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Exhibit 10.103
FIRST AMENDMENT TO SECOND AMENDED
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AND RESTATED LOAN AGREEMENT
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This First Amendment to Second Amended and Restated Loan Agreement
(this "Amendment") is entered into at Columbus, Ohio, by and among The
Huntington National Bank, KeyBank National Association, Firstar Bank, N.A., The
Provident Bank, National City Bank, Bankers Trust Company, PNC Bank, National
Association, FirstMerit Bank, N.A. and First Union National Bank as lenders
(collectively, the "Banks"); The Huntington National Bank and KeyBank National
Association, as co-agents (the "Co-Agents"); The Huntington National Bank, as
administrative agent (the "Administrative Agent"); Glimcher Properties Limited
Partnership, as borrower (the "Company"); and Glimcher Realty Trust and Glimcher
Properties Corporation, as guarantors (collectively the "Guarantor"), as of the
17th day of June, 1999, in order to amend the Second Amended and Restated Loan
Agreement entered into by and among the parties as of the 15th day of May, 1997
(the "Loan Agreement").
Whereas, the parties to this Amendment desire to add FirstMerit Bank,
N.A. and First Union National Bank as Banks pursuant to the terms of the Loan
Agreement and to amend certain of the provisions of the Loan Agreement, the Loan
Agreement is hereby amended as follows:
1. FirstMerit Bank, N.A. and First Union National Bank shall each
hereby become a Bank as defined in the Loan Agreement effective as of the date
of this Amendment, entitled to all the benefits and subject to all the
obligations of a Bank under the terms of the Loan Agreement. FirstMerit Bank,
N.A. and First Union National Bank each agrees to be bound by all those
provisions of the Loan Agreement binding upon a Bank.
2. All communications directed to FirstMerit Bank, N.A. and First
Union National Bank under the Loan Agreement or the promissory notes or
guarantees executed and delivered in connection herewith shall be mailed to the
following respective addresses:
FirstMerit Bank, N.A.
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxx
First Union National Bank
One First Union
NC0166
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx X. Xxxx
3. Upon the execution and delivery of this Amendment, the Company
shall deliver to the Administrative Agent the sum of $20,000,000.00 to be
applied to the reduction of the principal portion of the Advances outstanding on
that date. The Administrative Agent shall disburse such funds as may be
necessary to purchase the Pro Rata Share of Fleet National Bank (the
"Terminating Bank") in the principal portion of the Advances outstanding on such
date (the "Existing Advances"), net of any letter of credit fees previously paid
to the Terminating Bank and unearned as of the date of this Amendment. Upon such
date, the Administrative Agent shall collect from the Company and pay to the
Terminating Bank its Pro Rata Share of the interest accrued on the Existing
Advances. The pro rata sharing among the Banks of funding and receipt of payment
contemplated in the Loan Agreement, as amended hereby, shall automatically
become effective for each Advance made after the date of this Amendment, but
shall be effective with respect to all letters of credit issued under the Loan
Agreement and remaining outstanding on the effective date of this Amendment,
whether issued on or after such date or prior thereto. The Administrative Agent
shall pay to the Banks their Pro Rata Shares of the unearned standby letter of
credit fees collected from the Terminating Bank.
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4. Section 1.1 of the Loan Agreement is hereby amended to recite in
its entirety as follows:
The Banks agree to lend to the Company sums and issue letters of
credit in face amounts totaling an aggregate amount of
$170,000,000.00 (hereinafter referred to as the "Loan"), as
co-lenders subject to the terms and conditions of this Agreement.
