EXHIBIT 10.125
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LOAN AGREEMENT
dated as of
April 23, 2008
among
CATALINA PARTNERS, L.P.,
a Delaware limited partnership
The LENDERS Party Hereto,
and
U.S. BANK NATIONAL ASSOCIATION,
as Administrative Agent,
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$42,250,000.00
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U.S. Bank National Association
Lead Arranger and Sole Bookrunner
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<PAGE>
TABLE OF CONTENTS
-----------------
This
Table of Contents is not part of the Agreement to which it is
attached
but is inserted for convenience of reference only.
Page
----
RECITALS.......................................................................1
ARTICLE I DEFINITIONS AND ACCOUNTING
MATTERS...................................1
1.01 Certain Defined
Terms..............................................1
1.02
Accounting Terms and
Determinations...............................18
ARTICLE II THE LOAN
FACILITY..................................................18
2.01
Loans.............................................................18
2.02
Borrowings; Certain
Notices.......................................18
2.03
Lending
Offices...................................................19
2.04
Several Obligations; Remedies
Independent.........................19
2.05
Notes.............................................................20
ARTICLE III PAYMENTS OF INTEREST AND
PRINCIPAL................................20
3.01
Interest..........................................................20
3.02
Repayment of
Loans................................................20
3.03
Sharing of Payments,
Etc..........................................20
ARTICLE IV REPRESENTATIONS AND
WARRANTIES.....................................21
4.01
Organization;
Powers..............................................21
4.02
Authorization;
Enforceability.....................................22
4.03
Government Approvals; No
Conflicts................................22
4.04
Financial
Condition...............................................22
4.05
Litigation........................................................22
4.06
ERISA.............................................................22
4.07
Taxes.............................................................23
4.08
Investment and Holding Company
Status.............................23
4.09
Organizational
Structure..........................................23
4.10
Title.............................................................23
4.11
No
Bankruptcy
Filing..............................................24
4.12
Executive Offices; Places of
Organization.........................24
4.13
Compliance; Government
Approvals..................................24
4.14
Condemnation;
Casualty............................................24
4.15
Solvency..........................................................24
4.16
Governmental
Regulations..........................................24
4.17
No
Joint Assessment; Separate
Lots................................24
4.18
Security Documents and
Liens......................................24
4.19
Material
Agreements...............................................25
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4.20
Leases............................................................25
4.21
Ground
Lease......................................................25
4.22
Insurance.........................................................26
4.23
Flood
Zone........................................................26
4.24
Property Management Agreement
....................................26
4.25
Boundaries........................................................26
4.26
Illegal
Activity..................................................26
4.27
Permitted
Liens...................................................26
4.28
Anti-Terrorism
Laws...............................................26
4.29
Defaults..........................................................27
4.30
Other
Representations.............................................27
4.31
Employee Benefit
Plans............................................27
4.32
Consents,
Etc.....................................................27
4.33
Appraisal.........................................................27
4.34
Labor
Controversies...............................................27
4.35
Insider...........................................................27
4.36
True
and Complete Disclosure......................................28
ARTICLE V AFFIRMATIVE COVENANTS OF
BORROWER...................................28
5.01
Information.......................................................28
5.02
Notices of Material
Events........................................30
5.03
Existence,
Etc....................................................30
5.04
Compliance with Laws; Adverse Regulatory
Changes..................30
5.05
Management of the Property, Leasing of the
Property...............31
5.06
Reserves..........................................................32
5.07
Accessibility
Laws................................................32
5.08
Leases............................................................33
5.09
Operating
Expenses................................................33
5.10
Use
of Proceeds; Margin
Regulations...............................33
5.11
Tenant Estoppels and SNDA
Agreements..............................34
5.12
Ground
Lease......................................................34
5.13
Debt
Service Coverage Ratio.......................................35
ARTICLE VI NEGATIVE COVENANTS OF
BORROWER.....................................36
6.01
Fundamental
Change................................................36
6.02
Limitation on
Liens...............................................36
6.03
Transfer;
Pledge..................................................36
6.04
Indebtedness......................................................38
6.05
Investments.......................................................38
6.06
Change of Organization Structure; Location of Principal
Office....38
6.07
Transactions with
Affiliates......................................39
6.08
Leases and Security
Deposits......................................39
6.09
No
Joint Assessment; Separate
Lots................................41
6.10
Zoning............................................................41
6.11
ERISA.............................................................42
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6.12
Amendment of Contracts and Government
Approvals...................42
6.13
Sales Tax Increment
Financing.....................................42
6.14
Anti-Terrorism
Law................................................42
ARTICLE VII EVENTS OF
DEFAULT.................................................43
7.01
Events of
Default.................................................43
7.02
Remedies..........................................................47
ARTICLE VIII ADMINISTRATIVE
AGENT.............................................49
8.01
Appointment, Powers and
Immunities................................49
8.02
Reliance by Administrative
Agent..................................50
8.03
Borrower
Defaults.................................................51
8.04
Rights as a
Lender................................................53
8.05
Indemnification...................................................53
8.06
Non-Reliance on Administrative Agent and Other
Lenders............54
8.07
Failure to
Act....................................................54
8.08
Resignation of Administrative
Agent...............................55
8.09
Consents and Certain Actions under, and Modifications of,
Loan
Documents....................................................55
8.10
Authorization.....................................................57
8.11
Defaulting
Lenders................................................57
8.12
Amendments Concerning Agency
Functions............................61
8.13
Liability of Administrative
Agent.................................61
8.14
Transfer of Agency
Function.......................................62
8.15
Sharing of Payments,
Etc..........................................62
8.16
Bankruptcy of
Borrower............................................62
8.17
Termination.......................................................62
ARTICLE IX
MISCELLANEOUS......................................................63
9.01
Non-Waiver; Remedies
Cumulative...................................63
9.02
Notices...........................................................63
9.03
Expenses,
Etc.....................................................64
9.04
Indemnification...................................................65
9.05
Amendments,
Etc...................................................65
9.06
Successors and
Assigns............................................66
9.07
Assignments and
Participations....................................66
9.08
Survival..........................................................69
9.09
Multiple
Copies...................................................69
9.10
Right of
Set-off..................................................69
9.11
Remedies of
Borrower..............................................70
9.12
Brokers...........................................................70
9.13
Estoppel
Certificates.............................................70
9.14
Preferences.......................................................71
9.15
Certain
Waivers...................................................71
9.16
Entire
Agreement..................................................71
9.17
Severability......................................................71
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9.18
Captions..........................................................72
9.19
Counterparts......................................................72
9.20
GOVERNING
LAW.....................................................72
9.21
SUBMISSION TO
JURISDICTION........................................72
9.22
WAIVER OF JURY TRIAL;
COUNTERCLAIM................................72
9.23
Confidentiality...................................................73
9.24
Usury Savings
Clause..............................................74
9.25
Financing
Statements..............................................74
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EXHIBITS:
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Exhibit A
-
Description of Land
Exhibit B
-
List of Commitments and Proportionate Shares
Exhibit C
-
Standard Form Lease
Exhibit D
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Form of Estoppel
Exhibit E
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Form of Assignment and Assumption
Exhibit F
-
Certificate of Compliance - Borrower
Exhibit G
-
Certificate of Compliance - Guarantor
SCHEDULES:
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Schedule I
-
Closing Conditions
Schedule II -
Pending Litigation
Schedule III -
Organizational Chart
Schedule IV -
Rent
Roll and Lease Disclosures
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LOAN AGREEMENT
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This
LOAN AGREEMENT is dated as of April __, 2008 by and among
CATALINA
PARTNERS, L.P., a Delaware limited partnership (the "Borrower");
each of the
lenders that is a signatory hereto identified under the caption
"LENDERS" on the
signature pages hereto and each lender that becomes a "Lender"
after the date
hereof pursuant to Section 9.07(b) (individually, a "Lender" and,
collectively,
the "Lenders" [as of the date hereof there is only one Lender, U.S.
