Exhibit 10.60
AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF December 14, 2006
AMONG
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
AS BORROWER
AND
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
AND
KEYBANC CAPITAL MARKETS
AS LEAD ARRANGER AND BOOK MANAGER
AND
EUROHYPO AG, NEW YORK BRANCH AND WACHOVIA BANK,
NATIONAL ASSOCIATION
AS CO-SYNDICATION AGENTS
AND
CHARTER ONE BANK, N.A. AND BANK OF AMERICA, N.A.
AS CO-DOCUMENTATION AGENTS
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
AS LENDERS
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................1
ARTICLE II THE CREDIT.........................................................17
2.1 Generally..........................................................17
2.2 Ratable and Non Ratable Advances...................................17
2.3 Final Principal Payment............................................17
2.4 Facility Fee.......................................................17
2.5 Other Fees.........................................................18
2.6 Minimum Amount of Each Advance.....................................18
2.7 Optional Prepayments...............................................18
2.8 Method of Selecting Types and Interest Periods for New Advances....18
2.9 Conversion and Continuation of Outstanding Advances................19
2.10 Changes in Interest Rate, Etc......................................19
2.11 Rates Applicable After Default.....................................19
2.12 Method of Payment..................................................20
2.13 Notes; Telephonic Notices..........................................20
2.14 Interest Payment Dates; Interest and Fee Basis.....................20
2.15 Notification of Advances, Interest Rates and Prepayments...........21
2.16 Swingline Advances.................................................21
2.17 Lending Installations..............................................22
2.18 Non-Receipt of Funds by the Administrative Agent...................22
2.19 Replacement of Lenders under Certain Circumstances.................22
2.20 Usury..............................................................23
2.21 Increase in Aggregate Commitment...................................23
2.22 Extension of Facility Termination Date.............................23
ARTICLE IIA LETTER OF CREDIT SUBFACILITY.....................................24
2A.1 Obligation to Issue................................................24
2A.2 Types and Amounts..................................................24
2A.3 Conditions.........................................................24
2A.4 Procedure for Issuance of Facility Letters of Credit...............25
2A.5 Reimbursement Obligations; Duties of Issuing Bank..................26
2A.6 Participation......................................................26
2A.7 Payment of Reimbursement Obligations...............................27
2A.8 Compensation for Facility Letters of Credit........................28
2A.9 Letter of Credit Collateral Account................................29
ARTICLE III CHANGE IN CIRCUMSTANCES...........................................29
3.1 Yield Protection...................................................29
3.2 Changes in Capital Adequacy Regulations............................30
3.3 Availability of Types of Advances..................................30
3.4 Funding Indemnification............................................30
3.5 Taxes..............................................................31
3.6 Lender Statements; Survival of Indemnity...........................32
ARTICLE IV CONDITIONS PRECEDENT...............................................33
4.1 Initial Advance....................................................33
4.2 Each Advance.......................................................34
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................35
5.1 Existence..........................................................35
5.2 Authorization and Validity.........................................35
5.3 No Conflict; Government Consent....................................35
5.4 Financial Statements; Material Adverse Effect......................35
5.6 Litigation and Guarantee Obligations...............................36
5.7 Subsidiaries.......................................................36
5.8 ERISA..............................................................36
5.9 Accuracy of Information............................................36
5.10 Regulation U.......................................................36
5.11 Material Agreements................................................36
5.12 Compliance With Laws...............................................37
5.13 Ownership of Projects..............................................37
5.14 Investment Company Act.............................................37
5.15 Solvency...........................................................37
5.16 Insurance..........................................................37
5.17 REIT Status........................................................38
5.18 Title to Property..................................................38
5.19 Environmental Matters..............................................38
5.20 Office of Foreign Asset Control....................................39
ARTICLE VI COVENANTS..........................................................39
6.1 Financial Reporting................................................39
6.2 Use of Proceeds....................................................40
6.3 Notice of Default..................................................41
6.4 Conduct of Business................................................41
6.5 Taxes..............................................................41
6.6 Insurance..........................................................41
6.7 Compliance with Laws...............................................41
6.8 Maintenance of Properties..........................................41
6.9 Inspection.........................................................41
6.10 Maintenance of Status..............................................42
6.11 Dividends..........................................................42
6.12 No Change in Control...............................................42
6.13 Intentionally Omitted..............................................42
6.14 Intentionally Omitted..............................................42
6.15 Acquisitions and Investments.......................................42
6.16 Liens..............................................................43
6.17 Affiliates.........................................................43
6.18 Intentionally Omitted..............................................43
6.19 Variable Interest Indebtedness.....................................43
6.20 Consolidated Net Worth.............................................44
6.21 Indebtedness and Cash Flow Covenants...............................44
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6.22 Environmental Matters..............................................44
6.23 Permitted Investments..............................................45
6.24 Limitation on Unsecured Indebtedness...............................45
6.25 Encumbrances.......................................................45
ARTICLE VII DEFAULTS..........................................................46
7.1........................................................................46
7.2........................................................................46
7.3........................................................................46
7.4........................................................................46
7.5........................................................................46
7.6........................................................................46
7.7........................................................................46
7.8........................................................................47
7.9........................................................................47
7.10.......................................................................47
7.11.......................................................................47
7.12.......................................................................47
7.13.......................................................................47
7.14.......................................................................47
7.15.......................................................................47
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................48
8.1 Acceleration.......................................................48
8.2 Amendments.........................................................48
8.3 Preservation of Rights.............................................49
8.4 Insolvency of Borrower.............................................49
ARTICLE IX GENERAL PROVISIONS.................................................49
9.1 Survival of Representations........................................49
9.2 Governmental Regulation............................................49
9.3 Intentionally Omitted..............................................49
9.4 Headings...........................................................49
9.5 Entire Agreement...................................................50
9.6 Several Obligations; Benefits of this Agreement....................50
9.7 Expenses; Indemnification..........................................50
9.8 Numbers of Documents...............................................50
9.9 Accounting.........................................................50
9.10 Severability of Provisions.........................................50
9.11 Nonliability of Lenders............................................51
9.12 CHOICE OF LAW......................................................51
9.13 CONSENT TO JURISDICTION............................................51
9.14 WAIVER OF JURY TRIAL...............................................51
ARTICLE X THE ADMINISTRATIVE AGENT............................................51
10.1 Appointment........................................................51
10.2 Powers.............................................................52
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10.3 General Immunity...................................................52
10.4 No Responsibility for Loans, Recitals, etc.........................52
10.5 Action on Instructions of Lenders..................................52
10.6 Employment of Agents and Counsel...................................53
10.7 Reliance on Documents; Counsel.....................................53
10.8 Administrative Agent's Reimbursement and Indemnification...........53
10.9 Rights as a Lender.................................................53
10.10 Lender Credit Decision.............................................54
10.11 Successor Administrative Agent.....................................54
10.12 Notice of Defaults.................................................54
10.13 Requests for Approval..............................................54
10.14 Defaulting Lenders.................................................55
ARTICLE XI SETOFF; RATABLE PAYMENTS...........................................55
11.1 Setoff.............................................................55
11.2 Ratable Payments...................................................55
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................56
12.1 Successors and Assigns.............................................56
12.2 Participations.....................................................56
12.3 Assignments........................................................57
12.4 Dissemination of Information.......................................58
12.5 Tax Treatment......................................................58
ARTICLE XIII NOTICES..........................................................58
13.1 Giving Notice......................................................58
13.2 Change of Address..................................................58
ARTICLE XIV...................................................................58
PATRIOT ACT...................................................................58
ARTICLE XV COUNTERPARTS.......................................................59
EXHIBIT A FORM OF NOTE
EXHIBIT B COMPLIANCE CERTIFICATE
EXHIBIT C ASSIGNMENT AGREEMENT
EXHIBIT D GUARANTY
EXHIBIT E BORROWER'S COUNSEL OPINION LETTER
EXHIBIT G AMENDMENT REGARDING INCREASE
SCHEDULE 5.6 LITIGATION
SCHEDULE 5.7 SUBSIDIARIES OF GPLP
SCHEDULE 5.13 EXCEPTIONS TO OWNERSHIP FREE OF UNPERMITTED LIENS
SCHEDULE 5.19 ENVIRONMENTAL MATTERS
SCHEDULE 6.25 EXISTING INDEBTEDNESS SECURED BY PLEDGE OF STOCK OR
OTHER OWNERSHIP INTERESTS
iv
AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of December 14, 2006,
is among Glimcher Properties Limited Partnership, a limited partnership
organized under the laws of the State of Delaware (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. The Borrower is primarily engaged in the business of purchasing, owning,
operating, leasing and managing retail properties.
B. The Borrower, the Administrative Agent and certain other lenders have
entered into a Credit Agreement with Borrower dated as of October 17, 2003, as
amended by a First Amendment thereto dated as of December, 2003, as further
amended by a Second Amendment thereto dated as of September 30, 2004 and further
amended by an Amended and Restated Credit Agreement thereto dated August 22,
2005 (the "Existing Agreement").
C. The Borrower has requested that the Lenders and the Administrative Agent
amend and restate the Existing Agreement in its entirety and enter into this
Amended and Restated Credit Agreement (the "Credit Agreement"). 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.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any firm, corporation or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
partnership interests of a partnership.
"Adjusted Annual EBITDA" shall mean, as of the date of calculation, an
annualized amount determined by taking the Consolidated Net Income for the
twelve (12) most recent months for which financial results have been reported,
as adjusted by (a) adding or deducting for, as appropriate, any adjustment made
under GAAP for straight lining of rents, gains or losses from sales of assets,
impairment and other non-cash charges, accrued distributions to owners of
minority interests, other extraordinary items, interest, income taxes, real
estate related depreciation expense and real estate amortization expense
(including the Glimcher Percentage of such deductions and such adjustments made
under GAAP); (b) deducting an annual capital reserve amount equal to the
aggregate of (i) $0.15 per square foot times the gross leaseable area of
Projects (excluding New Developments) owned by the Glimcher Group at the end of
such period, (ii) $0.10 per square foot times the gross leaseable area of New
Developments owned by the Glimcher Group at the end of such period, (iii) the
product of (A) the Glimcher Percentage multiplied by (B) $0.15 per square foot
times the gross leaseable area of Projects (excluding New Developments) owned by
Joint Ventures at the end of such period, and (iv) the product of (A) the
applicable Glimcher Percentage multiplied by (B) $0.10 per square foot times the
gross leaseable area of New Developments owned by Joint Ventures at the end of
such period.
"Adjusted Funds From Operations" shall mean Funds From Operations less
Preferred Dividends, adjusted for impairment and other non-cash charges.
"Adjusted Leverage EBITDA" means, for any period, Adjusted Annual EBITDA
for such period (i) less that portion of positive Net Operating Income
attributable to any Projects sold during the 12 month period to which such
positive Net Operating Income applies, (ii) less that portion of positive Net
Operating Income attributable to any Projects acquired during such 12 month
period and (iii) plus an amount calculated by annualizing the Consolidated Group
Pro Rata Share of the actual Net Operating Income of any Projects acquired by an
Investment Affiliate during such period, calculated as if they were owned for
the entire 12 month period.
"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 a borrowing hereunder consisting of the aggregate amount of
the several Loans made by one or more of the Lenders to the Borrower of the same
Type and, in the case of LIBOR Rate Advances, for the same LIBOR Interest
Period, including Swingline Advances.
"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 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, as of any date, the aggregate of the
then-current Commitments of all the Lenders, which is, as of the Agreement
Execution Date, $470,000,000, as such amount may be increased from time to time
pursuant to Section 2.21.
"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.
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"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances and Facility Letter of Credit Obligations.
"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.
"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 Borrower, acting singly.
"Borrower" means Glimcher Properties Limited Partnership, a limited
partnership organized under the laws of the State of Delaware, and its
successors and assigns.
"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.
"Capitalization Rate" means seven and one-half percent (7.5%).
"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.