The "Commitment Limit" of each Bank shall be the amount set forth
opposite its signature on this Agreement or agreed to in any
subsequent amendment to this Agreement, as hereinafter provided
in this section. Any other provision of this Agreement
notwithstanding, no Bank shall be required to fund any advance or
undertake any obligation with respect to letters of credit issued
hereunder in an aggregate amount that exceeds its Pro Rata Share
of all advances made on the same date or that exceeds the amount
of its Commitment Limit. In addition, no Advances shall be made
or letters of credit issued at any time if, after giving effect
thereto, the sum of the outstanding principal amount of the Loan
and the aggregate of the face amounts of outstanding letters of
credit (the "Total Outstandings") would exceed the lesser of (a)
65% of the fair market value of the properties then in the
Collateral Pool, as determined on the basis of the most recent
appraisals accepted by the Banks, and (b) the Aggregate Borrowing
Base, as determined as of the end of the most recently completed
fiscal quarter based upon the financial information required to
be provided by the Company within the time period permitted for
delivery of quarterly statements pursuant to Section 11(a).
"Aggregate Borrowing Base" shall mean, on any date of
determination, the sum of the Borrowing Bases for each property
in the Collateral Pool. "Borrowing Base" shall mean the value
ascribed to a property in the Collateral Pool for the purpose of
this Section 1.1, calculated as follows: the Net Operating Income
for such property shall be divided by the product of the Market
Constant, 12 and 1.30. "Market Constant" shall mean the factor
determined by the Administrative Agent by reference to a standard
level constant payment table for a fully amortizing loan with a
maturity of 25 years' duration based upon an assumed per annum
interest rate equal to the greater of a (i) the ten-year U.S.
Treasury constant maturities interest rate average, as announced
weekly in Federal Reserve Statistical Release H.15, plus one and
three-quarters percentage points (1.75%), or (ii) seven percent
(7%). In the event that the Total Outstandings shall at any time
exceed the lesser of the amounts described in (a) and (b) above,
the Company agrees to provide within 30 days sufficient
additional collateral (subject to all the requirements of
Sections 7 and 9 hereof) such as to cause the Total Outstandings
not to exceed such amount or to make such repayment of the Loan
as may be required to reduce the Total Outstandings to the lesser
of such amounts.
5. Section 1.3 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
The Co-Agents may from time to time with the consent of the
Company add other commercial banks as Banks under this Agreement.
In each case the addition of a Bank shall be made by (a)
execution by such Bank, the Co-Agents, the Company and the
Guarantor of an amendment in the form of Exhibit A to this
Agreement in which the additional Bank agrees to be bound by all
the terms and conditions of this Agreement and agrees to a
Commitment Limit; (b) delivery to the additional Bank by the
Company of a promissory note in the form of Exhibit B to this
Agreement and in the
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amount of such Bank's Commitment Limit; (c) delivery by the
Guarantor of guarantees in favor of such Bank in the form of
Exhibits C-1 and D-1 to the First Amendment to Second Amended and
Restated Loan Agreement; and (d) receipt by the Administrative
Agent from the additional Bank of its pro rata share of the
outstanding principal amount of the Loan and payment of that
amount pro rata to the Banks.
6. Section 1.4 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
The Loan shall take the form of a revolving credit, and the
outstanding principal balance may be increased and decreased an
unlimited number of times. The Company's right to obtain advances
pursuant to the Loan shall terminate and the principal balance
shall be payable on January 31, 2001 (the "Termination Date").
Each request for an advance under this Agreement or for the
issuance of a letter of credit shall be directed to the
Administrative Agent and accompanied by a statement signed by the
Company by its chief executive officer, president, chief
financial officer or controller, in such representative capacity,
certifying that there does not then exist any Event of Default
(as hereinafter defined).
7. Section 1.5 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
As part of the amount of the Loan available to the Company
pursuant to Section 1.1, the Company shall have the right to
obtain from the Administrative Agent standby letters of credit in
face amounts aggregating up to $25,000,000.00 at any one time
outstanding, provided that no letter of credit shall have an
expiry date later than one year from the date of issuance, nor
shall any such expiry date be later than the Termination Date
unless such standby letter of credit is secured through the
deposit with the Administrative Agent for the benefit of the
Banks of cash equal to the face amount of the letter of credit.
