EXHIBIT 10.116
TERM LOAN AGREEMENT
DATED AS OF JULY 31, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ASSOCIATES LIMITED PARTNERSHIP
AND
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
AS BORROWERS
AND
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT AND LEAD ARRANGER
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
AS LENDERS
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..........................................................1
ARTICLE II THE CREDIT.........................................................11
2.1 Generally..........................................................11
2.2 Ratable Advances...................................................11
2.3 Final Principal Payment............................................11
2.4 Fees...............................................................12
2.5 Intentionally Omitted..............................................12
2.6 Optional Prepayments; Mandatory Prepayments........................12
2.7 Method of Selecting Types and Interest Periods.....................12
2.8 Conversion and Continuation of Outstanding Advances................13
2.9 Changes in Interest Rate, Etc......................................13
2.10 Rates Applicable After Default.....................................13
2.11 Method of Payment..................................................14
2.12 Notes; Telephonic Notices..........................................14
2.13 Interest Payment Dates; Interest and Fee Basis.....................14
2.14 Notification of Advances, Interest Rates and Prepayments...........14
2.15 Lending Installations..............................................15
2.16 Non-Receipt of Funds by the Administrative Agent...................15
2.17 Replacement of Lenders under Certain Circumstances.................15
2.18 Usury..............................................................16
2.19 Acceleration of Facility Termination Date..........................16
ARTICLE III CHANGE IN CIRCUMSTANCES...........................................16
3.1 Yield Protection...................................................16
3.2 Changes in Capital Adequacy Regulations............................17
3.3 Availability of Types of Advances..................................17
3.4 Funding Indemnification............................................18
3.5 Taxes..............................................................18
3.6 Lender Statements; Survival of Indemnity...........................20
ARTICLE IV CONDITIONS PRECEDENT...............................................20
4.1 Initial Advance....................................................20
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................23
5.1 Existence..........................................................23
5.2 Authorization and Validity.........................................23
5.3 No Conflict; Government Consent....................................23
5.4 Financial Statements; Material Adverse Effect......................23
5.5 Taxes..............................................................24
5.6 Litigation and Guarantee Obligations...............................24
5.7 Intentionally Omitted..............................................24
5.8 ERISA..............................................................24
5.9 Accuracy of Information............................................24
5.10 Regulation U.......................................................24
5.11 Material Agreements................................................24
5.12 Compliance With Laws...............................................24
5.13 Ownership of Projects..............................................25
5.14 Investment Company Act.............................................25
5.15 Public Utility Holding Company Act.................................25
5.16 Intentionally Omitted..............................................25
5.17 Insurance..........................................................25
5.18 REIT Status........................................................25
5.19 Title to Property..................................................25
5.20 Environmental Matters..............................................25
5.21 Collateral Asset...................................................26
5.22 Office of Foreign Asset Control....................................28
ARTICLE VI COVENANTS..........................................................28
6.1 Financial Reporting................................................28
6.2 Use of Proceeds....................................................29
6.3 Notice of Default..................................................29
6.4 Conduct of Business................................................29
6.5 Taxes..............................................................30
6.6 Insurance..........................................................30
6.7 Compliance with Laws...............................................30
6.8 Maintenance of Properties..........................................30
6.9 Inspection.........................................................30
6.10 Maintenance of Status..............................................30
6.11 Dividends..........................................................30
6.12 No Change in Control...............................................30
6.13 Affiliates.........................................................30
6.14 Consolidated Net Worth.............................................30
6.15 Indebtedness and Cash Flow Covenants...............................30
6.17 Approval of Leases.................................................31
ARTICLE VII DEFAULTS..........................................................31
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................33
8.1 Acceleration.......................................................33
8.2 Amendments.........................................................33
8.3 Preservation of Rights.............................................33
8.4 Foreclosure........................................................34
8.5 Insolvency of Borrower.............................................35
ARTICLE IX GENERAL PROVISIONS.................................................35
9.1 Survival of Representations........................................35
9.2 Governmental Regulation............................................35
9.3 Intentionally Omitted..............................................35
9.4 Headings...........................................................35
9.5 Entire Agreement...................................................35
9.6 Several Obligations; Benefits of this Agreement....................35
9.7 Expenses; Indemnification..........................................35
9.8 Numbers of Documents...............................................36
9.9 Accounting.........................................................36
9.10 Severability of Provisions.........................................36
9.11 Nonliability of Lenders............................................36
9.12 CHOICE OF LAW......................................................36
9.13 CONSENT TO JURISDICTION............................................36
9.14 WAIVER OF JURY TRIAL...............................................37
ARTICLE X THE ADMINISTRATIVE AGENT............................................37
10.1 Appointment........................................................37
10.2 Powers.............................................................37
10.3 General Immunity...................................................37
10.4 No Responsibility for Loans, Recitals, etc.........................37
10.5 Action on Instructions of Lenders..................................38
10.6 Employment of Agents and Counsel...................................38
10.7 Reliance on Documents; Counsel.....................................38
10.8 Administrative Agent's Reimbursement and Indemnification...........38
10.9 Rights as a Lender.................................................39
10.10 Lender Credit Decision.............................................39
10.11 Successor Administrative Agent.....................................39
10.12 Notice of Defaults.................................................40
10.13 Requests for Approval..............................................40
10.14 Defaulting Lenders.................................................40
ARTICLE XI....................................................................40
11.1 Intentionally Omitted..............................................40
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................40
12.1 Successors and Assigns.............................................40
12.2 Participations.....................................................41
ii
12.3 Assignments........................................................41
12.4 Dissemination of Information.......................................42
12.5 Tax Treatment......................................................42
ARTICLE XIII NOTICES..........................................................43
13.1 Giving Notice......................................................43
13.2 Change of Address..................................................43
ARTICLE XIV COUNTERPARTS......................................................43
iii
TERM LOAN AGREEMENT
This Term Loan Agreement, dated as of July 31, 2005, is among ▇▇▇▇▇▇▇▇▇▇
Mall Associates Limited Partnership, a Delaware limited partnership (the
"Owner") and Glimcher Properties Limited Partnership, a limited partnership
organized under the laws of the State of Delaware ("GPLP" and collectively with
Owner, the "Borrower"), KeyBank National Association, a national banking
association, and the several banks, financial institutions and other entities
from time to time parties to this Agreement (collectively, the "Lenders") and
KeyBank National Association, not individually, but as "Administrative Agent."
RECITALS
--------
A. GPLP is primarily engaged in the business of purchasing, owning,
operating, leasing and managing retail properties.
B. Owner holds a 727,000 square foot mall located in Montgomery, Alabama
commonly known as Montgomery Mall.
C. The Borrower has requested that the Lenders make a single disbursement
term loan to the Borrower pursuant to the terms of this Agreement to refinance
existing debt of Owner secured by such mall. The Administrative Agent and the
Lenders have agreed to do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
-----------
As used in this Agreement:
"ABR Applicable Margin" means zero percent per annum.
"Adjusted Annual EBITDA" shall have, as of any date, the meaning then given
to such term under the GPLP Revolver.
"Adjusted Funds From Operations" shall mean Funds From Operations less
Preferred Dividends.
"Administrative Agent" means KeyBank National Association in its capacity
as agent for the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article X.
"Advance" means the initial borrowing hereunder and from time to time
thereafter each portion of such initial borrowing which is of the same Type and,
in the case of LIBOR Rate Advances, for the same LIBOR Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of
-1-
the controlled Person or possesses, directly or indirectly, the power to direct
or cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means $44,000,000.
"Agreement" means this Credit Agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Execution Date" means the date this Agreement has been fully
executed and delivered by all parties hereto.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means, as applicable, the ABR Applicable Margin or the
LIBOR Applicable Margin which are used in calculating the interest rate
applicable to the various Types of Advances.
"Appraisal" shall mean an appraisal of the Collateral Asset commissioned by
the Administrative Agent, and acceptable to the Administrative Agent and
Required Lenders, in compliance with the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as amended, and the regulations promulgated
thereunder ("FIRREA") and with the Uniform Standards of Professional Appraisal
Practice.
"Appraised Value" means the "as-is" appraised value of the Collateral Asset
as shown on the most recent Appraisal thereof.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President and Chief Executive
Officer, Executive Vice President and Chief Operating Officer, Vice President
and Chief Financial Officer, Vice President, Controller and Chief Accounting
Officer or Executive Vice President and General Counsel of the general partner
of GPLP, acting singly.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Rate Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Cleveland, Ohio and New York, New York for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Cleveland, Ohio and New York, New York for the
conduct of substantially all of their commercial lending activities.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
-2-
"Capitalized Lease" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Change in Control" means (i) any change in the ownership of either Parent
Entity which results in more than twenty-five percent (25%) of the such Parent
Entity's Capital Stock being acquired by any one Person, or group of Persons
which are Affiliates of each other, or (ii) any change in the membership of
either Parent Entity's Board of Directors which results in the board members as
of any date after the Agreement Execution Date constituting less than 50% of the
total board members at any time during the one (1) year period following such
date, or (iii) any change in the identity of the owners of the general
partnership interests in the Borrower, unless any such owner is a Wholly-Owned
Subsidiary of Glimcher Realty Trust.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all assets of the Loan Parties, now owned or hereinafter
acquired, upon which a Lien is purported to be created by any Security Document
including, without limitation, the Collateral Asset.
"Collateral Asset" means the real estate and related improvements described
in the Mortgage commonly known as Montgomery Mall, Montgomery, Alabama.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans not exceeding the amount set forth opposite its signature below or as set
forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Consolidated Group" shall mean have the meaning given to such term in the
GPLP Revolver from time to time.
"Consolidated Group Pro Rata Share" shall mean, with respect to any
Investment Affiliate, the percentage of the total equity ownership interests
held by the Consolidated Group, in the aggregate, in such Investment Affiliate
determined by calculating the percentage of the issued and outstanding stock,
partnership interests or membership interests in such Investment Affiliate held
by the Consolidated Group in the aggregate.
"Consolidated Net Worth" means, as of any date of determination, an amount
equal to (a) Total Asset Value minus (b) Consolidated Outstanding Indebtedness
as of such date.
"Consolidated Outstanding Indebtedness" shall mean, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated basis
in accordance with GAAP, plus, without duplication (b) the greater of (i) the
applicable Consolidated Group Pro Rata Share of all Indebtedness of each
Investment Affiliate (other than Indebtedness of such Investment Affiliate to a
member of the Consolidated Group) and (ii) the amount of Indebtedness of such
Investment Affiliate which is also Recourse Indebtedness to a member of the
Consolidated Group.
-3-
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.8.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; provided that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Default Rate" means the interest rate which may apply during the
continuance of a Default pursuant to Section 2.10 which shall mean that (i) each
LIBOR Rate Advance shall bear interest for the remainder of the applicable LIBOR
Interest Period at the rate otherwise applicable to such LIBOR Interest Period
plus 2% per annum and (ii) each Floating Rate Advance shall bear interest at a
rate per annum equal to the Floating Rate otherwise applicable to the Floating
Rate Advance plus 2% per annum.
"Environmental Indemnity" means the environmental indemnity agreement to be
executed by GPLP and Owner in the form attached hereto as Exhibit I and made a
part hereof, as such document may be hereafter amended and/or restated from time
to time.
"Environmental Laws" includes, but is not limited to, the following
statutes, as amended, any successor thereto, and any regulations promulgated
pursuant thereto, and any state or local statutes, ordinances, rules,
regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Substances Transportation Act;
the Resource Conservation and Recovery Act (including but not limited to
Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act;
the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the
Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal
Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide
Act; the Endangered Species Act; the National Environmental Policy Act; and the
River and Harbors Appropriation Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Administrative Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it, by any jurisdiction with taxing
authority over the Lender.
"Facility Termination Date" means August 1, 2028 or any earlier mandatory
prepayment date as may be provided for in Section 2.19 below.
"Federal Funds Effective Rate" shall mean, for any day, the rate per annum
(rounded upward to the nearest one one-hundredth of one percent (1/100 of 1%))
announced by the Federal Reserve Bank of Cleveland on such day as being the
weighted average of the rates on overnight federal funds transactions arranged
by federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank in substantially the same manner as such Federal
Reserve Bank computes and announces the weighted average it refers to as the
"Federal Funds Effective Rate."
-4-
"Financial Contract" of a Person means (i) any exchange - traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"Financial Undertaking" of a Person means (i) any transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheet of such Person, or (ii)
any agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options.
"Fixed Charges" shall have, as of any date, the meaning then given to such
term under the GPLP Revolver.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) ABR Applicable Margin for such day,
in each case changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Funds From Operations" shall have the meaning determined from time to time
by the National Association of Real Estate Investment Trusts to be the meaning
most commonly used by its members.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 6.1.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"GPLP Revolver" means that certain revolving credit facility available to
GPLP in the maximum amount of $150,000,000 pursuant to that certain Credit
Agreement dated as of October 13, 2003 by and between GPLP and KeyBank National
Association, as Administrative Agent and Lead Arranger, and the several Lenders
from time to time parties thereto, as amended, restated or otherwise modified
from time to time, including any new revolving credit facility which refinances
and replaces such facility.
"Guarantee Obligation" means, as to any Person (the "guaranteeing person"),
any obligation (determined without duplication) of (a) the guaranteeing person
or (b) another Person (including, without limitation, any bank under any Letter
of Credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counter-indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or
-5-
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the
maximum stated amount of the primary obligation relating to such Guarantee
Obligation (or, if less, the maximum stated liability set forth in the
instrument embodying such Guarantee Obligation), provided, that in the absence
of any such stated amount or stated liability, the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good faith.
"Indebtedness" of any Person at any date means without duplication, (a) all
indebtedness of such Person for borrowed money including without limitation any
repurchase obligation or liability of such Person with respect to securities,
accounts or notes receivable sold by such Person, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices), to the extent such obligations
constitute indebtedness for the purposes of GAAP, (c) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar instrument,
(d) all Capitalized Lease Obligations, (e) all obligations of such Person in
respect of acceptances issued or created for the account of such Person, (f) all
Guarantee Obligations of such Person (excluding in any calculation of
consolidated Indebtedness of the Consolidated Group, Guarantee Obligations of
one member of the Consolidated Group in respect of primary obligations of any
other member of the Consolidated Group), (g) all reimbursement obligations of
such Person for letters of credit and other contingent liabilities, (h) any Net
▇▇▇▇-to-Market Exposure and (i) all liabilities secured by any lien (other than
liens for taxes not yet due and payable) on any property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof.
"Interest Period" means a LIBOR Interest Period.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade), deposit
account or contribution of capital by such Person to any other Person or any
investment in, or purchase or other acquisition of, the stock, partnership
interests, notes, debentures or other securities of any other Person made by
such Person.
"Investment Affiliate" means any Person in which the Consolidated Group,
directly or indirectly, has any ownership interest, whose financial results are
not consolidated under GAAP with the financial results of the Consolidated
Group.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement, their respective successors and assigns, any other lending
institutions that subsequently become parties to this Agreement.
"Lending Installation" means, with respect to a Lender, any office, branch,
subsidiary or affiliate of such Lender.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
-6-
"LIBOR Applicable Margin" means one and eighty-five one hundredths of one
percent (1.85%) per annum.
"LIBOR Base Rate" means, the rate (rounded upwards to the nearest 1/16th)
with respect to a LIBOR Rate Advance for the relevant LIBOR Interest Period, the
applicable British Bankers' Association LIBOR rate for deposits in U.S. dollars
as reported by any generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to the first day of such LIBOR
Interest Period, and having a maturity equal to such LIBOR Interest Period,
provided that, if no such British Bankers' Association LIBOR rate is available
to the Administrative Agent, the applicable LIBOR Base Rate for the relevant
LIBOR Interest Period shall instead be the rate determined by the Administrative
Agent to be the rate at which KeyBank or one of its Affiliate banks offers to
place deposits in U.S. dollars with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such LIBOR Interest Period, in the approximate amount of KeyBank's
relevant LIBOR Rate Loan and having a maturity equal to such LIBOR Interest
Period.
"LIBOR Interest Period" means, with respect to each amount bearing interest
at a LIBOR based rate, a period of one, two, three or six months, to the extent
deposits with such maturities are available to the Lenders, commencing on a
Business Day, as selected by the Borrower; provided, however, that any LIBOR
Interest Period which begins on a day for which there is no numerically
corresponding date in the calendar month in which such LIBOR Interest Period
would otherwise end shall instead end on the last Business Day of such calendar
month. Notwithstanding the foregoing, at any one time there will be no more than
six (6) LIBOR Interest Periods outstanding.
"LIBOR Rate" means, for any LIBOR Interest Period, the sum of (A) the LIBOR
Base Rate applicable thereto divided by one minus the then-current Reserve
Requirement and (B) the LIBOR Applicable Margin.
"LIBOR Rate Advance" means an Advance which bears interest at a LIBOR Rate.
"LIBOR Rate Loan" means a Loan which bears interest at a LIBOR Rate.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, the Security Documents,
and any other document from time to time evidencing or securing indebtedness
incurred by the Borrower under this Agreement, as any of the foregoing may be
amended or modified from time to time.
"Loan Parties" means the Borrower and the Parent Entities.
"Major Tenant" means a tenant occupying space at any Project of 10,000
square feet or greater.
"Material Adverse Effect" means, in the Administrative Agent's reasonable
discretion, a material adverse effect on (i) the business, property or condition
(financial or otherwise) of the Consolidated Group, (ii) the ability of the
Borrower to perform its obligations under the Loan Documents, or (iii) the
validity or enforceability of any of the Loan Documents.