3
"Cash Equivalents" means, as of any date:
(i) securities issued or directly and fully guaranteed or insured by
the United States Government or any agency or instrumentality
thereof having maturities of not more than one year from such
date;
(ii) mutual funds organized under the United States Investment Company
Act rated AAm or AAm-G by S&P and P-1 by ▇▇▇▇▇'▇;
(iii) certificates of deposit or other interest-bearing obligations of
a bank or trust company which is a member in good standing of the
Federal Reserve System having a short term unsecured debt rating
of not less than A-1 by S&P and not less than P-1 by ▇▇▇▇▇'▇ (or
in each case, if no bank or trust company is so rated, the
highest comparable rating then given to any bank or trust
company, but in such case only for funds invested overnight or
over a weekend) provided that such investments shall mature or be
redeemable upon the option of the holders thereof on or prior to
a date one month from the date of their purchase;
(iv) certificates of deposit or other interest-bearing obligations of
a bank or trust company which is a member in good standing of the
Federal Reserve System having a short term unsecured debt rating
of not less than A-1+ by S&P, and not less than P-1 by ▇▇▇▇▇'▇
and which has a long term unsecured debt rating of not less than
A1 by ▇▇▇▇▇'▇ (or in each case, if no bank or trust company is so
rated, the highest comparable rating then given to any bank or
trust company, but in such case only for funds invested overnight
or over a weekend) provided that such investments shall mature or
be redeemable upon the option of the holders thereof on or prior
to a date three months from the date of their purchase;
(v) bonds or other obligations having a short term unsecured debt
rating of not less than A-1+ by S&P and P-1+ by ▇▇▇▇▇'▇ and
having a long term debt rating of not less than A1 by ▇▇▇▇▇'▇
issued by or by authority of any state of the United States, any
territory or possession of the United States, including the
Commonwealth of Puerto Rico and agencies thereof, or any
political subdivision of any of the foregoing;
(vi) repurchase agreements issued by an entity rated not less than
A-1+ by S&P, and not less than P-1 by ▇▇▇▇▇'▇ which are secured
by U.S. Government securities of the type described in clause (i)
of this definition maturing on or prior to a date one month from
the date the repurchase agreement is entered into;
(vii) short term promissory notes rated not less than A-1+ by S&P, and
not less than P-1 by ▇▇▇▇▇'▇ maturing or to be redeemable upon
the option of the holders thereof on or prior to a date one month
from the date of their purchase; and
4
(viii) commercial paper (having original maturities of not more than
365 days) rated at least A-1+ by S&P and P-1 by ▇▇▇▇▇'▇ and
issued by a foreign or domestic issuer who, at the time of the
investment, has outstanding long-term unsecured debt obligations
rated at least A1 by ▇▇▇▇▇'▇.
"Change in Control" means (i) any change in the ownership of either Parent
Entity which results in more than twenty-five percent (25%) of 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.
"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 Debt Service" means, for any period, without duplication, (a)
Consolidated Interest Expense for such period plus (b) the aggregate amount of
scheduled principal payments attributable to Consolidated Outstanding
Indebtedness (excluding optional prepayments and scheduled principal payments in
respect of any such Indebtedness which is not amortized through periodic
installments of principal and interest over the term of such Indebtedness)
required to be made during such period by any member of the Glimcher Group plus
(c) a percentage of all such scheduled principal payments required to be made
during such period by any Joint Venture on Indebtedness taken into account in
calculating Consolidated Interest Expense, equal to the Glimcher Percentage of
such principal payments required to be made by Joint Ventures related to
Indebtedness.
"Consolidated Group" shall mean the Borrower, the Parent Entities and all
Subsidiaries which are consolidated with them for financial reporting purposes
under GAAP.
"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 Interest Expense" means, for any period without duplication,
the amount of interest expense, excluding any non-cash interest expense and
capitalized interest, of the Glimcher Group and Glimcher Percentage for such
period attributable to Consolidated Outstanding Indebtedness during such period.
"Consolidated Net Income" shall mean, for any period, net earnings (or
loss) after taxes (from continuing operations and discontinued operations) of
the Glimcher Group plus the applicable Glimcher Percentage of net earnings (or
loss) of all Joint Ventures for such period.
5
"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
Glimcher Group outstanding at such date, plus, without duplication (b) the
applicable Glimcher Percentage of all Indebtedness of each Joint Venture,
adjusted to eliminate increases or decreases arising from FAS-141 and excluding
traditional carve-outs relating to non-recourse debt obligations for both the
Glimcher Group and the Glimcher Percentage.
"Construction in Progress" means, as of any date, the total construction
cost incurred of any Projects then under development and not yet open plus the
book value of all land not then included in Unimproved Land.
"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 2.9.
"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 2.11 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 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.
6
"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 Fee" is defined in Section 2.4.
"Facility Fee Percentage" means, as of any date, either (a) 0.15% per annum
or (b) if at such time the LIBOR Applicable Margin is 1.40%, 0.20% per annum.
"Facility Letter of Credit" means a Letter of Credit issued pursuant to
Article IIA of this Agreement.
"Facility Letter of Credit Fee" is defined in Section 2A.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"Facility Letter of Credit Sublimit" means $50,000,000.
"Facility Termination Date" means December 13, 2009, which shall be the day
immediately prior to the third (3rd) anniversary of the Agreement Execution
Date, or if such day is not a Business Day the last Business Day immediately
preceding such day, as such date may be extended pursuant to Section 2.22
hereof.
"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."
"Fee Letter" is defined in Section 2.5.
"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.
"First Mortgage Receivable" means any Indebtedness owing to a member of the
Consolidated Group which is secured by a first-priority mortgage or deed of
trust on commercial real estate having a value in excess of the amount of such
Indebtedness and which has been designated by the Borrower as a "First Mortgage
Receivable" in its most recent compliance certificate.
7
"Fixed Charges" shall mean, for any period, the sum of (i) Consolidated
Debt Service, (ii) all dividends payable on account of preferred stock or
preferred operating partnership units of the Borrower or any other Person in the
Glimcher Group, (iii) all ground lease payments to the extent not deducted as an
expense in calculating Adjusted Annual EBITDA and (iv) plus Glimcher Percentage
payable by Joint Ventures with respect to items (ii) and (iii) above.
"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.
"Glimcher Group" means, collectively, the Borrower, the Parent Entities and
any Subsidiaries which are wholly-owned, in the aggregate, by the Borrower
and/or the Parent Entities.
"Glimcher Percentage" means, with respect to any Joint Venture or any
member of the Consolidated Group that is not also a member of the Glimcher
Group, the percentage of the total equity interests held by the Glimcher Group,
in the aggregate, in such Joint Venture or such member determined by calculating
the percentage of the issued and outstanding stock, partnership interests or
membership interests in such Joint Venture or such member held by the Glimcher
Group in the aggregate.
"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.
"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
8
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or 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.
"Guaranty" means the guaranty to be executed and delivered by Glimcher
Realty Trust and Glimcher Properties Corporation substantially in the form of
Exhibit D, as the same may be amended, supplemented or modified from time to
time.
"Guarantors" means, as of any date, the Parent Entities then a party to the
Guaranty.
"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.
9
"Issuance Date" is defined in Section 2A.4(a)(2).
"Issuance Notice" is defined in Section 2A.4(c).
"Issuing Bank" means, with respect to each Facility Letter of Credit, the
Lender which issues such Facility Letter of Credit. KeyBank shall be the sole
Issuing Bank.
"Joint Venture" means any Investment Affiliate or any member of the
Consolidated Group that is not a member of Glimcher Group.
"Joint Venture Project" means any Project owned by an Investment Affiliate
or any member of the Consolidated Group that is not a member of Glimcher Group
excluding, however, any such Projects that are classified as Construction in
Progress.
"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 and the
Designated Lenders, if any, provided that the term "Lender" shall exclude each
such Designated Lender when used in the reference to the Commitments or terms
relating to the Commitments.
"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.
"Letter of Credit Collateral Account" is defined in Section 2A.9.
"Letter of Credit Request" is defined in Section 2A.4(a).
"LIBOR Applicable Margin" means, for any LIBOR Interest Period, the
percentage set forth below in accordance with the ratio of Consolidated
Outstanding Indebtedness to Total Asset Value as of the last day of the most
recent preceding fiscal quarter for which financial results have been reported,
which percentage shall change upon the date Administrative Agent has received a
compliance certificate as required by Section 6.1(v) from the Borrower as of the
end of such fiscal quarter in the form attached hereto as Exhibit B:
Consolidated Outstanding Indebtedness to
----------------------------------------
Total Asset Value LIBOR Applicable Margin
----------------- -----------------------
Less than 50% 0.95%
Greater than or equal to 50% but less than 55% 1.05%
Greater than or equal to 55% but less than 60% 1.15%
Greater than or equal to 60% 1.40%
"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
10
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
Administrative Agent'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, negative
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 Guaranty, 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 Guarantors.
"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.
"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.
11
"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.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower 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).
"Net Operating Income" means, with respect to any Project for any period,
"property rental and other income" (as determined by GAAP) attributable to such
Project accruing for such period (adjusted to eliminate the straightlining of
rents) minus the amount of all expenses (as determined in accordance with GAAP)
incurred in connection with and directly attributable to the ownership and
operation of such Project for such period, including, without limitation,
Management Fees and amounts accrued for the payment of real estate taxes and
insurance premiums, but excluding any general and administrative expenses
related to the operation of the Borrower or the Parent Entities, any interest
expense or other debt service charges and any non-cash charges such as
depreciation or amortization of financing costs. As used herein "Management
Fees", means, with respect to each Project for any period, an amount equal to
the greater of (i) actual management fees payable with respect thereto and (ii)
three percent (3%) per annum on the aggregate base rent and percentage rent due
and payable under leases at such Project.
"New Developments" means, as of any date, a Project which has been open and
operating for less than four (4) full fiscal quarters of the Borrower.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Non-Recourse Indebtedness" means, with respect to any Person, Secured
Indebtedness for which the liability of such Person (except with respect to
fraud, Environmental Laws liability and other customary non-recourse "carve-out"
exceptions) either is contractually limited to collateral securing such
Indebtedness or is so limited by operation of law.
12
"One Day LIBOR Rate" means, with respect to Swingline Advances only, for
any day, the sum of (A) an interpolated rate, as determined by the Swingline
Lender in its sole discretion for such day, equal to the LIBOR Base Rate that
would apply to an Interest Period of one day plus (B) the LIBOR Applicable
Margin.
"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.
"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 Acquisitions" are defined in Section 6.15.
"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 Administrative Agent 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.
13
"Project" means any real estate asset owned by the Borrower or any of its
Subsidiaries or any Investment Affiliate, 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 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.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"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.
14
"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.
"Secured Indebtedness" means any Indebtedness which is secured by a Lien on
a Project, any ownership interests in any Person or any other assets which had,
in the aggregate, a value in excess of the amount of such Indebtedness at the
time such Indebtedness was incurred.
"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.
"S&P" means Standard & Poor's Ratings Group and its successors.
"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 the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which represents more than 10% of then-current
Total Asset Value.
"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Commitment" means the obligation of the Swingline Lender to make
Swingline Loans not exceeding $50,000,000, which is included in, and is not in
addition to, the Swingline Lender's total Commitment hereunder.
"Swingline Lender" shall mean KeyBank, in its capacity as a Lender.
"Swingline Loan" means a loan made by the Swingline Lender pursuant to
Section 2.16 hereof.
"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.
15
"Total Asset Value" means, as of any date, (i) the Net Operating Income for
the most recent four (4) consecutive fiscal quarters of the Borrower for which
financial results have been reported attributable to Wholly-Owned Glimcher
Projects (excluding 100% of the Net Operating Income attributable to Projects
which have not been so owned for six (6) full fiscal quarters as of the end of
the most recent fiscal quarter for which financial results have been reported)
divided by the Capitalization Rate, plus (ii) 100% of cost for any such
Wholly-Owned Glimcher Projects first acquired during such six (6) fiscal quarter
period (including assumed Secured Indebtedness), plus (iii) the Glimcher
Percentage of Net Operating Income attributable to Joint Venture Projects for
the most recent four (4) consecutive fiscal quarters of the Borrower for which
financial results have been reported (excluding Net Operating Income
attributable to any such Projects which either have not been so owned for six
(6) fiscal quarters as of the end of such most recent fiscal quarter for which
financial results have been reported) divided by the Capitalization Rate, plus
(iv) the Glimcher Percentage of the price paid for any such Joint Venture
Projects first acquired by a Joint Venture during such six (6) fiscal quarter
period (including assumed Secured Indebtedness), plus (v) cash and Cash
Equivalents owned by the Glimcher Group as of the end of the most recent fiscal
quarter for which financial results have been reported, plus (vi) the Glimcher
Percentage of all cash and Cash Equivalents owned by Joint Ventures as of the
end of the most recent fiscal quarter financial results have been reported plus
(vii) Construction in Progress and Unimproved Land of the Glimcher Group, valued
in accordance with GAAP, plus (viii) the Glimcher Percentage of any Construction
in Progress and Unimproved Land of any other members of the Consolidated Group
or Investment Affiliates, valued in accordance with GAAP, plus (ix) First
Mortgage Receivables owned by the Glimcher Group, valued in accordance with
GAAP, plus (x) the Glimcher Percentage of First Mortgage Receivables owned by
any other members of the Consolidated Group and Investment Affiliates, valued in
accordance with GAAP.
"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.