Each letter of credit shall be issued by The Huntington National
Bank as Administrative Agent in the name of The Huntington
National Bank. Each of the Banks hereby absolutely and
unconditionally purchases from The Huntington National Bank, and
The Huntington National Bank hereby sells to each of the Banks,
an undivided participation interest in each letter of credit
issued under this Agreement and in each letter of credit issued
and outstanding under the First Restated Agreement in an amount
equal to each Bank's Pro Rata Share. At the time of and as a
condition to the issuance of each standby letter of credit under
this Agreement, the Company shall pay to the Administrative
Agent, for the benefit of the Banks, an annual issuance fee equal
to one percent (1%) of the face amount of the letter of credit
and shall pay to the Administrative Agent, individually, a facing
bank fee equal to one-tenth of one percent (0.1%) of the face
amount of the letter of credit. The Company shall also pay to the
Administrative Agent, individually, its customary fees associated
with the administration of standby letters of credit, including
but not limited to those fees associated with the issuance of
routine amendments and the processing of drawings. The Company's
obligation to reimburse the Banks for the amount of a drawing
under any standby letter of credit issued as part of the Loan
shall be evidenced by a reimbursement agreement in the form
customarily used by The Huntington National Bank.
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Upon any failure of the Company promptly to reimburse the
Administrative Agent pursuant to the terms of any reimbursement
agreement executed and delivered in connection with the Loan,
following any drawing upon a letter of credit, such reimbursement
amount shall be immediately funded by the Administrative Agent
through the making of an Advance under the Loan. Advances for the
purpose of paying unreimbursed letter of credit drawings shall
continue to be made by the Administrative Agent and funded by the
Banks pro rata notwithstanding the existence of any Event of
Default or any other cause; provided, however, that in no event
shall the Banks be obligated to lend more than $170,000,000.00 in
the aggregate, nor shall any individual Bank be obligated to lend
more than the amount of its Commitment Limit.
8. The definition of "Applicable Percentage" contained in Section 2.2
of the Loan Agreement is hereby amended to recite in its entirety as follows:
"Applicable Percentage" shall mean a per annum percentage of
interest equal to 1.60% if the Company's Leverage is less than
0.40 to 1; 1.70% if the Company's Leverage is less than 0.50 to 1
and greater than or equal to 0.40 to 1; 1.80% if the Company's
Leverage is less than 0.55 to 1 and greater than or equal to 0.50
to 1; and 1.90% if the Company's Leverage is greater than or
equal to 0.55 to 1.
9. The third sentence of Section 2.10 of the Loan Agreement is hereby
amended to recite in its entirety as follows:
The Company agrees to pay to the Banks (excepting any Bank
that may have ceased to fund its Pro Rata Share of Advances hereunder
in violation of the terms of this Agreement) quarterly in arrears,
commencing on the date of the First Amendment to Second Amended and
Restated Loan Agreement, a quarterly usage fee equal to the sum of (x)
one-quarter of one percent (1/4%) per annum on the amount by which the
actual daily amount of the Loan outstanding during such quarter is less
than $85,000,000.00, and (y) one-eighth of one percent (1/8%) per annum
on the difference between $170,000,000.00 and the greater of
$85,000,000.00 or the actual daily amount of the Loan outstanding
during such quarter. For purposes of calculating the usage fee only,
the commitment provided for in this Agreement shall be deemed to be
outstanding to the extent of (a) 100% of the Company's aggregate Prime
Interest Rate Advances and LIBO Rate Advances; and (b) 0% of the
aggregate undrawn face amount of standby letters of credit issued under
this Agreement. The Company shall be entitled, upon written notice to
the Administrative Agent, to cancel or reduce the total commitment
provided for herein; provided, however, that any such cancellation or
reduction shall be irrevocable, any reduction shall be in the minimum
amount of $5,000,000.00, and all then outstanding and unpaid principal
(or amount thereof in excess of any remaining commitment), interest
accrued thereon and fees, together with any sum due pursuant to Section
2.8 hereof, shall be paid in full to the Banks.
