LOAN AGREEMENT Between MORGANTOWN MALL ASSOCIATES LIMITED PARTNERSHIP as the Borrower and FIRST COMMONWEALTH BANK as the Bank Dated as of October 8, 2008
Exhibit
10.102
|
Between
MORGANTOWN
MALL ASSOCIATES LIMITED PARTNERSHIP
as
the Borrower
and
FIRST
COMMONWEALTH BANK
as
the Bank
Dated
as of October 8, 2008
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TABLE OF
CONTENTS
| Page | ||
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INDEX
OF SCHEDULES
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iii
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ARTICLE
1.
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DEFINITIONS
AND OTHER CONVENTIONS
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1
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1.1
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Defined
Terms
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1
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1.2
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Rules
of Construction
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11
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ARTICLE
2.
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THE
LOAN
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12
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2.1
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The
Loan
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12
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2.2
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Payments
and Prepayments
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12
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2.3
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Method
of Payments
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13
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2.4
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Loan
Account
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13
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2.5
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Extension
Period
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13
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2.6
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Yield
Protection; Changes in Law
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14
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2.7
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Capital
Adequacy
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14
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ARTICLE
3.
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REPRESENTATIONS
AND WARRANTIES
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15
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3.1
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Existence
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15
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3.2
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Equity
Ownership
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15
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3.3
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Power
and Authority
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15
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3.4
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Validity
and Binding Effect
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15
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3.5
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No
Conflict or Violation
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15
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3.6
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Liabilities
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16
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3.7
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Material
Adverse Change; Events of Default; Violations
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16
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3.8
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Litigation
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16
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3.9
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Compliance
with Laws
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16
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3.10
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Matters
Relating to the Collateral
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16
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3.11
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Insurance
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19
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3.12
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Consents
and Approvals
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19
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3.13
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Federal
Reserve Regulations
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19
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3.14
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Investment
Company Act; Other Regulations
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19
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3.15
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Assets
of each Borrower
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19
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3.16
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Violation
of Anti-Terrorism Laws
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19
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3.17
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Blocked
Persons
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20
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3.18
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Full
Disclosure
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20
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ARTICLE
4.
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AFFIRMATIVE
COVENANTS
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20
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4.1
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Use
of Proceeds
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20
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4.2
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Delivery
of Financial Statements and Other Information
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20
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4.3
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Preservation
of Existence; Qualification
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21
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4.4
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Compliance
with Laws, Property Restrictions, Contracts and Leases
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21
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4.5
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Accounting
System; Books and Records
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22
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4.6
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Payment
of Taxes and Other Liabilities
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22
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4.7
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Establishment
of Certain Accounts
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22
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4.8
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Insurance
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25
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4.9
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Maintenance
of Collateral
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25
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4.10
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Indemnification
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25
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4.11
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Roof
Replacement Escrow Account
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26
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4.12
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Further
Assurances; Power of Attorney
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26
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4.13
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Debt
Service Coverage Ratio
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26
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-i-
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ARTICLE
5.
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NEGATIVE
COVENANTS
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27
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5.1
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Indebtedness
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27
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5.2
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Encumbrances
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27
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5.3
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Liquidations,
Mergers, Consolidations, Acquisitions, Sales of Interests
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27
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5.4
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Organizational
Matters
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27
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5.5
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Dispositions
of Assets
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27
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5.6
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Use
of Real Estate Collateral
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28
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5.7
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Change
of Business
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28
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5.8
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Lease
Amendments
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28
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5.9
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Publicity
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28
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5.10
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Ownership
or Acquisition of Assets
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28
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5.11
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Distributions
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28
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5.12
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Lease
of Building
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28
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5.13
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Affiliate
Transactions
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29
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ARTICLE
6.
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CONDITIONS
PRECEDENT
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29
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6.1
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Conditions
to the Loan
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29
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6.2
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Conditions
to Making First Disbursement
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29
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ARTICLE
7.
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EVENTS
OF DEFAULT; REMEDIES
|
33
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7.1
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Events
of Default
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33
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7.2
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Remedies
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35
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ARTICLE
8.
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GENERAL
PROVISIONS
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36
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8.1
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Amendments
and Waivers
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36
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8.2
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Taxes
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36
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8.3
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Expenses
and Fees
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36
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8.4
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Notices
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37
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8.5
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Set-Off
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38
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8.6
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Interest
Limitation
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38
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8.7
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No
Third Party Rights
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38
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8.8
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Participations
and Assignments
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39
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8.9
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Successors
and Assigns
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39
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8.10
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Severability
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39
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8.11
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Survival
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39
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8.12
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Funds
Transfer Authorization and Indemnification
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39
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8.13
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GOVERNING
LAW
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40
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8.14
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FORUM
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40
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8.15
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DISCLAIMER
REGARDING POWER OF ATTORNEY
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41
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8.16
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Non-Business
Days
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41
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8.17
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Integration
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41
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8.18
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Counterparts
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41
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8.19
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WAIVER
OF JURY TRIAL
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41
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-ii-
INDEX OF
SCHEDULES
|
Schedule
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Designation
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Description
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1.1
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Legal
Description of Morgantown Commons
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1.2
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Proposed
Locations of Outlots
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3.2
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Ownership
Structure
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3.8
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Litigation
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3.10a
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Existing
Permitted Encumbrances
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5.1
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Other
Indebtedness
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-iii-
THIS LOAN
AGREEMENT, dated as of October 8, 2008, is entered into by and between
MORGANTOWN MALL ASSOCIATES LIMITED PARTNERSHIP, an Ohio limited partnership (the
"Borrower"), and FIRST
COMMONWEALTH BANK (the "Bank").
RECITALS:
WHEREAS,
The Borrower has applied to the Bank for a loan in a principal amount not to
exceed the lesser of (i) $40,000,000.00, or (ii) the amount determined based on
a 75% Loan to Value Ratio (the "Loan"); and
WHEREAS,
the Borrower intends to use the proceeds from the Loan to refinance existing
debt associated with the facility known as the Morgantown Mall and located in
Xxxxxxxx Xxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxx Xxxxxxxx (the "Building" and together with
the Land (as hereafter defined), collectively, the "Property"); and
WHEREAS,
the Bank is willing to make the Loan upon the terms and conditions set forth in
this Agreement and the other Loan Documents.
NOW,
THEREFORE, in consideration of the foregoing recitals (each of which is
incorporated herein by reference) and the mutual promises contained herein and
other valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and with the intent to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE
1. DEFINITIONS AND OTHER CONVENTIONS
1.1 Defined
Terms. As used in this Agreement, the following terms shall
have the meanings set forth below or in the Section or Subsection of this
Agreement referred to, unless the context otherwise requires:
Affiliate: As
to any Person, any other Person which directly or indirectly through one or more
intermediaries Controls, is Controlled by, or is under common Control with, such
Person.
Agreement: This
Loan Agreement and all exhibits, schedules, extensions, renewals, amendments,
substitutions and replacements hereto and hereof.
Anchor
Tenants: Shall mean, collectively, Sears, Xxxxxxx & Co.,
X. X. Penney Company, Inc., The Xxxxx-Xxxxxxx Stores Corp., and Xxxx, Inc. and
each future replacement Tenant for any of the aforementioned.
Anti-Terrorism
Laws: Shall mean
any laws relating to terrorism or money laundering, including Executive Order
No. 13224, the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, the
laws comprising or implementing the Bank Secrecy Act, and the laws administered
by the United States Treasury Department's Office of Foreign Asset Control (as
any of the foregoing laws may from time to time be amended, renewed, extended,
or replaced).
Appraisal: A
USPAP appraisal of the Real Estate Collateral addressed to the Bank and
furnished by an independent appraiser satisfactory to the Bank.
Assignment
of Leases and Rents: The Assignment of Leases and Rents
executed by the Borrower in connection herewith, and all exhibits, schedules,
extensions, renewals, amendments, substitutions and replacements thereto and
thereof.
Assignment
of Management Agreement: The Assignment of Management
Agreement (which shall assign the Management Agreement to the Bank) executed by
the Borrower and the Property Manager in connection herewith, together with all
extensions, renewals, amendments, substitutions and replacements thereto and
thereof.
Bank: First
Commonwealth Bank, and its successors and assigns.
Bank's
Lien: The first and prior perfected liens and security
interests granted by the Borrower to the Bank pursuant to the Security
Documents.
Blocked
Person: Shall mean a Person that is listed in the annex to, or is
otherwise subject to the provisions of, Executive Order No. 13224; (2) a Person
owned or controlled by, or acting for or on behalf of, any Person that is listed
in the annex to, or is otherwise subject to the provisions of, Executive Order
No. 13224; (3) a Person with which any financial institution is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (4)
a Person that commits, threatens or conspires to commit or supports "terrorism"
as defined in Executive Order No. 13224; (5) a Person that is named as a
"specially designated national" on the most current list published by the U.S.
Treasury Department Office of Foreign Asset Control at its official website or
any replacement website or other replacement official publication of such list,
or (6) a Person who is affiliated or associated with any of the
foregoing.
Borrower: Shall
mean Morgantown Mall Associates Limited Partnership, an Ohio limited
partnership.
Building: This
term shall have the meaning given it in the preamble hereto.
Business
Day: A day other than a Saturday or a Sunday on which the Bank is open
for business at its main office in Indiana, Pennsylvania.
Change in
Ownership: Any event or series of events which results in any
change of ownership of any equity interests in Borrower. A change in
ownership does not include any change of ownership of any equity interests in
Guarantor.
-2-
Closing
Date: October 14, 2008, or such other date as is mutually
agreeable to the parties hereto.
Collateral: Collectively,
all of the Borrower's right, title and interest in and to all of the assets of
the Borrower described in the Security Documents.
Control: The
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, partnership interests, other equity interests,
by contract or otherwise, including the power to elect a majority of the
directors of a corporation or trustees of a trust, as the case may
be.
Debt
Service Coverage Ratio: The ratio of (i) the Borrower's Net
Operating Income for the twelve (12) calendar month
period immediately preceding the date of calculation, to
(ii) the Borrower's scheduled payments of principal and interest on its
Indebtedness for the
twelve (12) calendar month period immediately following such calculation,
all determined in accordance with GAAP consistently applied.
Deed of
Trust: The Deed of Trust and Security Agreement executed by
the Borrower in connection herewith, together with all extensions, renewals,
amendments, substitutions and replacements thereto and thereof covering the real
property and the improvements thereon commonly known as the Morgantown Mall
located in Westover Township, West Virginia.
Default: Any
condition, event, omission or act which with the giving of notice, the passage
of time or both would constitute an Event of Default.
Default
Rate: The rate of interest in effect during an Event of
Default, as described in the Note.
Dollars
or $: The legal tender of the United States of
America.
Eligible
Institution: Shall mean a federal or state chartered
depository
institution or trust company insured by the Federal Deposit
Insurance Corporation the short term unsecured
debt obligations or commercial paper of
which are rated at least A-1 by S&P, P-1
by Xxxxx'x and F-1+ by Fitch in the case of accounts in
which funds are held for thirty (30) days or less or, in the case
of Letters of Credit or accounts in which funds are held for more
than thirty (30) days, the long term unsecured debt obligations of which are
rated at least "AA" by Fitch and S&P and "Aa2" by Xxxxx'x.
-3-
Encumbrance: Any
security interest, mortgage, deed of trust, charge, pledge, hypothecation,
security assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, and the filing of any
financing statement under the Uniform Commercial Code), whether or not
voluntarily given.
Environmental
Indemnity Agreement: The Environmental Indemnity Agreement
executed by the Borrower and the Guarantor on or about the Closing Date in
connection herewith, and all extensions, renewals, amendments, substitutions and
replacements thereto and thereof.
Environmental
Law: This term shall have the meaning given it in the Environmental
Indemnity Agreement.
Event of
Default: Any of the events specified in Section 7.1.
Facility
Fee: The fees described in Section 2.1b.
Fiscal
Quarter: Each three-month fiscal period of a Loan Party
beginning respectively on each successive January 1, April 1, July 1, and
October 1 during the term hereof and ending on the immediately succeeding March
31, June 30, September 30, and December 31, respectively
..
Fiscal
Year: Each annual period of any Loan Party beginning January 1 and ending
December 31 during the term hereof.
GAAP:
Generally accepted accounting principles which are consistent with the
principles promulgated or adopted by the Financial Accounting Standards Board,
its predecessors and its successors, consistently applied.
General
Partner: Shall mean Glimcher Morgantown Mall, Inc., a Delaware
corporation.
Governmental
Approval: Any order, consent, authorization, right, license, validation,
approval or permit issued by a Governmental Authority required to be obtained by
the Borrower or issued by a Governmental Authority in connection with the
ownership, operation, maintenance, use, leasing, occupancy and management of the
Real Estate Collateral and all extensions, renewals, amendments, substitutions
and replacements thereto and thereof.
Governmental
Authority: The government of the United States or the government of any
state or locality therein, any political subdivision or any governmental,
quasi-governmental, judicial, public or statutory instrumentality, authority,
body or entity or other regulatory bureau, authority, body or entity of the
United States or any state or locality therein, including but not limited to any
environmental agency, zoning board, planning commission or any comparable
authority.
Governmental
Rule: Any present or future law, statute, rule, regulation, permit,
license, treaty, ordinance, order, writ, injunction, decree, judgment,
guideline, award, standard, directive, decision, code, or other legal
requirement of any Governmental Authority, and all amendments
thereto.
-4-
Guarantor: Shall
mean Glimcher Properties Limited Partnership, a Delaware limited
partnership.