Bank
National Association, a national banking association]); and U.S.
BANK NATIONAL
ASSOCIATION, a national association, as administrative agent for
the Lenders (in
such capacity, together with its successors in such capacity,
the
"Administrative Agent").
RECITALS
A.
Borrower is the fee owner of a portion and ground lessee of a
portion of
that certain real property located in Lower Paxton Township,
Dauphin County,
Pennsylvania and being more fully described in Exhibit A attached
hereto (the
"Land").
B.
Borrower has requested and applied to the Lender for a loan in
the
amount of $42,250,000.00 ("Loan"). The Lender has agreed to make
such loan on
and subject to the terms and conditions hereinafter set forth.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
1.01
Certain Defined Terms. As used herein, the following terms shall
have
the following meanings (all terms defined in this Section 1.01 or
in other
provisions of this Agreement in the singular shall have the same
meanings when
used in the plural and vice versa):
"Accessibility Laws" shall mean the Americans with Disabilities Act
of
1990, as amended from time to time, and any similar state or local
laws, rules
or regulations relating to the accessibility of buildings or
facilities.
"Administrative Agent" shall have the meaning assigned to such term
in
the preamble.
"Administrative Agent's Account" shall mean the account maintained
by
Administrative Agent with such bank as may from time to time be
specified by
Administrative Agent.
"Affiliate" shall mean, with respect to any Person, another
Person
that directly or indirectly controls, or is under common control
with, or is
controlled by, such Person and, if such Person is an individual,
any member of
the immediate family (including parents, spouse, children and
siblings) of such
individual and any trust whose principal beneficiary is such
individual or one
or more members of such immediate family and any Person who is
controlled by any
such member or trust.
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"Agreement" shall mean this Loan Agreement, as the same may be
Modified from time to time.
"Annual Debt Service" shall mean the aggregate of debt service
payments for a 12 month period on the outstanding principal balance
hereunder,
assuming (i) a per annum interest rate equal to the greater of: (i)
7.00% per
annum or 2.00% above the yield on ten year United States Treasury
obligations as
of the close of business on the day preceding the date of
calculation, as
announced on Bloomberg.com or another reliable source selected by
Administrative
Agent, and (ii) monthly payments of principal and interest based on
an
amortization period of thirty (30) years.
"Anti-Terrorism Laws" shall mean any Applicable Laws relating
to
terrorism or money laundering, including, but not limited to, the
Anti-Terrorism
Order and the Uniting and Strengthening America by Providing
Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public
Law 107-56.
"Anti-Terrorism Order" shall mean Executive Order No. 13,224, 66
Fed.
Reg. 49,079 (2001), issued by the President of the United States of
America
(Executive Order Blocking Property and Prohibiting Transactions
With Persons Who
Commit, Threaten to Commit, or Support Terrorism).
"Applicable Law" shall mean any statute, law, regulation,
ordinance,
rule, judgment, rule of common law, order, decree, Government
Approval,
approval, concession, grant, franchise, license, agreement,
directive,
guideline, policy, requirement, or other governmental restriction
or any similar
form of decision of, or determination by, or any interpretation
or
administration of any of the foregoing by, any Governmental
Authority, whether
now or hereinafter in effect and, in each case, as amended
(including any
thereof pertaining to land use, zoning and building ordinances and
codes).
"Applicable Lending Office" shall mean, for each Lender, the
"Lending
Office" of such Lender (or of an Affiliate of such Lender)
designated by such
Lender from time to time in writing to Administrative Agent.
"Appraisal" shall mean an appraisal of the Premises prepared by
an
Appraiser, which Appraisal must comply in all respects with the
standards for
real estate appraisal established pursuant to Title XI of the
Financial
Institutions Reform, Recovery, and Enforcement Act of 1989, and
otherwise in
form and substance satisfactory to Administrative Agent.
"Appraiser" shall mean any "state certified general appraiser" as
such
term is defined and construed under applicable regulations and
guidelines issued
pursuant to Title XI of the Financial Institutions Reform,
Recovery, and
Enforcement Act of 1989, which appraiser must have been licensed
and certified
by the applicable Governmental Authority having jurisdiction in the
state where
the Premises is located, and which appraiser shall have been
selected by
Administrative Agent.
"Approved Fund" shall mean any Person (other than a natural
person)
that is engaged in making, purchasing, holding or investing in bank
loans and
similar extensions of credit in the ordinary course of its business
and that is
administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
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<PAGE>
"Approved Lease" shall mean (a) each existing Lease as of the
Closing
Date and (b) each Lease entered into after the Closing Date in
accordance with
the terms and conditions contained in Section 6.08 as such leases
and related
documents shall be Modified as permitted pursuant to the terms of
this
Agreement.
"Assignment and Assumption" shall mean an Assignment and
Assumption,
duly executed by the parties thereto, in substantially the form of
Exhibit E
hereto and consented to by Borrower and Administrative Agent in
accordance with
Section 9.07(b).
"Authorized Officer" shall mean, with respect to any Person, the
Chief
Executive Officer, President, any Executive or Senior Vice
President, Secretary,
Treasurer or any other authorized officer of such Person whose
names appear on a
certificate of incumbency delivered concurrently with the execution
of this
Agreement, as such certificate of incumbency may be amended from
time to time to
identify the names of the individuals then holding such offices,
and (b) with
respect to Borrower, the Chief Executive Officer, President, any
Executive or
Senior Vice President, Secretary, Treasurer of the general partner
of the
Borrower or any other authorized officer of such Person whose names
appear on a
certificate of incumbency delivered concurrently with the execution
of this
Agreement, as such certificate of incumbency may be amended from
time to time to
identify the names of the individuals then holding such
offices.
"Bankruptcy Action" shall mean, as to any Person, (a) an
involuntary
proceeding shall be commenced or an involuntary petition shall be
filed, seeking
(i) liquidation, reorganization or other relief in respect of such
Person or its
debts, or of a substantial part of its assets, under any Federal,
state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator,
conservator or similar official for such Person or for a
substantial part of its
assets, and, in any such case, such proceeding or petition shall
continue
undismissed for a period of sixty (60) days or an order or decree
approving or
ordering any of the foregoing shall be entered; or (b) any Person
shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy,
insolvency, receivership or similar law now or hereafter in effect,
(ii) consent
to the institution of, or fail to contest in a timely and
appropriate manner,
any proceeding or petition described in clause (a) above, (iii)
apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator,
conservator or similar official of such Person or for a substantial
part of any
of their assets, (iv) file an answer admitting the allegations of a
petition
filed against it in any such proceeding, (v) make a general
assignment for the
benefit of creditors or (vi) take any action for the purpose of
effecting any of
the foregoing.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978,
as
amended from time to time.
"Borrower" shall have the meaning assigned to such term in the
preamble.
"Borrower Party" shall mean either the Borrower or the Guarantor
or
both.
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"Business Day" shall mean any day that is not a Saturday, Sunday
or
other day on which commercial banks in Pennsylvania are authorized
or required
by law to remain closed.
"Casualty" shall mean any loss of or damage to, any portion of
the
Premises in excess of $100,000 by fire or other casualty.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from
time to time.
"Commitment" shall mean, as to each Lender, the obligation of
such
Lender to make Loans in an aggregate amount up to but not exceeding
the amount
set opposite the name of such Lender on Exhibit C attached hereto
under the
caption "Commitment" or, in the case of a Person that becomes a
Lender pursuant
to an assignment permitted under Section 9.07(b), as specified in
the respective
Assignment and Assumption (consented to by Borrower and
Administrative Agent in
accordance with Section 9.07(b)) pursuant to which such assignment
is effected,
in either case, as such percentage may be modified by any
Assignment and
Assumption.
