SECOND MODIFICATION OF LOAN DOCUMENTS
EXHIBIT
10.129
THIS SECOND MODIFICATION OF LOAN
DOCUMENTS (this "Agreement") is dated
as of the 13th day of July, 2009, by and among TULSA PROMENADE, LLC ("Borrower"), CHARTER ONE BANK, N.A., now known as
RBS CITIZENS, NATIONAL ASSOCIATION, d/b/a CHARTER ONE, its successors and
assigns, individually and as Administrative, Documentation, Disbursement and
Collateral Agent (hereinafter referred to in such capacity as “Agent”), JPMORGAN CHASE BANK, N.A.
(Agent, as a lender, and JPMORGAN CHASE BANK, N.A. and
their respective successors and assigns, hereinafter referred to individually as
a “Lender” or collectively as “Lenders”).
R E C I T
A L S:
A. Lenders
have heretofore made a loan ("Loan") to Borrower in
the principal amount of THIRTY-FIVE MILLION DOLLARS ($35,000,000) pursuant to the terms
and conditions of a Loan Agreement dated as of March 14, 2006, as amended, among
Borrower, Agent and Lenders (the "Loan Agreement"; all
terms not otherwise defined herein shall have the meanings set forth in the Loan
Agreement), and as evidenced by two (2) separate Replacement Promissory Notes
dated June 21, 2006, in the aggregate principal amount of the Loan made payable
by Borrower to the order of each Lender (each, the “Note”, and collectively, the
“Notes").
B. The
Notes are secured by, among other things, (i) that certain Mortgage With
Power of Sale, Security Agreement and Financing Statement, dated March 14, 2006
from Borrower to Agent, which Mortgage encumbers the real property and all
improvements thereon legally described on Exhibit A thereto ("Property"), and
(ii) certain other loan documents (the Note, the Mortgage, the
Modification, this Agreement, the other documents evidencing, securing and
guarantying the Loan, in their original form and as amended, are sometimes
collectively referred to herein as the "Loan
Documents").
C. Borrower,
Agent and Lenders entered into a Modification of Loan Documents, dated June 11,
2009, to be effective as of March 14, 2009 (“Modification”).
D. Borrower,
Agent and Lenders desire to further amend the Loan Documents as hereafter
provided.
AGREEMENTS:
NOW, THEREFORE, in
consideration of (i) the facts set forth hereinabove (which are hereby
incorporated into and made a part of this Agreement), (ii) the agreements
by Agent and Lenders to modify the Loan Documents, as provided herein,
(iii) the covenants and agreements contained herein, and (iv) for
other good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Maturity
Date. The Maturity Date
of each Note is extended to March 14, 2011. Any reference in any
Note, the Loan Agreement or any other Loan Document to the Maturity Date shall
mean March 14, 2011.
2. Agency
Fee. Borrower shall pay to Agent, for its own account, on the
date this Agreement is executed and on each July 1 annually hereafter, an
administrative agency fee of $25,000.
3. Yield
Maintenance. The subsection entitled “Voluntary Prepayment of
LIBOR Rate Loan” in Section 3 of each Note is hereby deleted, and the “LIBOR
Rate Loan Prepayment Fee” shall no longer be due and payable. Each
Note may be prepaid, in whole or in part, without any prepayment penalty or
prepayment premium, except for any amounts (other than the LIBOR Rate Prepayment
Fee) due under Section 4 of each Note.
4. Definitions. The
following definitions are hereby inserted, in appropriate alphabetical order, in
Article I of the Loan Agreement:
“Accounts”
shall have the meaning set forth in the Cash Management Agreement.
“Annual
Budget” shall have the meaning set forth in Section 7.36.
“Approved
Annual Budget” shall have the meaning set forth in Section
7.36.
“Capital
Expenditure and Tenant Improvement Costs Account” shall have the meaning
set forth in the Cash Management Agreement.
“Capital
Expenditures” for any period shall mean amounts expended for replacements
and alterations to the Project and required to be capitalized according to
GAAP.
“Capital
Expenditure and Tenant Improvement Cost Funds” shall have the meaning set
forth in Section 7.34(a).
“Capital
Expenditure Work” shall mean any labor performed or materials installed
in connection with any Capital Expenditure or Tenant Improvement
Costs.
“Cash
Management Agreement” shall mean the Cash Management Agreement, dated as
of July 13, 2009, among Agent, Borrower and RBS Citizens, National Association,
d/b/a Charter One, as Depository.
“Deposit
Account” shall have the meaning set forth in the Cash Management
Agreement.
“Deposit
Account Control Agreement” shall mean five (5) separate Deposit Account
Control Agreements, each dated as of July 13, 2009, among Agent, Borrower and
RBS Citizens, National Association, d/b/a Charter One, as
Depository.
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“Depository”
shall mean RBS Citizens, National Association, d/b/a Charter One.
“Monthly
Payment Date” shall mean the thirteenth (13th) day of each
month.
“Notice of
Cessation” shall have the meaning set forth in Section
7.10(g).
