EXHIBIT 10.20
CREDIT AGREEMENT
DATED AS OF OCTOBER 17, 2003
AMONG
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
AS BORROWER
AND
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT AND LEAD ARRANGER
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
AS LENDERS
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................. 2
ARTICLE II THE CREDIT.............................................................. 19
2.1 Generally............................................................... 19
2.2 Ratable and Non Ratable Advances........................................ 20
2.3 Final Principal Payment................................................. 20
2.4 Unused Fee.............................................................. 20
2.5 Other Fees.............................................................. 20
2.6 Minimum Amount of Each Advance.......................................... 20
2.7 Optional Prepayments; Mandatory Prepayments; Release of Properties...... 21
2.8 Method of Selecting Types and Interest Periods for New Advances......... 21
2.9 Conversion and Continuation of Outstanding Advances..................... 22
2.10 Changes in Interest Rate, Etc........................................... 23
2.11 Rates Applicable After Default.......................................... 23
2.12 Method of Payment....................................................... 23
2.13 Notes; Telephonic Notices............................................... 24
2.14 Interest Payment Dates; Interest and Fee Basis.......................... 24
2.15 Notification of Advances, Interest Rates and Prepayments................ 24
2.16 Swingline Advances...................................................... 24
2.17 Lending Installations................................................... 25
2.18 Non-Receipt of Funds by the Administrative Agent........................ 25
2.19 Replacement of Lenders under Certain Circumstances...................... 26
2.20 Procedures for Addition of Collateral Pool Assets....................... 26
2.21 Usury................................................................... 27
ARTICLE IIA LETTER OF CREDIT SUBFACILITY........................................... 28
2A.1 Obligation to Issue..................................................... 28
2A.2 Types and Amounts....................................................... 28
2A.3 Conditions.............................................................. 28
2A.4 Procedure for Issuance of Facility Letters of Credit.................... 29
2A.5 Reimbursement Obligations; Duties of Issuing Bank....................... 30
2A.6 Participation........................................................... 30
2A.7 Payment of Reimbursement Obligations.................................... 31
2A.8 Compensation for Facility Letters of Credit............................. 32
2A.9 Letter of Credit Collateral Account..................................... 32
ARTICLE III CHANGE IN CIRCUMSTANCES................................................ 33
3.1 Yield Protection........................................................ 33
3.2 Changes in Capital Adequacy Regulations................................. 34
3.3 Availability of Types of Advances....................................... 34
3.4 Funding Indemnification................................................. 34
3.5 Taxes................................................................... 34
3.6 Lender Statements; Survival of Indemnity................................ 36
ARTICLE IV CONDITIONS PRECEDENT.................................................... 37
4.1 Initial Advance......................................................... 37
4.2 Each Advance............................................................ 40
ARTICLE V REPRESENTATIONS AND WARRANTIES........................................... 40
5.1 Existence............................................................... 40
5.2 Authorization and Validity.............................................. 40
5.3 No Conflict; Government Consent......................................... 40
5.4 Financial Statements; Material Adverse Effect........................... 41
5.5 Taxes................................................................... 41
5.6 Litigation and Guarantee Obligations.................................... 41
5.7 Subsidiaries............................................................ 41
5.8 ERISA................................................................... 41
5.9 Accuracy of Information................................................. 42
5.10 Regulation U............................................................ 42
5.11 Material Agreements..................................................... 42
5.12 Compliance With Laws.................................................... 42
5.13 Ownership of Projects................................................... 42
5.14 Investment Company Act.................................................. 42
5.15 Public Utility Holding Company Act...................................... 42
5.16 Solvency................................................................ 42
5.17 Insurance............................................................... 43
5.18 REIT Status............................................................. 43
5.19 Title to Property....................................................... 43
5.20 Environmental Matters................................................... 44
5.21 Collateral Pool Assets.................................................. 44
5.22 Office of Foreign Asset Control......................................... 46
ARTICLE VI COVENANTS............................................................... 46
6.1 Financial Reporting..................................................... 47
6.2 Use of Proceeds......................................................... 48
6.3 Notice of Default....................................................... 48
6.4 Conduct of Business..................................................... 48
6.5 Taxes................................................................... 48
6.6 Insurance............................................................... 48
6.7 Compliance with Laws.................................................... 48
6.8 Maintenance of Properties............................................... 49
6.9 Inspection.............................................................. 49
6.10 Maintenance of Status................................................... 49
6.11 Dividends............................................................... 49
6.12 No Change in Control.................................................... 49
6.13 Delivery of Subsidiary Guaranties....................................... 49
6.14 Intentionally Omitted................................................... 49
6.15 Acquisitions and Investments............................................ 49
6.16 Liens................................................................... 50
6.17 Affiliates.............................................................. 51
6.18 Intentionally Omitted................................................... 51
6.19 Variable Interest Indebtedness.......................................... 51
6.20 Consolidated Net Worth.................................................. 51
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6.21 Indebtedness and Cash Flow Covenants.................................... 51
6.22 Environmental Matters................................................... 51
6.23 Permitted Investments................................................... 52
6.24 Limitation on Unsecured Indebtedness.................................... 52
6.25 Encumbrances............................................................ 53
6.26 Approval of Leases...................................................... 53
ARTICLE VII DEFAULTS............................................................... 53
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES........................ 55
8.1 Acceleration............................................................ 55
8.2 Amendments.............................................................. 56
8.3 Preservation of Rights.................................................. 56
8.4 Foreclosure............................................................. 56
8.5 Insolvency of Borrower.................................................. 58
ARTICLE IX GENERAL PROVISIONS...................................................... 58
9.1 Survival of Representations............................................. 58
9.2 Governmental Regulation................................................. 58
9.3 Intentionally Omitted................................................... 58
9.4 Headings................................................................ 58
9.5 Entire Agreement........................................................ 58
9.6 Several Obligations; Benefits of this Agreement......................... 58
9.7 Expenses; Indemnification............................................... 58
9.8 Numbers of Documents.................................................... 59
9.9 Accounting.............................................................. 59
9.10 Severability of Provisions.............................................. 59
9.11 Nonliability of Lenders................................................. 59
9.12 CHOICE OF LAW........................................................... 59
9.13 CONSENT TO JURISDICTION................................................. 59
9.14 WAIVER OF JURY TRIAL.................................................... 60
ARTICLE X THE ADMINISTRATIVE AGENT................................................. 60
10.1 Appointment............................................................. 60
10.2 Powers.................................................................. 60
10.3 General Immunity........................................................ 60
10.4 No Responsibility for Loans, Recitals, etc.............................. 60
10.5 Action on Instructions of Lenders....................................... 61
10.6 Employment of Agents and Counsel........................................ 61
10.7 Reliance on Documents; Counsel.......................................... 61
10.8 Administrative Agent's Reimbursement and Indemnification................ 61
10.9 Rights as a Lender...................................................... 62
10.10 Lender Credit Decision.................................................. 62
10.11 Successor Administrative Agent.......................................... 62
10.12 Notice of Defaults...................................................... 63
10.13 Requests for Approval................................................... 63
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10.14 Defaulting Lenders...................................................... 63
ARTICLE XI SETOFF; RATABLE PAYMENTS................................................ 64
11.1 Setoff.................................................................. 64
11.2 Ratable Payments........................................................ 64
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................... 64
12.1 Successors and Assigns.................................................. 64
12.2 Participations.......................................................... 65
12.3 Assignments............................................................. 65
12.4 Dissemination of Information............................................ 66
12.5 Tax Treatment........................................................... 66
ARTICLE XIII NOTICES............................................................... 67
13.1 Giving Notice........................................................... 67
13.2 Change of Address....................................................... 67
ARTICLE XIV COUNTERPARTS........................................................... 67
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CREDIT AGREEMENT
This Credit Agreement, dated as of October 17, 2003, is among Glimcher
Properties Limited Partnership, a limited partnership organized under the laws
of the State of Delaware (the "Borrower"), KeyBank National Association, a
national banking association, and the several banks, financial institutions and
other entities from time to time parties to this Agreement (collectively, the
"Lenders") and KeyBank National Association, not individually, but as
"Administrative Agent."
RECITALS
A. The Borrower is primarily engaged in the business of
purchasing, owning, operating, leasing and managing retail properties.
B. The Borrower has requested that the Lenders make loans
available to the Borrower pursuant to the terms of this Agreement and the
Administrative Agent act as administrative agent for the Lenders. The
Administrative Agent and the Lenders have agreed to do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"ABR Applicable Margin" means zero.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power) of the
outstanding partnership interests of a partnership.
"Adjusted Collateral Pool Net Operating Income" means, as of any date,
(i) the sum of (A) an annualized amount calculated by multiplying the aggregate
Net Operating Income for the most recent fiscal quarter of the Consolidated
Group for which financial results have been reported from all Community Centers
then qualifying as Eligible Collateral Pool Properties by the numeral four (4)
plus (B) the aggregate Net Operating Income for the most recent period of twelve
(12) consecutive months for which financial results have been reported from all
Regional Malls then qualifying as Eligible Collateral Pool Properties, less (ii)
an annual capital reserve amount with respect to such Eligible Collateral Pool
Properties equal to (A) $0.15 per square foot of gross leaseable area for all
such Community Centers and $0.25 per square foot of gross leaseable area for all
such Regional Malls.
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"Adjusted Annual EBITDA" shall mean, as of the date of calculation, an
annualized amount determined by taking the Consolidated Net Income for the
twelve (12) most recent months for which financial results have been reported,
as adjusted by (a) deducting lease termination fees and adding or deducting for,
as appropriate, any adjustment made under GAAP for straight lining of rents,
gains or losses from sales of assets, accrued distributions to owners of
minority interests, other extraordinary items, real estate related depreciation,
amortization and interest expense (including the Consolidated Group Pro Rata
Share of such deductions and such adjustments made under GAAP); (b) deducting an
annual capital reserve amount equal to the aggregate of (i) $0.15 per square
foot times the gross leaseable area of Community Centers owned by the
Consolidated Group at the end of such period, (ii) $0.25 per square foot times
the gross leaseable area of Regional Malls owned by the Consolidated Group at
the end of such period, (iii) the product of (A) the Consolidated Group Pro Rata
Share multiplied by (B) $0.15 per square foot times the gross leaseable area of
Community Centers owned by Investment Affiliates at the end of such period, and
(iv) the product of (A) the applicable Consolidated Group Pro Rata Share
multiplied by (B) $0.25 per square foot times the gross leaseable area of
Regional Malls owned by Investment Affiliates at the end of such period.
"Adjusted Funds From Operations" shall mean Funds From Operations less
Preferred Dividends.
"Adjusted Leverage EBITDA" means, for any period, Adjusted Annual
EBITDA for such period (i) less that portion of positive Net Operating Income
attributable to any Projects sold during the 12 month period to which such
positive Net Operating Income applies, (ii) less that portion of positive Net
Operating Income attributable to any Projects acquired during such 12 month
period and (iii) plus an amount calculated by annualizing the Consolidated Group
Pro Rata Share of the actual Net Operating Income of any Projects acquired by an
Investment Affiliate during such period, calculated as if they were owned 100%
for the entire 12 month period.
"Administrative Agent" means KeyBank National Association in its
capacity as agent for the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by one or more of the Lenders to the Borrower
of the same Type and, in the case of LIBOR Rate Advances, for the same LIBOR
Interest Period, including Swingline Advances.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the aggregate of the
then-current Commitments of all the Lenders, which is, as of the Agreement
Execution Date, $150,000,000.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect from time to time.
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"Agreement Execution Date" means the date this Agreement has been fully
executed and delivered by all parties hereto.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances and Facility Letter of Credit Obligations.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means, as applicable, the ABR Applicable Margin or
the LIBOR Applicable Margin which are used in calculating the interest rate
applicable to the various Types of Advances.
"Appraisal" shall mean an appraisal of a Collateral Pool Asset
commissioned by the Administrative Agent, and acceptable to the Administrative
Agent and Required Lenders, in compliance with the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as amended, and the regulations
promulgated thereunder ("FIRREA") and with the Uniform Standards of Professional
Appraisal Practice, which appraisal may be updated not more often than annually
at the Lenders' expense if the Administrative Agent believes in good faith that
there has been a material reduction in the value of such Collateral Pool Asset.
"Appraised Value" means the "as-is" appraised value of any Collateral
Pool Asset as shown on the most recent Appraisal thereof.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President and Chief Executive
Officer, Executive Vice President and Chief Operating Officer, Vice President
and Chief Financial Officer, Vice President, Controller and Chief Accounting
Officer or Executive Vice President and General Counsel of the general partner
of Borrower, acting singly.
"Borrower" means Glimcher Properties Limited Partnership, a limited
partnership organized under the laws of the State of Delaware, and its
successors and assigns.
"Borrowing Base" means, as of any date, the aggregate Collateral Pool
Asset Values of each then-current Eligible Collateral Pool Asset.
"Borrowing Base Availability" means, as of any date, the lesser of (i)
sixty-five percent (65%) of the Borrowing Base, and (ii) an amount which, if it
were the Allocated Facility Amount, would produce a Collateral Pool Debt Service
Coverage Ratio of 1.50:1.0. Notwithstanding the foregoing if at any time the
amount of the Obligations recoverable from any Eligible Collateral Pool Asset is
limited to reduce mortgage recording taxes paid with respect thereto to an
amount less than sixty-five percent (65%) of the then-current Collateral Pool
Asset value thereof, such lesser amount shall be used in calculating the
Borrowing Base Availability on account of such Eligible Collateral Pool Asset.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
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"Business Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Rate Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Cleveland, Ohio and New York, New York for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Cleveland, Ohio and New York, New York for the
conduct of substantially all of their commercial lending activities.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"Capitalization Rate" means (a) with respect to Community Centers, ten
percent (10%) and (b) with respect to Regional Malls, eight and one-half percent
(8.5%).
"Capitalized Lease" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Equivalents" means, as of any date:
(i) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency
or instrumentality thereof having maturities of not
more than one year from such date;
(ii) mutual funds organized under the United States
Investment Company Act rated AAm or AAm-G by S&P and
P-1 by Xxxxx'x;
(iii) certificates of deposit or other interest-bearing
obligations of a bank or trust company which is a
member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less
than A-1 by S&P and not less than P-1 by Xxxxx'x (or
in each case, if no bank or trust company is so
rated, the highest comparable rating then given to
any bank or trust company, but in such case only for
funds invested overnight or over a weekend) provided
that such investments shall mature or be redeemable
upon the option of the holders thereof on or prior to
a date one month from the date of their purchase;
(iv) certificates of deposit or other interest-bearing
obligations of a bank or trust company which is a
member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less
than A-1+ by S&P, and not less than P-1 by Xxxxx'x
and which has a long term unsecured debt rating of
not less than A1 by Xxxxx'x (or in each case, if no
bank or trust company is so rated, the highest
comparable rating then given to any bank or trust
company, but in such case only for funds invested
overnight or over a weekend) provided that
5
such investments shall mature or be redeemable upon
the option of the holders thereof on or prior to a
date three months from the date of their purchase;
(v) bonds or other obligations having a short term
unsecured debt rating of not less than A-1+ by S&P
and P-1+ by Xxxxx'x and having a long term debt
rating of not less than A1 by Xxxxx'x issued by or by
authority of any state of the United States, any
territory or possession of the United States,
including the Commonwealth of Puerto Rico and
agencies thereof, or any political subdivision of any
of the foregoing;
(vi) repurchase agreements issued by an entity rated not
less than A-1+ by S&P, and not less than P-1 by
Xxxxx'x which are secured by U.S. Government
securities of the type described in clause (i) of
this definition maturing on or prior to a date one
month from the date the repurchase agreement is
entered into;
(vii) short term promissory notes rated not less than A-1+
by S&P, and not less than P-1 by Xxxxx'x maturing or
to be redeemable upon the option of the holders
thereof on or prior to a date one month from the date
of their purchase; and
(viii) commercial paper (having original maturities of not
more than 365 days) rated at least A-1+ by S&P and
P-1 by Xxxxx'x and issued by a foreign or domestic
issuer who, at the time of the investment, has
outstanding long-term unsecured debt obligations
rated at least A1 by Xxxxx'x.
"Change in Control" means (i) any change in the ownership of either
Parent Entity which results in more than twenty-five percent (25%) of the such
Parent Entity's Capital Stock being acquired by any one Person, or group of
Persons which are Affiliates of each other, or (ii) any change in the membership
of either Parent Entity's Board of Directors which results in the board members
as of any date after the Agreement Execution Date constituting less than 50% of
the total board members at any time during the one (1) year period following
such date, or (iii) any change in the identity of the owners of the general
partnership interests in the Borrower, unless any such owner is a Wholly-Owned
Subsidiary of Glimcher Realty Trust.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Security Document including, without limitation, the Collateral Pool Assets.
"Collateral Pool Assets" means the collective reference to the Initial
Collateral Pool Assets and any other Properties added as "Collateral Pool
Assets" from time to time under Section 2.20 hereof, provided that the term
"Collateral Pool Assets" as of any date shall not include: any Collateral Pool
Asset which has been previously released from the applicable Mortgage under the
procedure set forth in Section 2.7(c) hereof (and not subsequently added as a
"Collateral Pool Asset" under Section 2.20).
"Collateral Pool Asset Value" means, as of any date, for each Eligible
Collateral Pool Asset the most recent Appraised Value.
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"Collateral Pool Debt Service Coverage Ratio" means, as of any date of
determination, for a specified Allocated Facility Amount, the ratio of (a) the
Adjusted Collateral Pool Net Operating Income of all Eligible Collateral Pool
Assets to (b) the annual principal and interest payments that would be required
to fully amortize a loan in a principal amount equal to such specified Allocated
Facility Amount if paid in equal monthly installments over a period of 25 years
at an interest rate equal to the higher of (i) seven percent (7%) per annum and
(ii) two percent (2%) in excess of the yield as of the last Business Day of the
most recent month on those obligations of the U.S. Treasury having a maturity
date closest to a date 10 years after such month end.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Community Center" means any Project that does not qualify as a
Regional Mall.
"Consolidated Debt Service" means, for any period, without duplication,
(a) Consolidated Interest Expense for such period plus (b) the aggregate amount
of scheduled principal payments attributable to Consolidated Outstanding
Indebtedness (excluding optional prepayments and scheduled principal payments in
respect of any such Indebtedness which is not amortized through periodic
installments of principal and interest over the term of such Indebtedness)
required to be made during such period by any member of the Consolidated Group
plus (c) a percentage of all such scheduled principal payments required to be
made during such period by any Investment Affiliate on Indebtedness taken into
account in calculating Consolidated Interest Expense, equal to the greater of
(x) the percentage of the principal amount of such Indebtedness for which any
member of the Consolidated Group is liable and (y) the Consolidated Group Pro
Rata Share of such Investment Affiliate.
"Consolidated Group" shall mean the Borrower, the Parent Entities and
all Subsidiaries which are consolidated with them for financial reporting
purposes under GAAP.
"Consolidated Group Pro Rata Share" shall mean, with respect to any
Investment Affiliate, the percentage of the total equity ownership interests
held by the Consolidated Group, in the aggregate, in such Investment Affiliate
determined by calculating the percentage of the issued and outstanding stock,
partnership interests or membership interests in such Investment Affiliate held
by the Consolidated Group in the aggregate.
"Consolidated Interest Expense" means, for any period without
duplication, the sum of (a) the amount of interest expense, determined in
accordance with GAAP, of the Consolidated Group for such period attributable to
Consolidated Outstanding Indebtedness during such period plus (b) the applicable
Consolidated Group Pro Rata Share of any interest expense, determined in
accordance with GAAP, of each Investment Affiliate for such period, whether
recourse or non-recourse. Interest incurred on construction loans to fund
Construction in Progress will be excluded from Consolidated Interest Expense
provided that a reserve then projected to be sufficient to pay all interest due
on such construction loan through the date the related Project is expected to
reach stabilization has been established.
"Consolidated Net Income" shall mean, for any period, the sum of (i)
net earnings (or loss) after taxes (from continuing operations) of the
Consolidated Group (adjusted by eliminating any such earnings or loss
attributable to Investment Affiliates) plus (ii) the applicable Consolidated
Group Pro
7
Rata Share of net earnings (or loss) of all Investment Affiliates for such
period, in each case determined in accordance with GAAP.
"Consolidated Net Worth" means, as of any date of determination, an
amount equal to (a) Total Asset Value minus (b) Consolidated Outstanding
Indebtedness as of such date.
"Consolidated Outstanding Indebtedness" shall mean, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated basis
in accordance with GAAP, plus, without duplication (b) the greater of (i) the
applicable Consolidated Group Pro Rata Share of all Indebtedness of each
Investment Affiliate (other than Indebtedness of such Investment Affiliate to a
member of the Consolidated Group) and (ii) the amount of Indebtedness of such
Investment Affiliate which is also Recourse Indebtedness to a member of the
Consolidated Group.
"Construction in Progress" means, as of any date, the projected total
construction cost of any Projects then under development plus the book value of
all land not then included in Unimproved Land.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; provided that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Default Rate" means the interest rate which may apply during the
continuance of a Default pursuant to Section 2.11 which shall mean that (i) each
LIBOR Rate Advance shall bear interest for the remainder of the applicable LIBOR
Interest Period at the rate otherwise applicable to such LIBOR Interest Period
plus 2% per annum and (ii) each Floating Rate Advance shall bear interest at a
rate per annum equal to the Floating Rate otherwise applicable to the Floating
Rate Advance plus 2% per annum.
"Eligible Collateral Pool Asset" means a Project that (i) is 100%
wholly owned in fee simple by the Borrower, or any Subsidiary of the Borrower,
(ii) is a Stabilized Retail Asset, (iii) has at least 80% of its gross leaseable
area leased to third party tenants at all times, (except for New Towne Mall and
Indian Mound Mall, which must have at least 65% so leased at all times and
except Liberty Plaza may be less than 80% leased for a period of not more than
six (6) months from the Agreement Execution Date but shall thereafter not
qualify as an Eligible Collateral Pool Asset until it is at least 80% leased)
and (iv) has satisfied all of the requirements under Section 2.20 for inclusion
as an Eligible Collateral Pool Asset. Notwithstanding the foregoing, a Project
shall not be deemed an Eligible Collateral Pool Asset on the sixtieth (60th) day
after such Project has suffered a loss as a result of a casualty or condemnation
whereby the cost of repairing and restoring such Project is estimated to exceed
25% of the replacement cost of such Project unless, as reasonably determined by
the Administrative Agent,
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(1) the Appraised Value of such Eligible Collateral Pool Asset after completion
of such repair and restoration will not be less than the Appraised Value of such
Project prior to the casualty or condemnation, (2) the insurance proceeds are
sufficient to restore or rebuild the Project as to be substantially the same
quality and character as the Project was prior to such damage, (3) the proceeds
of business interruption insurance, if any, shall be considered to be income
with respect to the Project in determining Net Operating Income hereunder and
(4) no Major Tenant at such Project has terminated, or indicated in writing its
intent to terminate its lease as a result of such casualty or condemnation.
"Environmental Laws" includes, but is not limited to, the following
statutes, as amended, any successor thereto, and any regulations promulgated
pursuant thereto, and any state or local statutes, ordinances, rules,
regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Substances Transportation Act;
the Resource Conservation and Recovery Act (including but not limited to
Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act;
the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the
Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal
Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide
Act; the Endangered Species Act; the National Environmental Policy Act; and the
River and Harbors Appropriation Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by any jurisdiction with taxing
authority over the Lender.
"Existing Agreement" means that Third Amended and Restated Loan
Agreement by and among Borrower, certain Affiliates of Borrower, The Huntington
National Bank as agent and certain other Lenders dated as of January 31, 2001.
"Facility Letter of Credit" means a Letter of Credit issued pursuant to
Article IIA of this Agreement.
"Facility Letter of Credit Fee" is defined in Section 2A.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"Facility Letter of Credit Sublimit" means $25,000,000.
"Facility Termination Date" means October 16, 2006, which shall be the
day immediately prior to the third (3rd) anniversary of the Agreement Execution
Date, or if such day is not a Business Day the last Business Day immediately
preceding such day.
"Federal Funds Effective Rate" shall mean, for any day, the rate per
annum (rounded upward to the nearest one one-hundredth of one percent (1/100 of
1%)) announced by the Federal Reserve Bank of Cleveland on such day as being the
weighted average of the rates on overnight federal funds transactions
9
arranged by federal funds brokers on the previous trading day, as computed and
announced by such Federal Reserve Bank in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it refers to as
the "Federal Funds Effective Rate."
"Fee Letter" is defined in Section 2.5.
"Financial Contract" of a Person means (i) any exchange - traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"Financial Undertaking" of a Person means (i) any transaction which is
the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheet of such Person, or (ii)
any agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options.
"First Mortgage Receivable" means any Indebtedness owing to a member of
the Consolidated Group which is secured by a first-priority mortgage or deed of
trust on commercial real estate having a value in excess of the amount of such
Indebtedness and which has been designated by the Borrower as a "First Mortgage
Receivable" in its most recent compliance certificate.
"Fixed Charges" shall mean, for any period, the sum of (i) Consolidated
Debt Service, (ii) all dividends payable on account of preferred stock or
preferred operating partnership units of the Borrower or any other Person in the
Consolidated Group (including dividends payable to Investment Affiliates) and
(iii) all ground lease payments to the extent not deducted as an expense in
calculating Adjusted Annual EBITDA.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) ABR Applicable Margin for such day,
in each case changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Funds From Operations" shall have the meaning determined from time to
time by the National Association of Real Estate Investment Trusts to be the
meaning most commonly used by its members.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in Section 6.1.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee Obligation" means, as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including,
10
without limitation, any bank under any Letter of Credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counter-indemnity
or similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the maximum stated
amount of the primary obligation relating to such Guarantee Obligation (or, if
less, the maximum stated liability set forth in the instrument embodying such
Guarantee Obligation), provided, that in the absence of any such stated amount
or stated liability, the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Guaranty" means the guaranty to be executed and delivered by Glimcher
Realty Trust and Glimcher Properties Corporation substantially in the form of
Exhibit D-1, as the same may be amended, supplemented or modified from time to
time.
"Guarantors" means, as of any date, the Parent Entities and any
Guarantor then a party to the Subsidiary Guaranty.