"Condemnation" shall mean a taking or voluntary conveyance during
the
term hereof of all or part of the Premises, or any interest therein
or right
accruing thereto or use thereof, as the result of, or in settlement
of, any
condemnation or other eminent domain proceeding (including but not
limited to
any transfer made in lieu of or in anticipation of the exercise of
such taking)
by any Governmental Authority affecting the Premises or any portion
thereof
whether or not the same shall have actually been commenced.
"CCR Agreement" shall mean any agreement regarding conditions,
covenants and restrictions existing as of the date hereof or which
may be
entered into by Borrower which are related to all or any portion of
the
Premises.
"Change of Control" shall mean any transaction that results in,
directly or indirectly, (i) any Person other than Guarantor whether
directly or
indirectly, owning 51% or more of the Equity Interests in Borrower
or (ii) any
Person other than Guarantor having the responsibility for managing
and
administering the day-to-day business and affairs of Borrower or
(iii) in any
other respects, any Person other than Guarantor directly or
indirectly
Controlling Borrower.
"Collateral" shall mean, collectively, (a) all equipment and
all
furniture, furnishings, fixtures, machinery, equipment, inventory
and any other
item of personal property in which Borrower now or hereafter owns
or acquires
any interest or right, including any of the foregoing that are
leased, which are
used or useful in the construction, operation, use, sale or
occupancy of the
Premises (or any portion thereof); (b) all of Borrower's accounts
receivable in
connection with the Premises (or any portion thereof); (c) all of
Borrower's
documents, instruments, contract rights (including any rights under
any
development agreement) and general intangibles relating to the
present or future
construction, use, sale, operation or occupancy of the Premises (or
any portion
thereof); (d) all insurance proceeds from any policies of insurance
covering any
of the aforesaid; and (e) such other collateral as may be described
in the
Security Documents.
"Condemnation Awards" shall mean all compensation, awards,
damages,
rights of action and proceeds awarded to Borrower by reason of a
Condemnation.
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"Control" (including, with its correlative meanings, "controlled"
and
"controlling") shall mean possession, directly or indirectly, of
power to direct
or cause the direction of management or policies (whether through
ownership of
securities or partnership or other ownership interests, by contract
or
otherwise); provided that, in any event, any Person that owns
directly or
indirectly securities having 25% or more of the voting power for
the election of
directors or other governing body of a corporation or 25% or more
of the
partnership, membership or other ownership interests of any other
Person (other
than as a limited partner of such other Person) will be deemed to
control such
corporation or other Person.
"Controlled Account" shall mean one or more deposit accounts
established by Administrative Agent (for the benefit of the
Lenders) at a
depository bank or financial institution that is acceptable to
Administrative
Agent, and which is established and maintained in accordance with
Section 5
herewith.
"Debt Service Coverage Ratio" shall mean the ratio of (a) the
annualized Net Operating Income from the Premises to (b) the Annual
Debt
Service. Such Debt Service Coverage Ratio will be measured and
tested as of June
30, 2008 and every three (3) months thereafter as calculated on a
rolling annual
basis until the Stated Maturity Date. Borrower shall provide U.S.
Bank with a
compliance certificate detailing the covenant calculation and its
compliance
within thirty (30) days subsequent to each calendar quarter
end.
"Default" shall mean an event that with notice, lapse of time, or
both
would become an Event of Default.
"Default Rate" shall have the same meaning as set forth in the
Notes.
"Distribution" shall mean a payment of cash, assets, or proceeds
of
any kind by a Person (the "Distributor") to any other Person (a
"Distributee")
that owns a direct or indirect Equity Interest in such Distributor,
including,
without limitation, repayment of any loans made by such Distributee
to such
Distributor, or a return of any capital contribution made by such
Distributee,
distributions upon termination, liquidation or dissolution of such
Distributor.
"Dollars" and "$" shall mean lawful money of the United States
of
America.
"Eligible Assignee" shall mean any of the following, in each
case
acceptable to Administrative Agent: (a) a commercial bank organized
under the
Laws of the United States, or any State thereof, and having (i)
total assets in
excess of $500,000,000 and (ii) a combined capital and surplus of
at least
$125,000,000; (b) a commercial bank organized under the laws of any
other
country which is a member of the Organization of Economic
Cooperation and
Development ("OECD"), or a political subdivision of any such
country, and having
(i) total assets in excess of $500,000,000 and (ii) a combined
capital and
surplus of at least $125,000,000; provided that such bank is acting
through a
branch or agency located in the country in which it is organized or
another
country which is also a member of OECD; (c) a life insurance
company organized
under the laws of any State of the United States, or organized
under the laws of
any country and licensed as a life insurer by any State within the
United States
and having admitted assets of at least $500,000,000; (d) a
nationally recognized
investment banking company or other financial institution in the
business of
making loans, or an Affiliate thereof (other than any Person which
is directly
5
<PAGE>
or indirectly an Affiliate of Borrower or any Guarantor) organized
under the
laws of any State of the United States, and licensed or qualified
to conduct
such business under the laws of any such State and having (i) total
assets of at
least $500,000,000 and (ii) a net worth of at least $125,000,000;
(e) an
Approved Fund; or (f) any Affiliate of any Lender.
"Environmental Claim" shall mean, with respect to any Person,
any
written request for information by a Governmental Authority, or any
written
notice, notification, claim, administrative, regulatory or judicial
action,
suit, judgment, demand or other written communication by any Person
or
Governmental Authority alleging or asserting liability with respect
to Borrower
or the Premises, whether for damages, contribution,
indemnification, cost
recovery, compensation, injunctive relief, investigatory, response,
Remediation,
damages to natural resources, personal injuries, fines or penalties
arising out
of, based on or resulting from (i) the presence, use or Release
into the
environment of any Hazardous Substance originating at or from, or
otherwise
affecting, the Premises, (ii) any fact, circumstance, condition or
occurrence
forming the basis of any violation, or alleged violation, of any
Environmental
Law by Borrower or otherwise affecting the health, safety or
environmental
condition of the Premises or (iii) any alleged injury or threat of
injury to
health, safety or the environment by Borrower or otherwise
affecting the
Premises.
"Environmental Indemnity" shall mean that certain Environmental
Indemnity Agreement by executed by Borrower and Guarantor
substantially
concurrently herewith, in favor of Administrative Agent, as the
same may be
Modified from time to time.
"Environmental Laws" shall mean any and all present and future
federal, state and local laws, rules or regulations, and any orders
or decrees,
in each case as now or hereafter in effect, relating to the
regulation or
protection of health, safety or the environment or the Release or
threatened
Release of Hazardous Substances into the indoor or outdoor
environment,
including ambient air, soil, surface water, ground water, wetlands,
land or
subsurface strata, or otherwise relating to the use of Hazardous
Substances.
"Environmental Losses" shall mean any losses, damages, costs,
fees,
expenses, claims, suits, judgments, awards, liabilities (including
but not
limited to strict liabilities), obligations, debts, diminutions in
value, fines,
penalties, charges, costs of Remediation (whether or not performed
voluntarily),
amounts paid in settlement, foreseeable and unforeseeable
consequential damages,
litigation costs, reasonable attorneys' fees and expenses,
engineers' fees,
environmental consultants' fees, and investigation costs
(including, but not
limited to, costs for sampling, testing and analysis of soil,
water, air,
building materials, and other materials and substances whether
solid, liquid or
gas), of whatever kind or nature, and whether or not incurred in
connection with
any judicial or administrative proceedings, actions, claims, suits,
judgments or
awards relating to Hazardous Substances, Environmental Claims,
Environmental
Liens and violation of Environmental Laws.
"Environmental Reports" shall mean, collectively, (a) Phase I
Environmental Site Assessment prepared by Professional Services
Industries, Inc.
and dated March 21, 2008, and (b) any environmental surveys and
assessments
Administrative Agent in its reasonable discretion may require.