10. Section 7 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
As security for the Loan, the Company shall grant to the
Administrative Agent, as collateral agent for the Banks, a first
mortgage lien in the following properties owned by the Company: The
Mall at Fairfield Commons in Beavercreek, Ohio; NewTowne Mall in New
Philadelphia, Ohio; and Indian Mound Mall in Heath, Ohio (the foregoing
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properties being referred to in the aggregate as the "Collateral
Pool"). The Company, provided there is not then continuing an Event of
Default, shall have the right to substitute in the Collateral Pool
properties that are of equivalent or greater appraised fair market
value and free of all liens and encumbrances other than real estate
taxes and assessments not yet due and payable, easements, covenants,
conditions and restrictions of record that do not materially interfere
with the use of the premises as a mall or shopping center and the
rights of parties in possession as tenants only, in each case upon the
prior written approval of the Required Banks and, if not included in
the Required Banks, the Co-Agents. Substitution of any property shall
only be considered by the Banks upon the delivery by the Company to the
Banks of (a) Evidence of Value (as hereinafter defined); (b) a current
survey satisfactory in form and substance to the Co-Agents; (c) a
current environmental report satisfactory in form and substance to the
Co-Agents; (d) a current ALTA title insurance commitment and final
mortgagee policy of title insurance for such property and all
appurtenant easements thereto with such reinsurance and endorsements as
the Banks may require, issued by an agent and underwriter acceptable to
the Banks and conforming in all respects with the Administrative
Agent's title insurance requirements; and (e) evidence that the
property is insured under policies providing such coverages and
insuring against such risks as is customary with respect to such
commercial properties. "Evidence of Value" shall mean an independent
appraisal satisfactory in form and substance to the Required Banks,
conducted by appraisers selected by the Co-Agents, and in conformity
with the usual appraisal standards of the Administrative Agent and with
the requirements of all statutes, regulations and interpretations
thereof to which the Banks, or any of them, are subject, establishing
the substitute property to be of a value equal to or greater than the
value of the property for which substitution is being made. In the
event that the Required Banks shall determine that the loan to value
ratio and Aggregate Borrowing Base requirements of Section 1.1 can be
fulfilled without including in the Collateral Pool all the properties
identified in this Section 7, and provided that there is not then
continuing an Event of Default, the Company shall be permitted to
designate the specific properties described in Section 7 that shall be
included in the Collateral Pool, subject to the Company's ongoing
obligation to remain in compliance at all times with Section 1.1.
In the event that (A) any of the properties in the Collateral Pool are
at any time released from inclusion pursuant to the provisions of this
section, and (B) any of such properties are thereafter offered as
substitute or additional properties pursuant to the terms hereof, and
(C) neither the Company nor the Required Banks are then in possession
of information suggesting a material decrease in the fair market value
of such properties, and (D) none of the Banks is required by applicable
law or regulation to obtain a new appraisal of such property, the Banks
agree to accept as Evidence of Value the appraisals on such properties
received in connection with the execution of this Agreement.
11. Section 10.5 of the Loan Agreement is hereby amended to recite in
its entirety as follows:
Neither the Company nor the Guarantor will create or incur,
pursuant to any line of credit, working capital loan or
comparable credit facility other than this Agreement, any
indebtedness for borrowed money or advances. Neither the
Company nor the Guarantor shall incur any other debt for
borrowed money which provides for the creditor to have
recourse to the Company or the Guarantor other than (a) loan
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indebtedness incurred in the ordinary course of business for
the construction financing or permanent financing of real
estate construction, expansion, renovation and acquisition,
and (b) outstanding indebtedness of any one or more
unconsolidated affiliates of Glimcher Realty Trust or the
Company totaling in the aggregate no more than 8% of Total
Asset Value (as defined in Section 10.29).