"Unimproved Land" means, as of any date, any land which (i) is not
appropriately zoned for retail development, (ii) does not have access to all
necessary utilities or (iii) does not have access to publicly dedicated streets,
unless such land has been designated in writing by the Borrower in a certificate
delivered to the Agent as land that is reasonably expected to satisfy all such
criteria within six (6) months after such date.
"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 Glimcher Project" means, as of any date, any Project then
wholly-owned by the Glimcher Group, in the aggregate.
16
"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 Advances through the Administrative Agent to
Borrower from time to time prior to the Facility Termination Date, and to
support the issuance of Facility Letters of Credit under Article 2A of this
Agreement, provided that the making of any such Advance or the issuance of such
Facility Letter of Credit will not:
(i) cause the then-current Allocated Facility Amount to exceed the
then-current Aggregate Commitment; or
(ii) cause the then-current outstanding Swingline Advances to exceed
the Swingline Commitment; or
(iii) cause the then outstanding Facility Letters of Credit
Obligations to exceed the Facility Letter of Credit Sublimit.
The Advances may be Swingline Advances, ratable Floating Rate Advances or
ratable LIBOR Rate Advances. Each Lender shall fund its Percentage of each such
Advance (other than a Swingline Advance) and no Lender will be required to fund
any amounts which, when aggregated with such Lender's Percentage of all other
Advances then outstanding and of all Facility Letter of Credit Obligations,
would exceed such Lender's then-current Commitment. This facility ("Facility")
is a revolving credit facility and, subject to the provisions of this Agreement,
Borrower may request Advances hereunder, repay such Advances and reborrow
Advances at any time prior to the Facility Termination Date.
2.2 Ratable and Non Ratable Advances. Each 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 except for Swingline
Loans which shall be made by the Swingline Lender in accordance with Section
2.16. The ratable Advances may be Floating Rate Advances, LIBOR Rate Advances or
a combination thereof, selected by the Borrower in accordance with Sections 2.8
and 2.9.
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.
2.4 Facility Fee. The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee (the "Facility Fee") equal to an
aggregate amount computed on a daily basis by multiplying the Facility Fee
Percentage applicable to such day times the Aggregate Commitment in effect on
17
such day. The Facility Fee shall be due and payable in arrears on the first
Business Day of each calendar quarter and upon any termination of the Aggregate
Commitment in its entirety under Section 2.1 hereof.
2.5 Other Fees. The Borrower agrees to pay all fees payable to the
Administrative Agent pursuant to the Borrower's letter agreement with the
Administrative Agent dated as of October 16, 2006 (the "Fee Letter").
2.6 Minimum Amount of Each Advance. Each Advance shall be in the minimum
amount of $200,000; provided, however, that, subject to Section 2.1, any
Floating Rate Advance may be in the amount of the unused Aggregate Commitment.
2.7 Optional Prepayments. The Borrower may, upon at least one (1) Business
Day's notice to the Administrative Agent, prepay the Advances, which notice
shall specify the date and amount of prepayment and whether the prepayment is of
LIBOR Rate Advances, Floating Rate Advances, Swingline Loans 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.
2.8 Method of Selecting Types and Interest Periods for New Advances. The
Borrower shall select the Type of Advance and, in the case of each LIBOR Rate
Advance, the Interest Period applicable to each Advance from time to time. The
Borrower shall give the Administrative Agent irrevocable notice (a "Borrowing
Notice") in the form attached as Exhibit F 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, (ii) not later than noon Cleveland time, at least
three (3) Business Days before the Borrowing Date for each LIBOR Rate Advance,
and (iii) not later than noon Cleveland time on the same Business Day as the
Borrowing Date for each Swingline Advance of:
(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, (ii) 2:00 p.m. (Cleveland time), in the case of Swingline
Advances or (iii) 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.
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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.
2.9 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 2.6,
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.
2.10 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 2.9 to but excluding
the date it becomes due or is converted into a LIBOR Rate Advance pursuant to
Section 2.9 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.
2.11 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, 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 made as,
19
converted into or continued as a LIBOR Rate 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.
2.12 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.
2.13 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.
2.14 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, and upon any termination of the Aggregate Commitment in its
entirety under Section 2.1 hereof. Interest, Facility Letter of Credit Fees and
Facility Fees 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.
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2.15 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 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
2.16 Swingline Advances. In addition to the other options available to the
Borrower hereunder, the Swingline Commitment shall be available for Swingline
Advances subject to the following terms and conditions. Swingline Advances shall
be made available for same day borrowings provided that notice is given in
accordance with Section 2.8 hereof. All Swingline Advances shall bear interest
at the One Day LIBOR Rate. In no event shall the Swingline Lender be required to
fund a Swingline Advance if it would increase the total aggregate outstanding
Loans by Swingline Lender hereunder plus its Percentage of Facility Letter of
Credit Obligations to an amount in excess of the Swingline Lender's Commitment.
No Swingline Advance may be made to repay a Swingline Advance, but Borrower may
repay Swingline Advances from subsequent pro rata Advances hereunder. On the
fifth (5th) Business Day after such a Swingline Advance was made, if such
Swingline Advance has not been paid, each Lender irrevocably agrees to purchase
its Percentage of any Swingline Advance made by the Swingline Lender regardless
of whether the conditions for disbursement are satisfied at the time of such
purchase, including the existence of a Default hereunder provided that Swingline
Lender did not have actual knowledge of such Default at the time the Swingline
Advance was made and provided further that no Lender shall be required to have
total outstanding Loans plus its Percentage of Facility Letters of Credit exceed
its Commitment. Such purchase shall take place on the date of the request by
Swingline Lender so long as such request is made by noon (Cleveland time), and
otherwise on the Business Day following such request. All requests for purchase
shall be in writing. From and after the date it is so purchased, each such
Swingline Advance shall, to the extent purchased, (i) be treated as a Loan made
by the purchasing Lenders and not by the selling Lender for all purposes under
this Agreement and the payment of the purchase price by a Lender shall be deemed
to be the making of a Loan by such Lender and shall constitute outstanding
principal under such Lender's Note, and (ii) shall no longer be considered a
Swingline Advance except that all interest accruing on or attributable to such
Swingline Advance for the period prior to the date of such purchase shall be
paid when due by the Borrower to the Administrative Agent for the benefit of the
Swingline Lender and all such amounts accruing on or attributable to such Loans
for the period from and after the date of such purchase shall be paid when due
by the Borrower to the Administrative Agent for the benefit of the purchasing
Lenders. If prior to purchasing its Percentage of a Swingline Advance one of the
events described in Section 7.7 shall have occurred and such event prevents the
consummation of the purchase contemplated by preceding provisions, each Lender
will purchase an undivided participating interest in the outstanding Swingline
Advance in an amount equal to its Percentage of such Swingline Advance. From and
after the date of each Lender's purchase of its participating interest in a
Swingline Advance, if the Swingline Lender receives any payment on account
thereof, the Swingline Lender will distribute to such Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's participating
interest was outstanding and funded); provided, however, that in the event that
such payment was received by the Swingline Lender and is required to be returned
to the Borrower, each Lender will return to the Swingline Lender any portion
thereof previously distributed by the Swingline Lender to it. If any Lender
fails to so purchase its Percentage of any Swingline Advance, such Lender shall
be deemed to be a Defaulting Lender hereunder.
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2.17 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.
2.18 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.
2.19 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.
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2.20 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.
2.21 Increase in Aggregate Commitment. The Borrower shall also have the
right from time to time, provided no Default or Unmatured Default has occurred
and is then continuing, to increase the Aggregate Commitment up to a maximum of
$600,000,000 by either adding new lenders as Lenders (subject to the
Administrative Agent's prior written approval of the identity of such new
lenders) or obtaining the agreement, which shall be at such Lender's or Lenders'
sole discretion, of one or more of the then current Lenders to increase its or
their Commitments. The Administrative Agent's approval of any new lenders shall
not be unreasonably withheld or delayed. On the effective date of any such
increase, the Borrower shall pay to the Administrative Agent any amounts due to
it under the Fee Letter and to each lender providing such additional Commitment
the up-front fee agreed to by the Borrower. Such increases shall be evidenced by
the execution and delivery of an Amendment Regarding Increase in the form of
Exhibit G attached hereto by the Borrower, the Administrative Agent and the new
lender or existing Lender providing such additional Commitment, a copy of which
shall be forwarded to each Lender by the Administrative Agent promptly after
execution thereof. On the effective date of each such increase in the Aggregate
Commitment, the Borrower and the Administrative Agent shall cause the new or
existing Lenders providing such increase, by either funding more than its or
their Percentage of new Advances made on such date or purchasing shares of
outstanding Loans held by the other Lenders or a combination thereof, to hold
its or their Percentage of all Advances outstanding at the close of business on
such day. The Lenders agree to cooperate in any required sale and purchase of
outstanding Advances to achieve such result, provided that Borrower shall be
responsible for paying any amounts due under Section 3.4 to any Lender which
sells all or any portion of a Fixed Rate Advance on a date which is not the last
day of the Interest Period applicable thereto. In no event shall the Aggregate
Commitment exceed $600,000,000 without the approval of all of the Lenders.
2.22 Extension of Facility Termination Date. The Borrower shall have one
(1) option to extend the Facility Termination Date for a period of one (1) year,
upon satisfaction of the following conditions precedent:
(a) The Borrower shall provide Administrative Agent with written notice of
the Borrower's intent to exercise either such extension option not more than one
hundred eighty (180) and not less than sixty (60) days prior to the then-current
Facility Termination Date;
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(b) As of the date of the Borrower's delivery of notice of its intent to
exercise an extension option, and as of the then-current Facility Termination
Date, no Default or Unmatured Default shall have occurred and be continuing and
the Borrower shall so certify in writing; and
(c) On or before the then-current Facility Termination Date, the Borrower
shall pay to Administrative Agent for the benefit of the Lenders an extension
fee for any extension so exercised in an amount equal to 0.15% of the Aggregate
Commitment to be effective as of the first day of such extension.
ARTICLE IIA
LETTER OF CREDIT SUBFACILITY
----------------------------
2A.1 Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuing Bank hereby agrees to issue for the
account of the Borrower, one or more Facility Letters of Credit in accordance
with this Article IIA, from time to time during the period commencing on the
Agreement Effective Date and ending on a date sixty (60) days prior to the
then-current Facility Termination Date.
2A.2 Types and Amounts. The Issuing Bank shall not have any obligation to:
(i) issue any Facility Letter of Credit if the aggregate maximum
amount then available for drawing under Letters of Credit issued by such
Issuing Bank, after giving effect to the Facility Letter of Credit
requested hereunder, shall exceed any limit imposed by law or regulation
upon such Issuing Bank;
(ii) issue any Facility Letter of Credit if, after giving effect
thereto, (1) the then applicable Allocated Facility Amount would exceed the
then current Aggregate Commitment, or (2) the Facility Letter of Credit
Obligations would exceed the Facility Letter of Credit Sublimit; or
(iii) issue any Facility Letter of Credit having an expiration date,
or containing automatic extension provision to extend such date, to a date
beyond the thirtieth (30th) day preceding the then-current Facility
Termination Date.
2A.3 Conditions. In addition to being subject to the satisfaction of the
conditions contained in Article IV hereof, the obligation of the Issuing Bank to
issue any Facility Letter of Credit is subject to the satisfaction in full of
the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at such
times and in such manner as the Issuing Bank may reasonably prescribe such
documents and materials as may be reasonably required pursuant to the terms
of the proposed Facility Letter of Credit (it being understood that if any
inconsistency exists between such documents and the Loan Documents, the
terms of the Loan Documents shall control) and the proposed Facility Letter
of Credit shall be reasonably satisfactory to the Issuing Bank as to form
and content;
(ii) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or governmental authority shall purport by its terms to
enjoin or restrain the Issuing Bank from issuing the requested Facility
Letter of Credit and no law, rule or regulation applicable to the Issuing
24
Bank and no request or directive (whether or not having the force of law)
from any governmental authority with jurisdiction over the Issuing Bank
shall prohibit or request that the Issuing Bank refrain from the issuance
of Letters of Credit generally or the issuance of the requested Facility
Letter or Credit in particular; and
(iii) there shall not exist any Default.
