
	 	         (iii) Guaranty. To the extent the proceeds of
any Loan are being used to acquire or improve Project Property which is
not the Mortgaged Property, the owner of such Mortgaged Property shall
execute a Guaranty in the form of Exhibit D hereto.
	 
	 	         (iv) Financing Statements. UCC fixture filings
for each parcel of Mortgaged Property.
	 
	 	         (v) Note. A Note properly executed on behalf of
the applicable Borrower.
	 
	 	         (vi) Use of Proceeds. Evidence that the proceeds
of the Loan shall be used (i) in the case of a Construction Loan, for the
construction of the proposed
improvements to the Project Property identified by Borrowers; (ii)
in the case of an Acquisition Loan, for the acquisition of Project
Property by Capital and/or its Real Estate Subsidiaries.
	 
	 	         (vii) Manufacturer’s Approval. Evidence of the
applicable required manufacturer’s approval of the automobile dealership
to be constructed or improved upon the Project Property according to the
approved plans and specifications; provided, however, that such
manufacturer’s approval may not be required for minor improvements to
Project Property.



11






 







		
	 	         (viii) Lease. An executed lease for the Project
Property.
	 
	 	         (ix) Sufficient Proceeds. Evidence that the
proceeds of the Construction Loan together with funds of the Borrower,
the tenant of the Project Property, or such tenant’s lease guarantor
shall be sufficient for the construction of the proposed improvements to
the Project Property identified by Borrowers.
	 
	 	         (x) Title Policy. For each parcel of Mortgaged
Property, an ALTA loan policy of title insurance issued by the Title
Company, with all premiums having been paid in full, with aggregate
liability limits of not less than the Loan amount applicable to such
Mortgaged Property, insuring GMAC’s interest under the mortgage, subject
only to such defects and exceptions as will have been approved by GMAC in
its sole, absolute discretion and containing such endorsements as GMAC
shall require, including, without limitation, a zoning endorsement
insuring that the Mortgaged Property is zoned to permit the uses allowed
in Section 5.10, provided that such zoning endorsement
and any other endorsements required by GMAC are available in the State in
which the Mortgaged Property is located. Such title insurance policies
will insure that marketable legal title is vested in fee simple absolute
in the applicable Borrower, or Guarantor, that the mortgage or deed of
trust constitutes a first lien on the real property securing such Loan,
and that there are no recorded or unrecorded Liens encumbering such
property, except such Liens as are approved in writing by GMAC.
	 
	 	         (xi) Survey. A current ALTA survey with respect
to each parcel of Mortgaged Property, with each such survey to be
certified to GMAC in form satisfactory to GMAC in its sole, absolute
discretion; provided, however, Borrowers may elect to deliver such survey
to GMAC within thirty (30) days after the making of any applicable Loan,
but only if the applicable title policy will not have a “survey
exception” (in which case Borrowers hereby covenant and agree to make
such delivery within the aforesaid thirty (30) day time period). For
purposes herein, an ALTA survey shall be deemed “current” if the Title
Company will issue a zoning endorsement and waive the “survey exception”
based upon such survey with a “no new improvements” affidavit from the
fee owner of the Mortgaged Property, provided that such survey otherwise
satisfies the other requirements of this subsection.
	 
	 	         (xii) Appraisal. An MAI appraisal with respect
to each parcel of Mortgaged Property (including, without limitation, a
fee simple appraisal value and a leased fee appraisal value) by an
appraiser acceptable to GMAC and, in form and
substance acceptable to GMAC. If the Project Property is the
Mortgaged Property or if GMAC has made other loans that are secured by
the Project Property, the appraisal shall appraise such property with and
without the proposed improvements.
	 
	 	         (xiii) Opinion. GMAC will have received an
opinion of counsel as to Capital, the particular Borrower and any
Guarantor, as applicable, in the form attached hereto as Exhibit
H prior to making any Loan; provided, however, that a new
opinion shall not be required to complete the conversion of a previously
existing Acquisition Loan to a Construction Loan.



12






 







		
	 	         (xiv) Environmental Assessment. An environmental
assessment report (at the expense of Borrowers), including Phase I and
Phase II assessments (when recommended by the Phase I assessment), from a
qualified engineering firm or other qualified consultant acceptable to
GMAC with respect to an environmental assessment of the Mortgaged
Property (each an “Environmental Assessment”), in form
and substance acceptable to GMAC including, without limitation,
environmental condition of such Mortgaged Property acceptable to GMAC.
	 
	 	         (xv) Soil Report. If the Project Property is the
Mortgaged Property or if GMAC has made other loans that are secured by
the applicable Project Property, an assessment of the soil comprising the
Project Property performed by a licensed soil engineer reasonably
satisfactory to GMAC indicating that all areas on which any improvements
are to be located are either sufficient for the construction of same
thereon or can be made sufficient through specific engineering and
earth-moving work described therein, the cost of which is included in the
Cost Analysis.
	 
	 	         (xvi) Pay-off. Executed Pay-off Letter and
evidence of the release of all Liens on each parcel of Mortgaged
Property.
	 
	 	         (xvii) Resolutions. A certified copy of the
resolutions of the Board of Directors/Managers of the respective Borrower
and Guarantor, as applicable, evidencing approval of this Agreement, the
Mortgage, the Note, the Guaranty, the other Loan Documents and the other
matters contemplated hereby.
	 
	 	         (xviii) Secretary’s Certificate. A signed copy
of a certificate of the Secretary or an Assistant Secretary of each
Borrower and each Guarantor, as applicable, which shall certify to (i)
the Organizational Documents of such Borrower or such Guarantor, (ii)
Operating Documents of such Borrower or such Guarantor, and (iii) the
names of the officers of the Borrower or Guarantor authorized to sign
this Agreement and the Other Agreements to which such Borrower or such
Guarantor is a party and the certificates to be delivered pursuant to
this Agreement, together with the true signatures of such officers. GMAC
may conclusively rely on such certificate until it shall receive a
further certificate of the Secretary or Assistant Secretary of the
applicable Borrower or Guarantor canceling or amending the prior
certificate and submitting the signatures of the officers named in such
further certificate.
	 
	 	         (xix) Other Agreements. Such other documents,
instruments, agreements and certificates as GMAC may reasonably request.



          (b) Construction Loans. In addition to the foregoing
requirements, prior to any Construction Loan, GMAC shall have received on or
before the initial advance of such Construction Loan all of the following, in
each case in form and substance satisfactory to GMAC unless otherwise agreed to
by GMAC and Borrowers in writing:




		
	 	         (i) Sufficient Proceeds. Evidence that the
proceeds of the Construction Loan together with funds of the Borrower,
the tenant of the Project



13






 







		
	 	Property, or such tenant’s lease guarantor
shall be sufficient for the construction of the proposed improvements to
the Project Property identified by Borrowers.
	 
	 	         (ii) Project Manager. Evidence that a project
manager shall have been appointed by the applicable Borrower to oversee
all aspects of the construction.
	 
	 	         (iii) Plans and Specifications. A complete set
of plans and specifications for said improvements relating to such
advance, which plans and specifications for said improvements are to be
in full compliance with all building codes and ordinances of the city or
county where the improvements are to be constructed and all restrictions,
if any, of the subdivision where the improvements are to be constructed.
	 
	 	         (iv) Architect’s Certificate. A certificate of
the architect preparing the plans and specifications (“Architect”)
satisfactory to GMAC that:




		
	 	              (1) the Project Property is now, and upon construction
of the improvements in accordance with the plans and
specifications will be, in compliance with all applicable
building and zoning laws, ordinances, rules and regulations,
without regard to and independently of any other property,
except for minor, immaterial defects approved in writing by
GMAC;
	 
	 	              (2) any and all required licenses and permits for and
approvals of the Construction Project and improvements have
been or will be issued by all governmental authorities and
agencies (federal, state and local) and are or will be in
full force and effect; and
	 
	 	              (3) all utilities and municipal services necessary for
the improvements are available at the Project Property, and
all permissions, permits and licenses required to tie the
Project Property and improvements into such utilities and
services have been or will be obtained on an unconditional
basis including, without limitation, all necessary telephone,
electric, gas, water, sewer and drainage permits.




		
	 	     (v) Cost Analysis. A cost analysis (“Cost
Analysis”) setting forth all expenses and costs which either have been
incurred or Borrowers reasonably
estimate will be incurred, and all reserves, if any, to be
established and maintained in connection with the construction of the
improvements.
	 
	 	     (vi) Permits. True and complete copies of any
and all required licenses and permits for and approvals of the proposed
improvements have been issued by all governmental authorities and
agencies (federal, state and local).
	 
	 	     (vii) Construction Contract. A copy of the
applicable site-work or construction contract with the contractor who
will perform the site-work or construct the improvements (each a
“Contractor”, and each construction contract a “Construction Contract”).
In addition, if the Project Property is the Mortgaged Property or if GMAC
has made other loans that are secured by the applicable Project Property,
Borrowers shall



14






 







		
	 	(a) execute and deliver to GMAC an Assignment of
Borrower’s Interest in Construction Documents substantially similar to
that attached hereto as Exhibit E and made a part
hereof (provided that if Borrowers are not a party to the Construction
Contract, the “owner” specified in the Construction Contract will execute
the Assignment of Borrower’s Interest in Construction Contract along with
the applicable Borrowers), and (b) cause to be executed by each
Contractor and delivered to GMAC, a Contractor Consent and Agreement and
an Agreement of Subordination of Lien by Contractor substantially similar
to those attached hereto as Exhibit F and
Exhibit G, respectively, and made a part hereof. If
the Project Property is the Mortgaged Property or if GMAC has made other
loans that are secured by the applicable Project Property, (i) each
Construction Contract must be approved by GMAC and Borrowers may not make
changes in the Construction Contract without the prior written approval
of GMAC, and (ii) Borrowers shall not approve or allow any change orders
to the Construction Contract without the prior written consent of GMAC,
except that GMAC’s prior written consent shall not be required with
respect to individual change orders involving a cost increase or decrease
of less than Two Hundred Fifty Thousand Dollars ($250,000) (provided that
individual change orders shall not be used to circumvent this consent
requirement). Notwithstanding the foregoing, Borrowers shall not be
required to obtain GMAC’s consent to any change order involving a cost
increase paid for entirely out of Borrowers’ funds, although Borrowers
shall deliver notice thereof to GMAC reasonably promptly after it occurs.
If the Project Property is the Mortgaged Property or if GMAC has made
other loans that are secured by the applicable Project Property,
Borrowers shall obtain the prior written approval of GMAC prior to any
change order which requires the approval of the municipality in which the
Project Property is located, whether or not GMAC’s approval is required.
GMAC shall be furnished with copies of all change orders issued over Two
Hundred Fifty Thousand Dollars ($250,000) whether or not GMAC’s prior
written consent with respect thereto has been required hereunder or
obtained pursuant hereto. GMAC may require Borrowers to advance any sums
required for the construction of the improvements and/or acquisition of
the real estate over and above the proceeds of the Construction Loans
prior to any advances by GMAC.
	 
	 	     (viii) Compliance With Mechanic’s Lien Statutes.
If the Project Property is the Mortgaged Property or if GMAC has made
other loans that are secured by the applicable Project Property, evidence
satisfactory to GMAC of the owner
of the Project Property’s compliance with all applicable mechanic’s
lien statutes, including the filing of a notice of commencement if
applicable in the State in which the Project Property is located.
	 
	 	     (ix) Other Agreements. Such other documents,
instruments, agreements and certificates as GMAC may reasonably request.



     Section 3.02 Additional Conditions Precedent To Each Construction
Draw.


          (a) On or prior to the date of any Construction Loan disbursement
hereunder, Borrowers shall furnish to the following to GMAC:



15






 






		
	 	     (i) Title Insurance Endorsements. If the Project
Property is the Mortgaged Property or if GMAC has made other loans that
are secured by the applicable Project Property, (i) an interim mechanic’s
lien endorsement to the title insurance policy referred to in
Section 3.01(a) insuring that there are no recorded or
unrecorded mechanic’s liens encumbering the Project Property; and (ii) a
construction loan disbursement endorsement increasing the coverage of the
policy by an amount equal to the construction advance then being made and
changing the effective date of the policy to the date of disbursement of
such construction advance.
	 
	 	     (ii) Line Item Balancing; Reallocation. If the
Project Property is the Mortgaged Property, any undisbursed Construction
Loan funds together with all sums, if any, previously paid by Borrowers
as shown in the Cost Analysis shall be at all times equal to or greater
than the amount which GMAC from time to time determines necessary to pay,
through completion, all costs of development and construction of the
Construction Project and improvements related thereto. In no event shall
GMAC be required to disburse any portion of the Construction Loan in
excess of the portion of such Construction Loan allocated to any
particular item or category on the Cost Analysis unless there is a
sufficient amount in the contingency line item to cover such excess.
However, GMAC reserves the right after any Event of Default, and at any
other time that GMAC deems it necessary or advisable to avoid impairment
of its security, to make advances of amounts previously allocated to any
of the designated items in the Cost Analysis for such other purposes or
in such different proportions as GMAC determines in its sole discretion.
Borrowers may not reallocate items of cost or change the Cost Analysis
without the prior written consent of GMAC, except by using amounts in the
contingency line item and except as otherwise expressly provided in this
Agreement with regard to change orders.
	 
	 	     (iii) Officers’ Certificate. A certificate of the
applicable (or respective) Borrower certifying that (i) the
representations and warranties contained in Article IV
are correct on and as of the date of such Construction Loan as though
made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date, and (ii)
no event has occurred and is continuing, or would result from such
Construction Loan, which constitutes an Event of
Default or would constitute an Event of Default but for the
requirement that notice be given or the lapse of time or both.



          (b) On or prior to the date of any Construction Loan disbursement
hereunder, Borrowers shall furnish to the following to GMAC if requested by
GMAC:




		
	 	     (i) Foundation Survey. If the Project Property
is the Mortgaged Property or if GMAC has made other loans that are
secured by the applicable Project Property, GMAC may require Borrowers to
provide an update to the ALTA survey provided in Section
3.01(g) above showing the location of the foundation of the
improvements in the process of being constructed on the Project Property
and that no deed, building line, easement or any other property covenant
or ordinance violation whatsoever and an endorsement to the title policy
insuring matters of survey to and including the date of such survey.



16






 







		
	 	     (ii) Certificates of Completion. Upon GMAC’s
request, Borrowers shall provide to GMAC, at Borrower’s expense,
architect’s and/or engineer’s certificates of progress with respect to
each Construction Project, satisfactory to GMAC, describing the nature
and extent of all work done, indicating the state to which construction
has progressed, and certification that all work has been done and
materials installed in compliance with the plans and specifications.
	 
	 	     (iii) Proof of Payment, Lien Waiver, Etc. GMAC
may require Borrowers to provide proof to GMAC as to payment of
construction bills due the general contractor, a lien subordination
agreement or lien waivers from the general contractor, partial or final
lien waivers, as applicable, from every subcontractor, supplier or
laborer, inspection reports, Certificate of Final Occupancy, statements
showing itemization of present and prospective expenditures, a statement
of items due and unpaid, a list of items necessary for completion and an
estimate of the cost thereof and such other items as GMAC may require to
establish the construction progress.
	 
	 	     (iv) Inspection. GMAC or GMAC’s architect or
agents may elect to inspect the Project Property and the improvements
from time to time and at all reasonable times, during or after
construction. Borrowers will permit GMAC and its representatives and
agents to enter upon the premises and to inspect the improvements and all
materials to be used in the construction thereof and to cooperate and
cause any contractor or subcontractor to cooperate with GMAC and its
representatives and agents during such inspections.
	 
	 	     (v) Other Agreements. Such other documents,
instruments, agreements and certificates as GMAC may reasonably request.



     Section 3.03 Conditions Precedent to All Loans. The
obligation of GMAC to make each Loan or any construction disbursement under any
Note shall be subject to the further conditions precedent that on the date of
such Loan:



		
	 	     (i) The representations and warranties contained in Article
IV are correct on and as of the date of such Loan as though
made on and
as of such date, except to the extent that such representations and
warranties relate solely to an earlier date;
	 
	 	     (ii) No event has occurred and is continuing, or would result from
such Loan, which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both;
	 
	 	     (iii) Evidence of a valid first priority lien and/or security
interest in the Mortgaged Property securing the Loan;
	 
	 	     (iv) During the term of this Agreement, no Borrower or Guarantor, as
applicable, shall have further encumbered through non-GMAC financing any
parcel of Mortgaged Property; and
	 
	 	     (v) Prior to each disbursement under a Construction Loan, GMAC shall
have received confirmation that the construction and/or improvements
which were



17






 







		
	 	originally contemplated by the Construction Contract are being
completed in a satisfactory manner and within the budget and time periods
specified in the Loan Documents submitted to GMAC.



     Section 3.04 Conversion of an Acquisition Loan into a
Construction Loan. Following written notice to GMAC, Borrowers may
convert an Acquisition Loan into a Construction Loan upon satisfaction of all
of the requirements provided in this Agreement for a Construction Loan.


ARTICLE IV



REPRESENTATIONS AND WARRANTIES



     Each Loan Party, jointly and severally, represents and warrants to GMAC as
follows:


     Section 4.01 Capacity and Power. Each Loan Party is of
due capacity and is a limited partnership, general partnership, limited
liability company or corporation duly incorporated or formed, as applicable,
validly existing and in good standing under the laws of its respective state of
formation and is duly licensed or qualified to transact business in all
jurisdictions where the character of the property owned or leased or the nature
of the business transacted by it makes such licensing or qualification
necessary. Each Loan Party has all requisite power and authority, corporate or
otherwise, to conduct its business, to own its properties and to execute and
deliver, and to perform all of its obligations under this Agreement and the
Other Agreements.


     Section 4.02 Authorization of Borrowing: No Conflict as to Law or
Agreements. The execution, delivery and performance by each Loan
Party of this Agreement and the Other Agreements and the borrowings from time
to time hereunder have been duly authorized by all necessary action and do and
will not (i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, (ii) violate any provision of any law, rule or regulation or of any
order, writ, injunction or decree presently in effect having applicability to
any Loan Party or
to the Organizational Documents or Operating Documents of any Loan Party,
(iii) result in a breach of or constitute a default under any indenture or loan
or credit agreement or any other agreement, lease or instrument to which any
Loan Party is a party or by which it or its properties may be bound or
affected, or (iv) result in, or require, the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest or other charge or
encumbrance of any nature (other than the respective Mortgage, as applicable)
upon or with respect to any of the properties now owned or hereafter acquired
by any Loan Party.