12. Section 10.14 of the Loan Agreement is hereby amended to recite in
its entirety as follows:
Investments in Joint Ventures by the Company and the Guarantor
shall not exceed $325,000,000.00 plus 40% of the net proceeds
of any public or private equity offering after the date of
this Agreement, excluding proceeds received pursuant to the
agreement with Nomura Asset Capital Corporation for the
payment of $135,000,000.00 existing on the date of this
Agreement.
13. Section 10.20 of the Loan Agreement is hereby amended to recite in
its entirety as follows:
The Company and the Guarantor shall at all times prior to the
Termination Date maintain interest rate protection with
respect to the interest obligations of the Company, the
Guarantor, their Subsidiaries and all their Joint Ventures (as
to the Glimcher Percentage of such Joint Ventures) from a
company or companies and containing terms satisfactory to the
Co-Agents, including but not limited to protection providing
that the aggregate unprotected floating rate debt of those
parties cannot exceed 15% of Total Asset Value (as defined in
Section 10.29). The Company shall grant to the Administrative
Agent for the benefit of the Banks a first priority security
interest in every interest rate protection contract to which
the Company is or may become in the future a party with
respect to the Company's interest obligations relating to the
Loan.
14. Section 10.25 of the Loan Agreement is amended to read in its
entirety as follows:
Maximum dividend payout as to common and preferred shares
shall be 100% of Funds from Operations for the Company, the
Guarantor and their respective Subsidiaries on a consolidated
and cumulative basis over the prior four quarters. "Funds from
Operations" shall mean net income less gains from property
sales, plus losses from property sales and debt
restructurings, amortization and depreciation (including,
solely for the purpose of this definition, the Glimcher
Percentage of the amortization and depreciation of Joint
Ventures for such period), noncash expense and minority
interest expense, less the sum of scheduled principal
payments, excluding balloon payments, and capital expenditures
(including the capital expenditures of each Joint Venture).
For the purposes of this section, capital expenditures will be
assumed to be $.15 per square foot of gross leaseable area in
the properties operated and maintained by the Company,
excluding ground leases, in excess of five years old, and the
capital expenditures of each Joint Venture will be assumed to
be such Joint Venture's Glimcher Percentage of such amount.
Cash flow from properties that secure loans that are in
default and as to which the indebtedness has been accelerated
will be excluded from the calculation of Funds from
Operations.
15. Section 10.28 of the Loan Agreement is amended to read in its
entirety as follows:
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The Company's and the Guarantor's pro-rated share of the
aggregate budgeted project costs of all projects under
construction (whether such project is owned by the Company,
the Guarantor, a Subsidiary or a Joint Venture) shall not
exceed 22.5% of Total Asset Value, as defined in Section 10.29
hereof. For the purposes of this Section 10.28, "project
costs" shall include (except with regard to the Xxxxxxxxx
MetroMall and to the extent otherwise determined by the
Co-Agents) expenses associated with off-site improvements. The
Company's and the Guarantor's pro-rated share of project costs
shall be deemed to be the higher of the percentage of (i)
their liability for indebtedness incurred in connection with
the project (with that percentage to be calculated by dividing
the maximum dollar amount of the aggregate liability of the
Company and the Guarantor with respect to such project by the
maximum project indebtedness that could be outstanding subject
to such liability pursuant to agreements in effect at the time
of the calculation) or (ii) their percentage ownership
interest in such project; provided, however, that for each
project owned by a Joint Venture in connection with which the
Company or the Guarantor has executed a completion, payment or
collection guaranty, the pro-rated share shall be 100% of the
project costs for such project. "Project costs" as used in
this Section 10.28 shall not include the project costs for any
project as to which construction has been substantially
completed and the project is producing Net Operating Income
(as hereinafter defined for the purposes of this Section
10.28) equal to or exceeding interest debt service for two
consecutive months. For the purposes of this Section 10.28
only, "Net Operating Income" shall be defined as the sum of
(i) two consecutive months' actual rental income and common
area reimbursements from tenants in occupancy for 12 months or
more, (ii) one-sixth of the annualized actual base rental
income and common area reimbursements for tenants open and
operating for less than 12 months, (iii) two months' pro-forma
rental income from tenants that have executed leases (approved
if necessary) and are scheduled to open within 90 days, and
(iv) actual other income (not annualized) during the two
consecutive month test period, including other recurring
tenant reimbursements, and temporary tenant income, less (i)
rent payable during the two consecutive month test period,
pursuant to leases which are in default, (ii) rent payable
during the two consecutive month test period pursuant to
leases that have expired within the previous 12 months, or are
scheduled to expire within the 60 day period following such
test period, (iii) one-sixth of the annualized pro-forma
operating expenses for the first 12 months after opening (and
actual operating expenses thereafter during the two
consecutive month test period), including a 4% management fee,
and (iv) a tenant improvement and capital expenditure reserve
in the amount of $0.025 per square foot of owned gross leasing
area.