Guaranty
Agreement: The Guaranty and Suretyship Agreement executed by
the Guarantor in connection herewith, together with all extensions, renewals,
amendments, substitutions and replacements thereto and thereof.
Improvements: Collectively,
any structure constructed on any portion of the Real Estate Collateral and all
additions, replacements, renovations, modifications, substitutions or other
improvements thereto or thereof at any time.
Indebtedness: Individually
and collectively, (i) all obligations and indebtedness for borrowed money, (ii)
all obligations evidenced by bonds, debentures, notes or similar instruments,
(iii) all obligations under conditional sale or other title retention
agreements, (iv) all obligations issued or assumed as the deferred purchase
price of property or services, (v) all capitalized lease obligations, (vi)
the face amount of all letters of credit, (vii) all obligations of others
secured by any Encumbrance on property or assets of the Borrower, whether or not
the obligations secured thereby have been assumed and (viii) all guarantees and
other obligations to guaranty, assume or remain liable for the payment of
another Person's obligations.
Indemnified
Person: Any of the Bank,
any entity controlling the Bank, their respective successors and assigns, and
any of their respective officers, directors, employees and agents.
Internal
Revenue Code: The Internal Revenue Code of 1986 or any
successor legislation thereto, and the rules and regulations issued or
promulgated thereunder, including any amendments to any of the
foregoing.
Inspecting
Engineer: Shall mean such Person as the Bank may designate
from time to time to inspect the condition of the Real Estate Collateral and
perform other services in connection with the Loan on behalf of the
Bank.
Land: The
land described in Exhibit "A" to the
Deed of Trust.
Lease: Any
lease or sublease for any portion of the Building, or any other agreement
creating a right to use any portion of the Real Estate Collateral entered into
from time to time, and all exhibits, schedules, extensions, renewals,
amendments, substitutions and replacements to and of any of the foregoing,
together, collectively the “Leases”.
Letter of
Credit: Shall mean an irrevocable, unconditional,
transferable, clean sight draft letter of credit reasonably acceptable to Bank
(either an evergreen letter of credit or one which does not expire
until at least thirty (30) Business Days after the Maturity Date) in favor of
Bank and entitling Bank to draw thereon, issued by a domestic
Eligible Institution or the U.S. agency or branch of a foreign Eligible
Institution. If at any time the institution issuing any
such Letter of Credit shall cease to be an Eligible Institution, Bank
shall have the right immediately to draw down the same in full and hold the
proceeds of such draw in accordance with the applicable provisions
hereof.
-5-
Loan: Shall
have the meaning set forth in the preamble hereto.
Loan
Account: The loan account referred to in Section 2.4.
Loan
Amount: The lesser of (i) $40,000,000, or (ii) the amount determined
based on a 75% Loan to Value Ratio.
Loan
Documents: Any of this Agreement, the Note, all Security
Documents, the Environmental Indemnity Agreement, any non-disturbance agreements
requested by the Bank from time to time, any written authorization to
transfer funds, and all other documents and instruments executed and delivered
from time to time by any Loan Party to govern, evidence, perform or secure the
Obligations, including any Rate Management Agreement entered into by and between
the Bank and the Borrower in connection with the Loan, and all extensions,
renewals, amendments, substitutions and replacements thereto and
thereof.
Loan
Party: The Borrower and Guarantor.
Loan
Parties: Shall mean collectively the Borrower and the
Guarantor.
Loan-to-Value
Ratio: The ratio of the
maximum amount of the Loan to the appraised value of the Property, as shown in
the Appraisal.
Lockbox
Account: The U.S. post office lockbox and related deposit
account established pursuant to Section 4.7(b)(ii) by the Borrower at the Bank
for deposit of all rental and other payments due to the Borrower in connection
with the operation and leasing of the Real Estate Collateral in accordance with
Section 4.7 hereof.
Lockbox
Agreement: The Lockbox Service Agreement executed by the
Borrower pursuant to Section 4.7(b)(ii), together with all extensions, renewals,
amendments, substitutions and replacements thereto and thereof.
Management
Agreement: The Management Agreement entered into by and among
the Borrower, the Property Manager and the Guarantor in effect as of the Closing
Date for the Real Estate Collateral.
Material
Adverse Change: Any set of circumstances or events which (i)
has or could reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of any of the Loan Documents,
(ii) is or could reasonably be expected to be material and adverse to the
business, properties, assets, financial condition, results of operations of the
Borrower, (iii) impairs materially or could reasonably be expected to impair
materially the ability of any Loan Party to duly and punctually pay or perform
the Obligations or any of their obligations pursuant to any Loan Documents to
which it is a party, or (iv) impairs materially or could reasonably
be expected to impair materially the ability of the Bank to enforce the Bank's
legal remedies pursuant to the Loan Documents.
-6-
Material
Adverse Effect: An effect that results in or causes or has a
reasonable likelihood of resulting in or causing a Material Adverse
Change.
Maturity
Date: October 13, 2011, or if such date is not a Business Day,
the next preceding Business Day, as the same may be extended pursuant to the
terms of Section 2.5.
Morgantown
Commons shall mean the Morgantown Commons retail complex, the legal
description for which is set forth in Schedule 1.1 hereto.
Net
Operating Income shall mean Operating
Income from the Real Estate Collateral less Operating Expenses for the Real
Estate Collateral.
Note: The
term note in the principal amount of $40,000,000 executed by the Borrower in
connection herewith and delivered to the Bank to evidence the Loan, together
with all extensions, renewals, amendments, substitutions and replacements
thereto and thereof.
Obligations: Collectively,
(i) all unpaid principal and accrued and unpaid interest (including interest
calculated at the Default Rate and interest accruing after the date of
commencement of any case or proceeding of the type described in Section 7.1c,
whether or not the Bank's claim for such interest is allowed in such case or
proceeding) under the Loan and the Note, (ii) all accrued and unpaid fees
hereunder or any of the other Loan Documents, (iii) any other amounts due
hereunder and under any of the other Loan Documents, including all
reimbursements, indemnities, fees, costs, expenses, prepayment premiums (if any)
and other obligations of the Borrower to the Bank or any Indemnified Person
hereunder or under any of the other Loan Documents, (iv) all reasonable
out-of-pocket costs and expenses incurred by the Bank in connection with this
Agreement and the other Loan Documents, including but not limited to the
reasonable fees and expenses of the Bank's counsel, and (v) any Rate Management
Obligations with the Bank.
Operating
Expenses shall mean the expenses
incurred by Borrower with respect to the ownership, operation, leasing and
occupancy of, or otherwise associated with, the Real Estate Collateral in the
normal course of business, determined in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis, including, but not
limited to, the following:
(a) personal
property and real estate taxes;
(b) sales
taxes or any tax on rents;
(c) payroll
taxes and employee benefits;
(d) costs
of utilities;
(e) maintenance,
repair and custodial costs;
(f) premiums
payable for insurance;
(g) office
supplies, other administrative expenses and professional fees;
-7-
(h) advertising
and marketing;
(i) telephone;
(j)
garbage;
(k) landscaping;
(l) an
allowance for income items which are determined to be
uncollectible;
(m) any
compensation or fees paid to managing agents under the Management Agreement;
and
(n) payments
made to the reserve account as required by the Deed of Trust.
Notwithstanding
anything contained herein, Operating Expenses shall not include:
(o) expenses
incurred in preparing space for occupancy by tenants;
(p) foreign,
U.S., state and local income taxes, franchise taxes or other taxes based on
income;
(q) depreciation,
amortization and any other non-cash deduction of Borrower for income tax
purposes;
(r) payments
of principal or interest on or fees or other charges related to any loan made to
Borrower, including, without limitation, the Loan;
(s) except
as set forth in the Management Agreement, any compensation or fees paid to
leasing agents, brokers or other third parties, whether or not affiliates of
Borrower;
(t) any
improvements of a capital nature (as determined in accordance with
generally-accepted accounting principles); and
(u) any
expenses paid out of any reserve account, as to which the deposit in such
reserve account has already been included within Operating
Expenses.
Operating
Income shall
mean all gross income, revenues and consideration of whatever nature, received
by or paid to or for the account or benefit of Borrower, whether received by
Borrower or any of its agents, or employees, or any affiliate of Borrower, its
agents or employees, from any and all sources, resulting from or attributable to
the ownership, operation, leasing and occupancy of the Real Estate Collateral,
determined in accordance with GAAP applied on a consistent basis, including, but
not limited to, any and all of the following:
(a) gross,
fixed, minimum, guaranteed, percentage and other additional rentals payable by
lessees, assignees or subtenants under any Leases and all other tenants or
occupants of the Real Estate Collateral (collectively, the "Leases") under any
Leases and occupancy agreements, and all amendments, extensions and renewals
thereof, covering any portion of the Real Estate Collateral;
(b) amounts
payable by Lessees on account of maintenance or service charges, taxes,
assessments, utilities, air conditioning and heating, and other administrative,
management, operating, leasing and maintenance expenses for the Real Estate
Collateral;
(c) late
charges and interest payable on rentals;
(d) rents
and receipts from licenses, concessions, vending machines and similar
items;
(e) other
fees, charges or payments not denominated as rental but payable in connection
with the rental or other occupancy of space in the Real Estate
Collateral;
(f) payments
made as consideration in whole or in part for the cancellation, modification,
extension or renewal of Leases; and
(g) proceeds
of any rental or business interruption insurance.
-8-
Outlots: Those portions of
the Real Estate Collateral identified on Schedule 1.2
hereto.
Permitted
Encumbrance: Any of the following:
(i) As
of the Closing Date:
(A) the
Bank's Lien;
(B) Matters
shown on Schedule B to the Title Policy which have been determined by the Bank
to be acceptable; and
(C) Matters
shown on Schedule
3.10a hereto.
(D) Matters
set forth in that certain Declaration of Access, Sanitary Sewer, Storm Water and
Sign Easements executed and recorded by the Borrower contemporaneously
herewith.
(ii) After
the Closing Date:
(A) The
matters listed in item (i) above;
(B) Liens
on any of the Collateral for taxes, assessments, governmental charges or levies
(other than taxes, assessments, governmental charges or levies that are pursuant
to any Environmental Law or those which are at the time due and payable) if they
can thereafter be paid without penalty or are being contested in good faith by
appropriate actions or proceedings diligently conducted, with respect to which
the Borrower has set aside adequate reserves in accordance with GAAP, and which
do not at any time exceed an aggregate Dollar amount of
$150,000.00;
(C) Pledges
or deposits to secure payment of workers' compensation obligations, unemployment
and other insurance, deposits or indemnities to secure public or statutory
obligations or for similar purposes, and deposits or indemnities relating to
utilities and otherwise customary in connection with the business of the
Borrower;
(D) Any
liens arising out of a judgment or award against the Borrower, as to which
enforcement has been stayed and the Borrower is prosecuting an appeal or
proceeding for review in good faith by appropriate actions or proceedings
diligently conducted and with respect to which the Borrower has, in the judgment
of the Bank, created adequate reserves or has adequate insurance protection;
provided; however, that at no
time may the aggregate Dollar amount of such judgment liens exceed
$250,000.00;
(E) Security
interests in favor of lessors of personal property, which property is the
subject of a true lease between such lessor and the Borrower;
(F) Purchase
money security interests in equipment, in personal property added to and affixed
to the Building and vehicles;
(G) A
junior lien on the Collateral in favor of the Bank as security for other loans
made by the Bank to the Borrower from time to time, and liens on assets and
properties of the Borrower (other than the Collateral) in favor of the Bank to
secure other Indebtedness owed by the Borrower to the Bank; and
(H) Other
Encumbrances to which the Bank has given its prior written consent;
-9-
provided, however, that no
Encumbrance described in items (ii) (B) through (G), inclusive, above shall be
permitted to exist if in the Bank's reasonable judgment such Encumbrance has a
Material Adverse Effect on, or threatens to have a Material Adverse Effect on,
the Bank's Lien or the value of the Real Estate Collateral.
Person: Any
individual, partnership, corporation, trust, joint venture, unincorporated
organization, limited liability company, Governmental Authority or other
entity.
Property: This
term shall have the meaning given it in the second recital to this
Agreement.
Property
Manager: Glimcher Development Corporation or any successor
property and leasing manager for the Property.
Property
Restriction: Any right-of-way, easement, deed restriction or
other restriction, whether contractual or otherwise, relating to or affecting
the ownership, operation or leasing of the Real Estate Collateral (other than
Permitted Encumbrances).
Rate
Management Agreement: Any agreement, device or arrangement
which is related to the Property, providing for payments which are related to
fluctuations of interest rates, exchange rates, forward rates, or equity prices,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants, and any agreement pertaining to equity derivative
transactions (e.g., equity or equity index swaps, options, caps, floors, collars
and forwards), including without limitation any ISDA Master Agreement between
Borrower and Bank, and any schedules, confirmations and documents and other
confirming evidence between the parties confirming transactions thereunder, all
whether now existing or hereafter arising, and in each case as amended, modified
or supplemented from time to time.
Rate
Management Obligations: Any and all obligations of Borrower to
Bank or any affiliate of the Bank, whether absolute, contingent or otherwise and
howsoever and whensoever (whether now or hereafter) created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and
substitutions therefore), under or in connection with (i) any and all Rate
Management Agreements, and (ii) any and all cancellations, buy-backs, reversals,
terminations or assignments of any Rate Management Agreement.
Rent
Roll: All leases on
Property's rent roll that are not cancelable by the Borrower on 30 days or less
notice.