     Section 4.03 Legal Agreements. This Agreement and the
Other Agreements, when executed and delivered by each respective Loan Party
hereunder, will constitute the legal, valid and binding obligation of each Loan
Party enforceable against such Loan Party in accordance with their respective
terms, subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or similar laws affecting the enforceability of
creditors’ rights generally and to the effect of general principles of equity
(whether considered in a proceeding at law or in equity).


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     Section 4.04 Subsidiaries. No Loan Party other than
Capital has any subsidiaries other than a Loan Party or as set forth in
Schedule 4.04.


     Section 4.05 Financial Condition. Capital has
heretofore furnished or will furnish prior to any Loan, certain financial
statements of CARS on a consolidated basis to GMAC. Said financial statements
fairly present the financial condition of CARS on a consolidated basis as of
the dates thereof and the results of their operations for the periods then
ended, and were prepared in accordance with generally accepted accounting
principles. No Loan Party executing a Mortgage (other than CARS) has (a) any
material amount of assets other than the applicable Mortgaged Property owned by
such Loan Party or (b) any Indebtedness except in favor of GMAC.


     Section 4.06 Adverse Change. There has been no
material adverse change in the business, properties or condition (financial or
otherwise) of CARS or any Loan Party since the date of the latest financial
statement.


     Section 4.07 Litigation. There are no actions, suits
or proceedings pending or, to the knowledge of any Loan Party, threatened
against or affecting any Loan Party, the properties of any Loan Party or any
Construction Project before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, which, if
determined adversely to such Loan Party or any Construction Project, would have
a material adverse effect on the financial condition, properties, or operations
of such Loan Party or the ability to complete the Construction Project in a
timely manner.


     Section 4.08 Taxes. Each Loan Party has filed all
federal, state and local tax returns which are required to be filed, and each
Loan Party has paid or caused to be paid to the respective taxing authorities
all taxes as shown on said returns or on any assessment received by it to the
extent such taxes are due.


     Section 4.09 Titles and Liens. Each Loan Party has
good and merchantable title to each parcel of Mortgaged Property.


     Section 4.10 Real Property Collateral Documents. Each
Mortgage constitutes a valid and perfected first priority security interest in
favor of GMAC in the respective Mortgaged Property to which such Mortgage
relates (except as otherwise permitted by this Agreement).


     Section 4.11 Other Security Interests. Except for
Permitted Encumbrances (as defined in the applicable Mortgage for any Mortgaged
Property), there are no security interests or Liens encumbering any portion of
any Mortgaged Property covered by any Mortgage.


     Section 4.12 Compliance with Laws. Each Loan Party is
in compliance with all laws, orders, regulations and ordinances of all federal,
foreign, state and local governmental authorities binding upon or affecting the
business, operation or assets of each Loan Party including, without limitation,
zoning or other ordinances relating to permissive non-conforming uses of
property, except to the extent the failure to so comply will not have a
material adverse effect on any applicable Loan Party or Mortgaged Property
owned by such Loan Party. The plans and specifications for each Construction
Project are in full compliance with all building codes and ordinances of the
municipality and county where the improvements are to be constructed.



19










 



     Section 4.13 Other Agreements. Each Loan Party makes
each of the representations and warranties of each Loan Party contained in the
Other Agreements to which such Loan Party is a party operative and applicable
for the benefit of GMAC as if the same were set forth at length herein.


     Section 4.14 Solvency. Each Loan Party has capital
sufficient to carry on its business and transactions and all businesses and
transactions in which it is about to engage and is solvent and able to pay its
debts as they mature and each Loan Party owns property the fair saleable value
of which is greater than the amount required to pay each Loan Party’s
Indebtedness. No transfer of property is being made and no Indebtedness is
being incurred in connection with the transactions contemplated by this
Agreement with the intent to hinder, delay or defraud either present or future
creditors of any Loan Party.


     Section 4.15 Accuracy of Information. All factual
information heretofore or contemporaneously furnished by each Loan Party to
GMAC for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all other factual information (taken as a whole)
hereafter furnished by or on behalf of each Loan Party to GMAC will be, true
and accurate in every material respect on the date as of which such information
is dated or certified, and no Loan Party has not omitted and will not omit any
material fact necessary to prevent such information from being false or
misleading.


     Section 4.16 Wetlands. To the best knowledge of the
Loan Parties, there are no wetlands or similarly protected marsh areas as
defined under any federal, state or local law on the Mortgaged Property except
as disclosed in the applicable Mortgage for such Mortgaged Property. THE
BORROWERS SHALL BE SOLELY RESPONSIBLE FOR AND AGREE TO INDEMNIFY TRUSTEE AND
GMAC AND PROTECT AND DEFEND WITH COUNSEL REASONABLY ACCEPTABLE TO GMAC AND HOLD
TRUSTEE AND GMAC HARMLESS FROM AND AGAINST ANY CLAIMS (INCLUDING WITHOUT
LIMITATION THIRD PARTY CLAIMS FOR PERSONAL INJURY OR REAL OR PERSONAL PROPERTY
DAMAGE), ACTIONS, ADMINISTRATIVE PROCEEDINGS (INCLUDING INFORMAL PROCEEDINGS),
JUDGMENTS, DAMAGES, PUNITIVE DAMAGES, PENALTIES, FINES, COSTS, LIABILITIES
(INCLUDING SUMS PAID IN SETTLEMENTS OF CLAIMS), INTEREST OR LOSSES, REASONABLE
ATTORNEYS’ FEES (INCLUDING ANY FEES AND EXPENSES INCURRED IN ENFORCING THIS
INDEMNITY), REASONABLE CONSULTANT FEES, AND EXPERT FEES THAT ARISE DIRECTLY OR
INDIRECTLY FROM OR IN CONNECTION WITH THE PRESENCE ON THE MORTGAGED PROPERTY OF
WETLANDS, TIDELANDS OR SWAMP AND OVERFLOW LANDS, OR ANY BREACH OF THE FOREGOING
REPRESENTATION AND WARRANTY. THE PROVISIONS OF THIS SECTION
4.16 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND RECONVEYANCE
OF THE MORTGAGED PROPERTY.


     Section 4.17 Environmental Matters. Except as set
forth in any Environmental Assessment or on Schedule 4.17
hereto, the Loan Parties, each Subsidiary and, to the best knowledge of the
Loan Parties, any tenant or other occupant of the Mortgaged Property, are in
compliance in all material respects with all applicable Environmental Laws and
have been issued and will maintain and keep current all required federal, state
and local permits, licenses,


20






 


certificates and approvals. Except as set forth in
any Environmental Assessment or on Schedule 4.17 hereto,
neither the Loan Parties nor, to the best of the Loan Parties’ knowledge after
reasonable investigation, any previous owner or operator of the Mortgaged
Property or any other Person, (a) has used or is using the Mortgaged Property
in violation of any Environmental Law; (b) has managed, generated, stored,
released, discharged, treated, or disposed of any Hazardous Material on any
portion of the Mortgaged Property in violation of any Environmental Law; or (c)
has transferred or released or caused to be transferred or released any
Hazardous Material from the Mortgaged Property to any other location in
violation of any Environmental Law. Except for Hazardous Materials approved in
writing by GMAC for use on the Mortgaged Property or necessary for the routine
maintenance of the Mortgaged Property and as used in the ordinary course of the
Loan Parties’ business (or the business of any tenant occupying the Mortgaged
Property pursuant to a written lease approved by GMAC), which Hazardous
Material shall be used in accordance with all applicable Environmental Laws,
each Loan Party covenants that it shall not permit any Hazardous Materials to
be brought on to the Mortgaged Property, or if so brought or found located
thereon, shall be immediately removed, with proper disposal, and all
environmental cleanup requirements shall be diligently undertaken pursuant to
all Environmental Laws. Except as set forth in the Environmental Assessment or
on Schedule 4.17 hereto, no Loan Party nor any Subsidiary
has been notified of any pending or threatened action, suit, proceeding or
investigation, and no Loan Party nor any Subsidiary is aware of any facts,
which (i) calls into question, or could reasonably be expected to call into
question, compliance by any Loan Party or any Subsidiary or any tenant or other
occupant with any Environmental Laws, (ii) seeks, or could reasonably be
expected to form the basis of a meritorious proceeding to seek, to suspend,
revoke or terminate any license, permit or approval necessary for the
operations of any Loan Party’s, any Subsidiary’s or any tenant’s or other
occupant’s business or facilities or for the generation, handling, storage,
treatment or disposal of any Hazardous Materials, or (iii) seeks to cause, or
could reasonably be expected to form the basis of a meritorious proceeding to
cause, any property of any Loan Party or any Subsidiary to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Laws. The Loan Parties, jointly and severally, agree that GMAC
shall not assume any liability or obligation for loss, damage, fines,
penalties, claims or duty to clean-up or dispose of wastes or materials on or
relating to the property of any Loan Party regardless of any inspections made
by GMAC prior to the consummation of this Agreement or as a result of any
conveyance of title to GMAC by foreclosure, deed in lieu of foreclosure, or
otherwise. The Loan Parties, jointly and severally, agree to remain fully
liable and to indemnify and hold harmless GMAC from any costs, expenses,
clean-up costs, waste disposal costs, litigation costs, fines and penalties,
including without limitation those costs, expenses, penalties, fines and other
related liabilities under applicable Environmental Laws, except to the extent
such costs, expenses, penalties, fines and other related liabilities are
directly caused by the gross negligence or willful misconduct of GMAC.


ARTICLE V



AFFIRMATIVE COVENANTS



     So long as any Note shall remain unpaid, the Credit Commitment shall be
outstanding or any Borrowers’ Liabilities shall be outstanding, the Borrowers,
each Guarantor and CARS, as


21






 


applicable, will comply with the following
requirements, unless GMAC shall otherwise consent in writing:


     Section 5.01 Financial Statements. The Borrowers shall
deliver to GMAC the following:


          (a) As soon as available, copies of the periodic Form 10-Q quarterly
report or comparable successor report filed by CARS with the Securities and
Exchange Commission or any successor agency; provided, that if such report is
not made available within forty-five (45) days after the end of each of the
first three quarterly accounting periods in each fiscal year of CARS beginning
with the quarter ending March 31, 2003, CARS shall immediately deliver to GMAC
an internally-prepared balance sheet of CARS and its Subsidiaries on a
consolidated and consolidating basis as at the end of such quarter and the
related statements of operations and statements of cash flows of CARS and its
Subsidiaries on a consolidated and consolidating basis for such quarter and for
the portion of the fiscal year ended at the end of such quarter, setting forth
in each case in comparative form the figures for the corresponding quarter and
the corresponding portion of the previous fiscal year, all in reasonable detail
and certified (subject to normal year-end adjustments) as to fairness of
presentation, in accordance with GAAP (other than footnotes thereto), by the
chief financial officer of CARS;



          (b) As soon as available, copies of the Form 10-K Annual Report or
comparable successor report filed by CARS with the Securities and Exchange
Commission or any successor agency; provided, that if such report is not made
available within ninety (90) days after the close of each fiscal year of CARS,
CARS shall immediately deliver to GMAC a balance sheet and the related
consolidated and consolidating statements of operations and stockholders’
equity and consolidated and consolidating statements of cash flows of CARS and
its Subsidiaries on a consolidated and consolidating basis as of the end of
such fiscal year, fairly and accurately presenting the financial condition of
CARS and its Subsidiaries on a consolidated basis as at such date and the
results of operations of CARS and its Subsidiaries for such fiscal year and
setting forth in each case in comparative form the corresponding figures for
the corresponding period of the preceding fiscal year, all in reasonable
detail, prepared in accordance with GAAP consistently applied, and audited by a
big-four accounting firm or an accounting firm acceptable to GMAC in its
reasonable discretion;



          (c) If requested by GMAC, copies of the balance sheet of each lessee (the
“Lessee”) of each parcel of Mortgaged Property as at the end
of each fiscal quarter of each Lessee, and the related statements of income,
changes in equity and cash flows for such quarter and for the period from the
beginning of the then current Fiscal Year through the end of such quarter,
certified as true and correct by such Lessee, to the extent received by any
Borrower or Guarantor, as applicable;



          (d) Immediately after the commencement thereof, notice in writing of all
litigation and of all proceedings before any governmental or regulatory agency
affecting CARS or any Loan Party, which seek a monetary recovery against CARS
or any Loan Party in excess of $5,000,000, or otherwise having a material
adverse effect on the financial condition, business or operations of CARS or
the Loan Parties taken as a whole;



22






 


          (e) As promptly as practicable (but in any event not later than five (5)
business days) after any Loan Party obtains knowledge of the occurrence of any
event which constitutes an Event of Default or would constitute an Event of
Default with the passage of time or the giving of notice, or both, notice of
such occurrence, together with a detailed statement by such Loan Party of the
steps being taken by such Borrower to cure the effect of such event;



          (f) As soon as practicable and in any event within thirty (30) days after
any Loan Party knows or has reason to know that any Reportable Event with
respect to any plan has occurred, the statement of such Loan Party setting
forth details as to such Reportable Event and the action which such Loan Party
proposes to take with respect thereto, together with a copy of the notice of
such Reportable Event to the Pension Benefit Guaranty Corporation;



          (g) Concurrently with the financial statements delivered to GMAC in
connection with Sections 5.01(a) and (b) above, a report in
form and substance acceptable to GMAC which summarizes the status of all
Construction Projects in progress including, but not limited to, expenditures
to date, estimated expenditures required for completion and the anticipated
completion date; and



          (h) Such other information respecting the financial condition and results
of operations of CARS, each Loan Party and each Construction Project as GMAC
may from time to time reasonably request.



     GMAC is hereby authorized to deliver a copy of any such financial or other
information delivered hereunder to GMAC (or any affiliate of GMAC), to any
governmental authority having jurisdiction over GMAC pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or
acquisition of any participation interest in, any obligation of any Loan Party
permitted by this Agreement.


     Section 5.02 Books and Records; Inspection and
Examination. CARS and each Loan Party will keep accurate books of
record and account for itself in which true and complete entries will be made
in accordance with generally accepted accounting principles consistently
applied and, upon prior written request of GMAC, will give any representative
of GMAC access to, and permit such representative to examine, copy or make
extracts from, any and all books, records and documents in its possession, to
inspect any of its properties (including, but not limited to, performing
environmental testing on any parcel of Mortgaged Property at the Loan Parties’
expense (but only if GMAC has reasonable cause to believe such environmental
testing is necessary), subject to any reasonable restrictions under the lease
governing such Mortgaged Property) and to discuss its affairs, finances,
accounts and the status of each Construction Project or Acquisition with any of
its principal officers, all at such times during normal business hours and as
often as GMAC may reasonably request.


     Section 5.03 Compliance with Laws. Each Loan Party
will comply with, and cause any tenant of Mortgaged Property to comply with,
the requirements of applicable laws and regulations, the noncompliance with
which would materially and adversely affect its business or its financial
condition.


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     Section 5.04 Payment of Taxes and Other Claims. Each
Loan Party will pay or discharge, or cause any tenant of Mortgaged Property to
pay or discharge, all taxes, assessments and governmental charges levied or
imposed upon it or upon its income or profits, or upon any properties belonging
to it, prior to the date on which penalties attach thereto and all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien or charge upon any properties of any Loan Party; provided, that no Loan
Party shall be required to pay, or cause any third party to pay, any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate legal proceedings.


     Section 5.05 Maintenance of Properties. Each Loan
Party will keep and maintain, or cause any tenant of Mortgaged Property to keep
and maintain, all of its properties necessary or useful in its business in good
condition, repair and working order.


     Section 5.06 Insurance. Each Loan Party will keep or
cause the applicable tenant to keep all of such Loan Party’s insurable
properties adequately insured at one hundred percent (100%) of their
replacement cost at all times with responsible insurance carriers against loss
or damage by fire and other hazards to the extent and in the manner as are
customarily insured against by similar businesses owning such properties
similarly situated. At a minimum, each Loan Party will maintain, or cause any
tenant of Mortgaged Property to maintain, upon and relating to the Mortgaged
Property and each Construction Project, as applicable, the following policies
of property, liability and casualty insurance, such insurance policies to be in
a form and with coverages and exclusions reasonably satisfactory to GMAC:


          (a) General public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property.



          (b) Insurance under all applicable workers’ compensation laws (or in the
alternative, maintain required reserves if self-insured for workers’
compensation purposes) and against loss by reason of business interruption,
such policies of insurance to have such limits, deductibles, exclusions,
co-insurance and other provisions providing no less coverages than are
maintained by similar businesses that are similarly situated.



          (c) Prior to the engagement of any Construction Project and prior to
construction of any improvements being conducted on the Mortgaged Property or
any other properties that secure loans made by GMAC, an “all-risk”, completed
value, non-reporting builder’s risk insurance policy or policies that provide
coverage similar to the foregoing must be submitted to GMAC. This policy must
be from a company and in an amount satisfactory to GMAC, must have a vandalism
and malicious mischief endorsement and must be sufficient to avoid the
application of any co-insurance provisions, must include provisions for a
minimum 30-day advance written notice of any intended policy cancellation or
non-renewal, and must designate GMAC as mortgagee and loss payee in a standard
mortgagee endorsement.



          (d) Each Loan Party covenants to maintain or cause to be maintained, by
the Loan Parties and, during the term of each Construction Project and during
the construction of any improvements on any Mortgaged Property or any other
properties that secure loans made by GMAC, by the general contractor, general
accident and commercial general liability insurance against all claims for
bodily injury, death or property damage occurring upon, in or about any



24






 





part of
the Mortgaged Property and each parcel of Project Property. The policies must
be in amounts satisfactory to GMAC. The contractor’s policy must include
worker’s compensation coverage in an amount sufficient to satisfy statutory
requirements.


          (e) For any improvement on the Mortgaged Property or any Project Property
which secures other loans made by GMAC, and after completion of any
construction and in replacement of the builder’s risk coverage under
Subparagraph 5.06(c) above, an “all-risk” permanent property insurance policy
must be in effect, and an original certificate from the issuing insurance
company evidencing that the policy is in full force and effect must be
submitted to GMAC. The policy must be in an amount satisfactory to GMAC, must
eliminate all co-insurance provisions, must include a Replacement Cost and
Agreed Amount/Stipulated Value Endorsement, must include a Sinkhole
Endorsement, if appropriate, must include provisions for a minimum 30-day
advance written notice to GMAC of any intended policy cancellation or
non-renewal, and must designate GMAC as mortgagee and loss payee in a standard
mortgagee endorsement, as its interest may appear.