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<PAGE>
"Equity Interests" shall mean shares of capital stock,
partnership
interests, membership interests in a limited liability company,
beneficial
interests in a trust or other equity ownership interests in a
Person, and any
warrants, options or other rights entitling the holder thereof to
purchase or
acquire any such equity interest.
"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or
agreements
of any kind (including any `shareholders' or voting trust
agreements) for the
issuance, sale, registration or voting of, or securities
convertible into, any
additional shares of capital stock of any class, or partnership,
membership or
other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated) that, together with any Borrower Party, is treated as
a single
employer under Section 414(b) or (c) of the Code, or, solely for
purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a
single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined
in
Section 4043 of ERISA or the regulations issued thereunder with
respect to a
Plan (other than an event for which the 30-day notice period is
waived); (b) the
existence with respect to any Plan of an "accumulated funding
deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d)
of ERISA of an application for a waiver of the minimum funding
standard with
respect to any Plan; (d) the incurrence by a Borrower Party or any
of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to
the
termination of any Plan; (e) the receipt by any Borrower Party or
any ERISA
Affiliate from the PBGC or a plan administrator of any notice
relating to an
intention to terminate any Plan or Plans or to appoint a trustee to
administer
any Plan; (f) the incurrence by a Borrower Party or any of its
ERISA Affiliates
of any liability with respect to the withdrawal or partial
withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by a Borrower Party
or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan
from a
Borrower Party or any ERISA Affiliate of any notice, concerning the
imposition
of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is
expected to be, insolvent or in reorganization, within the meaning
of Title IV
of ERISA.
"Fee Letter" shall mean one or more letter agreements between
Borrower
and Administrative Agent with respect to certain fees payable by
Borrower in
connection with the Loans, as the same may be modified or amended
from time to
time.
"Foreign Lender" shall mean any Lender that is organized under
the
laws of a jurisdiction other than that in which Borrower is
located. For
purposes of this definition, the United States of America, each
state thereof
and the District of Columbia shall be deemed to constitute a
single
jurisdiction.
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<PAGE>
"Funding Date" shall mean any Business Day on which proceeds of
the
Loan are advanced to or for the benefit of Borrower in accordance
with and
subject to the terms and conditions of this Agreement.
"GAAP" shall mean (a) with respect to a Person organized or
residing
in the United States, generally accepted accounting principles in
the United
States applied on a consistent basis, in accordance with Section
1.02(a), and
(b) with respect to a Person organized or residing outside of the
United States,
generally accepted international accounting principles applied on a
consistent
basis, in accordance with Section 1.02(a).
"General Partner" shall mean Glimcher Colonial Park Mall, Inc.,
a
Delaware corporation, as sole general partner under the
Organizational Documents
of Borrower, and its successors thereunder as permitted under the
Loan
Documents.
"Government Approval" shall mean any action, authorization,
consent,
approval, license, lease, ruling, permit, tariff, rate,
certification,
exemption, filing or registration by or with any Governmental
Authority,
including all licenses, permits, allocations, authorizations,
approvals and
certificates obtained by or in the name of, or assigned to,
Borrower and used in
connection with the ownership, construction, operation, use or
occupancy of the
Premises, including building permits, zoning and planning
approvals, business
licenses, licenses to conduct business, certificates of occupancy
and all such
other permits, licenses and rights.
"Governmental Authority" shall mean any governmental
department,
commission, board, bureau, agency, regulatory authority,
instrumentality,
judicial or administrative body, federal, state, local, or foreign
having
jurisdiction over the matter or matters in question.
"GPLP Revolving Credit Facility" shall mean that certain Four
Hundred
Seventy Million Dollar ($470,000,000.00) revolving credit facility
evidenced by
that certain Amended and Restated Credit Agreement dated December
14, 2006
executed by and between Guarantor and KeyBank National Association
as a lender
and as administrative agent for various lenders, in which
Administrative Agent,
has an interest as a participant lender, as in existence as of the
date hereof
(without consideration of any amendment executed after the date
hereof). For
purposes of this Agreement, the GPLP Revolving Credit Facility
shall be
considered to be the GPLP Revolving Credit Agreement in effect as
of the date
hereof and shall not take into account any subsequent amendments,
modifications,
or terminations thereof, even if the same has been consented to
by
Administrative Agent as one of the lenders under such GPLP
Revolving Credit
facility. The termination of the GPLP Revolving Credit Facitily
shall also have
no affect upon this definition of GPLP Revolving Credit Facility or
any of the
provisions of this Agreement where the "GPLP Credit Facility" is
redefined.
"Ground Lease" shall mean that certain Lease Agreement dated
December
8, 1972, and recorded at Book U, Volume 14, Page 153, Dauphin
county,
Pennsylvania, as assigned to Borrower pursuant to that certain
Assignment and
Assumption of Ground Lease dated September 30, 1007 from HNG Corp.,
a California
corporation to Borrower and recorded in Book 2948, Page 579,
Dauphin County,
Pennsylvania.
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<PAGE>
"Ground Lessor" shall mean Free Car Wash, Inc., a Pennsylvania
corporation or any successors in interest as fee owner of the
Ground Lease land.
"Guaranty Obligation" shall mean a guaranty, an endorsement, a
contingent agreement to purchase or to furnish funds for the
payment or
maintenance of, or otherwise to be or become contingently liable
under or with
respect to, the Indebtedness, other obligations, net worth, working
capital or
earnings of any Person, or a guaranty of the payment of dividends
or other
distributions upon the stock or equity interests of any Person, or
an agreement
to purchase, sell or lease (as lessee or lessor) Property,
products, materials,
supplies or services primarily for the purpose of enabling a debtor
to make
payment of such debtor's obligations or an agreement to assure a
creditor
against loss, and including causing a bank or other financial
institution to
issue a letter of credit or other similar instrument for the
benefit of another
Person, but excluding endorsements for collection or deposit in the
ordinary
course of business. The term "Guarantied Obligation" shall have a
correlative
meaning.
"Guarantor Documents" shall mean, the Principal Guaranty and,
insofar
as the Guarantor is obligated thereunder, the Environmental
Indemnity.
"Guarantor" shall mean, Glimcher Properties Limited Partnership,
a
Delaware limited partnership.
"Hazardous Substance" shall mean, collectively, (a) any petroleum
or
petroleum products, flammable materials, explosives, radioactive
materials,
asbestos, urea formaldehyde foam insulation, and transformers or
other equipment
that contain polychlorinated biphenyls ("PCB"), (b) any chemicals
or other
materials or substances that are now or hereafter become defined as
or included
in the definition of "hazardous substances", "hazardous wastes",
"hazardous
materials", "extremely hazardous wastes", "restricted hazardous
wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or
words of
similar import under any Environmental Law and (c) any other
chemical or other
material or substance, exposure to which is now or hereafter
prohibited, limited
or regulated under any Environmental Law.
"Improvements" shall mean, collectively, the Tenant Improvement
Work,
to the extent applicable pursuant to Approved Leases.
"Indebtedness" shall mean, for any Person: (a) obligations
created,
issued or incurred by such Person for borrowed money (whether by
loan, the
issuance and sale of debt securities or the sale of Property to
another Person
subject to an understanding or agreement, contingent or otherwise,
to repurchase
such Property from such Person), other than trade accounts payable
(other than
for borrowed money) arising, and accrued expenses incurred, in the
ordinary
course of business so long as such trade accounts payable are
payable within
ninety (90) days of the date the respective goods are delivered or
the
respective services are rendered; (b) obligations of such Person to
pay the
deferred purchase or acquisition price of Property or services; (c)
Indebtedness
of others secured by a Lien on the Property of such Person, whether
or not the
respective indebtedness so secured has been assumed by such Person;
(d)
obligations of such Person in respect of letters of credit or
similar
instruments issued or accepted by banks and other financial
institutions for
account of such Person; and (e) Indebtedness of others Guarantied
by such
Person.