Real
Estate Collateral: All of the Building, the Land, all
Improvements thereon, and all other property located on or affixed to such
Land.
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Roof
Replacement Escrow Account: The interest bearing deposit
account maintained with the Bank and funded by the Borrower in accordance with
Section 4.11 hereof.
Security
Agreement: The Security Agreement and Collateral Assignment
executed by the Borrower in connection herewith, together with all extensions,
renewals, amendments, substitutions and replacements thereto and
thereof.
Security
Document: Any of (i) the Deed of Trust, (ii) the Assignment of
Leases and Rents, (iii) the Security Agreement, (iv) all additional documents
and instruments entered into from time to time for the purpose of securing the
Obligations, (v) any and all ancillary documents and instruments relating to any
of the foregoing, such as Uniform Commercial Code financing statements, and (vi)
all extensions, renewals, amendments, substitutions and replacements to and of
any of the foregoing.
Settlement
Statement: The settlement statement prepared on the Closing
Date by Lawyers Title Insurance Company in connection with the refinance by the
Borrower of existing Indebtedness relating to the Real Estate
Collateral.
SNDA/Estoppel: Any
Non-Disturbance, Attornment, Estoppel and Subordination Agreement executed by a
tenant of the Building for the benefit of the Bank pursuant to which the tenant
certifies to the Bank the accuracy of certain information relating to such
tenant's Lease for the Building and confirms the subordination of such lease to
the lien of the Deed of Trust, which must be satisfactory to the
Bank.
Survey:
The ALTA/ACSM Land
Title Survey of the Land prepared by Freelance Technical Associates and reviewed
in connection with the Loan.
Tax and
Insurance Escrow Account: The interest bearing deposit account, if any,
maintained with the Bank and funded by the Borrower in accordance with Section
4.7a hereof, and the Deed of Trust.
Title
Policy: The title insurance policy issued by Lawyers Title
Insurance Company, meeting the requirements of Section 6.2b(v)
hereof.
UCC or
Uniform Commercial Code: The Uniform Commercial Code as
enacted in the Commonwealth of Pennsylvania, in effect on the Closing Date and
as amended from time to time.
1.2 Rules of
Construction. In this Agreement and the other Loan Documents
(except as otherwise expressly provided or unless the context otherwise
requires) (i) terms defined in the singular shall have comparable meanings when
used in the plural, and vice versa, (ii) any pronoun used shall be deemed to
cover all genders, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall refer to this Agreement or such other Loan Document as a
whole and not to any particular provision of this Agreement or such other Loan
Document, (iv) all references to particular Articles, Sections, items, clauses,
exhibits and schedules are references to the Articles, Sections, items, exhibits
and schedules of and to this Agreement or such other Loan Document, (v) all
references to any Person shall include such Person's heirs, executors,
administrators, successors and assigns, (vi) any references to any Governmental
Rule shall be deemed to be a reference to such Governmental Rule as it may have
been or may be amended, supplemented or replaced from time to time, (vii) all
references to any Loan Document or any other agreement, contract or instrument
shall be deemed to include references to any amendments, supplements,
extensions, waivers, modifications and replacements thereto and thereof, (viii)
the word "including" shall mean "including without limitation," (ix) accounting
terms not defined shall have the meanings given them under GAAP, and (x)
Article, Section and other headings used in this Agreement and the other Loan
Documents are intended for convenience only and shall not affect the meaning or
construction of this Agreement or such other Loan Document.
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ARTICLE
2. THE LOAN
2.1 The
Loan.
2.1a Loan to
Borrower. The Bank agrees, subject
to the terms and conditions hereof and relying on the representations and
warranties herein set forth, to advance an amount not to exceed the Loan Amount
on the Closing Date. The Borrower shall execute and deliver to the Bank on the
Closing Date a Note in the amount of $40,000,000.00 in form and substance
satisfactory to the Bank to evidence the indebtedness under the
Loan.
2.1b Commitment
Fee. On the Closing Date, the Borrower shall pay to the Bank a
Facility Fee in an amount equal to $400,000, or the portion of such fee not
previously paid to the Bank. The Facility Fee shall be fully earned
when paid and shall be nonrefundable, regardless of the amount of the Loan
advanced or any subsequent prepayment of the Loan.
2.2 Payments
and Prepayments.
2.2a Payments
of Principal and Interest. Payments of principal and interest
hereunder shall be calculated and made in accordance with the Note.
2.2b Prepayments. Upon two (2)
Business Days' prior written notice to Bank, the Borrower may prepay amounts
owing under the Note at any time and from time to time. Such
prepayment notice shall specify the amount of the prepayment which is to be
applied. In the event of prepayment, in addition to any payments on
early termination due in connection with any applicable Rate Management
Agreement entered into in connection with the Loan, the Borrower may be required
to pay Bank an additional fee ("Prepayment Charge"),
determined in the manner provided in Section 2.2c below, to compensate the Bank
for all losses, costs, and expenses incurred in connection with such
prepayment.
2.2c Prepayment
Charge. The Borrower
agrees to indemnify the Bank against any liabilities, losses or expenses
(including, without limitation, any loss or expense sustained or incurred in
liquidating or employing deposits from third parties, and any loss or expense
incurred in connection with funds acquired to effect, fund or maintain any
amounts hereunder (or any part thereof) bearing interest based on LIBOR) which
the Bank sustains or incurs as a consequence of either (i) the Borrower’s
failure to make a payment on the due date thereof, or (ii) the Borrower’s
payment or prepayment (whether voluntary, after acceleration of the maturity of
this Note or otherwise) or conversion of any amounts bearing interest based on
LIBOR on a day other than the regularly scheduled due date
therefor. A notice as to any amounts payable pursuant to this
paragraph, the
Prepayment Charge, given to the Borrower by the Bank shall, in the absence of
manifest error, be conclusive and shall be payable upon demand. The Borrower’s
indemnification obligations hereunder shall survive the payment in full of all
amounts payable hereunder.
Partial
prepayments may be made subject to a prepayment charge based upon the same
calculation methodology described above. Any partial prepayment shall
be applied to installments of principal in the inverse order of maturity and
shall not postpone the due dates of, or relieve the amount of, any scheduled
installment payments due hereunder.
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2.3 Method of
Payments. All payments of principal, interest, fees, costs and
other amounts due hereunder and under the other Loan Documents shall be made by
the Borrower to the Bank at the Bank's main office at Philadelphia and Xxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, or at such other address as is provided by
the Bank to the Borrower, not later than 3:00 p.m. (Eastern time) on the due
date.
2.4 Loan
Account. The Bank shall open and maintain on its books a Loan
Account in the Borrower's name with respect to disbursements made, repayments,
prepayments, the computation and payment of interest, the Facility Fee, any
other fees and other amounts due and sums paid to the Bank hereunder and under
the other Loan Documents. Such Loan Account shall be conclusive and
binding on the Borrower as to the amount at any time due to the Bank from the
Borrower except in the case of manifest error in computation.
2.5 Extension
Period. At the request of the Borrower, the Maturity Date
hereunder may be extended twice, each time for a period of twelve (12) months
(each, an "Extension
Period") provided the Borrower provides the Bank written notice of its
intention to seek each Extension Period at least ninety (90) days and no more
than one hundred eighty (180) days prior to the then current Maturity
Date. Any such extension shall be specifically conditioned upon the
satisfaction of the following, each as of the date of a request (each an "Extension Request Date") as
well as the then applicable Maturity Date:
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(i)
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No
Event of Default has occurred and is continuing under the Loan
Documents;
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(ii)
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The
Borrower is in compliance with the Debt Service Coverage Ratio covenant in
Section 4.13;
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(iii)
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The
Borrower has paid to the Bank an extension fee of one-quarter of one
percent (0.25%) of the principal amount outstanding under the Loan at the
time of the extension;
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(iv)
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The
requirement that the Borrower provide a Letter of Credit or maintain the
Lockbox Account under the terms of Section 4.7b is not currently in effect
unless
(i) the Borrower has furnished the Letter of Credit required thereunder,
(which Letter of Credit shall be released by the Bank upon satisfaction of
the following condition), or (ii) the amount on deposit in the Replacement
Escrow Account (as set forth in Section 4.7(b)(ii)) is at least
$1,500,000.00; and
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(v)
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Other
than Permitted Encumbrances, no other Encumbrance exists upon the Real
Estate Collateral, as evidenced by a title insurance bring-down search and
a lien and judgment search.
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-13-
In the
event that the above conditions are not met on or before the Extension Request
Date, the Loan shall be due and payable in full on the Maturity Date, including
all accrued and unpaid interest on the Loan, fees and expenses due to the Bank,
and all other outstanding Obligations.
2.6 Yield
Protection; Changes in Law. If any Law or the
interpretation or application thereof by any Governmental Authority charged with
the administration thereof or the compliance with any guideline or request from
any central bank or other Governmental Authority, whether or not having the
force of law: (i) subjects the Bank to any tax, levy,
impost, charge, fee, duty, deduction or withholding of any kind hereunder (other
than any tax imposed or based upon the income of the Bank and payable to any
Governmental Authority or taxing authority of the United States of America or
any state thereof) or changes the basis of taxation of the Bank with respect to
payments by the Borrower of principal, interest or other amounts due from the
Borrower hereunder (other than any change which affects, and only to the extent
that it affects, the taxation by the United States or any state thereof of the
total net income of the Bank); or (ii) imposes, modifies or deems
applicable any reserve, special deposit or similar requirements against assets
held by, deposits with or for the account of or credit extended by the Bank; or
(iii) imposes upon the Bank any other obligation or condition with respect to
this Agreement, and the result of any of the foregoing is to increase the cost
to the Bank, reduce the income receivable by the Bank or impose any expenses
upon the Bank with respect to the Loans by an amount which the Bank reasonably
deems material, then and in any such case, the Bank shall from time to time
notify the Borrower of the amount determined by the Bank (which determination,
absent manifest error, shall be conclusive) to be reasonably necessary to
compensate the Bank (on an after-tax basis) for such increase in cost, reduction
in income, reduction in rate of return or additional expenses, setting forth the
calculations therefor, and the Borrower shall pay such amount to the Bank, as
additional consideration hereunder, within ten (10) Business Days of the
Borrower's receipt of such notice.
2.7 Capital
Adequacy. If: (i) any
adoption of or any change in or in the interpretation of any Law, (ii)
compliance with any Law of any Governmental Authority exercising control over
banks or financial institutions generally or any court (whether or not having
the force of law), or (iii) any change in the force or effectiveness of the
regulations set forth at 12 C.F.R. Part 3 (Appendix A), 12 C.F.R. Part 208
(Appendix A), 12 C.F.R. Part 225 (Appendix A) or 12 C.F.R. Part 325 (Appendix A)
affects or would affect the amount of capital required or expected to be
maintained by the Bank (a "Capital Adequacy Event"), and the result of such
Capital Adequacy Event is to reduce the rate of return on the Bank's capital as
a consequence thereof to a level below that which the Bank could have achieved
but for such Capital Adequacy Event, taking into consideration the Bank's
policies with respect to capital adequacy, by an amount which the Bank deems to
be material, the Bank shall deliver to the Borrower a statement of the amount
necessary to compensate the Bank for the reduction in the rate of return on its
capital attributable to the Loans and the commitment hereunder (the "Capital
Compensation Amount"). The Bank shall determine the Capital
Compensation Amount in good faith, using reasonable attribution and averaging
methods. Such amount shall be due and payable by the Borrower to the
Bank ten (10) Business Days after such notice is given by the Bank.
The above
Sections 2.6 and 2.7 shall only be effective as to the Borrower and this Loan if
they (or substantially similar provisions) are being applied by the Bank in a
generally uniform manner and are not particular to the Borrower
hereunder. Nothing in these two Sections is intended to otherwise
restrict or limit the Borrower's ability to prepay the Loan or impose any
prepayment penalty in connection therewith.
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ARTICLE
3. REPRESENTATIONS AND WARRANTIES
To induce
the Bank to enter into the Loan Documents and to make the Loan, the Borrower
makes the following representations and warranties to the Bank:
3.1 Existence. The
Borrower is a limited partnership duly organized and validly existing under the
laws of the State of Ohio. The Borrower is duly qualified or licensed
and in good standing in the State of Ohio and in each jurisdiction where the
nature of its activities or the ownership of its properties makes such
qualification or licensing necessary.
3.2 Equity
Ownership. An organization
chart accurately depicting the ownership and management structure of the
Borrower is attached to this Agreement as Schedule
3.2.
3.3 Power and
Authority. The Borrower has the full and lawful power and
authority to, and is duly authorized to, (i) enter into, execute, deliver and
perform in accordance with the terms of the Loan Documents to which it is a
party, (ii) to incur the Obligations and perform all of its obligations under
the Loan Documents to which it is a party, (iii) acquire, own, lease, encumber,
occupy and manage its properties, including the Real Estate Collateral, and (iv)
engage in the business it now conducts or proposes to conduct. All
necessary action required to authorize the execution, delivery and performance
of the Loan Documents to which the Borrower is a party and the incurrence of the
Obligations has been properly taken by the Borrower.
3.4 Validity
and Binding Effect. The Loan Documents to which the Borrower
is a party have been duly executed and delivered by the Borrower, and constitute
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the enforcement of creditors' rights generally and except as such
enforceability may be limited by the availability of equitable
remedies.