-7-
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation, but excluding
substances of kinds and amounts ordinarily used or stored in similar properties
for the purposes of cleaning or other maintenance or operations or as inventory
of tenants and otherwise in compliance with all Environmental Laws.
"Maximum Legal Rate" means the maximum nonusurious interest rate, if any,
that at any time or from time to time may be contracted for, taken, reserved,
charged or received on the indebtedness evidenced by the Notes and as provided
for herein or in the Notes or other Loan Documents, under the laws of such state
or states whose laws are held by any court of competent jurisdiction to govern
the interest rate provisions hereof.
"Mortgage" means the mortgage recorded against the Collateral Asset which
shall be substantially in the form attached hereto as Exhibit H and made a part
hereof, as such document may be hereafter amended and/or restated from time to
time.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which GPLP or any member of the
Controlled Group is a party to which more than one employer is obligated to make
contributions.
"Net ▇▇▇▇-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions or any other
Financial Contract. "Unrealized losses" means the fair market value of the cost
to such Person of replacing such Rate Management Transaction or other Financial
Contract as of the date of determination (assuming the Rate Management
Transaction or other Financial Contract were to be terminated as of that date),
and "unrealized profits" means the fair market value of the gain to such Person
of replacing such Rate Management Transaction or other Financial Contract as of
the date of determination (assuming such Rate Management Transaction or other
Financial Contract were to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means a promissory note, in substantially the form of Exhibit A
hereto, duly executed by the Borrower and payable to the order of a Lender in
the amount of its Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means the Advances and all accrued and unpaid fees and all
other obligations of Borrower to the Administrative Agent or the Lenders arising
under this Agreement or any of the other Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Parent Entities" means Glimcher Realty Trust and Glimcher Properties
Corporation.
"Payment Date" means, with respect to the payment of interest accrued on
any Advance, the fifteenth day of each calendar month.
-8-
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means for each Lender the ratio that such Lender's Commitment
bears to the Aggregate Commitment, expressed as a percentage.
"Permitted Liens" are defined in Section 6.16.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Preferred Dividends" means, with respect to any entity, dividends or other
distributions which are payable to holders of any ownership interests in such
entity which entitle the holders of such ownership interests to be paid on a
preferred basis prior to dividends or other distributions to the holders of
other types of ownership interests in such entity.
"Prime Rate" means a rate per annum equal to the prime rate of interest
publicly announced from time to time by KeyBank or its parent as its prime rate
(which is not necessarily the lowest rate charged to any customer), changing
when and as said prime rate changes. In the event that there is a successor to
the Administrative Agent by merger, or the Administrative Agent assigns its
duties and obligations to an Affiliate, then the term "Prime Rate" as used in
this Agreement shall mean the prime rate, base rate or other analogous rate of
the new Administrative Agent.
"Project" means any real estate asset owned by GPLP or Owner and operated
or intended to be operated as a retail property.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Transaction" means any transaction (including an agreement
with respect thereto) now existing or hereafter entered into by the Borrower
which is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Recourse Indebtedness" means any Indebtedness of the Borrower or any other
member of the Consolidated Group with respect to which the liability of the
obligor is not limited to the obligor's interest in specified assets securing
such Indebtedness, subject to customary limited exceptions for certain acts or
types of liability.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of
-9-
said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66 2/3% of the aggregate unpaid
principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a LIBOR Rate Loan and LIBOR
Interest Period, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Federal Reserve Board or other governmental
authority or agency having jurisdiction with respect thereto for determining the
maximum reserves (including, without limitation, basic, supplemental, marginal
and emergency reserves) for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D) maintained by a member bank of the
Federal Reserve System.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Security Documents" means the collective reference to the Mortgage, the
UCC Financing Statements, and all other security documents hereafter delivered
to the Administrative Agent granting a Lien on any asset or assets of any Person
to secure the obligations and liabilities of the Borrower hereunder and under
any of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of GPLP.
"Substantial Portion" means, with respect to the Property of GPLP and its
Subsidiaries, Property which represents more than 10% of then-current Total
Asset Value.
-10-
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but excluding Excluded Taxes and Other Taxes.
"Total Asset Value" shall have, as of any date, the meaning then given to
such term under the GPLP Revolver.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance or LIBOR Rate Advance.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested nonforfeitable benefits under all Single Employer Plans exceeds
the fair market value of all such Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDIT
----------
2.1 Generally. Subject to the terms and conditions of this Agreement,
Lenders severally agree to make a single initial Advance through the
Administrative Agent to Borrower in the amount of the Aggregate Commitment.
Each Lender shall fund its Percentage of such initial Advance and no Lender will
be required to fund any amounts which would exceed such Lender's Commitment.
This facility ("Facility") is not a revolving credit facility and, therefore,
notwithstanding repayment of all or any portion of such Advance, the Borrower
shall have no right to reborrow Advances thereafter . For convenience, portions
of such single initial disbursement bearing different interest rates are
referred to herein as "Advances" but such reference shall not be deemed in any
way to create such a revolving credit facility.
2.2 Ratable Advances. The initial Advance hereunder shall consist of Loans
made from the several Lenders ratably in proportion to the ratio their
respective Commitments bear to the Aggregate Commitment and may be Floating Rate
Advances, LIBOR Rate Advances or a combination thereof, selected by the Borrower
in accordance with Section 2.7.
2.3 Final Principal Payment. Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility Termination
Date.
-11-
2.4 Fees. The Borrower agrees to pay an upfront fee to the Administrative
Agent on the date of the initial Advance equal to one-quarter of one percent
(0.25%) of the Aggregate Commitment.
2.5 Intentionally Omitted.
2.6 Optional Prepayments; Mandatory Prepayments.
(a) The Borrower may, upon at least one (1) Business Day's notice to
the Administrative Agent, prepay all or any portion of the Advances, which
notice shall specify the date and amount of prepayment and whether the
prepayment is of LIBOR Rate Advances or Floating Rate Advances, or a
combination thereof, and if a combination thereof, the amount allocable to
each; provided, however, that (i) any partial prepayment under this
Subsection shall be in an amount not less than $1,000,000 or a whole
multiple of $100,000 in excess thereof and; (ii) any LIBOR Rate Advance
prepaid on any day other than the last day of the applicable LIBOR Interest
Period must be accompanied by any amounts payable pursuant to Section 3.4.
Upon receipt of any such notice the Administrative Agent shall promptly
notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to Section 3.4.
(b) If GPLP shall either replace the GPLP Revolver with a new facility
or amend and restate the GPLP Revolver to increase the aggregate commitment
available thereunder, then, the Borrower shall make a mandatory prepayment
of the Loans in an amount sufficient to reduce the outstanding Advances
hereunder to $25,000,000 or less upon the date of such a replacement or
amendment and restatement. The failure of the Borrower to make any
prepayment as required under this subsection shall constitute a Default
under this Agreement. Each prepayment required to be made under this
subsection shall include any amounts payable pursuant to Section 3.4. Such
prepayment shall be of applied first to Floating Rate Advances, and then to
LIBOR Rate Advances.
2.7 Method of Selecting Types and Interest Periods. The Borrower shall
select the Type of each Advance comprising the initial disbursement hereunder
and, in the case of each LIBOR Rate Advance, the Interest Period applicable to
such Advance from time to time. The Borrower shall give the Administrative Agent
irrevocable notice (a "Borrowing Notice") in the form attached as Exhibit G
hereto (i) not later than 1:00 p.m. Cleveland time on the Business Day
immediately preceding the Borrowing Date of each Floating Rate Advance, and (ii)
not later than noon Cleveland time, at least three (3) Business Days before the
Borrowing Date for each LIBOR Rate Advance:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each LIBOR Rate Advance, the LIBOR Interest
Period applicable thereto.
Each Lender shall make available its Loan or Loans, in funds immediately
available in Cleveland to the Administrative Agent at its address specified
pursuant to Article XIII on each Borrowing Date not later than (i) 11:00 a.m.
(Cleveland time), in the case of Floating Rate Advances which have been
requested by a Borrowing Notice given to the Administrative Agent not later than
1:00 p.m. (Cleveland time) on the Business Day immediately preceding such
Borrowing Date, or
-12-
(ii) noon (Cleveland time) in the case of all other Advances. The Administrative
Agent will make the funds so received from the Lenders available to the Borrower
at the Administrative Agent's aforesaid address.
No Interest Period may end after the Facility Termination Date and, unless
the Lenders otherwise agree in writing, in no event may there be more than six
(6) different Interest Periods for LIBOR Rate Advances outstanding at any one
time.
2.8 Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into LIBOR Rate Advances. Each LIBOR Rate Advance
shall continue as a LIBOR Rate Advance until the end of the then applicable
LIBOR Interest Period therefor, at which time such LIBOR Rate Advance shall be
automatically converted into a Floating Rate Advance unless the Borrower shall
have given the Administrative Agent a Conversion/Continuation Notice requesting
that, at the end of such LIBOR Interest Period, such LIBOR Rate Advance either
continue as a LIBOR Rate Advance for the same or another Interest Period or be
converted to an Advance of another Type. Subject to the terms of Section 2.5,
the Borrower may elect from time to time to convert all or any part of an
Advance of any Type into any other Type or Types of Advances; provided that any
conversion of any LIBOR Rate Advance shall be made on, and only on, the last day
of the Interest Period applicable thereto. The Borrower shall give the
Administrative Agent irrevocable notice (a "Conversion/Continuation Notice") of
each conversion of an Advance to a LIBOR Rate Advance or continuation of a LIBOR
Rate Advance not later than 11:00 a.m. (Cleveland time), at least three Business
Days, in the case of a conversion into or continuation of a LIBOR Rate Advance,
prior to the date of the requested conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a
conversion into or continuation of a LIBOR Rate Advance, the duration
of the LIBOR Interest Period applicable thereto.
2.9 Changes in Interest Rate, Etc. Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a LIBOR Rate
Advance into a Floating Rate Advance pursuant to Section 2.8 to but excluding
the date it becomes due or is converted into a LIBOR Rate Advance pursuant to
Section 2.8 hereof, at a rate per annum equal to the Floating Rate for such day.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each LIBOR Rate Advance shall bear interest from and
including the first day of the LIBOR Interest Period applicable thereto to (but
not including) the last day of such LIBOR Interest Period at the interest rate
determined as applicable to such LIBOR Rate Advance.
2.10 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.7 or 2.8, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be converted
into or continued as a LIBOR Rate
-13-
Advance. During the continuance of a Default the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that the
Default Rate shall apply, provided, however, that the Default Rate shall become
applicable automatically if a Default occurs under Section 7.1 or 7.2, unless
waived by the Required Lenders.
2.11 Method of Payment. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Administrative Agent at the Administrative Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the
Administrative Agent specified in writing at least three (3) Business Days in
advance by the Administrative Agent to the Borrower, by noon (Cleveland time) on
the date when due and shall be applied ratably by the Administrative Agent among
the Lenders. As provided elsewhere herein, all Lenders' interests in the
Advances and the Loan Documents shall be ratable undivided interests and none of
such Lenders' interests shall have priority over the others. Each payment
delivered to the Administrative Agent for the account of any Lender or amount to
be applied or paid by the Administrative Agent to any Lender shall be paid
promptly (on the same day as received by the Administrative Agent if received
prior to noon (Cleveland time) on such day and otherwise on the next Business
Day) by the Administrative Agent to such Lender in the same type of funds that
the Administrative Agent received at its address specified pursuant to Article
XIII or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. Payments received by the Administrative
Agent but not timely funded to the Lenders shall bear interest payable by the
Administrative Agent at the Federal Funds Effective Rate from the date due until
the date paid. The Administrative Agent is hereby authorized to charge the
account of the Borrower maintained with KeyBank for each payment of principal,
interest and fees as it becomes due hereunder.
2.12 Notes; Telephonic Notices. Each Lender is hereby authorized to record
the principal amount of each of its Loans and each repayment on the schedule
attached to its Note, provided, however, that the failure to so record shall not
affect the Borrower's obligations under such Note. The Borrower hereby
authorizes the Lenders and the Administrative Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to transfer funds
based on written notices made by any Authorized Officer and Borrower agrees to
deliver promptly to the Administrative Agent such written notice. The
Administrative Agent will at the request of the Borrower, from time to time, but
not more often than monthly, provide notice of the amount of the outstanding
Aggregate Commitment, the Type of Advance, and the applicable interest rate, if
for a LIBOR Rate Advance. Upon a Lender's furnishing to Borrower an affidavit to
such effect, if a Note is mutilated, destroyed, lost or stolen, Borrower shall
deliver to such Lender, in substitution therefore, a new note containing the
same terms and conditions as such Note being replaced.
2.13 Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Advance shall be payable on each Payment Date, commencing with the first
such date to occur after the date hereof, at maturity, whether by acceleration
or otherwise. Interest shall be calculated for actual days elapsed on the basis
of a 360-day year. Interest shall be payable for the day an Advance is made but
not for the day of any payment on the amount paid if payment is received prior
to noon (Cleveland time) at the place of payment. If any payment of principal of
or interest on an Advance shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.14 Notification of Advances, Interest Rates and Prepayments. The
Administrative Agent will notify each Lender of the contents of each Borrowing
Notice, Conversion/Continuation Notice, and
-14-
repayment notice received by it hereunder not later than the close of business
on the Business Day such notice is received by the Administrative Agent. The
Administrative Agent will notify each Lender of the interest rate applicable to
each LIBOR Rate Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate
2.15 Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Notes shall be deemed held by each Lender for the benefit
of such Lending Installation. Each Lender may, by written or telex notice at
least three (3) Business Days in advance to the Administrative Agent and the
Borrower, designate a Lending Installation through which Loans will be made by
it and for whose account Loan payments are to be made.
2.16 Non-Receipt of Funds by the Administrative Agent. Unless the Borrower
or a Lender, as the case may be, notifies the Administrative Agent prior to the
time at which it is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan. If such Lender so
repays such amount and interest thereon to the Administrative Agent within one
Business Day after such demand, all interest accruing on the Loan not funded by
such Lender during such period shall be payable to such Lender when received
from the Borrower.
2.17 Replacement of Lenders under Certain Circumstances. The Borrower shall
be permitted to replace any Lender which (a) is not capable of receiving
payments without any deduction or withholding of United States federal income
tax pursuant to Section 3.5, or (b) cannot maintain its LIBOR Rate Loans at a
suitable Lending Installation pursuant to Section 3.3, with a replacement bank
or other financial institution; provided that (i) such replacement does not
conflict with any applicable legal or regulatory requirements affecting the
Lenders, (ii) no Default or (after notice thereof to the Borrower) no Unmatured
Default shall have occurred and be continuing at the time of such replacement,
(iii) the Borrower shall repay (or the replacement bank or institution shall
purchase, at par) all Loans and other amounts owing to such replaced Lender
prior to the date of replacement, (iv) the Borrower shall be liable to such
replaced Lender under Sections 3.4 and 3.6 if any LIBOR Rate Loan owing to such
replaced Lender shall be prepaid (or purchased) other than on the last day of
the Interest Period relating thereto, (v) the replacement bank or institution,
if not already a Lender, and the terms and conditions of such replacement, shall
be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 12.3 (provided that the Borrower shall be obligated to pay the
processing fee referred to therein), (vii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 3.5 and (viii) any such replacement shall not be
deemed to be a waiver of any rights which the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
-15-
2.18 Usury . This Agreement and each Note are subject to the express
condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject any
Lender to either civil or criminal liability as a result of being in excess of
the Maximum Legal Rate. If by the terms of this Agreement or the Loan Documents,
Borrower is at any time required or obligated to pay interest on the principal
balance due hereunder at a rate in excess of the Maximum Legal Rate, the
interest rate or the Default Rate, as the case may be, shall be deemed to be
immediately reduced to the Maximum Legal Rate and all previous payments in
excess of the Maximum Legal Rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All
sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the sums due under the Loan, shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full stated
term of the Loan until payment in full so that the rate or amount of interest on
account of the Loan does not exceed the Maximum Legal Rate of interest from time
to time in effect and applicable to the Loan for so long as the Loan is
outstanding.
2.19 Acceleration of Facility Termination Date. The Facility Termination
Date may be accelerated, at the sole option of the Lenders, to January 31, 2006
or any date thereafter by written notice to Borrower and the Obligations shall
be due and payable in full on the date so specified. Notwithstanding the
foregoing, the Borrower shall have three (3) options to defer the Lenders' right
to so accelerate the Facility Termination Date, each such deferral to be
effective for a period of six (6) months (each referred to herein as a "Call
Deferral Period"), upon satisfaction of the following conditions precedent:
(a) The Borrower shall provide Administrative Agent with written
notice of the Borrower's intent to exercise any such option not more than
ninety (90) and not less than thirty (30) days prior to (i) January 31,
2006, in the case of the first Call Deferral Period or (ii) the last day of
the then-current Call Deferral Period with respect to the subsequent two
(2) Call Deferral Periods;
(b) Prior to the first day of any such Call Deferral Period the
Borrower shall have made sufficient repayments of the Advances so that the
outstanding Advances as of the first day of any Call Deferral Period shall
not be more than $25,000,000;
(c) As of the date of the Borrower's delivery of notice of its intent
to exercise any such deferral option, and as of the first day of each such
Call Deferral Period, no Default or Unmatured Default shall have occurred
and be continuing and the Borrower shall so certify in writing; and
(d) On or before the effective date of each Call Deferral Period, the
Borrower shall pay to Administrative Agent for the benefit of the Lenders a
deferral fee for the Call Deferral Period so exercised in an amount equal
to 0.10% of the outstanding Advances as of the first day of such Call
Deferral Period.