          (f) Rent loss/business interruption insurance as to any buildings or
structures now or hereafter comprising a part of the Mortgaged Property. The
policy must be from a company and in an amount satisfactory to GMAC and must
include provisions for a minimum 30-day advance written notice to GMAC of any
intended policy cancellation or non-renewal.



          (g) If, and to the extent that, the Mortgaged Property is located within
an area that has been or is hereafter designated or identified as an area
having special flood hazards as defined in the Federal Flood Disaster
Protection Act of 1973, as such act may from time to time be amended and in
effect, or pursuant to any other national or state program of flood insurance,
the Loan Parties shall carry flood insurance with respect to the improvements
located on such Mortgaged Property and in an amount not less than the maximum
amount available under the Flood Disaster Protection Act of 1973 and the
regulations issued pursuant thereto, as amended from time to time, in form
complying with the “insurance purchase” requirement of that Act.



          (h) If, and to the extent that, the Mortgaged Property or any Project
Property is located within an area that has been or is hereafter designated or
identified as an area having special earthquake hazards, the Loan Parties shall
carry, if required by GMAC, earthquake insurance in such amounts as GMAC shall
require.



          (i) Each such liability insurance policy shall name GMAC as an additional
insured party with respect to the Mortgaged Property, and each such property
insurance policy shall name GMAC as a loss payee subject to the rights of any
tenant under leases approved by GMAC, and shall provide by way of endorsements,
riders or otherwise that (i) proceeds will be payable to GMAC as its interest
may appear; (ii) GMAC will be loss payee for all proceeds payable if the
proceeds payable are equal to or greater than Five Hundred Thousand Dollars
($500,000) in amount on a per occurrence or claim basis, and such proceeds
shall be made available to the Loan Parties if such proceeds are less than Five Hundred
Thousand Dollars ($500,000) so long as no Event of Default shall have occurred;
(iii) such insurance policy shall be renewed, if renewal is available, and
shall not be canceled and further, shall not be endorsed, altered or reissued
to effect a change in coverage in any manner materially adverse to GMAC, for
any reason and to any extent whatsoever unless such insurer shall have first
given GMAC




25






 





thirty (30) days’ prior written notice thereof; (iv) such insurance
policy shall not be impaired by any act or neglect of the Loan Parties or any
use of the Mortgaged Property for purposes more hazardous than are permitted by
such policy; and (v) GMAC may, but shall not be obliged to, without waiving or
releasing any obligation or default by any Loan Party hereunder following
notice, make premium payments and take any other action with respect thereto
which GMAC deems advisable to prevent any nonrenewal, cancellation,
endorsement, alteration or reissuance and such payments shall be accepted by
the insurer to prevent same. All sums so disbursed by GMAC, including
reasonable attorneys’ fees, court costs, expenses and other charges relating
thereto, shall be payable, on demand, by the Loan Parties to GMAC, shall bear
interest until paid in full at the interest rate per annum equal to then
applicable Interest Rate and shall be additional obligations hereunder secured
by the Collateral.


          (j) The Loan Parties may maintain the insurance coverages required
hereunder under a blanket policy or policies. GMAC shall be furnished with the
original certificate of insurance and a copy of the policy, if requested by
GMAC (or an original certificate and a copy of the blanket policy or such other
form as may be acceptable to GMAC with respect to such insurance) coincident
with the execution of this Agreement and each Note and satisfactory evidence of
renewal thereof not less than thirty (30) days prior to the expiration of the
initial or each preceding renewal policy together with receipts or other
evidence that the premiums thereon have been paid, with the original of each
renewal policy or a certificate with a duplicate of such renewal policy to
follow as soon as available or, in any such case, an appropriate broker’s
certificate in respect thereto. Upon request by GMAC, the Loan Parties shall
furnish to GMAC a statement certified by the Loan Parties of the amounts of
insurance maintained in compliance with this Section 5.06, a
general description of the risks covered by such insurance and of the insurance
company or companies which carry such insurance. In addition, the Loan Parties
will promptly comply or cause Tenants to promptly comply in all material
respects with any requirements of any insurer of any portion of the Mortgaged
Property or any Project Property and any and all rules and regulations of any
insurance commission or board of fire underwriters having jurisdiction over the
Mortgaged Property or any Project Property.



     Section 5.07 Restoration Following Casualty. If any
acts or occurrences of any kind or nature, ordinary or extraordinary, foreseen
or unforeseen, shall result in damage to or loss or destruction of the
Mortgaged Property or any Project Property in excess of Five Hundred Thousand
Dollars ($500,000.00), the Loan Parties will give prompt notice thereof to
GMAC. If the cost to fully pay for the restoration, repair or replacement
(hereinafter called the “Work”) of the Mortgaged Property is
less than Five Hundred Thousand Dollars ($500,000) in the aggregate, the
insurance proceeds shall be made available to the Loan Parties to restore,
repair, replace or rebuild the Mortgaged Property, so long as no Default or
Event of Default shall have occurred. If (a) the cost to fully pay for the
Work is equal to or greater than Five Hundred Thousand Dollars ($500,000), (b)
there are sufficient insurance proceeds or sufficient other amounts available
to the Loan Parties to fully pay for the work and the projected appraised value
of the Mortgaged Property upon completion of the Work is equal to or greater than
the appraised value of the Mortgaged Property immediately prior to the
casualty, (c) no Event of Default shall have occurred and be continuing, (d)
neither the Loan Parties nor the tenant leasing the Mortgaged Property has
elected to terminate the Lease of the Mortgaged Property pursuant to the Lease
and confirmation of the same has been delivered to GMAC, (e) the Loan Parties
have received and


26






 


are entitled to continue to receive full rental payments
under the Lease throughout the period of the Work up to one year after the date
of the damage or destruction, whether such payments are made by the tenant or
from rental or business interruption insurance proceeds, (f) all parties having
operating, management or franchise interests in, and arrangements concerning,
the Mortgaged Property agree that they will continue their interests and
arrangements for the contract terms then in effect following the restoration or
repair, (g) the Loan Parties present sufficient evidence to GMAC that the
damaged property will be restored within eighteen months after the date of the
damage or destruction and (h) GMAC will not incur any liability to any other
person as a result of such use or release of insurance proceeds, then the Loan
Parties and its tenant or tenants of such damaged or destroyed Mortgaged
Property will so certify to GMAC, and will certify that it will, and shall,
within 30 days following reaching an agreement with the insurer under the
casualty insurance policy relating thereto with regard to the disbursement of
insurance proceeds commence and thereafter continue diligently to completion,
to restore, repair, replace and rebuild such Mortgaged Property as nearly as
possible to its value, condition and character immediately prior to such
damage, loss or destruction with such alterations, modifications and/or
betterments reasonably deemed necessary or desirable by the Loan Parties in
their business judgment. If the conditions set forth in such certificate of
the Loan Parties are not satisfied with respect to a casualty, or if the Loan
Parties fail to deliver such a certificate to GMAC within 90 days following the
casualty, or if the Loan Parties shall otherwise fail to restore, repair,
replace or rebuild such Mortgaged Property as provided herein, the insurance
proceeds related thereto shall be promptly paid to GMAC and applied to the
outstanding balance of the Borrowers’ Liabilities.


     Section 5.08 Application of Proceeds. Insurance
proceeds to be used for Work, which proceeds are equal to or greater than Five
Hundred Thousand Dollars ($500,000) (the “Insurance Proceeds Threshold
Amount”) on a per occurrence or claim basis, initially shall be paid
to GMAC, and shall be paid out by GMAC to the Loan Parties from time to time as
the Work progresses, subject to the following conditions: (a) prior to the
commencement thereof (other than Work to be performed on an emergency basis to
protect the Mortgaged Property or prevent interference therewith), an architect
or engineer, reasonably approved by GMAC, shall be retained by the Loan Parties
(at the Loan Parties’ expense) and charged with the supervision of the Work;
(b) each request for payment by the Loan Parties shall be made on ten (10) days
prior notice to GMAC and shall be accompanied by a certificate by an executive
officer of the Loan Parties, stating that: (i) all of the Work completed has
been completed in substantial compliance with the plans and specifications
therefor; (ii) the sum requested is justly required to reimburse the Loan
Parties for payments by the Loan Parties to, or is justly due to, the
contractor, subcontractors, materialmen, laborers, engineers, architects or
other persons rendering services or materials for the Work; and (iii) when
added to all sums previously paid out by the Loan Parties, the sum requested
does not exceed the value of the Work completed to the date of such
certificate; (c) the amount of insurance proceeds remaining in the hands of
GMAC or remaining to be disbursed by the applicable insurance company, plus any
further reserves agreed to be maintained by the Loan Parties in conformity with
GAAP in connection with the Work, will in GMAC’s reasonable judgment be sufficient to complete the Work; (d) each
request shall be accompanied by certification by an executive officer of the
Loan Parties or copies of waivers of Lien reasonably satisfactory in form and
substance to GMAC covering that part of the Work for which payment or
reimbursement is being requested; provided, however, that in the event it is
customary practice not to grant such waivers prior to the making of such
payments, the Loan


27






 


Parties shall have obtained affidavits from the parties
requesting such payment (i) stating the amount then due and (ii) promising the
delivery of the waiver upon the making of the payment; (e) an Event of Default
has not occurred and is not continuing since the hazard, casualty or
contingency giving rise to payment of the insurance proceeds occurred; (f) in
the case of the request for the final disbursement, such request is accompanied
by a copy of any certificates of occupancy or other certificate required by any
legal requirement to render occupancy of the damaged portion of the Mortgaged
Property lawful; and (g) if, in GMAC’s reasonable judgment, the amount of such
insurance proceeds will not be sufficient to complete the Work (which
determination may be made prior to or from time to time during the performance
of the Work), the Loan Parties shall maintain adequate reserves in conformity
with GAAP equal to an amount of money which when added to such insurance
proceeds will be sufficient, in GMAC’s reasonable judgment, to complete the
Work. Insurance proceeds to be used for Work, which proceeds are less than the
Insurance Proceeds Threshold Amount on a per occurrence or claim basis,
initially shall be paid to the Loan Parties and shall be used by the Loan
Parties to perform such Work in accordance with its certificate delivered
pursuant to Section 5.07, with any excess thereof used to
repay the Borrowers’ Liabilities in accordance with Section
5.07. In the event the Loan Parties elect to restore, repair,
replace or rebuild the Mortgaged Property and subsequently fail to comply with
any of the conditions set forth herein to disbursement of insurance proceeds,
any proceeds remaining to be disbursed, whether held by the Loan Parties, GMAC
or an insurance company, shall be paid to GMAC and, at its option, applied to
the outstanding balance of the Borrowers’ Liabilities. Notwithstanding the
foregoing, if the Project Property (i) is not the Mortgaged Property or (ii)
does not secure any other loan made by GMAC, the insurance proceeds shall be
released directly to such Loan Party that is the fee owner of the Project
Property, provided that all such insurance proceeds shall be used for
rebuilding the Project Property and any excess insurance proceeds shall be paid
to GMAC and credited against the Loans and other outstanding amounts due from
Borrowers to GMAC.


     Section 5.09 Financial Covenants.


          (a) Minimum Debt Service Coverage Ratio. CARS shall
maintain a consolidated Debt Service Coverage Ratio of at least 1.40:1.0
measured as of December 31 of each year.



          (b) Maximum Debt to Total Assets Ratio. CARS shall not
permit its Debt to Total Assets Ratio to exceed more than seventy-five percent
(75%) at any time, measured as of December 31 of each year.



     Section 5.10 Use of Mortgaged Property. Each parcel of
Mortgaged Property will be used, or intended for use, primarily as a facility
for the sale or repair of motor vehicles by the lessee of the Mortgaged
Property, except as otherwise permitted under the Leases.


     Section 5.11 Condemnation — General. Promptly
following the date on which an executive officer of any Loan Party obtains
knowledge of the institution of any proceeding for the condemnation of all or
any portion of the Mortgaged Property or any Project Property, the Loan Parties
shall notify Trustee and GMAC of such fact. The Loan Parties shall then,
unless GMAC waives this requirement, file or defend its claim in respect of
such proceeding and prosecute same with due diligence to its final disposition.
The Loan Parties may be the nominal


28






 


party in such proceeding but GMAC shall be
entitled to participate in same and to be represented therein by counsel of its
own choice in the event of a condemnation of all or part of the Mortgaged
Property with a value estimated to be in excess of One Hundred Thousand Dollars
($100,000), and such Loan Party will deliver or cause to be delivered to GMAC
such instruments as may be reasonably requested by it from time to time to
permit such participation. All proceeds received from any such condemnation
proceeding relating to Mortgaged Property with a value estimated to be in
excess of $100,000 shall be paid to GMAC and, except as provided in
Section 7.2, applied to reduce the outstanding balance of
the Borrowers’ Liabilities. In the event the cost to fully pay for the
restoration, repair or replacement of any Mortgaged Property is less than One
Hundred Thousand Dollars ($100,000) in the aggregate, the condemnation proceeds
shall be forwarded to the Loan Parties, so long as no Event of Default shall
have occurred. In the event (a) no Event of Default shall have occurred and be
continuing, (b) only a portion of such Mortgaged Property is taken, (c) the
Loan Parties elect to rebuild, restore or repair the remaining portion of such
Mortgaged Property, (d) the cost of the rebuilding, restoration or repair
reasonably estimated by GMAC shall exceed One Hundred Thousand Dollars
($100,000) but be less than One Million Dollars ($1,000,000) ($1,000,000 being
the “Condemnation Threshold Amount”), (e) there are
sufficient proceeds or other amounts available to the Loan Parties to fully pay
for the rebuilding, restoration or repair of such Mortgaged Property and the
projected appraised value of such Mortgaged Property upon completion of the
same is equal to or greater than the appraised value of such Mortgaged Property
immediately prior to the condemnation, (f) neither the Loan Parties nor the
lessee leasing such Mortgaged Property has elected to terminate the Lease
pursuant to the Lease and confirmation of the same has been delivered to GMAC,
(g) the Loan Parties have received and are entitled to continue to receive full
rental payments under the Lease through the period of rebuilding, restoration
or repair, whether such payments are made by the lessee or from rental or
business interruption insurance proceeds, (h) all parties having operating,
management or franchise interests in, and arrangements concerning, such
Mortgaged Property agree that they will continue their interests and
arrangements for the contract terms then in effect following the restoration,
(i) all parties, having commitments to provide financing with respect to such
Mortgaged Property, to purchase the Loan Parties’ interest in full or in part
in such Mortgaged Property or to purchase the Borrowers’ Liabilities agree in a
manner satisfactory to GMAC that their commitments will continue in full force
and effect and, if necessary, the expiration of such commitments will be
extended by the time necessary to complete the restoration, (j) the Loan
Parties present sufficient evidence to GMAC that the applicable Mortgaged
Property will be restored to an architectural whole prior to the Maturity Date
and (k) GMAC will not incur any liability to any other person as a result of
such use or release of proceeds, then the Loan Parties will so certify to GMAC,
and will certify that the Loan Parties will and shall continue diligently to
completion to restore, repair, replace and rebuild such Mortgaged Property as
nearly as possible to its value, condition and character immediately prior to
such condemnation with such alterations, modifications and/or betterments
reasonably deemed necessary or desirable by the Loan Parties in their business
judgment. With the certification described in the preceding sentence, then the Loan
Parties shall deliver to GMAC plans and specifications for such rebuilding,
restoration or repair; and the Loan Parties shall thereafter commence the
rebuilding, restoration or repair in accordance with the plans and
specifications required pursuant to the preceding provisions within sixty (60)
days after the date of the disbursement of the award or settlement, and
complete same to the satisfaction of GMAC within a reasonable time thereafter.
In the event each of the conditions set forth above in the first


29






 


sentence of
this Section are satisfied except that the cost of rebuilding, restoration or
repair is in excess of the Condemnation Threshold Amount, the above provisions
shall apply except that the proceeds shall be paid to GMAC and disbursed in
accordance with Section 5.06 (with all references to
insurance proceeds being revised to refer to condemnation proceeds). Upon
completion of such rebuilding, restoration and repair in accordance with the
preceding provisions, the Loan Parties may apply such amount or settlement to
the costs of such rebuilding, restoration or repair. If (i) there is a total
condemnation of the applicable Mortgaged Property, or (ii) if the cost of
rebuilding, restoration or repair is reasonably estimated to be in excess of
One Million Dollars ($1,000,000), or (iii) if the Loan Parties elect not to
rebuild, restore or repair as specified above, or (iv) the requirements set
forth above for rebuilding, restoration or repair after a partial condemnation
are not met to GMAC’s satisfaction, then the Loan Parties shall pay to GMAC
such award or settlement to be applied to reduce the outstanding balance of the
Borrowers’ Liabilities.


     Section 5.12 Leases. (a) Each Loan Party shall promptly
and fully keep, observe and perform, or cause to be kept, observed and
performed, all of the material terms, covenants, provisions and agreements
imposed upon or assumed by any Loan Party under any Lease, now or hereafter in
effect, including any amendments or supplements to such Leases covering any
part of any Mortgaged Property that is affected by the terms, covenants,
provisions and agreements imposed upon or assumed by any Loan Party in such
Leases and no Loan Party will do or fail to do, or permit or fail to permit to
be done, any act or thing, the doing or omission of which will give any party a
right to terminate any of such Leases or, in the case of any tenant, to abate
the rental or other material payment due thereunder;


          (b) If any Loan Party shall, in any manner, fail to comply with subsection
(a) above, the Loan Parties agree that GMAC may (but shall not be obligated to)
take, upon ten (10) days’ written notice to Representative (or upon lesser
notice, or without notice, if GMAC reasonably deems that the same is required
to protect its interest in any parcel of Mortgaged Property), any action which
GMAC shall reasonably deem necessary or desirable to keep, observe and perform
or cause to be kept, observed or performed any such terms, covenants,
provisions or agreements and to enter upon any parcel of Mortgaged Property or
Project Property, as applicable, and take all action thereon as may be
necessary therefor, or to prevent or cure any default by any Loan Party in the
performance of or compliance with any of any Loan Party’s covenants or
obligations under said Leases. GMAC may rely on any notice of default received
from any tenant unless, in connection with any such default or alleged default
the Loan Parties in good faith notify GMAC of the Loan Parties’ election to
contest such default by appropriate procedures and diligently pursues such
contest. The Loan Parties shall promptly deliver to GMAC a copy of any notice
relating to defaults received from any tenant that is a party, or the trustee,
receiver or successor for or to a party, to any of said Leases. GMAC may
expend such sums of money as are reasonable and necessary for any such
purposes, and the Loan Parties hereby agrees to pay to GMAC, immediately upon
demand, all sums so expended by GMAC, together with interest thereon from the date of such payment at the
Default Rate, and until so paid by the Loan Parties, all sums so expended by
GMAC and the interest thereon shall be added to Borrowers’ Liabilities secured
by the Mortgages; and



          (c) No Loan Party shall, without the prior written consent of GMAC, which
consent shall not be unreasonably withheld, conditioned or delayed, terminate,
cancel, or enter



30






 





into any amendment reducing the rent payable under or
remaining term of any Lease of any part or any parcel of Mortgaged Property or
Project Property or release any guarantor or any other party liable under any
such Lease. Provided that the Loan Party has furnished GMAC with all documents
and information reasonably requested by GMAC to review and evaluate such
request for consent, GMAC shall make a good faith effort to respond to such
request within ten (10) business days after the date that all requested
documents and information have been delivered to GMAC. Notwithstanding the
foregoing and except as prohibited above, a Loan Party may enter into any other
amendment to any Lease, consent to the assignment of any Lease, or consent to
the sublease of all or part of any Mortgaged Property or Project Property
without the prior written consent of GMAC.