"Implied Facility Debt Service Amount" means, as of any date, the
annual debt service that would be required to fully amortize the Allocated
Facility Amount as of the calculation date by equal monthly payments over a 25
year amortization period, using an implied interest rate equal to the higher of
(A) the yield as of the last Business Day of the most recent month on those
obligations of the U.S. Treasury having a maturity date closest to 10 years
after such month end or (B) five percent (5.00%), plus, in either case, two
percent (2.00%) per annum.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money including without limitation
any repurchase obligation or liability of such Person with respect to
securities, accounts or notes receivable sold by such Person, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), to the extent
such obligations constitute indebtedness for the purposes of GAAP, (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) all Capitalized Lease Obligations, (e) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person, (f) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated Indebtedness of the Consolidated Group, Guarantee
Obligations of one member of the Consolidated Group in respect of primary
obligations of any other member of the Consolidated Group), (g) all
reimbursement obligations of such Person for letters of credit and other
contingent liabilities, (h) any Net Xxxx-to-Market Exposure and (i) all
liabilities secured by any lien (other than liens for taxes not yet due and
payable) on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
11
"Initial Collateral Pool Assets" means the Projects described on
Schedule 1 attached hereto and made a part hereof which shall be included as
Collateral under the Loan Documents as of the Agreement Effective Date.
"Interest Period" means a LIBOR Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of any other Person
made by such Person.
"Investment Affiliate" means any Person in which the Consolidated
Group, directly or indirectly, has any ownership interest, whose financial
results are not consolidated under GAAP with the financial results of the
Consolidated Group.
"Issuance Date" is defined in Section 2A.4(a)(2).
"Issuance Notice" is defined in Section 2A.4(c).
"Issuing Bank" means, with respect to each Facility Letter of Credit,
the Lender which issues such Facility Letter of Credit. KeyBank shall be the
sole Issuing Bank.
"KeyBank Acquisition Facility" means that certain $15,000,000 unsecured
revolving credit provided to the Borrower by KeyBank National Association
pursuant to a Credit Agreement (Acquisition) of even date herewith.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, their respective successors and assigns, any other lending
institutions that subsequently become parties to this Agreement and the
Designated Lenders, if any, provided that the term "Lender" shall exclude each
such Designated Lender when used in the reference to the Commitments or terms
relating to the Commitments.
"Lending Installation" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2A.9.
"Letter of Credit Request" is defined in Section 2A.4(a).
"LIBOR Applicable Margin" means, for any LIBOR Interest Period, the
percentage set forth below in accordance with the ratio of Consolidated
Outstanding Indebtedness to Total Asset Value as of the last day of the most
recent preceding fiscal quarter for which financial results have been reported,
which percentage shall change upon the date Administrative Agent has received a
compliance certificate
12
as required by Section 6.1(v) from the Borrower as of the end of such fiscal
quarter in the form attached hereto as Exhibit B:
Consolidated Outstanding Indebtedness to Total Asset Value LIBOR Applicable Margin
---------------------------------------------------------- -----------------------
Less than 40% 1.15%
Greater than or equal to 40% but less than 50% 1.25%
Greater than or equal to 50% but less than 55% 1.35%
Greater than or equal to 55% but less than 60% 1.50%
Greater than or equal to 60% 1.70%
"LIBOR Base Rate" means, the rate (rounded upwards to the nearest
1/16th) with respect to a LIBOR Rate Advance for the relevant LIBOR Interest
Period, the applicable British Bankers' Association LIBOR rate for deposits in
U.S. dollars as reported by any generally recognized financial information
service as of 11:00 a.m. (London time) two Business Days prior to the first day
of such LIBOR Interest Period, and having a maturity equal to such LIBOR
Interest Period, provided that, if no such British Bankers' Association LIBOR
rate is available to the Administrative Agent, the applicable LIBOR Base Rate
for the relevant LIBOR Interest Period shall instead be the rate determined by
the Administrative Agent to be the rate at which KeyBank or one of its Affiliate
banks offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such LIBOR Interest Period, in the approximate
amount of KeyBank's relevant LIBOR Rate Loan and having a maturity equal to such
LIBOR Interest Period.
"LIBOR Interest Period" means, with respect to each amount bearing
interest at a LIBOR based rate, a period of one, two, three or six months, to
the extent deposits with such maturities are available to the Lenders,
commencing on a Business Day, as selected by the Borrower; provided, however,
that any LIBOR Interest Period which begins on a day for which there is no
numerically corresponding date in the calendar month in which such LIBOR
Interest Period would otherwise end shall instead end on the last Business Day
of such calendar month. Notwithstanding the foregoing, at any one time there
will be no more than six (6) LIBOR Interest Periods outstanding.
"LIBOR Rate" means, for any LIBOR Interest Period, the sum of (A) the
LIBOR Base Rate applicable thereto divided by one minus the then-current Reserve
Requirement and (B) the LIBOR Applicable Margin.
"LIBOR Rate Advance" means an Advance which bears interest at a LIBOR
Rate.
"LIBOR Rate Loan" means a Loan which bears interest at a LIBOR Rate.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
13
"Loan Documents" means this Agreement, the Notes, the Guaranties, the
Security Documents, and any other document from time to time evidencing or
securing indebtedness incurred by the Borrower under this Agreement, as any of
the foregoing may be amended or modified from time to time.
"Loan Parties" means the Borrower, the Parent Entities and any
Guarantor then a party to the Subsidiary Guaranty.
"Major Tenant" means a tenant occupying space at any Project of 10,000
square feet or greater.
"Material Adverse Effect" means, in the Administrative Agent's
reasonable discretion, a material adverse effect on (i) the business, property
or condition (financial or otherwise) of the Consolidated Group, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation, but excluding
substances of kinds and amounts ordinarily used or stored in similar properties
for the purposes of cleaning or other maintenance or operations or as inventory
of tenants and otherwise in compliance with all Environmental Laws.
"Maximum Legal Rate" means the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Notes and as
provided for herein or in the Notes or other Loan Documents, under the laws of
such state or states whose laws are held by any court of competent jurisdiction
to govern the interest rate provisions hereof.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Mortgages" means the collective reference to the deeds of trust and
mortgages recorded against the Initial Collateral Pool Assets, together with any
deeds of trust and mortgages on Properties added to Collateral hereafter
pursuant to Section 2.20 hereof, each of which shall be substantially in the
form attached hereto as Exhibit H and made a part hereof, conformed as required
by the Administrative Agent to applicable local law, as such documents may be
hereafter amended and/or restated from time to time.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions or any other
Financial Contract. "Unrealized losses" means the fair market value of the cost
to such Person of replacing such Rate Management Transaction or other Financial
Contract as of the date of determination (assuming the Rate Management
Transaction or other Financial Contract were to be terminated as of that date),
and "unrealized profits" means the fair market value of the gain to such Person
of replacing such Rate Management Transaction or other Financial Contract as of
the date of determination (assuming such Rate Management Transaction or other
Financial Contract were to be terminated as of that date).
14
"Net Operating Income" means, with respect to any Project for any
period, "property rental and other income" (as determined by GAAP) attributable
to such Project accruing for such period minus the amount of all expenses (as
determined in accordance with GAAP) incurred in connection with and directly
attributable to the ownership and operation of such Project for such period,
including, without limitation, Management Fees and amounts accrued for the
payment of real estate taxes and insurance premiums, but excluding any general
and administrative expenses related to the operation of the Borrower or the
Parent Entities, any interest expense or other debt service charges and any
non-cash charges such as depreciation or amortization of financing costs. As
used herein "Management Fees", means, with respect to each Project for any
period, an amount equal to the greater of (i) actual management fees payable
with respect thereto and (ii) three percent (3%) per annum on the aggregate base
rent and percentage rent due and payable under leases at such Project.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means a promissory note, in substantially the form of Exhibit A
hereto, duly executed by the Borrower and payable to the order of a Lender in
the amount of its Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means the Advances and all accrued and unpaid fees and
all other obligations of Borrower to the Administrative Agent or the Lenders
arising under this Agreement or any of the other Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Parent Entities" means Glimcher Realty Trust and Glimcher Properties
Corporation.
"Payment Date" means, with respect to the payment of interest accrued
on any Advance, the fifteenth day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means for each Lender the ratio that such Lender's
Commitment bears to the Aggregate Commitment, expressed as a percentage.
"Permitted Acquisitions" are defined in Section 6.15.
"Permitted Liens" are defined in Section 6.16.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
15
"Preferred Dividends" means, with respect to any entity, dividends or
other distributions which are payable to holders of any ownership interests in
such entity which entitle the holders of such ownership interests to be paid on
a preferred basis prior to dividends or other distributions to the holders of
other types of ownership interests in such entity.
"Prime Rate" means a rate per annum equal to the prime rate of interest
publicly announced from time to time by KeyBank or its parent as its prime rate
(which is not necessarily the lowest rate charged to any customer), changing
when and as said prime rate changes. In the event that there is a successor to
the Administrative Agent by merger, or the Administrative Agent assigns its
duties and obligations to an Affiliate, then the term "Prime Rate" as used in
this Agreement shall mean the prime rate, base rate or other analogous rate of
the new Administrative Agent.
"Project" means any real estate asset owned by the Borrower or any of
its Subsidiaries or any Investment Affiliate, and operated or intended to be
operated as a retail property.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into by the
Borrower which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Recourse Indebtedness" means any Indebtedness of the Borrower or any
other member of the Consolidated Group with respect to which the liability of
the obligor is not limited to the obligor's interest in specified assets
securing such Indebtedness, subject to customary limited exceptions for certain
acts or types of liability.
"Regional Mall" means a Project having a gross leaseable area of at
least 150,000 square feet for in-line tenants.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed
16
payments or disbursements made by the Lenders, the Issuing Bank and the
Administrative Agent under or in respect of the Facility Letters of Credit.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66
2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a LIBOR Rate Loan and
LIBOR Interest Period, that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Federal Reserve Board or other
governmental authority or agency having jurisdiction with respect thereto for
determining the maximum reserves (including, without limitation, basic,
supplemental, marginal and emergency reserves) for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D) maintained
by a member bank of the Federal Reserve System.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Security Documents" means the collective reference to the Mortgages,
the UCC Financing Statements, and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any asset or assets of
any Person to secure the obligations and liabilities of the Borrower hereunder
and under any of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Stabilized Retail Asset" means a Project that has generated positive
Net Operating Income for the most recent period of twelve (12) months for which
financial results have been reported.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantor" means each wholly owned Subsidiary of the
Borrower which is required to execute a Subsidiary Guaranty pursuant to Section
6.13.
17
"Subsidiary Guaranty" means the guaranty to be executed and delivered
by those Subsidiaries of the Borrower owning Collateral Pool Assets,
substantially in the form of Exhibit D-2, as the same may be amended,
supplemented or otherwise modified from time to time.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which represents more than 10% of
then-current Total Asset Value.
Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans not exceeding $20,000,000, which is included in, and is not
in addition to, the Swingline Lender's total Commitment hereunder.
"Swingline Lender" shall mean KeyBank, in its capacity as a Lender.
"Swingline Loan" means a loan made by the Swingline Lender pursuant to
Section 2.16 hereof.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Total Asset Value" shall mean, as of the date of calculation, the
aggregate of: (a) that portion of the Adjusted Leverage EBITDA attributable to
Community Centers owned by a member of the Consolidated Group at all times
during the most recent twelve (12) month period for which financial results have
been reported divided by the Capitalization Rate applicable to Community
Centers, plus (b) that portion of the Adjusted Leverage EBITDA attributable to
Retail Malls owned by a member of the Consolidated Group at all times during
such 12 month period divided by the Capitalization Rate applicable to Regional
Malls, plus (c) 100% of the price paid (including assumed debt) for any
Community Centers or Regional Malls (to the extent not included in Construction
in Progress in clauses (h) or (i) of this definition) acquired by a member of
the Consolidated Group or the Consolidated Group Pro Rata Share thereof if
acquired by an Investment Affiliate during such 12 month period, plus (d) that
portion of Adjusted Leverage EBITDA attributable to Projects owned by Investment
Affiliates (excluding 100% of the Adjusted Annual EBITDA attributable to
Projects not owned by an Investment Affiliate for the entire 12 months from
which Adjusted Leverage EBITDA is calculated) divided by the Capitalization Rate
applicable to such Project plus (e) the applicable Consolidated Group Pro Rata
Share of the price paid (including assumed debt) for Projects (to the extent not
included in Construction in Progress in clauses (h) and (i) of this definition)
acquired by Investment Affiliates during such 12 month period, plus (f) Cash,
Cash Equivalents and First Mortgage Receivables owned by a member of the
Consolidated Group, plus (g) the applicable Consolidated Group Pro Rata Share of
Cash, Cash Equivalents and First Mortgage Receivables owned by any Investment
Affiliate plus (h) the book value (as determined in accordance with GAAP) of
Construction In Progress and Unimproved Land of the Consolidated Group, plus,
(i) the applicable Consolidated Group Pro Rata Share of the book value (as
determined in accordance with GAAP) of Construction In Progress and Unimproved
Land of each Investment Affiliate. For purposes of clauses (h) and (i),
Construction In Progress shall include any newly built Project for which a
certificate of occupancy has been issued, if, as of the end of the 12 months for
which Adjusted Leverage EBITDA is calculated, it has been twelve (12) months or
less since such certificate of occupancy was issued; provided, however,
Borrower, at its option, may elect
18
not to include a Project which otherwise qualifies for inclusion in Construction
In Progress and include the income from such Project in the calculation of (a),
(b) and (d) above, as applicable.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or LIBOR Rate Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans.
"Unimproved Land" means, as of any date, any land which (i) is not
appropriately zoned for retail development, (ii) does not have access to all
necessary utilities or (iii) does not have access to publicly dedicated streets,
unless such land has been designated in writing by the Borrower in a certificate
delivered to the Agent as land that is reasonably expected to satisfy all such
criteria within six (6) months after such date.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unused Fee" is defined is Section 2.4.
"Unused Fee Percentage" means, with respect to any day during a
calendar quarter, (i) 0.125% per annum, if the Advances and Facility Letter of
Credit Obligations outstanding on such day is 50% or more of the Aggregate
Commitment or (ii) 0.25% per annum if the Advances and Facility Letter of Credit
Obligations outstanding on such day is less than 50% of the Aggregate Commitment
on such day.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDIT
2.1 Generally. Subject to the terms and conditions of this
Agreement, Lenders severally agree to make Advances through the Administrative
Agent to Borrower from time to time prior to the Facility Termination Date, and
to support the issuance of Facility Letters of Credit under Article 2A of this
Agreement, provided that the making of any such Advance or the issuance of such
Facility Letter of Credit will not:
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(i) cause the then-current Allocated Facility Amount to
exceed the then-current Aggregate Commitment; or
(ii) cause the then-current Allocated Facility Amount to
exceed the then-current Borrowing Base Availability; or
(iii) cause the then-current outstanding Swingline Advances
to exceed the Swingline Commitment; or
(iv) cause the then outstanding Facility Letters of Credit
Obligations to exceed the Facility Letter of Credit Sublimit.
The Administrative Agent shall, from time to time, at the request of Borrower,
confirm the then-current Borrowing Base Availability. The Advances may be
Swingline Advances, ratable Floating Rate Advances or ratable LIBOR Rate
Advances. Each Lender shall fund its Percentage of each such Advance (other than
a Swingline Advance) and no Lender will be required to fund any amounts which,
when aggregated with such Lender's Percentage of all other Advances then
outstanding and of all Facility Letter of Credit Obligations, would exceed such
Lender's then-current Commitment. This facility ("Facility") is a revolving
credit facility and, subject to the provisions of this Agreement, Borrower may
request Advances hereunder, repay such Advances and reborrow Advances at any
time prior to the Facility Termination Date.
2.2 Ratable and Non Ratable Advances. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in proportion to the
ratio their respective Commitments bear to the Aggregate Commitment except for
Swingline Loans which shall be made by the Swingline Lender in accordance with
Section 2.16. The ratable Advances may be Floating Rate Advances, LIBOR Rate
Advances or a combination thereof, selected by the Borrower in accordance with
Sections 2.8 and 2.9.
2.3 Final Principal Payment. Any outstanding Advances and all
other unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.4 Unused Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender an unused facility fee (the "Unused Fee")
equal to an aggregate amount computed on a daily basis by multiplying the Unused
Fee Percentage applicable to such day, times the excess of the Aggregate
Commitment over the Allocated Facility Amount on such day. The Unused Fee shall
be payable quarterly in arrears on the first Business Day after the last day of
each calendar quarter and upon any termination of the Aggregate Commitment in
its entirety under Section 2.1 hereof.
2.5 Other Fees. The Borrower agrees to pay all fees payable to the
Administrative Agent pursuant to the Borrower's letter agreement with the
Administrative Agent dated as of September 19, 2003 (the "Fee Letter").
2.6 Minimum Amount of Each Advance. Each Advance shall be in the
minimum amount of $200,000; provided, however, that, subject to Section 2.1, any
Floating Rate Advance may be in the amount of the unused Aggregate Commitment.
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2.7 Optional Prepayments; Mandatory Prepayments; Release of
Properties.
(a) The Borrower may, upon at least one (1) Business Day's notice
to the Administrative Agent, prepay the Advances, which notice shall specify the
date and amount of prepayment and whether the prepayment is of LIBOR Rate
Advances, Floating Rate Advances, Swingline Loans or a combination thereof, and
if a combination thereof, the amount allocable to each; provided, however, that
(i) any partial prepayment under this Subsection shall be in an amount not less
than $1,000,000 or a whole multiple of $100,000 in excess thereof and; (ii) any
LIBOR Rate Advance prepaid on any day other than the last day of the applicable
LIBOR Interest Period must be accompanied by any amounts payable pursuant to
Section 3.4. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with any amounts payable pursuant to Section 3.4.
(b) If on any Business Day the Allocated Facility Amount exceeds
the then-current Borrowing Base Availability or the then current Aggregate
Commitment, whether due to a new Appraisal of an Eligible Collateral Pool Asset
or the failure of a Project to continue to qualify as an Eligible Collateral
Pool Asset or otherwise, then, the Borrower shall make a mandatory prepayment of
the Loans in an amount equal to such excess no later than five (5) Business Days
following written notice from the Administrative Agent to the Borrower thereof.
The failure of the Borrower to make any prepayment as required under this
subsection shall constitute a Default under this Agreement. Each prepayment
required to be made under this subsection shall include any amounts payable
pursuant to Section 3.4. Such prepayment shall be of applied first to Swingline
Advances, then to Floating Rate Advances, and finally to LIBOR Rate Advances.
(c) The Borrower shall have the right at any time and from time to
time, on fifteen (15) Business Days prior written notice to the Administrative
Agent, to obtain a release of any Collateral Pool Asset from the applicable
Mortgage by repaying on the date of such release such amount as may be required
to cause the Allocated Facility Amount to equal to the Borrowing Base
Availability and for Borrower to provide the Compliance Certificate referenced
below taking into account such release, provided (i) unless the Collateral Pool
Asset being released, without regard to any other Collateral Pool Assets which
are being simultaneously released, is a Community Center with an Appraised Value
of less than $15,000,000, the Required Lenders, in their sole and absolute
discretion, shall have approved the release of such Collateral Pool Asset, (ii)
no Default has occurred and is continuing or shall occur upon the release of
such Collateral Pool Asset, (iii) the Borrower has provided to the
Administrative Agent a Compliance Certificate in the form of Exhibit B hereto
signed by the chief financial officer or chief operating officer of the Borrower
certifying to Borrower's continued compliance with all of the financial and
other covenants under the Loan Documents after the removal of such Collateral
Pool Asset, and (iv) the Borrower repays any amount of Advances so required for
continued compliance prior to or simultaneously with the delivery of a release
of the applicable Mortgage and related Security Documents. The Lenders hereby
authorize the Administrative Agent to execute and deliver such a release of a
Collateral Pool Asset and, if applicable, the release of the Subsidiary
Guarantor owning such Collateral Pool Asset from the Subsidiary Guaranty
provided that such Collateral Pool Asset was such Guarantor's only asset
included in the Collateral Pool under this Agreement on their behalf when all of
such conditions are satisfied.
2.8 Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in the case of each
LIBOR Rate Advance, the Interest Period applicable to each Advance from time to
time. The Borrower shall give the Administrative Agent irrevocable
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notice (a "Borrowing Notice") in the form attached as Exhibit G hereto (i) not
later than 1:00 p.m. Cleveland time on the Business Day immediately preceding
the Borrowing Date of each Floating Rate Advance, (ii) not later than noon
Cleveland time, at least three (3) Business Days before the Borrowing Date for
each LIBOR Rate Advance, and (iii) not later than noon Cleveland time on the
same Business Day as the Borrowing Date for each Swingline Advance of:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each LIBOR Rate Advance, the LIBOR
Interest Period applicable thereto.
Each Lender shall make available its Loan or Loans, in funds
immediately available in Cleveland to the Administrative Agent at its address
specified pursuant to Article XIII on each Borrowing Date not later than (i)
11:00 a.m. (Cleveland time), in the case of Floating Rate Advances which have
been requested by a Borrowing Notice given to the Administrative Agent not later
than 1:00 p.m. (Cleveland time) on the Business Day immediately preceding such
Borrowing Date, or (ii) noon (Cleveland time) in the case of all other Advances.
The Administrative Agent will make the funds so received from the Lenders
available to the Borrower at the Administrative Agent's aforesaid address.
No Interest Period may end after the Facility Termination Date and,
unless the Lenders otherwise agree in writing, in no event may there be more
than six (6) different Interest Periods for LIBOR Rate Advances outstanding at
any one time.
2.9 Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into LIBOR Rate Advances. Each LIBOR Rate
Advance shall continue as a LIBOR Rate Advance until the end of the then
applicable LIBOR Interest Period therefor, at which time such LIBOR Rate Advance
shall be automatically converted into a Floating Rate Advance unless the
Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice requesting that, at the end of such LIBOR Interest Period, such LIBOR
Rate Advance either continue as a LIBOR Rate Advance for the same or another
Interest Period or be converted to an Advance of another Type. Subject to the
terms of Section 2.6, the Borrower may elect from time to time to convert all or
any part of an Advance of any Type into any other Type or Types of Advances;
provided that any conversion of any LIBOR Rate Advance shall be made on, and
only on, the last day of the Interest Period applicable thereto. The Borrower
shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Advance to a LIBOR
Rate Advance or continuation of a LIBOR Rate Advance not later than 11:00 a.m.
(Cleveland time), at least three Business Days, in the case of a conversion into
or continuation of a LIBOR Rate Advance, prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of
such conversion or continuation;
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(ii) the aggregate amount and Type of the Advance which is
to be converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a
conversion into or continuation of a LIBOR Rate Advance, the duration
of the LIBOR Interest Period applicable thereto.
2.10 Changes in Interest Rate, Etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is converted from a LIBOR
Rate Advance into a Floating Rate Advance pursuant to Section 2.9 to but
excluding the date it becomes due or is converted into a LIBOR Rate Advance
pursuant to Section 2.9 hereof, at a rate per annum equal to the Floating Rate
for such day. Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each LIBOR Rate Advance shall bear interest
from and including the first day of the LIBOR Interest Period applicable thereto
to (but not including) the last day of such LIBOR Interest Period at the
interest rate determined as applicable to such LIBOR Rate Advance.
2.11 Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.8 or 2.9, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a LIBOR Rate Advance.
During the continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that the
Default Rate shall apply, provided, however, that the Default Rate shall become
applicable automatically if a Default occurs under Section 7.1 or 7.2, unless
waived by the Required Lenders.
2.12 Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified pursuant to Article XIII, or at any other Lending Installation
of the Administrative Agent specified in writing at least three (3) Business
Days in advance by the Administrative Agent to the Borrower, by noon (Cleveland
time) on the date when due and shall be applied ratably by the Administrative
Agent among the Lenders. As provided elsewhere herein, all Lenders' interests in
the Advances and the Loan Documents shall be ratable undivided interests and
none of such Lenders' interests shall have priority over the others. Each
payment delivered to the Administrative Agent for the account of any Lender or
amount to be applied or paid by the Administrative Agent to any Lender shall be
paid promptly (on the same day as received by the Administrative Agent if
received prior to noon (Cleveland time) on such day and otherwise on the next
Business Day) by the Administrative Agent to such Lender in the same type of
funds that the Administrative Agent received at its address specified pursuant
to Article XIII or at any Lending Installation specified in a notice received by
the Administrative Agent from such Lender. Payments received by the
Administrative Agent but not timely funded to the Lenders shall bear interest
payable by the Administrative Agent at the Federal Funds Effective Rate from the
date due until the date paid. The Administrative Agent is hereby authorized to
charge the account of the Borrower maintained with KeyBank for each payment of
principal, interest and fees as it becomes due hereunder.
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2.13 Notes; Telephonic Notices. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note, provided, however, that the failure to so record
shall not affect the Borrower's obligations under such Note. The Borrower hereby
authorizes the Lenders and the Administrative Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to transfer funds
based on written notices made by any Authorized Officer and Borrower agrees to
deliver promptly to the Administrative Agent such written notice. The
Administrative Agent will at the request of the Borrower, from time to time, but
not more often than monthly, provide notice of the amount of the outstanding
Aggregate Commitment, the Type of Advance, and the applicable interest rate, if
for a LIBOR Rate Advance. Upon a Lender's furnishing to Borrower an affidavit to
such effect, if a Note is mutilated, destroyed, lost or stolen, Borrower shall
deliver to such Lender, in substitution therefore, a new note containing the
same terms and conditions as such Note being replaced.