ARTICLE III
CHANGE IN CIRCUMSTANCES
-----------------------
3.1 Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
-16-
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other than
with respect to Excluded Taxes) to any Lender in respect of its LIBOR
Rate Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than the Reserve Requirement and any other reserves and assessments
taken into account in determining the interest rate applicable to
LIBOR Rate Advances), or
(iii) imposes any other condition the direct result of which is
to increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining its LIBOR Rate Loans,
or reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with its LIBOR Rate Loans, or
requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of LIBOR Rate Loans, by
a material amount.
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation, as the case may be, of making or maintaining
its LIBOR Rate Loans or Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such LIBOR Rate
Loans or Commitment, then, within 15 days of demand by such Lender, the Borrower
shall pay such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction in amount received.
3.2 Changes in Capital Adequacy Regulations. If a Lender in good faith
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change (as hereinafter defined), then,
within 15 days of demand by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender in good faith determines is
attributable to this Agreement, its outstanding credit exposure hereunder or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change after the date
of this Agreement in the Risk-Based Capital Guidelines (as hereinafter defined)
or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender in good faith
determines that maintenance of any of its LIBOR Rate Loans at a suitable Lending
Installation would violate any
-17-
applicable law, rule, regulation or directive, whether or not having the force
of law, the Administrative Agent shall, with written notice to Borrower, suspend
the availability of the affected Type of Advance and require any LIBOR Rate
Advances of the affected Type to be repaid; or if the Required Lenders in good
faith determine that (i) deposits of a type or maturity appropriate to match
fund LIBOR Rate Advances are not available, the Administrative Agent shall, with
written notice to Borrower, suspend the availability of the affected Type of
Advance with respect to any LIBOR Rate Advances made after the date of any such
determination, or (ii) an interest rate applicable to a Type of Advance does not
accurately reflect the cost of making a LIBOR Rate Advance of such Type, then,
if for any reason whatsoever the provisions of Section 3.1 are inapplicable, the
Administrative Agent shall, with written notice to Borrower, suspend the
availability of the affected Type of Advance with respect to any LIBOR Rate
Advances made after the date of any such determination. If the Borrower is
required to so repay a LIBOR Rate Advance, the Borrower may concurrently with
such repayment borrow from the Lenders, in the amount of such repayment, a Loan
bearing interest at the Floating Rate.
3.4 Funding Indemnification. If any payment of a ratable LIBOR Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a ratable LIBOR
Rate Advance is not made on the date specified by the Borrower for any reason
other than default by the Lenders or as a result of unavailability pursuant to
Section 3.3, the Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss or
cost (incurred or expected to be incurred) in liquidating or employing deposits
acquired to fund or maintain the ratable LIBOR Rate Advance and shall pay all
such losses or costs within fifteen (15) days after written demand therefor.
3.5 Taxes.
(i) All payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any Note shall
be made free and clear of and without deduction for any and all Taxes.
If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, (c)
the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower shall
furnish to the Administrative Agent the original copy of a receipt
evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present
or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or under any Note or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Administrative
Agent and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on
amounts payable under this Section 3.5) paid by the Administrative
Agent or such Lender and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. Payments due
under this
-18-
indemnification shall be made within 30 days of the date the
Administrative Agent or such Lender makes demand therefor pursuant to
Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not more than ten Business Days after the
Agreement Execution Date, (i) deliver to each of the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either
case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes, and (ii) deliver to each of the Borrower and the
Administrative Agent a United States Internal Revenue Form W-8 or W-9,
as the case may be, and certify that it is entitled to an exemption
from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the
Administrative Agent (x) renewals or additional copies of such form
(or any successor form) on or before the date that such form expires
or becomes obsolete, and (y) after the occurrence of any event
requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested
by the Borrower or the Administrative Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or
which would prevent such Lender from duly completing and delivering
any such form or amendment with respect to it and such Lender advises
the Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United
States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause (iv),
above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the
date on which a form originally was required to be provided), such
Non-U.S. Lender shall not be entitled to indemnification under this
Section 3.5 with respect to Taxes imposed by the United States.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate following receipt of such
documentation.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or
any political subdivision thereof asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid
to or for the account of any Lender (because the appropriate form was
not delivered or properly completed, because such Lender failed to
notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other
reason), such Lender shall indemnify the Administrative Agent fully
for all
-19-
amounts paid, directly or indirectly, by the Administrative Agent as
tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts
payable to the Administrative Agent under this subsection, together
with all costs and expenses related thereto (including attorneys fees
and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The
obligations of the Lenders under this Section 3.5(vii) shall survive
the payment of the Obligations and termination of this Agreement and
any such Lender obligated to indemnify the Administrative Agent shall
not be entitled to indemnification from the Borrower with respect to
such amounts, whether pursuant to this Article or otherwise, except to
the extent the Borrower participated in the actions giving rise to
such liability.
3.6 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR Rate Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of LIBOR
Rate Advances under Section 3.3, so long as such designation is not, in the
reasonable judgment of such Lender, disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender to the Borrower (with a copy to
the Administrative Agent) as to the amount due, if any, under Sections 3.1, 3.2,
3.4 or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a LIBOR
Rate Loan shall be calculated as though each Lender funded its LIBOR Rate Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the LIBOR Rate applicable to such
Loan, whether in fact that is the case or not. Unless otherwise provided herein,
the amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The obligations
of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of
the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1 Initial Advance. The Lenders shall not be required to make the initial
Advance hereunder unless (a) the Borrower shall, prior to or concurrently with
such initial Advance, have paid all fees due and payable to the Lenders and the
Administrative Agent hereunder, and (b) the Borrower shall have furnished to the
Administrative Agent, with sufficient copies for the Lenders, the following:
(i) The duly executed originals of the Loan Documents, including
the Notes, payable to the order of each of the Lenders, this
Agreement, the Environmental Indemnity and all of the Security
Documents;
(ii) (A) Certificates of good standing for GPLP and Owner from
the State of Delaware, certified by the appropriate governmental
officer and dated not more than thirty (30) days prior to the
Agreement Execution Date, and (B) foreign qualification certificates
for GPLP and the Owner, certified by the appropriate governmental
officer and dated not more than thirty (30) days prior to the
Agreement Execution Date, for each other jurisdiction where the
failure of GPLP or Owner to so qualify or be licensed (if required)
would have a Material Adverse Effect;
-20-
(iii) Copies of the formation documents (including code of
regulations, if appropriate) of GPLP and the Owner, certified by an
officer of GPLP or Owner, as appropriate, together with all amendments
thereto;
(iv) Incumbency certificates, executed by officers of the
Borrower, the Parent Entities and Owner, which shall identify by name
and title and bear the signature of the Persons authorized to sign the
Loan Documents and to make borrowings hereunder on behalf of such
parities, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in
writing by GPLP or any such Parent Entity or the Owner;
(v) Copies, certified by a Secretary or an Assistant Secretary of
the Parent Entities, of the Board of Directors' resolutions (and
resolutions of other bodies, if any are reasonably deemed necessary by
counsel for the Administrative Agent) authorizing the Advances
provided for herein, with respect to the Borrower, and the execution,
delivery and performance of the Loan Documents to be executed and
delivered by the Borrower and each Parent Entity hereunder;
(vi) A written opinion of the Borrower's and Parent Entities'
counsel, addressed to the Lenders in substantially the form of Exhibit
F hereto or such other form as the Administrative Agent may reasonably
approve;
(vii) A written opinion from counsel in Alabama, in form and
substance satisfactory to Administrative Agent, as to the
enforceability of the Mortgage encumbering the Collateral Asset;
(viii) A certificate, signed by an Authorized Officer of GPLP and
Owner, stating that on the initial Borrowing Date no Default or
Unmatured Default has occurred and is continuing, there has been no
Material Adverse Effect, and that all representations and warranties
of the Borrower are true and correct in all material respects as of
the initial Borrowing Date provided that such certificate is in fact
true and correct;
(ix) The most recent financial statements of GPLP;
(x) UCC financing statement, judgment, and tax lien searches with
respect to GPLP and Owner from Alabama, Ohio and Delaware;
(xi) Written money transfer instructions, addressed to the
Administrative Agent and signed by an Authorized Officer, together
with such other related money transfer authorizations as the
Administrative Agent may have reasonably requested;
(xii) Evidence that all upfront fees due to each of the Lenders
under the terms of their respective commitment letters have been paid,
or will be paid out of the proceeds of the initial Advance hereunder;
(xiii) There is no event of default under the GPLP Revolver;
(xiv) The Administrative Agent shall have received a survey for
the Collateral Asset certified as set forth in Schedule 5 attached
hereto to the Administrative Agent and in a form satisfactory to
counsel for the Administrative Agent;
-21-
(xv) The Administrative Agent shall have received in respect of
the Collateral Asset a title policy (or policies) complying with the
requirements as set forth in Schedule 6 attached hereto, showing no
exceptions to title other than those permitted under the Mortgage,
except such as may be approved by the Administrative Agent, naming the
Administrative Agent for the benefit of the Lenders as the insured
under such policy and containing such endorsements as may be available
in the applicable jurisdiction and as the Administrative Agent may
require. The Administrative Agent shall have received evidence
satisfactory to it that all premiums in respect of any endorsements,
and all charges for mortgage recording tax, if any, have been paid;
(xvi) If any portion of any buildings included in the Collateral
Asset is located in an area identified as a special flood hazard area
by the Federal Emergency Management Agency or other applicable agency,
the Administrative Agent shall have received (i) a policy of flood
insurance which (A) covers any parcel of improved real property which
is encumbered by the Mortgage and (B) is written in an amount
satisfactory to the Administrative Agent or the maximum limit of
coverage made available with respect to the particular type of
property under the Act, whichever is less, and (ii) confirmation that
the Owner has received the notice required pursuant to Section
208(e)(3) of Regulation H of the Board of Governors of the Federal
Reserve System. To the extent the Collateral Asset is not located in
an area identified as a special flood hazard area by the Federal
Emergency Management Agency or other agency, the certification of the
survey of the Collateral Asset to be delivered pursuant to clause
(xvi) above shall include confirmation of such fact;
(xvii) The Administrative Agent shall have received a copy of all
recorded documents with respect to the Collateral Asset referred to,
or listed as exceptions to title in, the title policy referred to in
Section 4.1(xvii) and a copy, certified by such parties as the
Administrative Agent may deem appropriate, of all other documents
materially affecting the Collateral Asset, including without
limitation copies of any leases on any leases with Major Tenants
thereof;
(xviii) The Administrative Agent shall have received the results
of a recent search by a Person satisfactory to the Administrative
Agent, of the Uniform Commercial Code, judgment and tax lien filings
which may have been filed with respect to personal property of the
Owner used in connection with the Collateral Asset and the results of
such search shall be satisfactory to the Administrative Agent;
(xix) The Administrative Agent shall have received evidence in
form and substance satisfactory to it that all of the requirements for
insurance as set forth in Schedule 7 attached hereto shall have been
satisfied;
(xx) The Administrative Agent shall have received a current rent
roll and current operating statements for the Collateral Asset;
(xxi) The Administrative Agent shall have received the most
recent engineer's report on the condition of the improvements upon the
Collateral Asset in Borrower's possession;
(xxii) The Administrative Agent shall have received the most
recent Phase I report and certification (or updated report and
recertification) for the Collateral Asset in Borrower's possession;
and
-22-
(xxiii) Such other documents as the Administrative Agent or its
counsel may have reasonably requested, the form and substance of which
documents shall be reasonably acceptable to the parties and their
respective counsel.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
GPLP and Owner each represents and warrants to the Lenders that:
5.1 Existence. GPLP and Owner are each a limited partnership duly organized
and validly existing under the laws of the State of Delaware, with its principal
place of business in Columbus, Ohio and each is duly qualified as a foreign
limited partnership, properly licensed (if required), in good standing and has
all requisite authority to conduct its business in each jurisdiction in which
its business is conducted, except where the failure to be so qualified, licensed
and in good standing and to have the requisite authority would not have a
Material Adverse Effect.
5.2 Authorization and Validity. Each of GPLP and Owner has the limited
partnership power and authority and legal right to execute and deliver the Loan
Documents and to perform its obligations thereunder. The execution and delivery
by GPLP and Owner of the Loan Documents and the performance of their respective
obligations thereunder have been duly authorized by proper limited partnership
proceedings, and the Loan Documents constitute legal, valid and binding
obligations of each of them enforceable against them in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and delivery by
GPLP and Owner of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on GPLP or Owner, or GPLP's or Owner's articles of incorporation,
operating agreements, partnership agreement, or by-laws, or the provisions of
any indenture, instrument or agreement to which GPLP or Owner is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, except where such violation, conflict or
default would not have a Material Adverse Effect, or result in the creation or
imposition of any Lien in, of or on the Property of GPLP or Owner, pursuant to
the terms of any such indenture, instrument or agreement. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents other
than the filing of a copy of this Agreement.
5.4 Financial Statements; Material Adverse Effect. All consolidated
financial statements of the Loan Parties heretofore or hereafter delivered to
the Lenders were prepared in accordance with GAAP in effect on the preparation
date of such statements and fairly present in all material respects the
consolidated financial condition and operations of the Loan Parties at such date
and the consolidated results of their operations for the period then ended,
subject, in the case of interim financial statements, to normal and customary
year-end adjustments. From the preparation date of the most recent financial
statements delivered to the Lenders through the Agreement Execution Date, there
was no change in the business, properties, or condition (financial or otherwise)
of GPLP or Owner which could reasonably be expected to have a Material Adverse
Effect.
-23-
5.5 Taxes. The Loan Parties have filed all United States federal tax
returns and all other tax returns which are required to be filed and have paid
all taxes due pursuant to said returns or pursuant to any assessment received by
GPLP or Owner except such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided. No tax liens have been
filed and no claims are being asserted with respect to such taxes. The charges,
accruals and reserves on the books of GPLP and Owner in respect of any taxes or
other governmental charges are adequate.
5.6 Litigation and Guarantee Obligations. Except as set forth on Schedule 2
hereto or as set forth in written notice to the Administrative Agent from time
to time, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Loan Parties which could reasonably be
expected to have a Material Adverse Effect. Neither GPLP nor Owner has any
material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 6.1 or as set forth in written notices to the
Administrative Agent given from time to time after the Agreement Execution Date
on or about the date such material contingent obligations are incurred.
5.7 Intentionally Omitted
5.8 ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
the aggregate exceed $1,000,000. Neither GPLP nor Owner nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $250,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the GPLP nor Owner nor any other members of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan.
5.9 Accuracy of Information. No information, exhibit or report furnished by
the Loan Parties to the Administrative Agent or to any Lender in connection with
the negotiation of, or compliance with, the Loan Documents contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading.
5.10 Regulation U. Neither GPLP nor Owner has used the proceeds of any
Advance to buy or carry any margin stock (as defined in Regulation U) in
violation of the terms of this Agreement.
5.11 Material Agreements. Neither GPLP nor Owner is a party to any
agreement or instrument or subject to any charter or other corporate restriction
which could reasonably be expected to have a Material Adverse Effect. Neither
GPLP nor Owner is in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in (i) any agreement
to which it is a party, which default could have a Material Adverse Effect, or
(ii) any agreement or instrument evidencing or governing Indebtedness, which
default would constitute a Default hereunder.
5.12 Compliance With Laws. Each of GPLP and Owner has complied with all
applicable statutes, rules, regulations, orders and restrictions of any domestic
or foreign government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property, except for any non-compliance which would not have a
Material Adverse Effect. The Loan Parties have not received any notice to the
effect that its operations are not in material compliance with any of the
requirements of applicable federal, state and local environmental, health and
safety statutes and regulations or the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could have a Material Adverse Effect.
-24-
5.13 Ownership of Projects. Except as set forth on Schedule 1 hereto, on
the date of this Agreement, GPLP will have good and marketable title, free of
all Liens other than those permitted by Section 6.16, to all of the Projects
reflected in the financial statements as owned by it.
5.14 Investment Company Act. Neither GPLP nor Owner is an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
5.15 Public Utility Holding Company Act. Neither GPLP nor Owner, is a
"holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
5.16 Intentionally Omitted.
5.17 Insurance. Owner carries insurance on the Collateral Asset with
financially sound and reputable insurance companies, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar Projects including, without
limitation:
(i) Property and casualty insurance (including coverage for flood
and other water damage for any portion of the Collatral Asset located
within a 100-year flood plain) in the amount of the replacement cost
of the improvements at the Collateral Asset (to the extent replacement
cost insurance is maintained by companies engaged in similar business
and owning similar properties);
(ii) Loss of rental income insurance in the amount not less than
one year's gross revenues from the Collateral Asset; and
(iii) Comprehensive general liability insurance in the amount of
$20,000,000 per occurrence.
The Administrative Agent has reviewed the insurance certificates provided
pursuant to Section 4.1(xxi) and confirms that they are acceptable in their
current form.
5.18 REIT Status. Glimcher Realty Trust is qualified as a real estate
investment trust under Section 856 of the Code and currently is in compliance in
all material respects with all provisions of the Code applicable to the
qualification of Glimcher Realty Trust as a real estate investment trust.
5.19 Title to Property. The execution, delivery or performance of the Loan
Documents required to be delivered by GPLP and Owner hereunder will not result
in the creation of any Lien on the Projects of GPLP or Owner other than those
interests intended to secure the Obligations. No consent to the transactions
contemplated hereunder is required from any ground lessor or mortgagee or
beneficiary under a deed of trust or any other party except as has been
delivered to the Lenders.