     Section 5.13 Construction Responsibilities. The Loan
Parties shall construct the improvements or cause the improvements to be
constructed in a good and workmanlike manner according to the plans and
specifications and the recommendations of any soils engineer set forth in a
report delivered to GMAC prior to the initial disbursement or specifically
approved by GMAC in writing thereafter. The Loan Parties shall comply or cause
the compliance with all applicable laws, ordinances, rules, regulations,
building restrictions, orders, permits, recorded covenants and restrictions,
and requirements of all regulatory authorities having jurisdiction over the
Project Property or improvements thereon. The Loan Parties shall be solely
responsible for all aspects of the Loan Parties’ business and conduct in
connection with each Construction Project and improvements, including, without
limitation, for the quality and suitability of the plans and specifications and
their compliance with all governmental requirements, the supervision of the
work of construction, the qualifications, financial condition and performance
of all architects, engineers, contractors, material suppliers, consultants and
property managers, and the accuracy of all applications for payment and the
proper application of all disbursements. GMAC is not obligated to supervise,
inspect or inform the Loan Parties or any third party of any aspect of the
construction of the improvements or any other matter referred to above. The
Loan Parties shall remedy, in a manner satisfactory to the municipality and to
GMAC, such portions or aspects of the construction contemplated herein as may
be determined to be not substantially in compliance with the approved plans and
specifications or any laws, ordinances, orders, permits, contracts,
subcontracts, bills, and statements of the Loan Parties relating to the Project
Property.


     Section 5.14 Completion of Improvements. Cause each
Construction Project to be carried on continuously and cause the improvements
to be completed not later than eighteen (18) months from the date of the
initial advance. The improvements will be constructed entirely on the
applicable Project Property and will not encroach upon or overhang any easement
or right of way, nor upon the land of others, and the improvements when erected
shall be wholly within the building restrictions lines, however established,
and will not violate applicable use or other restrictions contained in prior
conveyances or applicable protective covenants or restrictions. All utility
lines, septic systems and streets serving the Project Property will be
completed in accordance with any health department standards and other
applicable regulations of any governmental agency having jurisdiction. The Loan Parties will promptly
correct or cause to be corrected any structural defect in the improvements or
any departure from the plans and specifications not previously approved by
GMAC.


     Section 5.15 Payment of Costs. Promptly pay or cause
to be paid all construction bills when due and keep the Project Property at all
times free and clear of all liens and encumbrances.


31






 


     Section 5.16 Additional Advances. Advance or cause to
be advanced any sum or sums required for the construction of the improvements
relating to each Construction Project over and above the proceeds of the
applicable Construction Loans.


ARTICLE VI



NEGATIVE COVENANTS



     So long as any Note shall remain unpaid, GMAC shall have any Credit
Commitment hereunder or any Borrowers’ Liabilities shall be outstanding, each
Loan Party agrees that, without the prior written consent of GMAC:


     Section 6.01 Consolidation and Merger. No Loan Party
shall (i) dissolve or liquidate or materially amend or modify its
Organizational Documents; (ii) convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) any of its assets
(whether now owned or hereafter acquired) to any Person; provided, however,
that (a) the foregoing restriction of this clause (ii) shall not apply to
Capital (except to the extent prohibited by clause (iii) below) and (b) assets
may be transferred from one Loan Party to another Loan Party and any such
transfers involving Mortgaged Property may only be made upon the receipt by
GMAC of agreements, instruments and documents deemed necessary by GMAC to
protect its interest hereunder; (iii) alone or together with one or more
Affiliates convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of the
assets of any Loan Party (whether now owned or hereafter acquired) to any
Person except as otherwise permitted herein or by the Mortgage; (iv) sell,
convey or pledge or encumber any of its capital stock, equity interests, or the
securities to any Person; provided, however, that the foregoing restriction of
this clause (iv) shall not apply to Capital (except to the extent an Event of
Default arises under Section 7.01(g) below); (v) engage in
any transaction out of the ordinary course of business; or (vi) merge or
consolidate with any Person, provided, however, that a Real Estate Subsidiary
may merge with another Loan Party upon receipt by GMAC of such agreements,
instruments and documents deemed necessary by GMAC to protect its interest
hereunder and its security interest in all Mortgaged Property.


     Section 6.02 Restrictions on Further Encumbrances or Indebtedness
on Real Estate. No Loan Party will create or suffer to exist, any
Lien, other charge or encumbrance or permit any other Indebtedness to be
incurred through non-GMAC financing with respect to any now owned or hereafter
acquired Mortgaged Property, other than (a) the liens of GMAC created under the
Loan Documents and (b) leasehold trusts or mortgages permitted under the terms
of applicable tenant Leases which do not adversely impact GMAC’s interest in
the Mortgaged Property.


     Section 6.03 Management Fees. No Loan Party shall pay
any management, service, consulting or similar fee (i) upon the occurrence of
an Event of Default or (ii) in excess of one percent (1%) of total rental
income for any parcel of Mortgaged Property; provided, however, that GMAC
reserves the right to require any recipient of such fees and any applicable
Loan Party deemed necessary by GMAC to enter into a subordination agreement in
the form of Exhibit I attached hereto and made a part hereof
(and otherwise in form and substance acceptable to GMAC).


32






 


ARTICLE VII



EVENTS OF DEFAULT, RIGHTS AND REMEDIES



     Section 7.01 Events of Default. “Events of Default,”
wherever used herein, means any one of the following events:


          (a) Default in the payment of any interest on any Note or this Agreement
when it becomes due and payable or default in payment of the principal of any
Note or this Agreement when it becomes due and payable, in each case if such
default continues for five (5) days after written notice from GMAC;



          (b) Any representation or warranty made by any Loan Party in this
Agreement or by any Loan Party (or any of its officers) in any certificate,
instrument, or statement contemplated by or made or delivered pursuant to or in
connection with this Agreement or application related to this Agreement, shall
prove to have been incorrect in any material respect when made;



          (c) (i) a default in the performance, or breach, of any material covenant
or agreement of any Loan Party in this Agreement or in the Other Agreements or
(ii) a default in the performance, or breach, of any non-material covenant or
agreement of any Loan Party in this Agreement or in the Other Agreements and,
in each of clause (i) and (ii) above, such default continues after twenty (20)
days written notice from GMAC, provided, however, that if such default
described in clause (ii) above is curable and the Loan Parties are diligently
proceeding toward a cure, such twenty (20) days will be extended to sixty (60)
days;



          (d) CARS or any Loan Party shall be adjudicated bankrupt or insolvent, or
admit in writing its inability to pay its debts as they mature, or make an
assignment for the benefit of creditors; or CARS or any Loan Party shall apply
for or consent to the appointment of any receiver, trustee, or similar officer
for it or for all or any substantial part of its property; or such receiver,
trustee or similar officer shall be appointed without the application or
consent of CARS or such Loan Party and such appointment shall continue
undischarged for a period of sixty (60) days; or a petition shall be filed by
CARS or any Loan Party under the United States Bankruptcy Code naming CARS or
any Loan Party as debtor thereunder or any such petition shall be filed against
CARS or any Loan Party and shall remain undismissed for a period of sixty (60)
days; or any judgment, writ, warrant of attachment or execution or similar
process shall be issued or levied against a substantial part of the property of
CARS or any Loan Party and such judgment, writ, or similar process shall not be
released, vacated or fully bonded within sixty (60) days after its issue or
levy;



          (e) The rendering against CARS or any Loan Party of a final judgment,
decree or order for the payment of money in excess of $5,000,000 or such other
amount having a material adverse effect on CARS or any Loan Party, and the
continuance of such judgment, decree or order unsatisfied and in effect for any
period of sixty (60) consecutive days without a stay of execution;




33






 





          (f) Any Reportable Event, which GMAC determines in good faith might
constitute grounds for the termination of any Plan or for the appointment by
the appropriate United States District Court of a trustee to administer any
Plan, shall have occurred and be continuing sixty (60) days after written
notice to such effect shall have been given to the Representative by GMAC; or
any Plan shall have been terminated, or a trustee shall have been appointed by
an appropriate United States District Court to administer any Plan, or the
Pension Benefit Guaranty Corporation shall have instituted proceedings to
terminate any Plan or to appoint a trustee to administer any Plan;



          (g) (i) any Person other than CARS shall hold more than 49% of the limited
or general partnership interests in Capital, (ii) any Person other than CARS
shall be a general partner of Capital or (iii) any Person other than Capital or
CARS (or a Subsidiary of either of Capital or CARS) shall be a manager or
general partner of any Loan Party;



          (h) Any Guaranty shall cease to be in full force and effect or any
Guarantor (or any Person by, through or on behalf of any Guarantor) shall
contest in any manner the validity, binding nature or enforceability of any
Guaranty; or



          (i) any “Event of Default” shall occur under the Revolving Credit
Agreement.



     Section 7.02 Rights and Remedies. Upon the occurrence
of an Event of Default or at any time thereafter until such Event of Default is
cured to the written satisfaction of GMAC, GMAC may exercise any or all of the
following rights and remedies:


          (a) GMAC may, by notice to the Representative, declare the Credit
Commitment to be terminated, whereupon the same shall forthwith terminate;



          (b) GMAC may, by notice to the Representative, declare the entire unpaid
principal amount of each Note then outstanding, all interest accrued and unpaid
thereon, and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon each Note, all such accrued interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by each Borrower;



          (c) GMAC may, without notice to any Borrower and without further action,
apply any and all money owing by GMAC to any Borrower to the payment of the
principal amounts of each Note then outstanding, including interest accrued
thereon, and of all other sums then owing by the Borrowers hereunder, all in
such order as GMAC shall determine; and



          (d) GMAC may exercise and enforce its rights and remedies under this
Agreement and the Other Agreements and any and all other rights and remedies
available under law or at equity.



34






 


ARTICLE VIII



MISCELLANEOUS



     Section 8.01 No Waiver; Cumulative Remedies. No
failure or delay on the part of GMAC in exercising any right, power or remedy
hereunder or under the Other Agreements shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder or under any Mortgage. The remedies herein
and in the Other Agreements provided are cumulative and not exclusive of any
remedies provided by law.


     Section 8.02 Amendments, Etc. No amendment,
modification, termination or waiver of any provision of this Agreement, or the
Other Agreements or consent by any Loan Party to any departure therefrom shall
be effective unless the same shall be in writing and signed by GMAC and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No notice to or demand on any Loan Party
in any case shall entitle any Loan Party to any other or further notice or
demand in similar or other circumstances.


     Section 8.03 Addresses for Notices, Etc. Except as
otherwise expressly provided herein, all notices, requests, demands and other
communications provided for hereunder and under the Other Agreements shall be
in writing and shall be sent by certified or registered mail, return receipt
requested, by personal delivery against receipt, by overnight courier or by
confirmed facsimile (with a copy sent via mail in the aforesaid manner) to the
applicable party at its address indicated below:



	 	 	 
	 	 	
If to any Borrower:
	 	 	 
	 	 	
Capital Automotive L.P.
	 	 	
8270 Greensboro Drive, Suite 950
	 	 	
McLean, Virginia 22102
	 	 	
Attn: Treasurer and General Counsel
	 	 	
Telecopy No. (703) 288-3375
	 	 	 
	 	 	
With a copy to:
	 	 	 
	 	 	
Winston & Strawn
	 	 	
1400 L Street NW
	 	 	
Washington DC 20005-3502
	 	 	
Attn: Richard F. Williamson, Esq.
	 	 	
Telecopy No. (202) 371-5950



35






 




	 	 	 
	 	 	
If to GMAC:
	 	 	 
	 	 	
General Motors Acceptance Corporation
	 	 	
Mail Code B10-C76
	 	 	
200 Renaissance Center
	 	 	
Detroit, Michigan 48265-2000
	 	 	
Attn: David E. Ehlers
	 	 	
Telecopy No. (313) 974-7683
	 	 	 
	 	 	
With a copy to:
	 	 	 
	 	 	
Vedder, Price, Kaufman & Kammholz
	 	 	
222 North LaSalle Street
	 	 	
Chicago, Illinois 60601
	 	 	
Attn: Michael A. Nemeroff, Esq.
	 	 	
Telecopy No. (312) 609-5005



or, as to each party, at such other address as shall be designated by such
party in a written notice to the other party complying as to delivery with the
terms of this Section. All such notices, requests, demands and other
communications shall, when received, be effective.


     Section 8.04 Costs and Expenses. The Loan Parties
agree to pay on demand all costs and expenses of GMAC in connection with the
preparation of this Agreement and the Other Agreements (and all subsequent
transactions and Loans contemplated hereby), including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for GMAC with respect
thereto. The Loan Parties further agree to pay on demand all out-of-pocket
expenses of legal counsel retained by GMAC in connection with the enforcement
of this Agreement and the Other Agreements and documents to be delivered
hereunder and thereunder.


     Section 8.05 Execution in Counterparts. This Agreement
and the Other Agreements may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts of this Agreement or the Other Agreements, as the case
may be, taken together, shall constitute but one and the same instrument.


     Section 8.06 Binding Effect; Assignment. This
Agreement and the Other Agreements shall be binding upon and inure to the
benefit of each Borrower and GMAC and their respective successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder or
thereunder or any interest herein or therein without the prior written consent
of GMAC.


     Section 8.07 Governing Law. This Agreement and the
Other Agreements (except to the extent specifically set forth in any such Other
Agreement) shall be governed by, and construed in accordance with, the laws of
the State of Michigan without regard to conflict of laws principles.


     Section 8.08 Severability of Provisions. Any provision
of this Agreement which is prohibited or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.


36






 


     Section 8.09 Headings. Article and Section headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose.


     Section 8.10 Venue and Waiver of Jury Trial. The
parties agree that all actions or proceedings arising in connection with this
Agreement and the Other Agreements shall be tried and litigated only in the
state and federal courts located in the State of Michigan or, at the sole
option of GMAC, in any other court in which GMAC shall initiate legal or
equitable proceedings and which has subject matter jurisdiction over the matter
in controversy. All the parties to this Agreement waive any right each may
have to assert the doctrine of forum non conveniens or to object to venue to
the extent any proceeding is brought in accordance with this Section
8.10. All the parties to this Agreement hereby further jointly and
severally waive any right to trial by jury with respect to any action, claim,
suit or proceeding in respect of or relating to this Agreement or any Other
Agreement and/or any relationship between GMAC and any Borrower.


     Section 8.11 Indemnification by Loan Parties. The Loan
Parties hereby agree, jointly and severally, to indemnify, defend and hold
GMAC, and its directors, officers, agents, employees and counsel, harmless from
and against any and all losses, claims, damages, liabilities, deficiencies,
judgments, penalties or expenses imposed on, incurred by or asserted against
any of them, whether direct, indirect or consequential, arising out of or by
reason of any litigation, investigations, claims or proceedings (whether based
on any federal, state or local laws or other statutes or regulations,
including, without limitation, securities, environmental or commercial laws and
regulations, under common law or at equitable cause, or on contract or
otherwise) commenced or threatened, which arise out of or are in any way based
upon the negotiation, preparation, execution, delivery, enforcement,
performance or administration of this Agreement, any Other Agreement, or any
undertaking or proceeding related to any of the transactions contemplated
hereby or any act, omission to act, event or transaction related or attendant
thereto, including, without limitation, amounts paid in settlement, court
costs, and the fees and expenses of counsel reasonably incurred in connection
with any such litigation, investigation, claim or proceeding, provided that the
Loan Parties shall have no obligation hereunder with respect to indemnified
liabilities arising from (i) any claim by GMAC which arises solely from the
actions or omissions to act of GMAC and was not caused by any breach of this
Agreement or any Other Agreement by any Loan Party, or (ii) the gross
negligence or willful misconduct of GMAC or any of its agents, designees or
attorneys in fact. To the extent that the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it violates any law or public policy, the Loan Parties shall contribute the
maximum portion which they are permitted to pay and satisfy under applicable
law, to the payment and satisfaction of all indemnified matters incurred by
GMAC. If, at the time of the payment in full of Borrowers’ Liabilities, any
claim or claims are pending or threatened against GMAC, or its directors,
officers, agents, employees or counsel, the foregoing indemnity shall survive
the payment of Borrowers’ Liabilities and the termination of this Agreement,
and Capital hereby agrees to remain fully liable to GMAC for the indemnity
obligation with respect to such claim. All of the foregoing costs and expenses
shall be part of Borrowers’ Liabilities, payable upon demand, and secured by
the Mortgaged Property.


     Section 8.12 Joint and Several Liability. Each
Borrower acknowledges and agrees that this Agreement has been entered into as
an agreement among Borrowers and GMAC for the


37






 


benefit of, and at the request of, Borrowers, jointly and severally.
Except as specifically set forth herein, the liability of each Borrower under
this Agreement and the other agreements in general shall be joint and several,
and each reference herein to the Borrowers shall be deemed to refer to each
such Borrower. In furtherance and not in limitation of GMAC’s rights and
remedies hereunder or at law, GMAC may proceed under this Agreement and the
other agreements against any one or more of the Borrowers in its absolute and
sole discretion for any of the obligations of the Borrowers or any other
liability or obligation of the Borrowers arising hereunder.