2A.4 Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the Administrative Agent
at least three (3) Business Days' prior written notice of any requested issuance
of a Facility Letter of Credit under this Agreement (a "Letter of Credit
Request") and shall (i) immediately provide the Issuing Bank and the
Administrative Agent with a telecopy of the written notice required hereunder
which has been signed by an Authorized Officer or a telex containing all
information required to be contained in such written notice and (ii) promptly
provide the Issuing Bank and the Administrative Agent (in no event later than
the requested date of issuance) with the written notice required hereunder
containing the original signature of an authorized officer; such notice shall be
irrevocable, except as provided in Section 2A.4(b)(i) below, and shall specify:
(1) the stated amount of the Facility Letter of Credit requested (which
stated amount shall not be less than $50,000);
(2) the effective date (which day shall be a Business Day) of issuance of
such requested Facility Letter of Credit (the "Issuance Date");
(3) the date on which such requested Facility Letter of Credit is to
expire (which day shall be a Business Day);
(4) the purpose for which such Facility Letter of Credit is to be issued;
(5) the Person for whose benefit the requested Facility Letter of Credit
is to be issued; and
(6) any special language required to be included in the Facility Letter of
Credit.
Such notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than noon (Cleveland time) on the last Business
Day on which notice can be given under this Section 2A.4(a).
(b) Subject to the terms and conditions of this Article IIA and
provided that the applicable conditions set forth in Article IV hereof have been
satisfied, the Issuing Bank shall, on the Issuance Date, issue a Facility Letter
of Credit on behalf of the Borrower in accordance with the Letter of Credit
Request and the Issuing Bank's usual and customary business practices unless the
Issuing Bank has actually received (i) written notice from the Borrower
specifically revoking the Letter of Credit Request with respect to such Facility
Letter of Credit given not later than Business Day immediately preceding the
Issuance Date, or (ii) written or telephonic notice from the Administrative
Agent stating that the issuance of such Facility Letter of Credit would violate
Section 2A.2.
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(c) The Issuing Bank shall give the Administrative Agent (who shall
promptly notify Lenders) and the Borrower written or telex notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance of a Facility
Letter of Credit (the "Issuance Notice").
(d) The Issuing Bank shall not extend or amend any Facility Letter of
Credit unless the requirements of this Section 2A.4 are met as though a new
Facility Letter of Credit was being requested and issued.
2A.5 Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify the Borrower and the
Administrative Agent (who shall promptly notify Lenders) of any draw under a
Facility Letter of Credit. Any such draw shall not be deemed to be a default
hereunder but shall constitute an Advance of the Facility in the amount of the
Reimbursement Obligation with respect to such Facility Letter of Credit and
shall bear interest from the date of the relevant drawing(s) under the pertinent
Facility Letter of Credit at the Floating Rate; provided that if a Default or an
Unmatured Default regarding the non-payment of any monetary obligations to the
Administrative Agent or the Lenders exists at the time of any such drawing(s),
then the Borrower shall reimburse the Issuing Bank for drawings under a Facility
Letter of Credit issued by the Issuing Bank no later than the next succeeding
Business Day after the payment by the Issuing Bank and until repaid such
Reimbursement Obligation shall bear interest at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing Bank under
or in connection with any Facility Letter of Credit, if taken or omitted in the
absence of willful misconduct or gross negligence, shall not put the Issuing
Bank under any resulting liability to any Lender or, provided that such Issuing
Bank has complied with the procedures specified in Section 2A.4 and such Lender
has not given a notice contemplated by Section 2A.6(a) that continues in full
force and effect, relieve that Lender of its obligations hereunder to the
Issuing Bank. In determining whether to pay under any Facility Letter of Credit,
the Issuing Bank shall have no obligation relative to the Lenders other than to
confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered in compliance, and that they appear to comply on
their face, with the requirements of such Letter of Credit.
2A.6 Participation.
(a) Immediately upon issuance by the Issuing Bank of any Facility
Letter of Credit in accordance with the procedures set forth in Section 2A.4,
each Lender shall be deemed to have irrevocably and unconditionally purchased
and received from the Issuing Bank, without recourse, representation or
warranty, an undivided interest and participation equal to such Lender's
Percentage in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrower with respect thereto) and all related rights
hereunder and under the Guaranty and other Loan Documents. Each Lender's
obligation to make further Loans to Borrower (other than any payments such
Lender is required to make under subparagraph (b) below) or to purchase an
interest from the Issuing Bank in any subsequent Facility Letters of Credit
issued by the Issuing Bank on behalf of Borrower shall be reduced by such
Lender's Percentage of the undrawn portion of each Facility Letter of Credit
outstanding.
(b) In the event that the Issuing Bank makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such amount to
the Issuing Bank pursuant to Section 2A.7 hereof, the Issuing Bank shall
26
promptly notify the Administrative Agent, which shall promptly notify each
Lender of such failure, and each Lender shall promptly and unconditionally pay
to the Administrative Agent for the account of the Issuing Bank the amount of
such Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank.
Lender's payments of its Percentage of such Reimbursement Obligation as
aforesaid shall be deemed to be a Loan by such Lender and shall constitute
outstanding principal under such Lender's Note. The failure of any Lender to
make available to the Administrative Agent for the account of the Issuing Bank
its Percentage of the unreimbursed amount of any such payment shall not relieve
any other Lender of its obligation hereunder to make available to the
Administrative Agent for the account of such Issuing Bank its Percentage of the
unreimbursed amount of any payment on the date such payment is to be made, but
no Lender shall be responsible for the failure of any other Lender to make
available to the Administrative Agent its Percentage of the unreimbursed amount
of any payment on the date such payment is to be made. Any Lender which fails to
make any payment required pursuant to this Section 2A.6(b) shall be deemed to be
a Defaulting Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, the Issuing Bank shall
promptly pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each Lender which has funded its participating interest therein,
in immediately available funds, an amount equal to such Lender's Percentage
thereof.
(d) Upon the request of the Administrative Agent or any Lender, the
Issuing Bank shall furnish to such Administrative Agent or Lender copies of any
Facility Letter of Credit to which the Issuing Bank is party and such other
documentation as may reasonably be requested by the Administrative Agent or
Lender.
(e) The obligations of a Lender to make payments to the Administrative
Agent for the account of the Issuing Bank with respect to a Facility Letter of
Credit shall be absolute, unconditional and irrevocable, not subject to any
counterclaim, set-off, qualification or exception whatsoever other than a
failure of any such Issuing Bank to comply with the terms of this Agreement
relating to the issuance of such Facility Letter of Credit, and such payments
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances.
2A.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of the Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to the Issuing Bank under or in
connection with any Facility Letter of Credit when due, irrespective of any
claim, set-off, defense or other right which the Borrower may have at any time
against any Issuing Bank or any other Person, under all circumstances, including
without limitation any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
27
(ii) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against a beneficiary named in
a Facility Letter of Credit or any transferee of any Facility Letter
of Credit (or any Person for whom any such transferee may be acting),
the Administrative Agent, the Issuing Bank, any Lender, or any other
Person, whether in connection with this Agreement, any Facility Letter
of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the
Borrower and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect of any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default.
(b) In the event any payment by the Borrower received by the Issuing
Bank or the Administrative Agent with respect to a Facility Letter of Credit and
distributed by the Administrative Agent to the Lenders on account of their
participations is thereafter set aside, avoided or recovered from the
Administrative Agent or Issuing Bank in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Administrative Agent, contribute
such Lender's Percentage of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Issuing Bank or the
Administrative Agent upon the amount required to be repaid by the Issuing Bank
or the Administrative Agent.
2A.8 Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent, for the
ratable account of the Lenders (including the Issuing Bank), based upon the
Lenders' respective Percentages, a per annum fee (the "Facility Letter of Credit
Fee") as a percentage of the face amount of each Facility Letter of Credit
outstanding equal to the LIBOR Applicable Margin in effect from time to time
while such Facility Letter of Credit is outstanding. The Facility Letter of
Credit Fee relating to any Facility Letter of Credit shall accrue on a daily
basis and shall be due and payable in arrears on the first Business Day of each
calendar quarter following the issuance of such Facility Letter of Credit and,
to the extent any such fees are then due and unpaid, on the Facility Termination
Date or any other earlier date that the Obligations are due and payable in full.
The Administrative Agent shall promptly remit such Facility Letter of Credit
Fees, when paid, to the other Lenders in accordance with their Percentages
thereof. The Borrower shall not have any liability to any Lender for the failure
of the Administrative Agent to promptly deliver funds to any such Lender and
shall be deemed to have made all such payments on the date the respective
payment is made by the Borrower to the Administrative Agent, provided such
payment is received by the time specified in Section 2.12 hereof.
(b) The Issuing Bank also shall have the right to receive solely for
its own account an issuance fee equal to the greater of (a) $1,500 or (b)
one-eighth of one percent (0.125%) of the face amount of each Facility Letter of
Credit, payable by the Borrower on the Issuance Date for each such Facility
Letter of Credit and on the date of any increase therein or extension thereof.
The Issuing Bank shall also be entitled to receive its reasonable out-of-pocket
costs and the Issuing Bank's standard charges of issuing, amending and servicing
Facility Letters of Credit and processing draws thereunder.
28
2A.9 Letter of Credit Collateral Account. The Borrower hereby agrees that
it will immediately upon the occurrence of the Default, establish a special
collateral account (the "Letter of Credit Collateral Account") at the
Administrative Agent's office at the address specified pursuant to Article XIII,
in the name of the Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Lenders, and in which the Borrower
shall have no interest other than as set forth in Section 8.1. The Letter of
Credit Collateral Account shall hold the deposits the Borrower is required to
make after a Default on account of any outstanding Facility Letters of Credit as
described in Section 8.1. In addition to the foregoing, the Borrower hereby
grants to the Administrative Agent, for the benefit of the Lenders, a security
interest in and to the Letter of Credit Collateral Account and any funds that
may hereafter be on deposit in such account, including income earned thereon.
The Lenders acknowledge and agree that the Borrower has no obligation to fund
the Letter of Credit Collateral Account unless and until so required under
Section 8.1 hereof.
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
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
29
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 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.
30
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 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.
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(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 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
32
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 or issue the initial Facility Letter of Credit hereunder
unless (a) the Borrower shall, prior to or concurrently with such initial
Advance or issuance, 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 and this Agreement;
(ii) (A) Certificates of good standing for the Borrower and the Parent
Entities from their states of organization, 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
the Borrower and the Parent Entities, certified by the appropriate
governmental officer and dated not more than thirty (30) days prior to the
Agreement Execution Date, for each jurisdiction in which the executive
offices of the Borrower or such Parent Entity is located;
(iii) Copies of the formation documents (including code of
regulations, if appropriate) of the Borrower and the Parent Entities,
certified by an officer of the Borrower or such Parent Entity, as
appropriate, together with all amendments thereto;
(iv) Incumbency certificates, executed by officers of the Borrower and
the Parent Entities, 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 the Borrower or any such Parent
Entity;
(v) Copies, certified by a Secretary or an Assistant Secretary of the
applicable 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;
(vi) A written opinion of the Borrower's and Parent Entities' counsel,
addressed to the Lenders in substantially the form of Exhibit E hereto or
such other form as the Administrative Agent may reasonably approve;
(vii) A certificate, signed by an Authorized Officer of the Borrower,
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;
33
(viii) The most recent financial statements of the Borrower and the
Parent Entities:
(ix) UCC financing statement, judgment, and tax lien searches with
respect to the Borrower and each of the Parent Entities from the state of
its organization and the state in which its principal place of business is
located;
(x) 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;
(xi) A current compliance certificate in the form of Exhibit B,
utilizing the new covenants established herein and executed by the
Borrower's chief financial officer or chief operating officer;
(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; and
(xiii) 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.
4.2 Each Advance. The Lenders shall not be required to make any Advance
unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default;
(ii) The representations and warranties contained in Article V are
true and correct as of such Borrowing Date with respect to the Loan Parties
in existence on such Borrowing Date, except to the extent any such
representation or warranty is stated to relate solely to an earlier date,
in which case such representation or warranty shall be true and correct on
and as of such earlier date; and
(iii) All legal matters incident to the making of such Advance shall
be satisfactory to the Lenders and their counsel.
Each Borrowing Notice and each Letter of Credit Request with respect to
each such Advance shall constitute a representation and warranty by the Borrower
that the conditions contained in Sections 4.2(i) and (ii) have been satisfied.
Any Lender may require a duly completed Compliance Certificate in substantially
the same form of the Certificate attached as Exhibit B.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Lenders that:
5.1 Existence. Borrower is 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 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. Each of the Parent Entities and Borrower's Subsidiaries are duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and have 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. The Borrower 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 the
Borrower of the Loan Documents and the performance of its obligations thereunder
have been duly authorized by proper limited partnership proceedings, and the
Loan Documents constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower 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
the Borrower or the Parent Entities 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 the Borrower, the Parent Entities, or any
of Borrower's Subsidiaries or the Borrower's, Parent Entities' or any
Subsidiary's articles of incorporation, operating agreements, partnership
agreement, or by-laws, or the provisions of any indenture, instrument or
agreement to which the Borrower, the Parent Entities or any of Borrower's
Subsidiaries 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
the Borrower, Parent Entity or a Subsidiary 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
35
statements delivered to the Lenders through the Agreement Execution Date, there
was no change in the business, properties, or condition (financial or otherwise)
of the Borrower and its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
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
the Borrower or any of its Subsidiaries 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 the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
5.6 Litigation and Guarantee Obligations. Except as set forth on Schedule
5.6 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. The Borrower has no 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 Subsidiaries. Schedule 5.7 hereto contains, an accurate list of all
Subsidiaries of the Borrower, setting forth their respective jurisdictions of
incorporation or formation and the percentage of their respective capital stock
or partnership or membership interest owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock of such
Subsidiaries that are corporations have been duly authorized and issued and are
fully paid and non-assessable.