5.20 Environmental Matters. Each of the following representations and
warranties is true and correct on and as of the Agreement Execution Date except
as disclosed on Schedule 3 attached hereto and to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of GPLP and Owner, the Collateral Asset does
not contain any Materials of Environmental Concern in amounts or
concentrations which constitute
-25-
a violation of, or could reasonably give rise to liability GPLP or Owner
under, Environmental Laws.
(b) To the best knowledge of GPLP and Owner, the Collateral Asset has
been in compliance in all material respects with all applicable
Environmental Laws.
(c) Neither GPLP nor Owner has received any notice of violation,
alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to the Collateral Asset, nor does the Borrower have knowledge or
reason to believe that any such notice will be received or is being
threatened.
(d) To the best knowledge of GPLP and Owner, Materials of
Environmental Concern have not been transported or disposed of from the
Collateral Asset in violation of, or in a manner or to a location which
could reasonably give rise to liability of GPLP or Owner under,
Environmental Laws, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under the Collateral
Asset in violation of, or in a manner that could give rise to liability of
GPLP or Owner any applicable Environmental Laws.
(e) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of GPLP, threatened, under any
Environmental Law to which GPLP or Owner is or, to GPLP's or Owner's
knowledge, will be named as a party with respect to the Collatral Asset,
nor are there any consent decrees or other decrees, consent orders,
administrative order or other orders, or other administrative of judicial
requirements outstanding under any Environmental Law with respect to the
Collateral Asset.
(f) To the best knowledge of GPLP and Owner, there has been no release
or threat of release of Materials of Environmental Concern at or from the,
or arising from or related to the operations of GPLP and Owner in
connection with the Collateral Asset in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws.
5.21 Collateral Asset.
(a) Each of the representations and warranties made by each Loan Party
in its Security Documents with respect to the Collateral Asset is true and
correct in all material respects.
(b) Except as disclosed on the survey provided to the Administrative
Agent pursuant to Section 4.1(xiv) of this Agreement, the Collateral Asset
is not located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and
in which flood insurance has been made available under the National Flood
Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as
amended, or any successor law, or, if located within any such area, Owner
has obtained and will maintain through the Facility Termination Date the
insurance prescribed in Section 4.1(xviii) hereof.
(c) To the Borrower's knowledge, the Collateral Asset and the present
use and occupancy thereof are in material compliance with all applicable
zoning ordinances (without reliance upon adjoining or other properties),
building codes, land use and Environmental Laws, and other similar laws
("Applicable Laws").
-26-
(d) The Collateral Asset is served by all utilities required for the
current or contemplated use thereof. The Collateral Asset has accepted or
is equipped to accept such utility service.
(e) All public roads and streets necessary for service of and access
to the Collateral Asset for the current or contemplated use thereof have
been completed, and are open for use by the public.
(f) The Collateral Asset is served by public water and sewer systems
or, if the Collateral Asset is not serviced by a public water and sewer
system, the alternate systems are adequate and meet, in all material
respects, all requirements and regulations of, and otherwise comply in all
material respects with, all Applicable Laws with respect to such alternate
systems.
(g) Except as may be disclosed in the reports delivered to
Administrative Agent pursuant to Section 4.1 hereof, Borrower is not aware
of any latent or patent structural or other significant deficiency of the
Collateral Asset. The Collateral Asset is free of damage and waste that
would materially and adversely affect the value of the Collateral Asset, is
in good repair and there is no deferred maintenance other than ordinary
wear and tear. The Collateral Asset is free from damage caused by fire or
other casualty. There is no pending or, to the actual knowledge of
Borrower, threatened condemnation proceedings affecting the Collateral
Asset, or any material part thereof.
(h) To Borrower's knowledge, except as may be disclosed in the reports
delivered to Administrative Agent pursuant to Section 4.1 hereof, all
liquid and solid waste disposal, septic and sewer systems located on the
Collateral Asset are in a good and safe condition and repair and to
Borrower's knowledge, in material compliance with all Applicable Laws with
respect to such systems.
(i) All improvements on the Collateral Asset lie within the boundaries
and building restrictions of the legal description of record of Collateral
Asset, no improvements encroach upon easements benefiting the Collateral
Asset other than encroachments that do not materially adversely affect the
use or occupancy of the Collateral Asset and no improvements on adjoining
properties encroach upon the Collateral Asset or easements benefiting the
Collateral Asset other than encroachments that do not materially adversely
affect the use or occupancy of the Collateral Asset. The Collateral Asset
is served by roads which are located either on permanent easements that
benefit all or part of the Collateral Asset or on public property and the
Collateral Asset has access to, by virtue of such easements or otherwise,
and is contiguous to a physically open, dedicated all weather public
street, and has the necessary permits for ingress and egress.
(j) There are no delinquent taxes, ground rents, water charges, sewer
rents, assessments, insurance premiums, leasehold payments, or other
outstanding charges affecting the Collateral Asset except to the extent
such items are being contested in good faith and as to which adequate
reserves have been provided.
Borrower agrees that all of its representations and warranties set forth in
Article V of this Agreement and elsewhere in this Agreement are true on the
Agreement Effective Date in all material respects, and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders) upon each request for the
continuation or conversion of an Advance. Each request for such a continuation
or conversion hereunder shall constitute a reaffirmation of such representations
and warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such continuation and conversion.
-27-
5.22 Office of Foreign Asset Control. GPLP and Owner are not (and will not
be) a person with whom any Lender is restricted from doing business under
regulations of the Office of Foreign Asset Control ("OFAC") of the Department of
the Treasury of the United States of America (including, those Persons named on
OFAC's Specially Designated and Blocked Persons list) or under any statute,
executive order (including, the September 24, 2001 Executive Order Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action and is not and shall
not knowingly engage in any dealings or transactions or otherwise be associated
with such persons. In addition, Borrower hereby agrees to provide to any Lender
with any additional information that any Lender deems necessary from time to
time in order to ensure compliance with all applicable Laws concerning money
laundering and similar activities.
ARTICLE VI
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. GPLP will maintain, for the Consolidated Group, a
system of accounting established and administered in accordance with GAAP, and
furnish to the Administrative Agent and the Lenders:
(i) As soon as available, but in any event not later than 45 days
after the close of each fiscal quarter, other than the fourth quarter, for
the Consolidated Group, an unaudited consolidated and consolidating balance
sheet as of the close of each such period and the related unaudited
consolidated and consolidating statements of income and retained earnings
and of cash flows of the Consolidated Group for such period and the portion
of the fiscal year through the end of such period, setting forth in each
case in comparative form the figures for the previous year, all certified
by GPLP's chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45 days
after the close of each fiscal quarter, other than the fourth quarter, for
the Consolidated Group, the following reports in form and substance
reasonably satisfactory to the Administrative Agent, all certified by
GPLP's chief financial officer or chief accounting officer: a statement of
Funds From Operations, an operating statement for Owner and the Collateral
Asset, a listing of capital expenditures, a rent roll for the Collateral
Asset, and such other information on the Collateral Asset as may be
reasonably requested by the Administrative Agent;
(iii) As soon as available, but in any event not later than 90 days
after the close of each fiscal year, for the Consolidated Group, audited
financial statements, including a consolidated and consolidating balance
sheet as at the end of such year and the related consolidated and
consolidating statements of income and retained earnings and of cash flows
for such year, setting forth in each case in comparative form the figures
for the previous year, without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, prepared
by independent certified public accountants of nationally recognized
standing reasonably acceptable to the Administrative Agent;
-28-
(iv) Together with the quarterly and annual financial statements
required hereunder, a compliance certificate in substantially the form of
Exhibit B hereto signed by GPLP's chief financial officer, chief accounting
officer or chief operating officer showing the calculations and
computations necessary to determine compliance with this Agreement and
stating that, to such officer's knowledge, no Default or Unmatured Default
exists, or if, to such officer's knowledge, any Default or Unmatured
Default exists, stating the nature and status thereof;
(v) As soon as possible and in any event within 10 days after a
responsible officer of GPLP knows that any Reportable Event has occurred
with respect to any Plan, a statement, signed by the chief financial
officer of GPLP, describing said Reportable Event and the action which GPLP
proposes to take with respect thereto;
(vi) As soon as possible and in any event within 10 days after receipt
by a responsible officer of GPLP, a copy of (a) any notice or claim to the
effect that GPLP or any of its Subsidiaries is or may be liable to any
Person as a result of the release by GPLP, any of its Subsidiaries, or any
other Person of any Material of Environmental Concern into the environment,
and (b) any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by GPLP or any of its
Subsidiaries, which, in the case of either (a) or (b) could have a Material
Adverse Effect;
(vii) Promptly upon the furnishing thereof to the shareholders of
either of the Parent Entities, copies of all financial statements, reports
and proxy statements so furnished; and
(viii) Such other information (including, without limitation,
financial statements for GPLP and non-financial information) as the
Administrative Agent or any Lender may from time to time reasonably
request.
6.2 Use of Proceeds. The Borrower will use the proceeds of the Advances
solely to repay and retire in full the existing Indebtedness of Owner secured by
the Collateral Asset. The Borrower will not, use any of the proceeds of the
Advances (i) to purchase or carry any "margin stock" (as defined in Regulation
U) if such usage could constitute a violation of Regulation U by any Lender or
(ii) to fund any purchase of, or offer for, a controlling portion of the Capital
Stock of any Person, unless the board of directors or other manager of such
Person has consented to such offer.
6.3 Notice of Default. GPLP will give prompt notice in writing to the
Administrative Agent and the Lenders of the occurrence of any Default or
Unmatured Default and of any other development, financial or otherwise, which
could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business. GPLP will do all things necessary to remain duly
incorporated or duly qualified, validly existing and in good standing as a
limited partnership in its jurisdiction of formation (except with respect to
mergers permitted pursuant to the GPLP Revolver) and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted and to carry on and conduct its businesses in substantially the same
manner as they are presently conducted where the failure to do so could
reasonably be expected to have a Material Adverse Effect and, specifically, GPLP
may not undertake any business other than the acquisition, development,
ownership, management, operation and leasing of retail, office or industrial
properties, and ancillary businesses specifically related to such types of
properties.
-29-
6.5 Taxes. GPLP will pay when due all taxes, assessments and governmental
charges and levies upon it of its income, profits or Projects, except those
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been set aside.
6.6 Insurance. GPLP and Owner will maintain insurance which is consistent
with the representation contained in Section 5.17 on all their Projects and GPLP
will furnish to any Lender upon reasonable request full information as to the
insurance carried.
6.7 Compliance with Laws. GPLP and Owner will comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
they may be subject, the violation of which could reasonably be expected to have
a Material Adverse Effect.
6.8 Maintenance of Properties. GPLP and Owner will do all things necessary
to maintain, preserve, protect and keep the Collateral Asset in good repair,
working order and condition, ordinary wear and tear excepted.
6.9 Inspection. GPLP and Owner will permit the Lenders upon reasonable
notice and during normal business hours and subject to rights of tenants, by
their respective representatives and agents, to inspect the Collateral Asset,
corporate books and financial records of GPLP and Owner to examine and make
copies of the books of accounts and other financial records of GPLP and Owner,
and to discuss the affairs, finances and accounts of GPLP and Owner with
officers thereof, and to be advised as to the same by, their respective officers
at such reasonable times and intervals as the Lenders may designate.
6.10 Maintenance of Status. GPLP shall cause Glimcher Realty Trust to at
all times maintain its status as a real estate investment trust in compliance
with all applicable provisions of the Code relating to such status.
6.11 Dividends. The Parent Entities and GPLP shall be permitted to declare
and pay dividends on their Capital Stock from time to time, provided, however,
that in no event shall any Parent Entity or GPLP declare or pay dividends on its
Capital Stock or make distributions with respect thereto to (other than the
declaration and payment of Preferred Dividends), if such dividends and
distributions paid on account of the then-current fiscal quarter and the three
immediately preceding fiscal quarters, in the aggregate for such period, would
exceed 95% of Adjusted Funds From Operations of the Consolidated Group for such
period. Notwithstanding the foregoing, the Parent Entities and GPLP shall be
permitted at all times to distribute whatever amount of dividends is necessary
to maintain the tax status of Glimcher Realty Trust as a real estate investment
trust.
6.12 No Change in Control. GPLP will not, nor will it permit the Parent
Entities to, undergo a Change in Control.
6.13 Affiliates. GPLP will not enter into any transaction (including,
without limitation, the purchase or sale of any Property or service) with, or
make any payment or transfer to, any Affiliate which is not a member of the
Consolidated Group except in the ordinary course of business and pursuant to the
reasonable requirements of GPLP's business and upon fair and reasonable terms no
less favorable to GPLP than GPLP would obtain in a comparable arms-length
transaction.
6.14 Consolidated Net Worth. The Consolidated Group shall maintain a
Consolidated Net Worth of not less than $725,000,000 plus eighty-five percent
(85%) of the equity contributions or sales of treasury stock received by GPLP or
any Parent Entity after October 17, 2003.
6.15 Indebtedness and Cash Flow Covenants. GPLP shall not permit:
-30-
(i) Adjusted Annual EBITDA to be less than 1.50 times Fixed Charges at
any time; or
(ii) Consolidated Outstanding Indebtedness to be more than sixty-five
percent (65%) of Total Asset Value at any time.
6.17 Approval of Leases. Owner shall not enter into any lease for more than
10,000 square feet of gross leaseable area at the Collateral Asset without the
prior written consent of the Administrative Agent, which consent shall be given
within ten (10) business days after Administrative Agent's receipt of a request
for consent, or if not given in such time period, shall be deemed approved. The
Administrative Agent shall the right, upon request, at any time, to receive
tenant estoppel certificates and subordination, non-disturbance and attornment
agreements in form and substance acceptable to the Administrative Agent from any
Major Tenant at the Collateral Asset.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Nonpayment of any principal payment due hereunder or under any Note
when due.
7.2 Nonpayment of interest upon any Note or of any fee or other payment
Obligations under any of the Loan Documents within five (5) Business Days after
the same becomes due.
7.3 The breach of any of the terms or provisions of Sections 6.2, 6.10,
6.11, 6.12, 6.13, 6.14 and 6.15.
7.4 Any representation or warranty made or deemed made by or on behalf of
the Borrower to the Lenders or the Administrative Agent under or in connection
with this Agreement, or any material certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.
7.5 The breach by the Borrower (other than a breach which constitutes a
Default under Section 7.1, 7.2, 7.3 or 7.4) of any of the terms or provisions of
this Agreement which is not remedied within thirty (30) days after written
notice from the Administrative Agent or any Lender.
7.6 Failure of GPLP or Owner to pay when due any Indebtedness which is
outstanding under the GPLP Revolver.
7.7 GPLP or Owner shall (i) have an order for relief entered with respect
to it under the Federal bankruptcy laws as now or hereafter in effect, (ii) make
an assignment for the benefit of creditors, (iii) apply for, seek, consent to,
or acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 7.7, (vi) fail to contest
-31-
in good faith any appointment or proceeding described in Section 7.8 or (vii)
admit in writing its inability to pay its debts generally as they become due.
7.8 A receiver, trustee, examiner, liquidator or similar official shall be
appointed for GPLP or Owner or for any Substantial Portion of the Property of
GPLP or Owner or a proceeding described in Section 7.7(iv) shall be instituted
against GPLP or Owner and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of ninety (90)
consecutive days.
7.9 GPLP or Owner shall fail within sixty (60) days to pay, bond or
otherwise discharge any judgments or orders for the payment of money in an
amount which, when added to all other judgments or orders outstanding against
GPLP or Owner would exceed $25,000,000 in the aggregate, which have not been
stayed on appeal or otherwise appropriately contested in good faith.
7.10 GPLP, Owner or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
GPLP, Owner or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $1,000,000 or requires
payments exceeding $500,000 per annum.
7.11 GPLP, Owner or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of GPLP and the other members of the Controlled Group
(taken as a whole) to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $500,000.
7.12 Failure to remediate within the time period permitted by law or
governmental order, after all administrative hearings and appeals have been
concluded (or within a reasonable time in light of the nature of the problem if
no specific time period is so established), material environmental problems at
Properties owned by GPLP or Owner whose aggregate book values are in excess of
$5,000,000.
7.13 The occurrence of any "Default" as defined in any Loan Document or in
the GPLP Revolver or the breach of any of the terms or provisions of any Loan
Document or the GPLP Revolver, which default or breach continues beyond any
period of grace therein provided.
7.14 The attempted revocation, challenge, disavowment, or termination by
GPLP or Owner of any of the Loan Documents.
7.15 Any Change of Control shall occur.
7.16 Either GPLP, Owner or any Parent Entity, without obtaining consent of
the Required Lenders, shall enter into any merger, consolidation, reorganization
or liquidation or transfer or otherwise dispose of all or substantially all of
their Properties, unless (a) in the case of a merger or consolidation GPLP or
such Parent Entity is the surviving entity in such merger or consolidation and
(b) after giving effect to the merger, GPLP and Owner each remains in compliance
with the terms of this Agreement, provided that any such action shall not
constitute a Default unless GPLP shall fail to reverse such action within sixty
(60) days after written notice from the Administrative Agent that such action
constitutes a Default hereunder.