“Notice of
Non-Renewal” shall have the meaning set forth in Section
7.10(g).
“Operating
Expense Account” shall have the meaning set forth in the Cash Management
Agreement.
“Operating
Expense Funds” shall have the meaning set forth in the Cash Management
Agreement.
“Operating
Expenses” shall mean all costs and expenses relating to the operation,
maintenance and management of the Project, including, without limitation,
utilities, repairs and maintenance, insurance, property taxes and assessments,
advertising expenses, payroll and related taxes, equipment lease payments, a
management fee equal to the actual management fee, which shall not exceed 4% of
the gross revenue of the Project, but excluding actual Capital Expenditures,
depreciation, amortization, and deposits required to be made to the Reserve
Funds; provided, however such costs and expenses shall be subject to adjustment
by Agent to normalize such costs and expenses.
“Reserve
Funds” shall mean, collectively, all funds held in the Accounts from time
to time.
“Tenant
Improvement Costs” shall mean tenant improvement costs payable by
Borrower pursuant to the terms of Leases approved (to the extent such approval
is required pursuant to the terms of the Loan Documents), deemed approved by
Agent from time to time pursuant to the Loan Documents or that do not require
Agent’s approval pursuant to the terms of the Loan Documents.
5. Net
Operating Income or NOI. The definition of “Net Operating
Income or NOI” in Article I of the Loan Agreement is hereby restated in its
entirety to read as follows:
““Net Operating Income
(NOI)”: The sum of the following (without duplication and
determined on a consistent basis with prior periods): (a) rents and other
revenues received in the ordinary course of business from operating the Project
(including proceeds of rent loss insurance but excluding pre-paid rents and
revenues and security deposits except to the extent applied in satisfaction of
tenants’ obligations for rent) during the quarter or two quarters in question,
multiplied by four (4) or by two (2), as the case may be, minus (b) any income
received from Leases where the tenant has given Borrower notice of its intention
to terminate or not renew its existing Lease in the prior quarter or two
quarters in question and any income from tenants who have ceased operations at
the Project, minus (c) all expenses paid or accrued related to the ownership,
operation or maintenance of the Project, including, but not limited to, taxes,
assessments, and other similar charges, insurance, utilities, payroll costs,
maintenance, repair and landscaping expenses and on-site marketing expenses
during the quarter or two quarters in question, annualized, minus (d) the annual
management fee for the Project; Net Operating Income shall be calculated
excluding any non-cash revenue or expense items, Capital Expenditures, Tenant
Improvement Costs and leasing commissions.”
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6. Prime
Rate. The definition of “Prime Rate” in each Note is hereby
restated in its entirety to read as follows:
“Prime
Rate”: A rate of interest equal to the greater of (a) 7% per
annum, or (b) the rate announced by Agent from time to time as its “Prime Rate”,
plus 4% per annum.”
7. Management
Fees. Management fees for the Project shall not exceed 4% of
the gross revenues of the Project, and the definition of “Management Fee” in
Article I of the Loan Agreement is hereby restated in its entirety to read as
follows:
““Management
Fee”: An amount not to exceed 4% of the annual gross revenues
of the Project.”
8. Excess
Cash Flow. The following Section 3.5 is hereby added to the
Loan Agreement:
“3.5 Excess
Cash Flow. On each July 14, October 14, January 14 and April
14, Agent shall ratably apply to the principal balance of each Note, all Excess
Cash Flow for the preceding calendar quarter. “Excess Cash Flow”
shall be defined as all sums on deposit in the Excess Cash Flow Account, as such
term is defined in the Cash Management Agreement.”
9. Notices
under Leases. The following subsection (vii) is hereby added
to Section 7.10(g) of the Loan Agreement:
“(vii) Borrower
will immediately (and in any event within five (5) business days) notify Agent
in writing (and provide copies of any notices received by Borrower) of (x) any
cessation of business operations at the Project by Macy’s, Dillard’s, Hollywood
Theater or JCPenney, (y) any notices received from any of the foregoing tenants
that it does not intend to renew its respective Lease under the terms provided
for in such Lease (each, a “Notice of
Non-Renewal”), or that it intends to cease business operations at the
Project (each, a “Notice of
Cessation”), or (z) any non-renewal, expiration or termination of any of
the foregoing Leases.”
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10. Distributions. Section
7.20 of the Loan Agreement is hereby restated in its entirety to read as
follows:
“7.20 Prohibitions
Against Distributions. In no event shall Borrower make or pay
any distributions whatsoever to its members or affiliates (except Management
Fees to the extent permitted herein and in the other Loan Documents) until the
Loan has been repaid in full.”