9
<PAGE>
"Indemnified Parties" shall mean Administrative Agent, the
Affiliates
of Administrative Agent, each Lender, and each of the foregoing
parties'
respective directors, officers, employees, attorneys, agents,
successors and
assigns.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Initial Tenants" shall mean, collectively, all office and
retail
tenants that are the first tenants to initially occupy 100% of the
rentable
space in the Improvements.
"Insurance Proceeds" shall mean all insurance proceeds,
damages,
claims and rights of action and the right thereto under any
insurance policies
relating to the Premises.
"Investment" shall mean, for any Person: (a) the acquisition
(whether
for cash, Property, services or securities or otherwise) of capital
stock,
bonds, notes, debentures, partnership or other ownership interests
or other
securities of any other Person or any agreement to make any such
acquisition
(including any "short sale" or any sale of any securities at a time
when such
securities are not owned by the Person entering into such sale);
(b) the making
of any deposit with, or advance, loan or other extension of credit
to, any other
Person (including the purchase of Property from another Person
subject to an
understanding or agreement, contingent or otherwise, to resell such
Property to
such Person), but excluding any such advance, loan or extension of
credit having
a term not exceeding ninety (90) days arising in connection with
the sale of
inventory or supplies by such Person in the ordinary course of
business; (c) the
incurrence of Guaranty Obligation consisting of, or other
contingent obligation
with respect to, Indebtedness or other liability of any other
Person and
(without duplication) any amount committed to be advanced, lent or
extended to
such Person; or (d) the entering into of any interest rate swap,
cap, collar or
similar agreement for the transfer or mitigation of interest
risks.
"Knowledge" shall mean, with respect to a Person, (a) the
actual
knowledge of such Person (and if such Person is an entity, the
actual knowledge
of the individuals with responsibility for the management, control,
and day to
day operations of such entity), including, without limitation, with
respect to
Borrower and its Affiliates, in connection with the acquisition,
development and
construction of the Improvements, and (b) the knowledge such Person
would have
after having undertaken and completed such commercially reasonable
diligence and
investigation that a similarly-situated commercial property owner
or developer
would have undertaken with respect to the matter about which the
applicable
representation is made.
"Land" shall have the meaning assigned to such term in the
Recitals.
"Leases" shall mean all leases and other agreements or
arrangements
with or assumed by Borrower as landlord for the use or occupancy of
all or any
portion of the Premises, including any signage thereat, now in
effect or
hereafter entered into (including lettings, subleases, licenses,
concessions,
tenancies and other occupancy agreements with or assumed by
Borrower as landlord
covering or encumbering all or any portion of the Premises),
together with any
Guaranties, supplements, amendments, modifications, extensions and
renewals of
the same, and all additional remainders, reversions and other
rights and estates
appurtenant thereto.
"Lender" shall have the meaning assigned to such term in the
preamble.
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<PAGE>
"Lien" shall mean, with respect to any Property (including the
Premises), any mortgage, deed of trust, lien, pledge, charge,
security interest
or encumbrance of any kind in respect of such Property. For
purposes of this
Agreement and the other Loan Documents, a Person shall be deemed to
own subject
to a Lien any Property that it has acquired or holds subject to the
interest of
a vendor or lessor under any conditional sale agreement, capital
lease or other
title retention agreement (other than an operating lease) relating
to such
Property.
"Lien Law" shall mean the mechanics' lien laws of the State of
Pennsylvania, as amended from time to time.
"Limiting Regulation" shall mean any law or regulation of any
jurisdiction, or any interpretation, directive or request under any
such law or
regulation (whether or not having the force of law and whether or
not failure to
comply therewith would be unlawful) by any court or Governmental
Authority
charged with the interpretation or administration thereof, or any
internal bank
policy resulting therefrom (applicable to loans made in the United
States of
America) which would or could in any way require a Lender to have
the approval
right contained in Section 6.03(d).
"Loan Documents" shall mean, collectively, this Agreement, the
Notes,
the Security Documents, the Guarantor Documents, any Fee Letters,
and each other
agreement, instrument or document required to be executed and
delivered in
connection with, or evidencing, securing, or supporting, the Loans,
together
with any Modifications thereof.
"Major Lease" shall mean any Lease (or Leases to Affiliates)
covering
an aggregate of 7,500 rentable square feet or more.
"Material Adverse Effect" shall mean the likely inability or
reasonably anticipated inability of Borrower or Guarantor to pay
and perform
their respective obligations under and in full compliance with the
terms of the
Loan Documents (including, without limitation, completing the
Improvements on or
before the Completion Date) as a result of (a) a material and
adverse effect on
the condition (financial or otherwise), assets or business of
Borrower or
Guarantor, (b) a material and adverse effect on the value of the
Premises, or
(c) a material and adverse effect on the status of the liens in
favor of
Administrative Agent on the Collateral.
"Material Agreement" shall mean, individually and collectively,
(a)
Property Management Agreement, any CCR Agreement, Borrower's
Organizational
Documents, the Ground Lease.
"Maturity Date" shall mean the earliest to occur of (a) the
Stated
Maturity Date; (b) upon the occurrence of any Transfer prohibited
by the Loan
Documents; and (c) the date on which the Outstanding Principal
Balance is
accelerated pursuant to the terms of this Agreement.
"Ministerial Matter" shall mean matters of an administrative or
ministerial nature with respect to the Borrower, the Improvements,
or the Loan.
"Modifications" shall mean any amendments, supplements,
modifications,
renewals, replacements, consolidations, severances, substitutions
and extensions
thereof from time to time; "Modify", "Modified", or related words
shall have
meanings correlative thereto.
11
<PAGE>
"Moody's" shall mean Moody's Investors Service, Inc., or any
successor
thereto.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
Section 4001(a)(3) of ERISA.
"Net Operating Income" shall mean, as calculated by
Administrative
Agent in Administrative Agent's reasonable judgment, the gross
income of the
Premises based on leases with unaffiliated third parties plus
reimbursements for
the previous 12-month period less the greater of: (i) actual
vacancy for the
month prior to the date of calculation, annualized; or (ii) the
market vacancy
of 7.26% as obtained from the Appraisal less operating expenses for
the same
period (such as cleaning, utilities administrative, landscaping,
security and
management fees equal to the greater of: (i) actual management
fees; or (ii) 4%
of gross income, repairs and maintenance and a $0.20 per square
foot reserve for
replacements), and less fixed expenses for the same period (such as
insurance,
real estate and other taxes). All operating expenses shall be
related to the
Premises, shall be for services from arm's length third party
transactions or
equivalent to the same, and shall exclude all expenses for capital
improvements
and replacements, debt service and depreciation or amortization of
capital
expenditures and other similar non-cash items.
"Notes" shall mean those certain promissory Notes, each of even
date
herewith, executed and delivered by Borrower to the order of the
Lender named
therein, in the aggregate original principal amount of Forty-Two
Million Two
Hundred Fifty Thousand Dollars ($42,250,000.00), to evidence the
Loans, as the
same may be Modified from time to time, and including any
Replacement Notes.
"Obligations" shall mean all obligations, liabilities and
indebtedness
of every nature of Borrower, from time to time owing to
Administrative Agent or
any Lender under or in connection with this Agreement, the Notes or
any other
Loan Document to which it is a party, including principal,
interest, fees
(including fees of counsel), and expenses whether now or hereafter
existing
under the Loan Documents.
"Occupancy" or "Occupy" shall mean (a) with respect to any
tenant
(other than tenants and licensees covered by clause (b) below),
such tenant
shall have (i) accepted (or been deemed to have accepted in
accordance with the
terms of its Lease) the delivery of all of the space to be demised
under the
terms of its respective Lease, and (ii) actually occupied such
space and begun
the operation of its business from such space and (b) with respect
to any
licensee of the signage or antenna tenants or licensees at the
Premises, such
licensee or tenant, as applicable, shall have accepted the delivery
of all of
its respective premises.