-32-
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1 Acceleration. If any Default described in Section 7.7 or 7.8 occurs
with respect to GPLP or Owner, the obligations of the Lenders to make Loans and
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the
Administrative Agent or any Lender. If any other Default occurs, so long as a
Default exists Lenders shall have no obligation to make any Loans and the
Required Lenders, at any time prior to the date that such Default has been fully
cured, may permanently terminate the obligations of the Lenders to make Loans
hereunder and declare the Obligations to be due and payable, or both, whereupon
if the Required Lenders elected to accelerate (i) the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives and (ii) if any
automatic or optional acceleration has occurred, the Administrative Agent, as
directed by the Required Lenders (or if no such direction is given within 30
days after a request for direction, as the Administrative Agent deems in the
best interests of the Lenders, in its sole discretion), shall use its good faith
efforts to collect, including without limitation, by filing and diligently
pursuing judicial action, all amounts owed by the Borrower and any Guarantor
under the Loan Documents.
If, within 10 days after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans hereunder as a
result of any Default (other than any Default as described in Section 7.7 or 7.8
with respect to GPLP or Owner) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, all of the Lenders
(in their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or termination.
8.2 Amendments. Subject to the provisions of this Article VIII the Required
Lenders (or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement or
waiver shall, without the consent of all Lenders:
(i) Extend the Facility Termination Date, or forgive all or any
portion of the principal amount of any Loan or accrued interest
thereon, reduce the Applicable Margins (or modify any definition
herein which would have the effect of reducing the Applicable Margins)
or the underlying interest rate options or extend the time of payment
of any such principal, interest or facility fees.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
(iii) Increase the Aggregate Commitment beyond $44,000,000.
(iv) Permit the Borrower to assign its rights under this
Agreement.
(v) Amend Sections 8.1, 8.2 , 8.4 or 11.2.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent.
8.3 Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a
-33-
waiver of any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent and the Lenders until the Obligations have been paid
in full.
8.4 Foreclosure. The Lenders hereby agree to the following in the event of
foreclosure under the Mortgage or any other attempt at realization of the
security thereunder:
(a) To subscribe to and accept its Percentage of the ownership
interests in any entity organized to hold title to the Collateral Asset and
that the nature of such entity shall be determined by the Required Lenders,
subject to each Lender's right to hold its interests in such entity in, and
assign such interests to, any affiliate of such Lender or any other entity
required by laws or regulations governing such Lender. The Administrative
Agent is hereby authorized to act for and on behalf of the Lenders in all
day-to-day matters with respect to the exercise of rights described herein
such as the supervision of attorneys, accountants, appraisers or others
acting for the benefit of all of the Lenders in connection with litigation,
foreclosure or realization of all or any security given as Collateral for
the Obligations or other similar actions.
(b) If the Lenders acquire the Collateral Asset either by foreclosure
or deed in lieu of foreclosure, to negotiate in good faith to reach
agreement in writing relating to the ownership, operation, maintenance,
marketing and sale of Collateral Asset and that such agreement shall be
consistent with the following:
(i) The Collateral Asset will not be held as a long-term
investment but will be marketed in an attempt to sell them in a time
period consistent with the regulations applicable to national banks
for owning real estate. Current appraisals of the Collateral Asset
shall be obtained by the Administrative Agent from time to time during
the ownership period at Lenders' expense (without diminishing or
releasing any obligation of the Borrower to pay for such costs) and an
appraised value shall be established and updated from time to time
based on such appraisals.
(ii) Certain decision making with respect to the day-to-day
operations of the Collateral Asset will be delegated to management and
leasing agents. All agreements with such management and leasing agents
will be subject to the approval of the Required Lenders. The
day-to-day supervision of such agents shall be done by the
Administrative Agent.
(iii) Except as provided in the following sentences, all
decisions as to whether to sell the Collateral Asset shall be subject
to the approval of all the Lenders. Notwithstanding the foregoing, the
Lenders agree that if the Administrative Agent receives a bona fide
"all cash" offer from an entity not affiliated with the Borrower or
any Lender for the purchase of any of the Collateral Asset and such
offer equals or exceeds ninety percent (90%) of the most recent
Appraised Value of such Collateral Asset as established by an
Appraisal prepared in accordance with the standards established in
this Agreement that has been completed within six months of such
offer, then the Administrative Agent shall give written notice of such
offer to the Lenders and
-34-
request their approval for sale at such a price. If the Required
Lenders approve of such a sale (or are deemed to approve of such a
sale) then the Administrative Agent, acting on behalf of the Lenders,
is irrevocably authorized to accept such offer.
(iv) All expenses incurred by the Administrative Agent and
Lenders in connection with the ownership, operation, maintenance,
marketing and sale of the Collateral Asset shall be allocated among
the Lenders pro rata in accordance with their respective Percentages.
(v) All expenditures and other actions taken with respect to the
Collateral Asset shall at all times be subject to the regulations and
requirements pertaining to national banks applicable thereto. Without
limiting the generality of the foregoing, all necessary approvals from
regulatory authorities in connection with any expenditure of funds by
the Lenders shall be a condition to such expenditure.
8.5 Insolvency of Borrower. In the event of the insolvency of GPLP or
Owner, the Lenders shall have no obligation to make further disbursements of the
Facility, and the outstanding principal balance of the Facility, including
accrued and unpaid interest thereon, shall be immediately due and payable.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1 Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive delivery of the Notes and the
making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Intentionally Omitted.
9.4 Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions
of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent and the Lenders and
supersede all prior commitments, agreements and understandings among the
Borrower, the Administrative Agent and the Lenders relating to the subject
matter thereof.
9.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
9.7 Expenses; Indemnification. The Borrower shall reimburse the
Administrative Agent for any costs, and out-of-pocket expenses (including,
without limitation, all reasonable fees for consultants
-35-
and fees and reasonable expenses for attorneys for the Administrative Agent,
which attorneys may be employees of the Administrative Agent) paid or incurred
by the Administrative Agent in connection with the amendment, modification, and
enforcement of the Loan Documents. The Borrower also agrees to reimburse the
Administrative Agent and the Lenders for any reasonable costs, internal charges
and out-of-pocket expenses (including, without limitation, all fees and
reasonable expenses for attorneys for the Administrative Agent and the Lenders,
which attorneys may be employees of the Administrative Agent or the Lenders)
paid or incurred by the Administrative Agent or any Lender in connection with
the collection and enforcement of the Loan Documents (including, without
limitation, any workout). The Borrower further agrees to indemnify the
Administrative Agent, each Lender and their Affiliates, and their directors and
officers against all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all reasonable fees and reasonable
expenses for attorneys of the indemnified parties, all reasonable expenses of
litigation or preparation therefor whether or not the Administrative Agent, or
any Lender is a party thereto) which any of them may pay or incur arising out of
or relating to this Agreement, the other Loan Documents, the Projects, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder, except to the extent
that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The obligations of the
Borrower under this Section shall survive the termination of this Agreement.
9.8 Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.9 Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with GAAP.
9.10 Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.11 Nonliability of Lenders. The relationship between the Borrower, on the
one hand, and the Lenders and the Administrative Agent, on the other, shall be
solely that of borrower and lender. Neither the Administrative Agent nor any
Lender shall have any fiduciary responsibilities to the Borrower. Neither the
Administrative Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
9.12 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF OHIO, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR OHIO STATE COURT
SITTING IN CLEVELAND IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH
-36-
A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF
THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CLEVELAND, OHIO.
9.14 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE X
THE ADMINISTRATIVE AGENT
------------------------
10.1 Appointment. KeyBank National Association, is hereby appointed
Administrative Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Administrative Agent to act as the agent
of such Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this Article X. Notwithstanding the use of the defined
term "Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of the term "secured party" as defined in the Ohio
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
10.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
10.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for (i) any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct; or
(ii) any determination by the Administrative Agent that compliance with any law
or any governmental or quasi-governmental rule, regulation, order, policy,
guideline or directive (whether or not having the force of law) requires the
Advances and Commitments hereunder to be classified as being part of a "highly
leveraged transaction".
10.4 No Responsibility for Loans, Recitals, etc. Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire
-37-
into, or verify (i) any statement, warranty or representation made in connection
with any Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in Article IV, except receipt of items required to be delivered to the
Administrative Agent; (iv) the validity, effectiveness or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; (v) the value, sufficiency, creation, perfection, or priority of any
interest in any collateral security; or (vi) the financial condition of the
Borrower or any Guarantor. Except as otherwise specifically provided herein, the
Administrative Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrower to the Administrative Agent
at such time, but is voluntarily furnished by the Borrower to the Administrative
Agent (either in its capacity as Administrative Agent or in its individual
capacity).
10.5 Action on Instructions of Lenders. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the required percentage of the Lenders needed to take such action or refrain
from taking such action, and such instructions and any action taken or failure
to act pursuant thereto shall be binding on all of the Lenders. The Lenders
hereby acknowledge that the Administrative Agent shall be under no duty to take
any discretionary action permitted to be taken by it pursuant to the provisions
of this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders. The Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its satisfaction
by the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action.
10.6 Employment of Agents and Counsel. The Administrative Agent may execute
any of its duties as Administrative Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder and under any other Loan
Document.
10.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8 Administrative Agent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Administrative Agent ratably in proportion
to their respective Commitments (i) for any amounts not reimbursed by the
Borrower for which the Administrative Agent is entitled to reimbursement by the
Borrower under the Loan Documents, (ii) for any other expenses incurred by the
Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents, if not paid by Borrower and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including without
limitation, for any such amounts incurred by or asserted against the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two
-38-
or more of the Lenders), or the enforcement of any of the terms thereof or of
any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct or a breach of the Administrative Agent's express obligations and
undertakings to the Lenders. The obligations of the Lenders and the
Administrative Agent under this Section 10.8 shall survive payment of the
Obligations and termination of this Agreement.
10.9 Rights as a Lender. In the event the Administrative Agent is a Lender,
the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or "Lenders" shall,
at any time when the Administrative Agent is a Lender, unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person.
10.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.11 Successor Administrative Agent. Except as otherwise provided below,
KeyBank National Association shall at all times serve as the Administrative
Agent during the term of this Facility. The Administrative Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrower, such
resignation to be effective upon the appointment of a successor Administrative
Agent. If the Administrative Agent has been grossly negligent in the performance
of its obligations hereunder, the Administrative Agent may be removed at any
time by written notice received by the Administrative Agent from all other
Lenders, such removal to be effective on the date specified by the other
Lenders. Upon any such resignation or removal, the Required Lenders shall
appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders within thirty days after the resigning Administrative Agent's
giving notice of its intention to resign, then the resigning Administrative
Agent shall appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent. Notwithstanding the previous sentence, the Administrative
Agent may at any time without the consent of the Borrower or any Lender, appoint
any of its Affiliates which is a commercial bank as a successor Administrative
Agent hereunder. No successor Administrative Agent shall be deemed to be
appointed hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness of the
resignation or removal of an Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents.
-39-
10.12 Notice of Defaults. If a Lender becomes aware of a Default or
Unmatured Default, such Lender shall notify the Administrative Agent of such
fact provided that the failure to give such notice shall not create liability on
the part of a Lender. Upon receipt of such notice that a Default or Unmatured
Default has occurred, the Administrative Agent shall notify each of the Lenders
of such fact.
10.13 Requests for Approval. If the Administrative Agent requests in
writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative Agent
within ten (10) Business Days (or sooner if such notice specifies a shorter
period for responses based on Administrative Agent's good faith determination
that circumstances exist warranting its request for an earlier response) after
such written request from the Administrative Agent. If the Lender does not so
respond, that Lender shall be deemed to have approved the request.
10.14 Defaulting Lenders. At such time as a Lender becomes a Defaulting
Lender, such Defaulting Lender's right to vote on matters which are subject to
the consent or approval of the Required Lenders, each affected Lender or all
Lenders shall be immediately suspended until such time as the Lender is no
longer a Defaulting Lender, except that the amount of the Commitment of the
Defaulting Lender may not be changed without its consent. If a Defaulting Lender
has failed to fund its pro rata share of any Advance and until such time as such
Defaulting Lender subsequently funds its pro rata share of such Advance, all
Obligations owing to such Defaulting Lender hereunder shall be subordinated in
right of payment, as provided in the following sentence, to the prior payment in
full of all principal of, interest on and fees relating to the Loans funded by
the other Lenders in connection with any such Advance in which the Defaulting
Lender has not funded its pro rata share (such principal, interest and fees
being referred to as "Senior Loans" for the purposes of this section). All
amounts paid by the Borrower, the Parent Entities or the Guarantors and
otherwise due to be applied to the Obligations owing to such Defaulting Lender
pursuant to the terms hereof shall be distributed by the Administrative Agent to
the other Lenders in accordance with their respective pro rata shares
(recalculated for the purposes hereof to exclude the Defaulting Lender) until
all Senior Loans have been paid in full provided, however, in no event will any
such distribution to the other Lenders give rise to any liability of the
Borrower to the Defaulting Lender. After the Senior Loans have been paid in full
equitable adjustments will be made in connection with future payments by the
Borrower to the extent a portion of the Senior Loans had been repaid with
amounts that otherwise would have been distributed to a Defaulting Lender but
for the operation of this Section 10.14. This provision governs only the
relationship among the Administrative Agent, each Defaulting Lender and the
other Lenders; nothing hereunder shall limit the obligation of the Borrower to
repay all Loans in accordance with the terms of this Agreement. The provisions
of this section shall apply and be effective regardless of whether a Default
occurs and is continuing, and notwithstanding (i) any other provision of this
Agreement to the contrary, (ii) any instruction of the Borrower as to its
desired application of payments or (iii) the suspension of such Defaulting
Lender's right to vote on matters which are subject to the consent or approval
of the Required Lenders or all Lenders.
ARTICLE XI
11.1 Intentionally Omitted.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1 Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower and the Lenders
and their respective successors
-40-
and assigns, except that (i) the Borrower shall not have the right to assign its
rights or obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 12.3. The parties to this
Agreement acknowledge that clause (ii) of this Section 12.1 relates only to
absolute assignments and does not prohibit assignments creating security
interests, including, without limitation, (x) any pledge or assignment by any
Lender of all or any portion of its rights under this Agreement and any Note to
a Federal Reserve Bank or (y) in the case of a Lender which is a fund, any
pledge or assignment of all or any portion of its rights under this Agreement
and any Note to its trustee in support of its obligations to its trustee;
provided, however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions of
Section 12.3. The Administrative Agent and Borrower may treat the Person which
made any Loan or which holds any Note as the owner thereof for all purposes
hereof unless and until such Person complies with Section 12.3; provided,
however, that the Administrative Agent and Borrower may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
sell to one or more banks, financial institutions, pension funds, or any
other funds or entities ("Participants") participating interests in any
Loan owing to such Lender, any Note held by such Lender, any Commitment of
such Lender or any other interest of such Lender under the Loan Documents.
In the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall
remain the holder of any such Note for all purposes under the Loan
Documents, all amounts payable by the Borrower under this Agreement shall
be determined as if such Lender had not sold such participating interests,
and the Borrower and the Administrative Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which would require
consent of all the Lenders pursuant to the terms of Section 8.2 or of any
other Loan Document.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time assign
to any of such Lender's affiliates or to one or more banks, financial
institutions or pension funds, or with the prior approval of the Borrower,
which shall not be unreasonably withheld or delayed, any other entity
("Purchasers") all or any portion of its rights and obligations under the
Loan Documents provided that any assignment of only a portion of such
rights and obligations shall be in an amount not less than
-41-
$5,000,000. In addition, KeyBank National Association agrees that it will
not assign any portion of its Commitment or Commitments of its affiliates,
if such assignment will result in the amount of the Commitment to be held
by KeyBank National Association and its affiliates to be less than the next
highest Commitment amount held by any other Lender provided that no Default
has occurred and is continuing. Notwithstanding the foregoing, no approval
of the Borrower shall be required for any such assignment if a Default has
occurred and is then continuing. Such assignment shall be substantially in
the form of Exhibit D hereto or in such other form as may be agreed to by
the parties thereto. The consent of the Administrative Agent shall be
required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof. Such consent shall
not be unreasonably withheld.
12.3.2 Effect; Effective Date. Upon (i) delivery to the Administrative
Agent and Borrower of a notice of assignment, substantially in the form
attached as Exhibit "I" to Exhibit D hereto (a "Notice of Assignment"),
together with any consents required by Section 12.3.1, and (ii) payment of
a $3,500 fee by the assignor or assignee to the Administrative Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. The Notice of
Assignment shall contain a representation by the Purchaser to the effect
that none of the consideration used to make the purchase of the Commitment
and Loans under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in
and under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the Borrower,
the Lenders or the Administrative Agent shall be required to release the
transferor Lender, and the transferor Lender shall automatically be
released on the effective date of such assignment, with respect to the
percentage of the Aggregate Commitment and Loans assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant
to this Section 12.3.2, the transferor Lender, the Administrative Agent and
the Borrower shall make appropriate arrangements so that replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their Commitment, as adjusted pursuant to such
assignment.
12.4 Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, subject to
Section 9.11 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5.
-42-
ARTICLE XIII
NOTICES
-------
13.1 Giving Notice. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in writing
or by telex or by facsimile and addressed or delivered to such party at its
address set forth below its signature hereto or at such other address (or to
counsel for such party) as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
13.2 Change of Address. The Borrower, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Administrative Agent
and the Lenders and each party has notified the Administrative Agent by telex or
telephone, that it has taken such action.
(Remainder of page intentionally left blank.