16. Section 10.29 of the Loan Agreement is amended to read in its
entirety as follows:
The consolidated total debt of the Company, the Guarantor and
their respective Subsidiaries (determined in accordance with
generally accepted accounting principles), plus, as to
unconsolidated affiliates, the product of the outstanding debt
of such affiliates and the greater of (i) the percentage of
such affiliates' debt for which creditors of such affiliates
have recourse to the Company or the Guarantor (the "Recourse
Percentage"), or (ii) the percentage of the aggregate
ownership of the Company and the Guarantor in such affiliate,
whether owned pursuant to a preferred or common equity
interest (the "Ownership Percentage") (such greater
percentage, the "Glimcher
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Percentage"), shall not exceed 60% of the Total Asset Value,
to be tested as of the end of each fiscal quarter. The
Ownership Percentage in each unconsolidated affiliate shall be
determined by dividing the sum of the value of the preferred
ownership interest of the Company, the Guarantor and their
respective Subsidiaries in the unconsolidated affiliate and
the value of the common ownership interest of the Company, the
Guarantor and their respective Subsidiaries in the
unconsolidated affiliate by the total preferred and common
equity in such unconsolidated affiliate. For the purposes of
this Agreement, an ownership interest shall be deemed to be
"preferred" if the ownership of such interest provides to the
owner a preference over the owners of common ownership
interests in sharing in either or both of operating cash flow
and cash flow from capital transactions. "Total Asset Value"
shall mean the aggregate of the Company's, the Guarantor's and
their respective Subsidiaries' cash and cash substitutes,
Value of Wholly-Owned Properties and Value of Partially-Owned
Properties. "Value of Wholly-Owned Properties" means the sum
of the following:
(1) the Company's and the Guarantor's EBITDA from the
preceding four consecutive quarters, less EBITDA from
properties owned for less than twelve (12) months
(but not including any properties included in
category (3) below) less income plus losses from
unconsolidated ventures, divided by a capitalization
rate of 8.75% for enclosed malls and 10.00% for other
income-producing properties;
(2) the actual purchase price of properties (exclusive of
soft costs paid by the buyer or the seller) that have
been owned less than twelve (12) months (but not
including any properties included in category (3)
below);
(3) the market value of each project under development,
which shall be its cost until earlier of (A) 48
months from the beginning of construction, (B) 30
months from the issuance of the Certificate of
Occupancy for such development property, or (C) 24
months from the opening of such development property
to the general shopping public; and
(4) for each expansion of a property for the purpose of
increasing that property's gross leaseable area,
where such expansion is undertaken pursuant to a
budget containing construction expenses deemed
reasonable and appropriate by the Co-Agents and in an
aggregate amount in excess of $5,000,000.00, during
the period of 18 months following the commencement of
construction, the amounts expended by the Company and
the Guarantor pursuant to that budget.