     Section 8.13 Reimbursement Among Borrowers. To the
extent that any Borrower other than Capital shall be required to pay a portion
of any Borrower’s Liabilities created under this Agreement of any other
Borrower which shall exceed the amount of loans, advances or other extensions
of credit received by any such Borrower and all interest, costs, fees and
expenses attributable to such loans, advances or other extensions of credit,
then such Borrower shall be reimbursed by the other Borrowers for the amount of
such excess pro rata, based on their respective net worth as of the date
hereof. This Section 8.13 is intended only to define the
relative rights of the Borrowers among the Borrowers and nothing set forth in
this Section 8.13 is intended to or shall impair the
obligations of Borrowers, jointly and severally, to pay the obligations of the
Borrowers to GMAC as and when the same shall become due and payable in
accordance with the terms hereof.


     Section 8.14 Appointment of Capital as Representative.
Each Borrower hereby jointly and severally appoints Capital, with full power of
substitution, as agent and attorney-in-fact for all Borrowers (in such
capacity, the “Representative”), with full authority to
receive or provide notices on behalf of each Borrower and to execute and
deliver on behalf of any or all Borrowers (in the name of Capital as
Representative hereunder and/or the name of such Borrowers) any modifications,
alterations, amendments or waivers of this Agreement or any Other Agreement and
to take any other action and execute any other instrument or document on behalf
of and in the name of any Borrower as shall be deemed appropriate by
Representative. The Borrowers hereby jointly and severally ratify and approve
all actions taken, and documents or instruments executed and delivered, by
Representative on behalf of any of them hereunder.


[SIGNATURE PAGE FOLLOWS]



38






 





(Signature page to Construction Credit Agreement)



     IN WITNESS WHEREOF, the parties hereto have caused this Construction
Credit Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.



	 	GENERAL MOTORS ACCEPTANCE CORPORATION




	 	 	 	 
	By:	 	/s/ Jeffrey G. McLeod
	 	 	

	 	 	Its:	Vice President
	 	 	 	






	 	CAPITAL AUTOMOTIVE L.P., a

Delaware limited partnership




	 	 	 
	
By:
	 	Capital Automotive REIT, a Maryland

real estate investment trust
	 	 	Its: General Partner







	 	 	 	 
	By:	 	/s/ Peter C. Staaf
	 	 	

	 	 	Its:	Senior Vice President and Treasurer
	 	 	 	





 






 


EXHIBITS AND SCHEDULES



to



CONSTRUCTION CREDIT AGREEMENT



Schedules:




	 	 	 	 	 	 	 
	 	 	
Schedule 4.04
	 	-
	 	Subsidiaries
	 	 	 	 	 	 	 
	 	 	
Schedule 4.17
	 	-
	 	Environmental Matters



Exhibits:




	 	 	 	 	 	 	 
	 	 	
Exhibit A
	 	-
	 	Form of Note
	 	 	 	 	 	 	 
	 	 	
Exhibit B
	 	-
	 	Form of Draw Certificate
	 	 	 	 	 	 	 
	 	 	
Exhibit C
	 	-
	 	Form of Joinder Agreement
	 	 	 	 	 	 	 
	 	 	
Exhibit D
	 	-
	 	Form of Guaranty
	 	 	 	 	 	 	 
	 	 	
Exhibit E
	 	-
	 	Form of Assignment of Interest In Construction Documents
	 	 	 	 	 	 	 
	 	 	
Exhibit F
	 	-
	 	Form of Contractor Consent to Assignment
	 	 	 	 	 	 	 
	 	 	
Exhibit G
	 	-
	 	Form of Agreement of Subordination of Lien by Contractor
	 	 	 	 	 	 	 
	 	 	
Exhibit H
	 	-
	 	Form of Opinion of Borrower’s Counsel
	 	 	 	 	 	 	 
	 	 	
Exhibit I
	 	-
	 	Form of Subordination Agreement



 






 



SCHEDULE 4.04

to

Construction Credit Agreement



SUBSIDIARIES 



[TO BE COMPLETED BY CAPITAL]



 






 





SCHEDULE 4.17



to

Construction Credit Agreement



ENVIRONMENTAL MATTERS



[TO BE COMPLETED BY CAPITAL]



 






 






EXHIBIT A

to

Construction Credit Agreement



NOTE




	 	 	 
	$ 
	 	
Detroit, Michigan

	Mortgaged Property Address:	 	 





	
	 	
	,	

	
	 	
Draw No:  
                                              
	
	 	
     



     FOR
VALUE RECEIVED, on or before     
                
      [ADVANCE DUE DATE IS 18
MONTHS AFTER THE FUNDING DATE OF THE INITIAL ADVANCE OF EACH CONSTRUCTION LOAN
AND 12 MONTHS AFTER THE FUNDING DATE OF EACH ACQUISITION LOAN] (or, if such day
is not a Business Day, on the next following Business Day), the undersigned,
Capital Automotive, L.P., a Delaware limited partnership, and
                    
     , a
              
[limited liability company] [limited
partnership], jointly and severally (collectively, together with their
respective successors and assigns, the “Borrowers”), promise
to pay to the order of GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware
corporation (herein, together with its successors and assigns,
“GMAC”), the maximum principal sum of
                             
DOLLARS
($               ) pursuant to that certain Construction Credit Agreement
dated as of June 23, 2003 among the Borrowers, certain Affiliates of Borrowers
and GMAC (herein, as the same may be amended, modified or supplemented from
time to time, called the “Credit Agreement”) as shown in
GMAC’s records. Terms used but not otherwise defined herein are used herein as
defined in the Credit Agreement.


     The Borrowers further promise to pay to the order of GMAC interest on the
aggregate unpaid principal amount hereof from time to time outstanding from the
date hereof until paid in full at the LIBOR Rate plus
          percent
(          %) as
shall be determined in accordance with the provisions of the Credit Agreement.
[LIBOR RATE TO BE DETERMINED AT TIME OF EXECUTION OF EACH NOTE] Accrued
interest shall be payable on the dates specified in the Credit Agreement.


     Payments of both principal and interest are to be made in the lawful money
of the United States of America in immediately available funds at GMAC’s
principal office at 200 Renaissance Center, Detroit, Michigan 48265-2000, or at
such other place as may be designated by GMAC to the Borrower in writing.


     This Note is one of the Notes referred to in, evidences indebtedness
incurred under, and is subject to the terms and provisions of, the Credit
Agreement. The Credit Agreement, to which reference is hereby made, sets forth
said terms and provisions, including, but not limited to, those under which
this Note may be paid prior to its due date or may have its due date
accelerated. This Note is secured by that certain Deed of Trust, Mortgage,
Leasehold Mortgage, Leasehold Deed of Trust, Security Agreement, Fixture
Filing, Assignment of Leases and Rents and Financing Statement of even date
herewith made by Borrowers in favor of GMAC. The terms of


A-1 






 




such Mortgage are deemed a part of and incorporated herein as though fully
set forth in this Note.


     In addition to, and not in limitation of, the foregoing and the provisions
of the Credit Agreement hereinabove referred to, the Borrowers further agree,
subject only to any limitation imposed by applicable law, to pay all expenses,
including reasonable attorneys’ fees and expenses, incurred by the holder of
this Note in seeking to collect any amounts payable hereunder which are not
paid when due, whether by acceleration or otherwise.


     All parties hereto, whether as makers, endorsers or otherwise, severally
waive presentment, demand, protest and notice of dishonor in connection with
this Note.


     This Note is binding upon the Borrowers and their respective successors
and assigns, and shall inure to the benefit of GMAC and its successors and
assigns. This Note is made under and governed by the laws of the State of
Michigan without regard to conflict of laws principles.


     IN WITNESS WHEREOF, the Borrowers have executed this Note as of the day
and year first above written.



	 	CAPITAL AUTOMOTIVE L.P.




	 	 	 
	By:	 	
Capital Automotive REIT, a Maryland

real estate investment trust

Its: General Partner





	 	 	 	 
	By:	 	


	 	 	Its: 

	 
	

	 
	By:	 	



	 	 	
Its: 





Borrowers’ Address:

8270 Greensboro Drive, Suite 950

McLean, Virginia 22102



A-2 






 


EXHIBIT B

to

Construction Credit Agreement



Form of Draw Certificate



APPLICATION AND CERTIFICATE FOR PAYMENT



DRAW REQUEST




	 	 	 
	TO:	 	
GENERAL MOTORS ACCEPTANCE CORPORATION (“GMAC”)
	 	 	 
	FROM:	 	
CAPITAL AUTOMOTIVE L.P. (“CAPITAL”)
	 	 	 
	PROJECT:	 	 
	 	 	 
	APPLICATION NUMBER:	

	 	 	 
	PERIOD TO:	





	 	 	 	 	 
	1.	 	
GMAC Loan Amount
	$	

	2.	 	Less Draw at Closing	$	

	3.	 	Less Previous Certificates for Payment	$	

	4.	 	Current Certificate	$	

	5.	 	Balance left to draw on GMAC Loan	$	




The undersigned hereby certify that the following documents are
available for review by GMAC upon request:



	1.	 	Application and Certificate for Payment from Contractor.
	 
	2.	 	Schedule of work completed and material stored this Certificate period.
	 
	3.	 	Schedule of names and addresses of all of the subcontractors, architects,
mechanics and materialmen who have commenced work or supplied materials or
services to the property (attach subcontractor and materialmen invoices).
	 
	4.	 	Lien Waiver (Contractor).
	 
	5.	 	Waiver and Subordination of Lien (subcontractors and materialmen).



     Pursuant to the provisions of that certain Construction Credit Agreement
dated June 23, 2003 among Capital, certain Real Estate Subsidiaries of Capital
(collectively, the “Borrowers”) and GMAC (as amended, modified or restated from
time to time, the “Construction Credit Agreement”), Borrower requests payment
of the sum of $               
                  
in payment of the above Application and
Certificate for Payment. Each Borrower certifies that the foregoing documents
available for review are true and complete and in compliance with the
Construction Credit Agreement and industry standards necessary to assure that
the project will be free of mechanic’s liens. At the request of GMAC, Borrowers
agree to provide GMAC with copies of the foregoing documents, and any other
document or information requested by GMAC in connection with its review of the
draw request. Each Borrower reaffirms that each of the


B-1 






 


representations provided in the Construction Credit Agreement are true and
correct as of the date hereof. Each Borrower herewith certifies it has made an
on-site inspection of the work and the data comprising the above application
and that, the work has progressed as indicated, the quality of the work is in
accordance with the contract documents, and Contractor is entitled to payment
of the amount above certified. Each Borrower acknowledges that issuance,
payment and acceptance of payment are without prejudice to any rights of GMAC
under the above-referenced Construction Credit Agreement.



	 	CAPITAL AUTOMOTIVE L.P.




	 	 	 
	By:	 	
Capital Automotive REIT, a Maryland

real estate investment trust
	 	 	
Its: General Partner





	 	 	 
	By:	 	



	 	 	Its:






	 	 	 
	


	By:	 	



	 	 	
Its: 





Borrowers’ Address:

8270 Greensboro Drive, Suite 950

McLean, Virginia 22102



B-2 






 





EXHIBIT C

to

Construction Credit Agreement



FORM OF JOINDER AGREEMENT



     THIS JOINDER AGREEMENT dated
                    ,
               (the
“Joinder Agreement”), is entered into by and among CAPITAL
AUTOMOTIVE L.P., a Delaware limited partnership (“Capital”),
and [NAME/STATE OF FORMATION OF OLD SUBSIDIARIES] (individually an
“Old Borrower” and collectively, the “Old
Borrowers”), [NAME/STATE OF INCORPORATION OF NEW SUBSIDIARY] (the
“New Borrower”, together with the Old Borrowers, the
“Borrowers” and individually, a
“Borrower”), and GENERAL MOTORS ACCEPTANCE CORPORATION, a
Delaware corporation (“GMAC”). All capitalized terms used
but not defined herein, and defined in the Credit Agreement (as defined below),
shall have the meanings ascribed to such terms in the Credit Agreement.


RECITALS:


     WHEREAS, the Old Borrowers and GMAC are parties to that certain
Construction Credit Agreement dated as of June 23, 2003 (as the same may be
amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”);


     WHEREAS, the Borrowers have requested, and GMAC has agreed, to finance
[the acquisition of a certain parcel of real property] [the construction of
certain improvements on certain real property owned by the Borrowers] which
will be secured by a new parcel of Mortgaged Property [owned by the New
Borrower/owned by
                                    (the “Guarantor”)] [TBD], subject to the
terms and conditions of the Credit Agreement;


     [WHEREAS, New Borrower is a wholly-owned Subsidiary of Capital which owns
the Project Property which is being [improved]/[acquired] with the proceeds of
a new Loan; [and]] [TBD]


     [WHEREAS, Guarantor is a wholly-owned Subsidiary of Capital which has
agreed to execute a Guaranty of even date herewith (the “Guaranty”) secured by
the Mortgaged Property which Guaranty will secure the new Loan; and] [TBD]


     WHEREAS, as a condition of, and in order to consummate the Loan for [the
acquisition of the Project Property] [the improvements to the [Project
Property/Mortgaged Property]], New Borrower desires to become party to the
Credit Agreement.


     NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Old Borrowers, the New
Borrower and GMAC agree as follows:


     1.     Joinder. The New Borrower hereby agrees to become a
Borrower under the Credit Agreement and agrees to assume all obligations and be
bound by all of the terms, conditions and covenants thereof all with the same
effect as if such documents had been


C-1 






 




executed as of the original date of the Credit Agreement (the
“Closing Date”). Concurrently with the execution of this
Joinder Agreement the undersigned has become a party to the Other Agreements
[LIST THOSE DOCUMENTS EXECUTED BY THE REAL ESTATE SUBSIDIARIES], and agrees to
be bound thereby as if it had been a party to each such document all with the
effect as if such documents had been executed on the Closing Date.


     2.     Loan Documents. Except as otherwise provided in
Section 3.01 of the Credit Agreement, the following
documents and information shall be delivered to GMAC, in form and substance
acceptable to GMAC, concurrently with this Joinder Agreement, which shall be
deemed “Other Agreements” under the Credit Agreement and for all other
purposes:


          (a) Joinder Agreement. Executed original of the
Joinder Agreement pursuant to which the New Borrower utilizing the proceeds of
each Loan agrees to become a Borrower under the Credit Agreement.



          (b) Mortgage. The New Borrower or Guarantor, as
applicable, which is the mortgagor will own the respective Mortgaged Property
in fee simple and shall execute a Mortgage which when recorded will grant to
GMAC a first priority security interest in each parcel of Mortgaged Property
securing all present and future Loans.



          (c) Guaranty. To the extent the proceeds of any Loan
are being used to improve Project Property which is not the Mortgaged Property
or purchase real property that is not the Mortgaged Property, the owner of such
Mortgaged Property shall execute a Guaranty.



          (d) Financing Statements. UCC fixture filings for each
parcel of Mortgaged Property.



          (e) Note. Note properly executed by the New Borrower.



          (f) Use of Proceeds. (i) In the case of a Construction
Loan, evidence that the proceeds of the Construction Loan shall be used for the
construction of the proposed improvements to the Project Property identified by
New Borrower or (ii) in the case of an Acquisition Loan, evidence that the
proceeds of the Acquisition Loan shall be used to purchase the fee interest in
the real property identified by New Borrower.



          (g) Title Policy. For each new parcel of Mortgaged
Property, an ALTA loan policy of title insurance issued by the Title Company,
with all premiums having been paid in full, with aggregate liability limits of
not less than the Loan amount applicable to such Mortgaged Property, insuring
GMAC’s interest under the mortgage, subject only to such defects and exceptions
as will have been approved by GMAC in its sole, absolute discretion and
containing such endorsements as GMAC shall require. Such title insurance
policies will insure that marketable legal title is vested in fee simple
absolute in the applicable Borrower, or Guarantor, that the mortgage or deed of
trust constitutes a first lien on the real property securing such Loan, and
that there are no recorded or unrecorded Liens encumbering such property,
except such Liens as are approved in writing by GMAC.



C-2 






 


          (h) Survey. A current ALTA survey with respect to each
new parcel of Mortgaged Property, with each such survey to be certified to GMAC
in form satisfactory to GMAC in its sole, absolute discretion.



          (i) Appraisal. An MAI appraisal with respect to each
new parcel of Mortgaged Property (including, without limitation, a fee simple
appraisal value and a leased fee appraisal value) by an appraiser acceptable to
GMAC and, in form and substance acceptable to GMAC. If the Project Property is
the Mortgaged Property or if GMAC has made other loans that are secured by the
Project Property, the appraisal shall appraise such property with and without
the proposed improvements.



          (j) Plans and Specifications. For each Construction
Loan, a complete set of plans and specifications for said improvements relating
to such Construction Loan, which plans and specifications for said improvements
are to be in full compliance with all building codes and ordinances of the city
or county where the improvements are to be constructed and all restrictions, if
any, of the subdivision where the improvements are to be constructed.



          (k) Architect’s Certificate. For each Construction
Loan, a certificate of the architect preparing the plans and specifications
(“Architect”) satisfactory to GMAC that:


	 	 
	 	               (i) the Project Property is now, and upon construction of the
improvements in accordance with the plans and specifications will be, in
compliance with all applicable building and zoning laws, ordinances,
rules and regulations, without regard to and independently of any other
property;


	 	 
	 	               (ii) any and all required licenses and permits for and approvals of
the Construction Project and improvements have been or will be issued by
all governmental authorities and agencies (federal, state and local) and
are or will be in full force and effect; and


	 	 
	 	
               (iii) all utilities and municipal services necessary for the
improvements are available at the Project Property, and all permissions,
permits and licenses required to tie the Project Property and
improvements into such utilities and services have been or will be
obtained on an unconditional basis including, without limitation, all
necessary telephone, electric, gas, water, sewer and drainage permits.






          (l) Cost Analysis. For each Construction Loan, a cost
analysis (“Cost Analysis”) setting forth all expenses and costs which either
have been incurred or Borrowers reasonably estimate will be incurred, and all
reserves, if any, to be established and maintained in connection with the
construction of the improvements.



          (m) Permits. For each Construction Loan, true and
complete copies of any and all required licenses and permits for and approvals
of the proposed improvements have been issued by all governmental authorities
and agencies (federal, state and local).