2.14 Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Advance shall be payable on each Payment Date, commencing with
the first such date to occur after the date hereof, at maturity, whether by
acceleration or otherwise, and upon any termination of the Aggregate Commitment
in its entirety under Section 2.1 hereof. Interest and Unused Fees shall be
calculated for actual days elapsed on the basis of a 360-day year. Interest
shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to noon (Cleveland time)
at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.15 Notification of Advances, Interest Rates and Prepayments. The
Administrative Agent will notify each Lender of the contents of each Borrowing
Notice, Conversion/Continuation Notice, and repayment notice received by it
hereunder not later than the close of business on the Business Day such notice
is received by the Administrative Agent. The Administrative Agent will notify
each Lender of the interest rate applicable to each LIBOR Rate Advance promptly
upon determination of such interest rate and will give each Lender prompt notice
of each change in the Alternate Base Rate
2.16 Swingline Advances. In addition to the other options available
to the Borrower hereunder, the Swingline Commitment shall be available for
Swingline Advances subject to the following terms and conditions. Swingline
Advances shall be made available for same day borrowings provided that notice is
given in accordance with Section 2.8 hereof. All Swingline Advances shall bear
interest at the Floating Rate. In no event shall the Swingline Lender be
required to fund a Swingline Advance if it would increase the total aggregate
outstanding Loans by Swingline Lender hereunder plus its Percentage of Facility
Letter of Credit Obligations to an amount in excess of the Swingline Lender's
Commitment. No Swingline Advance may be made to repay a Swingline Advance, but
Borrower may repay Swingline Advances from subsequent pro rata Advances
hereunder. On the fifth (5th) Business Day after such a Swingline Advance was
made, if such Swingline Advance has not been paid, each Lender irrevocably
agrees to purchase its Percentage of any Swingline Advance made by the Swingline
Lender regardless of whether the conditions for disbursement are satisfied at
the time of such purchase, including the existence of a Default hereunder
provided that Swingline Lender did not have actual knowledge of such Default at
the time the Swingline Advance was made and provided further that no Lender
shall be required to have total outstanding Loans plus its Percentage of
Facility Letters of Credit exceed its Commitment. Such purchase shall take place
on the date of the request by Swingline Lender so long as such request is made
by noon (Cleveland time), and otherwise on the Business Day following such
request. All requests for purchase shall be in writing. From and after the date
it is so purchased,
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each such Swingline Advance shall, to the extent purchased, (i) be treated as a
Loan made by the purchasing Lenders and not by the selling Lender for all
purposes under this Agreement and the payment of the purchase price by a Lender
shall be deemed to be the making of a Loan by such Lender and shall constitute
outstanding principal under such Lender's Note, and (ii) shall no longer be
considered a Swingline Advance except that all interest accruing on or
attributable to such Swingline Advance for the period prior to the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the Swingline Lender and all such amounts accruing on or
attributable to such Loans for the period from and after the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the purchasing Lenders. If prior to purchasing its Percentage of
a Swingline Advance one of the events described in Section 7.7 shall have
occurred and such event prevents the consummation of the purchase contemplated
by preceding provisions, each Lender will purchase an undivided participating
interest in the outstanding Swingline Advance in an amount equal to its
Percentage of such Swingline Advance. From and after the date of each Lender's
purchase of its participating interest in a Swingline Advance, if the Swingline
Lender receives any payment on account thereof, the Swingline Lender will
distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded); provided, however, that in the event that such payment was received by
the Swingline Lender and is required to be returned to the Borrower, each Lender
will return to the Swingline Lender any portion thereof previously distributed
by the Swingline Lender to it. If any Lender fails to so purchase its Percentage
of any Swingline Advance, such Lender shall be deemed to be a Defaulting Lender
hereunder.
2.17 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice at least three (3) Business Days in advance to the Administrative Agent
and the Borrower, designate a Lending Installation through which Loans will be
made by it and for whose account Loan payments are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the time at which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (i) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day or (ii) in the case of payment by
the Borrower, the interest rate applicable to the relevant Loan. If such Lender
so repays such amount and interest thereon to the Administrative Agent within
one Business Day after such demand, all interest accruing on the Loan not funded
by such Lender during such period shall be payable to such Lender when received
from the Borrower.
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2.19 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender which (a) is not capable of
receiving payments without any deduction or withholding of United States federal
income tax pursuant to Section 3.5, or (b) cannot maintain its LIBOR Rate Loans
at a suitable Lending Installation pursuant to Section 3.3, with a replacement
bank or other financial institution; provided that (i) such replacement does not
conflict with any applicable legal or regulatory requirements affecting the
Lenders, (ii) no Default or (after notice thereof to the Borrower) no Unmatured
Default shall have occurred and be continuing at the time of such replacement,
(iii) the Borrower shall repay (or the replacement bank or institution shall
purchase, at par) all Loans and other amounts owing to such replaced Lender
prior to the date of replacement, (iv) the Borrower shall be liable to such
replaced Lender under Sections 3.4 and 3.6 if any LIBOR Rate Loan owing to such
replaced Lender shall be prepaid (or purchased) other than on the last day of
the Interest Period relating thereto, (v) the replacement bank or institution,
if not already a Lender, and the terms and conditions of such replacement, shall
be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 12.3 (provided that the Borrower shall be obligated to pay the
processing fee referred to therein), (vii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 3.5 and (viii) any such replacement shall not be
deemed to be a waiver of any rights which the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
2.20 Procedures for Addition of Collateral Pool Assets.
(a) The Borrower may propose to include additional Projects as
Collateral Pool Assets by sending written proposals for inclusion to the
Administrative Agent along with (i) the items listed on Schedule 2, (ii) a
request for Administrative Agent to order an Appraisal of the proposed
additional Project and the other items, such as additional Security Documents,
needed to finalize the addition of such Project to the Collateral Pool Assets as
shown on Schedule 3, (iii) evidence that the qualifications required under the
definition of "Eligible Collateral Pool Asset" are met, (iv) a request that the
Required Lenders evaluate and approve the Appraisal and Appraised Value of such
Project and (v) that the Required Lenders evaluate and approve the Project for
inclusion in the Collateral. Items (i)-(iii) above shall be immediately
forwarded to the Lenders by the Administrative Agent. Administrative Agent and
the Lenders shall endeavor to utilize all of the due diligence reports obtained
by Borrower from third-party providers and certified to the Lenders by the
third-party providers and not require new reports (except for the Appraisals),
but the Administrative Agent reserves the right to require independent reports
if the Borrower's report was prepared by a third-party provider not reasonably
satisfactory or if the Administrative Agent in good faith believe the report
furnished contains an inaccuracy or is not current or is incomplete in any
material respect. If all items required by Schedule 2 and the preceding sentence
accompany or precede the written proposal, the written proposal shall so
indicate. If all items required by Schedule 2 do not accompany or precede the
written proposal, the Borrower shall accompany the last item required by
Schedule 2 with a letter notifying the Administrative Agent that it has
completed delivery of all items required by Schedule 2. The relevant time
periods for acceptance or rejection by the Administrative Agent and the Required
Lenders shall commence upon the later of (1) receipt of the completed Appraisal
by both the Administrative Agent and the Lenders and (2) receipt by the
Administrative Agent of the proposal and all items required by Schedule 2. When
both items (1) and (2) above have been delivered, the Administrative Agent shall
immediately notify the Borrower and the relevant time periods for acceptance or
rejection shall commence. For purposes of this Section 2.20, the Borrower may
begin the process of including an additional Collateral Pool Asset if the
Borrower has a binding contract to purchase such Project
26
provided that the Borrower shall have consummated the purchase of such Project
on or before the date such Project is included in the Collateral.
(b) The Administrative Agent shall have fifteen (15) Business Days
after the Administrative Agent has actually received the completed Appraisal as
well as Borrower's proposal and all items set forth in Schedule 2 with respect
to a proposed Collateral Pool Asset pursuant to this Section to notify the
Borrower in writing as to whether the proposed Collateral Pool Asset is
satisfactory to the Administrative Agent pursuant to Section 2.20(a) above.
After such fifteen (15) Business Days period has lapsed, provided Borrower has
not received any written notice from the Administrative Agent indicating whether
the proposed Collateral Pool Asset is satisfactory, Borrower may provide a
second notice to Administrative Agent requesting approval of such Collateral
Pool Asset and conspicuously stating that failure to respond to such notice
shall be deemed to be approval of such Collateral Pool Asset. The failure of the
Administrative Agent to respond in writing to the Borrower's second notice
within five (5) Business Days shall be deemed to be an approval that such
proposed Collateral Pool Asset is satisfactory to the Administrative Agent. The
Lenders shall have fifteen (15) Business Days after they have actually received
the completed Appraisal and other documents to which they are entitled pursuant
to Section 2.20(a) above (it being acknowledged that this period will run
substantially concurrently with Administrative Agent's review period in light of
Administrative Agent's obligation under Section 2.20(a) to immediately forward
those items to the Lenders) to notify the Administrative Agent (who shall notify
the Borrower after all responses from the Lenders are received or deemed
received) as to (i) whether the Appraisal and Appraised Value are satisfactory,
and (ii) whether the Project otherwise is approved as an Eligible Collateral
Pool Asset. The failure of any Lender to respond to the Borrower's request
within such fifteen Business Day period shall be deemed to be an approval of the
Appraisal and consent to the inclusion of such Project in the Collateral. If the
proposed Collateral Pool Asset is approved by the Administrative Agent and the
Required Lenders to qualify for inclusion as an Eligible Collateral Pool Asset,
and the Appraisal and Appraised Value are approved (or deemed approved) by the
Required Lenders, that Project shall be automatically approved for inclusion in
the Collateral without the need for any further approval by the other Lenders.
Upon the approval by the Administrative Agent and the Required Lenders for
inclusion of a Project in the Collateral and the satisfaction of all
requirements listed in Schedule 3 with respect thereto, such Project shall be
added to the Collateral as an Eligible Collateral Pool Asset and an Advance
shall be made on the same date as a condition to the related increase in
Borrowing Base Availability attributable thereto in an amount equal to the
principal prepayment required under the KeyBank Acquisition Facility as a result
thereof, provided that such Advance shall not exceed the amount of such increase
in Borrowing Base Availability attributable to the addition of such Project to
the Collateral. The Administrative Agent shall supply, at the written request of
any Lender, copies of any of the documents described on Schedule 2 and 3 to such
Lender.
2.21 Usury . This Agreement and each Note are subject to the
express condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject any
Lender to either civil or criminal liability as a result of being in excess of
the Maximum Legal Rate. If by the terms of this Agreement or the Loan Documents,
Borrower is at any time required or obligated to pay interest on the principal
balance due hereunder at a rate in excess of the Maximum Legal Rate, the
interest rate or the Default Rate, as the case may be, shall be deemed to be
immediately reduced to the Maximum Legal Rate and all previous payments in
excess of the Maximum Legal Rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All
sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the sums due under the Loan, shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full stated
term of the Loan until payment in full so that
27
the rate or amount of interest on account of the Loan does not exceed the
Maximum Legal Rate of interest from time to time in effect and applicable to the
Loan for so long as the Loan is outstanding.
ARTICLE IIA
LETTER OF CREDIT SUBFACILITY
2A.1 Obligation to Issue. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties
of the Borrower herein set forth, the Issuing Bank hereby agrees to
issue for the account of the Borrower, one or more Facility Letters of
Credit in accordance with this Article IIA, from time to time during
the period commencing on the Agreement Effective Date and ending on a
date one Business Day prior to the Facility Termination Date.
2A.2 Types and Amounts. The Issuing Bank shall not have any
obligation to:
(i) issue any Facility Letter of Credit if the
aggregate maximum amount then available for drawing under
Letters of Credit issued by such Issuing Bank, after giving
effect to the Facility Letter of Credit requested hereunder,
shall exceed any limit imposed by law or regulation upon such
Issuing Bank;
(ii) issue any Facility Letter of Credit if,
after giving effect thereto, (1) the then applicable Allocated
Facility Amount would exceed the then current Aggregate
Commitment, (2) the then applicable Allocated Facility Amount
would exceed the then-current Borrowing Base Availability, or
(3) the Facility Letter of Credit Obligations would exceed the
Facility Letter of Credit Sublimit; or
(iii) issue any Facility Letter of Credit having
an expiration date, or containing automatic extension
provision to extend such date, to a date beyond the Business
Day immediately preceding the Facility Termination Date.
2A.3 Conditions. In addition to being subject to the satisfaction
of the conditions contained in Article IV hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Borrower shall have delivered to the
Issuing Bank at such times and in such manner as the Issuing
Bank may reasonably prescribe such documents and materials as
may be reasonably required pursuant to the terms of the
proposed Facility Letter of Credit (it being understood that
if any inconsistency exists between such documents and the
Loan Documents, the terms of the Loan Documents shall control)
and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;
(ii) as of the date of issuance, no order,
judgment or decree of any court, arbitrator or governmental
authority shall purport by its terms to enjoin or restrain the
Issuing Bank from issuing the requested Facility Letter of
Credit and no law, rule or regulation applicable to the
Issuing Bank and no request or directive (whether or not
having the force of law) from any governmental authority with
jurisdiction over the
28
Issuing Bank shall prohibit or request that the Issuing Bank
refrain from the issuance of Letters of Credit generally or
the issuance of the requested Facility Letter or Credit in
particular; and
(iii) there shall not exist any Default.
2A.4 Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the
Administrative Agent at least three (3) Business Days' prior written notice of
any requested issuance of a Facility Letter of Credit under this Agreement (a
"Letter of Credit Request"), (and Administrative Agent shall, upon request by a
Lender, provide a copy of such requested issuance of a Facility Letter of
Credit) (i) immediately (A) of a telecopy of the written notice required
hereunder which has been signed by an Authorized Officer, or (B) of a telex
containing all information required to be contained in such written notice and
(ii) promptly (but in no event later than the requested date of issuance) of the
written notice required hereunder containing the original signature of an
authorized officer); such notice shall be irrevocable, except as provided in
Section 2A.4(b)(i) below, and shall specify:
(1) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(2) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"Issuance Date");
(3) the date on which such requested Facility Letter of Credit is
to expire (which day shall be a Business Day);
(4) the purpose for which such Facility Letter of Credit is to be
issued;
(5) the Person for whose benefit the requested Facility Letter of
Credit is to be issued; and
(6) any special language required to be included in the Facility
Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued. Such
notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than noon (Cleveland time) on the last Business
Day on which notice can be given under this Section 2A.4(a).
(b) Subject to the terms and conditions of this Article
IIA and provided that the applicable conditions set forth in Article IV hereof
have been satisfied, the Issuing Bank shall, on the Issuance Date, issue a
Facility Letter of Credit on behalf of the Borrower in accordance with the
Letter of Credit Request and the Issuing Bank's usual and customary business
practices unless the Issuing Bank has actually received (i) written notice from
the Borrower specifically revoking the Letter of Credit Request with respect to
such Facility Letter of Credit given not later than Business Day immediately
preceding the Issuance Date, or (ii) written or telephonic notice from the
Administrative Agent stating that the issuance of such Facility Letter of Credit
would violate Section 2A.2.
29
(c) The Issuing Bank shall give the Administrative Agent
(who shall promptly notify Lenders) and the Borrower written or telex notice, or
telephonic notice confirmed promptly thereafter in writing, of the issuance of a
Facility Letter of Credit (the "Issuance Notice").
(d) The Issuing Bank shall not extend or amend any
Facility Letter of Credit unless the requirements of this Section 2A.4 are met
as though a new Facility Letter of Credit was being requested and issued.
2A.5 Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify the Borrower
and the Administrative Agent (who shall promptly notify Lenders) of any draw
under a Facility Letter of Credit. Any such draw shall not be deemed to be a
default hereunder but shall constitute an Advance of the Facility in the amount
of the Reimbursement Obligation with respect to such Facility Letter of Credit
and shall bear interest from the date of the relevant drawing(s) under the
pertinent Facility Letter of Credit at the Floating Rate Advance; provided that
if a Default or an Unmatured Default regarding the non-payment of any monetary
obligations to the Administrative Agent or the Lenders exists at the time of any
such drawing(s), then the Borrower shall reimburse the Issuing Bank for drawings
under a Facility Letter of Credit issued by the Issuing Bank no later than the
next succeeding Business Day after the payment by the Issuing Bank and until
repaid such Reimbursement Obligation shall bear interest at the Default Rate.
(b) Any action taken or omitted to be taken by the
Issuing Bank under or in connection with any Facility Letter of Credit, if taken
or omitted in the absence of willful misconduct or gross negligence, shall not
put the Issuing Bank under any resulting liability to any Lender or, provided
that such Issuing Bank has complied with the procedures specified in Section
2A.4 and such Lender has not given a notice contemplated by Section 2A.6(a) that
continues in full force and effect, relieve that Lender of its obligations
hereunder to the Issuing Bank. In determining whether to pay under any Facility
Letter of Credit, the Issuing Bank shall have no obligation relative to the
Lenders other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered in compliance, and that they
appear to comply on their face, with the requirements of such Letter of Credit.
2A.6 Participation.
(a) Immediately upon issuance by the Issuing Bank of any
Facility Letter of Credit in accordance with the procedures set forth in Section
2A.4, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Issuing Bank, without recourse, representation
or warranty, an undivided interest and participation equal to such Lender's
Percentage in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrower with respect thereto) and all related rights
hereunder and under the Guaranty and other Loan Documents. Each Lender's
obligation to make further Loans to Borrower (other than any payments such
Lender is required to make under subparagraph (b) below) or to purchase an
interest from the Issuing Bank in any subsequent Facility Letters of Credit
issued by the Issuing Bank on behalf of Borrower shall be reduced by such
Lender's Percentage of the undrawn portion of each Facility Letter of Credit
outstanding.
(b) In the event that the Issuing Bank makes any payment
under any Facility Letter of Credit and the Borrower shall not have repaid such
amount to the Issuing Bank pursuant to Section 2A.7 hereof, the Issuing Bank
shall promptly notify the Administrative Agent, which shall promptly notify each
Lender of such failure, and each Lender shall promptly and unconditionally pay
to the
30
Administrative Agent for the account of the Issuing Bank the amount of such
Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank.
Lender's payments of its Percentage of such Reimbursement Obligation as
aforesaid shall be deemed to be a Loan by such Lender and shall constitute
outstanding principal under such Lender's Note. The failure of any Lender to
make available to the Administrative Agent for the account of the Issuing Bank
its Percentage of the unreimbursed amount of any such payment shall not relieve
any other Lender of its obligation hereunder to make available to the
Administrative Agent for the account of such Issuing Bank its Percentage of the
unreimbursed amount of any payment on the date such payment is to be made, but
no Lender shall be responsible for the failure of any other Lender to make
available to the Administrative Agent its Percentage of the unreimbursed amount
of any payment on the date such payment is to be made. Any Lender which fails to
make any payment required pursuant to this Section 2A.6(b) shall be deemed to be
a Defaulting Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on
account of a Reimbursement Obligation, including any interest thereon, the
Issuing Bank shall promptly pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each Lender which has funded its
participating interest therein, in immediately available funds, an amount equal
to such Lender's Percentage thereof.
(d) Upon the request of the Administrative Agent or any
Lender, the Issuing Bank shall furnish to such Administrative Agent or Lender
copies of any Facility Letter of Credit to which the Issuing Bank is party and
such other documentation as may reasonably be requested by the Administrative
Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuing Bank with respect to a
Facility Letter of Credit shall be absolute, unconditional and irrevocable, not
subject to any counterclaim, set-off, qualification or exception whatsoever
other than a failure of any such Issuing Bank to comply with the terms of this
Agreement relating to the issuance of such Facility Letter of Credit, and such
payments shall be made in accordance with the terms and conditions of this
Agreement under all circumstances.
2A.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Administrative
Agent for the account of the Issuing Bank the amount of all Advances for
Reimbursement Obligations, interest and other amounts payable to the Issuing
Bank under or in connection with any Facility Letter of Credit when due,
irrespective of any claim, set-off, defense or other right which the Borrower
may have at any time against any Issuing Bank or any other Person, under all
circumstances, including without limitation any of the following circumstances:
(i) any lack of validity or enforceability of
this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense
or other right which the Borrower may have at any time against
a beneficiary named in a Facility Letter of Credit or any
transferee of any Facility Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative
Agent, the Issuing Bank, any Lender, or any other Person,
whether in connection with this Agreement, any Facility Letter
of
31
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between
the Borrower and the beneficiary named in any Facility Letter
of Credit);
(iii) any draft, certificate or any other document
presented under the Facility Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect of
any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms of any
of the Loan Documents; or
(v) the occurrence of any Default.
(b) In the event any payment by the Borrower received by
the Issuing Bank or the Administrative Agent with respect to a Facility Letter
of Credit and distributed by the Administrative Agent to the Lenders on account
of their participations is thereafter set aside, avoided or recovered from the
Administrative Agent or Issuing Bank in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Administrative Agent, contribute
such Lender's Percentage of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Issuing Bank or the
Administrative Agent upon the amount required to be repaid by the Issuing Bank
or the Administrative Agent.
2A.8 Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent,
for the ratable account of the Lenders (including the Issuing Bank), based upon
the Lenders' respective Percentages, a per annum fee (the "Facility Letter of
Credit Fee") as a percentage of the face amount of each Facility Letter of
Credit outstanding equal to the LIBOR Applicable Margin in effect from time to
time while such Facility Letter of Credit is outstanding. The Facility Letter of
Credit Fee relating to any Facility Letter of Credit shall accrue on a daily
basis and shall be due and payable in arrears on the first Business Day of each
calendar quarter following the issuance of such Facility Letter of Credit and,
to the extent any such fees are then due and unpaid, on the Facility Termination
Date or any other earlier date that the Obligations are due and payable in full.
The Administrative Agent shall promptly remit such Facility Letter of Credit
Fees, when paid, to the other Lenders in accordance with their Percentages
thereof. The Borrower shall not have any liability to any Lender for the failure
of the Administrative Agent to promptly deliver funds to any such Lender and
shall be deemed to have made all such payments on the date the respective
payment is made by the Borrower to the Administrative Agent, provided such
payment is received by the time specified in Section 2.12 hereof.
(b) The Issuing Bank also shall have the right to receive
solely for its own account an issuance fee of one-eighth of one percent (0.125%)
of the face amount of each Facility Letter of Credit, payable by the Borrower on
the Issuance Date for each such Facility Letter of Credit and on the date of any
increase therein or extension thereof. The Issuing Bank shall also be entitled
to receive its reasonable out-of-pocket costs and the Issuing Bank's standard
charges of issuing, amending and servicing Facility Letters of Credit and
processing draws thereunder.
2A.9 Letter of Credit Collateral Account. The Borrower hereby
agrees that it will immediately upon the occurrence of the Default, establish a
special collateral account (the "Letter of
32
Credit Collateral Account") at the Administrative Agent's office at the address
specified pursuant to Article XIII, in the name of the Borrower but under the
sole dominion and control of the Administrative Agent, for the benefit of the
Lenders, and in which the Borrower shall have no interest other than as set
forth in Section 8.1. The Letter of Credit Collateral Account shall hold the
deposits the Borrower is required to make after a Default on account of any
outstanding Facility Letters of Credit as described in Section 8.1. In addition
to the foregoing, the Borrower hereby grants to the Administrative Agent, for
the benefit of the Lenders, a security interest in and to the Letter of Credit
Collateral Account and any funds that may hereafter be on deposit in such
account, including income earned thereon. The Lenders acknowledge and agree that
the Borrower has no obligation to fund the Letter of Credit Collateral Account
unless and until so required under Section 8.1 hereof.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation with any request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender in respect of
its LIBOR Rate Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than the Reserve Requirement and any other reserves and assessments
taken into account in determining the interest rate applicable to LIBOR
Rate Advances), or
(iii) imposes any other condition the direct result of
which is to increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining its LIBOR Rate Loans, or
reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with its LIBOR Rate Loans, or requires any
Lender or any applicable Lending Installation to make any payment
calculated by reference to the amount of LIBOR Rate Loans, by a
material amount.
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation, as the case may be, of making or maintaining
its LIBOR Rate Loans or Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such LIBOR Rate
Loans or Commitment, then, within 15 days of demand by such Lender, the Borrower
shall pay such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction in amount received.
33
3.2 Changes in Capital Adequacy Regulations. If a Lender in good
faith determines the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change (as hereinafter
defined), then, within 15 days of demand by such Lender, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender in good faith
determines is attributable to this Agreement, its outstanding credit exposure
hereunder or its obligation to make Loans hereunder (after taking into account
such Lender's policies as to capital adequacy). "Change" means (i) any change
after the date of this Agreement in the Risk-Based Capital Guidelines (as
hereinafter defined) or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender in good faith
determines that maintenance of any of its LIBOR Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, the Administrative Agent shall, with
written notice to Borrower, suspend the availability of the affected Type of
Advance and require any LIBOR Rate Advances of the affected Type to be repaid;
or if the Required Lenders in good faith determine that (i) deposits of a type
or maturity appropriate to match fund LIBOR Rate Advances are not available, the
Administrative Agent shall, with written notice to Borrower, suspend the
availability of the affected Type of Advance with respect to any LIBOR Rate
Advances made after the date of any such determination, or (ii) an interest rate
applicable to a Type of Advance does not accurately reflect the cost of making a
LIBOR Rate Advance of such Type, then, if for any reason whatsoever the
provisions of Section 3.1 are inapplicable, the Administrative Agent shall, with
written notice to Borrower, suspend the availability of the affected Type of
Advance with respect to any LIBOR Rate Advances made after the date of any such
determination. If the Borrower is required to so repay a LIBOR Rate Advance, the
Borrower may concurrently with such repayment borrow from the Lenders, in the
amount of such repayment, a Loan bearing interest at the Floating Rate.
3.4 Funding Indemnification. If any payment of a ratable LIBOR
Rate Advance occurs on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment or otherwise, or a
ratable LIBOR Rate Advance is not made on the date specified by the Borrower for
any reason other than default by the Lenders or as a result of unavailability
pursuant to Section 3.3, the Borrower will indemnify each Lender for any loss or
cost incurred by it resulting therefrom, including, without limitation, any loss
or cost (incurred or expected to be incurred) in liquidating or employing
deposits acquired to fund or maintain the ratable LIBOR Rate Advance and shall
pay all such losses or costs within fifteen (15) days after written demand
therefor.
3.5 Taxes.
(i) All payments by the Borrower to or for the account of
any Lender or the Administrative Agent hereunder or under any Note
shall be made free and clear of and without
34
deduction for any and all Taxes. If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder
to any Lender or the Administrative Agent, (a) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.5) such Lender or the Administrative Agent (as the case may
be) receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such deductions,
(c) the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower shall
furnish to the Administrative Agent the original copy of a receipt
evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment
made hereunder or under any Note or from the execution or delivery of,
or otherwise with respect to, this Agreement or any Note ("Other
Taxes").