3.5 No
Conflict or Violation. Neither the execution and delivery of
the Loan Documents to which the Borrower is a party, nor the incurrence of the
Obligations, the consummation of the transactions contemplated by the Loan
Documents or compliance with the terms and provisions of the Loan Documents will
conflict with, constitute a default under or result in any breach of (i) the
terms and conditions of the Borrower's limited partnership certificate,
agreement of limited partnership or other organizational, formation documents,
(ii) any Governmental Rule, Governmental Approval or Property Restriction, or
(iii) any indenture, mortgage, deed of trust, franchise, contract, permit,
agreement, instrument, order, writ, judgment, injunction or decree to which the
Borrower is a party or by which it is bound or is subject, or will result in the
creation or enforcement of any Encumbrance whatsoever upon any of the Borrower's
properties, including the Collateral, whether now owned or hereafter acquired,
except for Permitted Encumbrances, nor are there any defaults or violations by
the Borrower of or under any of the foregoing.
-15-
3.6 Liabilities. The
Borrower has no material liabilities, whether direct or indirect, fixed or
contingent, or any liabilities for taxes (other than those incurred in the
ordinary course of business and not past due), long-term leases or unusual
forward or long-term commitments, which in each case have not been disclosed to
the Bank in writing.
3.7 Material
Adverse Change; Events of Default; Violations. Since [January 31, 2008], there has been no Material
Adverse Change and there have been no events or developments that individually
or in the aggregate have had a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing and no condition exists or will
exist after giving effect to the Loan which constitutes a Default or an Event of
Default.
3.8 Litigation. There
are no actions, suits, proceedings or investigations, at law or in equity,
before any Governmental Authority, court or arbitrator, pending or, to the best
of the Borrower's knowledge, threatened (i) against or with respect to the
Borrower, the General Partner, or the Real Estate Collateral, and
(ii) which purport to affect the rights and remedies of the Bank pursuant
to the Loan Documents or which purport to restrain or enjoin (either
temporarily, preliminarily or permanently) the performance by any Loan Party of
any action contemplated by any of the Loan Documents. All pending,
or, to the Borrower's knowledge, threatened, litigation that is not adequately
covered by liability insurance, is listed in Schedule
3.8.
3.9 Compliance
with Laws. The Borrower, a third party, or a predecessor in
interest of the Borrower, has duly complied with, and the Real Estate
Collateral, business operations and leaseholds are in compliance in all material
respects with the provisions of all Governmental Rules, Governmental Approvals
and Property Restrictions applicable to the Borrower and its properties
(including the Real Estate Collateral) and the conduct of its
businesses.
3.10 Matters
Relating to the Collateral.
3.10a Title. The
Borrower owns good and indefeasible fee simple title to the
Collateral. As of the effective date hereof, none of the Collateral
is subject to any Encumbrance, except for Permitted Encumbrances, including
those listed on Schedule
3.10a. The Borrower has received all deeds, assignments,
waivers, consents, non-disturbance and recognition or similar agreements, bills
of sale and other documents and instruments, have been granted all easements and
rights-of-way, and have duly effected all recordings, filings and other actions
necessary to establish, protect and perfect the Borrower's right, title and
interest in and to all of the Collateral.
-16-
3.10b No
Options, Etc. Except for Leases
of the Property in the ordinary course of business, the Borrower is not
obligated under or a party to any option, right of first refusal or other
contractual obligation to sell, assign, lease or dispose of any of the Property
or the Collateral.
3.10c Condemnation
Proceedings. The Borrower has not received any notice of and
has no knowledge of any pending, or threatened in writing condemnation
proceeding affecting the Real Estate Collateral or any part
thereof.
3.10d Casualty
Loss. No portion of the Property has suffered any material
damage by fire or other casualty loss except for those (i) of which the Borrower
has given the Bank notice and (ii) as to which the Property has been completely
repaired and restored to its original condition.
3.10e Use of
Property. The present and anticipated use of the
Property complies with all applicable zoning ordinances, regulations and
restrictive covenants affecting the Land, and all other Governmental Rules,
Governmental Approvals and Property Restrictions with respect to such current
and anticipated use have been satisfied.
3.10f Utilities
and Municipal Services. All utility and municipal services
necessary for the construction, operation and leasing of the Building and the
Improvements and the use and operation thereof for their present and intended
purpose are available at the Property, including water, sanitary and storm
sewer, electric, gas and telephone facilities, and shall, by the Completion
Date, be installed and operating. All such utilities enter the Land
through adjoining public streets or, if any pass through adjoining private
lands, they do so in accordance with valid easements. The Land has
direct, unfettered access to sewer rights-of-way.
3.10g Streets
and Access. All streets and rights-of-way necessary for the
full utilization of the Property for its intended purpose have been completed or
shall be completed by the Completion Date.
3.10h Subdivision;
Development. The Land is a separately subdivided parcel or
parcels in accordance with all Governmental Rules and Governmental Approvals
regulating subdivision and land development. The development of the
Land has been completed in accordance with all requirements of all applicable
Governmental Authorities having jurisdiction to regulate or control subdivision
and/or development.
3.10i Flood
Area. Except as shown on the Survey, none of the Improvements
is in an "area of special flood hazard", as defined in the Flood Insurance Act
of 1968.
3.10j Governmental
Rules; Governmental Approvals. The development, construction
and/or renovation of the Building and Improvements and the present and intended
use, leasing and occupancy of the Building and Improvements will comply with all
applicable Governmental Rules and restrictive covenants and all Governmental
Approvals.
-17-
3.10k Bank's
Lien. The Bank's Lien in the Collateral will be, after the
recordation of all Security Documents in the appropriate filing offices, a first
priority perfected lien upon the Collateral, subject only to Permitted
Encumbrances.
3.10l Information. The
Borrower has delivered to the Bank, a true and correct copy of, all Governmental
Approvals, the Management Agreement, and any certificates, consents, amendments,
extensions, waivers and other documents in connection with any of the
foregoing. There are no other agreements or contracts affecting or
relating to the use, management, leasing or construction of the
Property. All surveys, plot plans and similar documents furnished by
the Borrower to the Bank in connection with the Property are, to the best of the
Borrower's knowledge, accurate and complete in all material respects as of their
respective dates.
3.10m Tax
Returns and Payments. The Borrower has filed all Federal,
state, local and other tax returns required by law to be filed. The
Borrower has paid all taxes, assessments and other governmental charges levied
upon the Borrower or any of its properties, assets, income or franchises which
are due and payable, other than (i) those presently payable without penalty or
interest, (ii) those which are being contested in good faith by appropriate
proceedings and (iii) those which, if not paid, would not, in the aggregate,
have a Material Adverse Effect; and as to each of items (i), (ii) and (iii), the
Borrower has set aside on its books reserves for such claim as are determined to
be adequate by application of GAAP consistently applied. The charges,
accruals, and reserves on the books of the Borrower in respect of Federal, state
and local taxes for all fiscal periods to date are adequate, and the Borrower
does not know of any unpaid assessments for additional Federal, state, local or
other taxes for any such fiscal period or any basis therefor. Except as set
forth in the Title Insurance Policy, there are no pending or, to the Borrower's
knowledge, proposed, special or other assessments for public improvements or
otherwise affecting the Property, nor are there any contemplated Improvements to
the Property that may result in such special or other assessments.
3.10n Use of
Property. The Property is and will be used only as a for-rent,
office and retail complex and for other appurtenant and related
uses.
3.10o Physical
Condition. Except as
disclosed in any physical conditions reports delivered to the Bank in connection
with the Loan, the Property, including all Buildings, Improvements, parking
facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC
systems, fire protection systems, electrical systems, equipment, elevators,
exterior sidings and doors, landscaping, irrigation systems and all structural
components, are in good working condition, order and repair in all material
respects; there exists no structural or other material defects or damages in any
of the Property, whether latent or otherwise, and the Borrower has not received
notice from any insurance or bonding company of any defects or inadequacies in
any of the Property or any part thereof, that would adversely affect the
insurability of the same or cause the imposition of extraordinary premiums or
charges thereon or of any termination or threatened termination of any policy of
insurance or bond.
3.10p Boundaries. All of the
Improvements which were included in determining the appraised value of the
Property lie wholly within the boundaries and building restriction lines of each
such individual portion of the Property, and no Improvements on adjoining
properties encroach upon any such individual portion of the Property, and no
Encumbrances or Property Restrictions upon any individual portion of the
Property encroach upon any of the Improvements, so as to affect the value or
marketability of the applicable individual portion of the Property, except for
those which are insured against under the Title Policy.
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3.10q Survey. To the Borrower's
knowledge, the Survey or Surveys of the Property delivered to the Bank in
connection with this Agreement do not fail to reflect any material survey matter
affecting the Property or title thereto.
3.11 Insurance. The
Borrower currently maintains insurance which meets or exceeds the requirements
of Section 4.8 hereof and the applicable insurance requirements set forth in the
other Loan Documents, and such insurance is provided by reputable and
financially sound insurers and is of such types and at least in such amounts as
are customarily carried by, and insures against such risks as are customarily
insured against by similar businesses similarly situated and owning, leasing and
operating similar properties to those owned, leased and operated by the
Borrower. All of such insurance policies are valid and in full force
and effect. No notice has been given or claim made and no grounds
exist to cancel or avoid any of such policies or to reduce the coverage provided
thereby.
3.12 Consents
and Approvals. Except for the filing of the Security Documents
with the appropriate filing office, no order, authorization, consent, license,
validation or approval of, or notice to, filing, recording, or registration with
any Governmental Authority, or the exemption by any such Governmental Authority,
is required to authorize, or is required in connection with, (i) the execution,
delivery and performance of any of the Loan Documents or (ii) the legality,
binding effect or enforceability of any of the Loan Documents.
3.13 Federal
Reserve Regulations. No part of the
proceeds of the Loan will be used for the purpose of purchasing or acquiring any
"margin stock" within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System or for any other purpose which would be inconsistent
with such Regulation U or any other regulations of such Board of Governors, or
for any purposes prohibited by Governmental Rules or by the terms and conditions
of this Agreement or any other Loan Document.
3.14 Investment
Company Act; Other Regulations. The Borrower is
not an "investment company", within the meaning of, or that is required to
register under, the Investment Company Act of 1940, as amended, nor is the
Borrower a company "controlled" by an "investment company" under such act, as
amended.
3.15 Assets of
the Borrower. The Borrower owns
no material assets other than the Real Estate Collateral, the Morgantown Commons
and personal property related thereto.
3.16 Violations
of Anti-Terrorism Laws. The Borrower is
not in violation of any Anti-Terrorism Law and the Borrower has not engaged in
or conspired to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law.
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3.17 Blocked
Persons. To the knowledge
of the Borrower, the proceeds from the Loan will not benefit a Blocked
Person.
3.18 Full
Disclosure. No Loan Document and no other document,
certificate or statement furnished to the Bank by or on behalf of the Borrower
pursuant to this Agreement contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances under which they
were made, not misleading. There is no fact known to the Borrower
which materially and adversely affects the business, property, assets, financial
condition, results of operations or prospects of the Borrower or the Real Estate
Collateral which has not been set forth in the Loan Documents, or any other
documents, certificates and statements (financial or otherwise) furnished to the
Bank by or on behalf of the Borrower prior to or on the date hereof in
connection with the transactions contemplated hereby.
ARTICLE
4. AFFIRMATIVE COVENANTS
From the
date hereof and thereafter until the Loan and all other Obligations of the
Borrower hereunder are paid in full the Borrower agrees, for the benefit of the
Bank, that it will comply with each of the following covenants:
4.1 Use of
Proceeds. The Borrower shall use proceeds of the Loan only to
refinance existing Indebtedness associated with the Real Estate Collateral and
costs incurred in connection with the closing of the Loan, all as shown on the
Settlement Statement.
4.2 Delivery
of Financial Statements and Other Information. The Borrower
shall deliver or cause to be delivered to the Bank the following financial
statements and other information:
4.2a Annual
Reports and Tax Returns. As soon as available and in any event
(i) within 120 days after the end of each Fiscal Year of the Borrower, a balance
sheet as of the end of such Fiscal Year and the related statements of
operations and cash flows, prepared in accordance with GAAP and setting forth in
each case in comparative form the figures for the previous Fiscal Year, all
presenting fairly the financial condition of the Borrower, in such reasonable
detail as the Bank may request from time to time, and which, commencing with the
statement for the fiscal year ending December 31, 2009 and thereafter, shall be
prepared and audited on an unqualified basis by a certified public accounting
firm reasonably acceptable to the Bank; and (ii) within 15 days after filing, a
copy of the Borrower's federal income tax return and all schedules
thereto.
4.2b Annual
Rent Rolls. As
soon as available and in any event within 120 days after the end of each Fiscal
Year of the Borrower, the Borrower shall deliver to the Bank current rent rolls
for the Building.
4.2c Other
Reports, Information and Notices. The Borrower will deliver to
the Bank, within the time periods set forth below, the following other reports,
information and notices:
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(i) Notice of
Defaults and Material Adverse Changes. Promptly
after the Borrower has learned of the occurrence or existence of a Default,
Event of Default, an event or set of circumstances which has had or which in the
reasonable judgment of the Borrower may result in a Material Adverse Effect, or
a Material Adverse Change, telephonic notice thereof specifying the details
thereof, the anticipated effect thereof and the action which the Borrower or the
affected Person has taken, is taking or proposes to take with respect thereto,
which notice shall be promptly confirmed in writing within ten (10) days by the
Borrower if such Event of Default has not been cured before said ten (10) days
period.