          (n) Construction Contract. For each Construction Loan,
a copy of the applicable site-work or construction contract with the contractor
who will perform the site-work or construct the improvements (each a
“Contractor”, and each construction contract a



C-3 






 



“Construction Contract”). In addition, If
the Project Property is the Mortgaged Property or if GMAC has made other loans
that are secured by the applicable Project Property, Borrowers shall (a)
execute and deliver to GMAC an Assignment of Borrower’s Interest in
Construction Documents, and (b) cause to be executed by each Contractor and
delivered to GMAC, a Contractor Consent and Agreement and an Agreement of
Subordination of Lien by Contractor.


               (o)     Opinion. GMAC will have received an opinion of counsel as to
Capital, the particular Borrower and any Guarantor prior to making
any Loan.



               (p)     Environmental
Assessment. An environmental assessment report
(at the expense of Borrowers), including Phase I and Phase II
assessments (when recommended by the Phase I assessment), from a
qualified engineering firm or other qualified consultant acceptable
to GMAC with respect to an environmental assessment of the new
Mortgaged Property, in form and substance acceptable to GMAC
including, without limitation, environmental condition of such
Mortgaged Property acceptable to GMAC.



               (q)     Soil
Report. If the Project Property is the new Mortgaged Property or
if GMAC has made other loans that are secured by the applicable Project
Property, an assessment of the soil comprising the Project Property performed
by a licensed soil engineer reasonably satisfactory to GMAC indicating that all
areas on which any improvements are to be located are either sufficient for the
construction of same thereon or can be made sufficient through specific
engineering and earth-moving work described therein, the cost of which is
included in the Cost Analysis.



               (r)     Pay-off. Executed Pay-off Letter and evidence of
the release of all Liens on each parcel of new Mortgaged
Property.



               (s)     Resolutions. A certified copy of the resolutions
of the Board of Directors/Managers of the respective New
Borrower and Guarantor, as applicable, evidencing approval of
this Agreement, the Mortgage, the Note, the Guaranty, the
other Loan Documents and the other matters contemplated
hereby.



               (t)     Secretary’s
Certificate. A signed copy of a
certificate of the Secretary or an Assistant Secretary of each
New Borrower and each Guarantor, as applicable, which shall
certify to (i) the Organizational Documents of such New
Borrower or such Guarantor, (ii) Operating Documents of such
New Borrower or such Guarantor, and (iii) the names of the
officers of the New Borrower or Guarantor authorized to sign
this Agreement and the Other Agreements to which such New
Borrower or such Guarantor is a party and the certificates to
be delivered pursuant to this Agreement, together with the
true signatures of such officers. GMAC may conclusively rely
on such certificate until it shall receive a further
certificate of the Secretary or Assistant Secretary of the
applicable New Borrower or Guarantor canceling or amending the
prior certificate and submitting the signatures of the
officers named in such further certificate.



               (u)     Compliance
With Mechanic’s Lien Statutes. If the
Project Property is the Mortgaged Property or if GMAC has made
other loans that are secured by the applicable Project
Property, evidence satisfactory to GMAC of the owner of the
Project Property’s compliance with



C-4






 





all applicable mechanic’s
lien statutes, including the filing of a notice of
commencement if applicable in the State in which the Project
Property is located.


               (v)     Other
Agreements. Such other documents,
agreements, certificates and opinions as GMAC may request.



          3.     Representations, Warranties and
Covenants of Borrowers. The Borrowers hereby jointly
and severally represent and warrant to GMAC:



               a.     The execution and delivery of this Joinder Agreement, the Credit
Agreement and the Other Agreements (collectively, the “Loan
Documents”) and the
performance by Borrowers of their obligations hereunder are within each
Borrower’s powers and authority, have been duly authorized by all necessary
action and do not and will not contravene or conflict with the Organizational
Documents or Operating Documents of any Borrower. The Organizational Documents
and Operating Documents of the Old Borrowers remain in full force and effect
and have not been revoked, amended, or modified in any other manner since they
were delivered to GMAC.




               b.     The Loan Documents constitute legal, valid and binding obligations
enforceable in accordance with their terms against Borrowers, and Borrowers
expressly reaffirm each of their obligations under the Loan Documents,
including, without limitation, Borrowers’ Liabilities. Borrowers further
expressly acknowledge and agree that GMAC has a valid, duly perfected, first
priority and fully enforceable security interest in and Lien against each
parcel of Mortgaged Property, except as otherwise set forth in the Loan
Documents. Borrowers hereby agree not to dispute the validity or
enforceability of the Loan Documents or any of their respective obligations
thereunder, or the validity, priority, enforceability or extent of GMAC’s
security interest in or Lien on any parcel of Mortgaged Property in any
judicial, administrative or other proceeding;



               c.     No consent, order, qualification, validation, license, approval or
authorization of, or filing, recording, registration or declaration with, or
other action in respect of, any governmental body, authority, bureau or agency
or other Person is required (which has not been obtained) in connection with
the execution, delivery or performance of, or the legality, validity, binding
effect or enforceability of, this Joinder Agreement;



               d.     The execution, delivery and performance of this Joinder Agreement by
Borrowers does not and will not violate any law, governmental regulation,
judgment, order or decree applicable to any Borrower and does not and will not
violate the provisions of, or constitute a default or any event of default
under, or result in the creation of any security interest or lien upon any
property of any Borrower pursuant to, any indenture, mortgage, instrument,
contract, agreement or other undertaking to which any Borrower is a party or is
subject or by which any Borrower or any of such Borrower’s real or personal
property may be bound;



               e.     No Event of Default exists under the Credit Agreement or the Other
Agreements; and



               f.     Upon the date of this Joinder Agreement, Borrowers hereby reaffirm all
covenants, representations and warranties made in the Credit Agreement and the
Other



C-5






 





Agreements, and agree that all such covenants, representations and
warranties shall be deemed to have been remade as of the date of this Joinder
Agreement.


[TO BE REVISED AS NECESSARY TO INCLUDE GUARANTOR, IF ANY]



          4.     Reference
to the Effect on the Credit Agreement.



               a.     References. Upon the date of this Joinder Agreement and on and after
the date hereof, each reference in the Credit Agreement to “this Credit
Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean
and be a reference to the Credit Agreement, as modified hereby.



               b.     Ratification. Except as specifically modified above, the Credit
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect, and
are hereby ratified and confirmed.



               c.     No
Waiver. The execution, delivery and effectiveness of this Joinder
Agreement shall not operate as a waiver of any right, power or remedy of GMAC,
nor constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments or agreements executed and/or delivered in connection
therewith (except as expressly set forth herein). Nothing herein shall
constitute a waiver by GMAC of any existing or hereafter arising default or
Event of Default nor shall GMAC’s execution and delivery of this Joinder
Agreement establish a course of dealing among GMAC, the Borrowers or any other
obligor or in any other way obligate GMAC to hereafter provide any further
consents, waivers or modifications with respect to the Credit Agreement.



          5.     Severability. Wherever possible, each provision of the Loan Documents
shall be interpreted in such a manner so as to be effective and valid under
applicable law, but if any provision of any such document is held to be
prohibited by or invalid under applicable law, such provision or provisions
shall be ineffective only to the extent of such provision or invalidity,
without invalidating the remainder of such document.



          6.     Successors
and Assigns. All covenants and agreements contained in this
Joinder Agreement by or on behalf of any of the parties hereto will bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether or not so expressed.



          7.     Governing
Law. This Joinder Agreement shall be governed by and
construed in accordance with the internal laws (as opposed to the conflict of
law provisions) of the State of Michigan.



          8.     Headings. Section headings in this Joinder Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Joinder Agreement for any other purpose.



          9.     Time
of Essence. Time is of the essence with respect to each and every
provision of this Joinder Agreement.




C-6






 





          10.     Expenses. Borrowers shall pay all of the fees and expenses of GMAC
incurred in connection with this Joinder Agreement and the transactions
contemplated hereby.



          11.     No
Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Joinder Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Joinder
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Joinder Agreement.



          12.     Counterparts. This Joinder Agreement may be executed in one or more
counterparts, each of which taken together shall constitute one and the same
instrument, admissible into evidence.



[SIGNATURE PAGE FOLLOWS]



C-7






 





(Signature Page to Joinder Agreement)



     IN WITNESS WHEREOF, the Borrowers have caused this Joinder Agreement to be
executed and delivered by its officer thereunto duly authorized on                ,
               .



	 	 	 
	 	CAPITAL AUTOMOTIVE L.P., as
	 	Representative of, and intending to legally
	 	bind, each of the Old Borrowers




	 	 	 
	 	By:	
Capital Automotive REIT, a Maryland
	 	 	
real estate investment trust
	 	 	
Its: General Partner




	 	 	 
	 	By:	

	 	Its:	





	 	 	 
	 	[NAME/STATE OF ORGANIZATION	 
	 	OF NEW SUBSIDIARY]	 




	 	 	 
	 	By:	

	 	Its:	





	 	 	 
	 	GENERAL MOTORS ACCEPTANCE	 
	 	CORPORATION	 




	 	 	 
	 	By:	

	 	Its:	




C-8






 



EXHIBIT D

to

Construction Credit Agreement



Form of Guaranty



GUARANTY



          THIS GUARANTY (“Guaranty”) is executed and delivered as of                     ,
200    , by                     ,
a                     [corporation/limited
liability company/limited partnership] (the “Guarantor”), in favor of GENERAL
MOTORS ACCEPTANCE CORPORATION, a Delaware corporation (“GMAC”).



W I T N E S S E T H:



          WHEREAS, pursuant to that certain Construction Credit Agreement dated as
of                     , 2003 (as amended, modified or restated from time to time, the
“Credit Agreement”) among GMAC, Capital Automotive L.P. a Delaware limited
partnership (“Capital”),                     ,
a                     [INSERT NAME OF
BORROWER] (the “Real Estate Subsidiary”), and certain affiliates of Capital,
GMAC has made certain financial accommodations to the Real Estate Subsidiary
and Capital (collectively, the “Borrowers”) evidenced by that certain Note
dated as of                     in
the original principal amount of $                    
payable by Borrowers to the order of GMAC (as amended, modified or restated
from time to time, together with all renewals and substitutions thereof, the
“Note”), as set forth in the Note;



          WHEREAS, as an affiliate of the Real Estate Subsidiary and a subsidiary of
Capital, Guarantor will derive direct and indirect economic benefits from the
continued availability of financial accommodations to the Borrowers; and



          WHEREAS, in connection with the financial accommodations provided by GMAC
to the Borrowers as set forth in the Note and as a condition precedent thereto,
GMAC is requiring that the Guarantor shall have executed and delivered this
Guaranty.



          NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce GMAC to enter into the Note, it is agreed
as follows:



          1.     DEFINITIONS. Capitalized terms used herein shall have the meanings
assigned to them in the Credit Agreement, unless the context otherwise requires
or unless otherwise defined herein. References to this “Guaranty” shall mean
this Guaranty, including all amendments, modifications and supplements and any
exhibits or schedules to any of the foregoing, and shall refer to the Guaranty
as the same may be in effect at the time such reference becomes operative.



D-1






 





          2.     THE
GUARANTY. The Guarantor hereby agrees as follows:



          2.1     Guaranty
of Borrower’s Obligations. Guarantor hereby unconditionally
guarantees to GMAC, and its respective successors, endorsees, transferees and
assigns, the prompt payment (whether at stated maturity, by acceleration or
otherwise) and performance of all of the Borrowers’ obligations and all other
liabilities of any kind of Borrowers arising under the Credit Agreement and/or
the Note plus all costs, fees and expenses of enforcement and collection under
this Guaranty, including, but not limited to, reasonable attorney’s fees
(collectively, the “Guarantor’s Obligations”). Guarantor agrees that this
Guaranty is a guaranty of payment and performance and not of collection and
that Guarantor’s Obligations under this Guaranty shall be primary, absolute and
unconditional, irrespective of, and unaffected by:



               (a)     the genuineness, validity, regularity, enforceability or any future
amendment of, or change in, Guarantor’s Obligations, the Credit Agreement, the
Note, the Loan Documents or any other agreement, document or instrument to
which any Borrower and/or Guarantor are or may become a party with GMAC in
connection therewith;



               (b)     the absence of any action to enforce this Guaranty or any other Loan
Document or the waiver or consent by GMAC with respect to any of the provisions
thereof;



               (c)     the existence, value or condition of, or failure to perfect GMAC’s
security interest against, any security for the liabilities, obligations and
agreements by the Borrowers under the Note or the Credit Agreement
(collectively, the “Obligations”) or any action, or the absence of any action,
by GMAC in respect thereof (including, without limitation, the release of any
such security); or



               (d)     any other action or circumstances which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor, it being
agreed by Guarantor that its obligations under this Guaranty shall not be
discharged until the payment and performance, in full, of all the Obligations.
Guarantor shall be regarded, and shall be in the same position, as principal
debtor with respect to the Obligations. Guarantor expressly waives all rights
he may have, now or in the future, under any statute, or at common law, or at
law or in equity, or otherwise, to compel GMAC to proceed in respect of the
Obligations against any Borrower or any other party or against any security for
the payment and performance of the Obligations before proceeding against, or as
a condition to proceeding against, Guarantor. Guarantor agrees that any notice
or directive given at any time to GMAC which is inconsistent with the waiver in
the immediately preceding sentence shall be null and void and may be ignored by
GMAC, and, in addition, may not be pleaded or introduced as evidence in any
litigation relating to this Guaranty for the reason that such pleading or
introduction would be at variance with the written terms of this Guaranty,
unless GMAC has or has specifically agreed otherwise in writing. It is agreed
between Guarantor and GMAC that the foregoing waivers are of the essence of the
transaction contemplated by the Loan Documents and that, but for this Guaranty
and such waivers, GMAC would decline to make or continue to make the Loans
evidenced by the Loan Documents.



          2.2     Demand
by GMAC. In addition to the terms of the Guaranty set forth in
Section 2.1 hereof, and in no manner imposing any limitation on such terms, it
is expressly



D-2






 





understood and agreed that if the then outstanding principal amount of the
Obligations (together with all accrued interest thereon) are declared to be
immediately due and payable in accordance with the terms of the Note, then,
Guarantor shall upon demand in writing therefor by GMAC to Guarantor, pay to
the holders of the Obligations the entire amount of Guarantor’s Obligations due
and owing to such holders under this Guaranty. Payment by Guarantor shall be
made to GMAC to be credited and applied upon the Obligations, in immediately
available federal funds to an account(s) designated by GMAC or at the address
set forth herein for the giving of notice to GMAC or at any other address that
may be specified in writing from time to time by GMAC.


          2.3     Enforcement
of Guaranty. This is a guaranty of payment and not of
collection. In no event shall GMAC have any obligation (although it is
entitled at its option) to proceed against any Borrower or any other person or
any real or personal property pledged to secure the Obligations before seeking
satisfaction from Guarantor, and GMAC may proceed, prior or subsequent to, or
simultaneously with, the enforcement of GMAC’s rights hereunder, to exercise
any right or remedy which it may have against any property, real or personal,
as a result of any lien it may have as security for all or any portion of the
Obligations.



          2.4     Waiver. In addition to the waivers contained in Section 2.1 hereof,
Guarantor waives and agrees that he shall not at any time insist upon, plead or
in any manner whatever claim or take the benefit or advantage of, any
appraisal, valuation, stay, extension, marshalling of assets or redemption
laws, or exemption, whether now or at any time hereafter in force, which may
delay, prevent or otherwise affect the performance by Guarantor of its
obligations under, or the enforcement by GMAC of, this Guaranty. Guarantor
hereby waives diligence (whether for non-payment or protest or of acceptance,
maturity, extension of time, change in nature or form of the Obligations,
acceptance of further security, release of further security, composition or
agreement arrived at as to the amount of, or the terms of, the Obligations,
notice of adverse change in any Borrower’s financial condition or any other
fact which might materially increase the risk to Guarantor), presentment and
demand with respect to any of the Obligations or all other demands whatsoever
and waives the benefit of all provisions of law which are or might be in
conflict with the terms of this Guaranty. Guarantor represents, warrants and
agrees that, as of the date of this Guaranty, its obligations under this
Guaranty are not subject to any defense against GMAC or any Borrower of any
kind. Guarantor further agrees that its obligations under this Guaranty shall
not be subject to any counterclaims, offsets or defenses against GMAC or
against any Borrower of any kind which may arise in the future other than those
arising due to the willful misconduct or gross negligence of GMAC.



          2.5     Benefits
of Guaranty. The provisions of this Guaranty are for the
benefit of GMAC and its successors, transferees, endorsees and assigns, and
nothing herein contained shall impair, as among the Borrowers and GMAC, the
Obligations under the Loan Documents. In the event all or any part of the
Obligations are transferred, indorsed or assigned by GMAC to any person or
persons in accordance with the provisions of the Note, any reference to “GMAC”
herein shall be deemed to refer equally to such person or persons.



D-3






 





          2.6     Modification
of Loan Documents, Etc. If GMAC shall at any time or
from time to time, with or without the consent of, or notice to, Guarantor:



               (a)     change or extend the manner, place or terms of payment of, or renew or
alter all or any portion of, the Obligations;



               (b)     take any action under or in respect of the Loan Documents in the
exercise of any remedy, power or privilege contained therein or available to it
at law, equity or otherwise, or waive or refrain from exercising any such
remedies, powers or privileges;



               (c)     amend or modify, in any manner whatsoever, the Loan Documents;



               (d)     extend or waive the time for any of Guarantor’s, any Borrower’s or any
other person’s performance of, or compliance with, any term, covenant or
agreement on its part to be performed or observed under the Loan Documents, or
waive such performance or compliance or consent to a failure of, or departure
from, such performance or compliance;



               (e)     take and hold security or collateral for the payment of the
Obligations guaranteed hereby or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in which
GMAC has been granted a lien, to secure any indebtedness of Guarantor or any
Borrower to GMAC;



               (f)     release anyone who may be liable in any manner for the payment of any
amounts owed by Guarantor or any Borrower to GMAC;



               (g)     modify or terminate the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of Guarantor or any
Borrower are subordinated to the claims of GMAC; and/or



               (h)     apply
any sums by whomever paid or however realized to any amounts
owing by Guarantor or any Borrower to GMAC in such manner as GMAC shall
determine in its discretion;



then GMAC shall not incur any liability to Guarantor pursuant hereto as a
result thereof, and no such action shall impair or release Guarantor’s
Obligations.


          2.7     Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective in the event any petition be filed by or against
any Borrower or any Guarantor for liquidation or reorganization, in the event
any Borrower or any Guarantor becomes insolvent or makes an assignment for the
benefit of creditors or in the event a receiver or trustee be appointed for all
or any significant part of any Borrower’s or Guarantor’s assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by GMAC, whether as a “voidable preference”, “fraudulent
conveyance”, or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Obligations shall be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.



