Exhibit 10.141
FIRST AMENDMENT
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TO
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THIRD AMENDED AND RESTATED LOAN AGREEMENT
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This First Amendment to Third Amended and Restated Loan Agreement
(this "Amendment") is entered into at Columbus, Ohio, by and among The
Huntington National Bank, KeyBank National Association, those banks that are
parties to the Third Amended and Restated Loan Agreement hereinafter described,
and LaSalle Bank N.A. (the "New 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 1st day of August, 2001,
in order to amend the Third 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 Banks (other than the
New Bank), the Company, the Guarantor and certain affiliates of Glimcher Realty
Trust as additional guarantors (the "Additional Guarantors") as of the 31st day
of January, 2001 (the "Loan Agreement").
Whereas, the parties to this Amendment desire for the New Bank to
become a Bank under the terms of the Loan Agreement, the Loan Agreement is
hereby amended as follows:
1. The New Bank shall 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.
The New Bank agrees to be bound by all those provisions of the Loan Agreement
binding upon a Bank.
2. The Commitment Limit (as defined in the Loan Agreement) of the New
Bank shall be Twenty-Million Dollars ($20,000,000). In connection with the
establishment of such Commitment Limit, the respective Commitment Limits of The
Huntington National Bank and KeyBank National Association shall each be reduced
by $7,500,000 and the Commitment Limit of Bankers Trust Company shall be reduced
by $5,000,000.
3. All communications directed to the New Bank under the Loan
Agreement or the promissory note executed and delivered to the New Bank in
connection therewith shall be mailed to:
LaSalle Bank N.A.
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4. The parties agree that Section 1.1 of the Loan Agreement shall be
deleted and a new Section 1.1 substituted therefor, to read in its entirety as
follows:
1.1 COMMITMENT TO LEND.
The Banks agree to lend to the Company sums and issue letters of
credit in face amounts totaling an aggregate amount of up to
$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, as that amount may be increased or
decreased in any subsequent written 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 Evidence of Value (as
hereinafter defined) accepted by the Banks; provided, however, that
until April 30, 2001, the Total Outstandings may exceed 65% of the
fair market value of such properties so long as Total Outstandings do
not exceed 68% of such fair market value; and provided further, that
until the earlier of such time as (i) the Company shall substitute
property for or obtain the release of any part of any property in the
Collateral Pool or (ii) the Majority Banks shall obtain new Evidence
of Value pursuant to the terms of Section 10.21 of this Agreement, the
Total Outstandings may exceed 65% of the fair market value of such
properties so long as Total Outstandings do not exceed 65.18% of such
fair market value; 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) (such lesser amount, the "Maximum
Availability"). "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 (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
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Outstandings shall at any time exceed the Maximum Availability, 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 the
Maximum Availability or to make such repayment of the Loan as may be
required to reduce the Total Outstandings to not more than the Maximum
Availability. The parties agree that the Company's compliance with the
65.18% ratio temporarily permitted by the terms of this Section 1.1
shall also constitute compliance during the same time period with the
65% ratio otherwise required by the terms of Sections 9.8(c) and
9.9(e) of this Agreement.
4. The parties agree that, as of the date of this Amendment, the
Collateral Pool consists of the following properties: The Mall at Fairfield
Commons in Beavercreek, Ohio; NewTowne Mall in New Philadelphia, Ohio; Indian
Mound Mall in Heath, Ohio; Ohio River Plaza in Gallipolis, Ohio; and Cherry Hill
Plaza in Galax, Virginia. The parties agree that, based upon the fair market
value of the properties in the Collateral Pool, the Maximum Availability shall
be $169,740,000.
5. Section 9.9(d) of the Loan Agreement is hereby deleted. Glimcher
Realty Trust shall remain a guarantor under the terms and conditions of the
guarantees delivered in connection with the closing of the Loan Agreement and
pursuant to the terms and conditions of any guarantees executed and delivered in
substitution therefor in connection with this Amendment or otherwise. Glimcher
Realty Trust hereby confirms and represents that each of the guarantees that it
executed and delivered to the Banks in connection with the execution of the Loan
Agreement remains in full force and effect. The guarantees executed and
delivered by the Additional Guarantors in connection with the closing of the
Loan Agreement are hereby released and terminated by the Banks.
6. The Company and the Guarantor hereby represent and warrant to the
Banks that, on the date of this Amendment, there exists no Event of Default nor
any event that would become an Event of Default upon the giving of notice or
lapse of time, or both. The Company further represents that, to the best of its
knowledge, there exists no default by the Co-Agents or the Banks in the
performance of any of their obligations under the Loan Agreement.