11. Net
Operating Income. Section 7.28 of the Loan Agreement is hereby
restated in its entirety to read as follows:
“7.28 Net
Operating Income. Borrower covenants and agrees that the
Project will maintain a minimum Net Operating Income of $3,000,000 as of the end
of each calendar quarter. Failure to satisfy this covenant shall
constitute an immediate Event of Default. Notwithstanding the
foregoing, in the event that this covenant is not satisfied, then, on one
occasion only during the term of the Loan, no Event of Default shall be deemed
to have occurred if the Net Operating Income for the Project as of the end of
the calendar quarter in question and the immediately prior calendar quarter was
at least $3,000,000. In the event the Net Operating Income for the
Project is less than $3,000,000 for more than one quarter during the term of the
Loan, an Event of Default shall be deemed to have occurred.”
12. The
following Sections 7.31, 7.32, 7.33, 7.34, 7.35 and 7.36 are hereby added to the
Loan Agreement:
“7.31 Accounts. Borrower
will establish and maintain with Agent all deposit accounts respecting the
Project and will cause all tenants to deposit all rents and other amounts
payable under Leases or otherwise with respect to the Project into a deposit
account or lockbox designated by Agent, as provided in the Cash Management
Agreement and the Deposit Account Control Agreement. Such funds will
be disposed of in accordance with the Cash Management Agreement.
7.32 Strategic
Plan. No later than October 31, 2009, Borrower will provide
Agent with a strategic plan for the Project, which must be in a form that is
reasonably satisfactory to Agent and which shall reflect and be prepared on a
basis consistent with the projections furnished to Agent and Lenders with
respect to the Project, and provide and reflect that the Project will be managed
and maintained in a professional, first class manner. Failure to
satisfy this covenant shall constitute an immediate Event of
Default. Agent and Lenders hereby acknowledge that this covenant has
been timely satisfied.
7.33 Lease
Terminations.
(a) If
any of Dillard’s, Macy’s or JCPenney delivers a Notice of Non-Renewal or does
not in fact renew its Lease under the terms provided for in such Lease, or if
any of the foregoing tenants delivers a Notice of Cessation, Borrower will,
within 21 days of the earlier of receipt of such notice or the failure to renew,
provide Agent a written plan, in reasonable detail, and which shall be
reasonably satisfactory to Agent, to re-lease such space in the
Project.
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(b) If
any Notice of Non-Renewal or Notice of Cessation is delivered by or on behalf of
Dillard’s, Macy’s or JCPenney to Borrower before September 14, 2010 or the
non-renewal of any such Lease otherwise occurs before September 14, 2010,
Borrower shall have 90 days following receipt of such notice or following such
non-renewal to either cause Dillard’s, Macy’s or JCPenney, as the case may be,
to rescind its Notice of Non-Renewal or Notice of Cessation, or deliver to Agent
a replacement Lease (as to the space occupied by JCPenney) or a replacement
occupant (as to the space occupied by Dillard’s or Macy’s) for its review and
approval, which approval shall not be unreasonably withheld, delayed or
conditioned. If a replacement Lease or occupant, as applicable, has
not been approved by Agent or the Notice of Non-Renewal or Notice of Cessation
has not been rescinded within such 90 day period, or if any Notice of
Non-Renewal or Notice of Cessation is received by Borrower from or on behalf of
JCPenney, Dillard’s or Macy’s after September 14, 2010 or if such non-renewal
otherwise occurs after September 14, 2010, an immediate Event of Default shall
have occurred and the Loan and all obligations and indebtedness of Borrower to
Agent and Lenders shall be immediately due and payable without notice,
notwithstanding any provision in the Loan Documents to the
contrary. Notwithstanding the foregoing, with respect to Macy's only,
if Borrower has received a Notice of Cessation from Macy's and such notice has
not been rescinded or a replacement occupant has not been approved by Agent
within such ninety (90) day period, and provided Macy's has not ceased business
operations at the Project, then, provided Borrower has demonstrated to Agent's
reasonable satisfaction that Borrower is diligently pursuing all available
remedies and is diligently enforcing its rights, Borrower shall have an
additional period, as evidenced by a written notice from Agent, not to exceed
the lesser of forty five (45) days or until Macy's actually ceases business
operations at the Project, to cause such notice to be rescinded or obtain
Agent's approval of a replacement occupant.
7.34 Capital
Expenditure and Tenant Improvement Cost Funds.