"Value of Partially-Owned Properties" means the sum of the
following:
(1) the value of all partially-owned and not consolidated
operating properties owned for at least twelve (12)
months (but not including any properties included in
category (3) below), which shall be the sum of, for
each property, the product of that property's EBITDA
and the Glimcher Percentage of the affiliate that
owns such property, divided by a capitalization rate
of 8.75% for enclosed malls and 10.00% for other
income-producing properties;
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(2) the value of partially-owned and not consolidated
operating properties owned for less than twelve (12)
months (but not including any properties included in
category (3) below), which shall be the sum of, for
each property, the product of that property's
purchase price (exclusive of soft costs paid by the
buyer or the seller) and the Glimcher Percentage of
the affiliate that owns such property;
(3) the value of partially-owned and not consolidated
development properties, which shall be the sum of,
for each such property, until the earlier of (A) 48
months from the beginning of construction, (B) 30
months from the issuance of the Certificate of
Occupancy for such development property, or, (C) 24
months from the opening of such development property
to the general shopping public, the product of that
property's cost and the Glimcher Percentage of the
affiliate that owns such property; and
(4) for each expansion of a partially-owned and not
consolidated property for the purpose of increasing
that property's gross leasable area, where such
expansion is undertaken pursuant to a budget
containing construction expenses deemed reasonable
and appropriate by the Co-Agents and in an aggregate
amount in excess of $5,000,000.00, during the period
of 18 months following the commencement of
construction, the product of the amounts expended by
the Company and the Guarantor pursuant to that budget
and the Glimcher Percentage of the affiliate that
owns such property.
17. Section 11(b) of the Loan Agreement is amended to read in its
entirety as follows:
within 45 days after the end of each quarter (including the
fourth fiscal quarter), or by such later time as may be
permitted for the delivery of quarterly financial statements
pursuant to Section 11(a), a statement signed by each of the
Guarantor's and the Company's chief executive officer,
president or chief financial officer in their respective
representative capacities certifying the compliance by each
with the terms of this Agreement; providing calculations
demonstrating the Company's compliance with the covenants
contained in Sections 10.5(b), 10.10, 10.14, 10.20, 10.25,
10.27, 10.28, 10.29 and 10.30 hereof; and calculating the
Company's Aggregate Borrowing Base as provided in Section 1.1
hereof and the Company's Leverage and resulting Applicable
Percentage as both are defined in Section 2.2 of this
Agreement;
18. The Banks acknowledge their receipt and approval of appraisals
establishing to the satisfaction of the Banks that the total of the Commitment
Limits does not exceed 65% of the fair market value of the properties in the
Collateral Pool.
19. The effectiveness of this Amendment is further expressly
conditioned upon the payment to the Administrative Agent for distribution to the
Banks in accordance with their interests of an Extension Fee equal to 30 basis
points on the amount of the Loan and a Modification Fee equal to 10 basis points
on the amount of the Loan.
20. The effectiveness of this Amendment is further expressly
conditioned upon the Company and the Guarantor providing to the Co-Agents an
endorsement to the policy of title
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insurance issued in connection with the initial closing of the Loan confirming
that the mortgage liens held by the Co-Agents as security for the Loan remain,
following the execution of this Amendment and the recording in the land records
where each of the properties is situated of an instrument of modification, first
priority liens against each of the properties in the Collateral Pool. Such
endorsement shall update the effective date of each of the policies and identify
the insured instrument to be the mortgage as modified by the aforementioned
instrument of modification.
21. The Company and the Guarantor represent and warrant that no Event
of Default has occurred and is continuing, nor will any occur immediately after
the execution and delivery of this Amendment by the performance or observance of
any provision hereof or thereof.
22. Each reference to the Loan Agreement, whether by use of the phrase
"Loan Agreement," "Agreement," the prefix "herein" or any other term, and
whether contained in the Loan Agreement itself, in this Amendment, in any
document executed concurrently herewith or in any loan documents executed
hereafter, shall be construed as a reference to the Loan Agreement as previously
amended and as amended by this Amendment.