7. The parties agree that Section 14.11 of the Loan Agreement shall be
deleted and a new Section 14.11 substituted therefor, to read in its entirety as
follows:
14.11 FUNDING OF ADVANCES.
On the date of the closing of the Loan or any later date when
funds are to be disbursed to the Company pursuant to the Loan, each
Bank shall pay to the Administrative Agent its Pro Rata Share, of the
amount of the disbursement, in funds available for immediate use, by
1:00 p.m. Columbus, Ohio, time on the same banking day on which the
Advance is made, provided, however, that the Administrative Agent
shall give each Bank notice of a LIBO Rate Advance
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promptly after notice is received from the Company pursuant to Section
2.3 and shall use its best efforts to give each Bank notice of the
funding of a Prime Interest Rate Advance no later than 4:00 p.m.,
Columbus, Ohio time on the banking day immediately preceding the day
of the advance. In the event any Bank fails or refuses to make payment
to the Administrative Agent as required herein, then the
Administrative Agent, without limitation, shall be entitled to pursue
all remedies and rights permitted by this Agreement, law, or equity
and further shall be entitled to, but not be required to, do all or
any of the following: (a) fund such Bank's Pro Rata Share of the
disbursement, (b) accrue interest on any unpaid amount at the Federal
Funds Rate (as defined below), (c) withhold from such Bank all
interest, principal, fees and late charges attributable to such Bank's
Pro Rata Share thereof through the date such Bank funds its Pro Rata
Share thereof and pays the interest due thereon, plus any additional
cost or expense, including without limitation, reasonable attorneys
fees, incurred by the Co-Agents or the Administrative Agent as a
result of such Bank's failure to pay, and (d) offset against such
Bank's Pro Rata Share all sums received by the Co-Agents or the
Administrative Agent in connection with the Loan until reimbursed by
the Bank that failed or refused to make such payment. All payments
received by the Administrative Agent in respect of the Loan shall be
distributed pro rata to the Banks promptly after the Administrative
Agent shall have collected such payment in immediately available
funds. The Administrative Agent agrees that all payments of principal
and interest received from the Company, in funds available for
immediate use, by 1:00 p.m. Columbus, Ohio, time, shall be disbursed
to the Banks on the same banking day. In the event the Administrative
Agent fails to make payment to any one or more of the Banks on such
date, then the Administrative Agent shall pay interest on the amount
of any such late payment at the Federal Funds Rate (as defined below).
As used herein, "Federal Funds Rate" shall mean for any day, the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (for if such day is not a Business
Day, the next preceding Business Day) by the Federal Reserve Bank of
New York, of if such rate is not so published for any day which is a
Business Day, the average of quotations for such day and such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by the Administrative
Agent.
8. Each reference to the Loan Agreement, whether by use of the phrase
"Loan Agreement," "Agreement," the prefix "herein" (when used in any provision
of this Amendment wherein a section of the Loan Agreement is deleted and a new
section substituted therefor), 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.
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9. 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. Each
of the Company and the Guarantor agrees 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.
10. 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.
11. 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 to each of The Huntington National Bank,
KeyBank National Association, Bankers Trust Company and LaSalle Bank N.A. 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 of The Huntington National Bank, KeyBank National
Association, Bankers Trust Company and LaSalle Bank N.A. of guarantees in the
form of Exhibits C and D to the Loan Agreement, in substitution for the
guarantees previously executed and delivered.
12. The capitalized terms used herein shall have the same meanings as
the capitalized terms used in the Loan Agreement.
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GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
Its: Sole General Partner
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Its: Executive Vice President
GLIMCHER REALTY TRUST
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Executive Vice President
GLIMCHER PROPERTIES CORPORATION
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Executive Vice President
THE HUNTINGTON NATIONAL BANK, as
Co-Agent and Administrative Agent
By: /s/ ▇▇▇▇▇▇ Briath
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Its: Vice President
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KEYBANK NATIONAL ASSOCIATION , as Co-Agent
and Syndication Agent
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Its: V. P.
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THE HUNTINGTON NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ Briath
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Its: Vice President
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KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Its: V. P.
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BANKERS TRUST COMPANY
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Its: Director
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FIRSTAR BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President
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FIRSTMERIT BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its: Executive Vice President
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NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: S.V.P.
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Its: Vice President
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THE PROVIDENT BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Its: Vice President
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LASALLE BANK N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its: EXP
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