(a) Deposits
of Capital Expenditure and Tenant Improvement Cost Funds;
Budget. Borrower shall cause to be deposited in the Capital
Expenditure and Tenant Improvement Costs Account on the date this Agreement is
executed an amount equal to $721,656. Agent shall hereafter direct
Depository to deposit in the Capital Expenditure and Tenant Improvements Costs
Account, a monthly sum of $72,165.60 for ten (10) consecutive months (to the
extent sufficient cash is available in the Accounts to make such deposit,
pursuant and subject to the terms of the Cash Management Agreement, including,
but not limited to, Sections 3.3 and 4.4 thereof), and then $0 thereafter,
subject to the terms of any subsequent Capital Expenditure and Tenant
Improvement Costs Budgets. Amounts deposited in the Capital
Expenditure and Tenant Improvement Costs Account are referred to herein as the
“Capital
Expenditure and Tenant Improvement Cost Funds.” Prior to the
date hereof, Borrower has provided to Agent budgets for Capital Expenditures and
Tenant Improvement Costs for calendar years 2009 and 2010 (collectively, the
“Capital Expenditure and Tenant
Improvement Costs Budgets”), copies of which are attached hereto as Exhibit
C. All Capital Expenditure and Tenant Improvement Cost Funds
released from the Capital Expenditure and Tenant Improvement Costs Account shall
be used solely to pay for the costs of Capital Expenditures and Tenant
Improvement Costs strictly in compliance with such Capital Expenditure and
Tenant Improvement Costs Budgets. The amounts required to be
deposited in the Capital Expenditure and Tenant Improvement Cost Account as
Capital Expenditure and Tenant Improvement Cost Funds represent 125% of the
amount estimated by Borrower to be necessary to pay for Capital Expenditures and
Tenant Improvement Costs during the applicable time period. The
amount in excess of the actual amount estimated to be necessary to pay for such
Capital Expenditures and Tenant Improvement Costs may be disbursed to pay for
Capital Expenditures and Tenant Improvement Costs incurred and payable in
accordance with the provisions of this Agreement upon a written request from
Borrower, subject to Agent’s approval thereof, not to be unreasonably withheld,
conditioned or delayed.
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7.35 Release
of Capital Expenditure and Tenant Improvement Cost Funds.
(a) Borrower
may request Agent to direct Depository to disburse to or on behalf of Borrower
Capital Expenditure and Tenant Improvement Cost Funds upon satisfaction by
Borrower of each of the following conditions: (i) Borrower shall
submit a request for payment to Agent at least seven (7) business days prior to
the date on which Borrower requests such payment be made and specifies the
Capital Expenditures or Tenant Improvement Costs to be paid, (ii) on the
date such request is received by Agent and on the date such payment is to be
made, no default or Event of Default shall have occurred and be continuing,
(iii) Agent shall have received a certificate from Borrower
(A) stating that the items to be funded by the requested disbursement are
Capital Expenditures or Tenant Improvement Costs and are in conformity with the
Capital Expenditure and Tenant Improvement Costs Budgets or have otherwise been
approved in writing by Agent as provided in the last sentence of Section 7.34
hereof, (B) stating that all Capital Expenditures at the Project to be
funded by the requested disbursement (if applicable) have been completed in a
good and workmanlike manner and in accordance with all applicable legal
requirements, such certificate to be accompanied by a copy of any license,
permit or other approval required by any governmental authority in connection
with the Capital Expenditures, (C) stating that all Tenant Improvement
Costs at the Project to be funded by the requested disbursement are then
properly due and payable under the applicable Lease, together with copies of all
supporting documentation required to be provided under the Lease or otherwise
received by Borrower, (D) identifying each person (if any) that supplied
materials or labor in connection with the Capital Expenditures to be funded by
the requested disbursement, and (E) stating that each such person receiving
payment for Capital Expenditure Work has been paid in full or will be paid in
full upon such disbursement, such certificate to be accompanied by lien waivers
or other evidence of payment reasonably satisfactory to Agent, (iv) in
connection with requested disbursements for Capital Expenditures at Agent’s
option, a title search for the Project indicating that the Project is free from
all liens, claims and other encumbrances not previously approved by Agent (it
being understood that Agent has the right to obtain such title searches from
time to time irrespective of whether there is a pending request for Capital
Expenditure funds), (v) with respect to Capital Expenditure Work, at
Agent’s option, Agent shall have received a report (performed at Borrower’s
expense) satisfactory to Agent in its commercially reasonable discretion from an
architect or engineer approved by Agent, which approval shall not be
unreasonably withheld, delayed or conditioned in respect of such architect or
engineer’s inspection of the required Capital Expenditure Work, and
(vi) with respect to Capital Expenditures, Agent shall have received such
other evidence as Agent shall reasonably request that the Capital Expenditures
at the Project to be funded by the requested disbursement have been completed
and are paid for or will be paid upon such disbursement to or on behalf of
Borrower. Agent shall not be required to cause Depository to disburse
Capital Expenditure or Tenant Improvement Cost Funds more frequently than once
each calendar month, and at Agent’s option, such Capital Expenditure and Tenant
Improvement Cost Funds will be disbursed directly to the persons entitled to
payment for any Capital Expenditures Work.
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(b) Nothing
in this Section shall (i) make Agent responsible for making or
completing the Capital Expenditures Work; (ii) require Agent to expend
funds in addition to the Capital Expenditure or Tenant Improvement Cost Funds to
complete any Capital Expenditures Work; (iii) obligate Agent to proceed
with the Capital Expenditures Work; or (iv) obligate Agent to demand from
Borrower additional sums to complete any Capital Expenditures Work.
(c) Borrower
shall permit Agent and Agent’s agents and representatives (including, without
limitation, Agent’s engineer, architect, or inspector) or third parties to enter
onto the Project during normal business hours (subject to the rights of tenants
under their Leases) to inspect the progress of any Capital Expenditure Work and
all materials being used in connection therewith and to examine all plans and
shop drawings relating to such Capital Expenditure Work. Borrower
shall cause all contractors and subcontractors to cooperate with Agent or
Agent’s representatives or such other persons described above in connection with
inspections described in this Section.