-43-
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
▇▇▇▇▇▇▇▇▇▇ MALL ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher ▇▇▇▇▇▇▇▇▇▇, Inc., a Delaware
corporation, its sole general partner
By:
--------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole general
partner
By:
--------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-44-
COMMITMENTS: KEYBANK NATIONAL ASSOCIATION, a national
$44,000,000 banking association,
Individually and as Administrative Agent
By:
--------------------------------------
Print Name:
------------------------------
Title:
-----------------------------------
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Capital
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-45-
EXHIBIT A
---------
FORM OF NOTE
------------
July __, 2005
Glimcher Properties Limited Partnership, a limited partnership organized
under the laws of the State of Delaware ("GPLP") and ▇▇▇▇▇▇▇▇▇▇ Mall Associates
Limited Partnership, a limited partnership organized under the laws of the State
of Delaware ("Owner", and collectively with GPLP, the "Borrower"), hereby
jointly and severally promise to pay to the order of KeyBank National
Association (the "Lender") the aggregate unpaid principal amount of all Loans
made by the Lender to the Borrower pursuant to Article II of the Credit
Agreement (as the same may be amended or modified, the "Agreement") hereinafter
referred to, in immediately available funds at the main office of KeyBank
National Association in Cleveland, Ohio, as Administrative Agent, together with
interest on the unpaid principal amount hereof at the rates and on the dates set
forth in the Agreement. The Borrower shall pay remaining unpaid principal of and
accrued and unpaid interest on the Loans in full on the Facility Termination
Date or such earlier date as may be required under the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Term Loan Agreement, dated as of July __, 2005 among the
Borrower, KeyBank National Association individually and as Administrative Agent,
and the other Lenders named therein, to which Agreement, as it may be amended
from time to time, reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is a Default under the Agreement or any other Loan Document and
Administrative Agent exercises the remedies provided under the Agreement and/or
any of the Loan Documents for the Lenders, then in addition to all amounts
recoverable by the Administrative Agent and the Lenders under such documents,
the Administrative Agent and the Lenders shall be entitled to receive reasonable
attorneys fees and expenses incurred by the Administrative Agent and the Lenders
in connection with the exercise of such remedies.
Borrower and all endorsers severally waive presentment, protest and demand,
notice of protest, demand and of dishonor and nonpayment of this Note, and any
and all lack of diligence or delays in collection or enforcement of this Note,
and expressly agree that this Note, or any payment hereunder, may be extended
from time to time, and expressly consent to the release of any party liable for
the obligation secured by this Note, the release of any of the security for this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Ohio.
A-1
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT
UNDER THIS NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM
THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.
▇▇▇▇▇▇▇▇▇▇ MALL ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Glimcher ▇▇▇▇▇▇▇▇▇▇, Inc., a
Delaware corporation, its sole
general partner
By:
-------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole
general partner
By:
-------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
A-2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
AND ▇▇▇▇▇▇▇▇▇▇ MALL ASSOCIATES LIMITED PARTNERSHIP
DATED JULY __, 2005
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- --------- ----------- --------- -------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-3
EXHIBIT B
---------
COMPLIANCE CERTIFICATE
----------------------
KeyBank National Association, as Administrative Agent
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Re: Term Loan Agreement dated as of July __, 2005 (as amended, modified,
supplemented, restated, or renewed, from time to time, the
"Agreement") between GLIMCHER PROPERTIES LIMITED PARTNERSHIP and
▇▇▇▇▇▇▇▇▇▇ MALL ASSOCIATES LIMITED PARTNERSHIP (collectively, the
"Borrower"), and KEYBANK NATIONAL ASSOCIATION, as Administrative Agent
for itself and the other lenders parties thereto from time to time
("Lenders").
Reference is made to the Agreement. Capitalized terms used in this
Certificate (including schedules and other attachments hereto, this
"Certificate") without definition have the meanings specified in the Agreement.
Pursuant to applicable provisions of the Agreement, Borrower hereby
certifies to the Lenders that the information furnished in the attached
schedules, including, without limitation, each of the calculations listed below
are true, correct and complete in all material respects as of the last day of
the fiscal periods subject to the financial statements and associated covenants
being delivered to the Lenders pursuant to the Agreement together with this
Certificate (such statements the "Financial Statements" and the periods covered
thereby the "reporting period") and for such reporting periods.
The Borrower hereby further certifies to the Lenders that:
1. Compliance with Financial Covenants. Schedule A attached hereto sets
forth financial data and computations evidencing the Borrower's compliance with
certain covenants of the Agreement, all of which data and computations are true,
complete and correct.
2. Review of Condition. The Borrower has reviewed the terms of the
Agreement, including, but not limited to, the representations and warranties of
the Borrower set forth in the Agreement and the covenants of the Borrower set
forth in the Agreement, and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and condition of
the Borrower through the reporting periods.
3. Representations and Warranties. To the Borrower's actual knowledge, the
representations and warranties of the Borrower contained in the Loan Documents,
including those contained in the Agreement, are true and accurate in all
material respects as of the date hereof and were true and accurate in all
material respects at all times during the reporting period except as expressly
noted on Schedule B hereto.
4. Covenants. To the Borrower's actual knowledge, during the reporting
period, the Borrower observed and performed all of the respective covenants and
other agreements under the Agreement and the Loan Documents, and satisfied each
of the conditions contained therein to be observed, performed or satisfied by
the Borrower, except as expressly noted on Schedule B hereto.
B-1
5. No Default. To the Borrower's actual knowledge, no Default exists as of
the date hereof or existed at any time during the reporting period, except as
expressly noted on Schedule B hereto.
IN WITNESS WHEREOF, this Certificate is executed by the undersigned this
___ day of _________.
▇▇▇▇▇▇▇▇▇▇ MALL ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Glimcher ▇▇▇▇▇▇▇▇▇▇, Inc., a
Delaware corporation, its sole
general partner
By:
-----------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
a Delaware corporation, its sole
general partner
By:
-----------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
B-2
EXHIBIT C
---------
ASSIGNMENT AGREEMENT
--------------------
This Assignment Agreement (this "Assignment Agreement") between KEYBANK
NATIONAL ASSOCIATION (the "Assignor") and _________________________ (the
"Assignee") is dated as of _____________, 200_. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Term Loan Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The Commitment
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the Agent) after
a Notice of Assignment substantially in the form of Exhibit "I" attached hereto
has been delivered to the Agent. Such Notice of Assignment must include the
consent of the Agent required by Section 12.3.1 of the Credit Agreement. In no
event will the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date under Section 4 hereof are not
made on the proposed Effective Date. The Assignor will notify the Assignee of
the proposed Effective Date no later than the Business Day prior to the proposed
Effective Date. As of the Effective Date, (i) the Assignee shall have the rights
and obligations of a Lender under the Loan Documents with respect to the rights
and obligations assigned to the Assignee hereunder and (ii) the Assignor shall
relinquish its rights and be released from its corresponding obligations under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. In consideration for the sale and assignment of Loans
hereunder, the Assignee shall pay the Assignor, on the Effective Date, an amount
equal to the principal amount of the portion of all Loans assigned to the
Assignee hereunder which is outstanding on the Effective Date. The Assignee will
promptly remit to the Assignor (i) the portion of any principal payments
assigned hereunder and received from the Agent and (ii) any amounts of interest
on Loans and fees received from the Agent to the extent either (i) or (ii)
relate to the portion of the Loans assigned to the Assignee hereunder for
periods prior to the Effective Date and have not been previously paid by the
Assignee to the Assignor. In the event that either party hereto receives any
payment to which the other party hereto
is entitled under this Assignment Agreement, then the party receiving such
amount shall promptly remit it to the other party hereto.
5. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants: (a) that it is the legal and
beneficial owner of the interest being assigned by it hereunder, (b) that such
interest is free and clear of any adverse claim created by the Assignor, (c)
that it has all necessary right and authority to enter into this Assignment, (d)
that the Credit Agreement has not been modified or amended, (e) that the
Assignor is not in default under the Credit Agreement, and (f) that, to the best
of Assignor's knowledge, the Borrower is not in default under the Credit
Agreement. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
6. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements requested by the Assignee and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement, (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, and (vi) confirms that none of the funds, monies,
assets or other consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its rights, benefits
and interests in and under the Loan Documents will not be "plan assets" under
ERISA.
7. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed by Assignee under this Assignment Agreement on and
after the Effective Date. The Assignor agrees to indemnify and hold the Assignee
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignee
in connection with or arising in any manner from the Assignor's non-performance
of the obligations assigned to Assignee under this Assignment Agreement prior to
the Effective Date.
C-2
8. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 12.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4 and 7 hereof.
9. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Commitment occurs between the date of this Assignment Agreement and the
Effective Date, the percentage interest specified in Item 3 of Schedule 1 shall
remain the same, but the dollar amount purchased shall be recalculated based on
the reduced Aggregate Commitment.
10. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of
Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
11. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Ohio.
12. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
[NO FURTHER TEXT ON THIS PAGE]
C-3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
ASSIGNOR:
KEYBANK NATIONAL ASSOCIATION
By: ___________________________________
Name: ___________________________________
Title:
ASSIGNEE:
[______________________________]
By: __________________________________
Name: __________________________________
Title: __________________________________
C-4
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
[to be provided by KeyBank]
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Agreement: Term Loan Agreement dated as of
July __, 2005 among Glimcher Properties Limited Partnership and
▇▇▇▇▇▇▇▇▇▇ Mall Associates Limited Partnership, as "Borrower" and
KeyBank National Association as "Administrative Agent" and the Several
Lenders From Time to Time Parties Hereto, as Lenders.
2. Date of Assignment Agreement:_____________, 200__
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
under Credit Agreement $44,000,000
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** _____________%
4. Amount of Assignee's Commitment Purchased
under this Assignment Agreement: $____________
5. Proposed Effective Date: _____________
Accepted and Agreed:
KEYBANK NATIONAL ASSOCIATION ___________________________________
By:_______________________________ By:________________________________
Title:____________________________ Title:_____________________________
** Percentage taken to 10 decimal places.
EXHIBIT "I"
to Assignment Agreement
NOTICE OF ASSIGNMENT
______________, 200__
To: KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Capital
BORROWER:
Glimcher Properties Limited Partnership
▇▇▇▇▇▇▇▇▇▇ Mall Associates Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Term Loan Agreement (the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to the
Agent pursuant to Section 12.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment Agreement,
dated as of , 2005 (the "Assignment"), pursuant to which, among other things,
the Assignor has sold, assigned, delegated and transferred to the Assignee, and
the Assignee has purchased, accepted and assumed from the Assignor the
percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement. The Effective Date of the
Assignment shall be the later of the date specified in Item 5 of Schedule 1 or
two (2) Business Days (or such shorter period as agreed to by the Agent) after
this Notice of Assignment and any fee required by Section 12.3.2 of the Credit
Agreement have been delivered to the Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Agent notice of the
assignment and delegation referred to herein. The Assignor will confer with the
Agent before the date specified in Item 5 of Schedule 1 to determine if the
Assignment Agreement will become effective on
D2-1
such date pursuant to Section 3 hereof, and will confer with the Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the Assignment Agreement does
not become effective on any proposed Effective Date as a result of the failure
to satisfy the conditions precedent agreed to by the Assignor and the Assignee.
At the request of the Agent, the Assignor will give the Agent written
confirmation of the satisfaction of the conditions precedent.
5. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Agent prepare and cause the Borrower to
execute and deliver new Notes or, as appropriate, replacements notes, to the
Assignor and the Assignee. The Assignor and, if applicable, the Assignee each
agree to deliver to the Agent the original Note received by it from the Borrower
upon its receipt of a new Note in the appropriate amount.
6. The Assignee advises the Agent that notice and payment instructions are
set forth in the attachment to Schedule 1.
7. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
8. The Assignee authorizes the Agent to act as its agent under the Loan
Documents in accordance with the terms thereof. The Assignee acknowledges that
the Agent has no duty to supply information with respect to the Borrower or the
Loan Documents to the Assignee until the Assignee becomes a party to the Credit
Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By:_______________________________ By:________________________________
Title:____________________________ Title:_____________________________
D2-2
ACKNOWLEDGED AND, IF REQUIRED BY THE CREDIT AGREEMENT, CONSENTED TO BY KEYBANK
NATIONAL ASSOCIATION, as Agent
By:_______________________________
Title:____________________________
[Attach photocopy of Schedule 1 to Assignment]
D2-3
EXHIBIT D
---------
INTENTIONALLY OMITTED
---------------------
D2-1
EXHIBIT E
---------
ENVIRONMENTAL INVESTIGATION SPECIFICATIONS AND PROCEDURES
---------------------------------------------------------
Phase I Environmental Site Assessments to be prepared in accordance with
the ASTM Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process (ASTM Designation E1527-94), a summary of
which follows:
This ASTM practice is generally considered the industry standard for
conducting a Phase I Environmental Site Assessment (ESA). The purpose of
this standard is to "define good commercial and customary practice in the
Untied States of America for conducting an ESA of a parcel of commercial
real estate with respect to the range of contaminants within the scope of
the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) and petroleum products." The ASTM Phase I ESA is intended to
permit a user to satisfy one of the requirements to qualify for the
innocent landowner defense to CERCLA liability; that is, the practice that
constitutes "all appropriate inquiry into the previous ownership and uses
of the property consistent with good commercial or customary practices" as
defined in 42 USC 9601(35)(B).
The goal of the ASTM Phase I ESA is to identify "recognized environmental
conditions." Recognized environmental conditions means the presence or
likely presence of any hazardous substances or petroleum products on a
property under conditions that indicate an existing release, a past
release, or a material threat of a release of any hazardous substances or
petroleum products into structures on the property or into the ground,
groundwater, or surface water of the property. The term includes hazardous
substances or petroleum products even under conditions in compliance with
laws. The term is not intended to include de minimus conditions that
generally would not be the subject of an enforcement action if brought to
the attention of appropriate governmental agencies.
The ASTM standard indicates that a Phase I ESA should consist of four main
components: 1) Records Review; 2) Site Reconnaissance; 3) Interviews; and
4) Report. The purpose of the records review is to obtain and review
records that will help identify recognized environmental conditions in
connection with the property. The site reconnaissance involves physical
observation of the property's exterior and interior, as well as an
observation of adjoining properties. Interviews with previous and current
owners and occupants, and local government officials provides insight into
the presence or absence of recognized environmental conditions in
connection with the property. The final component of the ESA, the report,
contains the findings of the ESA and conclusions regarding the presence or
absence of recognized environmental conditions in connection with the
property. It includes documentation to support the analysis, opinions, and
conclusions found in the report.
While the use of this practice is intended to constitute appropriate
inquiry for purposes of CERCLA's innocent landowner defense, it is not
intended that its use be limited to that purpose. The ASTM standard is
intended to be an approach to conducting an inquiry designed to identify
recognized environmental conditions in connection with a property, and
environmental site assessments.
E-1
EXHIBIT F
---------
FORM OF OPINION OF BORROWER'S COUNSEL
-------------------------------------
July __, 2005
KeyBank,
as Administrative Agent for the Lenders
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Re: $44,000,000 Term Loan to Glimcher Properties Limited Partnership and
▇▇▇▇▇▇▇▇▇▇ Mall Associates Limited Partnership (collectively, the
"Borrower")
Ladies and Gentlemen:
We have acted as counsel for the Borrower in connection with a $44,000,000
secured term loan , (the "Loan"), which Loan is being made pursuant to that
certain Term Loan Agreement dated as of July __, 2005 (the "Loan Agreement")
between Borrower, KeyBank and the several lenders from time to time parties
thereto (collectively, the "Lenders"), and KeyBank, as Administrative Agent (the
"Agent").
In connection with the Loan we have been furnished with originals or copies
certified to our satisfaction of the partnership agreements and certificates of
limited partnership, and Articles of Incorporation and Bylaws of the general
partners of the entities comprising the Borrower (as defined in the Loan
Agreement), and all such corporate and other records of the Borrower and the
Parent Entities, with such declarations and agreements, and certificates of
officers and representatives of the Borrower, with such other documents, and we
have made such other examinations and investigations as we have deemed necessary
as a basis for the opinions expressed below.
We have examined the originals of the following documents, each of which is
addressed to the Lender or to which the Lender is a party (all of which are
sometimes collectively referred to as the "Loan Documents"):
1. The Loan Agreement; and
2. [describe promissory notes and other Loan Documents].
Based upon the foregoing, we are of the opinion that:
1. Each of the entities comprising the Borrower is a limited partnership
duly formed, validly existing and in good standing under the laws of
the State of Delaware. Borrower has all requisite power and authority
to own its properties, carry on its business and to deliver and
perform its obligations under the Loan Documents.
2. Each of the general partners of Borrower is a corporation or trust
duly organized, validly existing and in good standing under the laws
of the State of Delaware. Each of the general partners of Borrower has
all requisite power and authority to own its properties, carry on its
business and to deliver and perform its obligations under the Loan
Documents.
3. The execution, delivery, and performance by each of the entities
comprising the Borrower of the Loan Documents to which it is a party
has been duly authorized by all
F-1
necessary action of the Borrower and does not (i) require any consent
or approval of any partner or shareholder of such entity or any other
person or entity excepting such consents or approvals as have actually
been obtained; (ii) violate any provision of any law, rule, or
regulation of the United States or the State of Ohio, or any provision
of the partnership or corporate law presently in effect having
applicability to the Borrower or its general partners, as applicable;
(iii) violate any provision of the partnership agreements of the
Borrower or the articles of incorporation or bylaws of its general
partners; (iv) violate any presently existing statutory or
administrative provision or judicial decision applicable to the
Borrower or its general partners; or (v) result in a breach of, or
constitute a default under, any agreement or instrument affecting the
Borrowers or its general partners.