5.8 ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
the aggregate exceed $1,000,000. Neither the Borrower 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 Borrower 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. The Borrower has not 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 the Borrower, nor the Parent Entities,
nor any Subsidiary 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 the Borrower, nor the Parent Entities
nor any Subsidiary 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.
36
5.12 Compliance With Laws. The Borrower 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.
5.13 Ownership of Projects. Except as set forth on Schedule 5.13 hereto, on
the date of this Agreement, the Borrower 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 the Borrower, nor the Parent Entities,
nor any Subsidiary 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 Solvency.
(i) Immediately after the Agreement Execution Date and immediately
following the making of each Loan and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets
of the Borrower and its Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, subordinated, contingent
or otherwise, of the Borrower and its Subsidiaries on a consolidated basis;
(b) the present fair saleable value of the Property of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount that
will be required to pay the probable liability of the Borrower and its
Subsidiaries on a consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Borrower and its Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to
conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted after the date hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature,
taking into account the timing of and amounts of cash to be received by it
or any such Subsidiary and the timing of the amounts of cash to be payable
on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.
37
5.16 Insurance. The Loan Parties carry insurance on their Projects 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 in localities where
the Borrower and its Subsidiaries operate, including, without limitation:
(i) Property and casualty insurance (including coverage for flood and
other water damage for any Project located within a 100-year flood plain)
in the amount of the replacement cost of the improvements at the Project
(to the extent replacement cost insurance is maintained by companies
engaged in similar business and owning similar properties);
(ii) Builder's risk insurance for any Project under construction in
the amount of the construction cost of such Project;
(iii) Loss of rental income insurance in the amount not less than one
year's gross revenues from the Projects; and
(iv) Comprehensive general liability insurance in the amount of
$20,000,000 per occurrence.
5.17 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 the Borrower as a real estate investment trust.
5.18 Title to Property. The execution, delivery or performance of the Loan
Documents required to be delivered by the Borrower hereunder will not result in
the creation of any Lien on the Projects of the Consolidated Group 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.
5.19 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 5.19 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 the Borrower, with respect to all
Projects owned by the Borrower and/or its Subsidiaries (x) for at least two
(2) years, have in the last two years, or (y) for less than two (2) years,
have for such period of ownership, been in compliance in all material
respects with all applicable Environmental Laws.
(b) Neither the Borrower nor any of its Subsidiaries 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 any of the Projects, nor does the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened.
(c) To the best knowledge of the Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Projects of the
Borrower and its Subsidiaries in violation of, or in a manner or to a
location which could reasonably give rise to liability of the Borrower or
any Subsidiary under, Environmental Laws, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Projects of the Borrower and its Subsidiaries in
violation of, or in a manner that could give rise to liability of the
Borrower or any Subsidiary under, any applicable Environmental Laws.
38
(d) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any of its Subsidiaries is or,
to the Borrower's knowledge, will be named as a party with respect to the
Projects of the Borrower and its Subsidiaries, 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 Projects of the Borrower and its
Subsidiaries.
(e) To the best knowledge of the Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from the
Projects of the Borrower and its Subsidiaries, or arising from or related
to the operations of the Borrower and its Subsidiaries in connection with
the Projects in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.
5.20 Office of Foreign Asset Control. Borrower and any Guarantor 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. The Borrower 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 the Borrower's chief financial officer or chief accounting officer;
39
(ii) 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;
(iii) Together with the quarterly and annual financial statements
required hereunder, a compliance certificate in substantially the form of
Exhibit B hereto signed by the Borrower'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;
(iv) As soon as possible and in any event within 10 days after a
responsible officer of the Borrower knows that any Reportable Event has
occurred with respect to any Plan, a statement, signed by the chief
financial officer of the Borrower, describing said Reportable Event and the
action which the Borrower proposes to take with respect thereto;
(v) As soon as possible and in any event within 10 days after receipt
by a responsible officer of the Borrower, a copy of (a) any notice or claim
to the effect that the Borrower or any of its Subsidiaries is or may be
liable to any Person as a result of the release by the Borrower, 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 the Borrower or any of its Subsidiaries, which, in the case of either
(a) or (b) could have a Material Adverse Effect;
(vi) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements
so furnished; and
(vii) Such other information (including, without limitation, financial
statements for the Borrower, non-financial information and a listing of
capital expenditures, a rent roll, and such other information on any
Project) as the Administrative Agent or any Lender may from time to time
reasonably request.
6.2 Use of Proceeds. The Borrower will, and will cause each of its
Subsidiaries to, use the proceeds of the Advances to finance the Borrower's
renovation and expansion of Projects, development of Projects, acquisition of
Projects, tenant improvements, repayment of Indebtedness, to provide working
capital and for general partnership purposes. The Borrower will not, nor will it
permit any Subsidiary to, 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, (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, or (iii) to make any Acquisition other than a Permitted
Acquisition.
40
6.3 Notice of Default. The Borrower will give, and will cause each of its
Subsidiaries to 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. The Borrower will do, and will cause each of its
Subsidiaries to do, all things necessary to remain duly incorporated or duly
qualified, validly existing and in good standing as a real estate investment
trust, corporation, limited liability company general partnership or limited
partnership, as the case may be, in its jurisdiction of incorporation/formation
(except with respect to mergers permitted pursuant to Section 6.12 and Permitted
Acquisitions) and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted and to carry on and conduct
their 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, neither the Borrower nor its
Subsidiaries may 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.
6.5 Taxes. The Borrower will pay, and will cause each of its Subsidiaries
to pay, when due all taxes, assessments and governmental charges and levies upon
them of their 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. The Borrower will, and will cause each of its Subsidiaries
to, maintain insurance which is consistent with the representation contained in
Section 5.17 on all their Property and the Borrower will furnish to any Lender
upon reasonable request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, 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. The Borrower will, and will cause each of
its Subsidiaries to, do all things necessary to maintain, preserve, protect and
keep their respective Projects in good repair, working order and condition,
ordinary wear and tear excepted.
6.9 Inspection. The Borrower will, and will cause each of its Subsidiaries
to, 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 any of the Projects, corporate books and financial records of
the Borrower and each of its Subsidiaries, to examine and make copies of the
books of accounts and other financial records of the Borrower and each of its
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower
and each of its Subsidiaries 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.
41
6.10 Maintenance of Status. The Borrower 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 the Borrower and its Subsidiaries
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 the
Borrower declare or pay dividends on its Capital Stock or make distributions
with respect thereto to (including without limitation 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 the Borrower 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. The Borrower will not, nor will it permit the
Parent Entities to undergo a Change in Control.
6.13 Intentionally Omitted.
6.14 Intentionally Omitted.
6.15 Acquisitions and Investments. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or become or remain a partner in any
partnership or joint venture, or to make any Acquisition of any Person, except:
(i) Cash and Cash Equivalents;
(ii) Investments in existing Subsidiaries, Investments in Subsidiaries
formed for the purpose of developing or acquiring Projects, Investments in
joint ventures and partnerships engaged solely in the business of
purchasing, developing, owning, operating, leasing and managing retail
properties, and Investments in existence on the date hereof and described
in Schedule 1 hereto;
(iii) transactions permitted pursuant to Section 6.23;
(iv) make advances to tenants in the ordinary course of business;
(v) Acquisitions of Persons whose primary operations consist of the
ownership, development, operation and management of retail properties; and
(vi) Equity interests in tenants obtained in connection with tenant
work-outs, not to exceed $5,000,000 in the aggregate;
provided that, after giving effect to such Acquisitions and Investments,
Borrower continues to comply with all its covenants herein. Acquisitions
permitted pursuant to this Section 6.15 shall be deemed to be "Permitted
Acquisitions".
42
6.16 Liens. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves shall have been set
aside on its books;
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due
or which are being contested in good faith by appropriate proceedings and
for which adequate reserves shall have been set aside on its books;
(iii) Liens arising out of pledges or deposits under workers'
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(iv) Easements, restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material and
adverse way affect the marketability of the same or materially and
adversely interfere with the use thereof in the business of the Borrower or
its Subsidiaries;
(v) Liens on Projects to secure any Indebtedness permitted hereunder
to the extent such Liens (i) constitute a first priority Lien on a Project
or a second priority Lien on the same Project, but only to the extent
created simultaneously with a first priority Lien thereon, and (ii) will
not result in a Default in any of Borrower's covenants herein.
Liens permitted pursuant to this Section 6.16 shall be deemed to be "Permitted
Liens".
6.17 Affiliates. The Borrower will not, nor will it permit any of its
Subsidiaries to, 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 the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arms-length
transaction.
6.18 Intentionally Omitted.
6.19 Variable Interest Indebtedness. The Borrower shall not at any time
permit the outstanding principal balance of any Consolidated Outstanding
Indebtedness which bears interest at an interest rate that is not fixed through
the maturity date of such Indebtedness to exceed twenty percent (20%) of Total
Asset Value, unless all of such Indebtedness in excess of such amount is subject
to a Rate Management Transaction approved by the Administrative Agent that
effectively converts the interest rate on such excess to a fixed rate.
43
6.20 Consolidated Net Worth. The Consolidated Group shall maintain a
Consolidated Net Worth of not less than $1,000,000,000 plus seventy percent
(75%) of the equity contributions or sales of treasury stock received by the
Borrower or any Parent Entity after the Agreement Execution Date.
6.21 Indebtedness and Cash Flow Covenants. The Borrower shall not permit:
(i) The Recourse Indebtedness of the Glimcher Group and the Glimcher
Percentage of any Recourse Indebtedness of the other members of the
Consolidated Group to be greater than twenty percent (20%) of Total Asset
Value at any time;
(ii) Adjusted Annual EBITDA to be less than 1.75 times Consolidated
Interest Expense at any time;
(iii) Adjusted Annual EBITDA to be less than 1.50 times Fixed Charges
at any time;
(iv) Consolidated Outstanding Indebtedness to be more than sixty-five
percent (65%) of Total Asset Value at any time; or
(v) That portion of Consolidated Outstanding Indebtedness which is
Secured Indebtedness to be more than sixty percent (60%) of Total Asset
Value at any time.
6.22 Environmental Matters. Borrower and its Subsidiaries shall:
(a) Comply with, and use all reasonable efforts to ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply with and maintain, and use all reasonable efforts to ensure
that all tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect; provided that in
no event shall the Borrower or its Subsidiaries be required to modify the terms
of leases, or renewals thereof, with existing tenants (i) at Projects owned by
the Borrower or its Subsidiaries as of the date hereof, or (ii) at Projects
hereafter acquired by the Borrower or its Subsidiaries as of the date of such
acquisition, to add provisions to such effect.
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws, except
to the extent that (i) the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect, or (ii) the Borrower has determined
in good faith that contesting the same is not in the best interests of the
Borrower and its Subsidiaries and the failure to contest the same could not be
reasonably expected to have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless Administrative Agent and each
Lender, and their respective officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of, noncompliance with
or liability under any Environmental Laws applicable to the operations of the
44
Borrower, its Subsidiaries or the Projects, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful misconduct of
the party seeking indemnification therefor. This indemnity shall continue in
full force and effect regardless of the termination of this Agreement.
6.23 Permitted Investments.
(a) The Glimcher Group and Glimcher Percentage's Investment in Unimproved
Land shall not at any time exceed five percent (5%) of Total Asset Value.
(b) The Glimcher Group and Glimcher Percentage's Investment in First
Mortgage Receivables (with each asset valued at the lower of its acquisition
cost and its fair market value) shall not at any time exceed five percent (5%)
of Total Asset Value.
(c) The Glimcher Group's aggregate Investment in Joint Venture Projects
(valued at the greater of the cash investment in that entity by the Glimcher
Group or the portion of Total Asset Value attributable to such entity or its
assets as the case may be) shall not at any time exceed twenty-five percent
(25%) of Total Asset Value.
(d) The Glimcher Group and Glimcher Percentage's Investment in Construction
in Progress (with each asset valued in accordance with GAAP) shall not at any
time exceed twenty percent (20%) of Total Asset Value.
