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Exhibit 99
Second Amendment To First Amended And Restated Loan Agreement
This Second Amendment to First Amended and Restated Loan Agreement (this
"Amendment") is entered into at Columbus, Ohio, by and among The Huntington
National Bank, KeyBank National Association, The First National Bank of Chicago,
Fleet National Bank, Star Bank, National Association, Corestates Bank, National
Association, PNC Bank, Ohio, National Association, The Provident Bank and
National City Bank of Columbus, as lenders (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 26th day of November, 1996, in order
to amend the First Amended and Restated Loan Agreement entered into by and among
The Huntington National Bank, KeyBank National Association (in each case in
their respective roles as lenders and agents), the Company and the Guarantor as
of the 30th day of June, 1995, as thereafter amended as of the 17th day of
October, 1995 (the "Loan Agreement").
Whereas, the parties to this Amendment desire to amend certain of the
provisions of the Loan Agreement, the Loan Agreement is hereby amended as
follows:
1. Section 8.15 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
Except for any restrictions imposed by governmental authorities, there
do not now and will not in the future exist any restrictions on the
payment to the Company or the Guarantor of the cash flow from any of
the respective properties of the Company or the Guarantor after
payment of the debt service and operating expenses and funding of any
required maintenance or capital improvement reserve associated with
such property, nor will there exist any such restrictions as to that
portion of the cash flow from any Joint Venture (as defined in Section
10.14 of this Agreement) that is payable to the Company or the
Guarantor by reason of their respective pro rata ownership interests
in such Joint Venture.
2. Section 10.9 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
Neither the Company nor the Guarantor will purchase for investment
securities of any kind excepting (a) bonds or other obligations of the
United States; (b) certificates of deposit issued by commercial banks
with a capital of at least $100,000,000.00; (c) commercial paper rated
at least A-1 or P-1; (d) such money market funds and similar
investments as are acceptable to the Co-Agents; (e) investments in
each other; and (f) investments in Glimcher/Glaziers LA MetroMall LLC,
Glimcher/Glaziers NJ MetroMall LLC, California MetroMall LLC,
Elizabeth MetroMall LLC, Olathe Mall LLC and Great Plains MetroMall
LLC, which entities have been or will be formed in connection with
Company's and/or Guarantor's investment in regional shopping malls to
be located in Olathe, Kansas, Elizabeth, New Jersey and Carson,
California.
3. 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,
whether in the form of equity or inter-company debt, shall not exceed
$175,000,000.00 without prior written approval of the Majority Banks,
which approval shall not be unreasonably withheld. Investments in
Joint Ventures that own real estate projects that have not yet been
opened to the general shopping public shall not exceed $135,000,000.00
without such approval.
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"Joint Venture" shall mean any business entity that is an
unconsolidated Subsidiary of the Company or the Guarantor or of any
Subsidiary or Joint Venture of either, and any business entity in
which the Company, the Guarantor and their Subsidiaries and Joint
Ventures hold in the aggregate less than a 100% ownership interest.
4. Section 10.26 of the Loan Agreement is hereby amended to recite in its
entirety as follows:
Neither the Company nor the Guarantor shall enter into any agreement
with any party that contains (a) a negative pledge, (b) an agreement
not to convey or permit liens or (c) any comparable covenant.