(ii) Notice of
Litigation. (A) Promptly after the commencement
thereof, written notice of any action, suit, proceeding or investigation before
any Governmental Authority, court or arbitrator affecting the Real Estate
Collateral or any Loan Party, which, if adversely determined, would reasonably
be expected to result in a Material Adverse Change, and (B) promptly after the
Borrower has notice thereof, written notice of any decision, ruling, judgment,
appeal or reversal in connection with any such action, suit, proceeding or
investigation.
(iii) Notice of
Casualty Loss or Condemnation. Reasonably promptly, upon the
occurrence thereof or the receipt by the Borrower of notice thereof, written
notice of any material casualty loss affecting any of the Collateral or any
condemnation proceedings affecting any of the Real Estate
Collateral.
4.2f Additional
Information; Inspection. The Borrower shall deliver or cause
to be delivered to the Bank such additional financial statements, reports,
financial projections, notices and other information, whether or not financial
in nature, with respect to the Real Estate Collateral and the Borrower as the
Bank may reasonably request from time to time upon reasonable notice. The
Borrower will permit the Bank and the Bank's designated employees, agents and
representatives after reasonable notice from the Bank to the Borrower, (i) to
have access, at any time and from time to time, during normal business hours to
visit and inspect the Real Estate Collateral, (ii) to examine, audit and make
copies of any of the Borrower's books of record and books, records and
accounting data and other documents of the Borrower, relating to the Real Estate
Collateral, and the Loan, and at any time and from time to time, during normal
business hours, to such reports and returns as the Borrower may file with any
Governmental Authority, and (iii) to discuss the Borrower's affairs and accounts
and the Real Estate Collateral with, and be advised about them by, the Borrower,
and its officers and Property Manager.
4.3 Preservation
of Existence; Qualification. At its own cost and expense, the
Borrower will and will cause the General Partner to do all things necessary to
preserve and keep in full force and effect its qualifications under the laws of
the State of West Virginia, the state of its formation and each state where, due
to the nature of its activities or the ownership of its properties,
qualification to do business is required and where the failure to be so
qualified would reasonably be expected to have a Material Adverse
Effect.
4.4 Compliance
with Laws, Property Restrictions, Contracts and Leases. The
Borrower shall comply in all material respects with all applicable Governmental
Rules, any Anti-Terrorism Law and Property Restrictions and the terms and
conditions of all Governmental Approvals, with respect to the Building and its
use, occupancy, operation and rental. The Borrower shall comply with
each material contract and agreement to which the Borrower is a party and which
relates to the Real Estate Collateral, including but not limited to all Leases
and other agreements for the use of the Building.
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4.5 Accounting
System; Books and Records. The Borrower shall maintain a
system of accounting established and administered in accordance with GAAP
consistently applied and will set aside on its books all such proper reserves as
shall be required by GAAP. Further, the Borrower will maintain proper
books of record and account in accordance with GAAP in which full, true and
correct entries shall be made of all of its properties, assets, dealings and
business affairs.
4.6 Payment
of Taxes and Other Liabilities. The Borrower shall promptly
pay and discharge all liabilities to which it is subject or which are asserted
against it, including but not limited to all taxes, assessments and governmental
charges and levies upon it or upon any of its income, profits, or properties,
including but not limited to the Real Estate Collateral, prior to the date on
which penalties attach thereto; provided, however, that for
purposes of this Agreement, the Borrower shall not be required to pay any tax,
assessment, charge or levy (i) the payment of which is being contested in good
faith by appropriate and lawful proceedings diligently conducted and (ii) as to
which the Borrower shall have set aside on its books reserves for such claim as
are determined to be adequate by the application of GAAP, but only to the extent
that failure to discharge any such liabilities would not result in any
additional liability which would have a Material Adverse Effect; and provided, further, that the
Borrower shall promptly pay all such contested liabilities if the failure to do
so would result in an Encumbrance on any of the Collateral which is not a
Permitted Encumbrance. The Borrower shall promptly deliver to the
Bank satisfactory evidence of the payment of real estate taxes and assessments
relating to the Real Estate Collateral.
4.7 Establishment
of Certain Accounts:
4.7a Tax and
Insurance Escrow Account. After the occurrence of an Event of
Default, the Borrower shall establish, fund and maintain a Tax and Insurance
Escrow Account with the Bank. At such time, the Borrower shall
deposit into the Tax and Insurance Escrow Account an amount which is sufficient
to pay all real estate taxes and assessments and insurance premiums for the Real
Estate Collateral for one year. The Borrower shall pay all such real
estate taxes and assessments and insurance premiums, and shall promptly deliver
to the Bank evidence of payment. Upon receipt of satisfactory
evidence of payment, the Bank shall reimburse the Borrower for such payments out
of funds in the Tax and Insurance Escrow Account. In addition to the
initial funding of the Tax and Insurance Escrow Account, the Borrower shall
deposit into such account monthly, no later than the tenth (10th) day of each
month, beginning, as to each real estate tax, assessment or insurance premium,
the first month following the occurrence of such Event of Default during which
such tax, assessment or premium is actually due to be paid, an amount equal to
one-twelfth of the estimated total of such real estate tax, assessment or
insurance premium, as the case may be, for one year.
4.7b Lockbox
Account; Substitute Collateral. At any time during the term
hereof, in the event that any one of the Anchor Tenants provides notice that
they will not be renewing their lease upon the expiration of the current term
thereof (each, a "Termination
Notice"), the Borrower shall, at its option, either:
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(i) Letter of
Credit: prior to the date the applicable Anchor Tenant ceases
occupancy of the relevant premises, deliver to Bank an acceptable Letter of
Credit in the amount of $1,500,000 which the Bank shall hold as additional
Collateral until such time as a satisfactory replacement Tenant (a "Replacement Anchor") has
occupied the demised premises under a new Lease reasonably satisfactory to the
Bank (a "Replacement Anchor
Lease") and begun paying rent thereunder, at which time the Letter of
Credit shall be released by the Bank and returned to the Tenant, or
(ii) Lockbox
Account: promptly after receiving the Termination
Notice, establish with the Bank pursuant to the Lockbox Agreement the Lockbox
Account, in the name of Borrower with Bank as custodian, into which proceeds and
collections of amounts due under the Leases shall be deposited from time to time
in accordance with the terms of this Agreement. After the
establishment of the Lockbox Account:
(A) The
Borrower agrees to promptly direct all Tenants to make all rental and other
payments to the Lockbox Account designated by Bank, or as otherwise directed by
Bank pursuant to the terms of the Lockbox Agreement. If the Bank
learns that the Borrower has failed to give such notice or direction to the
Tenants, then the Bank may itself so notify or direct the
Tenants. This Agreement shall be sufficient evidence of such right
and the Tenants may rely hereon and shall be under no obligation to see to the
application of such moneys or other property by the Bank. The Bank
is, and its duly authorized agents are hereby authorized by the Borrower to
endorse for and on the Borrower's behalf and deposit all drafts and checks
payable to the Borrower in the Lockbox Account.
(B) All
checks, drafts, acceptances, notes, cash and other forms of payment received
from the Tenants in payment on the Leases and transmitted to the Lockbox
Account, or otherwise to the Bank will be promptly deposited in the Lockbox
Account. The Borrower acknowledges and agrees that the Lockbox
Account will be maintained for the convenience and benefit of the Bank
consistent within the terms of this agreement and the Lockbox
Agreement.
(C) In
the event Borrower (or any of its affiliates, owners, directors, officers,
employees or agents) shall receive any cash, checks, notes, drafts or similar
items of payment relating to the Leases (or proceeds thereof), then no later
than the fifth Business Day following receipt thereof, Borrower shall deposit or
cause the same to be deposited in kind in the Lockbox Account. All
cash, notes, checks, drafts or similar items of payment by or for the account of
Borrower shall be the sole and exclusive property of Bank immediately upon the
earlier of the receipt of such items by Bank or the receipt of such items by
Borrower; provided, however, that for the purpose of computing interest
hereunder such items shall be deemed to have been collected and shall be applied
by Bank on account of the Obligations two (2) Business Days after receipt by
Bank (subject to correction for any items subsequently dishonored for any reason
whatsoever). Notwithstanding anything to the contrary herein, all
such items of payment shall, solely for purposes of determining the occurrence
of an Event of Default, be deemed received upon actual receipt by the Bank,
unless the same are subsequently dishonored for any reason
whatsoever.
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(D) Throughout
the term of this Agreement, the Bank shall be a pledgee in possession of the
funds deposited in the Lockbox Account and shall have the sole and exclusive
right to endorse any check, security or other instrument presented for deposit
in the Lockbox Account and to withdraw or order a transfer from the Lockbox
Account, and the Borrower hereby appoints the Bank the true and lawful attorney
of the Borrower, with full power of substitution, for the purpose of such
endorsement or making any such withdrawal or ordering any such transfer from the
Lockbox Account, which appointment is coupled with an interest and is
irrevocable. The Bank shall have no obligation to withdraw any
amounts from the Lockbox Account unless such amounts represent good and
collected funds.
(E) So
long as no Event of Default has occurred and is continuing, and provided that
neither the Lockbox Account nor any funds deposited therein are then subject to
any writ, order, judgment, warrant of attachment, execution or similar process,
on each Business Day all amounts deposited in the Lockbox Account during the
term of this Agreement shall be withdrawn or transferred by the Bank to be
applied to the following items in the following order:
(a) funds
sufficient to pay standard ongoing operating costs related to the operation and
maintenance (excluding capital improvements) shall be funded into the Borrower's
operating accounts as directed by Borrower;
(b) an
amount up to $1,500,000 in the aggregate shall be delivered to the Bank to be
held in a separate account (the "Replacement Escrow Account")
to be used for the payment or reimbursement of costs incurred by the Borrower in
connection with the Replacement Anchor Lease including leasing commissions,
tenant improvement costs, and other costs as approved by the Bank in its
reasonable discretion. Such funds may be drawn by the Borrower
monthly as costs are incurred subject to receipt by the Bank of reasonable
supporting documentation, and in the event such costs relate to construction of
tenant improvements, compliance with Bank's standard construction draw
procedures;
(c) any
funds collected in the Lockbox Account in excess of the amount of $1,500,000.00
shall be deposited into a demand deposit account of the Borrower at the
Bank.
(d) at
such time as the Replacement Anchor has occupied the demised premises under the
applicable Replacement Anchor Lease and begun paying rent thereunder, any
amounts remaining in the Replacement Escrow Account shall be released by Bank
and funded into the Borrower's operating accounts as directed by
Borrower.
Upon the
occurrence and during the continuance of any Event of Default, the Bank may draw
on the Letter of Credit or appropriate and apply the funds deposited in the
Lockbox Account then, or at any time thereafter, either (i) to the payment in
full of all outstanding Obligations in accordance with the terms of this
Agreement or (ii) to pay for any tenant improvement costs incurred in connection
with any Replacement Anchor Lease, which the Borrower has failed to pay for
within five (5) Business Days of notice thereof.
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4.8 Insurance. The
Borrower shall maintain at all times, and provide the Bank with any evidence or
information as may be requested by the Bank from time to time with respect to,
adequate insurance to the satisfaction of the Bank with financially sound and
reputable insurers acceptable to the Bank, against (i) such risks of loss as are
customarily insured against and in amounts customarily carried by Persons
owning, leasing or operating properties similar to the Real Estate Collateral,
including, but not limited to, fire, theft and extended coverage insurance in an
amount at least equal to the full and total replacement cost of the Building
(including boiler coverage, if the Real Estate Collateral has a boiler), (ii)
loss of income from the Borrower's operation of the Building for the period for
which such income is lost for the Building (but not over twelve (12) months),
(iii) liability insurance covering injury and damage to persons and property in
amounts reasonably satisfactory to the Bank, (iv) flood insurance, if any part
of the Land is located in an "area of special flood hazard", as defined in the
Flood Insurance Act of 1968, in an amount equal to the full and total
replacement cost of the Real Estate Collateral, and (v) such other insurance as
Bank may reasonably request from time to time that is generally available at
commercially reasonable rates, all of the foregoing to be acceptable to the Bank
at all times during the term hereof. All such insurance shall name
the Bank as the loss payee of such insurance and shall have a long form
mortgagee and lender's loss payable endorsement in favor of the Bank, providing
that such coverage cannot be affected by the acts or omissions of the Borrower,
and providing for at least thirty (30) days' written notice to the Bank prior to
cancellation and, in this regard, the Borrower shall cause a copy of each policy
and an original "Evidence of Insurance" (XXXXX Form 27) as to property
insurance, and an original "Certificate of Insurance" as to liability insurance,
to be delivered to the Bank prior to the Bank making the Loan to the Borrower
under this Agreement and no later than thirty (30) days prior to the expiration
of any such insurance coverage. The Borrower shall also be adequately
insured at all times to comply with the insurance provisions of all applicable
workers' compensation and similar laws and will effect all such insurance under
valid and enforceable policies with insurers satisfactory to the
Bank.
4.9 Maintenance
of Collateral. The Borrower shall, at its own expense,
maintain, preserve, protect and keep the Building and the other Collateral in
good repair, working order and condition (ordinary wear and tear excepted), and
make all necessary and proper repairs, renewals and replacements so that the
Collateral shall at all times be in good condition and fit and proper for the
respective purposes for which it was originally intended, erected or installed,
its business carried on in connection therewith may be properly and
advantageously conducted at all times.