(e) The aggregate Investment of the Glimcher Group and Glimcher Percentage
in the above items (a)-(d), in the aggregate and after eliminating any
duplication of Investments included in more than one of such items, shall not at
any time exceed thirty (30%) of Total Asset Value.
6.24 Limitation on Unsecured Indebtedness. The Consolidated Group shall not
at any time permit that portion of the Consolidated Outstanding Indebtedness
which is not secured by trust deeds or mortgages on Projects to exceed
$10,000,000, provided that (i) Capitalized Leases and tenant improvement
allowance obligations of the Consolidated Group to tenants in Projects evidenced
by notes shall be excluded from Consolidated Outstanding Indebtedness for
purposes of this Section 6.24 to the extent that the amount so excluded on
account of Capitalized Leases and such tenant allowance notes does not exceed
$25,000,000, in the aggregate; and (ii) Indebtedness of up to $19,000,000 to the
New Jersey Economic Development Authority incurred by GPLP and Glimcher Realty
Trust pursuant to that certain Loan Agreement dated as of November 1, 1998 shall
be excluded from Consolidated Outstanding Indebtedness for purposes of this
Section 6.24 only.
6.25 Encumbrances. The Borrower will not allow, or permit any member of the
Consolidated Group to allow, its direct or indirect ownership interests in any
other member of the Consolidated Group or any Investment Affiliate to be
encumbered to secure any Indebtedness, other than pursuant to existing
encumbrances set forth on Schedule 6.25 attached hereto.
45
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, 6.21, 6.23 and 6.24.
7.4 Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries 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 The default by the Borrower or any other member of the Consolidated
Group or any Investment Affiliate in the payment of any amount due under, or the
performance of any term, provision or condition contained in, any agreement with
respect to (A) any Recourse Indebtedness of the Borrower or any other member of
the Consolidated Group having an outstanding principal balance in excess of
$15,000,000 or (B) any Non-Recourse Indebtedness of the Borrower or any other
member of the Consolidated Group or any Investment Affiliate having an
outstanding principal balance in excess of $100,000,000 in the aggregate
(collectively, "Material Indebtedness") or any other event shall occur or
condition exist, which causes or permits any such Material Indebtedness to be
due and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof.
7.7 Any member of the Consolidated Group 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 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.
46
7.8 A receiver, trustee, examiner, liquidator or similar official shall be
appointed for any member of the Consolidated Group or for any Substantial
Portion of the Property of any member of the Consolidated Group or a proceeding
described in Section 7.7(iv) shall be instituted against any member of the
Consolidated Group and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of ninety (90)
consecutive days.
7.9 Any member of the Consolidated Group 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 any member of the Consolidated Group would exceed
$25,000,000 in the aggregate, which have not been stayed on appeal or otherwise
appropriately contested in good faith.
7.10 The Borrower 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
the Borrower 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 The Borrower 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 the Borrower 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 the Borrower or any of its Subsidiaries or Investment
Affiliates 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 the
breach of any of the terms or provisions of any Loan Document, which default or
breach continues beyond any period of grace therein provided.
7.14 The attempted revocation, challenge, disavowment, or termination by
the Borrower or a Parent Entity of any of the Loan Documents.
7.15 Either the Borrower 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 the
Borrower or such Parent Entity is the surviving entity in such merger or
consolidation and (b) after giving effect to the merger, the Borrower remains in
compliance with the terms of the Credit Agreement, provided that any such action
shall not constitute a Default unless the Borrower shall fail to reverse such
action within sixty (60) days after written notice from the Administrative Agent
that such action constitutes a Default hereunder.
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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 the Borrower, 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.
In addition to the foregoing, following the occurrence of a Default and so
long as any Facility Letter of Credit has not been fully drawn and has not been
cancelled or expired by its terms, upon demand by the Required Lenders the
Borrower shall deposit in the Letter of Credit Collateral Account cash in an
amount equal to the aggregate undrawn face amount of all outstanding Facility
Letters of Credit and all fees and other amounts due or which may become due
with respect thereto. The Borrower shall have no control over funds in the
Letter of Credit Collateral Account and shall not be entitled to receive any
interest thereon. Such funds shall be promptly applied by the Administrative
Agent to reimburse the Issuing Bank for drafts drawn from time to time under the
Facility Letters of Credit and associated issuance costs and fees. Such funds,
if any, remaining in the Letter of Credit Collateral Account following the
payment of all Obligations in full shall, unless the Administrative Agent is
otherwise directed by a court of competent jurisdiction, be promptly paid over
to the Borrower.
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 the Borrower) 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:
48
(i) Extend the Facility Termination Date (except as provided in
Section 2.22), or forgive all or any portion of the principal amount of any
Loan or accrued interest thereon or the Facility Fee, 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) release any Parent Entity from the Guaranty.
(iii) Reduce the percentage specified in the definition of Required
Lenders.
(iv) Increase the Aggregate Commitment beyond $600,000,000.
(v) Permit the Borrower to assign its rights under this Agreement.
(vi) Amend Sections 8.1, 8.2 , 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 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 Insolvency of Borrower. In the event of the insolvency of the Borrower,
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.
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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 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.
50
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 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
51
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 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
52
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 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.
53
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.
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 promptly 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.
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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 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
SETOFF; RATABLE PAYMENTS
------------------------
11.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, or any Default
occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other
Indebtedness at any time held or owing by any Lender or any of its Affiliates to
or for the credit or account of the Borrower may be offset and applied toward
the payment of the Obligations owing to such Lender at any time prior to the
date that such Default has been fully cured, whether or not the Obligations, or
any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments of Swingline Loans and
payments received pursuant to Sections 3.1, 3.2, 3.4 or 3.5) in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion of Loans.
55
If any Lender, whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to their Loans. In case
any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
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 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.
56
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.
12.2.3 Benefit of Setoff. The Borrower agrees that each Participant
which has previously advised the Borrower in writing of its purchase of a
participation in a Lender's interest in its Loans shall be deemed to have
the right of setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents. Each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the
amount of participating interests sold to each Participant, provided that
such Lender and Participant may not each setoff amounts against the same
portion of the Obligations, so as to collect the same amount from the
Borrower twice. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance
with Section 11.2 as if each Participant were a Lender.
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 $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 C 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
57
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.
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
PATRIOT ACT
-----------
Each Lender hereby notifies the Borrower that pursuant to the requirements
of the USA Act (Title III of Pub. L. 107-56 (signed into law on October 26,
2001) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act. The Borrower agrees to cooperate with each
Lender and provide true, accurate and complete information to such Lender in
response to any such request.
58
ARTICLE XV
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.)
59
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its sole general partner
By: _____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-1
COMMITMENT: KEYBANK NATIONAL ASSOCIATION, a national
$55,000,000 banking association,
Individually and as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
----------------------------------
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Capital
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇-▇
▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH,
$50,000,000 Individually and as Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Director
----------------------------------
Eurohypo AG, New York Branch
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇, Director
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with copy to:
Eurohypo AG, New York Branch
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Head of Legal Department
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-3
COMMITMENT: WACHOVIA BANK, NATIONAL ASSOCIATION,
$50,000,000 Individually and as Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Managing Director
----------------------------------
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇ ▇▇ 4506
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇-▇
▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇.,
$50,000,000 individually and as Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Senior Vice President
-------------------------------
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Code: IL1-231-10-35
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice
President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-5
COMMITMENT: CHARTER ONE BANK, N.A.
$50,000,000 Individually and as Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
Charter One Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-6
COMMITMENT: AAREAL BANK AG
$50,000,000
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Director
-------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Director
Phone: ▇▇-▇▇▇-▇▇▇-▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ de Roo
Phone: ▇▇-▇▇▇-▇▇▇-▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
A-7
COMMITMENT: HUNTINGTON NATIONAL BANK
$35,000,000
By: /s/ ▇▇▇▇▇▇ ▇. Content
-------------------------------
Name: ▇▇▇▇▇▇ ▇. Content
-------------------------------
Title: Vice President
-------------------------------
Huntington National Bank
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Content, Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-8
COMMITMENT: NATIONAL CITY BANK
$30,000,000
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
National City Bank
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-9
COMMITMENT: PNC BANK, NATIONAL ASSOCIATION
$30,000,000
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
PNC Bank, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-10
COMMITMENT: U.S. BANK NATIONAL ASSOCIATION
$30,000,000
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
U.S. Bank National
Association ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Vice President Phone:
▇▇▇-▇▇▇-▇▇▇▇ Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
A-11
COMMITMENT: ▇▇▇▇▇▇ BROTHERS COMMERCIAL BANK
$25,000,000
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Chief Credit Officer
-------------------------------
▇▇▇▇▇▇ Brothers Commercial Bank
c/▇ ▇▇▇▇▇▇ Brothers
High Grade Loan Portfolio Group
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-12
COMMITMENT: MIDFIRST BANK,
$15,000,000 a Federally Chartered Savings Association
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
MidFirst Bank
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
A-13
EXHIBIT A
---------
FORM OF NOTE
------------
____________, 2006
Glimcher Properties Limited Partnership, a limited partnership organized
under the laws of the State of Delaware (the "Borrower"), promises to pay to the
order of _________________________ (the "Lender") the aggregate unpaid principal
amount of all Loans made by the Lender to the Borrower pursuant to Article II of
the Amended and Restated 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 Amended and Restated Credit Agreement, dated as of ____________,
2006 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-14
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.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its sole general partner
By: _____________________________
Name: _____________________________
Title: _____________________________
A-15
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
DATED ___________, 2006
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
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A-16
EXHIBIT B
COMPLIANCE CERTIFICATE
KeyBank National Association, as Administrative Agent
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Re: Amended and Restated Credit Agreement dated as of
December 14, 2006 (as amended, modified, supplemented,
restated, or renewed, from time to time, the "Agreement")
between GLIMCHER PROPERTIES LIMITED PARTNERSHIP (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.
B-1
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.
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
14th day of December, 2006.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its sole general partner
By:___________________________________
Name:_________________________________
Title:________________________________
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 December 14, 2006. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to an Amended and
Restated Credit 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.
C-1
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 Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of December 14, 2006 among Glimcher Properties
Limited Partnership, as "Borrower" and KeyBank National Association as
"Administrative Agent" and "Lead Arranger" and the Several Lenders From
Time to Time Parties Hereto, as Lenders.
2. Date of Assignment Agreement: _____________, 2006
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
under Credit Agreement $470,000,000
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
December 14, 2006
To: KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Capital
BORROWER:
Glimcher Properties Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Amended and Restated Credit 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 , 200_ (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 outstanding 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.
I-1
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 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:
------------------------- ----------------------------
I-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]
I-3
EXHIBIT D
---------
GUARANTY
--------
This Guaranty is made as of December 14, 2006 by Glimcher Realty Trust, a
real estate investment trust organized under the laws of the State of Maryland
("Glimcher Trust") and Glimcher Properties Corporation, a Delaware corporation
("Glimcher Properties", and together with Glimcher Trust, collectively, the
"Guarantors"), to and for the benefit of KeyBank National Association,
individually ("KeyBank") and as administrative agent ("Administrative Agent")
for itself and the lenders under the Credit Agreement (as defined below) and
their respective successors and assigns (collectively, the "Lenders").
RECITALS
--------
▇. ▇▇▇▇▇▇▇▇ Properties Limited Partnership, a limited partnership organized
under the laws of the State of Delaware ("Borrower"), and Guarantors have
requested that the Lenders make a revolving credit facility available to
Borrower in an aggregate principal amount of up to $470,000,000, subject to
future increases up to $600,000,000 (the "Facility").
B. The Lenders have agreed to make available the Facility to Borrower
pursuant to the terms and conditions set forth in an Amended and Restated Credit
Agreement of even date herewith among Borrower, KeyBank, individually, and as
Administrative Agent, and the Lenders named therein (as amended, modified or
restated from time to time, the "Credit Agreement"). All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such terms
in the Credit Agreement.
C. Borrower has executed and delivered or will execute and deliver to the
Lenders promissory notes in the principal amount of each Lender's Commitment and
promissory notes in the principal amount, if any, of each Lender's Loan as
evidence of Borrower's indebtedness to each such Lender with respect to the
Facility (the promissory notes described above, together with any amendments or
allonges thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Credit Agreement, are collectively
referred to herein as the "Notes").
▇. ▇▇▇▇▇▇▇▇ Properties is the sole general partner in the Borrower and
Glimcher Trust is the owner of all of the stock of Glimcher Properties and
certain of the limited partnership interests in the Borrower. Guarantors
acknowledge that the extension of credit by the Administrative Agent and the
Lenders to Borrower pursuant to the Credit Agreement will benefit Guarantors by
enhancing the financial strength of the consolidated group of which Guarantors
and Borrower are members. The execution and delivery of this Guaranty by
Guarantors are conditions precedent to the performance by the Lenders of their
obligations under the Credit Agreement.