(iii) The Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed on amounts payable under this Section 3.5) paid by the
Administrative Agent or such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within
30 days of the date the Administrative Agent or such Lender makes
demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten Business Days after the
Agreement Execution Date, (i) deliver to each of the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either
case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes, and (ii) deliver to each of the Borrower and the
Administrative Agent a United States Internal Revenue Form W-8 or W-9,
as the case may be, and certify that it is entitled to an exemption
from United States backup withholding tax. Each Non-U.S. Lender further
undertakes to deliver to each of the Borrower and the Administrative
Agent (x) renewals or additional copies of such form (or any successor
form) on or before the date that such form expires or becomes obsolete,
and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Borrower or
the Administrative Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to
receive payments under this Agreement without deduction or withholding
of any United States federal income taxes, unless an event (including
without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise
be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form
or amendment with respect to it and such Lender advises the Borrower
and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal
income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant to
clause (iv), above (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or
administration thereof
35
by any governmental authority, occurring subsequent to the date on
which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5
with respect to Taxes imposed by the United States.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate following receipt of such
documentation.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered
or properly completed, because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such
Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax,
withholding therefor, or otherwise, including penalties and interest,
and including taxes imposed by any jurisdiction on amounts payable to
the Administrative Agent under this subsection, together with all costs
and expenses related thereto (including attorneys fees and time charges
of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent). The obligations of the Lenders
under this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement and any such Lender
obligated to indemnify the Administrative Agent shall not be entitled
to indemnification from the Borrower with respect to such amounts,
whether pursuant to this Article or otherwise, except to ------- the
extent the Borrower participated in the actions giving rise to such
liability.
3.6 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its LIBOR Rate Loans to reduce any liability of the
Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the
unavailability of LIBOR Rate Advances under Section 3.3, so long as such
designation is not, in the reasonable judgment of such Lender, disadvantageous
to such Lender. Each Lender shall deliver a written statement of such Lender to
the Borrower (with a copy to the Administrative Agent) as to the amount due, if
any, under Sections 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower in the absence
of manifest error. Determination of amounts payable under such Sections in
connection with a LIBOR Rate Loan shall be calculated as though each Lender
funded its LIBOR Rate Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
LIBOR Rate applicable to such Loan, whether in fact that is the case or not.
Unless otherwise provided herein, the amount specified in the written statement
of any Lender shall be payable on demand after receipt by the Borrower of such
written statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4
and 3.5 shall survive payment of the Obligations and termination of this
Agreement.
36
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Initial Advance. The Lenders shall not be required to make the
initial Advance hereunder or issue the initial Facility Letter of Credit
hereunder unless (a) the Borrower shall, prior to or concurrently with such
initial Advance or issuance, have paid all fees due and payable to the Lenders
and the Administrative Agent hereunder, and (b) the Borrower shall have
furnished to the Administrative Agent, with sufficient copies for the Lenders,
the following:
(i) The duly executed originals of the Loan Documents,
including the Notes, payable to the order of each of the Lenders, this
Agreement, the Guaranties, and all of the Security Documents;
(ii) (A) Certificates of good standing for the Borrower,
the Parent Entities and each Guarantor, from the State of Delaware for
the Borrower and the states of organization of each Guarantor,
certified by the appropriate governmental officer and dated not more
than thirty (30) days prior to the Agreement Execution Date, and (B)
foreign qualification certificates for the Borrower, the Parent
Entities and each Guarantor, certified by the appropriate governmental
officer and dated not more than thirty (30) days prior to the Agreement
Execution Date, for each other jurisdiction where the failure of the
Borrower, such Parent Entity or such Guarantor to so qualify or be
licensed (if required) would have a Material Adverse Effect;
(iii) Copies of the formation documents (including code of
regulations, if appropriate) of the Borrower, the Parent Entities and
the Guarantors, certified by an officer of the Borrower, such Parent
Entity or such Guarantor, as appropriate, together with all amendments
thereto;
(iv) Incumbency certificates, executed by officers of the
Borrower, the Parent Entities and the Guarantors, which shall identify
by name and title and bear the signature of the Persons authorized to
sign the Loan Documents and to make borrowings hereunder on behalf of
such parities, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in
writing by the Borrower or any such Parent Entity or Guarantor;
(v) Copies, certified by a Secretary or an Assistant
Secretary of the Borrower and each Guarantor, of the Board of
Directors' resolutions (and resolutions of other bodies, if any are
reasonably deemed necessary by counsel for the Administrative Agent)
authorizing the Advances provided for herein, with respect to the
Borrower, and the execution, delivery and performance of the Loan
Documents to be executed and delivered by the Borrower, each Parent
Entity and each Guarantor hereunder;
(vi) A written opinion of the Borrower's, Parent Entities
and Guarantors' counsel, addressed to the Lenders in substantially the
form of Exhibit F hereto or such other form as the Administrative Agent
may reasonably approve;
(vii) A written opinion from counsel in the state where a
Collateral Pool Asset is located, in form and substance satisfactory to
Administrative Agent, as to the enforceability of such Mortgage
encumbering such Collateral Pool Asset;
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(viii) A certificate, signed by an Authorized Officer of the
Borrower, stating that on the initial Borrowing Date no Default or
Unmatured Default has occurred and is continuing, there has been no
Material Adverse Effect, and that all representations and warranties of
the Borrower are true and correct in all material respects as of the
initial Borrowing Date provided that such certificate is in fact true
and correct;
(ix) The most recent financial statements of the Borrower
and the Parent Entities:
(x) UCC financing statement, judgment, and tax lien
searches with respect to the Borrower from the state of its
organization and the state in which its principal place of business is
located;
(xi) Written money transfer instructions, addressed to the
Administrative Agent and signed by an Authorized Officer, together with
such other related money transfer authorizations as the Administrative
Agent may have reasonably requested;
(xii) A compliance certificate in the form of Exhibit B as
of June 30, 2003, utilizing the new covenants established herein and
executed by the Borrower's chief financial officer or chief operating
officer;
(xiii) A fully executed copy of the Fee Letter between the
Borrower and the Administrative Agent;
(xiv) Evidence that all upfront fees due to each of the
Lenders under the terms of their respective commitment letters have
been paid, or will be paid out of the proceeds of the initial Advance
hereunder;
(xv) There is no event of default under the Existing
Agreement;
(xvi) The Administrative Agent shall have received a survey
for each Initial Collateral Pool Asset certified as set forth in
Schedule 9 attached hereto to the Administrative Agent and in a form
satisfactory to counsel for the Administrative Agent;
(xvii) The Administrative Agent shall have received in
respect of each Initial Collateral Pool Asset a title policy (or
policies) complying with the requirements as set forth in Schedule 10
attached hereto , showing no exceptions to title other than those
permitted under the Mortgages, except such as may be approved by the
Administrative Agent, naming the Administrative Agent for the benefit
of the Lenders as the insured under such policy and containing such
"tie-in", revolving credit and other endorsements as may be available
in the applicable jurisdiction and as the Administrative Agent may
require. The Administrative Agent shall have received evidence
satisfactory to it that all premiums in respect of any endorsements,
and all charges for mortgage recording tax, if any, have been paid;
(xviii) If any portion of any buildings located on any
Initial Collateral Pool Asset is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or
other applicable agency, the Administrative Agent shall have received
(i) a policy of flood insurance which (A) covers any parcel of improved
real property which is encumbered by any Mortgage and (B) is written in
an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage which is reasonably allocable to
38
such real property or the maximum limit of coverage made available with
respect to the particular type of property under the Act, whichever is
less, and (ii) confirmation that the Borrower has received the notice
required pursuant to Section 208(e)(3) of Regulation H of the Board of
Governors of the Federal Reserve System. To the extent any Initial
Collateral Pool Asset is not located in an area identified as a special
flood hazard area by the Federal Emergency Management Agency or other
agency, the certification of the survey of such Property to be
delivered pursuant to clause (xvi) above shall include confirmation of
such fact;
(xix) The Administrative Agent shall have received a copy
of all recorded documents with respect to the Initial Collateral Pool
Assets referred to, or listed as exceptions to title in, the title
policy or policies referred to in Section 4.1(xvii) and a copy,
certified by such parties as the Administrative Agent may deem
appropriate, of all other documents materially affecting the Collateral
Pool Asset covered by each Mortgage, including without limitation
copies of any leases on any of such Projects;
(xx) The Administrative Agent shall have received the
results of a recent search by a Person satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and tax
lien filings which may have been filed with respect to personal
property of the Borrower or any Guarantor used in connection with the
Initial Collateral Pool Assets and the results of such search shall be
satisfactory to the Administrative Agent;
(xxi) The Administrative Agent shall have received evidence
in form and substance satisfactory to it that all of the requirements
for insurance as set forth in Schedule 11 attached hereto shall have
been satisfied;
(xxii) The Administrative Agent shall have received current
Appraisals which shall indicate the Collateral Pool Asset Value for
each of the Initial Collateral Pool Assets;
(xxiii) The Administrative Agent shall have received, at the
Borrower's expense, of a detailed engineer's report on the condition of
the improvements upon each Initial Collateral Pool Asset prepared by a
consultant acceptable to the Administrative Agent;
(xxiv) The Administrative Agent shall have received, at the
Borrower's expense, a detailed report and certification (or updated
report and recertification) for each Initial Collateral Pool Asset
prepared by a consultant acceptable to Administrative Agent, which
shall include, inter alia, a certification that such consultant has
obtained and examined the list of prior owners and tenants, and has
made an on site physical examination of the relevant Project and
improvements thereon, and a visual observation of the surrounding
areas, and disclosing the extent of past or present Materials of
Environmental Concern activities or the presence of Materials of
Environmental Concern;
(xxv) The Administrative Agent shall have received tenant
estoppel certificates and subordination, non-disturbance and attornment
agreement in form and substance acceptable to the Administrative Agent
from each Major Tenant at an Initial Collateral Pool Asset, unless
otherwise waived by Administrative Agent; and
(xxvi) Such other documents as the Administrative Agent or
its counsel may have reasonably requested, the form and substance of
which documents shall be reasonably acceptable to the parties and their
respective counsel.
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4.2 Each Advance. The Lenders shall not be required to make any
Advance unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default;
(ii) The representations and warranties contained in
Article V are true and correct as of such Borrowing Date with respect
to the Loan Parties in existence on such Borrowing Date, except to the
extent any such representation or warranty is stated to relate solely
to an earlier date, in which case such representation or warranty shall
be true and correct on and as of such earlier date; and
(iii) All legal matters incident to the making of such
Advance shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice and each Letter of Credit Request with respect to
each such Advance shall constitute a representation and warranty by the Borrower
that the conditions contained in Sections 4.2(i) and (ii) have been satisfied.
Any Lender may require a duly completed Compliance Certificate in substantially
the same form of the Certificate attached as Exhibit B.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Existence. Borrower is a limited partnership duly organized
and validly existing under the laws of the State of Delaware, with its principal
place of business in Columbus, Ohio and is duly qualified as a foreign limited
partnership, properly licensed (if required), in good standing and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted, except where the failure to be so qualified, licensed and
in good standing and to have the requisite authority would not have a Material
Adverse Effect. Each of the Parent Entities and Borrower's Subsidiaries are duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and have all requisite authority to conduct its
business in each jurisdiction in which its business is conducted, except where
the failure to be so qualified, licensed and in good standing and to have the
requisite authority would not have a Material Adverse Effect.
5.2 Authorization and Validity. The Borrower has the limited
partnership power and authority and legal right to execute and deliver the Loan
Documents and to perform its obligations thereunder. The execution and delivery
by the Borrower of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper limited partnership proceedings,
and the Loan Documents constitute legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their terms, except
as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower, the Parent Entities, or any of
Borrower's Subsidiaries or the
40
Borrower's, Parent Entities' or any Subsidiary's articles of incorporation,
operating agreements, partnership agreement, or by-laws, or the provisions of
any indenture, instrument or agreement to which the Borrower, the Parent
Entities or any of Borrower's Subsidiaries is a party or is subject, or by which
it, or its Property, is bound, or conflict with or constitute a default
thereunder, except where such violation, conflict or default would not have a
Material Adverse Effect, or result in the creation or imposition of any Lien in,
of or on the Property of the Borrower, Parent Entity or a Subsidiary pursuant to
the terms of any such indenture, instrument or agreement. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents other
than the filing of a copy of this Agreement.
5.4 Financial Statements; Material Adverse Effect. All consolidated
financial statements of the Loan Parties heretofore or hereafter delivered to
the Lenders were prepared in accordance with GAAP in effect on the preparation
date of such statements and fairly present in all material respects the
consolidated financial condition and operations of the Loan Parties at such date
and the consolidated results of their operations for the period then ended,
subject, in the case of interim financial statements, to normal and customary
year-end adjustments. From the preparation date of the most recent financial
statements delivered to the Lenders through the Agreement Execution Date, there
was no change in the business, properties, or condition (financial or otherwise)
of the Borrower and its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
5.5 Taxes. The Loan Parties have filed all United States federal tax
returns and all other tax returns which are required to be filed and have paid
all taxes due pursuant to said returns or pursuant to any assessment received by
the Borrower or any of its Subsidiaries except such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided. No
tax liens have been filed and no claims are being asserted with respect to such
taxes. The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
5.6 Litigation and Guarantee Obligations. Except as set forth on
Schedule 5 hereto or as set forth in written notice to the Administrative Agent
from time to time, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Loan Parties which could
reasonably be expected to have a Material Adverse Effect. The Borrower has no
material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 6.1 or as set forth in written notices to the
Administrative Agent given from time to time after the Agreement Execution Date
on or about the date such material contingent obligations are incurred.
5.7 Subsidiaries. Schedule 12 hereto contains, an accurate list of all
Subsidiaries of the Borrower, setting forth their respective jurisdictions of
incorporation or formation and the percentage of their respective capital stock
or partnership or membership interest owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock of such
Subsidiaries that are corporations have been duly authorized and issued and are
fully paid and non-assessable.
5.8 ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $1,000,000. Neither the Borrower nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $250,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements
41
of law and regulations, no Reportable Event has occurred with respect to any
Plan, neither the Borrower nor any other members of the Controlled Group has
withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Plan.
5.9 Accuracy of Information. No information, exhibit or report
furnished by the Loan Parties to the Administrative Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
5.10 Regulation U. The Borrower has not used the proceeds of any
Advance to buy or carry any margin stock (as defined in Regulation U) in
violation of the terms of this Agreement.
5.11 Material Agreements. Neither the Borrower, nor the Parent
Entities, nor any Subsidiary is a party to any agreement or instrument or
subject to any charter or other corporate restriction which could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower, nor the Parent
Entities nor any Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default could have a Material
Adverse Effect, or (ii) any agreement or instrument evidencing or governing
Indebtedness, which default would constitute a Default hereunder.
5.12 Compliance With Laws. The Borrower has complied with all
applicable statutes, rules, regulations, orders and restrictions of any domestic
or foreign government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property, except for any non-compliance which would not have a
Material Adverse Effect. The Loan Parties have not received any notice to the
effect that its operations are not in material compliance with any of the
requirements of applicable federal, state and local environmental, health and
safety statutes and regulations or the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could have a Material Adverse Effect.
5.13 Ownership of Projects. Except as set forth on Schedule 4 hereto,
on the date of this Agreement, the Borrower will have good and marketable title,
free of all Liens other than those permitted by Section 6.16, to all of the
Projects reflected in the financial statements as owned by it.
5.14 Investment Company Act. Neither the Borrower, nor the Parent
Entities, nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
5.15 Public Utility Holding Company Act. Neither the Borrower, nor the
Parent Entities, nor any Subsidiary is a "holding company" or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
5.16 Solvency.
(i) Immediately after the Agreement Execution Date and
immediately following the making of each Loan and after giving effect
to the application of the proceeds of such Loans, (a) the fair value of
the assets of the Borrower and its Subsidiaries on a consolidated
basis, at a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the
42
Borrower and its Subsidiaries on a consolidated basis; (b) the present
fair saleable value of the Property of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount
that will be required to pay the probable liability of the Borrower and
its Subsidiaries on a consolidated basis on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts
and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) the Borrower and
its Subsidiaries on a consolidated basis will not have unreasonably
small capital with which to conduct the businesses in which they are
engaged as such businesses are now conducted and are proposed to be
conducted after the date hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to
be received by it or any such Subsidiary and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
5.17 Insurance. The Loan Parties carry insurance on their Projects with
financially sound and reputable insurance companies, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar Projects in localities where
the Borrower and its Subsidiaries operate, including, without limitation:
(i) Property and casualty insurance (including coverage for
flood and other water damage for any Project located within a 100-year
flood plain) in the amount of the replacement cost of the improvements
at the Project (to the extent replacement cost insurance is maintained
by companies engaged in similar business and owning similar
properties);
(ii) Builder's risk insurance for any Project under
construction in the amount of the construction cost of such Project;
(iii) Loss of rental income insurance in the amount not less
than one year's gross revenues from the Projects; and
(iv) Comprehensive general liability insurance in the amount
of $20,000,000 per occurrence.
The Administrative Agent has reviewed the insurance certificates
provided pursuant to Section 4.1(xxi) and confirms that they are acceptable in
their current form.
5.18 REIT Status. Glimcher Realty Trust is qualified as a real estate
investment trust under Section 856 of the Code and currently is in compliance in
all material respects with all provisions of the Code applicable to the
qualification of the Borrower as a real estate investment trust.
5.19 Title to Property. The execution, delivery or performance of the
Loan Documents required to be delivered by the Borrower hereunder will not
result in the creation of any Lien on the Projects of the Consolidated Group
other than those interests intended to secure the Obligations. No consent to the
transactions contemplated hereunder is required from any ground lessor or
mortgagee or beneficiary under a deed of trust or any other party except as has
been delivered to the Lenders.
43
5.20 Environmental Matters. Each of the following representations and
warranties is true and correct on and as of the Agreement Execution Date except
as disclosed on Schedule 6 attached hereto and to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of the Borrower, the Collateral Pool
Assets of the Borrower and its Subsidiaries do not contain any
Materials of Environmental Concern in amounts or concentrations which
constitute a violation of, or could reasonably give rise to liability
of the Borrower or any Subsidiary under, Environmental Laws.
(b) To the best knowledge of the Borrower, with respect to all
Projects owned by the Borrower and/or its Subsidiaries (x) for at least
two (2) years, have in the last two years, or (y) for less than two (2)
years, have for such period of ownership, been in compliance in all
material respects with all applicable Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Projects,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Projects of the Borrower and its Subsidiaries in violation of, or in a
manner or to a location which could reasonably give rise to liability
of the Borrower or any Subsidiary under, Environmental Laws, nor have
any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Projects of the Borrower and
its Subsidiaries in violation of, or in a manner that could give rise
to liability of the Borrower or any Subsidiary under, any applicable
Environmental Laws.
(e) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any of its
Subsidiaries is or, to the Borrower's knowledge, will be named as a
party with respect to the Projects of the Borrower and its
Subsidiaries, nor are there any consent decrees or other decrees,
consent orders, administrative order or other orders, or other
administrative of judicial requirements outstanding under any
Environmental Law with respect to the Projects of the Borrower and its
Subsidiaries.
(f) To the best knowledge of the Borrower, there has been no
release or threat of release of Materials of Environmental Concern at
or from the Projects of the Borrower and its Subsidiaries, or arising
from or related to the operations of the Borrower and its Subsidiaries
in connection with the Projects in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws.
5.21 Collateral Pool Assets.
(a) Each of the representations and warranties made by each
Loan Party in its Security Documents with respect to any Collateral
Pool Asset is true and correct in all material respects.
44
(b) No Collateral Pool Asset is located in an area that has
been identified by the Secretary of Housing and Urban Development as an
area having special flood hazards and in which flood insurance has been
made available under the National Flood Insurance Act of 1968 or the
Flood Disaster Protection Act of 1973, as amended, or any successor
law, or, if located within any such area, the Borrower has obtained and
will maintain through the Facility Termination Date the insurance
prescribed in Section 4.1(xviii) hereof.
(c) To the Borrower's knowledge, each Collateral Pool Asset
and the present use and occupancy thereof are in material compliance
with all applicable zoning ordinances (without reliance upon adjoining
or other properties), building codes, land use and Environmental Laws,
and other similar laws ("Applicable Laws").
(d) Each Collateral Pool Asset is served by all utilities
required for the current or contemplated use thereof. Each Collateral
Pool Asset has accepted or is equipped to accept such utility service.
(e) All public roads and streets necessary for service of and
access to each Collateral Pool Asset for the current or contemplated
use thereof have been completed, and are open for use by the public.
(f) Each Collateral Pool Asset is served by public water and
sewer systems or, if a Collateral Pool Asset is not serviced by a
public water and sewer system, the alternate systems are adequate and
meet, in all material respects, all requirements and regulations of,
and otherwise comply in all material respects with, all Applicable Laws
with respect to such alternate systems.
(g) Except as may be disclosed in the reports delivered to
Administrative Agent pursuant to Section 4.1 hereof, Borrower is not
aware of any latent or patent structural or other significant
deficiency of any Collateral Pool Asset. Each Collateral Pool Asset is
free of damage and waste that would materially and adversely affect the
value of such Collateral Pool Asset, is in good repair and there is no
deferred maintenance other than ordinary wear and tear. Each Collateral
Pool Asset is free from damage caused by fire or other casualty. There
is no pending or, to the actual knowledge of Borrower, threatened
condemnation proceedings affecting any Collateral Pool Asset, or any
material part thereof.
(h) To Borrower's knowledge, except as may be disclosed in the
reports delivered to Administrative Agent pursuant to Section 4.1
hereof, all liquid and solid waste disposal, septic and sewer systems
located on each and every Collateral Pool Asset are in a good and safe
condition and repair and to Borrower's knowledge, in material
compliance with all Applicable Laws with respect to such systems.
(i) All improvements on each Collateral Pool Asset lie within
the boundaries and building restrictions of the legal description of
record of such Collateral Pool Asset, no improvements encroach upon
easements benefiting any Collateral Pool Asset other than encroachments
that do not materially adversely affect the use or occupancy of a
Collateral Pool Asset and no improvements on adjoining properties
encroach upon any Collateral Pool Asset or easements benefiting any
Collateral Pool Asset other than encroachments that do not materially
adversely affect the use or occupancy of a Collateral Pool Asset. Each
Collateral Pool Asset is served by roads which are located either on
permanent easements that benefit all or part of such
45
Collateral Pool Asset or on public property and each Collateral Pool
Asset has access to, by virtue of such easements or otherwise, and is
contiguous to a physically open, dedicated all weather public street,
and has the necessary permits for ingress and egress.
(j) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold
payments, or other outstanding charges affecting any Collateral Pool
Asset except to the extent such items are being contested in good faith
and as to which adequate reserves have been provided.
(k) Each Collateral Pool Asset conforms to all requirements
for an Eligible Collateral Pool Property.
A breach of any of the representations and warranties
contained in this Section 5.21 in any material respect with
respect to a Project shall disqualify such Project from being
a Collateral Pool Asset for so long as such breach continues
(unless otherwise approved by the Required Lenders) but shall
not constitute a Default (unless the elimination of such
Project as a Collateral Pool Asset results in a Default under
one of the other provisions of this Agreement).
Borrower agrees that all of its representations and warranties set forth in
Article V of this Agreement and elsewhere in this Agreement are true on the
Agreement Effective Date, and will be true on each Effective Date in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders) upon each request for
disbursement of an Advance. Each request for disbursement hereunder shall
constitute a reaffirmation of such representations and warranties as deemed
modified in accordance with the disclosures made and approved, as aforesaid, as
of the date of such request and disbursement.
5.22 Office of Foreign Asset Control. Borrower and any Guarantor are
not (and will not be) a person with whom any Lender is restricted from doing
business under regulations of the Office of Foreign Asset Control ("OFAC") of
the Department of the Treasury of the United States of America (including, those
Persons named on OFAC's Specially Designated and Blocked Persons list) or under
any statute, executive order (including, the September 24, 2001 Executive Order
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action and is not and
shall not knowingly engage in any dealings or transactions or otherwise be
associated with such persons. In addition, Borrower hereby agrees to provide to
any Lender with any additional information that any Lender deems necessary from
time to time in order to ensure compliance with all applicable Laws concerning
money laundering and similar activities.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
46
6.1 Financial Reporting. The Borrower will maintain, for the
Consolidated Group, a system of accounting established and administered in
accordance with GAAP, and furnish to the Administrative Agent and the Lenders:
(i) As soon as available, but in any event not later than 45
days after the close of each fiscal quarter, other than the fourth
quarter, for the Consolidated Group, an unaudited consolidated and
consolidating balance sheet as of the close of each such period and the
related unaudited consolidated and consolidating statements of income
and retained earnings and of cash flows of the Consolidated Group for
such period and the portion of the fiscal year through the end of such
period, setting forth in each case in comparative form the figures for
the previous year, all certified by the Borrower's chief financial
officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45
days after the close of each fiscal quarter, other than the fourth
quarter, for the Consolidated Group, the following reports in form and
substance reasonably satisfactory to the Administrative Agent, all
certified by the Borrower's chief financial officer or chief accounting
officer: a statement of Funds From Operations, an operating statement
for each individual Collateral Pool Asset, a statement detailing
Consolidated Outstanding Indebtedness and Adjusted Annual EBITDA, a
listing of capital expenditures, a rent roll, and such other
information on all Collateral Pool Assets as may be reasonably
requested by the Administrative Agent;
(iii) As soon as available, but in any event not later than 90
days after the close of each fiscal year, for the Consolidated Group,
audited financial statements, including a consolidated and
consolidating balance sheet as at the end of such year and the related
consolidated and consolidating statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit, prepared by independent certified public
accountants of nationally recognized standing reasonably acceptable to
the Administrative Agent;
(iv) Together with the quarterly and annual financial
statements required hereunder, a compliance certificate in
substantially the form of Exhibit B hereto signed by the Borrower's
chief financial officer, chief accounting officer or chief operating
officer showing the calculations and computations necessary to
determine compliance with this Agreement and stating that, to such
officer's knowledge, no Default or Unmatured Default exists, or if, to
such officer's knowledge, any Default or Unmatured Default exists,
stating the nature and status thereof;
(v) As soon as possible and in any event within 10 days after
a responsible officer of the Borrower knows that any Reportable Event
has occurred with respect to any Plan, a statement, signed by the chief
financial officer of the Borrower, describing said Reportable Event and
the action which the Borrower proposes to take with respect thereto;
(vi) As soon as possible and in any event within 10 days after
receipt by a responsible officer of the Borrower, a copy of (a) any
notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the
release by the Borrower, any of its Subsidiaries, or any other Person
of any Material of Environmental Concern into the environment, and (b)
any notice alleging any violation of any federal, state or
47
local environmental, health or safety law or regulation by the Borrower
or any of its Subsidiaries, which, in the case of either (a) or (b)
could have a Material Adverse Effect;
(vii) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and proxy
statements so furnished; and
(viii) Such other information (including, without limitation,
financial statements for the Borrower and non-financial information) as
the Administrative Agent or any Lender may from time to time reasonably
request.