4.10 Indemnification. The
Borrower shall indemnify and hold each Indemnified Person harmless from and
against all liabilities, claims, damages, costs and expenses (including but not
limited to the reasonable legal fees and disbursements of the Bank's counsel,
and the costs of investigation, all both at trial and on appeal) in any actions
or proceedings now or hereafter pending or threatened against the Bank arising
out of, resulting from, or in any manner relating to the transactions described
in the Loan Documents and any action taken by the Bank which were reasonably
believed by the Bank to be taken pursuant to the Loan Documents, including
without limitation, any violations of any Governmental Approvals, Governmental
Rules, Property Restrictions, except to the extent the same are caused by the
gross negligence or willful misconduct of the Bank. Immediately upon
demand by the Bank, the Borrower shall defend any such action or proceeding
brought against any Indemnified Person, or the Indemnified Person may elect to
conduct its own defense at the expense of the Borrower. The
provisions of this Section 4.10 shall survive the termination of this Agreement
and the repayment of the Obligations.
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4.11 Roof
Replacement Escrow Account. As of the Closing
Date, the Borrower shall establish, fund and maintain a separate escrow account
(the "Roof Replacement Escrow
Account") with the Bank. At such time, the Borrower shall
deposit into the Roof Replacement Escrow Account One Million Dollars
($1,000,000.00) to pay for the replacement or repair of portions of the roof of
the Property based on the recommendations of the Bank's Inspecting
Engineer. Said escrow funds will be disbursed periodically as work is
completed, upon proof of payment and satisfactory inspection of such replacement
or repair work.
4.12 Further
Assurances; Power of Attorney. At any time and from time to
time, upon the Bank's reasonable request, the Borrower shall make, execute and
deliver, and shall cause any other Person to make, execute and deliver, to the
Bank, and where appropriate shall cause to be recorded or filed, and from time
to time thereafter to be re-recorded and refiled at such time and in such
offices and places as shall be deemed desirable by the Bank in its reasonable
discretion, any and all such further security documents, certificates and other
documents and instruments as the Bank may consider necessary or desirable in its
reasonable discretion in order to effectuate, complete, perfect, continue or
preserve the Obligations of the Borrower hereunder or under the other Loan
Documents and the Encumbrances created thereby. The Borrower hereby
appoints the Bank, and any of its officers, directors, employees and authorized
agents, at any time, with full power of substitution, upon any failure by the
Borrower to take or cause to be taken any action described in the preceding
sentence, to make, execute, record, file, re-record or refile any and each such
security document, instrument, certificate and document for and in the name of
the Borrower. The power of attorney granted pursuant to this Section
4.12 is coupled with an interest and shall be irrevocable until all of the
Obligations are paid in full and the Bank has no further obligation to make
advances hereunder.
4.13 Debt
Service Coverage Ratio. The Borrower shall maintain a Debt
Service Coverage Ratio of at least 1.40 to 1.0 at all times during the term of
the Loan, to be calculated at the end of each Fiscal Quarter of the Borrower,
assuming principal and interest payments in an amount which would, at the
currently applicable interest rate set forth in the Note, (giving effect to any
applicable Rate Management Agreement) amortize over a period of twenty-five (25)
years the then outstanding principal under the Note. As soon as
available, but in any event within thirty (30) days after each Fiscal Quarter
end, the Borrower shall deliver to the Bank a certificate, executed by a senior
officer, containing calculations in sufficient detail to demonstrate compliance
with the Debt Service Coverage Ratio requirement as of such Fiscal Quarter
End.
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ARTICLE
5. NEGATIVE COVENANTS
From the
date hereof and thereafter until the Loan and all other Obligations of the
Borrower hereunder are paid in full, the Borrower agrees, for the benefit of the
Bank, that it will comply with each of the following covenants:
5.1 Indebtedness. The
Borrower shall not create, incur, assume or permit to exist or remain
outstanding any Indebtedness except for (i) the Obligations, (ii) other
Indebtedness owed by the Borrower to the Bank from time to time, and (iii)
Indebtedness secured by personal property being leased by the Borrower and by
purchase money security interests in equipment, personal property affixed to or
being added to the Building and vehicles.
5.2 Encumbrances. The
Borrower shall not create, assume, incur or suffer to exist any Encumbrance upon
the Real Estate Collateral or any of the other Collateral except for Permitted
Encumbrances.
5.3 Liquidations,
Mergers, Consolidations, Acquisitions, Sales of Interests. The
Borrower shall not dissolve, liquidate its assets in whole or in part or wind up
its affairs, or become a party to any merger or consolidation, or acquire by
purchase, lease or otherwise all or substantially all of the assets, capital
stock or other equity interests of any other Person.
5.4 Organizational
Matters. The Borrower shall not change its name or change its
form or state of organization without giving the Bank sixty (60) days' prior
written notice thereof, or (ii) amend its limited partnership agreement or
limited partnership certificate.
5.5 Dispositions
of Assets. The Borrower shall not sell, convey, assign, lease,
abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any
interest in the Real Estate Collateral or any of the other Collateral, except
for:
(i)
Leases of the Building in the ordinary course of business subject to the
provisions of Section 5.12;
(ii) sales,
transfers, leases or dispositions of furniture, fixtures and equipment in the
ordinary course of business assets which are no longer necessary or required for
the operation of the Building in compliance with the Loan Documents;
and
(iii) sales,
transfers, leases or dispositions of furniture, fixtures and equipment in the
ordinary course of business which are replaced by substitute assets acquired or
leased by the Borrower; provided, however, that such
substitute assets shall be subject to Bank's Lien; and
(iv) the
sale, transfer, lease, or other disposition the Morgantown Commons, the Outlots
and personal property related thereto; which the Bank hereby prospectively
consents to, and agrees to execute any releases required in connectin therewith;
and
(v) Permitted
Exceptions.
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5.6 Use of
Real Estate Collateral. The Borrower shall not use the Real
Estate Collateral for any purpose or in any manner which is in any way
inconsistent with or contrary to the use of the Real Estate Collateral as
contemplated by and as set forth in any of the Loan Documents or inconsistent
with or contrary to any Property Restriction, Governmental Approval or
Governmental Rule.
5.7 Change of
Business. The Borrower shall not engage in any business other
than the ownership, operation, leasing and maintenance of the Real Estate
Collateral and the adjoining facility commonly known as Morgantown Commons, and
activities incidental thereto.
5.8 Lease
Amendments . The
Borrower shall not, without the prior written consent of the Bank, enter into
any amendment to any Lease demising more than 10,000 square feet of leaseable
area in the Real Estate Collateral, which has any of the following
effects: (i) a decrease in the term of the Lease, (ii) a material
reduction in the square footage of the demised premises under such Lease, (iii)
a material decrease in the consideration (including base rent, additional rent,
etc.) paid by the Tenant under such Lease.
5.9 Publicity. The
Borrower shall not erect any sign upon the Real Estate Collateral or engage in
any other publicity regarding the financing provided by the Bank without the
Bank's prior written approval.
5.10 Ownership
or Acquisition of Assets. The Borrower shall not acquire or
own any material assets other than the Real Estate Collateral and Morgantown
Commons and such incidental personal property related thereto as may be
necessary for the operation of such properties.
5.11 Distributions. Borrower may make
dividend payments and distribution payments so long as no Event of Default has
occurred and is continuing under the Loan Documents or would occur as a result
of such payments; and, at the time of the proposed dividend or distribution, the
requirement that the Borrower provide a Letter of Credit or maintain the
Lockbox Account under the terms of Section 4.7b is not currently in effect unless (i) the
Borrower has furnished the Letter of Credit required thereunder, (which Letter
of Credit shall be released by the Bank upon satisfaction of the following
condition), or (ii) the amount on deposit in the Replacement Escrow Account (as
set forth in Section 4.7(b)(ii)) is at least $1,500,000.00.
5.12 Lease of
Building. The Borrower
shall not Lease any portion of the Building unless (i) the Lease is
substantially in a form previously approved by the Bank and contains provisions
satisfactory to the Bank that the Lease is subordinate to the Loan and that the
Tenant will attorn to Bank or a purchaser as landlord in the event of
foreclosure on the Loan, and (ii) if the proposed Lease is for a space in excess
of 10,000 square feet, the Bank, in its commercially reasonable discretion
approves of the tenant and the substantive terms of the Lease. If the
Bank fails to respond within ten (10) days after receipt of a request from
Borrower for approval of any Lease, said Lease shall be deemed approved by
Bank.
-28-
5.13 Affiliate
Transactions. The Borrower
shall not enter into, or be a party to, any transaction with an Affiliate of
Borrower except in the ordinary course of business and on terms which are fully
disclosed to the Bank in advance and which terms are no less favorable to
Borrower than would be obtained in a comparable third-party transaction
negotiated at arm's-length.
ARTICLE
6. CONDITIONS PRECEDENT
6.1 Conditions
to the Loan. The obligation of the Bank to make the Loan is
subject to the satisfaction of each of the conditions precedent set forth in
this Article 6.
6.1a No
Default or Event of Default, Etc. The
Borrower and the other Loan Parties shall have performed and complied with all
agreements and conditions required in the Loan Documents to be performed or
complied with prior to making the disbursement and, at the time of making the
disbursement, or as a result of making the disbursement, no Default or Event of
Default has occurred and is continuing or will be caused by the making of the
disbursement.
6.1b No
Material Adverse Change. At the time of making the
disbursement, no Material Adverse Change has occurred and is continuing with
respect to any Loan Party, and no circumstances exist which would reasonably be
expected to cause a Material Adverse Effect.
6.1c Representations
Correct. The representations and warranties contained in
Article 3 hereof and otherwise made in writing by or on behalf of the Borrower
or any other Loan Party in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be (i) correct when made and (ii)
correct in all material respects at the time of making the
disbursement.
6.1d Leases. The Borrower
shall have delivered to the Bank (i) copies of all Leases for the Building or
any portion thereof then in effect, (ii) satisfactory estoppel letters for
Tenants occupying, in the aggregate, at least 75% of the grosss/leasable square
footage of the Building, and (iii) an SNDA/Estoppel executed by the Borrower and
each Tenant of the Building occupying in excess of 10,000 square
feet.
6.1e Participations. The Bank shall
have entered into satisfactory participation agreements selling participations
in the Loan in the aggregate amount of $25,000,000.
6.1f Other
Conditions to Disbursements. All other
applicable conditions to making disbursements set forth in this Article 6 shall
have been satisfied.
6.2 Conditions
to Making First Disbursement. In addition to satisfaction of
each of the conditions precedent set forth in Section 6.1, the obligation of the
Bank to execute the Loan Documents and make the first disbursement hereunder is
subject to the satisfaction of each of the following conditions
precedent:
6.2a Loan
Documents. The Bank shall have received each of the following
Loan Documents, each duly executed by all of the parties thereto and each in
form and substance satisfactory to the Bank:
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|
(i)
|
this
Agreement;
|
|
(ii)
|
the
Note;
|
|
(iii)
|
the
Deed of Trust;
|
|
(iv)
|
the
Assignment of Leases and Rents;
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|
(v)
|
the
Security Agreement;
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|
(vi)
|
the
Environmental Indemnity Agreement;
|
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(vii)
|
a
Guaranty Agreement executed by the Guarantor;
and
|
|
(viii)
|
all
schedules to any of the Loan Documents, prepared by the Borrower and
satisfactory to the Bank.
|
6.2b Other
Conditions. The Bank shall have received each of the following
or shall have otherwise determined that each of the following conditions has
been satisfied, each duly executed by all of the parties thereto or issuers
thereof and each in form and substance satisfactory to the Bank in all
respects:
(i)
Insurance. Copies
of the Borrower's insurance policy or policies, certificates and other evidence
of insurance required by Section 4.8, containing long-form lender loss payable
endorsements satisfactory to the Bank and which in all other respects comply
with the requirements of Section 4.8 and the insurance requirements set forth in
the other Loan Documents and current evidence of insurance for all such
policies.
(ii)
Flood
Insurance. If any of the Real Estate Collateral is in an area
of special flood hazard, evidence of satisfactory flood insurance.
(iii)
Environmental
Matters. A phase I environmental assessment of the Real Estate
Collateral, prepared by a firm satisfactory to the Bank, and a determination by
the Bank that the environmental condition of the Real Estate Collateral, as well
as any other environmental considerations affecting the Real Estate Collateral,
are acceptable to it.
(iv)
Appraisal. The
Appraisal, showing that the fair market value of the Building is at least
$53,333,333.34 on an "as-is" basis, and the Loan-to-Value Ratio does not exceed
75%.
(v)
Title
Insurance. A marked-up title insurance commitment issued by a
title insurance company satisfactory to the Bank, which title insurance company
will, on the Closing Date, issue an ALTA 1992 (or equivalent) loan policy of
title insurance to the Bank insuring the Deed of Trust in the principal sum
secured thereby as a first and prior lien upon the Borrower's fee simple title
to the Real Estate Collateral and all appurtenances thereto (including such
easements and appurtenances as may be required by the Bank), and subject only to
Permitted Encumbrances and such other exceptions as may be approved in writing
by the Bank, and containing such endorsements (including without limitation the
100, 300 and 710 endorsements) and affirmative coverage as are reasonably
required by the Bank.
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(vi)
Survey. The
Survey, which shall be certified to the Bank and to the title insurance company
issuing the title insurance policy.
(vii)
Legal
Description. A metes and bounds legal description of the Land,
compatible with the survey of the Real Estate Collateral described in the
preceding item 6.5f.
(viii) Lien,
Judgment and UCC-1 Searches. Satisfactory lien, judgment and
UCC-1 financing statement search results for the Borrower.
(ix)
Termination
Statements, Etc. Any and
all Uniform Commercial Code termination statements, mortgage satisfactions and
other documents and instruments of termination and release which are necessary
so that the Bank's Lien is a first and prior lien and security interest, subject
only to Permitted Encumbrances.