"Official Records" shall mean the Official Records of Dauphin
County,
Commonwealth of Pennsylvania.
"Organizational Documents" shall mean (a) for any corporation,
the
certificate or articles of incorporation, the bylaws, any
certificate of
determination or instrument relating to the rights of preferred
shareholders of
such corporation, any shareholder rights agreement, and any
amendments thereto,
(b) for any limited liability company, the articles of organization
and any
certificate relating thereto and the limited liability company (or
operating)
12
<PAGE>
agreement of such limited liability company, and any amendments
thereto, and (c)
for any partnership (general or limited), the certificate of
limited partnership
or other certificate pertaining to such partnership and the
partnership
agreement of such partnership (which must be a written agreement),
and any
amendments thereto.
"Other Charges" shall mean all ground rents, maintenance
charges,
impositions other than Real Estate Taxes, and any other charges,
including vault
charges and license fees for the use of vaults, chutes and similar
areas
adjoining the Premises, now or hereafter levied or assessed or
imposed against
the Premises or any part thereof
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar
levies arising from any payment made under any Loan Document or
from the
execution, delivery or enforcement of, or otherwise with respect
to, any Loan
Document.
"Outstanding Principal Amount" shall mean the aggregate
outstanding
principal amount of the Loans at any point in time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to
and defined in ERISA and any successor entity performing similar
functions.
"Permitted Liens" shall mean (a) any Lien created by the Loan
Documents, (b) those matters listed as exception on Schedule B to
the Title
Policy, (c) Liens for Real Estate Taxes and Other Charges imposed
by any
Governmental Authority not yet due or delinquent, (d) rights of
existing and
future tenants under Approved Leases or under leases otherwise
permitted under
Section 6.09 (provided that all such Leases are subordinate to the
Security
Instrument) and (e) such other title and survey exceptions as
Administrative
Agent may approve.
"Person" shall mean any individual, corporation, company,
voluntary
association, partnership, limited liability company, joint venture,
trust,
unincorporated organization or government (or any agency,
instrumentality or
political subdivision thereof).
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of ERISA
or Section
412 of the Code or Section 302 of ERISA, and in respect of which
any of their
ERISA Affiliates is (or, if such plan were terminated, would under
Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Premises" shall mean, collectively, (a) the Land, together with
any
air rights and other rights, privileges, easements, hereditaments
and
appurtenances thereunto relating or appertaining to the Land, (b)
the
Improvements, together with all fixtures and equipment required for
the
operation of the Improvements, (c) all building materials and
personal property
related to the foregoing, and (d) all other items described as
"Mortgaged
Property" in the Security Instrument.
"Principal Guaranty" shall mean that certain Unconditional Guaranty
of
Payment and Performance executed by Guarantor for the benefit of
Administrative
Agent concurrently herewith, as the same may be Modified.
13
<PAGE>
"Principal Office" shall mean the office of Administrative
Agent,
located on the date hereof at Columbus, Ohio, or such other office
as
Administrative Agent shall designate upon ten (10) days' prior
notice to
Borrower and the Lenders.
"Property" shall mean any right or interest in or to property of
any
kind whatsoever, whether real, personal or mixed and whether
tangible or
intangible.
"Property Management Agreement" shall mean that certain
Management
Agreement] of even date herewith between Borrower, as owner,
Glimcher Properties
Limited Partnership as Manager and Glimcher Development Corporation
as Services
Provider.
"Property Manager" shall mean collectively Glimcher Properties
Limited
Partnership as Manager and Glimcher Development Corporation as
Services Provider
or such successor manager and/or leasing agent as shall be approved
by
Administrative Agent.
"Proportionate Share" shall mean, with respect to each Lender,
the
percentage set forth opposite such Lender's name on Exhibit B
attached hereto
under the caption "Proportionate Share" or in the applicable
Assignment and
Assumption (in accordance with the terms of this Agreement)
pursuant to which
such Lender became a party hereto, in either case, as such
percentage may be
Modified in the most recent Assignment and Assumption (in
accordance with the
terms of this Agreement) to which such Lender is a party.
"Protective Advance" shall mean all necessary costs and
expenses
(including attorneys' fees and disbursements) incurred by
Administrative Agent
(a) in order to remedy an Event of Default under the Loan
Documents, which Event
of Default, by its nature, may impair any portion of the Collateral
for the
Loans or the value of such Collateral, interfere with the
enforceability or
enforcement of the Loan Documents, or otherwise materially impair
the payment of
the Loan (including, without limitation, the costs of unpaid
insurance premiums,
foreclosure costs, costs of collection, costs incurred in
bankruptcy proceedings
and other costs incurred in enforcing any of the Loan Documents);
or (b) in
respect of the operation of the Property following a foreclosure
under the
Security Instrument.
"Rate Management Agreement(s)" shall mean any agreement, device
or
arrangement 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, any agreement pertaining to equity derivative
transactions (e.g.,
equity or equity index swaps, options, caps, floors, collars and
forwards),
including without limitation an ISDA Master Agreement between
Borrower and U.S.
Bank's Capital Markets Division in connection with the Loan, 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" shall mean any and all obligations
of
Borrower to U.S. Bank, or any affiliate of U.S. Bank, whether
absolute,
contingent or otherwise and howsoever and whensoever (whether now
or hereafter)
created, arising, evidenced or acquired (including all renewals,
extensions and
14
<PAGE>
modifications thereof and substitutions therefore), under or in
connection with
(i) any and all Rate Management Agreements made in connection with
the Loan, and
(ii) any and all cancellations, buy-backs, reversals, terminations
or assignment
of any Rate Management Agreements made in connection with the
Loan.
"Real Estate Taxes" shall mean all real estate taxes and all
general
and special assessments, levies, permits, inspection and license
fees, all water
and sewer rents and charges, all charges for utilities and all
other public
charges whether of a like kind or different nature, imposed upon or
assessed
against Borrower or the Property or any part thereof or upon the
revenues,
rents, issues, income and profits of the Property or arising in
respect of the
occupancy, use or possession thereof.
"Regulations A, D, T, U and X" shall mean, respectively,
Regulations
A, D, T, U and X of the Board of Governors of the Federal Reserve
System (or any
successor), as the same may be Modified and in effect from time to
time.
"Regulatory Change" shall mean, with respect to any Lender, any
change
after the Closing Date in federal, state or foreign law or
regulations
(including Regulation D) or the adoption or making after such date
of any
interpretation, directive or request applying to a class of banks
including such
Lender of or under any federal, state or foreign law or regulations
(whether or
not having the force of law and whether or not failure to comply
therewith would
be unlawful) by any Governmental Authority or monetary authority
charged with
the interpretation or administration thereof.
"Release" shall mean any release, spill, emission, leaking,
pumping,
injection, deposit, disposal, discharge, dispersal, leaching or
migration into
the indoor or outdoor environment, including the movement of
Hazardous
Substances through ambient air, soil, surface water, ground water,
wetlands,
land or subsurface strata.
"Remediation" shall mean, without limitation, any investigation,
site
monitoring, response, remedial, removal, or corrective action, any
activity to
cleanup, detoxify, decontaminate, contain or otherwise remediate
any Hazardous
Substance, any actions to prevent, cure or mitigate any Release of
any Hazardous
Substance, any action to comply with any Environmental Laws or with
any permits
issued pursuant thereto, any inspection, investigation, study,
monitoring,
assessment, audit, sampling and testing, laboratory or other
analysis, or
evaluation relating to any Hazardous Substances.