(d) In
addition to any insurance required under the Loan Documents, Borrower shall
provide or cause to be provided workmen’s compensation insurance, builder’s
risk, and public liability insurance and other insurance to the extent required
under applicable law in connection with Capital Expenditures
Work. All such policies shall be in form and amount reasonably
satisfactory to Agent.
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7.36 Operating
Expense Funds.
(a) Borrower
has submitted to Agent an annual budget for Operating Expenses of the Project
for the remainder of calendar year 2009 and for calendar year 2010, copies of
which are attached as Exhibit D and shall
hereafter submit to Agent an annual budget for Operating Expenses of the Project
for subsequent calendar years (each, an “Annual Budget”) not later
than thirty (30) days prior to the commencement of each calendar year in form
reasonably satisfactory to Agent. Such Annual Budget for Operating
Expenses of the Project shall be subject to Agent’s written approval (each such
Annual Budget, as approved by Agent, an “Approved Annual Budget”),
which approval shall not be unreasonably withheld, delayed or
conditioned. The Annual Budgets attached hereto as Exhibit D are hereby
deemed to be Approved Annual Budgets. In the event that Agent objects
to a proposed Annual Budget submitted by Borrower, Agent shall advise Borrower
of such objections within fifteen (15) days after receipt thereof (and deliver
to Borrower a reasonably detailed description of such objections) and Borrower
shall promptly revise such Annual Budget and resubmit the same to
Agent. Agent shall advise Borrower of any objections to such revised
Annual Budget within ten (10) days after receipt thereof (and deliver to
Borrower a reasonably detailed description of such objections) and Borrower
shall promptly revise the same in accordance with the process described in this
subsection until Agent approves the entire Annual Budget. Until such
time that Agent approves a proposed Annual Budget, the most recently Approved
Annual Budget shall apply; provided that, such Approved Annual Budget shall be
adjusted to reflect actual increases in taxes, insurance premiums and other
charges. No more than one time per calendar year, Borrower may submit
to Agent, for its review and written approval, an updated Annual Budget for
Operating Expenses of the Project.
(b) Deposits
of Operating Expense Funds. Agent shall direct Depository to
deposit in the Operating Expense Account no later than each Monthly Payment Date
an amount equal to 1/12th of the annual amount of Operating Expenses set forth
in the applicable Annual Approved Budget approved by Agent, to the extent
sufficient cash is available in the Accounts to make such deposit, pursuant and
subject to the terms of the Cash Management Agreement, including, but not
limited to, Sections 3.3 and 4.4 thereof. Amounts deposited pursuant
to this Section are referred to herein as the “Operating Expense
Funds.” All Operating Expense Funds released from the
Operating Expense Account shall be used solely to pay for Operating Expenses
strictly in compliance with the Approved Annual Budgets.
(c) Release
of Operating Expense Funds.
(i) Unless
a default or Event of Default has occurred and is continuing, Borrower shall
have access to funds in the Operating Expense Account to pay Operating Expenses
pursuant to the Approved Annual Budgets. Borrower shall provide Agent
copies of invoices, evidence of payment and such other items as Agent may
reasonably request from time to time with respect to such Operating
Expenses. If a default or Event of Default occurs and is continuing,
Borrower shall have no further right to access funds in the Operating Expense
Account, and Agent shall have sole dominion and control over such Account and
funds.
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(d) Reallocation
of Operating Expense Funds. In the event Borrower expects to
incur or incurs Operating Expenses in excess of the monthly amount set forth in
the Approved Annual Budget, Borrower may request in writing, not more than twice
in a calendar year, that Agent grant its written consent to a reallocation of
Operating Expense Funds from future months to pay any such shortfall to the
extent there are sufficient funds then on deposit in the Operating Expense
Account. Agent shall not unreasonably withhold such consent so long
as no default or Event of Default has occurred and is continuing, and provided
that Borrower establishes in reasonable detail and to Agent’s satisfaction the
existence of the shortfall and that sufficient funds will remain available to
pay all unpaid Operating Expenses in the Annual Approved Budget as they become
due and payable.”
13. Assignments
and Encumbrances. Section 9.2 of the Loan Agreement is hereby
restated in its entirety to read as follows:
“9.2 Assignments
and Encumbrances. Notwithstanding the foregoing, transfers of
membership interests in Borrower to Glimcher (defined below) or OMERS (defined
below) by Glimcher or OMERS shall be permitted with Agent’s prior written
consent, which shall not be unreasonably withheld, provided (a) that the
transferee of such membership interests, either Glimcher or OMERS, as the case
may be, shall then have minimum liquid assets consisting of cash and cash
equivalents of at least $10,000,000, and a minimum net worth (as set forth on
its most recent [audited/interim] financial
statements of $100,000,000, (b) the Project shall be managed by a property
manager which is a reputable management company having at least 20 years
experience in the management of commercial properties with similar uses as the
Project, (c) at the time of its engagement as property manager, such property
manager manages at least 15,000,000 leasable square feet of the same property
type as the Project, (d) such property manager is not the subject of a
bankruptcy or similar proceeding, and (e) the property management agreement is
reasonably satisfactory to Agent.”