6.2 Use of Proceeds. The Borrower will, and will cause each of its
Subsidiaries to, use the proceeds of the Advances to finance the Borrower's
renovation and expansion of Projects, development of Projects, acquisition of
Projects, tenant improvements, repayment of Indebtedness, to provide working
capital and for general partnership purposes. The Borrower will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Advances (i) to
purchase or carry any "margin stock" (as defined in Regulation U) if such usage
could constitute a violation of Regulation U by any Lender, (ii) to fund any
purchase of, or offer for, a controlling portion of the Capital Stock of any
Person, unless the board of directors or other manager of such Person has
consented to such offer, or (iii) to make any Acquisition other than a Permitted
Acquisition.
6.3 Notice of Default. The Borrower will give, and will cause each of
its Subsidiaries to give, prompt notice in writing to the Administrative Agent
and the Lenders of the occurrence of any Default or Unmatured Default and of any
other development, financial or otherwise, which could reasonably be expected to
have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will do, and will cause each of
its Subsidiaries to do, all things necessary to remain duly incorporated or duly
qualified, validly existing and in good standing as a real estate investment
trust, corporation, limited liability company general partnership or limited
partnership, as the case may be, in its jurisdiction of incorporation/formation
(except with respect to mergers permitted pursuant to Section 6.12 and Permitted
Acquisitions) and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted and to carry on and conduct
their businesses in substantially the same manner as they are presently
conducted where the failure to do so could reasonably be expected to have a
Material Adverse Effect and, specifically, neither the Borrower nor its
Subsidiaries may undertake any business other than the acquisition, development,
ownership, management, operation and leasing of retail, office or industrial
properties, and ancillary businesses specifically related to such types of
properties.
6.5 Taxes. The Borrower will pay, and will cause each of its
Subsidiaries to pay, when due all taxes, assessments and governmental charges
and levies upon them of their income, profits or Projects, except those which
are being contested in good faith by appropriate proceedings and with respect to
which adequate reserves have been set aside.
6.6 Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance which is consistent with the representation
contained in Section 5.17 on all their Property and the Borrower will furnish to
any Lender upon reasonable request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to
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which they may be subject, the violation of which could reasonably be expected
to have a Material Adverse Effect.
6.8 Maintenance of Properties. The Borrower will, and will cause each
of its Subsidiary Guarantors to, do all things necessary to maintain, preserve,
protect and keep their respective Collateral Pool Assets, reasonably necessary
for the continuous operation of the Collateral Pool Assets, in good repair,
working order and condition, ordinary wear and tear excepted.
6.9 Inspection. The Borrower will, and will cause each of its
Subsidiaries to, permit the Lenders upon reasonable notice and during normal
business hours and subject to rights of tenants, by their respective
representatives and agents, to inspect any of the Projects, corporate books and
financial records of the Borrower and each of its Subsidiaries, to examine and
make copies of the books of accounts and other financial records of the Borrower
and each of its Subsidiaries, and to discuss the affairs, finances and accounts
of the Borrower and each of its Subsidiaries with officers thereof, and to be
advised as to the same by, their respective officers at such reasonable times
and intervals as the Lenders may designate.
6.10 Maintenance of Status. The Borrower shall cause Glimcher Realty
Trust to at all times maintain its status as a real estate investment trust in
compliance with all applicable provisions of the Code relating to such status.
6.11 Dividends. The Parent Entities and the Borrower and its
Subsidiaries shall be permitted to declare and pay dividends on their Capital
Stock from time to time, provided, however, that in no event shall any Parent
Entity or the Borrower declare or pay dividends on its Capital Stock or make
distributions with respect thereto to (other than the declaration and payment of
Preferred Dividends), if such dividends and distributions paid on account of the
then-current fiscal quarter and the three immediately preceding fiscal quarters,
in the aggregate for such period, would exceed 95% of Adjusted Funds From
Operations of the Consolidated Group for such period. Notwithstanding the
foregoing, the Parent Entities and the Borrower shall be permitted at all times
to distribute whatever amount of dividends is necessary to maintain the tax
status of Glimcher Realty Trust as a real estate investment trust.
6.12 No Change in Control. The Borrower will not, nor will it permit
the Parent Entities to undergo a Change in Control.
6.13 Delivery of Subsidiary Guaranties. The Borrower shall cause each
of its Subsidiaries that owns an Initial Collateral Pool Asset to execute and
deliver to the Administrative Agent the Subsidiary Guaranty as required under
Article IV above. As a condition to the addition of any Project as an Eligible
Collateral Pool Asset hereafter the Borrower shall cause the Subsidiary owning
such Project to execute and deliver to the Administrative Agent a joinder in the
Subsidiary Guaranty, together with supporting organizational and authority
documents and opinions similar to those provided with respect to the Borrower
and the initial Guarantors under Section 4.1 hereof.
6.14 Intentionally Omitted.
6.15 Acquisitions and Investments. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or become or remain a partner in any
partnership or joint venture, or to make any Acquisition of any Person, except:
49
(i) Cash and Cash Equivalents;
(ii) Investments in existing Subsidiaries, Investments in
Subsidiaries formed for the purpose of developing or acquiring
Projects, Investments in joint ventures and partnerships engaged solely
in the business of purchasing, developing, owning, operating, leasing
and managing retail properties, and Investments in existence on the
date hereof and described in Schedule 1 hereto;
(iii) transactions permitted pursuant to Section 6.23;
(iv) Acquisitions of Persons whose primary operations consist
of the ownership, development, operation and management of retail
properties; and
(v) Equity interests in tenants obtained in connection with
tenant work-outs, not to exceed $5,000,000 in the aggregate;
provided that, after giving effect to such Acquisitions and Investments,
Borrower continues to comply with all its covenants herein. Acquisitions
permitted pursuant to this Section 6.15 shall be deemed to be "Permitted
Acquisitions".
6.16 Liens. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings and for which adequate
reserves shall have been set aside on its books;
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than 60
days past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside
on its books;
(iii) Liens arising out of pledges or deposits under workers'
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(iv) Easements, restrictions and such other encumbrances or
charges against real property as are of a nature generally existing
with respect to properties of a similar character and which do not in
any material and adverse way affect the marketability of the same or
materially and adversely interfere with the use thereof in the business
of the Borrower or its Subsidiaries;
(v) Liens on Projects to secure any Indebtedness permitted
hereunder to the extent such Liens (i) constitute a first priority Lien
on a Project or a second priority Lien on the same Project, but only to
the extent created simultaneously with a first priority Lien thereon,
and (ii) will not result in a Default in any of Borrower's covenants
herein.
Liens permitted pursuant to this Section 6.16 shall be deemed to be "Permitted
Liens".
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6.17 Affiliates. The Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate which is not a member of the Consolidated Group
except in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arms-length
transaction.
6.18 Intentionally Omitted.
6.19 Variable Interest Indebtedness. The Borrower shall not at any time
permit the outstanding principal balance of any Consolidated Outstanding
Indebtedness which bears interest at an interest rate that is not fixed through
the maturity date of such Indebtedness to exceed fifteen percent (15%) of Total
Asset Value, unless all of such Indebtedness in excess of such amount is subject
to a Rate Management Transaction approved by the Administrative Agent that
effectively converts the interest rate on such excess to a fixed rate.
6.20 Consolidated Net Worth. The Consolidated Group shall maintain a
Consolidated Net Worth of not less than $725,000,000 plus eighty-five percent
(85%) of the equity contributions or sales of treasury stock received by the
Borrower or any Parent Entity after the Agreement Execution Date.
6.21 Indebtedness and Cash Flow Covenants. The Borrower shall not
permit:
(i) The Recourse Indebtedness of the Consolidated Group to be
greater than fifteen percent (15%) of Total Asset Value at any time;
(ii) Adjusted Annual EBITDA to be less than 1.65 times
Consolidated Debt Service at any time;
(iii) Adjusted Annual EBITDA to be less than 1.50 times Fixed
Charges at any time; or
(iv) Consolidated Outstanding Indebtedness to be more than
sixty-five percent (65%) of Total Asset Value at any time.
6.22 Environmental Matters. Borrower and its Subsidiaries shall:
(a) Comply with, and use all reasonable efforts to ensure
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and use all
reasonable efforts to ensure that all tenants and subtenants obtain and
comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws, except to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect; provided
that in no event shall the Borrower or its Subsidiaries be required to
modify the terms of leases, or renewals thereof, with existing tenants
(i) at Projects owned by the Borrower or its Subsidiaries as of the
date hereof, or (ii) at Projects hereafter acquired by the Borrower or
its Subsidiaries as of the date of such acquisition, to add provisions
to such effect.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply
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in all material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws, except to the
extent that (i) the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not
be reasonably expected to have a Material Adverse Effect, or (ii) the
Borrower has determined in good faith that contesting the same is not
in the best interests of the Borrower and its Subsidiaries and the
failure to contest the same could not be reasonably expected to have a
Material Adverse Effect.
(c) Defend, indemnify and hold harmless Administrative Agent
and each Lender, and their respective officers and directors, from and
against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability under
any Environmental Laws applicable to the operations of the Borrower,
its Subsidiaries or the Projects, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification
therefor. This indemnity shall continue in full force and effect
regardless of the termination of this Agreement.
6.23 Permitted Investments.
(a) The Consolidated Group's Investment in Unimproved Land
shall not at any time exceed five percent (5%) of Total Asset Value.
(b) The Consolidated Group's Investment in First Mortgage
Receivables (with each asset valued at the lower of its acquisition
cost and its fair market value) shall not at any time exceed five
percent (5%) of Total Asset Value.
(c) The Consolidated Group's aggregate Investment in (i)
Investment Affiliates and (ii) any entity which is not a Wholly-Owned
Subsidiary (valued at the greater of the cash investment in that entity
by Borrower or the portion of Total Asset Value attributable to such
entity or its assets as the case may be) shall not at any time exceed
fifteen percent (15%) of Total Asset Value.
(d) The Consolidated Group's Investment in Construction in
Progress (with each asset valued at the lower of its acquisition cost
and its fair market value) shall not at any time exceed twenty percent
(20%) of Total Asset Value.
(e) The Consolidated Group's aggregate Investment in the above
items (a)-(d) in the aggregate shall not at any time exceed twenty-five
(25%) of Total Asset Value.
6.24 Limitation on Unsecured Indebtedness. The Consolidated Group shall
not at any time permit that portion of the Consolidated Outstanding Indebtedness
which is not secured by trust deeds or mortgages on Projects (excluding any
Indebtedness outstanding under the KeyBank Acquisition Facility) to exceed
$25,000,000, provided that Capitalized Leases shall be excluded from
Consolidated Outstanding Indebtedness for purposes of this Section 6.24 to the
extent that the amount so excluded on account of Capitalized Leases does not
exceed $18,000,000, in the aggregate.
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6.25 Encumbrances. The Borrower will not allow, or permit any member of
the Consolidated Group to allow, its direct or indirect ownership interests in
any other member of the Consolidated Group or any Investment Affiliate to be
encumbered to secure any Indebtedness, other than pursuant to existing
encumbrances set forth on Schedule 8 attached hereto.
6.26 Approval of Leases. Enter into any lease for more than 10,000
square feet of gross leaseable area at any Eligible Collateral Pool Asset
without the prior written consent of the Administrative Agent, which consent
shall be given within ten (10) business days after Administrative Agent's
receipt of a request for consent, or if not given in such time period, shall be
deemed approved.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Nonpayment of any principal payment due hereunder or under any Note
when due.
7.2 Nonpayment of interest upon any Note or of any fee or other payment
Obligations under any of the Loan Documents within five (5) Business Days after
the same becomes due.
7.3 The breach of any of the terms or provisions of Sections 6.2, 6.10,
6.11, 6.12, 6.13, 6.16(v), 6.21, and 6.23 through 6.25.
7.4 Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, or any material certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.5 The breach by the Borrower (other than a breach which constitutes a
Default under Section 7.1, 7.2, 7.3 or 7.4) of any of the terms or provisions of
this Agreement which is not remedied within thirty (30) days after written
notice from the Administrative Agent or any Lender.
7.6 Failure of any member of the Consolidated Group to pay when due (i)
any Indebtedness which is outstanding under the KeyBank Acquisition Facility or
(ii) any other Recourse Indebtedness in excess of $15,000,000 in the aggregate
(the Indebtedness in clauses (i) and (ii) being referred to herein collectively,
"Material Indebtedness") or the default any member of the Consolidated Group in
the performance of any term, provision or condition contained in any agreement,
or any other event shall occur or condition exist, which in either case causes
any such Material Indebtedness to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated maturity
thereof.
7.7 Any member of the Consolidated Group shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it as a bankrupt or insolvent, or seeking dissolution,
53
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate action to authorize or effect any of the foregoing actions
set forth in this Section 7.7, (vi) fail to contest in good faith any
appointment or proceeding described in Section 7.8 or (vii) admit in writing its
inability to pay its debts generally as they become due.
7.8 A receiver, trustee, examiner, liquidator or similar official shall
be appointed for any member of the Consolidated Group or for any Substantial
Portion of the Property of any member of the Consolidated Group or a proceeding
described in Section 7.7(iv) shall be instituted against any member of the
Consolidated Group and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of ninety (90)
consecutive days.
7.9 Any member of the Consolidated Group shall fail within sixty (60)
days to pay, bond or otherwise discharge any judgments or orders for the payment
of money in an amount which, when added to all other judgments or orders
outstanding against any member of the Consolidated Group would exceed
$25,000,000 in the aggregate, which have not been stayed on appeal or otherwise
appropriately contested in good faith.
7.10 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $1,000,000 or requires
payments exceeding $500,000 per annum.
7.11 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $500,000.
7.12 Failure to remediate within the time period permitted by law or
governmental order, after all administrative hearings and appeals have been
concluded (or within a reasonable time in light of the nature of the problem if
no specific time period is so established), material environmental problems at
Properties owned by the Borrower or any of its Subsidiaries or Investment
Affiliates whose aggregate book values are in excess of $5,000,000.
7.13 The occurrence of any "Default" as defined in any Loan Document or
the breach of any of the terms or provisions of any Loan Document, which default
or breach continues beyond any period of grace therein provided.
7.14 The attempted revocation, challenge, disavowment, or termination
by the Borrower, a Parent Entity or a Guarantor of any of the Loan Documents.
7.15 Any Change of Control shall occur.
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7.16 Either the Borrower or any Parent Entity, without obtaining
consent of the Required Lenders, shall enter into any merger, consolidation,
reorganization or liquidation or transfer or otherwise dispose of all or
substantially all of their Properties, unless (a) in the case of a merger or
consolidation the Borrower or such Parent Entity is the surviving entity in such
merger or consolidation and (b) after giving effect to the merger, the Borrower
remains in compliance with the terms of the Credit Agreement, provided that any
such action shall not constitute a Default unless the Borrower shall fail to
reverse such action within sixty (60) days after written notice from the
Administrative Agent that such action constitutes a Default hereunder.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration. If any Default described in Section 7.7 or 7.8 occurs
with respect to the Borrower, the obligations of the Lenders to make Loans and
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the
Administrative Agent or any Lender. If any other Default occurs, so long as a
Default exists Lenders shall have no obligation to make any Loans and the
Required Lenders, at any time prior to the date that such Default has been fully
cured, may permanently terminate the obligations of the Lenders to make Loans
hereunder and declare the Obligations to be due and payable, or both, whereupon
if the Required Lenders elected to accelerate (i) the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives and (ii) if any
automatic or optional acceleration has occurred, the Administrative Agent, as
directed by the Required Lenders (or if no such direction is given within 30
days after a request for direction, as the Administrative Agent deems in the
best interests of the Lenders, in its sole discretion), shall use its good faith
efforts to collect, including without limitation, by filing and diligently
pursuing judicial action, all amounts owed by the Borrower and any Guarantor
under the Loan Documents.
In addition to the foregoing, following the occurrence of a Default and
so long as any Facility Letter of Credit has not been fully drawn and has not
been cancelled or expired by its terms, upon demand by the Required Lenders the
Borrower shall deposit in the Letter of Credit Collateral Account cash in an
amount equal to the aggregate undrawn face amount of all outstanding Facility
Letters of Credit and all fees and other amounts due or which may become due
with respect thereto. The Borrower shall have no control over funds in the
Letter of Credit Collateral Account and shall not be entitled to receive any
interest thereon. Such funds shall be promptly applied by the Administrative
Agent to reimburse the Issuing Bank for drafts drawn from time to time under the
Facility Letters of Credit and associated issuance costs and fees. Such funds,
if any, remaining in the Letter of Credit Collateral Account following the
payment of all Obligations in full shall, unless the Administrative Agent is
otherwise directed by a court of competent jurisdiction, be promptly paid over
to the Borrower.
If, within 10 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.7 or 7.8 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, all of the Lenders (in their sole discretion) shall so direct, the
Administrative Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
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8.2 Amendments. Subject to the provisions of this Article VIII the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
agreement or waiver shall, without the consent of all Lenders:
(i) Extend the Facility Termination Date, or forgive all or
any portion of the principal amount of any Loan or accrued interest
thereon or the Unused Fee, reduce the Applicable Margins (or modify any
definition herein which would have the effect of reducing the
Applicable Margins) or the underlying interest rate options or extend
the time of payment of any such principal, interest or facility fees.
(ii) release any Parent Entity or any Subsidiary Guarantor
(other than a Subsidiary Guarantor that no longer owns a Collateral
Pool Asset) from the Guaranty or the Subsidiary Guaranty, as the case
may be.
(iii) Reduce the percentage specified in the definition of
Required Lenders.
(iv) Increase the Aggregate Commitment beyond $150,000,000.
(v) Permit the Borrower to assign its rights under this
Agreement.
(vi) Amend Sections 8.1, 8.2 , 8.4 or 11.2.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent.
8.3 Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 8.2, and
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
8.4 Foreclosure. The Lenders hereby agree to the following in the event
of foreclosure under any of the Mortgages or any other attempt at realization of
the security thereunder:
(a) To subscribe to and accept its Percentage of the ownership
interests in any entity organized to hold title to the Collateral Pool
Assets and that the nature of such entity shall be determined by the
Required Lenders, subject to each Lender's right to hold its interests
in such entity in, and assign such interests to, any affiliate of such
Lender or any other entity required by laws or regulations governing
such Lender. The Administrative Agent is hereby authorized to act for
and on behalf of the Lenders in all day-to-day matters with respect to
the exercise of
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rights described herein such as the supervision of attorneys,
accountants, appraisers or others acting for the benefit of all of the
Lenders in connection with litigation, foreclosure or realization of
all or any security given as Collateral for the Obligations or other
similar actions.
(b) If the Lenders acquire the Collateral Pool Assets either
by foreclosure or deed in lieu of foreclosure, to negotiate in good
faith to reach agreement in writing relating to the ownership,
operation, maintenance, marketing and sale of such Collateral Pool
Assets and that such agreement shall be consistent with the following:
(i) The Collateral Pool Assets will not be held as a
long-term investment but will be marketed in an attempt to
sell them in a time period consistent with the regulations
applicable to national banks for owning real estate. Current
appraisals of the Collateral Properties shall be obtained by
the Administrative Agent from time to time during the
ownership period at Lenders' expense (without diminishing or
releasing any obligation of the Borrower to pay for such
costs) and an appraised value shall be established and updated
from time to time based on such appraisals.
(ii) Certain decision making with respect to the
day-to-day operations of the Properties will be delegated to
management and leasing agents. All agreements with such
management and leasing agents will be subject to the approval
of the Required Lenders. The day-to-day supervision of such
agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences,
all decisions as to whether to sell the Collateral Pool Assets
shall be subject to the approval of all the Lenders.
Notwithstanding the foregoing, the Lenders agree that if the
Administrative Agent receives a bona fide "all cash" offer
from an entity not affiliated with the Borrower or any Lender
for the purchase of any of the Collateral Pool Assets and such
offer equals or exceeds ninety percent (90%) of the most
recent Appraised Value of such Collateral Pool Asset as
established by an Appraisal prepared in accordance with the
standards established in this Agreement that has been
completed within six months of such offer, then the
Administrative Agent shall give written notice of such offer
to the Lenders and request their approval for sale at such a
price. If the Required Lenders approve of such a sale (or are
deemed to approve of such a sale) then the Administrative
Agent, acting on behalf of the Lenders, is irrevocably
authorized to accept such offer.
(iv) All expenses incurred by the Administrative
Agent and Lenders in connection with the ownership, operation,
maintenance, marketing and sale of the Collateral Pool Assets
shall be allocated among the Lenders pro rata in accordance
with their respective Percentages.
(v) All expenditures and other actions taken with
respect to the Collateral Pool Assets shall at all times be
subject to the regulations and requirements pertaining to
national banks applicable thereto. Without limiting the
generality of the foregoing, all necessary approvals from
regulatory authorities in connection with any expenditure of
funds by the Lenders shall be a condition to such expenditure.
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8.5 Insolvency of Borrower. In the event of the insolvency of the
Borrower, the Lenders shall have no obligation to make further disbursements of
the Facility, and the outstanding principal balance of the Facility, including
accrued and unpaid interest thereon, shall be immediately due and payable.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Notes and
the making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Intentionally Omitted.
9.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Administrative Agent and the Lenders
and supersede all prior commitments, agreements and understandings among the
Borrower, the Administrative Agent and the Lenders relating to the subject
matter thereof.
9.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
9.7 Expenses; Indemnification. The Borrower shall reimburse the
Administrative Agent for any costs, and out-of-pocket expenses (including,
without limitation, all reasonable fees for consultants and fees and reasonable
expenses for attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent) paid or incurred by the Administrative
Agent in connection with the amendment, modification, and enforcement of the
Loan Documents. The Borrower also agrees to reimburse the Administrative Agent
and the Lenders for any reasonable costs, internal charges and out-of-pocket
expenses (including, without limitation, all fees and reasonable expenses for
attorneys for the Administrative Agent and the Lenders, which attorneys may be
employees of the Administrative Agent or the Lenders) paid or incurred by the
Administrative Agent or any Lender in connection with the collection and
enforcement of the Loan Documents (including, without limitation, any workout).
The Borrower further agrees to indemnify the Administrative Agent, each Lender
and their Affiliates, and their directors and officers against all losses,
claims, damages, penalties, judgments, liabilities and expenses (including,
without limitation, all reasonable fees and reasonable expenses for attorneys of
the indemnified parties, all reasonable expenses of litigation or preparation
therefor whether or not the
58
Administrative Agent, or any Lender is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the Projects, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Loan
hereunder, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor.
The obligations of the Borrower under this Section shall survive the termination
of this Agreement.
9.8 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP.
9.10 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.11 Nonliability of Lenders. The relationship between the Borrower, on
the one hand, and the Lenders and the Administrative Agent, on the other, shall
be solely that of borrower and lender. Neither the Administrative Agent nor any
Lender shall have any fiduciary responsibilities to the Borrower. Neither the
Administrative Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
9.12 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF OHIO, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR OHIO STATE
COURT SITTING IN CLEVELAND IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF
THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF,
59
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT
IN CLEVELAND, OHIO.
9.14 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment. KeyBank National Association, is hereby appointed
Administrative Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Administrative Agent to act as the agent
of such Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this Article X. Notwithstanding the use of the defined
term "Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of the term "secured party" as defined in the Ohio
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
10.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
10.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for (i) any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct; or
(ii) any determination by the Administrative Agent that compliance with any law
or any governmental or quasi-governmental rule, regulation, order, policy,
guideline or directive (whether or not having the force of law) requires the
Advances and Commitments hereunder to be classified as being part of a "highly
leveraged transaction".
10.4 No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
60
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in Article IV, except receipt of items required to be delivered to the
Administrative Agent; (iv) the validity, effectiveness or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; (v) the value, sufficiency, creation, perfection, or priority of any
interest in any collateral security; or (vi) the financial condition of the
Borrower or any Guarantor. Except as otherwise specifically provided herein, the
Administrative Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrower to the Administrative Agent
at such time, but is voluntarily furnished by the Borrower to the Administrative
Agent (either in its capacity as Administrative Agent or in its individual
capacity).
10.5 Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the required percentage of the Lenders needed to take
such action or refrain from taking such action, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Document unless
it shall be requested in writing to do so by the Required Lenders. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6 Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other
Loan Document by or through employees, agents, and attorneys-in-fact and shall
not be answerable to the Lenders, except as to money or securities received by
it or its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder and under any other Loan
Document.
10.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (i) for any amounts not reimbursed by
the Borrower for which the Administrative Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents, if not paid by Borrower and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including without
limitation, for any such amounts incurred by or asserted against the
Administrative
61
Agent in connection with any dispute between the Administrative Agent and any
Lender or between two or more of the Lenders), or the enforcement of any of the
terms thereof or of any such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct or a breach of the Administrative Agent's
express obligations and undertakings to the Lenders. The obligations of the
Lenders and the Administrative Agent under this Section 10.8 shall survive
payment of the Obligations and termination of this Agreement.
10.9 Rights as a Lender. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document as any Lender and may exercise the same as
though it were not the Administrative Agent, and the term "Lender" or "Lenders"
shall, at any time when the Administrative Agent is a Lender, unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person.
10.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.11 Successor Administrative Agent. Except as otherwise provided
below, KeyBank National Association shall at all times serve as the
Administrative Agent during the term of this Facility. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent. If the Administrative Agent has been grossly negligent in
the performance of its obligations hereunder, the Administrative Agent may be
removed at any time by written notice received by the Administrative Agent from
all other Lenders, such removal to be effective on the date specified by the
other Lenders. Upon any such resignation or removal, the Required Lenders shall
appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders within thirty days after the resigning Administrative Agent's
giving notice of its intention to resign, then the resigning Administrative
Agent shall appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent. Notwithstanding the previous sentence, the Administrative
Agent may at any time without the consent of the Borrower or any Lender, appoint
any of its Affiliates which is a commercial bank as a successor Administrative
Agent hereunder. No successor Administrative Agent shall be deemed to be
appointed hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness of the
resignation or removal of an Administrative Agent, the provisions of this
62
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents.