4. Each Loan Document to which it is a party (a) has been properly
authorized, executed and delivered by each of the entities comprising
the Borrower, (b) constitutes the legal, valid, and binding
obligations of the Borrower, and (c) is enforceable in accordance with
its terms, except that we express no opinion regarding the
enforceability of the Mortgage under Alabama law.
5. To our knowledge, no presently existing authorization, exemption,
consent, approval, license, or registration with any court or
governmental department, commission, bureau, agency, or
instrumentality will be necessary for the valid, binding, and
enforceable execution, delivery and performance by the Borrower of the
Loan Documents.
6. To our knowledge, there are no actions, suits, or proceedings pending
or threatened against the Borrower before any court or governmental
entity or instrumentality which could reasonably be expected to have a
Material Adverse Effect (as defined in the Loan Agreement).
7. The Loan Documents (other than the Mortgage) are governed by the laws
of the State of Ohio, and the Loan, including the interest rate
reserved in the applicable Note and all fees and charges paid or to be
paid by or on behalf of Borrower in connection with such Loan pursuant
to the applicable Loan Documents, is not in violation of the usury
laws of the State of Ohio.
The opinions expressed herein are expressly made subject to and qualified
by the following:
(a) We have assumed that the Loan Documents are duly authorized and validly
executed and delivered by the Agent, the Lenders and all other parties other
than the Borrower.
(b) This opinion is based upon existing laws, ordinances and regulations in
effect as of the date hereof.
(c) This opinion is limited to the laws of the State of Ohio and applicable
federal law and no opinion is expressed as to the laws of any other
jurisdiction.
(d) We have assumed the authenticity of all documents submitted to us as
originals (other than the Loan Documents) and the conformity to original
documents of all documents (other than the Loan Documents) submitted to us as
certified or photostatic copies.
(e) The opinions expressed herein are qualified to the extent that: (i) the
enforceability of any rights or remedies in any agreement or instruments may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally; and (ii) the
F-2
availability of specific performance, injunctive relief or any other equitable
remedy is subject to the discretion of a court of competent jurisdiction.
This opinion may be relied upon by only by the addressees hereof, its
attorneys, auditors, advisors, participants, and their respective successors and
assigns, and not by any other party.
Very truly yours,
F-3
EXHIBIT G
---------
BORROWING NOTICE
----------------
Date
KeyBank National Association
Real Estate Capital
Attention: [__________________]
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Borrowing Notice
Glimcher Properties Limited Partnership and ▇▇▇▇▇▇▇▇▇▇ Mall Associates Limited
Partnership (collectively, "Borrower") hereby requests an Advance pursuant to
Section 2.7 of the Term Loan Agreement, dated as of July __, 2005 (as amended or
modified from time to time, the "Loan Agreement"), among the Borrower, the
Lenders referenced therein, and you, as an administrative agent for the Lenders.
An Advance is requested to be made in the amount of $__________, to be made on
_____________. Such Advance shall be a [LIBOR] [Floating Rate] Advance. [The
applicable LIBOR Interest Period shall be _____________.]
The proceeds of the requested loan shall be directed to the following account:
Wiring Instructions:
(Bank Name)
(ABA No.)
(Beneficiary)
(Account No. to Credit)
(Notification Requirement)
In support of this request, the Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that acceptance of the proceeds of such
Advance by the Borrower shall be deemed to further represent and warrant that
all requirements of Section 4.1 of the Loan Agreement in connection with such
Advance have been satisfied at the time such proceeds are disbursed.
Date:_________________________________
▇▇▇▇▇▇▇▇▇▇ MALL ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Glimcher ▇▇▇▇▇▇▇▇▇▇, Inc., a
Delaware corporation, its sole
general partner
By:
-----------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
G-1
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
a Delaware corporation, its sole
general partner
By:
-----------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
G-1
EXHIBIT H
---------
FORM OF MORTGAGE
----------------
H-1
EXHIBIT I
---------
ENVIRONMENTAL AND HAZARDOUS
SUBSTANCES INDEMNITY AGREEMENT
This Environmental and Hazardous Substances Indemnity Agreement (this
"Indemnity Agreement") is executed and delivered as of the ______ day of July,
2005 by GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership
and ▇▇▇▇▇▇▇▇▇▇ MALL ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership (collectively, "Borrower" or "Indemnitor") to and for the benefit of
KEYBANK NATIONAL ASSOCIATION, a national banking association, as administrative
agent (the "Administrative Agent"), for itself and the other Lenders named in
the Term Loan Agreement referred to below, and their successors and assigns.
R E C I T A L S:
A. On or about the date hereof, Indemnitor, Administrative Agent and the
Lenders identified therein are parties to that certain Term Loan Agreement dated
as of July __, 2005 ("Loan Agreement"), whereby Lender agreed to make a secured
term loan (the "Facility") available to Borrower, in the maximum aggregate
amount specified therein from time to time which amount shall not exceed
Forty-Four Million and 00/100 Dollars ($44,000,000.00). Capitalized terms used
and not otherwise defined herein shall have the meanings given to them in the
Loan Agreement.
B. In connection with the Loan, Borrower has executed and may in the future
execute and deliver to Lenders certain promissory notes in favor of Lenders (the
"Notes") in the principal amount of the Facility, payment of which is secured by
the Loan Documents delivered from time to time pursuant to the terms of the Loan
Agreement.
C. One of the entities comprising Borrower is the owner of a certain parcel
of real estate that will be mortgaged to Administrative Agent in accordance with
the terms of the Loan Agreement (the "Property").
D. As a condition to making the Facility, the Lenders require the
Indemnitor to indemnify the Lenders upon the occurrence of certain events.
E. Lenders have relied on the statements and agreements contained herein in
agreeing to extend the Facility to Borrower.
A G R E E M E N T S:
In consideration of the Recitals set forth above and hereby incorporated
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Indemnitors hereby agree as
follows:
1. Definitions. Initially capitalized terms used and not otherwise defined
herein shall have the meanings respectively ascribed to them in the Loan
Agreement.
2. Representations and Warranties. Each Indemnitor hereby represents and
warrants to Lenders (i) that, except as specifically disclosed in the documents
listed in Exhibit A, as amended from time to time, attached hereto (the
"Documents"), to the best of its knowledge, (a) the Property has been and is
free from contamination by Materials of
Environmental Concern except Materials of Environmental Concern used in the
operation of the Property and held as inventory for sale by Tenants in customary
amounts and in compliance with Environmental Laws, and (b) no release of any
Materials of Environmental Concern has occurred on, onto or about the Property
except Materials of Environmental Concern used in the operation of the Property
and held as inventory for sale by Tenants in customary amounts and in compliance
with Environmental Laws; (ii) that the Property currently complies, and will
comply based on its anticipated use, with all Environmental Laws; (iii) that,
except as disclosed in the Documents, to Indemnitor's knowledge in connection
with the ownership, operation, and use of the Property, all necessary notices
have been filed and all required permits, licenses and other authorizations have
been obtained, including those relating to the generation, treatment, storage,
disposal or use of Materials of Environmental Concern; (iv) that, except as
disclosed in the Documents, to the best of its knowledge, there is no present,
past or threatened investigation, inquiry or proceeding relating to the
environmental condition of, or to events on or about, the Property; and (v) it
has not, nor will it, release or waive the liability of any previous owner,
lessee or operator of the Property or any party who may be potentially
responsible for the presence of or removal of Materials of Environmental Concern
from the Property, nor has it made promises of indemnification regarding
Materials of Environmental Concern on the Property to any party, except as
contained herein and in the Loan Documents.
Each Indemnitor hereby agrees to indemnify and hold the Administrative
Agent free and harmless from and against all loss, cost, damage and expense,
including reasonable attorneys' fees and costs, which the Administrative Agent
may sustain by reason of the inaccuracy or breach of any of the foregoing
representations and warranties as of the date the foregoing representations and
warranties are made and are deemed remade; provided, however, that nothing
hereunder shall constitute or be deemed to constitute any indemnity of
Administrative Agent for loss, costs, damages, etc. caused by such
Administrative Agent's own gross negligence or willful misconduct.
3. Covenants. Indemnitors shall
a. comply, and use best efforts to cause all other persons on or occupying
the Property to comply, with all Environmental Laws;
b. not install, use, generate, manufacture, store, treat, release or
dispose of, nor permit the installation, use, generation, storage, treatment,
release or disposal of, Materials of Environmental Concern on, under or about
the Property except Materials of Environmental Concern used in the operation of
the Property and held as inventory for sale by Tenants in customary amounts and
in compliance with Environmental Laws;
c. immediately advise Administrative Agent in writing of:
(i) any and all Environmental Proceedings;
(ii) the presence of any Materials of Environmental Concern on, under
or about the Property of which Administrative Agent has not previously been
advised in writing except Materials of Environmental Concern used in the
operation of the Property and held as inventory for sale by Tenants in
customary amounts and in compliance with Environmental laws;
I-2
(iii) any remedial action taken by, or on behalf of, any Indemnitor in
response to any Materials of Environmental Concern on, under or about the
Property or to any Environmental Proceedings of which Administrative Agent
has not previously been advised in writing;
(iv) the discovery by any Indemnitor of the presence of any Materials
of Environmental Concern on, under or about any real property or bodies of
water adjoining or in the vicinity of the Property that are likely to have
Material Adverse Effect; and
(v) the discovery by any Indemnitor of any occurrence or condition on
any real property adjoining or in the vicinity of the Property that could
cause the Property or any part thereof to be subject to any restrictions on
the ownership, occupancy, transferability or use of the Property under any
Environmental Laws;
d. provide Administrative Agent with copies of all reports, analyses,
notices, licenses, approvals, orders, correspondences or other written materials
in its possession or control relating to the environmental condition of the
Property or real property or bodies of water adjoining or in the vicinity of the
Property or environmental proceedings immediately upon receipt, completion or
delivery of such materials;
e. not install or allow to be installed any tanks on, at or under the
Property;
f. not create or permit to continue in existence any lien (whether or not
such lien has priority over the lien created by the Mortgage) upon the Property
imposed pursuant to any Laws relating to Materials of Environmental Concern; and
g. not change or alter the present use of the Property unless Indemnitors
shall have notified Administrative Agent thereof in writing and Administrative
Agent shall have determined, in its sole and absolute discretion, that such
change or modification will not result in the presence of Materials of
Environmental Concern on the Property in question in such a level that would
increase the potential liability for Environmental Proceedings.
4. Right of Entry and Disclosure of Environmental Reports. Borrower hereby
grants to Administrative Agent its agents, employees, consultants and
contractors, an irrevocable license and authorization to enter upon and inspect
the Property at reasonable times and upon reasonable advance notice, and,
subject to the rights of tenants, conduct such environmental audits and tests,
including, without limitation, subsurface testing, soils and groundwater
testing, and other tests which may physically invade the Property.
Administrative Agent shall consult with Borrower in advance of such tests.
Administrative Agent agrees, however, that it shall not conduct any such audits,
unless an Event of Default exists under the Loan Documents or Administrative
Agent has reason to believe that such audit may disclose the presence or release
of Materials of Environmental Concern other than materials used in the operation
of the Property or held as inventory for sale by Tenants in customary amounts
and in compliance with Environmental Laws, or unless an environmental audit
deems further testing necessary. Without limiting the generality of the
foregoing, Borrower agrees that Administrative Agent shall have the right to
appoint a receiver to enforce this right to enter and inspect the Property to
the extent such authority is provided under applicable law. All reasonable
out-of-pocket costs and expenses incurred by Administrative Agent in connection
with any inspection, audit or testing conducted in accordance with this Section
4 shall be paid by Borrower. The results of all investigations and reports
prepared by Administrative Agent shall be and at all times remain the property
of Administrative Agent
I-3
and under no circumstances shall Administrative Agent have any obligation
whatsoever to disclose or otherwise make available to Indemnitors or any other
party such results or any other information obtained by it in connection with
such investigations and reports; provided, however, that if requested by
Borrower, Administrative Agent shall provide to Borrower a copy of the written
report with respect to any inspection, audit or testing for which Borrower has
paid hereunder. If Administrative Agent becomes the owner of the Property,
Administrative Agent may, and Indemnitors hereby expressly authorize
Administrative Agent to make available to any party in connection with a sale of
the Property any and all reports, whether prepared by Administrative Agent or
prepared by Borrower and provided to Administrative Agent (collectively, the
"Environmental Reports") which Administrative Agent may have with respect to the
Property. Borrower consents to Administrative Agent notifying any party under
such circumstances of the availability of any or all of the Environmental
Reports and the information contained therein. Each Indemnitor further agrees
that Administrative Agent may disclose such Environmental Reports to any
governmental agency or authority if they reasonably believe, upon advice of
counsel, that they are required to disclose any matter contained therein to such
agency or authority; provided that Administrative Agent shall give Borrower at
least 48 hours prior written notice before so doing. Each Indemnitor
acknowledges that Administrative Agent cannot control or otherwise assure the
truthfulness or accuracy of the Environmental Reports, and that the release of
the Environmental Reports, or any information contained therein, to prospective
bidders at any foreclosure sale of the Property may have a material and adverse
effect upon the amount which a party may bid at such sale. Each Indemnitor
agrees that Administrative Agent shall not have any liability whatsoever as a
result of delivering any or all of the Environmental Reports or any information
contained therein to any third party, and each Indemnitor hereby releases and
forever discharges Administrative Agent from any and all claims, damages, or
causes of action arising out of connected with or incidental to the
Environmental Reports or the delivery thereof.
5. Indemnitor's Remedial Work. Indemnitors shall promptly perform or cause
to be performed any and all necessary remedial work ("Remedial Work") in
response to any Environmental Proceedings or the presence, storage, use,
disposal, transportation, discharge or release of any Materials of Environmental
Concern on, under or about any of the Property; provided, however, that Borrower
shall perform or cause to be performed such Remedial Work so as to minimize any
impairment to Lenders' security under the Loan Documents.
All Remedial Work shall be conducted:
a. in a diligent and timely fashion by licensed contractors acting under
the supervision of a consulting environmental engineer;
b. pursuant to a detailed written plan for the Remedial Work approved by
any public or private agencies or persons with a legal or contractual right to
such approval;
c. with such insurance coverage pertaining to liabilities arising out of
the Remedial Work as is then customarily maintained with respect to such
activities; and
d. only following receipt of any required permits, licenses or approvals.
The selection of the Remedial Work contractors and consulting environmental
engineer, the contracts entered into with such parties, any disclosures to or
agreements with any public or private agencies or parties relating to Remedial
Work and the written plan for the Remedial Work (and any
I-4
changes thereto) shall each be subject to Administrative Agent's prior written
approval, which shall not be unreasonably conditioned, withheld or delayed. In
addition, Indemnitors shall submit to Administrative Agent, promptly upon
receipt or preparation, copies of any and all reports, studies, analyses,
correspondence, governmental comments or approvals, proposed removal or other
Remedial Work contracts and similar information prepared or received by
Indemnitors in connection with any Remedial Work, or Materials of Environmental
Concern relating to the Property. All costs and expenses of such Remedial Work
shall be paid by Indemnitors, including, without limitation, the charges of the
Remedial Work contractors and the consulting environmental engineer, any taxes
or penalties assessed in connection with the Remedial Work and Administrative
Agent's reasonable expenses and out-of-pocket costs incurred in connection with
monitoring or review of such Remedial Work. Lenders shall have the right but not
the obligation to join and participate in, as a party if it so elects, any legal
proceedings or actions initiated in connection with any Environmental
Proceedings.
6. Indemnity. Indemnitors shall protect, indemnify, defend and hold the
Administrative Agent, the Lenders and any successors to Lenders' interest in the
Property, and any other Person who acquires any portion of the Property at a
foreclosure sale or otherwise through the exercise of Lenders' rights and
remedies under the Loan Documents, and all directors, officers, employees and
agents of all of the aforementioned indemnified parties, harmless from and
against any and all actual or potential claims, liabilities, damages (direct or
indirect), losses, fines, penalties, judgments, awards, costs and expenses
(including, without limitation, reasonable attorneys' fees and costs and
expenses of investigation) (collectively, "Expenses") which arise out of or
relate in any way to any breach of any representation, warranty or covenant
contained herein, or any Environmental Proceedings or any use, handling,
production, transportation, disposal, release or storage of any Materials of
Environmental Concern in, under or on the Property, whether by any Indemnitor or
any other person, including, without limitation:
a. all foreseeable and all unforeseeable Expenses arising out of:
(i) Environmental proceedings or the use, generation, storage,
discharge or disposal of Materials of Environmental Concern by Indemnitors,
any prior owner or operator of the Property or any person on or about the
Property, unless caused by the willful misconduct, gross negligence, or bad
faith of the Lenders or Administrative Agent;
(ii) any residual contamination affecting any natural resource or the
environment; or
(iii) any exercise by the Administrative Agent or any Lender of any of
their rights and remedies hereunder unless caused by the willful
misconduct, gross negligence, or bad faith of the Lenders or Administrative
Agent; and
b. the costs of any required or necessary investigation, assessment,
testing, remediation, repair, cleanup, or detoxification of the Property and the
preparation of any closure or other required plans.