14. Loan
Assumption. The following Sections 9.3 and 9.4 are hereby
added to the Loan Agreement:
“9.3 Assumption. Notwithstanding
the foregoing provisions of Section 9.2, a sale of the Project and assumption of
this Loan (hereinafter, an “Assumption”) in its entirety prohibited by the
foregoing shall be permitted during the term of the Note to any entity which is
a wholly owned subsidiary of Glimcher Properties Limited Partnership (“Glimcher”)
or OMERS Realty Corporation (“OMERS”)
(“Transferee”),
subject to the prior written consent of Agent and each Lender, which shall not
be unreasonably withheld provided that each of the following terms and
conditions are satisfied:
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(a) Borrower
is then in compliance with all terms and conditions of the Loan Documents and no
default has occurred and is then continuing hereunder or under any of the other
Loan Documents and the Transferee agrees to continue to comply with and be bound
by all provisions of the Loan Documents;
(b) Borrower
gives Agent and Lenders written notice of the terms of such prospective
Assumption not less than sixty (60) days before the date on which such
Assumption is scheduled to take place and, concurrently therewith, gives Agent
and Lenders all such information concerning Transferee and either Glimcher or
OMERS, as the case may be, as Agent and Lenders reasonably request;
(c) Borrower
shall pay Agent and Lenders in connection with such proposed Assumption, all
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys’ fees incurred by Lender;
(d) Transferee
executes and delivers such documents and agreements as Agent shall reasonably
require to evidence and effectuate said assumption and delivers such legal
opinions as Agent may reasonably require, including, without limitation, hazard
insurance endorsements or certificates and other similar materials as Lender may
deem necessary at the time of the Assumption, all in form and substance
satisfactory to Agent, including, without limitation, an endorsement or
endorsements to Agent’s loan title insurance policy insuring the lien of the
Mortgage, extending the effective date of such policy to the date of execution
and delivery of the assumption agreement referenced in this subparagraph, with
no additional exceptions added to such policy, except for items consented to by
Agent or permitted under the Mortgage, and insuring that fee simple title to the
Project is vested in the Transferee;
(e) Borrower
executes and delivers to Lender, without any cost or expense to Agent or
Lenders, a release of Agent and Lenders, their officers, directors, employees
and agents, from all claims and liability relating to the transactions evidenced
by the other security documents through and including the date of the closing of
the Assumption, which agreement shall be in form and substance satisfactory to
Agent and shall be binding upon the Transferee;
(f) Such
Assumption is not construed so as to relieve Borrower of any personal liability
under the Note or any of the Loan Documents for any act or events occurring or
obligations arising prior to or simultaneously with the closing of such
Assumption (excluding payment of the principal amount of the Note and interest
accrued thereon) and Borrower executes, without any cost or expense to Agent or
Lenders, such documents and agreements as Agent shall reasonably require to
evidence and effectuate the ratification of such personal
liability;
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(g) Transferee
shall furnish all appropriate papers evidencing Transferee’s capacity in good
standing and the qualification of the signers to execute the assumption of the
Loan, which shall include certified copies of all documents relating to the
organization and formation of Transferee and of the entities, if any, which are
partners, members or shareholders of Transferee. Transferee and such
constituent partners, members or shareholders of Transferee (as the case may be)
as Agent shall require, shall be single purpose entities, whose formation
documents shall be approved by counsel to Agent;
(h) Transferee
shall furnish a customary opinion of counsel reasonably satisfactory to Agent
and its counsel;
(i) The
parent company of the Transferee, either Glimcher or OMERS, as the case may be,
shall then have minimum liquid assets consisting of cash and cash equivalents of
at least $10,000,000, and a minimum net worth (as set forth on its most recent
audited financial statements) of at least $100,000,000;
(j) The
Project shall be managed by a property manager which (x) is a reputable
management company having at least 20 years experience in the management of
commercial properties with similar uses as the Project, (y) at the time of its
engagement as property manager manages at least 15,000,000 leasable square feet
of the same property type as the Project, and (z) is not the subject of a
bankruptcy or similar proceeding. In addition, the property
management agreement must be reasonably satisfactory to Agent.
9.4 Agent’s
Rights. All of Agent’s and Lenders’ out-of-pocket expenses
incurred shall be payable by Borrower whether or not Agent and Lenders consent
to the Assumption. Agent and Lenders shall not be required to
demonstrate any actual impairment of its security or any increased risk of
default hereunder in order to declare the Loan immediately due and payable upon
Borrower’s prohibited sale, conveyance, mortgage, grant, bargain, encumbrance,
pledge, assignment, or transfer of the Project without Agent’s and Lenders’
consent. This provision shall apply to every sale, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the
Project regardless of whether voluntary or not, or whether or not Agent and
Lenders have consented to any previous sale, conveyance, mortgage, grant,
bargain, encumbrance, pledge, assignment, or transfer of the
Project.”