10.12 Notice of Defaults. If a Lender becomes aware of a Default or
Unmatured Default, such Lender shall notify the Administrative Agent of such
fact provided that the failure to give such notice shall not create liability on
the part of a Lender. Upon receipt of such notice that a Default or Unmatured
Default has occurred, the Administrative Agent shall notify each of the Lenders
of such fact.
10.13 Requests for Approval. If the Administrative Agent requests in
writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative Agent
within ten (10) Business Days (or sooner if such notice specifies a shorter
period for responses based on Administrative Agent's good faith determination
that circumstances exist warranting its request for an earlier response) after
such written request from the Administrative Agent. If the Lender does not so
respond, that Lender shall be deemed to have approved the request.
10.14 Defaulting Lenders. At such time as a Lender becomes a Defaulting
Lender, such Defaulting Lender's right to vote on matters which are subject to
the consent or approval of the Required Lenders, each affected Lender or all
Lenders shall be immediately suspended until such time as the Lender is no
longer a Defaulting Lender, except that the amount of the Commitment of the
Defaulting Lender may not be changed without its consent. If a Defaulting Lender
has failed to fund its pro rata share of any Advance and until such time as such
Defaulting Lender subsequently funds its pro rata share of such Advance, all
Obligations owing to such Defaulting Lender hereunder shall be subordinated in
right of payment, as provided in the following sentence, to the prior payment in
full of all principal of, interest on and fees relating to the Loans funded by
the other Lenders in connection with any such Advance in which the Defaulting
Lender has not funded its pro rata share (such principal, interest and fees
being referred to as "Senior Loans" for the purposes of this section). All
amounts paid by the Borrower, the Parent Entities or the Guarantors and
otherwise due to be applied to the Obligations owing to such Defaulting Lender
pursuant to the terms hereof shall be distributed by the Administrative Agent to
the other Lenders in accordance with their respective pro rata shares
(recalculated for the purposes hereof to exclude the Defaulting Lender) until
all Senior Loans have been paid in full provided, however, in no event will any
such distribution to the other Lenders give rise to any liability of the
Borrower to the Defaulting Lender. After the Senior Loans have been paid in full
equitable adjustments will be made in connection with future payments by the
Borrower to the extent a portion of the Senior Loans had been repaid with
amounts that otherwise would have been distributed to a Defaulting Lender but
for the operation of this Section 10.14. This provision governs only the
relationship among the Administrative Agent, each Defaulting Lender and the
other Lenders; nothing hereunder shall limit the obligation of the Borrower to
repay all Loans in accordance with the terms of this Agreement. The provisions
of this section shall apply and be effective regardless of whether a Default
occurs and is continuing, and notwithstanding (i) any other provision of this
Agreement to the contrary, (ii) any instruction of the Borrower as to its
desired application of payments or (iii) the suspension of such Defaulting
Lender's right to vote on matters which are subject to the consent or approval
of the Required Lenders or all Lenders.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, or any
Default occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other
Indebtedness at any time held or owing by any Lender or any of its Affiliates to
or for the credit or account of the Borrower may be offset and applied toward
the payment of the Obligations owing to such Lender at any time prior to the
date that such Default has been fully cured, whether or not the Obligations, or
any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments of Swingline Loans
and payments received pursuant to Sections 3.1, 3.2, 3.4 or 3.5) in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion of Loans.
If any Lender, whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to their Loans. In case
any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Administrative Agent and Borrower may treat
the Person which made any Loan or which holds any Note as the owner thereof for
all purposes hereof unless and until such Person complies with Section 12.3;
provided, however, that the Administrative Agent and Borrower may in its
discretion (but shall not be required to) follow instructions from the Person
which made any Loan or which holds any Note to direct payments relating to such
Loan or Note to another Person. Any assignee of the rights to any Loan or any
Note agrees by acceptance of such assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a Note has been
issued in
64
evidence thereof), shall be conclusive and binding on any subsequent holder or
assignee of the rights to such Loan.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks, financial institutions, pension
funds, or any other funds or entities ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests,
and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which would
require consent of all the Lenders pursuant to the terms of Section 8.2
or of any other Loan Document.
12.2.3 Benefit of Setoff. The Borrower agrees that each
Participant which has previously advised the Borrower in writing of its
purchase of a participation in a Lender's interest in its Loans shall
be deemed to have the right of setoff provided in Section 11.1 in
respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan
Documents. Each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold
to each Participant, provided that such Lender and Participant may not
each setoff amounts against the same portion of the Obligations, so as
to collect the same amount from the Borrower twice. The Lenders agree
to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to any of such Lender's affiliates or to one or more banks,
financial institutions or pension funds, or with the prior approval of
the Borrower, which shall not be unreasonably withheld or delayed, any
other entity ("Purchasers") all or any portion of its rights and
obligations under the Loan Documents provided that any assignment of
only a portion of such rights and obligations shall be in an amount not
less than $5,000,000. In addition, KeyBank National Association agrees
that it will not assign any portion of its Commitment or Commitments of
its affiliates, if such assignment will result in the
65
amount of the Commitment to be held by KeyBank National Association and
its affiliates to be less than the next highest Commitment amount held
by any other Lender provided that no Default has occurred and is
continuing. Notwithstanding the foregoing, no approval of the Borrower
shall be required for any such assignment if a Default has occurred and
is then continuing. Such assignment shall be substantially in the form
of Exhibit D hereto or in such other form as may be agreed to by the
parties thereto. The consent of the Administrative Agent shall be
required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof. Such consent
shall not be unreasonably withheld.
12.3.2 Effect; Effective Date. Upon (i) delivery to the
Administrative Agent and Borrower of a notice of assignment,
substantially in the form attached as Exhibit "I" to Exhibit D hereto
(a "Notice of Assignment"), together with any consents required by
Section 12.3.1, and (ii) payment of a $3,500 fee by the assignor or
assignee to the Administrative Agent for processing such assignment,
such assignment shall become effective on the effective date specified
in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans
under the applicable assignment agreement are "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as
if it were an original party hereto, and no further consent or action
by the Borrower, the Lenders or the Administrative Agent shall be
required to release the transferor Lender, and the transferor Lender
shall automatically be released on the effective date of such
assignment, with respect to the percentage of the Aggregate Commitment
and Loans assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts
reflecting their Commitment, as adjusted pursuant to such assignment.
12.4 Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, subject to
Section 9.11 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 3.5.
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ARTICLE XIII
NOTICES
13.1 Giving Notice. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address (or to
counsel for such party) as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
13.2 Change of Address. The Borrower, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
(Remainder of page intentionally left blank.)
67
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its sole general partner
By:______________________________________
Print Name:______________________________
Title:___________________________________
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxx
COMMITMENTS: KEYBANK NATIONAL ASSOCIATION, a national
$150,000,000 banking association,
Individually and as Administrative Agent
By:______________________________________
Print Name:______________________________
Title:___________________________________
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
EXHIBIT A
FORM OF NOTE
_________, 2003
Glimcher Properties Limited Partnership, a limited partnership
organized under the laws of the State of Delaware (the "Borrower"), promises to
pay to the order of _________________________ (the "Lender") the aggregate
unpaid principal amount of all Loans made by the Lender to the Borrower pursuant
to Article II of the Credit Agreement (as the same may be amended or modified,
the "Agreement") hereinafter referred to, in immediately available funds at the
main office of KeyBank National Association in Cleveland, Ohio, as
Administrative Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay remaining unpaid principal of and accrued and unpaid interest on the
Loans in full on the Facility Termination Date or such earlier date as may be
required under the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement, dated as of October ____, 2003 among the
Borrower, KeyBank National Association individually and as Administrative Agent,
and the other Lenders named therein, to which Agreement, as it may be amended
from time to time, reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is a Default under the Agreement or any other Loan Document
and Administrative Agent exercises the remedies provided under the Agreement
and/or any of the Loan Documents for the Lenders, then in addition to all
amounts recoverable by the Administrative Agent and the Lenders under such
documents, the Administrative Agent and the Lenders shall be entitled to receive
reasonable attorneys fees and expenses incurred by the Administrative Agent and
the Lenders in connection with the exercise of such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note,
and any and all lack of diligence or delays in collection or enforcement of this
Note, and expressly agree that this Note, or any payment hereunder, may be
extended from time to time, and expressly consent to the release of any party
liable for the obligation secured by this Note, the release of any of the
security for this Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Ohio.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
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ENFORCE OR DEFEND ANY RIGHT UNDER THIS NOTE OR ANY OTHER LOAN DOCUMENT OR
RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT
OF THIS NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE
A JUDGE AND NOT BEFORE A JURY.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its sole general partner
By:______________________________________
Print Name:______________________________
Title:___________________________________
A-2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
DATED October ____, 2003
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- ---- ------ ---- -------
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EXHIBIT B
COMPLIANCE CERTIFICATE
KeyBank National Association, as Administrative Agent
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Credit Agreement dated as of October ____, 2003 (as amended,
modified, supplemented, restated, or renewed, from time to
time, the "Agreement") between GLIMCHER PROPERTIES LIMITED
PARTNERSHIP (the "Borrower"), and KEYBANK NATIONAL
ASSOCIATION, as Administrative Agent for itself and the other
lenders parties thereto from time to time ("Lenders").
Reference is made to the Agreement. Capitalized terms used in this
Certificate (including schedules and other attachments hereto, this
"Certificate") without definition have the meanings specified in the Agreement.
Pursuant to applicable provisions of the Agreement, Borrower hereby
certifies to the Lenders that the information furnished in the attached
schedules, including, without limitation, each of the calculations listed below
are true, correct and complete in all material respects as of the last day of
the fiscal periods subject to the financial statements and associated covenants
being delivered to the Lenders pursuant to the Agreement together with this
Certificate (such statements the "Financial Statements" and the periods covered
thereby the "reporting period") and for such reporting periods.
The Borrower hereby further certifies to the Lenders that:
1. Compliance with Financial Covenants. Schedule A attached
hereto sets forth financial data and computations evidencing the Borrower's
compliance with certain covenants of the Agreement, all of which data and
computations are true, complete and correct.
2. Review of Condition. The Borrower has reviewed the terms of
the Agreement, including, but not limited to, the representations and warranties
of the Borrower set forth in the Agreement and the covenants of the Borrower set
forth in the Agreement, and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and condition of
the Borrower through the reporting periods.
3. Representations and Warranties. To the Borrower's actual
knowledge, the representations and warranties of the Borrower contained in the
Loan Documents, including those contained in the Agreement, are true and
accurate in all material respects as of the date hereof and were true and
accurate in all material respects at all times during the reporting period
except as expressly noted on Schedule B hereto.
4. Covenants. To the Borrower's actual knowledge, during the
reporting period, the Borrower observed and performed all of the respective
covenants and other agreements under the Agreement and the Loan Documents, and
satisfied each of the conditions contained therein to be observed, performed or
satisfied by the Borrower, except as expressly noted on Schedule B hereto.
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5. No Default. To the Borrower's actual knowledge, no Default
exists as of the date hereof or existed at any time during the reporting period,
except as expressly noted on Schedule B hereto.
IN WITNESS WHEREOF, this Certificate is executed by the undersigned
this ___ day of _________.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its sole general partner
By:______________________________________
Name:____________________________________
Title:___________________________________
B-2
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between KEYBANK
NATIONAL ASSOCIATION (the "Assignor") and _________________________ (the
"Assignee") is dated as of _____________, 200_. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, modified, renewed or extended from time
to time is herein called the "Credit Agreement") described in Item 1 of Schedule
1 attached hereto ("Schedule 1"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement such that after giving effect to such assignment the Assignee
shall have purchased pursuant to this Assignment Agreement the percentage
interest specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. The
Commitment purchased by the Assignee hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment
Agreement (the "Effective Date") shall be the later of the date specified in
Item 5 of Schedule 1 or two (2) Business Days (or such shorter period agreed to
by the Agent) after a Notice of Assignment substantially in the form of Exhibit
"I" attached hereto has been delivered to the Agent. Such Notice of Assignment
must include the consent of the Agent required by Section 12.3.1 of the Credit
Agreement. In no event will the Effective Date occur if the payments required to
be made by the Assignee to the Assignor on the Effective Date under Section 4
hereof are not made on the proposed Effective Date. The Assignor will notify the
Assignee of the proposed Effective Date no later than the Business Day prior to
the proposed Effective Date. As of the Effective Date, (i) the Assignee shall
have the rights and obligations of a Lender under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder and
(ii) the Assignor shall relinquish its rights and be released from its
corresponding obligations under the Loan Documents with respect to the rights
and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the
Assignee shall be entitled to receive from the Agent all payments of principal,
interest and fees with respect to the interest assigned hereby. The Assignee
shall advance funds directly to the Agent with respect to all Loans and
reimbursement payments made on or after the Effective Date with respect to the
interest assigned hereby. In consideration for the sale and assignment of Loans
hereunder, the Assignee shall pay the Assignor, on the Effective Date, an amount
equal to the principal amount of the portion of all Loans assigned to the
Assignee hereunder which is outstanding on the Effective Date. The Assignee will
promptly remit to the Assignor (i) the portion of any principal payments
assigned hereunder and received from the Agent and (ii) any amounts of interest
on Loans and fees received from the Agent to the extent either (i) or (ii)
relate to the portion of the Loans assigned to the Assignee hereunder for
periods prior to the Effective Date and have not been previously paid by the
Assignee to the Assignor. In the event that either party hereto receives any
payment to which the other party hereto
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is entitled under this Assignment Agreement, then the party receiving such
amount shall promptly remit it to the other party hereto.
5. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants: (a) that it is the legal and
beneficial owner of the interest being assigned by it hereunder, (b) that such
interest is free and clear of any adverse claim created by the Assignor, (c)
that it has all necessary right and authority to enter into this Assignment, (d)
that the Credit Agreement has not been modified or amended, (e) that the
Assignor is not in default under the Credit Agreement, and (f) that, to the best
of Assignor's knowledge, the Borrower is not in default under the Credit
Agreement. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
6. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, and (vi) confirms that none of the funds, monies,
assets or other consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its rights, benefits
and interests in and under the Loan Documents will not be "plan assets" under
ERISA.
7. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed by Assignee under this Assignment
Agreement on and after the Effective Date. The Assignor agrees to indemnify and
hold the Assignee harmless against any and all losses, costs and expenses
(including, without limitation, reasonable attorneys' fees) and liabilities
incurred by the Assignee in connection with or arising in any manner
C-2
from the Assignor's non-performance of the obligations assigned to Assignee
under this Assignment Agreement prior to the Effective Date.
8. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee
shall have the right pursuant to Section 12.3.1 of the Credit Agreement to
assign the rights which are assigned to the Assignee hereunder to any entity or
person, provided that (i) any such subsequent assignment does not violate any of
the terms and conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Loan Documents has been obtained and (ii) unless the prior
written consent of the Assignor is obtained, the Assignee is not thereby
released from its obligations to the Assignor hereunder, if any remain
unsatisfied, including, without limitation, its obligations under Sections 4 and
7 hereof.
9. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
10. ENTIRE AGREEMENT. This Assignment Agreement and the attached
Notice of Assignment embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between the
parties hereto relating to the subject matter hereof.
11. GOVERNING LAW. This Assignment Agreement shall be governed by
the internal law, and not the law of conflicts, of the State of Ohio.
12. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the purpose
hereof, the addresses of the parties hereto (until notice of a change is
delivered) shall be the address set forth in the attachment to Schedule 1.
[NO FURTHER TEXT ON THIS PAGE]
C-3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
ASSIGNOR:
KEYBANK NATIONAL ASSOCIATION
BY: _____________________________________
NAME: ___________________________________
TITLE:
ASSIGNEE:
[____________________________________]
BY: _____________________________________
NAME: ___________________________________
TITLE:
C-4
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
[TO BE PROVIDED BY KEYBANK]
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Credit Agreement
dated as of October __, 2003 among Glimcher Properties Limited
Partnership, as "Borrower" and KeyBank National Association as
"Administrative Agent" and Lead Arranger and the Several
Lenders From Time to Time Parties Hereto, as Lenders.
2. Date of Assignment Agreement:_____________, 200__
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
under Credit Agreement $150,000,000
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** _____________%
4. Amount of Assignee's
Commitment Purchased under this
Assignment Agreement: $____________
5. Proposed Effective Date: ______________
Accepted and Agreed:
KEYBANK NATIONAL ASSOCIATION ________________________________________
By:_________________________________ By:____________________________________
Title:______________________________ Title:_________________________________
** Percentage taken to 10 decimal places.
EXHIBIT "I"
to Assignment Agreement
NOTICE OF ASSIGNMENT
October, 2003
To: KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Real Estate Capital
BORROWER:
Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given
and delivered to the Agent pursuant to Section 12.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an
Assignment Agreement, dated as of ___, 2003 (the "Assignment"), pursuant to
which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor the percentage interest specified in Item 3 of
Schedule 1 of all outstandings, rights and obligations under the Credit
Agreement. The Effective Date of the Assignment shall be the later of the date
specified in Item 5 of Schedule 1 or two (2) Business Days (or such shorter
period as agreed to by the Agent) after this Notice of Assignment and any fee
required by Section 12.3.2 of the Credit Agreement have been delivered to the
Agent, provided that the Effective Date shall not occur if any condition
precedent agreed to by the Assignor and the Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the
Agent notice of the assignment and delegation referred to herein. The Assignor
will confer with the Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the Assignment Agreement does
not become effective on any proposed Effective Date as a result of the failure
to satisfy the conditions precedent agreed to by the Assignor and the Assignee.
At the request of the Agent, the Assignor will give the Agent written
confirmation of the satisfaction of the conditions precedent.
5. If Notes are outstanding on the Effective Date, the
Assignor and the Assignee request and direct that the Agent prepare and cause
the Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
6. The Assignee advises the Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
7. The Assignee hereby represents and warrants that none
of the funds, monies, assets or other consideration being used to make the
purchase pursuant to the Assignment are "plan assets" as defined under ERISA and
that its rights, benefits, and interests in and under the Loan Documents will
not be "plan assets" under ERISA.
8. The Assignee authorizes the Agent to act as its agent
under the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By:_________________________________ By:____________________________________
Title:______________________________ Title:_________________________________
ACKNOWLEDGED AND, IF REQUIRED BY THE CREDIT AGREEMENT, CONSENTED TO BY KEYBANK
NATIONAL ASSOCIATION, as Agent
By:_________________________________
Title:______________________________
[Attach photocopy of Schedule 1 to Assignment]
EXHIBIT D-1
GUARANTY FROM PARENT ENTITIES
This Guaranty is made as of October ____, 2003 by Glimcher Realty
Trust, a real estate investment trust organized under the laws of the State of
Maryland ("Glimcher Trust") and Glimcher Properties Corporation, a Delaware
corporation ("Glimcher Properties", and together with Glimcher Trust,
collectively, the "Guarantors"), to and for the benefit of KeyBank National
Association, individually ("KeyBank") and as administrative agent
("Administrative Agent") for itself and the lenders under the Credit Agreement
(as defined below) and their respective successors and assigns (collectively,
the "Lenders").
RECITALS
X. Xxxxxxxx Properties Limited Partnership, a limited partnership
organized under the laws of the State of Delaware ("Borrower"), and Guarantors
have requested that the Lenders make a revolving credit facility available to
Borrower in an aggregate principal amount of $150,000,000 (the "Facility").
B. The Lenders have agreed to make available the Facility to
Borrower pursuant to the terms and conditions set forth in an Credit Agreement
of even date herewith among Borrower, KeyBank, individually, and as
Administrative Agent, and the Lenders named therein (as amended, modified or
restated from time to time, the "Credit Agreement"). All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such terms
in the Credit Agreement.
C. Borrower has executed and delivered or will execute and
deliver to the Lenders promissory notes in the principal amount of each Lender's
Commitment and promissory notes in the principal amount, if any, of each
Lender's Loan as evidence of Borrower's indebtedness to each such Lender with
respect to the Facility (the promissory notes described above, together with any
amendments or allonges thereto, or restatements, replacements or renewals
thereof, and/or new promissory notes to new Lenders under the Credit Agreement,
are collectively referred to herein as the "Notes").
X. Xxxxxxxx Properties is the sole general partner in the
Borrower and Glimcher Trust is the owner of all of the stock of Glimcher
Properties and certain of the limited partnership interests in the Borrower.
Guarantors acknowledge that the extension of credit by the Administrative Agent
and the Lenders to Borrower pursuant to the Credit Agreement will benefit
Guarantors by enhancing the financial strength of the consolidated group of
which Guarantors and Borrower are members. The execution and delivery of this
Guaranty by Guarantors are conditions precedent to the performance by the
Lenders of their obligations under the Credit Agreement.
AGREEMENTS
NOW, THEREFORE, Guarantors, in consideration of the matters described
in the foregoing Recitals, which Recitals are incorporated herein and made a
part hereof, and for other good and valuable consideration, hereby agree as
follows:
1. Guarantors absolutely, unconditionally, and irrevocably
guaranty to each of the Lenders:
D1-1
(a) the full and prompt payment of the principal of and
interest on the Notes when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, and the prompt
payment of all sums which may now be or may hereafter become due and
owing under the Notes, the Credit Agreement, and the other Loan
Documents;
(b) the payment of all Enforcement Costs (as hereinafter
defined in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance,
performance, and satisfaction of all of the obligations, duties,
covenants, and agreements of Borrower under the Credit Agreement and
the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of
the Facility Indebtedness, or in performance of the Obligations, as aforesaid,
in each case beyond the expiration of any applicable grace period, Guarantors
agree, on demand by the Administrative Agent or the holder of a Note, to pay all
the Facility Indebtedness and to perform all the Obligations as are then or
thereafter become due and owing or are to be performed under the terms of the
Notes, the Credit Agreement, and the other Loan Documents.
3. Guarantors do hereby waive (i) notice of acceptance of this
Guaranty by the Administrative Agent and the Lenders and any and all notices and
demands of every kind which may be required to be given by any statute, rule or
law, (ii) any defense, right of set-off or other claim which Guarantors may have
against Borrower or which Guarantors or Borrower may have against the
Administrative Agent or the Lenders or the holder of a Note, (iii) presentment
for payment, demand for payment (other than as provided for in Paragraph 2
above), notice of nonpayment (other than as provided for in Paragraph 2 above)
or dishonor, protest and notice of protest, diligence in collection and any and
all formalities which otherwise might be legally required to charge Guarantors
with liability, (iv) any failure by the Administrative Agent and the Lenders to
inform Guarantors of any facts the Administrative Agent and the Lenders may now
or hereafter know about Borrower, the Facility, or the transactions contemplated
by the Credit Agreement, it being understood and agreed that the Administrative
Agent and the Lenders have no duty so to inform and that Guarantors are fully
responsible for being and remaining informed by Borrower of all circumstances
bearing on the existence or creation, or the risk of nonpayment of the Facility
Indebtedness or the risk of nonperformance of the Obligations, and (v) any and
all right to cause a marshalling of assets of Borrower or any other action by
any court or governmental body with respect thereto, or to cause the
Administrative Agent and the Lenders to proceed against any other security given
to a Lender in connection with the Facility Indebtedness or the Obligations.
Credit may be granted or continued from time to time by the Lenders to Borrower
without notice to or authorization from Guarantors, regardless of the financial
or other condition of Borrower at the time of any such grant or continuation.
The Administrative Agent and the Lenders shall have no obligation to disclose or
discuss with Guarantors the Lenders' assessment of the financial condition of
Borrower. Guarantors acknowledge that no representations of any kind whatsoever
have been made by the Administrative Agent and the Lenders to Guarantors. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon the Administrative Agent and the Lenders except as expressly set
forth in a writing duly signed and delivered on behalf of the Administrative
Agent and the Lenders. Guarantors further agree that any exculpatory language
contained in the Credit Agreement, the Notes, and the other Loan Documents shall
D1-2
in no event apply to this Guaranty, and will not prevent the Administrative
Agent and the Lenders from proceeding against Guarantors to enforce this
Guaranty.
4. Guarantors further agree that Guarantors' liability as
guarantor shall in no way be impaired by any renewals or extensions which may be
made from time to time, with or without the knowledge or consent of Guarantors
of the time for payment of interest or principal under a Note or by any
forbearance or delay in collecting interest or principal under a Note, or by any
waiver by the Administrative Agent and the Lenders under the Credit Agreement,
or any other Loan Documents, or by the Administrative Agent or the Lenders'
failure or election not to pursue any other remedies they may have against
Borrower, or by any change or modification in a Note, the Credit Agreement, or
any other Loan Documents, or by the acceptance by the Administrative Agent or
the Lenders of any security or any increase, substitution or change therein, or
by the release by the Administrative Agent and the Lenders of any security or
any withdrawal thereof or decrease therein, or by the application of payments
received from any source to the payment of any obligation other than the
Facility Indebtedness, even though a Lender might lawfully have elected to apply
such payments to any part or all of the Facility Indebtedness, it being the
intent hereof that Guarantors shall remain liable as principal for payment of
the Facility Indebtedness and performance of the Obligations until all
indebtedness has been paid in full and the other terms, covenants and conditions
of the Credit Agreement, and other Loan Documents and this Guaranty have been
performed, notwithstanding any act or thing which might otherwise operate as a
legal or equitable discharge of a surety. Guarantors further understand and
agree that the Administrative Agent and the Lenders may at any time enter into
agreements with Borrower to amend and modify a Note, the Credit Agreement or any
of the other Loan Documents, or any thereof, and may waive or release any
provision or provisions of a Note, the Credit Agreement, or any other Loan
Document and, with reference to such instruments, may make and enter into any
such agreement or agreements as the Administrative Agent, the Lenders and
Borrower may deem proper and desirable, without in any manner impairing this
Guaranty or any of the Administrative Agent and the Lenders' rights hereunder or
any of Guarantors' obligations hereunder.
5. This is an absolute, unconditional, complete, present and
continuing guaranty of payment and performance and not of collection. Guarantors
agree that their obligations hereunder shall be joint and several with any and
all other guarantees given in connection with the Facility from time to time.