Notwithstanding the provisions of the foregoing sentence to the
contrary, the Company and/or the Guarantor shall be permitted to enter
into agreements containing a negative pledge, an agreement not to
convey or permit liens or comparable covenants (in the aggregate,
"Negative Pledge Covenants") under the following circumstances: (i)
Negative Pledge Covenants may be provided in the Collateral Assignment
of Preferred Partnership Interest (the "Security Agreement") in which
Guarantor grants a security interest to Nomura Asset Capital
Corporation (or an affiliate thereof) in preferred partnership
interests issued by Borrower to Guarantor, to the extent any such
security interest secures: Guarantor's obligation to repay, redeem or
repurchase, in the event of the sale or refinance of a shopping mall,
monies paid by Nomura Asset Capital Corporation or an affiliate
thereof to purchase preferred stock, the proceeds of which were used
by Guarantor, directly or indirectly, to acquire or construct any of
the shopping malls associated with the entities described in Section
10.9(f) hereof, as modified; Guarantor's obligation to pay dividends
on equity interests issued by Guarantor in return for such
contributions; and obligations of Guarantor relating to its entering
into the Security Agreements; (ii) Negative Pledge Covenants may be
given to lenders in documenting any first mortgage financing obtained
in order to acquire, construct, develop, redevelop, expand or
renovate, either directly or indirectly, properties owned or to be
acquired with the proceeds of such mortgage financing by Company or
Guarantor, provided that such Negative Pledge Covenants relate solely
to the properties being financed; and (iii) Negative Pledge Covenants
may be given to the extent the same are customary in any easement
agreements, development agreements, redevelopment agreements, or
similar agreements entered into in connection with financing of the
type described in (ii) above; provided, however, that in no event
shall any Negative Pledge Covenants be given with respect to the
Negative Pledge Pool.
5. A new Section 10.28 is added to the Loan Agreement to read as follows:
10.28 Ratio of Project Costs to Asset Value.
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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 and not yet
open to the general shopping public for a period of six months,
excluding any infrastructure or off-site improvement costs that have
been publicly financed, shall not exceed 25% of Asset Value, as
defined in Section 10.29 hereof. The Company's and the Guarantor's
pro-rated share of such project costs shall be deemed to be the higher
of the percentage of their liability for indebtedness incurred in
connection with the project or their percentage ownership interest in
such project.
6. A new Section 10.29 is added to the Loan Agreement to read as follows:
10.29 Total Debt to Asset Value.
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(a) The consolidated total debt of the Company, the Guarantor and
their respective Subsidiaries (determined in accordance with generally
accepted accounting principles) shall not exceed 60% of Asset Value,
to be tested quarterly beginning March 31, 1997, as of the end of each
fiscal quarter, and, prior to March 31, 1997, to be tested monthly and
the calculations to be provided to the Administrative Agent no later
than 30 days following each month end. "Asset Value" shall mean the
aggregate of the Company's, the Guarantor's and their respective
Subsidiaries' consolidated earnings before interest, income taxes,
depreciation and amortization and minority interest expense for the
preceding twelve months (all as determined in accordance with
generally accepted accounting principles) capitalized at a rate of
9.5% (substituting, as to properties owned for less than 12 months,
the actual purchase price of such properties); plus the market value
of each property under development, which shall be equal to its cost
to date until the earlier of (i) 48 months from the beginning of
construction of such development property, (ii) 30 months from the
issuance of the Certificate of Occupancy for such development
property, or (iii) 24 months from the opening of such development
property to the general shopping public, and thereafter in accordance
with the formula stated in the first part of this sentence; plus
unrestricted cash and cash substitutes.
(b) 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, or (ii) the percentage of the aggregate ownership of the
Company and the Guarantor in such affiliate (the "Glimcher
Percentage"), shall not exceed 65% of Total Asset Value, to be tested
quarterly beginning March 31, 1997, as of the end of each fiscal
quarter, and, prior to March 31, 1997, to be tested monthly and the
calculations to be provided to the Administrative Agent no later than
30 days following each month end. "Total Asset Value" shall mean the
aggregate of the Company's, the Guarantor's and their respective
Subsidiaries' consolidated earnings before interest, income taxes,
depreciation and amortization and minority interest expense ("EBITDA")
for the preceding twelve months, less income from investments in joint
ventures (all as determined in accordance with generally accepted
accounting principles), plus the product of the EBITDA of each
unconsolidated affiliate and the Glimcher Percentage with respect to
such affiliate, capitalized at a rate of 9.5% (substituting, as to
properties owned for less than 12 months, the actual purchase price of
such properties); plus the product of the Glimcher Percentage and the
market value of each property under development, which shall be equal
to its cost to date until the earlier of (i) 48 months from the
beginning of construction of such development property, (ii) 30 months
from the issuance of the Certificate of Occupancy for such development
property, or (iii) 24 months from opening of such development property
to the general shopping public, and thereafter in accordance with the
formula stated in the first part of this sentence; plus unrestricted
cash and cash substitutes.