15. Events of
Default. The following subsections (n), (o) and (p) are hereby
added to Article X of the Loan Agreement:
“(n) (i)
The cessation of business operations at the Project at any time by any of
Dillard’s, Macy’s or JCPenney, (ii) if any of Dillard’s, Macy’s or JCPenney
delivers a Notice of Non-Renewal, or does not in fact renew its Lease on the
terms contained in such Lease, or if any of such tenants delivers a Notice of
Cessation, and, within 21 days after the earlier of receipt of such notice or
failure to renew such Lease, Borrower has not submitted to Agent a written plan,
in reasonable detail and which is reasonably satisfactory to Agent, to re-lease
such space in the Project; (iii) if any Notice of Non-Renewal or Notice of
Cessation is delivered by or on behalf of Dillard’s, Macy’s or JCPenney before
September 14, 2010 or the non-renewal of any such Lease otherwise occurs before
September 14, 2010, and within 90 days following receipt of such notice or
following such non-renewal, Agent has not approved in writing a replacement
Lease submitted by Borrower; (iv) if any Notice of Non-Renewal or Notice of
Cessation is received by Borrower from or on behalf of Dillard’s, Macy’s or
JCPenney after September 14, 2010, or (v) the non-renewal, expiration or
termination, at any time after September 14, 2010, of any of the Leases with
Dillard’s, Macy’s or JCPenney.
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(o) The
failure to comply with or a breach of any of the covenants set forth in Sections
7.20, 7.28 or 7.33 of the Loan Agreement.
(p) The
occurrence of any other “Event of Default” in the Loan Agreement or any other
Loan Document.”
16. Deletion
of Certain Events of Default. Subsection (d) of Article X of
the Loan Agreement is hereby deleted.
17. Remedies. The
following subsection (e) is hereby added to Section 11.1 of the Loan
Agreement:
“(e)
Agent, at its option, may withdraw the Reserve Funds or any portion thereof and
apply the Reserve Funds or any portion thereof to the items for which the
Reserve Funds were established or to payment of the Loan in such order,
proportion and priority as Agent may determine in its sole
discretion. Agent’s right to withdraw and apply the Reserve Funds
shall be in addition to all other rights and remedies provided to Agent under
the Loan Documents.”
18. Consultant’s
Report. Agent shall have the option to exercise at any time,
to retain an engineer, architect or other consultant to perform, at Borrower’s
expense, a property condition assessment of the Project. Borrower
agrees to promptly comply with and effectuate any recommendations specified by
such engineer, architect or consultant to the extent specifically requested by
Agent.
19. Further
Assurances. As an inducement to Agent and Lenders for entering
into this Agreement, Borrower agrees to cooperate with Agent and Lenders,
including providing such information as may be requested by Agent and executing
such documents as may be requested by Agent in order to cause all rents and
revenues from the Project to be deposited into the lockbox maintained with
Agent. In addition, Borrower agrees to cooperate with Agent in
instituting cash management procedures on terms satisfactory to
Agent.
20. Representations
and Warranties of Borrower. Borrower hereby represents,
covenants and warrants to Agent and Lenders as follows:
(a) The
representations and warranties in the Loan Agreement, the Mortgage and the other
Loan Documents are true and correct as of the date hereof.
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(b) There
is currently no Event of Default (as defined in the Mortgage) under the Note,
the Mortgage or the other Loan Documents and there is no event or circumstance
which with the giving of notice or passing of time, or both, would constitute an
Event of Default under the Note, the Mortgage or the other Loan
Documents.
(c) The
Loan Documents are in full force and effect and, following the execution and
delivery of this Agreement, they continue to be the legal, valid and binding
obligations of Borrower enforceable in accordance with their respective terms,
subject to limitations imposed by general principles of equity.
(d) There
has been no material adverse change in the financial condition of Borrower or
any other party whose financial statement has been delivered to Agent in
connection with the Loan from the date of the most recent financial statement
received by Agent.
(e) As
of the date hereof, Borrower has no claims, counterclaims, defenses, or set-offs
with respect to the Loan or the Loan Documents as modified herein.
(f) Borrower
is validly existing under the laws of the State of its formation or organization
and has the requisite power and authority to execute and deliver this Agreement
and to perform the Loan Documents as modified herein. The execution
and delivery of this Agreement and the performance of the Loan Documents as
modified herein have been duly authorized by all requisite action by or on
behalf of Borrower. This Agreement has been duly executed and
delivered on behalf of Borrower.
(g) This
Agreement, together with the other Loan Documents, create a valid and continuing
security interest in the Accounts and the Reserve Funds in favor of Agent, which
security interest is prior to all other liens and is enforceable as such against
creditors of and purchasers from Borrower. Other than in connection
with the Loan Documents, Borrower has not sold or otherwise conveyed the
Accounts or the Reserve Funds.