Guarantors agree that this Guaranty may be enforced by the Administrative Agent
and the Lenders without the necessity at any time of resorting to or exhausting
any security or collateral, if any, given in connection herewith or with a Note,
the Credit Agreement, or any of the other Loan Documents or by or resorting to
any other guaranties, and Guarantors hereby waive the right to require the
Administrative Agent and the Lenders to join Borrower in any action brought
hereunder or to commence any action against or obtain any judgment against
Borrower or to pursue any other remedy or enforce any other right. Guarantors
further agree that nothing contained herein or otherwise shall prevent the
Administrative Agent and the Lenders from pursuing concurrently or successively
all rights and remedies available to them at law and/or in equity or under a
Note, the Credit Agreement or any other Loan Documents, and the exercise of any
of their rights or the completion of any of their remedies shall not constitute
a discharge of any of Guarantors' obligations hereunder, it being the purpose
and intent of Guarantors that the obligations of such Guarantors hereunder shall
be primary, absolute, independent and unconditional under any and all
circumstances whatsoever. Neither Guarantors' obligations under this Guaranty
nor any remedy for the enforcement thereof shall be impaired, modified, changed
or released in any manner whatsoever by any impairment, modification, change,
release or limitation of the liability of Borrower under a Note, the Credit
Agreement or any other Loan Document or by reason of Borrower's bankruptcy or by
reason of any creditor or bankruptcy proceeding instituted by or against
Borrower. This Guaranty shall continue to be effective and be deemed to have
continued in existence or be reinstated (as the case may be) if at any time
payment of all or any part of any sum
D1-3
payable pursuant to a Note, the Credit Agreement or any other Loan Document is
rescinded or otherwise required to be returned by the payee upon the insolvency,
bankruptcy, or reorganization of the payor, all as though such payment to such
Lender had not been made, regardless of whether such Lender contested the order
requiring the return of such payment. The obligations of Guarantors pursuant to
the preceding sentence shall survive any termination, cancellation, or release
of this Guaranty.
6. This Guaranty shall be assignable by a Lender to any assignee
of all or a portion of such Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, a Note, or any of the Loan Documents
are placed in the hands of an attorney for collection or is collected through
any legal proceeding; (ii) an attorney is retained to represent the
Administrative Agent or any Lender in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights and involving a
claim under this Guaranty, a Note, the Credit Agreement, or any Loan Document;
(iii) an attorney is retained to enforce any of the other Loan Documents or to
provide advice or other representation with respect to the Loan Documents in
connection with an enforcement action or potential enforcement action; or (iv)
an attorney is retained to represent the Administrative Agent or any Lender in
any other legal proceedings whatsoever in connection with this Guaranty, a Note,
the Credit Agreement, any of the Loan Documents, or any property securing the
Facility Indebtedness (other than any action or proceeding brought by any Lender
or participant against the Administrative Agent alleging a breach by the
Administrative Agent of its duties under the Loan Documents), then Guarantors
shall pay to the Administrative Agent or such Lender upon demand all reasonable
attorney's fees, costs and expenses, including, without limitation, court costs,
filing fees and all other costs and expenses incurred in connection therewith
(all of which are referred to herein as "Enforcement Costs"), in addition to all
other amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of the
Administrative Agent and the Lender or the holder of a Note under the remainder
of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Guarantors now or hereafter
existing is hereby subordinated to the Facility Indebtedness. Guarantors will
not seek, accept, or retain for Guarantors' own account, any payment from
Borrower on account of such subordinated debt at any time when a Default exists
under the Credit Agreement or the Loan Documents, and any such payments to
Guarantors made while any Default then exists under the Credit Agreement or the
Loan Documents on account of such subordinated debt shall be collected and
received by Guarantors in trust for the Lenders and shall be paid over to the
Administrative Agent on behalf of the Lenders on account of the Facility
Indebtedness without impairing or releasing the obligations of Guarantors
hereunder.
10. Guarantors hereby subordinate to the Facility Indebtedness any
and all claims and rights, including, without limitation, subrogation rights,
contribution rights, reimbursement rights and set-off rights, which Guarantors
may have against Borrower arising from a payment made by Guarantors under
D1-4
this Guaranty and agree that, until the entire Facility Indebtedness is paid in
full, not to assert or take advantage of any subrogation rights of Guarantors or
the Lenders or any right of Guarantors or the Lenders to proceed against (i)
Borrower for reimbursement, or (ii) any other guarantor or any collateral
security or guaranty or right of offset held by the Lenders for the payment of
the Facility Indebtedness and performance of the Obligations, nor shall
Guarantors seek or be entitled to seek any contribution or reimbursement from
Borrower or any other guarantor in respect of payments made by Guarantors
hereunder. It is expressly understood that the agreements of Guarantors set
forth above constitute additional and cumulative benefits given to the Lenders
for their security and as an inducement for their extension of credit to
Borrower.
11. Any amounts received by a Lender from any source on account of
any indebtedness may be applied by such Lender toward the payment of such
indebtedness, and in such order of application, as a Lender may from time to
time elect.
12. Guarantors hereby submit to personal jurisdiction in the State
of Ohio for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantors hereby consent to the jurisdiction of either the
Cuyahoga County Court of Common Pleas in Cleveland, Ohio or the United States
District Court in Cleveland, Ohio in any action, suit, or proceeding which the
Administrative Agent or a Lender may at any time wish to file in connection with
this Guaranty or any related matter. Guarantors hereby agree that an action,
suit, or proceeding to enforce this Guaranty may be brought in any state or
federal court in the State of Ohio and hereby waives any objection which
Guarantors may have to the laying of the venue of any such action, suit, or
proceeding in any such court; provided, however, that the provisions of this
Paragraph shall not be deemed to preclude the Administrative Agent or a Lender
from filing any such action, suit, or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing or by
telex or by facsimile and addressed or delivered to such party at its address
set forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
To Guarantors:
Glimcher Properties Corporation
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Glimcher Realty Trust
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
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Facsimile: 000-000-0000
To KeyBank as Administrative Agent and as a Lender:
KeyBank National Association
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to any other Lender, to its address set forth in the Credit
Agreement.
14. This Guaranty shall be binding upon the heirs, executors,
legal and personal representatives, successors and assigns of Guarantors and
shall inure to the benefit of the Administrative Agent and the Lenders'
successors and assigns.
15. This Guaranty shall be construed and enforced under the
internal laws of the State of Ohio.
16. GUARANTORS, THE ADMINISTRATIVE AGENT AND THE LENDERS, BY THEIR
ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH
IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, Guarantors have executed and delivered this
Guaranty as of the date first written above.
GLIMCHER REALTY TRUST
By:_______________________
Its:______________________
GLIMCHER PROPERTIES CORPORATION
By:_______________________
Its:______________________
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EXHIBIT D-2
SUBSIDIARY GUARANTY
This Guaranty is made as of October ____, 2003 by the parties
identified in the signature pages thereto, and any Joinder to Guaranty hereafter
delivered (collectively, the "Subsidiary Guarantors"), to and for the benefit of
KeyBank National Association, individually ("KeyBank") and as administrative
agent ("Administrative Agent") for itself and the lenders under the Credit
Agreement (as defined below) and their respective successors and assigns
(collectively, the "Lenders").
RECITALS
X. Xxxxxxxx Properties Limited Partnership, a limited partnership
organized under the laws of the State of Delaware ("Borrower"), and Subsidiary
Guarantors have requested that the Lenders make a revolving credit facility
available to Borrower in an aggregate principal amount of $150,000,000 (the
"Facility").
B. The Lenders have agreed to make available the Facility to
Borrower pursuant to the terms and conditions set forth in an Credit Agreement
of even date herewith among Borrower, KeyBank, individually, and as
Administrative Agent, and the Lenders named therein (as amended, modified or
restated from time to time, the "Credit Agreement"). All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such terms
in the Credit Agreement.
C. Borrower has executed and delivered or will execute and
deliver to the Lenders promissory notes in the principal amount of each Lender's
Commitment and promissory notes in the principal amount, if any, of each
Lender's Loan as evidence of Borrower's indebtedness to each such Lender with
respect to the Facility (the promissory notes described above, together with any
amendments or allonges thereto, or restatements, replacements or renewals
thereof, and/or new promissory notes to new Lenders under the Credit Agreement,
are collectively referred to herein as the "Notes").
D. Subsidiary Guarantors are subsidiaries of Borrower. Subsidiary
Guarantors acknowledge that the extension of credit by the Administrative Agent
and the Lenders to Borrower pursuant to the Credit Agreement will benefit
Subsidiary Guarantors by making funds available to Subsidiary Guarantors through
Borrower and by enhancing the financial strength of the consolidated group of
which Subsidiary Guarantors and Borrower are members. The execution and delivery
of this Guaranty by Subsidiary Guarantors are conditions precedent to the
performance by the Lenders of their obligations under the Credit Agreement.
AGREEMENTS
NOW, THEREFORE, Subsidiary Guarantors, in consideration of the matters
described in the foregoing Recitals, which Recitals are incorporated herein and
made a part hereof, and for other good and valuable consideration, hereby agree
as follows:
1. Subsidiary Guarantors absolutely, unconditionally, and
irrevocably guaranty to each of the Lenders:
D2-1
(a) the full and prompt payment of the principal of and
interest on the Notes when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, and the prompt
payment of all sums which may now be or may hereafter become due and
owing under the Notes, the Credit Agreement, and the other Loan
Documents;
(b) the payment of all Enforcement Costs (as hereinafter
defined in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance,
performance, and satisfaction of all of the obligations, duties,
covenants, and agreements of Borrower under the Credit Agreement and
the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations." Subsidiary Guarantors
and Lenders agree that Subsidiary Guarantors' obligations hereunder shall not
exceed the maximum amount of the Facility Indebtedness not subject to avoidance
under Title 11 of the United States Code, as same may be amended from time to
time, or any applicable state law (the "Bankruptcy Code"). To that end, to the
extent such obligations would otherwise be subject to avoidance under the
Bankruptcy Code if Subsidiary Guarantors are not deemed to have received
valuable consideration, fair value or reasonably equivalent value for its
obligations hereunder, each Subsidiary Guarantor's obligations hereunder shall
be reduced to that amount which, after giving effect thereto, would not render
such Subsidiary Guarantor insolvent, or leave such Subsidiary Guarantor with an
unreasonably small capital to conduct its business, or cause such Subsidiary
Guarantor to have incurred debts (or intended to have incurred debts) beyond its
ability to pay such debts as they mature, as such terms are determined, and at
the time such obligations are deemed to have been incurred, under the Bankruptcy
Code. In the event a Subsidiary Guarantor shall make any payment or payments
under this Guaranty each other guarantor of the Facility Indebtedness shall
contribute to such Subsidiary Guarantor an amount equal to such non-paying
Subsidiary Guarantor's pro rata share (based on their respective maximum
liabilities hereunder and under such other guaranty) of such payment or payments
made by such Subsidiary Guarantor, provided that such contribution right shall
be subordinate and junior in right of payment in full of all the Facility
Indebtedness to Lenders.
2. In the event of any default by Borrower in making payment of
the Facility Indebtedness, or in performance of the Obligations, as aforesaid,
in each case beyond the expiration of any applicable grace period, Subsidiary
Guarantors agree, on demand by the Administrative Agent or the holder of a Note,
to pay all the Facility Indebtedness and to perform all the Obligations as are
then or thereafter become due and owing or are to be performed under the terms
of the Notes, the Credit Agreement, and the other Loan Documents.
3. Subsidiary Guarantors do hereby waive (i) notice of acceptance
of this Guaranty by the Administrative Agent and the Lenders and any and all
notices and demands of every kind which may be required to be given by any
statute, rule or law, (ii) any defense, right of set-off or other claim which
Subsidiary Guarantors may have against Borrower or which Subsidiary Guarantors
or Borrower may have against the Administrative Agent or the Lenders or the
holder of a Note, (iii) presentment for payment, demand for payment (other than
as provided for in Paragraph 2 above), notice of nonpayment (other than as
provided for in Paragraph 2 above) or dishonor, protest and notice of protest,
diligence in collection and any and all formalities which otherwise might be
legally required to charge Subsidiary Guarantors with liability, (iv) any
failure by the Administrative Agent and the Lenders to inform Subsidiary
Guarantors of any facts the Administrative Agent and the Lenders may now or
hereafter
D2-2
know about Borrower, the Facility, or the transactions contemplated by the
Credit Agreement, it being understood and agreed that the Administrative Agent
and the Lenders have no duty so to inform and that Subsidiary Guarantors are
fully responsible for being and remaining informed by Borrower of all
circumstances bearing on the existence or creation, or the risk of nonpayment of
the Facility Indebtedness or the risk of nonperformance of the Obligations, and
(v) any and all right to cause a marshalling of assets of Borrower or any other
action by any court or governmental body with respect thereto, or to cause the
Administrative Agent and the Lenders to proceed against any other security given
to a Lender in connection with the Facility Indebtedness or the Obligations.
Credit may be granted or continued from time to time by the Lenders to Borrower
without notice to or authorization from Subsidiary Guarantors, regardless of the
financial or other condition of Borrower at the time of any such grant or
continuation. The Administrative Agent and the Lenders shall have no obligation
to disclose or discuss with Subsidiary Guarantors the Lenders' assessment of the
financial condition of Borrower. Subsidiary Guarantors acknowledge that no
representations of any kind whatsoever have been made by the Administrative
Agent and the Lenders to Subsidiary Guarantors. No modification or waiver of any
of the provisions of this Guaranty shall be binding upon the Administrative
Agent and the Lenders except as expressly set forth in a writing duly signed and
delivered on behalf of the Administrative Agent and the Lenders. Subsidiary
Guarantors further agree that any exculpatory language contained in the Credit
Agreement, the Notes, and the other Loan Documents shall in no event apply to
this Guaranty, and will not prevent the Administrative Agent and the Lenders
from proceeding against Subsidiary Guarantors to enforce this Guaranty.
4. Subsidiary Guarantors further agree that Subsidiary
Guarantors' liability as guarantor shall in no way be impaired by any renewals
or extensions which may be made from time to time, with or without the knowledge
or consent of Subsidiary Guarantors of the time for payment of interest or
principal under a Note or by any forbearance or delay in collecting interest or
principal under a Note, or by any waiver by the Administrative Agent and the
Lenders under the Credit Agreement, or any other Loan Documents, or by the
Administrative Agent or the Lenders' failure or election not to pursue any other
remedies they may have against Borrower, or by any change or modification in a
Note, the Credit Agreement, or any other Loan Documents, or by the acceptance by
the Administrative Agent or the Lenders of any security or any increase,
substitution or change therein, or by the release by the Administrative Agent
and the Lenders of any security or any withdrawal thereof or decrease therein,
or by the application of payments received from any source to the payment of any
obligation other than the Facility Indebtedness, even though a Lender might
lawfully have elected to apply such payments to any part or all of the Facility
Indebtedness, it being the intent hereof that Subsidiary Guarantors shall remain
liable as principal for payment of the Facility Indebtedness and performance of
the Obligations until all indebtedness has been paid in full and the other
terms, covenants and conditions of the Credit Agreement, and other Loan
Documents and this Guaranty have been performed, notwithstanding any act or
thing which might otherwise operate as a legal or equitable discharge of a
surety. Subsidiary Guarantors further understand and agree that the
Administrative Agent and the Lenders may at any time enter into agreements with
Borrower to amend and modify a Note, the Credit Agreement or any of the other
Loan Documents, or any thereof, and may waive or release any provision or
provisions of a Note, the Credit Agreement, or any other Loan Document and, with
reference to such instruments, may make and enter into any such agreement or
agreements as the Administrative Agent, the Lenders and Borrower may deem proper
and desirable, without in any manner impairing this Guaranty or any of the
Administrative Agent and the Lenders' rights hereunder or any of Subsidiary
Guarantors' obligations hereunder.
5. This is an absolute, unconditional, complete, present and
continuing guaranty of payment and performance and not of collection. Subsidiary
Guarantors agree that their obligations
D2-3
hereunder shall be joint and several with any and all other guarantees given in
connection with the Facility from time to time. Subsidiary Guarantors agree that
this Guaranty may be enforced by the Administrative Agent and the Lenders
without the necessity at any time of resorting to or exhausting any security or
collateral, if any, given in connection herewith or with a Note, the Credit
Agreement, or any of the other Loan Documents or by or resorting to any other
guaranties, and Subsidiary Guarantors hereby waive the right to require the
Administrative Agent and the Lenders to join Borrower in any action brought
hereunder or to commence any action against or obtain any judgment against
Borrower or to pursue any other remedy or enforce any other right. Subsidiary
Guarantors further agree that nothing contained herein or otherwise shall
prevent the Administrative Agent and the Lenders from pursuing concurrently or
successively all rights and remedies available to them at law and/or in equity
or under a Note, the Credit Agreement or any other Loan Documents, and the
exercise of any of their rights or the completion of any of their remedies shall
not constitute a discharge of any of Subsidiary Guarantors' obligations
hereunder, it being the purpose and intent of Subsidiary Guarantors that the
obligations of such Subsidiary Guarantors hereunder shall be primary, absolute,
independent and unconditional under any and all circumstances whatsoever.
Neither Subsidiary Guarantors' obligations under this Guaranty nor any remedy
for the enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by any impairment, modification, change, release or
limitation of the liability of Borrower under a Note, the Credit Agreement or
any other Loan Document or by reason of Borrower's bankruptcy or by reason of
any creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to a Note, the Credit Agreement or any
other Loan Document is rescinded or otherwise required to be returned by the
payee upon the insolvency, bankruptcy, or reorganization of the payor, all as
though such payment to such Lender had not been made, regardless of whether such
Lender contested the order requiring the return of such payment. The obligations
of Subsidiary Guarantors pursuant to the preceding sentence shall survive any
termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by a Lender to any assignee
of all or a portion of such Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, a Note, or any of the Loan Documents
are placed in the hands of an attorney for collection or is collected through
any legal proceeding; (ii) an attorney is retained to represent the
Administrative Agent or any Lender in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights and involving a
claim under this Guaranty, a Note, the Credit Agreement, or any Loan Document;
(iii) an attorney is retained to enforce any of the other Loan Documents or to
provide advice or other representation with respect to the Loan Documents in
connection with an enforcement action or potential enforcement action; or (iv)
an attorney is retained to represent the Administrative Agent or any Lender in
any other legal proceedings whatsoever in connection with this Guaranty, a Note,
the Credit Agreement, any of the Loan Documents, or any property subject thereto
(other than any action or proceeding brought by any Lender or participant
against the Administrative Agent alleging a breach by the Administrative Agent
of its duties under the Loan Documents), then Subsidiary Guarantors shall pay to
the Administrative Agent or such Lender upon demand all reasonable attorney's
fees, costs and expenses, including, without limitation, court costs, filing
fees and all other costs and expenses incurred in connection therewith (all of
which are referred to herein as "Enforcement Costs"), in addition to all other
amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
D2-4
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of the
Administrative Agent and the Lender or the holder of a Note under the remainder
of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Subsidiary Guarantors now or
hereafter existing is hereby subordinated to the Facility Indebtedness.
Subsidiary Guarantors will not seek, accept, or retain for Subsidiary
Guarantors' own account, any payment from Borrower on account of such
subordinated debt at any time when a Default exists under the Credit Agreement
or the Loan Documents, and any such payments to Subsidiary Guarantors made while
any Default then exists under the Credit Agreement or the Loan Documents on
account of such subordinated debt shall be collected and received by Subsidiary
Guarantors in trust for the Lenders and shall be paid over to the Administrative
Agent on behalf of the Lenders on account of the Facility Indebtedness without
impairing or releasing the obligations of Subsidiary Guarantors hereunder.
10. Subsidiary Guarantors hereby subordinate to the Facility
Indebtedness any and all claims and rights, including, without limitation,
subrogation rights, contribution rights, reimbursement rights and set-off
rights, which Subsidiary Guarantors may have against Borrower arising from a
payment made by Subsidiary Guarantors under this Guaranty and agree that, until
the entire Facility Indebtedness is paid in full, not to assert or take
advantage of any subrogation rights of Subsidiary Guarantors or the Lenders or
any right of Subsidiary Guarantors or the Lenders to proceed against (i)
Borrower for reimbursement, or (ii) any other guarantor or any collateral
security or guaranty or right of offset held by the Lenders for the payment of
the Facility Indebtedness and performance of the Obligations, nor shall
Subsidiary Guarantors seek or be entitled to seek any contribution or
reimbursement from Borrower or any other guarantor in respect of payments made
by Subsidiary Guarantors hereunder. It is expressly understood that the
agreements of Subsidiary Guarantors set forth above constitute additional and
cumulative benefits given to the Lenders for their security and as an inducement
for their extension of credit to Borrower.
11. Any amounts received by a Lender from any source on account of
any indebtedness may be applied by such Lender toward the payment of such
indebtedness, and in such order of application, as a Lender may from time to
time elect.
12. Subsidiary Guarantors hereby submit to personal jurisdiction
in the State of Ohio for the enforcement of this Guaranty and waives any and all
personal rights to object to such jurisdiction for the purposes of litigation to
enforce this Guaranty. Subsidiary Guarantors hereby consent to the jurisdiction
of either the Cuyahoga County Common Pleas Court in Cleveland, Ohio or the
United States District Court in Cleveland, Ohio in any action, suit, or
proceeding which the Administrative Agent or a Lender may at any time wish to
file in connection with this Guaranty or any related matter. Subsidiary
Guarantors hereby agree that an action, suit, or proceeding to enforce this
Guaranty may be brought in any state or federal court in the State of Ohio and
hereby waives any objection which Subsidiary Guarantors may have to the laying
of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph shall not be deemed to
preclude the Administrative Agent or a Lender from filing any such action, suit,
or proceeding in any other appropriate forum.
D2-5
13. All notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing or by
telex or by facsimile and addressed or delivered to such party at its address
set forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
To Subsidiary Guarantors:
Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
To KeyBank as Administrative Agent and as a Lender:
KeyBank National Association
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
D2-6
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to any other Lender, to its address set forth in the Credit
Agreement.
14. This Guaranty shall be binding upon the heirs, executors,
legal and personal representatives, successors and assigns of Subsidiary
Guarantors and shall inure to the benefit of the Administrative Agent and the
Lenders' successors and assigns.
15. This Guaranty shall be construed and enforced under the
internal laws of the State of Ohio.
16. SUBSIDIARY GUARANTORS, THE ADMINISTRATIVE AGENT AND THE
LENDERS, BY THEIR ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
17. From time to time, additional parties may execute a joinder
substantially in the form of Exhibit A hereto, and thereby become a party to
this Guaranty. From and after delivery of such joinder, the Subsidiary
delivering such joinder shall be a Subsidiary Guarantor, and be bound by all of
the terms and provisions of this Guaranty.
D2-7
IN WITNESS WHEREOF, Subsidiary Guarantors have executed and delivered
this Guaranty as of the date first written above.
___________________________________________
By:________________________________________
By:_______________________________
Its:______________________________
___________________________________________
By:________________________________________
By:_______________________________
Its:______________________________
___________________________________________
By:________________________________________
By:_______________________________
Its:______________________________
D2-8
EXHIBIT A TO SUBSIDIARY GUARANTY
FORM OF JOINDER TO GUARANTY
THIS JOINDER is executed by __________, a __________ ("Subsidiary"),
which hereby agrees as follows:
1. All capitalized terms used herein and not defined in this
Joinder shall have the meanings provided in that certain Subsidiary Guaranty
(the "Guaranty") dated as of October ____, 2003 executed for the benefit of
KeyBank National Association, as agent for itself and certain other lenders,
with respect to a loan from the Lenders to Glimcher Properties Limited
Partnership ("Borrower").
2. As required by the Credit Agreement described in the Guaranty,
Subsidiary is executing this Joinder to become a party to the Guaranty.
3. Each and every term, condition, representation, warranty, and
other provision of the Guaranty, by this reference, is incorporated herein as if
set forth herein in full and the undersigned agrees to fully and timely perform
each and every obligation of a Subsidiary Guarantor under such Guaranty.
[INSERT SIGNATURE BLOCK]
D2-9
EXHIBIT E
ENVIRONMENTAL INVESTIGATION SPECIFICATIONS AND PROCEDURES
Phase I Environmental Site Assessments to be prepared in accordance
with the ASTM Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process (ASTM Designation E1527-94), a summary of
which follows:
This ASTM practice is generally considered the industry standard for
conducting a Phase I Environmental Site Assessment (ESA). The purpose
of this standard is to "define good commercial and customary practice
in the Untied States of America for conducting an ESA of a parcel of
commercial real estate with respect to the range of contaminants within
the scope of the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) and petroleum products." The ASTM Phase I ESA is
intended to permit a user to satisfy one of the requirements to qualify
for the innocent landowner defense to CERCLA liability; that is, the
practice that constitutes "all appropriate inquiry into the previous
ownership and uses of the property consistent with good commercial or
customary practices" as defined in 42 USC 9601(35)(B).
The goal of the ASTM Phase I ESA is to identify "recognized
environmental conditions." Recognized environmental conditions means
the presence or likely presence of any hazardous substances or
petroleum products on a property under conditions that indicate an
existing release, a past release, or a material threat of a release of
any hazardous substances or petroleum products into structures on the
property or into the ground, groundwater, or surface water of the
property. The term includes hazardous substances or petroleum products
even under conditions in compliance with laws. The term is not intended
to include de minimus conditions that generally would not be the
subject of an enforcement action if brought to the attention of
appropriate governmental agencies.
The ASTM standard indicates that a Phase I ESA should consist of four
main components: 1) Records Review; 2) Site Reconnaissance; 3)
Interviews; and 4) Report. The purpose of the records review is to
obtain and review records that will help identify recognized
environmental conditions in connection with the property. The site
reconnaissance involves physical observation of the property's exterior
and interior, as well as an observation of adjoining properties.
Interviews with previous and current owners and occupants, and local
government officials provides insight into the presence or absence of
recognized environmental conditions in connection with the property.
The final component of the ESA, the report, contains the findings of
the ESA and conclusions regarding the presence or absence of recognized
environmental conditions in connection with the property. It includes
documentation to support the analysis, opinions, and conclusions found
in the report.