"Rents" shall mean all rents (whether denoted as base rent,
advance
rent, minimum rent, percentage rent, additional rent or otherwise),
issues,
income, royalties, profits, revenues, proceeds, bonuses, deposits
(whether
denoted as security deposits or otherwise), termination fees,
rejection damages,
buy-out fees and any other fees made or to be made in lieu of rent
to Borrower,
any award made hereafter to Borrower in any court proceeding
involving any
tenant, lessee, licensee or concessionaire under any of the Leases
in any
bankruptcy, insolvency or reorganization proceedings in any state
or federal
court, and all other payments, rights and benefits of whatever
nature from time
to time due to Borrower under the Leases (including any Leases with
respect to
signage), including (i) rights to payment earned under the Leases,
(ii) any
payments or rights to payment with respect to parking facilities or
other
facilities in any way contained within or associated with the
Property, and
(iii) all other income, consideration, issues, accounts, profits or
benefits of
any nature arising from the possession, use and operation of the
Property.
15
<PAGE>
"Replacement Note(s)" shall mean any Note executed by Borrower to
the
order of a Lender upon the assignment by such Lender of all or any
portion of
such Lender's interest in the Loan and the Loan Documents.
"Required Lenders" shall mean, subject to Section 8.14, Lenders
having
more than 51% of the Outstanding Principal Amount.
"Security Deposits" shall mean any security deposits, letters
of
credit, or other cash or non-cash collateral or security paid or
given as
security for obligations of tenants under any Leases.
"Security Documents" shall mean, collectively, the Security
Instrument, any Rate Management Agreement, any other agreements
executed by any
Borrower Party granting a Lien on any Property or rights as
security for the
Loans, and all Uniform Commercial Code financing statements
required by this
Agreement (provided in no event shall the Guarantor Documents or
the
Environmental Indemnity be deemed Security Documents).
"Security Instrument" shall mean the Open-End Fee Leasehold
Mortgage,
Assignment of Leases and Rents and Security Agreement and Fixture
Filing
executed by Borrower for the benefit of Administrative Agent
concurrently
herewith, as the same may be Modified from time to time.
"SNDA Agreement" shall mean a form of Subordination,
Non-Disturbance,
and Attornment Agreement in form and substance satisfactory to
Administrative
Agent.
"Solvent" shall mean, when used with respect to any Person, that
at
the time of determination: (i) the fair saleable value of its
assets is in
excess of the total amount of its liabilities (including
contingent
liabilities); (ii) the present fair saleable value of its assets is
greater than
its probable liability on its existing debts as such debts become
absolute and
matured; (iii) it is then able and expects to be able to pay its
debts
(including contingent debts and other commitments) as they mature;
and (iv) it
has capital sufficient to carry on its business as conducted and as
proposed to
be conducted.
"Standard Lease Form" shall mean (i) the form of Lease attached
hereto
as Exhibit C or (ii) such other form of Lease as is satisfactory
to
Administrative Agent.
"Stated Maturity Date" shall mean April ____, 2011.
"Survey" shall mean a survey of the Property satisfactory to
Administrative Agent in form and content and made by a registered
land surveyor
satisfactory to Administrative Agent.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental
Authority.
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"Tenant Estoppel" shall mean an estoppel in the form of Exhibit
D
attached hereto, to be completed, executed, dated and delivered by
the
applicable tenant to and Borrower in accordance with this
Agreement.
"Title Company" shall mean Chicago Title Insurance Company and any
one
or more co-insurers or reinsurers acceptable to Administrative
Agent; provided,
however, that any reinsurance shall be subject to direct access
agreements from
such reinsurers.
"Title Policy" shall mean an ALTA policy or policies of title
insurance satisfactory to Administrative Agent, together with
evidence of the
payment of all premiums due thereon, issued by the Title Company
(a) insuring
Administrative Agent for the benefit of the Lenders in an amount
equal to the
aggregate amount of the Commitments that Borrower is lawfully
seized and
possessed of a valid and subsisting fee simple and leasehold
interest in the
Property and that the Security Instrument constitutes a valid fee
simple and
leasehold mortgage/deed of trust lien on the Property, subject to
no Liens other
than Permitted Liens and (b) providing (i) affirmative insurance or
endorsements
for coverage against all mechanics' and materialmen's liens, (ii) a
pending
disbursements clause (if applicable), (iii) affirmative insurance
with respect
to the payment of all required mortgage recording taxes (if
applicable), and
(iv) such other affirmative insurance and endorsements (including,
without
limitation, CLTA 100 or its equivalent (comprehensive endorsement,
modified for
a lender), CLTA 116 (street address), CLTA 116.1 (same land as
shown on survey),
CLTA 116.4 (contiguity endorsement), Subdivision Map Act
endorsement, zoning
endorsement (including parking), CLTA 103.7 or equivalent (street
access
endorsement), usury endorsement, environmental endorsement,
mechanics' lien
endorsement, if applicable, and CLTA 124.1 (CC&Rs endorsement))
as
Administrative Agent may require.
"Trading with the Enemy Act" shall mean 50 U.S.C. App. 1 et
seq.
"Transactions" shall mean, collectively, (a) the execution,
delivery
and performance by Borrower of this Agreement and the other Loan
Documents, the
borrowing of the Loans, the use of the proceeds thereof and (b) the
execution,
delivery and performance by the other Borrower Parties of the other
Loan
Documents to which they are a party and the performance of their
obligations
thereunder.
"Transfer" shall mean any transfer, sale, lease, assignment,
mortgage,
encumbrance, pledge or conveyance of all or a portion of any of (a)
the Property
(excepting Leases for space at the Property entered into in the
normal course of
business and in compliance with the provisions of this Agreement),
(b) the
direct or indirect Equity Interests in Borrower, or (c) the direct
or indirect
right or power to direct the operations, decisions and affairs of
Borrower,
whether through the ability to exercise voting power, by contract
or otherwise.
"Uniform Commercial Code" shall mean the Uniform Commercial Code
of
the State of Pennsylvania and the state of formation/organization
of Borrower,
as applicable.
"U.S. Bank" shall mean U.S. Bank National Association, a
national
association, and its successors and/or assigns.
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<PAGE>
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as
a result of a complete or partial withdrawal from such
Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
1.02
Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all terms of
an accounting or financial nature shall be construed in
accordance
with GAAP, as in effect from time to time. Borrower shall deliver
to
Administrative Agent at the same time as the delivery of any annual
or
quarterly financial statement under Section 5.01 (i) a description
in
reasonable detail of any material variation between the application
of
accounting principles employed in the preparation of such
statement
and the application of accounting principles employed in the
preparation of the immediately preceding annual or quarterly
financial
statements as to which no objection has been made in accordance
with
subsection (a) above and (ii) reasonable estimates of the
difference
between such statements arising as a consequence thereof.
(b) Without first obtaining Administrative Agent's consent,
Borrower will not change the last day of its fiscal year from
December
31, or the last days of the first three fiscal quarters in each of
its
fiscal years.
ARTICLE II
THE LOAN FACILITY
2.01
Loans. Each Lender severally agrees, on the terms and conditions
of
this Agreement, to make a loan on a non-revolving basis to Borrower
in Dollars
at closing in amounts equal to its Proportionate Share of the
aggregate amount
of the Loan. At closing, all Loans will be made by U.S. Bank but
the Loans will
be split into three notes, as shown on Exhibit B.
2.02
Borrowings; Certain Notices.
(a) Payments by Borrower. Except to the extent otherwise
provided
herein, all payments of principal, interest and other amounts to
be
made by the Borrower under this Agreement, the Notes, and any
other
Loan Document, shall be made in U.S. Dollars, in immediately
available
funds, without deduction, set-off or counterclaim, to
Administrative
Agent (for the benefit of the Lenders) at Administrative
Agent's
Account, not later than 12:00 noon New York time, on the date on
which
such payment shall be due (each such payment made after such time
on
such due date to be deemed to have been made on the next
succeeding
Business Day).