21. Conditions
Precedent; Expenses. This Amendment shall become effective
upon satisfaction of the following conditions precedent:
(a) Agent
shall have received four (4) fully executed counterparts to this
Agreement;
(b) Agent
shall have received a fully executed Cash Management Agreement, together with
all Tenant Direction Letters referred to therein;
(c) Agent
shall have received a fully executed Deposit Account Control Agreement for each
Account;
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(d) Agent
shall have received a fully executed Assignment and Subordination of Management
Agreement.
(e) Agent
shall have received from Borrower a principal payment of $5,000,000, which shall
be applied ratably to the Notes, reducing the aggregate outstanding principal
balance of the Notes to $30,000,000;
(f) Agent
shall have received a loan fee of $300,000, for the ratable benefit of Lenders;
the $50,000 loan fee received by Agent and Lenders in connection with the
Modification shall be credited against such fee;
(g) Agent
shall have received the $25,000 administrative agency fee referred to in Section
2 of this Agreement;
(h) Agent
shall have received reasonably satisfactory evidence that the execution,
delivery and performance of this Agreement and the agreements referred to above
have been duly authorized by all necessary action by or on behalf of Borrower;
and
(i) Borrower
shall have paid all reasonable attorneys’ fees and out-of-pocket expenses of
Agent and Lenders in connection with this Agreement and the agreements,
documents and other items contemplated hereunder.
22. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois.
(b) This
Agreement shall not be construed more strictly against Agent or Lenders than
against Borrower merely by virtue of the fact that the same has been prepared by
counsel for Agent, it being recognized that Borrower, Agent and Lenders have
contributed substantially and materially to the preparation of this Agreement,
and Borrower, Agent and Lenders each acknowledge and waive any claim contesting
the existence and the adequacy of the consideration given by the other in
entering into this Agreement. Each of the parties to this Agreement
represents that it has been advised by its respective counsel of the legal and
practical effect of this Agreement, and recognizes that it is executing and
delivering this Agreement, intending thereby to be legally bound by the terms
and provisions thereof, of its own free will, without promises or threats or the
exertion of duress upon it. The signatories hereto state that they
have read and understand this Agreement, that they intend to be legally bound by
it and that they expressly warrant and represent that they are duly authorized
and empowered to execute it.
(c) Notwithstanding
the execution of this Agreement by Agent and Lenders, the same shall not be
deemed to constitute Agent or Lenders a venturer or partner of or in any way
associated with Borrower nor shall privity of contract be presumed to have
been established with any third party.
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(d) Borrower,
Agent and Lenders each acknowledge that there are no other understandings,
agreements or representations, either oral or written, express or implied, that
are not embodied in the Loan Documents and this Agreement, which collectively
represent a complete integration of all prior and contemporaneous agreements and
understandings of Borrower, Agent and Lenders; and that all such prior
understandings, agreements and representations are hereby modified as set forth
in this Agreement. Except as expressly modified hereby, the terms of
the Loan Documents are and remain unmodified and in full force and
effect.
(e) This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and
assigns.
(f) Any
references to the "Note", the "Mortgage" or the "Loan Documents" contained
in any of the Loan Documents shall be deemed to refer to the Note, the Mortgage
and the other Loan Documents as amended hereby. The paragraph
and section headings used herein are for convenience only and shall not limit
the substantive provisions hereof. All words herein which are
expressed in the neuter gender shall be deemed to include the masculine,
feminine and neuter genders. Any word herein which is expressed in
the singular or plural shall be deemed, whenever appropriate in the context, to
include the plural and the singular.
(g) This
Agreement may be executed in one or more counterparts, all of which, when taken
together, shall constitute one original Agreement.
(h) Time
is of the essence of each of Borrower's obligations under this
Agreement.
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement dated as of the day and year first
above written.
|
CHARTER
ONE BANK, N.A., now
known
as RBS CITIZENS, NATIONAL
ASSOCIATION,
d/b/a CHARTER ONE,
as
a Lender and as Administrative,
Documentation,
Disbursement and
Collateral
Agent
By:
/s/ Xxxxx Xxxx
Thick
Name: Xxxxx Xxxx
Thick
Title: Senior Vice
President
JPMORGAN
CHASE BANK, N.A., as a
Lender
By: /s/ Xxxx
Xxxxxxx
Name: /s/ Xxxx
Xxxxxxx
Title:AVP
|
BORROWER:
TULSA
PROMENADE, LLC, a Delaware limited liability company
By:
TULSA PROMENADE REIT, LLC, a Delaware
limited liability company, its sole member
By:
OG RETAIL HOLDING CO., LLC, a Delaware
limited liability company, its managing member
By: GLIMCHER
PROPERTIES LIMITED
PARTNERSHIP, its Sole Administering Member
By:
GLIMCHER PROPERTIES CORPORATION,
its General Partner
By:/s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx X.
Xxxxxxx
Title: Executive Vice
President
|
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