AGREEMENTS
----------
NOW, THEREFORE, Guarantors, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agree as follows:
1. Guarantors absolutely, unconditionally, and irrevocably guaranty to each
of the Lenders:
(a) the full and prompt payment of the principal of and interest on
the Notes when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the prompt payment of all sums
which may now be or may hereafter become due and owing under the Notes, the
Credit Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined in
Paragraph 7 hereof); and
(c) the full, complete, and punctual observance, performance, and
satisfaction of all of the obligations, duties, covenants, and agreements
of Borrower under the Credit Agreement and the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantors
agree, on demand by the Administrative Agent or the holder of a Note, to pay all
the Facility Indebtedness and to perform all the Obligations as are then or
thereafter become due and owing or are to be performed under the terms of the
Notes, the Credit Agreement, and the other Loan Documents.
3. Guarantors do hereby waive (i) notice of acceptance of this Guaranty by
the Administrative Agent and the Lenders and any and all notices and demands of
every kind which may be required to be given by any statute, rule or law, (ii)
any defense, right of set-off or other claim which Guarantors may have against
Borrower or which Guarantors or Borrower may have against the Administrative
Agent or the Lenders or the holder of a Note, (iii) presentment for payment,
demand for payment (other than as provided for in Paragraph 2 above), notice of
nonpayment (other than as provided for in Paragraph 2 above) or dishonor,
protest and notice of protest, diligence in collection and any and all
formalities which otherwise might be legally required to charge Guarantors with
liability, (iv) any failure by the Administrative Agent and the Lenders to
inform Guarantors of any facts the Administrative Agent and the Lenders may now
or hereafter know about Borrower, the Facility, or the transactions contemplated
by the Credit Agreement, it being understood and agreed that the Administrative
Agent and the Lenders have no duty so to inform and that Guarantors are fully
responsible for being and remaining informed by Borrower of all circumstances
bearing on the existence or creation, or the risk of nonpayment of the Facility
Indebtedness or the risk of nonperformance of the Obligations, and (v) any and
all right to cause a marshalling of assets of Borrower or any other action by
any court or governmental body with respect thereto, or to cause the
Administrative Agent and the Lenders to proceed against any other security given
to a Lender in connection with the Facility Indebtedness or the Obligations.
Credit may be granted or continued from time to time by the Lenders to Borrower
without notice to or authorization from Guarantors, regardless of the financial
or other condition of Borrower at the time of any such grant or continuation.
The Administrative Agent and the Lenders shall have no obligation to disclose or
discuss with Guarantors the Lenders' assessment of the financial condition of
Borrower. Guarantors acknowledge that no representations of any kind whatsoever
have been made by the Administrative Agent and the Lenders to Guarantors. No
modification or waiver of any of the provisions of this Guaranty shall be
D-2
binding upon the Administrative Agent and the Lenders except as expressly set
forth in a writing duly signed and delivered on behalf of the Administrative
Agent and the Lenders. Guarantors further agree that any exculpatory language
contained in the Credit Agreement, the Notes, and the other Loan Documents shall
in no event apply to this Guaranty, and will not prevent the Administrative
Agent and the Lenders from proceeding against Guarantors to enforce this
Guaranty.
4. Guarantors further agree that Guarantors' liability as guarantor shall
in no way be impaired by any renewals or extensions which may be made from time
to time, with or without the knowledge or consent of Guarantors of the time for
payment of interest or principal under a Note or by any forbearance or delay in
collecting interest or principal under a Note, or by any waiver by the
Administrative Agent and the Lenders under the Credit Agreement, or any other
Loan Documents, or by the Administrative Agent or the Lenders' failure or
election not to pursue any other remedies they may have against Borrower, or by
any change or modification in a Note, the Credit Agreement, or any other Loan
Documents, or by the acceptance by the Administrative Agent or the Lenders of
any security or any increase, substitution or change therein, or by the release
by the Administrative Agent and the Lenders of any security or any withdrawal
thereof or decrease therein, or by the application of payments received from any
source to the payment of any obligation other than the Facility Indebtedness,
even though a Lender might lawfully have elected to apply such payments to any
part or all of the Facility Indebtedness, it being the intent hereof that
Guarantors shall remain liable as principal for payment of the Facility
Indebtedness and performance of the Obligations until all indebtedness has been
paid in full and the other terms, covenants and conditions of the Credit
Agreement, and other Loan Documents and this Guaranty have been performed,
notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Guarantors further understand and agree that
the Administrative Agent and the Lenders may at any time enter into agreements
with Borrower to amend and modify a Note, the Credit Agreement or any of the
other Loan Documents, or any thereof, and may waive or release any provision or
provisions of a Note, the Credit Agreement, or any other Loan Document and, with
reference to such instruments, may make and enter into any such agreement or
agreements as the Administrative Agent, the Lenders and Borrower may deem proper
and desirable, without in any manner impairing this Guaranty or any of the
Administrative Agent and the Lenders' rights hereunder or any of Guarantors'
obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Guarantors agree that
their obligations hereunder shall be joint and several with each other and with
any and all other guarantees given in connection with the Facility from time to
time. Guarantors agree that this Guaranty may be enforced by the Administrative
Agent and the Lenders without the necessity at any time of resorting to or
exhausting any security or collateral, if any, given in connection herewith or
with a Note, the Credit Agreement, or any of the other Loan Documents or by or
resorting to any other guaranties, and Guarantors hereby waive the right to
require the Administrative Agent and the Lenders to join Borrower in any action
brought hereunder or to commence any action against or obtain any judgment
against Borrower or to pursue any other remedy or enforce any other right.
Guarantors further agree that nothing contained herein or otherwise shall
prevent the Administrative Agent and the Lenders from pursuing concurrently or
successively all rights and remedies available to them at law and/or in equity
or under a Note, the Credit Agreement or any other Loan Documents, and the
exercise of any of their rights or the completion of any of their remedies shall
not constitute a discharge of any of Guarantors' obligations hereunder, it being
D-3
the purpose and intent of Guarantors that the obligations of such Guarantors
hereunder shall be primary, absolute, independent and unconditional under any
and all circumstances whatsoever. Neither Guarantors' obligations under this
Guaranty nor any remedy for the enforcement thereof shall be impaired, modified,
changed or released in any manner whatsoever by any impairment, modification,
change, release or limitation of the liability of Borrower under a Note, the
Credit Agreement or any other Loan Document or by reason of Borrower's
bankruptcy or by reason of any creditor or bankruptcy proceeding instituted by
or against Borrower. This Guaranty shall continue to be effective and be deemed
to have continued in existence or be reinstated (as the case may be) if at any
time payment of all or any part of any sum payable pursuant to a Note, the
Credit Agreement or any other Loan Document is rescinded or otherwise required
to be returned by the payee upon the insolvency, bankruptcy, or reorganization
of the payor, all as though such payment to such Lender had not been made,
regardless of whether such Lender contested the order requiring the return of
such payment. The obligations of Guarantors pursuant to the preceding sentence
shall survive any termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by a Lender to any assignee of all or
a portion of such Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, a Note, or any of the Loan Documents are placed
in the hands of an attorney for collection or is collected through any legal
proceeding; (ii) an attorney is retained to represent the Administrative Agent
or any Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty, a Note, the Credit Agreement, or any Loan Document; (iii) an attorney
is retained to enforce any of the other Loan Documents or to provide advice or
other representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent the Administrative Agent or any Lender in any other legal
proceedings whatsoever in connection with this Guaranty, a Note, the Credit
Agreement, any of the Loan Documents, or any property securing the Facility
Indebtedness (other than any action or proceeding brought by any Lender or
participant against the Administrative Agent alleging a breach by the
Administrative Agent of its duties under the Loan Documents), then Guarantors
shall pay to the Administrative Agent or such Lender upon demand all reasonable
attorney's fees, costs and expenses, including, without limitation, court costs,
filing fees and all other costs and expenses incurred in connection therewith
(all of which are referred to herein as "Enforcement Costs"), in addition to all
other amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty comports
with all applicable local, state and federal laws and judicial decisions.
However, if any provision or provisions, or if any portion of any provision or
provisions, in this Guaranty is found by a court of law to be in violation of
any applicable local, state or federal ordinance, statute, law, administrative
or judicial decision, or public policy, and if such court should declare such
portion, provision or provisions of this Guaranty to be illegal, invalid,
unlawful, void or unenforceable as written, then it is the intent of all parties
hereto that such portion, provision or provisions shall be given force to the
fullest possible extent that they are legal, valid and enforceable, that the
remainder of this Guaranty shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions were not
contained therein, and that the rights, obligations and interest of the
Administrative Agent and the Lender or the holder of a Note under the remainder
of this Guaranty shall continue in full force and effect.
D-4
9. Any indebtedness of Borrower to Guarantors now or hereafter existing is
hereby subordinated to the Facility Indebtedness. Guarantors will not seek,
accept, or retain for Guarantors' own account, any payment from Borrower on
account of such subordinated debt at any time when a Default exists under the
Credit Agreement or the Loan Documents, and any such payments to Guarantors made
while any Default then exists under the Credit Agreement or the Loan Documents
on account of such subordinated debt shall be collected and received by
Guarantors in trust for the Lenders and shall be paid over to the Administrative
Agent on behalf of the Lenders on account of the Facility Indebtedness without
impairing or releasing the obligations of Guarantors hereunder.
10. Guarantors hereby subordinate to the Facility Indebtedness any and all
claims and rights, including, without limitation, subrogation rights,
contribution rights, reimbursement rights and set-off rights, which Guarantors
may have against Borrower arising from a payment made by Guarantors under this
Guaranty and agree that, until the entire Facility Indebtedness is paid in full,
not to assert or take advantage of any subrogation rights of Guarantors or the
Lenders or any right of Guarantors or the Lenders to proceed against (i)
Borrower for reimbursement, or (ii) any other guarantor or any collateral
security or guaranty or right of offset held by the Lenders for the payment of
the Facility Indebtedness and performance of the Obligations, nor shall
Guarantors seek or be entitled to seek any contribution or reimbursement from
Borrower or any other guarantor in respect of payments made by Guarantors
hereunder. It is expressly understood that the agreements of Guarantors set
forth above constitute additional and cumulative benefits given to the Lenders
for their security and as an inducement for their extension of credit to
Borrower.
11. Any amounts received by a Lender from any source on account of any
indebtedness may be applied by such Lender toward the payment of such
indebtedness, and in such order of application, as a Lender may from time to
time elect.
12. Guarantors hereby submit to personal jurisdiction in the State of Ohio
for the enforcement of this Guaranty and waives any and all personal rights to
object to such jurisdiction for the purposes of litigation to enforce this
Guaranty. Guarantors hereby consent to the jurisdiction of either the Cuyahoga
County Court of Common Pleas in Cleveland, Ohio or the United States District
Court in Cleveland, Ohio in any action, suit, or proceeding which the
Administrative Agent or a Lender may at any time wish to file in connection with
this Guaranty or any related matter. Guarantors hereby agree that an action,
suit, or proceeding to enforce this Guaranty may be brought in any state or
federal court in the State of Ohio and hereby waives any objection which
Guarantors may have to the laying of the venue of any such action, suit, or
proceeding in any such court; provided, however, that the provisions of this
Paragraph shall not be deemed to preclude the Administrative Agent or a Lender
from filing any such action, suit, or proceeding in any other appropriate forum.
13. 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 or at such other address 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
facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
D-5
To Guarantors:
Glimcher Properties Corporation
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Glimcher Realty Trust
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
To KeyBank as Administrative Agent and as a Lender:
KeyBank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Capital
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Capital
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any other Lender, to its address set forth in the Credit
Agreement.
D-6
14. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantors and shall inure
to the benefit of the Administrative Agent and the Lenders' successors and
assigns.
15. This Guaranty shall be construed and enforced under the internal laws
of the State of Ohio.
16. GUARANTORS, THE ADMINISTRATIVE AGENT AND THE LENDERS, BY THEIR
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 GUARANTY OR ANY OTHER
LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH
IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
D-7
IN WITNESS WHEREOF, Guarantors have executed and delivered this Guaranty as
of the date first written above.