While the use of this practice is intended to constitute appropriate
inquiry for purposes of CERCLA's innocent landowner defense, it is not
intended that its use be limited to that purpose. The ASTM standard is
intended to be an approach to conducting an inquiry designed to
identify recognized environmental conditions in connection with a
property, and environmental site assessments.
E-1
EXHIBIT F
FORM OF OPINION OF BORROWER'S COUNSEL
____________, 2003
KeyBank,
as Administrative Agent for the Lenders
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxx
Re: $150,000,000 Credit Facility to Glimcher Properties Limited
Partnership
Ladies and Gentlemen:
We have acted as counsel for the Borrower in connection with a
$150,000,000 secured revolving credit facility, (the "Loan"), which Loan is
being made pursuant to that certain Credit Agreement dated as of October ____,
2003 (the "Credit Agreement") between Borrower, KeyBank and the several lenders
from time to time parties thereto (collectively, the "Lenders"), and KeyBank, as
Administrative Agent (the "Agent").
In connection with the Loan we have been furnished with originals or
copies certified to our satisfaction of the Articles of Incorporation and Bylaws
of the Borrower, the [PARTNERSHIP AGREEMENT AND CERTIFICATE OF LIMITED
PARTNERSHIP] of the Parent Entities and the Guarantors (as defined in the Credit
Agreement), and all such corporate and other records of the Borrower, the Parent
Entities and the Guarantors, with such declarations and agreements, and
certificates of officers and representatives of the Borrower, the Parent
Entities and the Guarantors, and with such other documents, and we have made
such other examinations and investigations as we have deemed necessary as a
basis for the opinions expressed below.
We have examined the originals of the following documents, each of
which is addressed to the Lender or to which the Lender is a party (all of which
are sometimes collectively referred to as the "Loan Documents"):
1. The Credit Agreement; and
2. [describe promissory notes and other Loan Documents].
Based upon the foregoing, we are of the opinion that:
1. Borrower is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of
[_________]. Borrower has all requisite power and authority to
own its properties, carry on its business and to deliver and
perform its obligations under the Loan Documents.
2. [EACH GUARANTOR AND PARENT ENTITY] is a [LIMITED PARTNERSHIP
OR LIMITED LIABILITY COMPANY] duly organized, validly existing
and in good standing under the laws of the State of
[________]. [EACH GUARANTOR AND PARENT ENTITY] has all
requisite power and authority to own its properties, carry on
its business and to deliver and perform its obligations under
the Loan Documents.
F-1
3. The execution, delivery, and performance by each of the
Borrower, the Parent Entities and Guarantors of the Loan
Documents to which it is a party has been duly authorized by
all necessary action of the Borrower, the Parent Entities and
Guarantors, as the case may be, and does not (i) require any
consent or approval of any partner or shareholder of such
entity or any other person or entity excepting such consents
or approvals as have actually been obtained; (ii) violate any
provision of any law, rule, or regulation of the United States
or the State of Ohio, or any provision of the partnership or
corporate law presently in effect having applicability to the
Borrower, the Parent Entities or the Guarantors or, as
applicable; (iii) violate any provision of the partnership
agreement of the Borrower or the articles of incorporation or
bylaws of either of the Parent Entities or the partnership
agreement or operating agreement of any of the Guarantors;
(iv) violate any presently existing statutory or
administrative provision or judicial decision applicable to
the Borrower, the Parent Entities or the Guarantors; or (v)
result in a breach of, or constitute a default under, any
agreement or instrument affecting the Borrower, the Parent
Entities or the Guarantors.
4. Each Loan Document to which it is a party (a) has been
properly authorized, executed and delivered by each of the
Borrower, the Parent Entities and the Guarantors, (b)
constitutes the legal, valid, and binding obligations of the
Borrower, the Parent Entities and the Guarantors, and (c) is
enforceable in accordance with its terms.
5. To our knowledge, no presently existing authorization,
exemption, consent, approval, license, or registration with
any court or governmental department, commission, bureau,
agency, or instrumentality will be necessary for the valid,
binding, and enforceable execution, delivery and performance
by the Borrower, the Parent Entities or the Guarantors of the
Loan Documents.
6. To our knowledge, there are no actions, suits, or proceedings
pending or threatened against the Borrower, the Parent
Entities or the Guarantors before any court or governmental
entity or instrumentality which could reasonably be expected
to have a Material Adverse Effect (as defined in the Credit
Agreement).
7. The Loan Documents are governed by the laws of the State of
Ohio, and the Loan, including the interest rate reserved in
the applicable Note and all fees and charges paid or to be
paid by or on behalf of Borrower in connection with such Loan
pursuant to the applicable Loan Documents, is not in violation
of the usury laws of the State of Ohio.
The opinions expressed herein are expressly made subject to and
qualified by the following:
(a) We have assumed that the Loan Documents are duly authorized and
validly executed and delivered by the Agent, the Lenders and all other parties
other than the Borrower, the Parent Entities and the Guarantors.
(b) This opinion is based upon existing laws, ordinances and
regulations in effect as of the date hereof.
(c) This opinion is limited to the laws of the State of Ohio and
applicable federal law and no opinion is expressed as to the laws of any other
jurisdiction.
F-2
(d) We have assumed the authenticity of all documents submitted to us
as originals (other than the Loan Documents) and the conformity to original
documents of all documents (other than the Loan Documents) submitted to us as
certified or photostatic copies.
(e) The opinions expressed herein are qualified to the extent that: (i)
the enforceability of any rights or remedies in any agreement or instruments may
be limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally; and (ii) the availability of
specific performance, injunctive relief or any other equitable remedy is subject
to the discretion of a court of competent jurisdiction.
This opinion may be relied upon by only by the addressees hereof, its
attorneys, auditors, advisors, participants, and their respective successors and
assigns, and not by any other party.
Very truly yours,
F-3
EXHIBIT G
BORROWER'S NOTICE
Date
KeyBank National Association
Real Estate Capital
ATTENTION: [__________________]
000 Xxxxxx Xxxxxx, XX-00-00-0000
Xxxxxxxxx, XX 00000
BORROWING NOTICE
Glimcher Properties Limited Partnership ("Borrower") hereby requests an Advance
pursuant to Section 2.8 of the Credit Agreement, dated as of October ____, 2003
(as amended or modified from time to time, the "Credit Agreement"), among
Glimcher Properties Limited Partnership, the Lenders referenced therein, and
you, as an administrative agent for the Lenders.
An Advance is requested to be made in the amount of $__________, to be made on
_____________. Such Advance shall be a [LIBOR] [Floating Rate] Advance. [The
applicable LIBOR Interest Period shall be _____________.]
The proceeds of the requested loan shall be directed to the following account:
Wiring Instructions:
(Bank Name)
(ABA No.)
(Beneficiary)
(Account No. to Credit)
(Notification Requirement)
In support of this request, Glimcher Properties Limited Partnership hereby
represents and warrants to the Administrative Agent and the Lenders that
acceptance of the proceeds of such Advance by the Borrower shall be deemed to
further represent and warrant that all requirements of Section 4.2 of the Credit
Agreement in connection with such Advance have been satisfied at the time such
proceeds are disbursed.
Date:_________________________________
Borrower: Glimcher Properties Limited Partnership,
a Delaware limited partnership,
By: Glimcher Properties Corporation, its sole
general partner
By: _________________________________
Name: _________________________________
Its: _________________________________
X-0
XXXXXXX X
XXXX XX XXXXXXXX
[
SCHEDULE 1
LIST OF INITIAL COLLATERAL POOL ASSETS
Name of Zip
Project Legal Owner Name Street Address Code City County State
------------------------------------------------------------------------------------------------------------------------------------
Community Centers
1) Chillicothe Glimcher
Place Properties, LP 985-1015 X. Xxxxxx Xxxxxx 00000 Xxxxxxxxxxx Xxxx Ohio
2) Clarksville Glimcher
Place Properties, LP 748-756B E. Highway 131 47130 Clarksville Xxxxx Indiana
3) Gratiot Center Glimcher
Properties, LP 5025-5115 Gratiot Road 48603 Saginaw Saginaw Michigan
4) Liberty Plaza Morristown Tennessee
5) Xxxxx Place Glimcher
Properties, LP US Xxxxxxx 00 00000 Xxxxxxxxxxxx Xxxxx Kentucky
6) Xxx Xxxxxx Xxx Xxxxxx Xxxx,
Xxxx LLC 0000-0000 Xxxxxx Xxxxxx 00000 Xxxxxxxxxx Scioto Ohio
7) Pea Ridge Glimcher
Properties, LP 0000 XX Xxxxx 00 X., Xxxxx #0-00 25705 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxx
0) Xxxxxxxxxxx Xxxxxxxx
Properties, LP Xxxxxxx 00 X., Xxx 0-00 00000 Xxxxxxxxxxx Xxxxx Kentucky
9) Sycamore Glimcher
Square Properties, LP 000 Xxxx Xxxxxx 00000 Xxxxxxx Xxxx Xxxxxxxx Tennessee
10) Twin County Glimcher
Properties, LP 1051-1093 X. Xxxxxx Drive 24333 Galax Twin Virginia
11) Walnut Cove Glimcher
Shopping Properties, LP 000 X. Xxxx Xxxxxx 27052 Walnut Cove Xxxxxx North Carolina
Regional Malls
i
12) Indian Mound Glimcher
Mall Properties, LP 000 X. 00xx Xxxxxx 43056 Heath (Newark) Licking Ohio
13) Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxxx
Venture, LLC 000 Xxxxxxxxx Xxxxx 00000 Xxxxxx Anoka Minnesota
14) New Towne Glimcher
Mall Properties, LP 000 Xxxx Xxxxxx, XX 00000 Xxx Xxxxxxxxxxxx Tuscararwas Ohio
SCHEDULE 2
LIST OF DOCUMENTS TO BE DELIVERED TO ADMINISTRATIVE AGENT
WITH PROPOSAL FOR ADDITION OF COLLATERAL POOL ASSETS
A. Survey
B. Title Insurance Commitment
C. Copies of All Recorded Documents
X. Xxxxx Insurance, if applicable
E. Evidence of Casualty and Liability Insurance (or commitment to issue)
F. Environmental Report/Certification
G. All Leases
H. Management Agreement, if applicable
I. Property Condition Report
J. Lessee/Manager financials, if applicable
K. 2 years of Historical Operating Statements, unless new construction or
new acquisition, to the extent Borrower has owned the Property during
such 2 year period
L. Pro-Forma Operating Statements, unless new construction or new
acquisition
M. Capital Expenditure Budget, unless new construction or new acquisition
N. Such other items as Administrative Agent may reasonably request
All items shall meet substantially the same standards as the prior deliveries
for the Initial Collateral Pool Assets.
ii
SCHEDULE 3
LIST OF ITEMS TO BE COMPLETED TO
FINALIZE ADDITION OF COLLATERAL POOL ASSETS
A. Execution, delivery and recording of applicable Mortgage together with
a Joinder in Subsidiary Guaranty if the applicable Owner is a
Subsidiary
B. Organizational Documents for the Owner
C. Opinion of Counsel for Owner
D. Resolution regarding authority of Owner
E. Incumbency Certificate regarding Owner
F. UCC-1 Financing Statements from Owner
G. Tax, Judgment and Lien Searches on Owner
H. Issuance of Title Insurance Policy and Endorsements, including
insurance over possible mechanic's lien claims and such amendments as
may be necessary and available to existing title policies to assure
cross-collateralization.
I. Receipt of Estoppel Certificates from Major Tenants.
J. Subordination Non-Disturbance and Attornment Agreements with Major
Tenants
K. Lender-Manager Agreement, if applicable
L. Receipt of Appraisal and confirmation that it conforms to requirements
M. Evidence of Casualty and Liability Insurance
N. Addendum to Environmental Indemnity from Indemnitor confirming that the
Property is being added as a Collateral Pool Asset and amending Exhibit
A to the Environmental Indemnity, as necessary.
iii
SCHEDULE 4
EXCEPTIONS, IF ANY, TO OWNERSHIP FREE OF UNPERMITTED LIENS
(SECTION 5.13)
NONE
iv
SCHEDULE 5
LITIGATION
(SEE SECTION 5.6)
NONE
v
SCHEDULE 6
ENVIRONMENTAL MATTERS
(SEE SECTION 5.20)
None
vi
SCHEDULE 7
INTENTIONALLY OMITTED
vii
SCHEDULE 8
LIST OF ANY EXISTING INDEBTEDNESS SECURED
BY PLEDGE OF STOCK OR OTHER OWNERSHIP INTERESTS
1.) Mezzanine Loan originated July 7, 2000 for The Great Mall of the Great
Plains, Olathe Kansas, in the amount of $17,000,000 secured by a pledge
by Olathe Mall, LLC of its membership interest in Great Plains
Metromall, LLC.
2.) Mezzanine Loan originated May 31, 2002 for Jersey Gardens in the amount of
$30,000,000 secured by a pledge by JG Mezzanine, LLC of its membership
interest in Glimcher Jersey Gardens, LLC.
viii
SCHEDULE 9
SURVEY CERTIFICATION REQUIREMENTS
Form of Survey Certification
CERTIFICATION FOR SURVEYS (LONG-FORM)
I hereby certify to KeyBank National Association, its successors and assigns,
and _____________ (insert Borrower and Title Insurance Company) that the survey
prepared by me entitled " ________ " was actually made upon the ground and that
it and the information, courses and distances shown thereon are correct; that
the title lines and lines of actual possession are the same; that the size,
location and type of buildings and improvements are as shown and all are within
the boundary lines of the property; that the property is zoned as ___________
and any required setbacks are as shown; that there are no easements,
encroachments or use affecting this property appearing from a careful physical
inspection of the same, other than those shown and depicted thereon; that all
utility services required for the operations of the premises either enter the
premises through adjoining public streets, or the survey shows the point of
entry and location of any utilities which pass through or are located on
adjoining private land; that the survey shows the location of all visible storm
drainage systems for the collection and disposal of all roof and surface
drainage; that any discharge into streams, rivers or other conveyance system is
shown on the survey, if such waterway is on or adjacent to the property; and
that the parcels described heron do not lie within flood hazard areas in
accordance with the document entitled "Department of Housing and Urban
Development, Federal Insurance Administration - Special Flood Hazard Area Maps".
This survey is made in accordance with the "Minimum Standard Detail Requirements
for Land Title Surveys" jointly established and adopted by ALTA and ACSM in 1999
for Class A Urban Survey and includes items 1-4 and 6-16 of Table A. Pursuant to
the Accuracy Standards as adopted by ALTA, NSPS, and ACSM and in effect on the
date of this certification, the undersigned further certifies that: [Surveyor to
complete with appropriate choice from Minimum Standard Detail Requirement]
ix
SCHEDULE 10
TITLE REQUIREMENTS
1. Title Insurance Company Requirements. The maximum single risk (i.e.,
the amount insured under any one policy) by a title insurer may not
exceed 25% of that insurer's surplus and statutory reserves.
Reinsurance must be obtained by closing for any policy exceeding such
amount.
2. Loan Policy Forms. Standard 1992 American Land Title Association
("ALTA") form of loan title insurance policy, or the 1970 (amended
October 17, 1970) ALTA loan form policies must be used.
3. Insurance Amount. The amount insured must equal at least the original
principal amount of the Loan.
4. Named Insured. The named insured under the Title Policy must be
substantially the same as the following: "KeyBank National Association,
and its respective successors and assigns."
5. Creditors' Rights. Any "creditors' rights" exception or other exclusion
from coverage for voidable transactions under bankruptcy, fraudulent
conveyance, or other debtor protection laws or equitable principles
must be removed by either an endorsement or a written waiver.
6. Arbitration. In the event that the form policy which is utilized
includes a compulsory arbitration provision, the insurer must agree
that such compulsory arbitration provisions do not apply to any claims
by or on behalf of the insured. Please note that the 1987 and 1992 ALTA
form loan policies include such provisions.
7. Date of Policy. The effective date of the Title Policy must be as of
the date and time of the closing.
8. Legal Description. The legal description of the property contained in
the Title Policy must conform to (a) the legal description shown on the
survey of the property, and (b) the legal description contained in the
Mortgage. In any event, the Title Policy must be endorsed to provide
that the insured legal description is the same as that shown on the
survey.
9. Easements. Each Title Policy shall insure, as separate parcels: (a) all
appurtenant easements and other estates benefiting the property, and
(b) all other rights, title, and interests of the borrower in real
property under reciprocal easement agreements, access agreements,
operating agreements, and agreements containing covenants, conditions,
and restrictions relating to the Project.
10. Exceptions to Coverage. With respect to the exceptions, the following
applies:
a) Each Title Policy shall afford the broadest coverage available
in the state in which the subject property is located.
x
b) The "standard" exceptions (such as for parties in possession
or other matters not shown on public records) must be deleted.
c) The "standard" exception regarding tenants in possession under
residential leases, should also be deleted. For commercial
properties, a rent roll should be attached in lieu of the
general exception.
d) The standard survey exception to the Title Policy must be
deleted. Instead, a survey reading reflecting the current
survey should be incorporated.
e) Any exception for taxes, assessments, or other lienable items
must expressly insure that such taxes, assessments, or other
items are not yet due and payable.
f) Any lien, encumbrance, condition, restriction, or easement of
record must be listed in the Title Policy, and the Title
Policy must affirmatively insure that the improvements do not
encroach upon the insured easements or insure against all loss
or damage due to such encroachment
g) The Title Policy may not contain any exception for any filed
or unfiled mechanics' or materialmen's liens.
h) In the event that a comprehensive endorsement has been issued
and any Schedule B exceptions continue to be excluded from the
coverage provided through that endorsement, then a
determination must be made whether such exceptions would be
acceptable to Bank. In the event that it is determined that
such exception is acceptable, a written explanation regarding
the acceptability must be submitted as part of the delivery of
the loan documents.
If Schedule B indicates the presence of any easements that are not located on
the survey, the Title Policy must provide affirmative insurance against any loss
resulting from the exercise by the holder of such easement of its right to use
or maintain that easement. ALTA Form 103.1 or an equivalent endorsement is
required for this purpose.
1. Endorsements. With respect to endorsements, the following applies:
a) Each Title Policy must include an acceptable environmental
protection lien endorsement on ALTA Form 8.1. Please note that
Form 8.1 may take exception for an entire statute which
contains one or more specific sections under which
environmental protection liens could take priority over the
Mortgage; provided, however, that such specific sections under
which the lien could arise must also be referenced.
b) Each Title Policy must contain an endorsement which provides
that the insured legal description is the same as shown on the
survey.
c) Each Title Policy must contain a comprehensive endorsement
(ALTA Form 9) if a lien, encumbrance, condition, restriction,
or easement is listed in Schedule B to the title insurance
policy.
d) Lender may require the following endorsements where applicable
and available:
access single tax lot
address first loss subdivision
assessments last dollar tie in
assignment of leases and rents leasehold usury
assignment of loan documents mineral rights zoning (ALTA 3.1 - with parking)
contiguity mortgage tax
doing business reverter
1. Other Coverages. Each Title Policy shall insure the following by
endorsement or affirmative insurance to the extent such coverage is not
afforded by the ALTA Form 9 or its equivalent in a particular
jurisdiction:
a) that no conditions, covenants, or restrictions of record affecting the
property:
(i) have been violated,
(ii) create lien rights which prime the insured mortgage,
(iii) contain a right of reverter or forfeiture, a right of reentry,
or power of termination, or
(iv) if violated in the future would result in the lien created by
the insured mortgage or title to the property being lost, forfeited, or
subordinated; and
b) that except for temporary interference resulting solely from
maintenance, repair, replacement, or alteration of lines, facilities,
or equipment located in easements and rights of way taken as certain
exceptions to each Title Policy, such exceptions do not and shall not
prevent the use and operation of the Property or the improvements as
used and operated on the effective date of the Title Policy.
1. Informational Matters. The Policy must include, as an informational
note, the following:
a) The recorded plat number together with recording information;
and
b) The property parcel number or the tax identification number,
as applicable.
1. Delivery of Copies. Legible copies of all easements, encumbrances, or
other restrictions shown as exceptions on the Title Policy must be
delivered with the first draft of the title commitment.
SCHEDULE 11
INSURANCE REQUIREMENTS
Borrower shall obtain and keep in full force and effect either
builder's risk insurance (the "Builder's Risk Insurance policy") coverage or
permanent All Perils insurance coverage as appropriate, satisfactory to Lender,
on the Project. All insurance policies shall be issued by carriers with a Best's
Insurance Reports policy holder's rating of A and a financial size category of
Class X and shall include a standard mortgage clause (without contribution) in
favor of and acceptable to Lender. The policies shall provide for the following,
and any other coverage that Lender may from time to time deem necessary:
a) Coverage Against All Peril and/or Builders Risk in the amount
of 100% of the replacement cost of all Improvements located or to be located on
the Land. If the policy is written on a CO-INSURANCE basis, the policy shall
contain an AGREED AMOUNT ENDORSEMENT as evidence that the coverage is in an
amount sufficient to insure the full amount of the mortgage indebtedness.
"KeyBank National Association and its successors and assigns" shall be named as
the "Mortgagee" and "Loss Payee".
b) Public liability coverage in a minimum amount of not less than
$2,000,000 per occurrence and $5,000,000 in the aggregate. "KeyBank National
Association and its successors and assigns" shall be named as an "Additional
Insured".
c) Rent loss or business interruption coverage in a minimum
amount approved by Lender of not less than the appraised rentals for a minimum
of six months.
d) Flood hazard coverage in a minimum amount available, if the
premises are located in a special flood hazard area ("Flood Hazard Area") as
designated by the Federal Emergency Management Agency on its Flood Hazard
Boundary Map and Flood Insurance Rate Maps, and the Department of Housing and
Urban Development, Federal Insurance Administration, Special Flood Hazard Area
Maps.
e) Workers Compensation and Disability insurance as required by
law.
f) Such other types and amounts of insurance with respect to the
premises and the operation thereof which are commonly maintained in the case of
other property and buildings similar to the premises in nature, use, location,
height, and type of construction, as may from time to time be required by the
mortgagee.
Each policy shall provide that it may not be canceled, reduced or terminated
without at least thirty (30) days prior written notice to Lender.
xi
SCHEDULE 12
SUBSIDIARIES OF GLIMCHER PROPERTIES LIMITED PARTNERSHIP ("GPLP")
A. CONSOLIDATED
- Grand Central Limited Partnership, a Delaware limited
partnership
99% by GPLP
- Morgantown Mall Associates Limited Partnership, an Ohio
limited partnership
99% by GPLP
- Glimcher University Mall Limited Partnership, a Delaware
limited partnership
99% by GPLP
- Weberstown Mall, LLC, a Delaware limited liability company
99% by GPLP
- Glimcher Northtown Venture, LLC, a Delaware limited liability
company
100% by GPLP
- Xxxxxxxxxx Mall Associates Limited Partnership, a Delaware
limited partnership
99% by GPLP
- Olathe Mall LLC, a Delaware limited liability company
99% by GPLP
- Great Plains Metromall, LLC, a Delaware limited liability
company
45% by GPLP & 54% by Olathe Mall, LLC
- Xxxxxxx City Venture LLC, a Delaware limited liability company
99% by GPLP
- Mount Xxxxxx Venture, LLC, a Delaware limited liability
company
99% by GPLP
- JG Mezzanine, LLC, a Delaware limited liability company
100% by GPLP
- N.J. Metromall Urban Renewal, Inc., a Delaware corporation
100% by JG Mezzanine, LLC
- Glimcher Jersey Gardens, LLC, a Delaware limited liability
company
100% by JG Mezzanine, LLC
- Xxxxxxxx XX Urban Renewal, Inc., a Delaware corporation
100% by GPLP
- Jersey Gardens Center, LLC, a Delaware limited liability
company
100% by GPLP
- Loyal Plaza Venture, L.P., a Delaware limited partnership
99% by GPLP
- Glimcher Loyal Plaza Tenant, L.P., a Delaware limited
partnership
99% by GPLP
- Glimcher Supermall Venture LLC, a Delaware limited liability
company
99% by GPLP
- Dayton Mall Venture, LLC, a Delaware limited liability company
xiii
99% by GPLP
- Colonial Park Mall Limited Partnership, a Delaware limited
partnership
99.5% by GPLP
- Colonial Park Trust, a Delaware Business trust
100% by Colonial Park Mall limited Partnership
- Catalina Partners LP, a Delaware limited partnership
99% by Colonial Park Mall Limited Partnership & 1% by Colonial
Park Trust
- San Mall Limited Partnership, a Delaware limited partnership
99.5% by GPLP
- Glimcher Westpark Plaza, LLC, a Delaware limited liability
company
100% by GPLP
- Morningside Plaza, LLC, a Delaware limited liability company
100% by GPLP
- New Boston Mall, LLC, a Delaware limited liability company
100% by GPLP
- Shady Springs Plaza, LLC, a Delaware limited liability company
100% by GPLP
- Southside Mall, LLC, a Delaware limited liability company
100% by GPLP
- Glimcher Linden Corners, LLC, a Delaware limited liability
company
100% by GPLP
- Glimcher Ashland Venture, LLC, a Delaware limited liability
company
100% by GPLP
- Glimcher River Valley Mall, LLC, a Delaware limited liability
company
100% by GPLP
- Glimcher Columbia, LLC, a Delaware limited liability company
100% by GPLP
- Fairfield Village, LLC, a Delaware limited liability company
100% by GPLP
- LC Portland, LLC, a Delaware limited liability company
100% by GPLP
- GB Northtown, LLC, a Delaware limited liability company
100% by GPLP
- Xxxxxxxxx Xxxxxxxx Mall, LLC, a Delaware limited liability
company
99% by GPLP
- Glimcher Westshore, LLC, a Delaware limited liability company
100% by GPLP
- MFC Beavercreek, LLC, a Delaware limited liability company
100% by GPLP
- Glimcher Development Corporation, a Delaware corporation
(non-qualified REIT subsidiary)
100% by GPLP
- Ohio Entertainment Corporation, a Delaware corporation
100% by Glimcher Development Corporation
- Trans State Development, Inc., a Delaware corporation
100% by Glimcher Development Corporation
- Trans State Development, LLC, a Delaware limited liability
company
99% by Glimcher Development Corporation & 1% by Trans State
Development, Inc.
B. UNCONSOLIDATED
- Polaris Center, LLC, a Delaware limited liability company
49% by GPLP
- Polaris Mall, LLC, a Delaware limited liability company
39.2857% by GPLP