D-4






 





          2.8     Subrogation. Guarantor shall not exercise any rights which it may
have acquired by way of subrogation under this Guaranty, by any payment made
hereunder or otherwise nor shall Guarantor seek any reimbursement from any
Borrower in respect of payments made by Guarantor hereunder, unless and until
all of the Obligations shall have been paid to GMAC and discharged, in full,
and if any payment shall be made to Guarantor on account of such subrogation or
reimbursement rights at any time when the Obligations shall not have been paid
and discharged in full, each and every amount so paid shall forthwith be paid
to GMAC to be credited and applied against the Obligations, whether matured or
unmatured.



               (a)     If, pursuant to applicable law, Guarantor, by payment or otherwise,
becomes subrogated to all or any of the rights of GMAC under any of the Loan
Documents, the rights of GMAC to which Guarantor shall be subrogated shall be
accepted by Guarantor “as is” and without any representation or warranty of any
kind by GMAC, express or implied, with respect to the legality, value, validity
or enforceability of any of such rights, or the existence, availability, value,
merchantability or fitness for any particular purpose of any collateral and
shall be without recourse to GMAC.



               (b)     If GMAC may, under applicable law, proceed to realize its benefits
under any of the Loan Documents giving GMAC a lien upon any collateral, whether
owned by any Borrower or by any other person, either by judicial foreclosure
or by non-judicial sale or enforcement, GMAC may, at its sole option, determine
which of its remedies or rights it may pursue without affecting any of its
rights and remedies under this Guaranty. If, in the exercise of any of its
rights and remedies, GMAC shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against the Borrower or any
other person, whether because of any applicable laws pertaining to “election of
remedies” or the like, Guarantor hereby consents to such action by GMAC and
waives any claim based upon such action, even if such action by GMAC shall
result in a full or partial loss of any rights of subrogation which Guarantor
might otherwise have had but for such action by GMAC. Any election of remedies
which results in the denial or impairment of the right of GMAC to seek a
deficiency judgment against any Borrower shall not impair Guarantor’s
obligation to pay the full amount of Guarantor’s Obligations hereunder. In the
event GMAC shall bid at any foreclosure or trustee’s sale or at any private
sale permitted by law or the Loan Documents, GMAC may bid all or less then the
amount of the Obligations and the amount of such bid need not be paid by GMAC
but shall be credited against the Obligations. The amount of the successful
bid at any such sale, conducted in a commercially reasonable manner, whether
GMAC or any other party is the successful bidder, shall be conclusively deemed
to be the fair market value of the collateral and the difference between such
bid amount and the remaining balance of the Obligations shall be conclusively
deemed to be the amount of the Obligations guaranteed under this Guaranty
(subject, in all cases to the limitations set forth herein), notwithstanding
that any present or future law or court decision or ruling may have the effect
of reducing the amount of any deficiency claim to which GMAC might otherwise be
entitled but for such bidding at any such sale.



          2.9     Continuing
Guaranty. Guarantor agrees that this Guaranty is a
continuing guaranty and shall remain in full force and effect until the payment
and performance in full of the Obligations.



D-5






 





          2.10     Security. As security for the payment and performance of Guarantor’s
Obligations under this Guaranty, Guarantor hereby grants to GMAC a security
interest in certain real property in accordance with that certain Deed of
Trust, Mortgage, Leasehold Mortgage, Leasehold Deed of Trust Security
Agreement, Fixture Filing, Assignment and Leases and Rents and Financing
Statement of even date herewith made by Guarantor in favor of GMAC.



          3.     DELIVERIES. IN A FORM SATISFACTORY TO GMAC, GUARANTOR SHALL DELIVER TO
GMAC, CONCURRENTLY WITH THE EXECUTION OF THIS GUARANTY AND THE NOTE, SUCH OF
THE LOAN DOCUMENTS AND OTHER INSTRUMENTS, CERTIFICATES AND DOCUMENTS AS ARE
REQUIRED TO BE DELIVERED BY GUARANTOR TO GMAC UNDER THE CREDIT AGREEMENT.



          4.     REPRESENTATIONS
AND WARRANTIES. To induce GMAC to make the loan as
provided in the Note, Guarantor makes the following representations and
warranties to GMAC, each and all of which shall survive the execution and
delivery of this Guaranty:



          4.1     Review
of Guaranty and Loan Documents. Guarantor has reviewed each of
the terms and conditions of this Guaranty and each of the other Loan Documents,
including, without limitation, the Credit Agreement and the Note.



          4.2     Financial
Benefit to Guarantor. Guarantor, as an affiliate of each
Borrower engaged in a common enterprise, is deriving a material financial
benefit from GMAC’s making and/or GMAC’s continuing to make the Loans to the
Borrowers.



          4.3     Enforceability. Each obligation under this Guaranty is legal, valid,
binding and enforceable against Guarantor in accordance with all of its
respective terms and conditions, subject to the effect of bankruptcy and other
laws affecting the rights of creditors generally.



          4.4     Litigation. There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court or other
governmental authority, pending, or, to the knowledge of Guarantor, threatened
against or affecting Guarantor or any of its property.



          5.     PERMITTED
ASSIGNMENT BY GMAC. GMAC may freely assign its rights and
delegate its duties under this Guaranty, but no such assignment or delegation
shall increase or diminish Guarantor’s Obligations hereunder. The consent of
Guarantor shall not be required for any such assignment or delegation and
failure to give notice shall not effect the validity or enforceability of any
such assignment or delegation or this Guaranty or subject GMAC to any
liability.



          6.     FURTHER
ASSURANCES. Guarantor agrees, upon the written request of
GMAC, to execute and deliver to GMAC, from time to time, any additional
instruments or documents reasonably considered necessary by GMAC to cause this
Guaranty to be, become or remain valid and effective in accordance with its
terms.



          7.     PAYMENTS
FREE AND CLEAR OF TAXES. All payments required to be made by
Guarantor hereunder shall be made to GMAC free and clear of, and without
deduction for, any and all present and future taxes, withholdings, levies,
duties, and other governmental charges (“Taxes”). Upon request by GMAC,
Guarantor shall furnish to GMAC a receipt for any



D-6






 





Taxes paid by Guarantor pursuant to
this Section 7 or, if no Taxes are
payable with respect to any payments required to be made by Guarantor
hereunder, evidence reasonably acceptable to GMAC that no such Taxes are
payable. If Taxes are paid by GMAC, Guarantor will upon demand of GMAC, and
whether or not such Taxes shall be correctly or legally asserted, indemnify
GMAC for such payments, together with any interest, penalties and expenses in
connection therewith plus interest thereon at the rate specified in the Note
(calculated as if such payments constituted overdue amounts of principal as of
the date of the making of such payments).


          8.     MISCELLANEOUS.



          8.1     Entire
Agreement; Amendments. This Guaranty, together with the other
Loan Documents, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements
relating to a guaranty of the loans and advances under the Loan Documents
and/or the Obligations and may not be amended or supplemented except by a
writing signed by Guarantor and GMAC.



          8.2     Headings. The headings in this Guaranty are for convenience of
reference only and are not part of the substance of this Guaranty.



          8.3     Severability. In the event that any one or more of the provisions
contained in this Guaranty shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision or provisions in every other respect and
the remaining provisions of this Guaranty shall not be in any way impaired.



          8.4     Notices. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by another, or whenever any of the
parties desires to give or serve upon another any such communication with
respect to this Guaranty, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and delivered as
follows:




		
	 	     (a)     If to GMAC, at:




	 
	General Motors Acceptance Corporation
	Mail Code B10-C76
	200 Renaissance Center
	Detroit, Michigan 48265-2000

Attn: David E. Ehlers
	Telecopy No. (313) 974-7683



D-7






 




	 	 	 
	 	 	
With a copy to:
	 	 	 
	 	 	
Vedder, Price, Kaufman & Kammholz
	 	 	
Suite 2300
	 	 	
222 North LaSalle Street
	 	 	
Chicago, Illinois 60601
	 	 	
Attn: Michael A. Nemeroff, Esq.
	 	 	
Telephone No.: (312) 609-7858
	 	 	
Telecopier No.: (312) 609-5005




		
	 	     (b)     If to Guarantor, at




	 	 
	

	

	

	Telephone No.: 	

	Telecopier No.: 	




or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered, in
person, by delivery service or by overnight courier service, with receipt
acknowledged, the date of telecopy transmission or three (3) Business Days
after the same shall have been deposited with the United States mail, postage
prepaid.


          8.5     Binding Effect. This Guaranty shall bind Guarantor and its respective
legatees, successors and assigns and shall inure to the benefit of GMAC.
Guarantor may not assign this Guaranty.



          8.6     Non-Waiver. The failure of GMAC to enforce any right or remedy
hereunder, or promptly to enforce any such right or remedy, shall not
constitute a waiver thereof, nor give rise to any estoppel against GMAC, nor
excuse Guarantor from its obligations hereunder. Any waiver of any such right
or remedy by GMAC must be in writing and signed by GMAC.



          8.7     Termination. This Guaranty shall terminate and be of no further force
or effect at such time as the Obligations shall be indefeasibly paid and
performed in full and the Note is terminated. Upon such termination, GMAC
shall deliver to Guarantor such documents as Guarantor may reasonably request
to evidence such termination.



          8.8     Governing Law. THE TERMS OF THIS GUARANTY SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
MICHIGAN (EXCLUSIVE OF ANY RULES AS TO CONFLICT OF LAWS) AND THE LAWS OF THE
UNITED STATES APPLICABLE THEREIN. GUARANTOR WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES
HEREUNDER, UNDER THE NOTE OR UNDER THE OTHER LOAN DOCUMENTS OR



D-8






 





RELATING TO EACH OF THE FOREGOING. AS PART OF THE CONSIDERATION FOR NEW
VALUE THIS DAY RECEIVED, GUARANTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF MICHIGAN AND WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO GUARANTOR AT THE
ADDRESS PROVIDED IN SECTION 8.4 ABOVE AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED THREE (3) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN
THE UNITED STATES MAILS, POSTAGE PREPAID. GUARANTOR WAIVES ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH
LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.


          8.9     Counterparts. This Guaranty may be executed in any number of
counterparts which shall individually and collectively constitute one
agreement.



[SIGNATURE PAGE FOLLOWS]




D-9






 





          IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as
of the date first written above.




	 	 	 
	 	
GUARANTOR:
	 	 	 
	 	


	 	 	 
	 	By:	
 

	 	Its:	
 




Accepted and acknowledged by:



GENERAL MOTORS ACCEPTANCE

CORPORATION



	 	 	 
	By:	

	 
	Name:	

	 
	Title:	

	 



D-10






 



EXHIBIT E

to



Construction Credit Agreement



FORM OF ASSIGNMENT OF INTEREST
IN CONSTRUCTION DOCUMENTS



          THIS ASSIGNMENT, made this      day of                , 200_,
by                     (“Borrower”)
and                          (“Tenant”) is to
and for the benefit of GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware
corporation (“GMAC”).



W I T N E S S E T H:



          WHEREAS, Capital Automotive L.P., a Delaware limited partnership
(“Capital”), and certain subsidiaries of Capital have entered into a
Construction Credit Agreement dated June 23, 2003 with GMAC (as amended or
supplemented from time to time, the “Credit Agreement”), the terms and
provisions of which are incorporated herein by reference, pursuant to which
GMAC has committed to make loans in the maximum principal amount of
$100,000,000 (the “Loan”) to Capital and its subsidiaries;



          WHEREAS, Tenant is the tenant and Borrower is the landlord pursuant to a
written lease (the lease and any amendments thereto are collectively referred
to as the “Lease”) for the property (“Property”) described on Exhibit “1”
attached hereto, which is incorporated herein by reference;



          WHEREAS, on                ,
200     Borrower did execute and deliver to GMAC certain
documents for the purpose of evidencing and securing the Loan (the “Loan
Documents”);



          WHEREAS, Tenant did on or about
                    enter into a construction
agreement (the “Contract”) with                (“Contractor”) for the site work
and construction of improvements on the Property;



          WHEREAS, Tenant is required to assign its interest in the Construction
Documents (as hereinafter defined) to Borrower pursuant to its Lease.



          WHEREAS, in connection with and as further security for the Loan, Borrower
has agreed to assign to GMAC all of Borrower’s interest in the Construction
Documents; and



          WHEREAS, Borrower and Tenant acknowledge that each will benefit from the
Loan made to Capital.



          NOW, THEREFORE, for and in consideration of the Loans from GMAC to Capital
and other good and valuable consideration, Tenant does hereby transfer, set
over and assign unto Borrower and Borrower does hereby transfer, set over and
assign unto GMAC, all of their respective right, title and interest to, and
under any and all documents and instruments relating to the construction of the
improvements contemplated by the Loan Documents, including, without limitation,
the Contract and any and all other construction contracts, architectural
contracts, engineering contracts, plans, specifications, drawings, surveys,
bonds, permits, licenses and other



E-1






 





governmental approvals (hereinafter collectively called the “Construction
Documents” with any one of the Construction Documents being referred to as a
“Construction Document”).


          THIS AGREEMENT IS MADE in order to additionally secure the payment by
Capital to GMAC of the indebtedness evidenced and secured by the above
mentioned Loan Documents, and the performance by Capital of each and every
obligation, covenant and agreement of Capital contained herein or in the Loan
Documents.



          This Assignment is for the purposes of security only, and it does not and
will not operate or have the effect of delegating to Borrower or GMAC any of
Tenant’s duties, responsibilities, or liabilities under any of the Construction
Documents until such time as Borrower or GMAC has so notified the other party
to a Construction Document, if applicable, and has assumed such duties,
responsibilities or liabilities in writing.



          Upon a default by Tenant under the Lease which is not cured as therein
provided, Borrower shall be and is hereby permitted to, at its option, exercise
the rights granted hereunder by notifying one or more of the parties of its
election. Tenant hereby authorizes any other party to any Construction
Document to rely upon notice from Borrower that Tenant is in default under any
of the Lease.



          Upon a default by Borrower under any of the Loan Documents which is not
cured as therein provided, GMAC shall be and is hereby permitted to, at its
option, exercise the rights granted hereunder by notifying one or more of the
parties of its election. Borrower and Tenant hereby authorize any other party
to any Construction Document to rely upon notice from GMAC that Borrower is in
default under any of the Loan Documents or the Loan.



          In the event that both Borrower and GMAC are entitled to exercise their
respective rights hereunder, the rights of Borrower are subject and subordinate
to the rights of GMAC.



          This Assignment shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, legal representatives,
successors and assigns. This instrument shall be construed in all respects
under the laws of the State of Michigan.



          WITNESS the hand and seal of the undersigned the day and year first above
written.




	 	 	 	 
	BORROWER:	
TENANT:
	 	 	 	 
	
	

	 	 	 	 
	By:	
	
By:	

	Its:	
	
Its:	




E-2






 



EXHIBIT 1



TO ASSIGNMENT OF INTERESTS IN CONSTRUCTION DOCUMENTS



Legal Description



E-3






 





EXHIBIT F

to

Construction Credit Agreement



FORM OF CONTRACTOR CONSENT AND
AGREEMENT



          The undersigned General Contractor (the “Undersigned”) has reviewed the
“Assignment of Interest in Construction Documents” (the “Assignment”) to be
executed and delivered by      (“Borrower”) and      
(“Tenant”) to GENERAL MOTORS ACCEPTANCE CORPORATION (“GMAC”) in connection with
the Loan (as defined in the Assignment). The Undersigned, who has, pursuant to
one or more of the “Construction Documents” (as defined in the Assignment),
performed or supplied, or agreed to perform or supply, certain services,
materials, and/or documents in connection with construction of the improvements
referred to in the Assignment, hereby ratifies the agreements set forth in said
one or more of the Construction Documents and hereby acknowledges and consents
to the Assignment. The Undersigned does hereby warrant and represent to GMAC
and Borrower that no default exists under the terms of any Construction
Document between Tenant and the Undersigned. The Undersigned does hereby
agree: (a) that in the event of any uncured default by Borrower under the
terms of the “Loan Documents” (as defined in the Assignment), GMAC shall be
entitled to use without further payment or charge of any kind any and all
plans, specifications, drawings and surveys prepared or owned by the
Undersigned relating to the construction of the improvements contemplated by
said Loan Documents and to enforce any contracts or other agreements which
Tenant has with regard to the Undersigned; (b) that in the event of any uncured
default by Tenant under the “Lease” (as defined in the Assignment), Borrower
shall be entitled to use without further payment or charge of any kind any and
all plans, specifications, drawings and surveys prepared or owned by the
Undersigned relating to the construction of the improvements contemplated by
said Loan Documents and to enforce any contracts or other agreements which
Tenant has with regard to the Undersigned; and (c) that in the event of any
uncured default by Borrower under the terms of said Loan Documents, the
Undersigned shall, upon receipt of written notice and demand of GMAC, continue
performance on behalf of GMAC in accordance with the agreement of the
Undersigned for the performing or supplying of such services, materials and/or
documents; and (d) that in the event of any uncured default by Tenant under the
Lease, the Undersigned shall, upon receipt of written notice and demand of
Borrower, continue performance on behalf of Borrower in accordance with the
agreement of the Undersigned for the performing or supplying of such services,
materials and/or documents; (e) that in the event of any uncured default by
Tenant under the terms of any agreement between Tenant and the Undersigned,
then the Undersigned shall deliver to GMAC and Borrower, by certified United
States mail, postage prepaid, return receipt requested, written notice of such
default and the action required to cure the same, and GMAC and/or Borrower
shall have a reasonable time (but in no event less than ten (10) days after
receipt of such notice) within which GMAC and/or Borrower shall have the right,
but not the obligation, to cure such default, and the delivery of such notice
of default and the failure of GMAC and/or Borrower to cure the same within the
time allowed, as aforesaid, shall be conditions precedent to the exercise of
any right or remedy of the Undersigned arising by reasons of such default; and
(f) that the Undersigned shall not enter into any material modification or
amendment of any agreement between Tenant and the Undersigned without the prior
written consent of Borrower. In the event



F-1






 





that both Borrower and GMAC are entitled to exercise their respective
rights hereunder, the rights of Borrower are subject and subordinate to the
rights of GMAC.