(x)
Governmental
Approvals; Compliance with Governmental Rules. (i) Evidence of
the satisfactory subdivision of the Land and the zoning for the Real Estate
Collateral; (ii) evidence of access to and from the Real Estate Collateral by
means of easements benefiting the Real Estate Collateral; (iii) evidence that
all Governmental Rules, Governmental Approvals and Property Restrictions
relating to the Real Estate Collateral have been complied with and that the
present use of the Real Estate Collateral will not violate any Governmental
Rule, Governmental Approval or Property Restriction.
(xi) Condition
of Property. No portion of the Real Estate Collateral shall
have been damaged by fire or any other casualty and not repaired to the
condition immediately prior to such casualty, and no condemnation or taking of
the Real Estate Collateral, or any portion thereof, shall be pending or
threatened. Bank shall have received a satisfactory property
condition report from the Inspecting Engineer.
(xii) Borrower's
Corporate Documents. A certificate,
completed and signed by an authorized officer of the General Partner or other
appropriate representative, and having attached thereto the following documents
for the Borrower, which shall be certified as true and complete:
(A) A
copy of Borrower's Limited Partnership Agreement;
(B) A
good standing certificate issued by the Secretary of State of West Virginia
dated not more than thirty (30) days prior to the date hereof; and
(C) A
good standing certificate issued by the Secretary of State of Ohio dated not
more than thirty (30) days prior to the date hereof; and
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(D) A
certified copy of its limited partnership certificate, certified as true,
complete, correct and in effect by the Secretary of State of Ohio and dated not
more than sixty (60) days prior to the date hereof;
(E) An
incumbency certificate containing the names of the Person or Persons authorized
to execute and deliver the Loan Documents on behalf of the
Borrower.
(xiv) General
Partner Corporate Documents. A certificate,
completed and signed by the General Partner's secretary or assistant secretary,
and having attached thereto the following documents for the General
Partner:
(A) A
certified copy of its articles of incorporation, certified as true, complete,
correct and in effect by the Delaware Secretary of State and dated no more than
sixty (60) days prior to the date hereof;
(B) A
copy of its by-laws and all amendments thereto;
(C) A
good standing certificate issued by the Delaware Secretary of State dated no
more than thirty (30) days prior to the date hereof;
(D) Resolutions
of its Board of Directors authorizing the Borrower to incur the obligations and
execute, deliver and perform the Loan Documents; and
(E) An
incumbency certificate certified by its secretary or assistant
secretary.
(xv) Settlement
Statement. Receipt by the Bank of a copy of the executed
Settlement Statement.
(xvi) Opinion
of Counsel. Receipt by the Bank of an opinion or opinions of
counsel to the Borrower and Guarantor in form and substance reasonably
satisfactory to the Bank and its Counsel.
(xvii) Payment
of Facility Fee and Other Amounts. The Borrower shall have
paid to the Bank the portion of the Facility Fee not previously paid, and shall
have paid any other costs, fees and expenses owed to the Bank on the Closing
Date, including, but not limited, to those fees incurred in connection with the
appraisal and any environmental investigations.
(xviii) Legal
Fees. Receipt by the Bank's counsel, Xxxxxx Xxxxxxxxx, P.C.,
of the legal fees and all expenses incurred by it in connection with the
preparation and negotiation of the Loan Documents and the
closing.
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(xix) Debt
Service Coverage Ratio. Receipt by the Bank of a certificate
signed by an officer of the Borrower evidencing compliance with the Debt Service
Coverage Ratio covenant set forth in Section 4.13.
ARTICLE
7. EVENTS OF DEFAULT; REMEDIES
7.1 Events of
Default. Each of the following events shall constitute an
Event of Default:
7.1a Nonpayment
of Obligations. The Borrower shall default in (i) any payment
of principal of the Loan when due, or in the payment of interest on the Loan
when due and such default in payment shall have continued for a period of three
(3) days after the due date; or (ii) any payment of any of the fees, costs,
expenses, indemnities or other amounts due hereunder or under any of the other
Loan Documents when due and such default in payment shall have continued for a
period of five (5) Business Days after the Borrower's receipt of the Bank's
written notice of such default.
7.1b Nonpayment
of Other Indebtedness. The Borrower shall default in any
payment of principal, interest or other amounts due with respect to any other
Indebtedness (other than the Obligations owed to the Bank hereunder) having an
outstanding balance of $250,000 or more owed by the Borrower to any one Person,
including the Bank, if such default results in the acceleration of such
Indebtedness or gives the holder of such Indebtedness the right to accelerate
such Indebtedness.
7.1c Insolvency,
Etc.
(i) Involuntary
Proceedings. A proceeding shall have been instituted in a
court having jurisdiction seeking a decree or order for relief in respect of any
Loan Party in an involuntary case under the Federal bankruptcy laws, or any
other similar applicable Federal or state law, now or hereafter in effect, or
for the appointment of a receiver, liquidator, trustee, sequestrator or similar
official or Governmental Authority for such Loan Party or for a substantial part
of its property, or for the winding up or liquidation of its affairs, and such
proceeding shall remain undismissed or unstayed and in effect for a period of
sixty (60) days.
(ii) Voluntary
Proceedings. Any Loan Party shall institute proceedings to be adjudicated
a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking reorganization
under the Federal bankruptcy laws, or any other similar applicable Federal or
state law now or hereinafter in effect, or shall consent or acquiesce to the
filing of any such petition, or shall consent to or acquiesce in the appointment
of a receiver, liquidator, trustee, sequestrator or similar official or
Governmental Authority for such Loan Party or for a substantial part of its
property, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
action shall be taken by such Loan Party in furtherance of any of the
foregoing.
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7.1d Dissolution;
Cessation of Business. Any Loan Party shall dissolve,
liquidate its assets, terminate its existence, cease to exist or permanently
cease operations.
7.1e Change of
Ownership. The occurrence of a Change of
Ownership.
7.1f Failure
to Comply with Loan Documents. The occurrence of any of the
following: (i) the Borrower shall default in the due performance or
observance of any covenant, condition or provision set forth in this Agreement
which is not set forth elsewhere in this Section 7.1; or (ii) any Event of
Default, as defined in any other Loan Document, shall occur; or (iii) any Event
of Default, as defined in any other agreement or instrument at any time relating
to or evidencing Indebtedness owed by the Borrower to the Bank shall occur; or
(iv) the Borrower or any other Loan Party shall default in the due performance
of any covenant, condition or provision set forth in any other Loan Documents to
which such Loan Party is a party, and such default described in this Subsection
7.1f shall not be remedied for a period of thirty (30) days after notice of such
default being delivered by the Bank to the Borrower.
7.1g Misrepresentation. Any
representation or warranty made by any Loan Party in any Loan Document to which
it is a party is untrue in any material respect as of the date made, or any
schedule, statement, report, notice, certificate or other writing furnished by
any Loan Party to the Bank is untrue in any material respect on the date as of
which the facts set forth therein are stated or certified.
7.1h Termination,
Invalidity, Etc. of Loan Documents. Any material provision of
this Agreement or any of the other Loan Documents shall at any time for any
reason cease to be valid and binding on any Loan Party or any other Person which
is a party thereto, or shall be declared to be null and void, or the validity or
enforceability thereof shall be contested by any Loan Party or other Person
which is a party thereto, or any Governmental Authority, court or
arbitrator, or any Loan Party or any other Person which is a party to any of
such agreements shall, or shall purport to, terminate, repudiate, declare
voidable or void or otherwise contest any Loan Document to which he or it is a
party or any obligation of any Loan Party under any of the Loan
Documents.
7.1i Material
Adverse Change. The occurrence of any Material Adverse Change
with respect to any Loan Party or the Real Estate Collateral.
7.1j Adverse
Judgments. Any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is in excess
of $250,000 shall be rendered against the Borrower or the Property, or there
shall be any attachment, injunction or execution against any such Person or the
Property which is in excess of $250,000, and such judgment, attachment,
execution or order shall remain unpaid, unstayed, undismissed or unappealed for
a period of thirty (30) days, provided, however, if the
Borrower delivers a surety bond in form and substance satisfactory to the Bank
in the amount of such judgment, attachment or execution, no Event of Default
shall arise hereunder.
7.1k Collateral. A
writ or warrant of attachment, garnishment, execution, distraint or similar
process shall have been issued against the Borrower or any of the Collateral
which shall have become final and non-appealable or remain undischarged and
unstayed for a period of thirty (30) days, or a creditor of the Borrower shall
obtain possession of any of the Collateral by levy, distraint, replevin,
self-help or other means of exercising their rights as such a
creditor.
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7.1l Bank's
Lien. The Bank's Lien in any of the Collateral is or becomes
unperfected or no longer constitutes a first priority perfected lien or security
interest in any of such Collateral, subject only to Permitted
Encumbrances.
7.1m Rate
Management Agreements. Nonpayment by
Borrower of any Rate Management Obligation or the breach by Borrower of any
term, provision or condition contained in any Rate Management Agreement which is
not remedied prior to the expiration of any applicable cure, grace or notice
period.
7.2 Remedies.
7.2a Events of
Default Under Section 7.1c or 7.1d. Upon the occurrence of an
Event of Default set forth in Sections 7.1c or 7.1d, the Loan, the Note,
interest accrued thereon and all other Obligations of the Borrower to the Bank
shall become immediately due and payable, without the necessity of demand,
presentation, protest, notice of dishonor or notice of default, all of which are
hereby expressly waived by the Borrower.
7.2b Remaining
Events of Default. Upon the occurrence and during the
continuance of any Event of Default (other than those described in Sections 7.1c
and 7.1d) the Bank may, at its option, declare the Loan, the Note , interest
accrued thereon and all other Obligations of the Borrower to the Bank to be due
and payable, (but such declaration shall not include the obligation to unwind
any Rate Management Obligations) without the necessity of demand,
presentation, protest, notice of dishonor or notice of default, all of
which are hereby expressly waived by the Borrower.
7.2c Additional
Remedies. In addition to the remedies set forth above, upon
the occurrence and during the continuance of any Event of Default, the Bank
shall have all of the rights and remedies granted to it under this Agreement and
the other Loan Documents and all other rights and remedies granted by law to
creditors.
7.2d Exercise
of Remedies; Remedies Cumulative. No delay on the part of the
Bank or failure by the Bank to exercise any power, right or remedy under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any power, right or remedy or any
abandonment or discontinuance of steps to enforce such right, power or
remedy preclude other or further exercises thereof, or the exercise of any other
power, right or remedy. The rights and remedies in this Agreement and
the other Loan Documents are cumulative and not exclusive of any rights or
remedies (including, without limitation, the right of specific performance)
which the Bank would otherwise have.
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ARTICLE
8. GENERAL PROVISIONS
8.1 Amendments
and Waivers. The Bank and the Loan Parties may from time to
time enter into written amendments, extensions, supplements and replacements to
and of this Agreement and the other Loan Documents to which they are parties,
and the Bank may from time to time waive compliance with a provision of any of
such documents. No amendment, extension, supplement, replacement or
waiver shall be effective unless it is in writing and is signed by the Bank and
the affected Loan Party. All waivers shall be effective only for the
specific instance and for the specific purpose for which it is
given.
8.2 Taxes. The
Borrower shall pay any and all stamp, document, transfer and recording taxes,
filing fees and similar impositions payable or hereafter determined by the Bank
to be payable in connection with this Agreement, the other Loan Documents and
any other documents, instruments and transactions pursuant to or in connection
with any of the Loan Documents. The Borrower agrees to save the Bank
harmless from and against any and all present and future claims or liabilities
with respect to, or resulting from, any delay in paying or failure to pay any
such taxes or similar impositions. The obligations of the Borrower
pursuant to this Section 8.2 shall survive the termination of this Agreement and
the repayment of the Obligations.
8.3 Expenses
and Fees. The Borrower shall pay to the Bank or reimburse the
Bank for the following costs, expenses and fees in addition to any other costs,
expenses and fees required to be paid by the Borrower pursuant to any of the
Loan Documents, whether or not the Loan is funded:
(i) All
reasonable costs and expenses of the Bank (including without limitation the
reasonable fees and all disbursements of the Bank's counsel) actually incurred
in connection with:
(A) the
preparation, negotiation, execution and delivery of the Loan Documents
(including without limitation the reasonable fees and disbursements of the
Bank's counsel) and any and all other documents and instruments prepared in
connection herewith, including but not limited to all amendments, modifications,
waivers, consents, forbearances and other documents and instruments prepared or
entered into from time to time, including after the Closing Date;
(B) the
satisfaction of all of the conditions precedent to the Bank's making the Loan,
as set forth in Article 6; and
(C) and
any and all other costs and expenses associated with the making of the Loan,
including without limitation lien and title search costs and fees, title
insurance premiums, environmental assessment and investigation costs,
feasibility studies and engineering reports, recording fees, any stamp or
recording taxes and any brokerage fees;
(ii) All
reasonable costs and expenses of the Bank (including without limitation the
reasonable fees and disbursements of the Bank's counsel actually incurred) in
connection with (A) the collection of the Obligations and the enforcement of
this Agreement and the other Loan Documents, including in connection with any
restructuring or workout of the Obligations arising pursuant to a breach by any
Loan Party of any of the terms, conditions, representations, warranties or
covenants of any Loan Document to which it is a party; (B) the protection of the
Collateral and Bank's Lien; and (C) defending or prosecuting any actions, suits
or proceedings relating to any of the Loan Documents;
-36-
(iii) The
Bank's reasonable third-party costs incurred in connection with the inspections,
reviews and audits of the Borrower's books and records and of the Collateral and
the Building; and
(iv) All
reasonable costs and expenses of the Bank (including without limitation the
reasonable fees and disbursements of the Bank's counsel, consultants and
contractors) in connection with environmental investigation, testing or other
due diligence (A) in contemplation of this Agreement, (B) during the term hereof
as provided herein and in the other Loan Documents, and (C) following an Event
of Default.