(c) Upon any non-compliance with this Section 10.29, the Company and
the Guarantor shall promptly execute and deliver to the Administrative
Agent all such instruments, agreements and other writings reasonably
required to convey to the
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Co-Agents a first lien against the Negative Pledge Pool as security
for all the obligations of the Company and the Guarantor pursuant to
this Agreement and to the promissory notes executed in connection
herewith.
7. A new Section 10.30 is added to the Loan Agreement, to read as
follows:
10.30 EBITDA to Total Debt Service of Consolidated and Unconsolidated
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Affiliates.
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The ratio of the Company's, the Guarantor's and their respective
Subsidiaries' consolidated earnings before interest, income taxes,
depreciation and amortization and minority interest ("EBITDA"), plus,
as to unconsolidated affiliates, the product of the EBITDA of each
such affiliate and the greater of (i) the percentage of such
affiliates' debt for which creditors of such affiliates' debt have
recourse to the Company or the Guarantor, or (ii) the percentage of
the aggregate ownership of the Company and the Guarantor in such
affiliate, to "Total Consolidated and Unconsolidated Debt Service"
shall be not less than 1.75, calculated as of the end of each fiscal
quarter for the four calendar quarters preceding such date. "Total
Consolidated and Unconsolidated Debt Service" shall mean Total Debt
Service as defined in Section 10.24, plus, as to unconsolidated
affiliates, the product of total interest plus scheduled debt
amortization, excluding balloon payments of such affiliate, and the
Glimcher Percentage (as defined in Section 10.29) as to each such
affiliate.
8. A new section 10.31 is added to the Loan Agreement to read as follows:
10.31 Notice of Other Defaults.
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The Company and the Guarantor shall give prompt written notice to the
Co-Agents (a) upon the failure of the Guarantor to make any preferred
dividend payment owing to Nomura Asset Capital Corporation or any of
its affiliates, or (b) upon the occurrence of any default by the
Company, the Guarantor or any of their affiliates in the performance
of any obligation owing to Nomura Asset Capital Corporation or any of
its affiliates under any instrument, agreement or other writing.
9. Section 12.1(i) of the Loan Agreement is hereby amended to recite in
its entirety as follows:
12.1 Nature of Events.
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(i) the Company or the Guarantor fails to make any payment or to
perform or observe any covenant owing to any of the Banks or to
any third party pursuant to any agreement to repay borrowed
money, and any applicable grace period has expired, to the extent
that such failure as to any indebtedness to any third party
permits such third party to accelerate the maturity of the
indebtedness and the indebtedness exceeds $8,000,000.00, or there
shall exist any Default by Glimcher Realty Trust in the
performance of any of its obligations pursuant to its Articles
Supplementary (as Default is defined therein).
10. 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.
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11. 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.
12. 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.
13. 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.
14. 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 constitute valid and
legally binding obligations 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.
15. This Amendment shall become effective only upon its execution by the
Company, the Guarantor and the Co-Agents. Execution by the parties hereto may be
in any number of counterparts, but all of such counterparts when taken together
shall constitute one and the same document.
16. The capitalized terms used herein shall have the same meanings as the
capitalized terms used in the Loan Agreement.
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IN WITNESS WHEREOF, the Company, the Guarantor, the Banks, the Co-Agents
and the Administrative Agent have hereunto set their hands as of the ___ day of
November, 1996.
COMPANY:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
By: GLIMCHER PROPERTIES CORPORATION
Its: Sole General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Its: Senior Vice President
GUARANTOR:
GLIMCHER REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Its: Senior Vice President
GLIMCHER PROPERTIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Its: Senior Vice President
BANKS:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Its: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Its: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By:
Its:
FLEET NATIONAL BANK
By:
Its:
STAR BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its: Vice President
CORESTATES BANK, NATIONAL ASSOCIATION
By:
Its:
PNC BANK, OHIO, NATIONAL ASSOCIATION
By:
Its:
THE PROVIDENT BANK
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Its: Vice President
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NATIONAL CITY BANK OF COLUMBUS
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Its: Vice President
CO-AGENTS:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Its: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Its: Vice President
ADMINISTRATIVE AGENT:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Its: Vice President
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