GLIMCHER REALTY TRUST
By: ________________________
Name: ________________________
Title: ________________________
GLIMCHER PROPERTIES CORPORATION
By: ________________________
Name: ________________________
Title: ________________________
D-8
EXHIBIT E
---------
FORM OF OPINION OF BORROWER'S COUNSEL
-------------------------------------
December 14, 2006
KeyBank,
as Administrative Agent for the Lenders
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Re: $470,000,000 Credit Facility to Glimcher Properties Limited Partnership
Ladies and Gentlemen:
We have acted as counsel for the Borrower in connection with a $470,000,000
secured revolving credit facility, (the "Loan"), which Loan is being made
pursuant to that certain Amended and Restated Credit Agreement dated as of
December 14, 2006 (the "Credit Agreement") among the 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 Articles of Incorporation and Bylaws of the
Parent Entities, the partnership agreement and certificate of limited
partnership of the Borrower, 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 and the Parent
Entities and 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 Credit Agreement; and
2. [describe promissory notes and other Loan Documents].
Based upon the foregoing, we are of the opinion that:
1. 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.
E-1
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 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.
3. Each Loan Document to which it is a party (a) has been properly
authorized, executed and delivered by each of the Borrower and the
Parent Entities, (b) constitutes the legal, valid, and binding
obligations of the Borrower and the Parent Entities, and (c) is
enforceable in accordance with its terms.
4. 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 or the
Parent Entities of the Loan Documents.
5. To our knowledge, there are no actions, suits, or proceedings pending
or threatened against the Borrower or the Parent Entities before any
court or governmental entity or instrumentality which could reasonably
be expected to have a Material Adverse Effect (as defined in the
Credit Agreement).
6. The Loan Documents 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 and the Parent Entities.
(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.
E-2
(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 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,
E-3
EXHIBIT F
---------
BORROWING NOTICE
----------------
Date
KeyBank National Association
Real Estate Capital
Attention: [__________________]
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Borrowing Notice
Glimcher Properties Limited Partnership ("Borrower") hereby requests an Advance
pursuant to Section 2.8 of the Amended and Restated Credit Agreement, dated as
of _____________, 2006 (as amended or modified from time to time, the "Credit
Agreement"), among Glimcher Properties Limited Partnership, 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, Glimcher Properties Limited Partnership 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 4.2 of the Credit
Agreement in connection with such Advance have been satisfied at the time such
proceeds are disbursed.
Date:_________________________________
Borrower: Glimcher Properties Limited Partnership,
a Delaware limited partnership,
By: Glimcher Properties Corporation, its sole general
partner
By: _________________________________
Name: _________________________________
Its: _________________________________
EXHIBIT G
---------
AMENDMENT REGARDING INCREASE
----------------------------
This Amendment to the Amended and Restated Credit Agreement (the
"Agreement") is made as of , , by and among Glimcher Properties Limited
Partnership (the "Borrower"), KeyBank National Association, as "Administrative
Agent," and one or more existing or new "Lenders" shown on the signature pages
hereof.
R E C I T A L S
A. Borrower, Administrative Agent and certain other Lenders have entered
into an Amended and Restated Credit Agreement dated as of December 14, 2006 (as
amended, the "Credit Agreement"). All capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders initially
agreed to provide Borrower with a revolving credit facility in an aggregate
principal amount of up to $400,000,000. The Borrower and the Agent on behalf of
the Lenders now desire to amend the Credit Agreement in order to, among other
things (i) increase the Aggregate Commitment to $__________________; and (ii)
admit [name of new banks] as "Lenders" under the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are incorporated into
and made part of this Amendment.
2. From and after _________, ____ (the "Effective Date") (i) [name of new
banks] shall be considered as "Lenders" under the Credit Agreement and the Loan
Documents, and (ii) [name of existing Lenders] shall each be deemed to have
increased its Commitment to the amount shown next to their respective signatures
on the signature pages of this Amendment, each having a Commitment in the amount
shown next to their respective signatures on the signature pages of this
Amendment. The Borrower shall, on or before the Effective Date, execute and
deliver to each new Lender a Note to evidence the Loans to be made by such
Lender.
3. From and after the Effective Date, the Aggregate Commitment shall equal
__________ Million Dollars ($___,000,000).
4. For purposes of Section 13.1 of the Credit Agreement (Giving Notice),
the address(es) and facsimile number(s) for [name of new banks] shall be as
specified below their respective signature(s) on the signature pages of this
Amendment.
G-1
5. The Borrower hereby represents and warrants that, as of the Effective
Date, there is no Default or Unmatured Default, the representations and
warranties contained in Article V of the Credit Agreement are true and correct
in all material respects as of such date and the Borrower has no offsets or
claims against any of the Lenders.
6. As expressly modified as provided herein, the Credit Agreement shall
continue in full force and effect.
7. This Amendment 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 Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first written above.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its sole general partner
By: ________________________
Name: ________________________
Title: ________________________
Address:
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
By: ________________________
Name: ________________________
Title: ________________________
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
G-2
With a copy to:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Real Estate Capital Client Services
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
G-3
[NAME OF NEW LENDER]
By:_______________________________
Print Name:_______________________
Title:____________________________
[Address of New Lender]
__________________________________
Phone:____________________________
Facsimile:________________________
Attention:________________________
Amount of Commitment:_____________
G-4
SCHEDULE 5.6
------------
LITIGATION
----------
(See Section 5.6)
NONE
SCHEDULE 5.7
------------
SUBSIDIARIES OF GLIMCHER PROPERTIES LIMITED PARTNERSHIP ("GPLP")
A. CONSOLIDATED
---------------
o Grand Central Limited Partnership, a Delaware limited partnership 99% by
GPLP
o Morgantown Mall Associates Limited Partnership, an Ohio limited partnership
99% by GPLP
o Glimcher University Mall Limited Partnership, a Delaware limited
partnership 99% by GPLP
o Weberstown Mall, LLC, a Delaware limited liability company 99% by GPLP
o WTM Glimcher, LLC, a Delaware limited liability company 100% by Weberstown
Mall, LLC
o Glimcher Northtown Venture, LLC, a Delaware limited liability company 100%
by GPLP
▇ ▇▇▇▇▇▇▇▇▇▇ Mall Associates Limited Partnership, a Delaware limited
partnership 99% by GPLP
o Great Plains Metromall, LLC, a Delaware limited liability company 100% by
GPLP
o GM Mezz, LLC a Delaware limited liability company 100% by Great Plains
Metromall, LLC
o GM Olathe, LLC a Delaware limited liability company 100% by GM Mezz, LLC
▇ ▇▇▇▇▇▇▇ City Venture LLC, a Delaware limited liability company 99% by GPLP
o Mount ▇▇▇▇▇▇ Venture, LLC, a Delaware limited liability company 99% by GPLP
o N.J. Metromall Urban Renewal, Inc., a New Jersey corporation 100% by GPLP
o JG ▇▇▇▇▇▇▇▇▇, LLC, a Delaware limited liability company 100% by GPLP
o ▇▇▇▇▇▇▇▇ ▇▇ Urban Renewal, Inc., a New Jersey corporation 100% by GPLP
o Jersey Gardens Center, LLC, a Delaware limited liability company 100% by
GPLP
o Loyal Plaza Venture, L.P., a Delaware limited partnership 99% by GPLP
o Glimcher Loyal Plaza Tenant, L.P., a Delaware limited partnership 99% by
GPLP
o Glimcher Supermall Venture LLC, a Delaware limited liability company 99% by
GPLP
o Dayton Mall Venture, LLC, a Delaware limited liability company 99% by GPLP
o Colonial Park Mall Limited Partnership, a Delaware limited partnership
99.5% by GPLP
o Colonial Park Trust, a Delaware business trust 100% by Colonial Park Mall
Limited Partnership
o Catalina Partners LP, a Delaware limited partnership 99% by Colonial Park
Mall Limited Partnership & 1% by Colonial Park Trust
o San Mall Limited Partnership, a Delaware limited partnership 99.5% by GPLP
o ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Mall, LLC, a Delaware limited liability company 99% by
GPLP
o Polaris Center, LLC a Delaware limited liability company 99% by GPLP
o Southside Mall, LLC, a Delaware limited liability company 100% by GPLP
o Glimcher Ashland Venture, LLC, a Delaware limited liability company 100% by
GPLP
o Glimcher River Valley Mall, LLC, a Delaware limited liability company 100%
by GPLP
o RVM Glimcher, LLC, a Delaware limited liability company 100% by GPLP
o Glimcher Columbia, LLC, a Delaware limited liability company 100% by GPLP
o Fairfield Village, LLC, a Delaware limited liability company 100% by GPLP
o LC Portland, LLC, a Delaware limited liability company 100% by GPLP
o ▇▇ ▇▇▇▇▇▇▇▇▇, LLC, a Delaware limited liability company 100% by GPLP
o Glimcher Westshore, LLC, a Delaware limited liability company 100% by GPLP
o MFC Beavercreek, LLC, a Delaware limited liability company 100% by GPLP
o EM Columbus, LLC, a Delaware limited liability company 100% by GPLP
o ▇▇ ▇▇▇▇▇▇▇▇ ▇▇, LLC, a Delaware limited liability company 100% by GPLP
o Polaris Mall, LLC, a Delaware limited liability company 100% by GPLP
o PFP Columbus, LLC, a Delaware limited liability company 100% by Polaris
Mall, LLC
o Mainstreet Maintenance, LLC, an Ohio limited liability company 100% by GPLP
o Ohio Retail Security, LLC, an Ohio limited liability company 100% by GPLP
o Wilora Lake Properties, LLC a Delaware limited liability company 100% by
GPLP
o Glimcher Polaris, LLC, a Delaware limited liability company 100% by GPLP
o Scottown Outlot, LLC, a Delaware limited liability company 100% by GPLP
o Polaris Lifestyle Center, LLC, a Delaware limited liability company 100% by
GPLP
o Glimcher Surprise, LLC, a Delaware limited liability company 100% by GPLP
o GPLP Surprise Venture, LLC, a Delaware limited liability company 100% by
GPLP
o Glimcher Kierland Crossing, LLC, a Delaware limited liability company 100%
by GPLP
o Glimcher Development Corporation, a Delaware corporation (non-qualified
REIT subsidiary)100% by GPLP
o Ohio Entertainment Corporation, a Delaware corporation 100% by Glimcher
Development Corporation
o Trans State Development, Inc., a Delaware corporation 100% by Glimcher
Development Corporation
o Trans State Development, LLC, a Delaware limited liability company 99% by
Glimcher Development Corporation & 1% by Trans State Development, Inc.
▇ ▇▇▇▇▇ Park Center, Inc., a Delaware corporation 100% by Glimcher
Development Corporation
▇ ▇▇▇▇▇ Park Center, LLC, a Delaware limited liability company 99% by
Glimcher Development Corporation & 1% by ▇▇▇▇▇ Park Center, Inc.
o California Retail Security, Inc., an Ohio corporation 100% by Glimcher
Development Corporation
o SR 741, Inc., a Delaware corporation 100% by Glimcher Development
Corporation
o SR 741, LLC, a Delaware limited liability company 99% by Glimcher
Development Corporation & 1% by SR 741, Inc.
o GDC Retail, Inc. a Delaware corporation 100% by Glimcher Development
Corporation
o GDC Retail, LLC, a Delaware limited liability company 99% by Glimcher
Development Corporation & 1% by GDC Retail, Inc.
o Lyra Polaris, Inc., a Delaware corporation 100% by Glimcher Development
Corporation
o Lyra Polaris, LLC, a Delaware limited liability company 99% by Glimcher
Development Corporation & 1% by Lyra Polaris, Inc.
B. Unconsolidated
o Surprise Peripheral Venture, LLC, an Arizona limited liability company 50%
by GPLP Surprise Venture, LLC
o Kierland Crossing, LLC, a Delaware limited liability company 50% by
Glimcher Kierland Crossing, LLC
o OG Retail Holding Co., LLC, a Delaware limited liability company 52% by
GPLP
▇ ▇▇▇▇▇▇ Hills Mall, REIT, LLC, a Delaware limited liability company 100% by
OG Retail Holding Co., LLC
▇ ▇▇▇▇▇▇ Hills Mall, LLC, a Delaware limited liability company 100% by ▇▇▇▇▇▇
Hills Mall, REIT, LLC
o Tulsa Promenade REIT, LLC, a Delaware limited liability company 100% by OG
Retail Holding Co., LLC
o Tulsa Promenade, LLC, a Delaware limited liability company 100% by Tulsa
Promenade, REIT, LLC
SCHEDULE 5.13
-------------
EXCEPTIONS, IF ANY, TO OWNERSHIP FREE OF UNPERMITTED LIENS
----------------------------------------------------------
(Section 5.13)
NONE
SCHEDULE 5.20
-------------
ENVIRONMENTAL MATTERS
---------------------
(See Section 5.20)
NONE
SCHEDULE 6.25
-------------
LIST OF ANY EXISTING INDEBTEDNESS SECURED
-----------------------------------------
BY PLEDGE OF STOCK OR OTHER OWNERSHIP INTERESTS
-----------------------------------------------
NONE