          This Consent and Agreement is given by the Undersigned for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Undersigned, and is intended to induce GMAC to make the
Loan to Capital Automotive L.P., a Delaware limited partnership. This Consent
and Agreement shall automatically terminate with respect to all matters
pertaining to GMAC if no disbursement of any portion of the proceeds of the
Loan is ever made by GMAC or, if disbursement is made, upon repayment in full
of the Loan and release by GMAC of its security therefor.



          WITNESS the hand and seal of the Undersigned, as of the      day of
     , 200    .




	 	 	 
	 	
GENERAL CONTRACTOR:
	 	 	 
	 	By:	


	 	Name:	


	 	Its:	





F-2






 



EXHIBIT G

to

Construction Credit Agreement



FORM OF AGREEMENT OF
SUBORDINATION OF LIEN BY CONTRACTOR

	 	 	 
	STATE OF  	 	 
	 	
	 
	 
	COUNTY OF  	 	 
	 	
	 



          THIS AGREEMENT is made and entered into effective this the      day of
     , 200_, by the Undersigned in favor of GENERAL MOTORS ACCEPTANCE
CORPORATION, a Delaware corporation (hereinafter referred to as “GMAC”).



          WHEREAS, the Undersigned has recently furnished and/or is now furnishing,
or will in the future furnish, labor, materials, and services to certain real
property located at      , and being more particularly described
in Exhibit “1” attached hereto and specifically incorporated herein by
reference thereto (hereinafter referred to as the “Property”);



          WHEREAS,
      (hereinafter referred to as “Tenant”) is the
tenant and       (hereafter referred to as “Borrower”) is the
landlord pursuant to a written lease (the lease and any amendments thereto are
collectively referred to as the “Lease”) for the property described on Exhibit
“1” attached hereto (hereafter referred to as the “Property”), which is
incorporated herein by reference;



          WHEREAS, Tenant is in the process of constructing certain improvements to
the automotive dealership facility on the Property; and



          WHEREAS, Borrower executed or will execute a [Mortgage or Deed of Trust]
to be recorded in the records of      , as amended, mortgaging or
conveying the Property to GMAC to secure a Loan in the amount of
$      on
the Property and other obligations of Borrower.



          NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Undersigned does hereby subordinate in
favor of GMAC, its successors and assigns, any and all liens and/or rights to
claims of lien which the Undersigned may now have or hereafter have against the
Property by reason of having furnished labor, materials, and/or services
expended, including, without limitation, any claims accruing for past, present,
or future materials or services placed or performed, or to be placed or
performed, in conjunction with the Property.



          THE UNDERSIGNED acknowledges and understands that this Subordination of
Lien is executed for the purposes of inducing GMAC to disburse Loan funds
totaling $      secured by the Property pursuant to that certain
Construction Credit Agreement dated as of June 23, 2003 between Capital
Automotive L.P., a Delaware limited partnership (“Capital”), certain
subsidiaries of Capital and GMAC, and of inducing      (“Title Company”)
to issue a Policy of Title Insurance insuring that GMAC has a first priority
mortgage loan secured by the



G-1






 





Property; and the Undersigned further acknowledges and understands that
Borrower, GMAC and its agents and attorneys, and Title Company all rely upon
this Subordination of Lien.


          THE UNDERSIGNED warrants and covenants that all subcontractors, laborers,
materialmen, and suppliers employed by the Undersigned in conjunction with the
improvements made to the Property, have subordinated or will subordinate any
claim, demand, or right to a claim of lien against the Property in favor of
GMAC; and the Undersigned further warrants and covenants that the Undersigned
has not and will not assign its claim(s) for payment.



          EACH PERSON executing this instrument further warrants that he has full
authority to execute this Subordination of Lien on behalf of the Undersigned.



          IN WITNESS WHEREOF, the Undersigned has caused this Subordination of Lien
to be executed under seal, as of the date first above written.




	 	 	 
	 	
GENERAL CONTRACTOR:
	 	 	 
	 	By:	


	 	Name:	


	 	Its:	





Subscribed and sworn to before me this

     day of           , 200_.




	 
	

	NOTARY PUBLIC
	My Commission Expires:
	 
	[AFFIX NOTARY SEAL]



G-2






 



EXHIBIT 1



TO SUBORDINATION OF LIEN BY CONTRACTOR



Legal Description



(See Attached)



G-3






 





EXHIBIT H

to

Construction Credit Agreement



FORM OF OPINION OF BORROWER’S COUNSEL



, 200



General Motors Acceptance Corporation

Mail Code B10-C76

200 Renaissance Center

Detroit, Michigan 48265-2000



          Re:     GMAC/Capital
Automotive L.P.



Gentlemen:



          Reference is hereby made to that certain Construction Credit Agreement
dated as of June 23, 2003 (the “Credit Agreement”) by and among Capital
Automotive L.P., a Delaware limited partnership (“Capital”), certain real
estate subsidiaries thereof (Capital and the real estate subsidiaries party to
the Credit Agreement are collectively referred to as the “Borrowers”) and
General Motors Acceptance Corporation, a Delaware corporation
(“GMAC”). In
connection therewith, we have acted as counsel for
      [INSERT
NAME OF NEWLY FORMED BORROWER] (“New
Borrower”) [and       (the
“Guarantor”)] in connection with the transactions contemplated by the Credit
Agreement [(New Borrower and Guarantor are collectively referred to as the
“Loan Parties”). Unless otherwise indicated, capitalized terms used herein
without definition shall have the respective meanings set forth in the Credit
Agreement.



          Based upon the foregoing, we are of the opinion that:



          1.     New Borrower is a [limited partnership or limited liability company, as
applicable,] validly existing and in good standing under the laws of the
jurisdiction of its organization, as applicable, and New Borrower is duly
qualified to do business as a foreign [     ] in each jurisdiction where
it is required to be qualified.



          2.     Guarantor is a [limited partnership or limited liability company, as
applicable,] validly existing and in good standing under the laws of the
jurisdiction of its organization, as applicable, and Guarantor is duly
qualified to do business as a foreign [     ] in each jurisdiction where
it is required to be qualified.



          3.     The
execution and delivery of the agreements listed on Exhibit A,
together with such certificates and instruments executed in connection
therewith (collectively, the “Loan Documents”), by the Loan Parties and the
performance by each Loan Party of its obligations thereunder (i) are within
each Loan Party’s corporate, limited partnership or limited liability company
powers, as applicable, (ii) have been duly authorized by all necessary
corporate, limited partnership or limited liability company action of such Loan
Party, as applicable, (iii) do not contravene (a) any charter, by-laws,
partnership agreement, operating agreement, or other



H-1






 





organizational document, as applicable, of such Loan Party, or (b) any law
or contractual restriction affecting such Loan Party or its properties and (iv)
do not result in or require the creation of any lien or other encumbrance upon
or with respect to any Loan Party’s property, except as may be created in the
Loan Documents.


          4.     No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for (i)
the due execution, delivery, recordation, consummation and performance by any
Loan Party of the Loan Documents, or (ii) the exercise by GMAC of its rights
and remedies under the Loan Documents.



          5.     The Loan Documents have been duly executed and delivered by each Loan
Party.



          6.     The Loan Documents are the legal, valid and binding obligations of each
Loan Party and are enforceable against each Loan Party, in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
limiting creditors’ rights or equitable principles generally. [EXCEPT OUT
MORTGAGE FOR PURPOSES OF LOCAL STATE LAW]



          7.     Except
as set forth on Exhibit B attached hereto, there is no pending
action or proceeding before any court, governmental agency or arbitrator
against or directly involving any Loan Party and, to the best of our knowledge,
there is no threatened action or proceeding affecting any Loan Party or any of
the assets of any Loan Party before any court, governmental agency or
arbitrator which, in any case, may (i) materially and adversely affect the
financial condition or operation of any Loan Party, (ii) which seeks to
restrain or would otherwise have a material adverse effect on the transactions
contemplated by the Loan Documents or (iii) which would affect the validity or
enforceability of all or any of the Loan Documents.



          8.     No Loan Party is not in default under any order, award or decree of any
court, arbitrator, or governmental authority binding upon or affecting any Loan
Party or by which any Loan Party’s assets may be bound or affected, which
default would have a material adverse effect on the business, operation, assets
or condition of any Loan Party, and no such order, award or decree materially
adversely affects the ability of any Loan Party to carry on its business as
currently conducted or the ability of any Loan Party to perform its obligations
under the Loan Documents.



          Our opinion is qualified by reference to (a) the fact that certain
remedial provisions in the Credit Agreement and the Loan Documents may be
rendered invalid or unenforceable by applicable laws, which laws, however, do
not in our opinion make the remedies provided in such documents inadequate for
the realization of the benefits and security intended to be provided thereby
and (b) the effect upon the enforceability of the Loan Documents of bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting generally the
enforcement of creditors’ rights.



          We understand and acknowledge that you are relying on the opinion set
forth herein in entering into the transactions contemplated by the Credit
Agreement.




	 
	Very truly yours,



H-2






 



EXHIBIT 1



LOAN DOCUMENTS



[LIST ALL TRANSACTION DOCUMENTS

TO BE EXECUTED BY EACH LOAN PARTY

IN CONNECTION WITH THE CREDIT AGREEMENT]



H-3






 





EXHIBIT 2



LITIGATION



[TO BE PROVIDED BY LOAN PARTIES’ COUNSEL]



H-4






 





EXHIBIT I

to

Construction Credit Agreement



FORM OF SUBORDINATION
AGREEMENT



          This
Subordination Agreement (“Agreement”) is executed and effective as of
the      day of
     ,
      by and between      
[INSERT NAME ENTITY ACTING AS PROPERTY MANAGER]
(“Property Manager”) and
GENERAL MOTORS ACCEPTANCE CORPORATION, a Delaware corporation
(“GMAC”).



          Reference is made to that certain Construction Credit Agreement dated as
of June 23, 2003 among Capital Automotive L.P., a Delaware limited partnership
(“Capital”), and certain Real Estate Subsidiaries of Capital party thereto
(collectively, the “Borrowers”), and GMAC (as amended, modified or restated
from time to time, the “Credit Agreement”). Capitalized terms used herein
which are not otherwise defined shall have the meanings assigned to such terms
in the Credit Agreement.



          The
Property Manager (referred to herein as the “Subordinated
Party”)
provides, or may in the future provide, certain management, consulting and
professional services to Borrowers. In connection therewith, Borrowers are
obligated, or may in the future become obligated, for certain costs, fees and
expenses of the Subordinated Party in connection with providing such services
to Borrowers (collectively, the “Management Expenses”).



          [The Property Manager is an Affiliate of one or more Borrowers] [CONFIRM
RELATIONSHIP] and as such, will benefit, directly and indirectly, from certain
Loans from GMAC to Borrowers pursuant to the Credit Agreement.



          In order to induce GMAC to make such Loans, the Subordinated Party hereby
(i) subordinates in right of payment any and all indebtedness now or hereafter
owing to the Subordinated Party from Borrowers, including, without limitation,
all Management Expenses, to the prior indefeasible and final payment in full by
Borrowers of Borrowers’ Liabilities outstanding to GMAC under the Credit
Agreement, (ii) agrees not to take any Lien, claim or encumbrance on any assets
of the Borrowers as security for the Management Expenses, (iii) agrees not to
ask, demand, sue for, take or receive payments in respect of indebtedness of
any Borrower to the Subordinated Party, including, without limitation, any
Management Expenses, after the occurrence of an “Event of Default”, and that
any Management Expenses received after an “Event of Default” shall be held in
trust for GMAC and delivered to GMAC upon demand, and (iv) agrees that if GMAC
forecloses on any Lien, including without limitation, the Liens granted to GMAC
in the Mortgaged Property described in the Credit Agreement, GMAC may terminate
the Subordinated Party’s right to perform such management services for
Borrowers and the Subordinated Party’s right to receive any Management
Expenses. The Subordinated Party hereby agrees that GMAC shall not be
obligated to provide to the Subordinated Party notice of any Event of Default
under the Credit Agreement and that any such notice which GMAC may deliver to
Borrowers shall for all purposes be deemed to have also been delivered to the
Subordinated Party.



I-1






 





          Each Borrower and the Subordinated Party hereby covenants, agrees,
represents and warrants to GMAC that as long as any Borrowers’ Liabilities
remain outstanding under the Credit Agreement (i) Management Expenses shall
consist only of the reimbursement of expenses actually incurred by the
Subordinated Party and shall not consist of any payments related to the
revenue, profits or financial or operating performance of any Borrower, and
(ii) Borrowers shall not have at any time outstanding or accrued expenses or
other obligations to the Subordinated Party and/or any Affiliates of the
Subordinated Party in excess of an aggregate amount of $50,000.



          The Subordinated Party further agrees that upon any distribution of the
assets or readjustment of the indebtedness of any Borrower whether by reason of
liquidation, composition, bankruptcy, arrangement, receivership, assignment for
the benefit of the Subordinated Party or any other action or proceeding
involving readjustment of all or any of the indebtedness owing to the
Subordinated Party from any Borrower hereby subordinated, or the application of
the assets of any Borrower to the payment or liquidation thereof, GMAC shall be
entitled to receive payment in full of any and all Borrowers’ Liabilities then
owing to GMAC by Borrowers prior to the payment of all or any part of the
indebtedness owing to the Subordinated Party from Borrowers hereby
subordinated; and in order to enable GMAC to enforce its rights hereunder in
any such action or proceeding, GMAC is hereby irrevocably authorized and
empowered in its discretion to make and present for and on behalf of the
Subordinated Party such proofs of claim against Borrowers on account of the
indebtedness owing to the Subordinated Party from Borrowers hereby subordinated
as it may deem expedient or proper and to vote such proofs of claim in any such
proceeding and to receive and collect any and all dividends or other payments
or disbursements made thereon in whatever form the same may be paid or issued
and to apply same on account of any Borrowers’ Liabilities owing to GMAC by
Borrower.



          The Subordinated Party further agrees to execute and deliver to GMAC, such
assignments or other documents as may be required in order to enable GMAC to
enforce any and all such claims and to collect any and all dividends or other
payments or disbursements which may be made at any time on account of all or
any part of the indebtedness owing to the Subordinated Party from Borrowers
hereby subordinated.



          In the event that the Subordinated Party shall receive any payment or
distribution with respect to any indebtedness owing to the Subordinated Party
from any Borrower at any time or under any circumstances not permitted by this
Agreement, the Subordinated Party shall hold the same in trust, as trustee, for
GMAC and shall promptly deliver the same to GMAC in precisely the form received
(except for the endorsement or assignment by the Subordinated Party where
necessary) for application to the Borrowers’ Liabilities.



          The Subordinated Party hereby agrees not to assign, transfer, encumber or
subordinate at any time while this Agreement remains in effect any right, claim
or interest of any kind in or to any of the indebtedness owing to the
Subordinated Party from any Borrower hereby subordinated without the prior
written consent of GMAC.



          No renewal or extension of time of payment of Borrowers’ Liabilities owing
by any Borrower to GMAC and no release or surrender of any security for
Borrowers’ Liabilities and no delay in the enforcement of payment of such
obligations or in the enforcement of any remedies



I-2






 





under this Agreement or any Other Agreement and no delay or omission in
exercising any right or power under this Agreement or any Other Agreement shall
in any manner impair or affect the rights of GMAC hereunder. The Subordinated
Party waives notice of the creation, existence, extension and renewal of any
and all of Borrowers’ Liabilities.


          This Agreement shall be a continuing agreement and shall be irrevocable
and shall remain in full force and effect until all of Borrowers’ Liabilities
owing by Borrowers to GMAC shall have been finally and indefeasibly paid in
full. This Agreement shall inure to the benefit of GMAC, and its successors
and assigns, and shall bind the Subordinated Party and its successors and
assigns.



THIS AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS (AND
NOT THE CONFLICT OF LAWS RULES) OF THE STATE OF MICHIGAN GOVERNING CONTRACTS TO
BE PERFORMED ENTIRELY WITHIN SUCH STATE. EACH SUBORDINATED PARTY HEREBY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN THE COUNTY OF WAYNE IN THE STATE OF MICHIGAN OR, AT THE SOLE OPTION OF
GMAC, IN ANY OTHER COURT IN WHICH GMAC SHALL INITIATE LEGAL OR EQUITABLE
PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN
CONTROVERSY. SUBORDINATED PARTY AND EACH BORROWER WAIVES ANY OBJECTION OF
FORUM NONCONVENIENS AND VENUE. SUBORDINATED PARTY AND EACH BORROWER FURTHER
WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY MESSENGER, CERTIFIED MAIL OR REGISTERED MAIL
DIRECTED TO THE PARTY AT THE ADDRESS SET FORTH BELOW AND SERVICE SO MADE SHALL
BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR THREE BUSINESS
(3) DAYS AFTER THE SAME SHALL HAVE BEEN POSTED TO SUCH PARTY’S ADDRESS.
SUBORDINATED PARTY AND EACH BORROWER FURTHER WAIVES ANY RIGHT SUCH PARTY MAY
OTHERWISE HAVE TO COLLATERALLY ATTACK ANY JUDGMENT ENTERED AGAINST SUCH PARTY.
SUBORDINATED PARTY AND EACH BORROWER IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.


[SIGNATURES FOLLOW]



I-3






 





(Subordination Agreement Signature Page)



          Executed and effective as of the date first above written.




	 	 	 
	 	


	 	 	
[PROPERTY MANAGER]
	 	 	 
	 	By:	


	 	Its:	





ACKNOWLEDGED AND AGREED to this

      day
of          ,
200



GENERAL MOTORS ACCEPTANCE

CORPORATION



	 	 
	By:	

	Its:	




I-4






 



CONSENT



The undersigned, as Representative of each of the Borrowers, acknowledges
receipt of a copy of the foregoing Subordination Agreement, consents to all of
the terms and conditions thereof, and agrees that no Borrower will pay any
Management Expenses, except as provided therein. In the event of any breach of
the provisions of this Agreement, Borrowers agree that, in addition to any
other rights and remedies which GMAC may have under the documents, agreements
and instruments evidencing GMAC’s financing arrangements, all of Borrower’s
Liabilities shall, without notice or demand, become immediately due and payable
unless GMAC shall otherwise elect. Borrowers agree to mark their records to
reflect the subordination of all Management Expenses.



	 	 	 	 	 
	 	 	CAPITAL AUTOMOTIVE L.P.
	 	 	 	 	 
	 	 	
By:
	 	Capital Automotive REIT, a Maryland
	 	 	 	 	real estate investment trust
	 	 	 	 	Its: General Partner




	 	 	 	 	 
	 	 	By:	 	

	 	 	Its:	 	





I-5