All of
such costs and expenses shall be payable by the Borrower to the Bank within ten
(10) days following demand therefor or as otherwise agreed upon by the Bank and
the Borrower, and shall constitute Obligations under this
Agreement. The Borrower's obligation to pay such costs and expenses
shall survive the termination of this Agreement and the repayment of the
Obligations.
8.4 Notices.
8.4a Notice to
the Borrower. All notices required to be delivered to the
Borrower pursuant to this Agreement shall be in writing and shall be sent to the
following address, by hand delivery, recognized national overnight courier
service, telex, telegram, telecopier or by the United States certified mail,
return receipt requested:
Morgantown
Mall Associates Limited Partnership
c/o
Glimcher Properties Limited Partnership
000 Xxxx
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxx,
XX 00000
Attention: General
Counsel
Telecopier:
(000) 000-0000
8.4b Notice to
the Bank. All notices
required to be delivered to the Bank pursuant to this Agreement shall be in
writing and shall be sent to the following address, by hand delivery, recognized
national overnight courier service, telex, telegram, telecopier or by the United
States certified mail, return receipt requested:
First
Commonwealth Xxxx
Xxxxxxx
Xxxxxxx
X.X. Xxx
000
Xxxxxxx,
XX 00000-0000
Attention: Xxxxx
X. Xxxxxx
Telecopier: (000)
000-0000
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With a copy
to:
Xxxxxx
Xxxxxxxxx, P.C.
0000 Xxx
XXX Xxxxx
Xxxxxxxxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxx, Esquire
Telecopier: (000)
000-0000
All such
notices shall be effective three (3) days after mailing, the date of telecopy
transmission or when received, whichever is earlier. The Borrower and the Bank
may each change the address for service of notice upon it by a notice in writing
to the other party hereto. Any such notices to the Borrower shall be effective
whether or not copies of such notices are mailed or transmitted to the party
designated to receive copies of such notices.
8.5 Set-Off. To
secure the repayment of the Obligations, the Borrower hereby gives to the Bank
and any participant in the Loan a lien and security interest upon and in any of
the Borrower's property, credits, securities or money which may at any time be
delivered to, or be in the possession of, or owed by the Bank and any
participant to the Borrower in any capacity whatever. The Borrower
hereby authorizes the Bank, at any time and from time to time upon the
occurrence and during the continuance of an Event of Default, at the Bank's or
the participant's option, to apply, at the discretion of the Bank or the
participant, to the payment of the Obligations, any and all such property,
credits, securities or money now or hereafter in the hands of the Bank or the
participant or belonging or owed to the Borrower. The Borrower agrees
that each participant shall be deemed to have, to the extent permitted by
applicable law, the right of setoff in respect of its participation in amounts
owing under this Agreement and the Note to the same extent as if the amount of
its participation were owing directly to it as a lender under this Agreement or
the Note.
8.6 Interest
Limitation. Notwithstanding anything to the contrary contained
in any of the Loan Documents, the obligations of the Borrower to the Bank under
the Loan Documents are subject to the limitation that payments of interest to
the Bank shall not be required if and to the extent that receipt of any such
payment by the Bank would be contrary to any Governmental Rules applicable to
the Bank which limit the maximum rate of interest which may be charged or
collected by the Bank. The portion of any such payment received by
the Bank which is in excess of the maximum interest permitted by such
Governmental Rules shall be credited to the principal balance of the
Loan.
8.7 No Third
Party Rights. Nothing in this Agreement or any other Loan
Document, whether express or implied, shall be construed to give to any Person
(other than the parties hereto or to such other Loan Document) any legal or
equitable right, remedy or claim under or in respect of this Agreement or such
other Loan Documents, all of which are intended for the sole and exclusive
benefit of the parties hereto and thereto.
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8.8 Participations and
Assignments.
8.8a Sale of
Participations and Assignments. The Bank may, in accordance
with applicable law, and without the consent of the Borrower, at any time sell
participations in, or make assignments of, all or a portion of the Loan, the
Note or any other interest of the Bank hereunder and the other Loan Documents,
to one or more Persons (which may be Affiliates of the Bank). The
Borrower hereby authorize and consent to the Bank disclosing to any such
potential participant or assignee any information concerning the Borrower or the
Property except social security numbers which shall only be disclosed upon the
acquisition of the participation or assignment as applicable. In the
event of any such sale of a participation, the Bank's obligations under this
Agreement to the Borrower shall remain unchanged, the Bank shall remain solely
responsible for its performance under this Agreement, the Bank shall remain the
holder of the Note made payable to it for all purposes under this Agreement
(including all voting rights hereunder) and the Borrower shall continue to deal
solely and directly with the Bank in connection with the Bank's rights and
obligations under this Agreement and the other Loan Documents. In the
event of any assignment, the Borrower agrees to execute any documents and
instruments, including but not limited to amended Notes, deemed reasonably
necessary by the Bank to accomplish such assignment.
8.9 Successors
and Assigns. This Agreement shall be binding upon the Borrower
and the Bank and their respective successors and assigns, and shall inure to the
benefit of the Borrower, the Bank and their respective successors and assigns;
provided, however, that the
Borrower shall not assign its rights or duties hereunder or under any of the
other Loan Documents without the prior written consent of the Bank.
8.10 Severability. Any
provision of this Agreement or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
8.11 Survival. Except
as otherwise set forth, the representations, warranties, covenants and
agreements of the Borrower contained herein or in the other Loan Documents or
made in writing in connection herewith shall survive the issuance of the Note
and shall continue in full force and effect until payment in full of the Loan
and the other Obligations is made and the Bank has no further obligation to make
advances hereunder.
8.12 Funds
Transfer Authorization and Indemnification. The Borrower
shall pay all charges which the Bank may impose from time to time for transfers
of funds and for following the instructions relating to transfers of
funds. The Borrower shall also reimburse the Bank upon demand for any
out-of-pocket costs incurred by the Bank in carrying out the instructions given
by the Borrower in connection with transfers of funds. In no event
shall the Bank be responsible for any loss, claim, liability, damage or other
amount arising in any way, directly or indirectly, from any error, failure, or
delay in the performance of any of the Bank's obligations relating to transfers
of funds caused by natural disaster, fire, war, strike, civil unrest, error in
or inoperability of communication equipment or lines, or any other circumstances
beyond the reasonable control of the Bank. The Borrower agrees to
indemnify each Indemnified Person and hold each Indemnified Person harmless from
any and all losses, costs, damages and expenses (including reasonable attorneys'
fees and costs, and costs of investigation, both at trial and on appeal),
arising directly or indirectly from, or relating in any manner to, any actions
taken by the Bank in connection with transfers of funds which were reasonably
believed by the Bank to be taken pursuant to the Loan Documents, including but
not limited to actions taken by the Bank to amend or cancel any funds transfer
instructions or any decision by the Bank to effect or not effect a transfer as
provided, or any other action taken by the Bank in good faith pursuant to its
responsibilities relating to transfers of funds under the Loan Documents, unless
arising out of the gross negligence or willful misconduct of the
Bank.
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8.13 GOVERNING
LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF
LAWS, EXCEPTING APPLICABLE FEDERAL LAW AND EXCEPT ONLY TO THE EXTENT PRECLUDED
BY THE MANDATORY APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
8.14 FORUM. THE
PARTIES HERETO AGREE THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS TO WHICH THE BORROWER IS A PARTY MAY
BE COMMENCED IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA OR IN
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND
THE PARTIES HERETO AGREE THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR
PROCEEDING IN EITHER OF SUCH COURTS SHALL BE PROPERLY SERVED AND SHALL CONFER
PERSONAL JURISDICTION IF SERVED PERSONALLY OR BY CERTIFIED MAIL TO THE PARTIES
AT THEIR ADDRESSES SET FORTH IN SECTION 8.4, OR AS OTHERWISE PROVIDED UNDER THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. FURTHER, THE BORROWER
HEREBY SPECIFICALLY CONSENTS TO THE PERSONAL JURISDICTION OF THE COURT OF COMMON
PLEAS OF INDIANA COUNTY, PENNSYLVANIA AND THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF PENNSYLVANIA AND WAIVES AND HEREBY ACKNOWLEDGES THAT IT
IS ESTOPPED FROM RAISING ANY OBJECTION BASED ON FORUM NON CONVENIENS,
ANY CLAIM THAT EITHER SUCH COURT LACKS PROPER VENUE OR ANY OBJECTION THAT EITHER
SUCH COURT LACKS PERSONAL JURISDICTION OVER THE BORROWER SO AS TO PROHIBIT
EITHER SUCH COURT FROM ADJUDICATING ANY ISSUES RAISED IN A COMPLAINT FILED WITH
EITHER SUCH COURT AGAINST THE BORROWER BY THE BANK CONCERNING THIS AGREEMENT OR
THE OTHER LOAN DOCUMENTS OR PAYMENT TO THE BANK. THE BORROWER HEREBY
ACKNOWLEDGES AND AGREES THAT THE CHOICE OF FORUM CONTAINED IN THIS SECTION 8.14
SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN ANY
FORUM OR THE TAKING OF ANY ACTION UNDER THE LOAN DOCUMENTS TO ENFORCE THE SAME
IN ANY APPROPRIATE JURISDICTION.
8.15 DISCLAIMER REGARDING POWER
OF ATTORNEY. SECTION 4.12 OF THIS AGREEMENT AND CERTAIN OF THE
OTHER LOAN DOCUMENTS CONTAIN POWERS OF ATTORNEY COUPLED WITH AN INTEREST WHICH
ARE FOR THE SOLE BENEFIT OF THE BANK. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS ARE BEING EXECUTED IN CONNECTION WITH A LOAN OR OTHER FINANCIAL
TRANSACTION FOR BUSINESS PURPOSES AND NOT PRIMARILY FOR PERSONAL, FAMILY OR
HOUSEHOLD PURPOSES. THE BANK, AS AGENT FOR THE BORROWER UNDER THE
POWERS OF ATTORNEY, IS NOT A FIDUCIARY FOR THE BORROWER. THE BANK, IN
EXERCISING ANY OF ITS RIGHTS OR POWERS PURSUANT TO THE POWERS OF ATTORNEY, MAY
DO SO FOR THE SOLE BENEFIT OF THE BANK AND NOT FOR THE BENEFIT OF THE
BORROWER. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PROVISIONS
OF TITLE 20, PENNSYLVANIA CONSOLIDATED STATUTES, SECTION 5601 ET SEQ., AS
AMENDED (SPECIFICALLY INCLUDING ACT 39 OF 1999) SHALL NOT BE APPLICABLE TO THE
POWERS OF ATTORNEY.
-40-
8.16 Non-Business
Days. Whenever any payment hereunder or under any other Loan
Document is due and payable on a day which is not a Business Day, such payment
may be made on the next succeeding Business Day, and such extension of time
shall in each such case be included in computing interest in connection with
such payment.
8.17 Integration. This
Agreement and the other Loan Documents evidence the entire agreement between the
parties relating to this financing transaction and supersede all prior
understandings and agreements, whether written or oral, between the parties
hereto relating to the transactions provided for herein.
8.18 Counterparts. This
Agreement and any amendment hereto may be executed in several counterparts and
by each party on a separate counterpart, each of which, when so executed and
delivered, shall be an original, but all of which together shall constitute but
one and the same instrument. In proving this Agreement, it shall not
be necessary to produce or account for more than one such counterpart signed by
the other party against whom enforcement is sought.
8.19 WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN
ANY COURT, ARISING OUT OF, UNDER OR BY REASON OF THIS AGREEMENT, ANY OF THE
OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER OF
JURY TRIAL HAS BEEN SPECIFICALLY NEGOTIATED AS A PART OF THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
-41-
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
caused this Loan Agreement to be executed as a document under seal as of the
date first written above.
|
ATTEST/WITNESS:
_______________________________
Name:
Title:
|
MORGANTOWN
MALL ASSOCIATES LIMITED
PARTNERSHIP,
an Ohio limited partnership
By: GLIMCHER
MORGANTOWN MALL, INC.,
a
Delaware corporation, its general partner
By: GLIMCHER
PROPERTIES CORPORATION,
a
Delaware corporation, its sole shareholder
By:
_________________________(SEAL)
Name: Xxxx
X. Xxxx
Title: Executive
Vice President, Chief
Financial
Officer and Treasurer
|
|
WITNESS:
_______________________________
Name:
Title:
|
FIRST
COMMONWEALTH BANK
By: ___________________________________
Name: Xxxxxx
X. Xxxxxxxxx
Title: Vice
President
|
-42-
Schedule
1.1
Morgantown
Commons
SEE
ATTACHED
Schedule
1.2
Proposed Location of
Outlots
SEE
ATTACHED
-2-
Schedule
3.2
Ownership
Structure
SEE
ATTACHED
-3-
Schedule
3.8
Litigation
None.
-4-
Schedule
3.10a
Permitted
Encumbrances
Those
items identified on Schedule B to Lawyer's Title Insurance Company's commitment
no. M0591.00338 issued to the Bank in connection herewith.
-5-
Schedule
5.1
Indebtedness
NONE
-6-