Indemnitors' liability to the aforementioned indemnified parties shall
arise upon the earlier to occur of (1) discovery of any Materials of
Environmental Concern on, under or about the Property, or (2) the institution of
any Environmental Proceedings, and not upon the realization of loss or damage,
and Indemnitors shall pay to Lenders from time to time, immediately upon
request, an amount equal to such Expenses, as reasonably determined by the
Administrative Agent upon submission of an invoice
I-5
therefore and reasonable supporting documentation. In addition, in the event any
Materials of Environmental Concern is removed, or caused to be removed from the
Property, by Indemnitors, Lenders or any other person, the number assigned by
the U.S. Environmental Protection Agency to such Environmental Proceedings or
any similar identification shall in no event be in the name the of
Administrative Agent or of the Lenders or identify the Administrative Agent or
the Lenders as a generator, arranger or other such designation. The foregoing
indemnity shall not include Expenses arising solely from Materials of
Environmental Concern which first exist on the Property following the date on
which the Lenders take title to the Property, whether by foreclosure of the
Mortgage, deed-in-lieu thereof or otherwise.
7. Remedies Upon Default. In addition to any other rights or remedies
Lenders may have under this Indemnity Agreement, at law or in equity, in the
event that Indemnitors shall fail to timely comply with any of the provisions
hereof, or in the event that any representation or warranty made herein proves
to be false or misleading in any material respect, then, in such event, after
(i) delivering written notice to Indemnitors, which notice specifically states
that Indemnitors have failed to comply with the provisions of this Indemnity
Agreement; and (ii) the expiration of the earlier to occur of the thirty (30)
day period after receipt of such notice or the cure period, if any, permitted
under any applicable law, rule, regulation or order with which Indemnitors shall
have failed to comply, Lenders may declare an Event of Default under the Loan
Documents and exercise any and all remedies provided for therein, and/or do or
cause to be done whatever is reasonably necessary to cause the Property to
comply with all Environmental Laws and the cost thereof shall constitute an
Expense hereunder and shall become immediately due and payable without notice
and with interest thereon at the Default Rate until paid. Indemnitors shall give
to Administrative Agent and its agents and employees access to the Property for
the purpose of effecting such compliance and hereby specifically grant to
Administrative Agent a license, effective upon expiration of the applicable
period as described above, if any, subject to the rights of tenants to do
whatever is reasonably necessary to cause the Property to so comply, including,
without limitation, to enter the Property and remove therefrom any Materials of
Environmental Concern or otherwise comply with any Environmental Laws.
8. Obligations. The obligations set forth herein, including, without
limitation, Indemnitors' obligation to pay Expenses hereunder, are collectively
referred to as, the "Environmental Obligations". Notwithstanding any term or
provision contained herein or in the Loan Documents, the Environmental
Obligations are unconditional. Indemnitors shall be fully and personally liable
for the Environmental Obligations hereunder, and such liability shall not be
limited to the original principal amount of the Loan. The Environmental
Obligations shall survive the repayment of the Loan and any foreclosure,
deed-in-lieu of foreclosure or similar proceedings by or through which Lenders
or any of their affiliates, nominees, successors or assigns or any other person
bidding at a foreclosure sale may obtain title to the Property or any portion
thereof.
9. Waiver. No waiver of any provision of this Indemnity Agreement nor
consent to any departure by Indemnitors therefrom shall in any event be
effective unless the same shall be in writing and signed by Administrative Agent
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No notice to or demand on
Indemnitors shall in any case entitle Indemnitors to any other or further notice
or demand in similar or other circumstances.
10. Exercise of Remedies. No failure on the part of Lenders to exercise and
no delay in exercising any right or remedy hereunder, at law or in equity, shall
operate as a waiver thereof. Lenders
I-6
shall not be estopped to exercise any such right or remedy at any future time
because of any such failure or delay; nor shall any single or partial exercise
of any such right or remedy preclude any other or further exercise of such right
or remedy or the exercise of any other right or remedy.
11. Assignment. The Administrative Agent and Lender may assign their
respective interests under this Indemnity Agreement to any successor to its
respective interests in the Property or the Loan Documents however, no further
assignment by any such successor of the Administrative Agent or the Lenders
shall be permitted. This Indemnity Agreement may not be assigned or transferred,
in whole or in part, by Indemnitors and any purported assignment by Indemnitors
of this Indemnity Agreement shall be void ab initio and of no force or effect.
12. Counterparts. This Indemnity Agreement may be executed in any number of
counterparts and by different parties in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of such
counterparts taken together shall constitute but one and the same instrument.
13. Governing Law. This Indemnity Agreement shall be governed by, and shall
be construed in accordance with, the laws of the State of Ohio.
14. Modifications. This Indemnity Agreement may be amended or modified only
by an instrument in writing which by its express terms refers to this Indemnity
Agreement and which is duly executed by Indemnitors and consented to in writing
by Administrative Agent.
15. Attorneys' Fees. If Administrative Agent commences litigation for the
interpretation, enforcement, termination, cancellation or rescission of this
Indemnity Agreement, or for damages for the breach of this Indemnity Agreement,
Administrative Agent shall be entitled to its reasonable attorneys' fees
(including, but not limited to, in-house counsel fees) and court and other costs
incurred in connection therewith.
16. Interpretation. This Indemnity Agreement has been negotiated by parties
knowledgeable in the matters contained herein, with the advice of counsel, is to
be construed and interpreted in absolute parity, and shall not be construed or
interpreted against any party by reason of such party's preparation of the
initial or any subsequent draft of the Loan Documents or this Indemnity
Agreement.
17. Severability. If any term or provision of this Indemnity Agreement
shall be determined to be illegal or unenforceable, all other terms and
provisions in this Indemnity Agreement shall nevertheless remain effective and
shall be enforced to the fullest extent permitted by law.
18. Other Laws. Nothing in this Indemnity Agreement, and no exercise by the
Administrative Agent or the Lenders of their rights or remedies under this
Indemnity Agreement, shall impair, constitute a waiver of, or in any way affect
the Administrative Agent or the Lenders' rights and remedies with respect to
Indemnitors under any Laws relating to Materials of Environmental Concern,
including without limitation, contribution provisions or private right of action
provisions under such Laws relating to Materials of Environmental Concern.
19. Notices. Any notice, demand, request or other communication which any
party hereto may be required or may desire to give hereunder shall be in writing
and shall be deemed to have been properly given (a) if hand delivered, when
delivered; (b) if mailed by United States Certified Mail (postage prepaid,
return receipt requested), three Business Days after mailing (c) if by Federal
Express
I-7
or other reliable overnight courier service, on the next Business Day after
delivered to such courier service or (d) if by telecopier on the day of
transmission so long as copy is sent on the same day by overnight courier as set
forth below:
Borrower: Glimcher Properties Limited Partnership and
▇▇▇▇▇▇▇▇▇▇ Mall Associates Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Administrative Agent: KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Capital
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
8000 Sears Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone ▇▇▇-▇▇▇-▇▇▇▇
Facsimile 312-876-7934
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
20. Joint and Several Liability. Indemnitors agree that they shall each be
jointly and severally liable for the performance of the Environmental
Obligations and all other obligations of Indemnitors contained herein.
21. Captions. The headings of each section herein are for convenience only
and do not limit or construe the contents of any provisions of this Indemnity
Agreement.
[NO FURTHER TEXT ON THIS PAGE]
I-8
IN WITNESS WHEREOF, Indemnitors have caused this Indemnity Agreement to be
executed as of the day and year first above written.
INDEMNITORS:
------------
▇▇▇▇▇▇▇▇▇▇ MALL ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Glimcher ▇▇▇▇▇▇▇▇▇▇, Inc., a
Delaware corporation, its sole
general partner
By:
-----------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
a Delaware corporation, its sole
general partner
By:
-----------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
I-9
EXHIBIT A
---------
Documents
Phase I Environmental Site Assessment dated July 7, 1998 prepared by
Professional Services Industries, Inc., for Glimcher Development
Corporation
I-10
SCHEDULE 1
----------
EXCEPTIONS, IF ANY, TO OWNERSHIP FREE OF UNPERMITTED LIENS
----------------------------------------------------------
(Section 5.13)
NONE
Schedule 1 - Pg. 1
SCHEDULE 2
----------
LITIGATION
----------
(See Section 5.6)
NONE
Schedule 2 - Pg. 1
SCHEDULE 3
----------
ENVIRONMENTAL MATTERS
---------------------
(See Section 5.20)
NONE
Schedule 3 - Pg. 1
SCHEDULE 4
----------
INTENTIONALLY OMITTED
---------------------
Schedule 4 - Pg. 1
SCHEDULE 5
----------
SURVEY CERTIFICATION REQUIREMENTS
---------------------------------
Form of Survey Certification
CERTIFICATION FOR SURVEYS (LONG-FORM)
I hereby certify to KeyBank National Association, its successors and assigns,
and _____________ (insert Borrower and Title Insurance Company) that the survey
prepared by me entitled " ________ " was actually made upon the ground and that
it and the information, courses and distances shown thereon are correct; that
the title lines and lines of actual possession are the same; that the size,
location and type of buildings and improvements are as shown and all are within
the boundary lines of the property; that the property is zoned as ___________
and any required setbacks are as shown; that there are no easements,
encroachments or use affecting this property appearing from a careful physical
inspection of the same, other than those shown and depicted thereon; that all
utility services required for the operations of the premises either enter the
premises through adjoining public streets, or the survey shows the point of
entry and location of any utilities which pass through or are located on
adjoining private land; that the survey shows the location of all visible storm
drainage systems for the collection and disposal of all roof and surface
drainage; that any discharge into streams, rivers or other conveyance system is
shown on the survey, if such waterway is on or adjacent to the property; and
that the parcels described heron do not lie within flood hazard areas in
accordance with the document entitled "Department of Housing and Urban
Development, Federal Insurance Administration - Special Flood Hazard Area Maps".
This survey is made in accordance with the "Minimum Standard Detail Requirements
for Land Title Surveys" jointly established and adopted by ALTA and ACSM in 1999
for Class A Urban Survey and includes items 1-4 and 6-16 of Table A. Pursuant to
the Accuracy Standards as adopted by ALTA, NSPS, and ACSM and in effect on the
date of this certification, the undersigned further certifies that: [Surveyor to
complete with appropriate choice from Minimum Standard Detail Requirement]
Schedule 5 - Pg. 1
SCHEDULE 6
----------
TITLE REQUIREMENTS
------------------
1. Title Insurance Company Requirements. The maximum single risk (i.e., the
amount insured under any one policy) by a title insurer may not exceed 25%
of that insurer's surplus and statutory reserves. Reinsurance must be
obtained by closing for any policy exceeding such amount.
2. Loan Policy Forms. Standard 1992 American Land Title Association ("ALTA")
form of loan title insurance policy, or the 1970 (amended October 17, 1970)
ALTA loan form policies must be used.
3. Insurance Amount. The amount insured must equal at least the original
principal amount of the Loan.
4. Named Insured. The named insured under the Title Policy must be
substantially the same as the following: "KeyBank National Association, and
its respective successors and assigns."
5. Creditors' Rights. Any "creditors' rights" exception or other exclusion
from coverage for voidable transactions under bankruptcy, fraudulent
conveyance, or other debtor protection laws or equitable principles must be
removed by either an endorsement or a written waiver.
6. Arbitration. In the event that the form policy which is utilized includes a
compulsory arbitration provision, the insurer must agree that such
compulsory arbitration provisions do not apply to any claims by or on
behalf of the insured. Please note that the 1987 and 1992 ALTA form loan
policies include such provisions.
7. Date of Policy. The effective date of the Title Policy must be as of the
date and time of the closing.
8. Legal Description. The legal description of the property contained in the
Title Policy must conform to (a) the legal description shown on the survey
of the property, and (b) the legal description contained in the Mortgage.
In any event, the Title Policy must be endorsed to provide that the insured
legal description is the same as that shown on the survey.
9. Easements. Each Title Policy shall insure, as separate parcels: (a) all
appurtenant easements and other estates benefiting the property, and (b)
all other rights, title, and interests of the borrower in real property
under reciprocal easement agreements, access agreements, operating
agreements, and agreements containing covenants, conditions, and
restrictions relating to the Project.
10. Exceptions to Coverage. With respect to the exceptions, the following
applies:
a) Each Title Policy shall afford the broadest coverage available in the
state in which the subject property is located.
b) The "standard" exceptions (such as for parties in possession or other
matters not shown on public records) must be deleted.
Schedule 6 - Pg. 1
c) The "standard" exception regarding tenants in possession under
residential leases, should also be deleted. For commercial properties,
a rent roll should be attached in lieu of the general exception.
d) The standard survey exception to the Title Policy must be deleted.
Instead, a survey reading reflecting the current survey should be
incorporated.
e) Any exception for taxes, assessments, or other lienable items must
expressly insure that such taxes, assessments, or other items are not
yet due and payable.
f) Any lien, encumbrance, condition, restriction, or easement of record
must be listed in the Title Policy, and the Title Policy must
affirmatively insure that the improvements do not encroach upon the
insured easements or insure against all loss or damage due to such
encroachment
g) The Title Policy may not contain any exception for any filed or
unfiled mechanics' or materialmen's liens.
h) In the event that a comprehensive endorsement has been issued and any
Schedule B exceptions continue to be excluded from the coverage
provided through that endorsement, then a determination must be made
whether such exceptions would be acceptable to Bank. In the event that
it is determined that such exception is acceptable, a written
explanation regarding the acceptability must be submitted as part of
the delivery of the loan documents.
If Schedule B indicates the presence of any easements that are not located on
the survey, the Title Policy must provide affirmative insurance against any loss
resulting from the exercise by the holder of such easement of its right to use
or maintain that easement. ALTA Form 103.1 or an equivalent endorsement is
required for this purpose.
1. Endorsements. With respect to endorsements, the following applies:
a) Each Title Policy must include an acceptable environmental protection
lien endorsement on ALTA Form 8.1. Please note that Form 8.1 may take
exception for an entire statute which contains one or more specific
sections under which environmental protection liens could take
priority over the Mortgage; provided, however, that such specific
sections under which the lien could arise must also be referenced.
b) Each Title Policy must contain an endorsement which provides that the
insured legal description is the same as shown on the survey.
c) Each Title Policy must contain a comprehensive endorsement (ALTA Form
9) if a lien, encumbrance, condition, restriction, or easement is
listed in Schedule B to the title insurance policy.
d) Lender may require the following endorsements where applicable and
available:
access doing business reverter
address first loss single tax lot
Schedule 6 - Pg. 2
assessment last dollar subdivision
assignment of leases and rents leasehold tie in
assignment of loan documents mineral rights usury
continguity mortgage tax zoning (ALTA 3.1 -
w/parking)
1. Other Coverages. Each Title Policy shall insure the following by
endorsement or affirmative insurance to the extent such coverage is not
afforded by the ALTA Form 9 or its equivalent in a particular jurisdiction:
a) that no conditions, covenants, or restrictions of record affecting the
property:
(i) have been violated,
(ii) create lien rights which prime the insured mortgage,
(iii) contain a right of reverter or forfeiture, a right of reentry, or
power of termination, or
(iv) if violated in the future would result in the lien created by the
insured mortgage or title to the property being lost, forfeited, or
subordinated; and
b) that except for temporary interference resulting solely from maintenance,
repair, replacement, or alteration of lines, facilities, or equipment
located in easements and rights of way taken as certain exceptions to each
Title Policy, such exceptions do not and shall not prevent the use and
operation of the Property or the improvements as used and operated on the
effective date of the Title Policy.
1. Informational Matters. The Policy must include, as an informational note,
the following:
a) The recorded plat number together with recording information; and
b) The property parcel number or the tax identification number, as
applicable.
1. Delivery of Copies. Legible copies of all easements, encumbrances, or other
restrictions shown as exceptions on the Title Policy must be delivered with
the first draft of the title commitment.
Schedule 6 - Pg. 3
SCHEDULE 7
----------
INSURANCE REQUIREMENTS
----------------------
Borrower shall obtain and keep in full force and effect either builder's
risk insurance (the "Builder's Risk Insurance policy") coverage or permanent All
Perils insurance coverage as appropriate, satisfactory to Lender, on the
Project. All insurance policies shall be issued by carriers with a Best's
Insurance Reports policy holder's rating of A and a financial size category of
Class X and shall include a standard mortgage clause (without contribution) in
favor of and acceptable to Lender. The policies shall provide for the following,
and any other coverage that Lender may from time to time deem necessary:
a) Coverage Against All Peril and/or Builders Risk in the amount of 100% of
the replacement cost of all Improvements located or to be located on the Land.
If the policy is written on a CO-INSURANCE basis, the policy shall contain an
AGREED AMOUNT ENDORSEMENT as evidence that the coverage is in an amount
sufficient to insure the full amount of the mortgage indebtedness. "KeyBank
National Association and its successors and assigns" shall be named as the
"Mortgagee" and "Loss Payee".
b) Public liability coverage in a minimum amount of not less than
$2,000,000 per occurrence and $5,000,000 in the aggregate. "KeyBank National
Association and its successors and assigns" shall be named as an "Additional
Insured".
c) Rent loss or business interruption coverage in a minimum amount approved
by Lender of not less than the appraised rentals for a minimum of six months.
d) Flood hazard coverage in a minimum amount available, if the premises are
located in a special flood hazard area ("Flood Hazard Area") as designated by
the Federal Emergency Management Agency on its Flood Hazard Boundary Map and
Flood Insurance Rate Maps, and the Department of Housing and Urban Development,
Federal Insurance Administration, Special Flood Hazard Area Maps.
e) Workers Compensation and Disability insurance as required by law.
f) Such other types and amounts of insurance with respect to the premises
and the operation thereof which are commonly maintained in the case of other
property and buildings similar to the premises in nature, use, location, height,
and type of construction, as may from time to time be required by the mortgagee.
Each policy shall provide that it may not be canceled, reduced or terminated
without at least thirty (30) days prior written notice to Lender.
Schedule 7 - Pg. 1