23. Except as previously amended and as modified herein, the Loan
Agreement and the Loan Documents shall remain as written originally and in full
force and effect in all respects, and nothing herein shall affect, modify, limit
or impair any of the rights and powers which the Banks may have thereunder.
24. The Company and the Guarantor agree to perform and observe all the
covenants, agreements, stipulations, and conditions to be performed on its part
under the Loan Agreement, the promissory notes and guarantees executed and
delivered in connection herewith, the Loan Documents, and all other related
agreements, as amended by this Amendment.
25. The Company and the Guarantor hereby represent and warrant to the
Co-Agents and the Banks that (a) the Company and the Guarantor have legal power
and authority to execute and deliver the within Amendment; (b) the respective
officers executing the within Amendment on behalf of the Company and the
Guarantor have been duly authorized to execute and deliver the same and bind the
Company and the Guarantor with respect to the provisions provided for herein and
therein; (c) the execution by the Company and Guarantor and the performance and
observance by the Company and the Guarantor of the provisions hereof do not
violate or conflict with the articles of incorporation, regulations or by-laws
of the Company or the Guarantor or any law applicable to the Company or the
Guarantor or result in the breach of any provision of or constitute a default
under any agreement, instrument or document binding upon or enforceable against
the Company or the Guarantor; and (d) this Amendment constitutes a valid and
legally binding obligation upon the Company and the Guarantor, subject to
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally, to general equitable principles and to
applicable doctrines of commercial reasonableness.
26. This Amendment shall become effective only upon (a) its execution
by all parties hereto, which execution may be in any number of counterparts, but
all of which when taken together shall constitute one and the same document; (b)
execution and delivery by the Company and Guarantor to each of the Banks of
promissory notes in the form of Exhibit B to the Loan Agreement in the amount of
each such Bank's respective Commitment Limit; and (c) execution and delivery by
the Guarantor to each Bank of guarantees in the form of Exhibits C-1 and D-1 to
this Amendment, in substitution for the guarantees previously executed and
delivered.
27. The capitalized terms used herein shall have the same meanings as
the capitalized terms used in the Loan Agreement.
IN WITNESS WHEREOF, the Company, the Guarantor, the Banks, the
Co-Agents and the Administrative Agent have hereunto set their hands as of the
17th day of June, 1999.
-10-
11
COMPANY:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
By: GLIMCHER PROPERTIES CORPORATION
Its: Sole General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Its: Exec. Vice President COO & CFO
-----------------------------------
GUARANTOR:
GLIMCHER REALTY TRUST
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Its: Exec. Vice President COO & CFO
-----------------------------------
GLIMCHER PROPERTIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Its: Exec. Vice President COO & CFO
-----------------------------------
BANKS:
COMMITMENT LIMIT: THE HUNTINGTON NATIONAL BANK
$30,000,000.00
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: KEYBANK NATIONAL ASSOCIATION
$30,000,000.00
By: /s/ Xxx Xxxxxxx
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: _________ BANKERS TRUST COMPANY
$25,000,000.00
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: Principal
-----------------------------------
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12
COMMITMENT LIMIT: FIRSTAR BANK, N.A.
$20,000,000.00
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: PNC BANK, NATIONAL ASSOCIATION
$10,000,000.00
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: FIRSTMERIT BANK, N.A.
$10,000,000.00
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Its: Executive Vice President
-----------------------------------
COMMITMENT LIMIT: FIRST UNION NATIONAL BANK
$15,000,000.00
By: /s/ Xxx X. Xxxx
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: THE PROVIDENT BANK
$10,000,000.00
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Its: Vice President
-----------------------------------
COMMITMENT LIMIT: NATIONAL CITY BANK
$20,000,000.00
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Its: Vice President
-----------------------------------
CO-AGENTS:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------
Its: Vice President
-----------------------------------
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13
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxxxx
------------------------------------
Its: Vice President
-----------------------------------
ADMINISTRATIVE AGENT:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------
Its: Vice President
-----------------------------------
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