(b) Application of Payments. Provided no Event of Default then
exits, Borrower shall, at the time of making each payment under
this
Agreement, any Note or any other Loan Document for the account of
any
Lender, be entitled to specify to Administrative Agent (which shall
so
notify the intended recipient(s) thereof) the Loans or other
amounts
to which such payment is to be applied (and if Borrower fails to
so
18
<PAGE>
specify, or if an Event of Default exists, Administrative Agent
may
distribute such payment to the Lenders for application in such
manner
as it, subject to Section 2.02(d), may determine to be
appropriate).
(c) Payments to Lenders. Provided Administrative Agent has
received such payment by 1:00 p.m. New York time, each payment
received by Administrative Agent under this Agreement, the Notes
or
any other Loan Document for account of the Lenders shall, to
the
extent reasonably possible, be paid by Administrative Agent to
such
Lender by 3:00 p.m. New York time on the Business Day on which
Administrative Agent received such payment, in immediately
available
funds, at the account designated in writing by such Lender from
time
to time. If Administrative Agent has not received such payment by
1:00
p.m. New York time, such payment shall, to the extent
reasonably
possible, be paid by Administrative Agent to such Lender by 1:00
p.m.
New York time on the next Business Day following the Business Day
on
which Administrative Agent received such payment, in
immediately
available funds, at the account designated in writing by such
Lender
from time to time.
(d) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each payment or prepayment of principal of Loans by
Borrower shall be made for account of the Lenders pro rata in
accordance with the respective unpaid principal amounts of the
Loans
held by them; and (ii) each payment of interest on Loans by
Borrower
shall be made for the account of the Lenders pro rata in
accordance
with the amounts of interest on such Loans then due and payable to
the
respective Lenders.
(e) Extension to Next Business Day. If the due date of any
payment under this Agreement or any Note would otherwise fall on a
day
that is not a Business Day, such date shall be extended to the
next
succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension;
provided,
however, that if such event relates to the Stated Maturity
Date,
payments due on the Stated Maturity Date shall be payable on
the
immediately preceding Business Day.
2.03
Lending Offices. The Loans made by each Lender shall be made
and
maintained at such Lender's Applicable Lending Office.
2.04
Several Obligations; Remedies Independent. The failure of any
Lender
to make any Loan to be made by it on the date specified therefor
shall not
relieve any other Lender of its obligation to make its Loan on such
date, but no
Lender nor Administrative Agent shall be responsible for the
failure of any
other Lender to make a Loan required to be made by such other
Lender. The
amounts payable by Borrower at any time hereunder and under the
Note to each
Lender shall be a separate and independent debt.
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<PAGE>
2.05
Notes. The Loans made by each Lender shall be evidenced by its
Note.
No Lender shall be entitled to have its Note substituted or
exchanged for any
reason, or subdivided for promissory notes of lesser denominations,
except in
connection with a permitted assignment of all or any portion of
such Lender's
Commitment, Loans and Note pursuant to Section 14.07 (and, if
requested by any
Lender in connection with such assignment, Borrower agrees to so
exchange any
such Note). In the event of the loss, theft or destruction of any
Note, upon
Borrower's receipt of a reasonably satisfactory indemnification
agreement
executed in favor of Borrower by the holder of such Note, or in the
event of the
mutilation of any Note, upon the surrender of such mutilated Note
by the holder
thereof to Borrower, Borrower shall execute and deliver to such
holder a
replacement Note in lieu of the lost, stolen, destroyed or
mutilated Note. The
Notes shall not be necessary to establish the indebtedness of the
Borrower to
the Lenders on account of advances made under this Agreement.
ARTICLE III
PAYMENTS OF INTEREST AND PRINCIPAL
3.01
Interest.
(a) Borrower hereby promises to pay to Administrative Agent for
account of each Lender interest on the unpaid principal amount of
each
Loan made by such Lender for the period from and including the date
of
such Loan to but excluding the date such Loan shall be paid in
full,
at the Elected Rate (as defined in the Notes) and in the manner
set
forth in each Note. At all times the Elected Rate shall be the
same
Elected Rate for each of the Notes executed and delivered pursuant
to
this Agreement.
(b) Promptly after the determination of any interest rate
provided for under the Notes or any change therein,
Administrative
Agent shall give notice thereof to the Lenders to which such
interest
is payable and to Borrower, but the failure of Administrative Agent
to
provide such notice shall not affect Borrower's obligation for
the
payment of interest on the Loans.
3.02
Repayment of Loans. Borrower hereby promises to pay to
Administrative
Agent for the account of each Lender the principal of such Lender's
outstanding
Loans, together with accrued and unpaid interest, fees and all
other amounts due
under the Loan Documents, on the Stated Maturity Date.
3.03
Sharing of Payments, Etc.
(a) Sharing. If any Lender obtains from Borrower payment of any
principal of or interest on any Loan owing to it or payment of
any
other amount under this Agreement or any other Loan Document
through
the exercise of any right of set-off, banker's lien or counterclaim
or
similar right or otherwise (other than from Administrative Agent
as
provided herein), and, as a result of such payment, such Lender
shall
have received a greater percentage of the principal of or interest
on
the Loans or such other amounts then due hereunder or thereunder
by
Borrower to such Lender than the percentage received by any
other
20
<PAGE>
Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such
Lender,
direct interests in) the Loans or such other amounts,
respectively,
owing to such other Lenders (or in interest due thereon, as the
case
may be) in such amounts, and make such other adjustments from time
to
time as shall be equitable, to the end that all the Lenders
shall
share the benefit of such excess payment (net of any expenses that
may
be incurred by such Lender in obtaining or preserving such
excess
payment) pro rata in accordance with the unpaid principal of
and/or
interest on the Loans or such other amounts, respectively, owing
to
each of the Lenders. To such end, all the Lenders shall make
appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or
must
otherwise be restored. Each Lender agrees that it shall turn over
to
Administrative Agent (for distribution by Administrative Agent to
the
other Lenders in accordance with the terms of this Agreement)
any
payment (whether voluntary or involuntary, through the exercise of
any
right of setoff or otherwise) on account of the Loans held by it
in
excess of its ratable portion of payments on account of the
Loans
obtained by all the Lenders.
(b) Consent by Borrower. Borrower agrees that any Lender so
purchasing such a participation (or direct interest) may
exercise
(subject, as among the Lenders, to Section 9.10) all rights of
set-off, banker's lien, counterclaim or similar rights with respect
to
such participation as fully as if such Lender were a direct holder
of
Loans or other amounts (as the case may be) owing to such Lender
in
the amount of such participation.
(c) Rights of Lenders; Bankruptcy. Nothing contained herein
shall
require any Lender to exercise any such right or shall affect
the
right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness
or
obligation of Borrower. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured
claim
in lieu of a set-off to which Section 9.10 applies, then such
Lender
shall, to the extent practicable, exercise its rights in respect
of
such secured claim in a manner consistent with the rights of
the
Lenders entitled under Section 9.10 to share in the benefits of
any
recovery on such secured claim.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and the
Lenders
that:
4.01
Organization; Powers. Each of Borrower Parties is duly
organized,
validly existing and in good standing under the laws of the
jurisdiction of its
organization, has all requisite power and authority to carry on its
business as
now conducted and, except where the failure to do so, individually
or in the
aggregate, could not reasonably be expected to result in a Material
Adverse
Effect, is qualified to do business in, and is in good standing in,
every
jurisdiction where such qualification is required. Each of Borrower
and the
Guarantor is qualified to do business and in good standing in the
States of
Delaware and Pennsylvania.
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<PAGE>
4.02
Authorization; Enforceability. The Transactions are within each
of
Borrower Party's organizational powers and have been duly
authorized by all
necessary organizational action under their respective
Organizational Documents.
This Agreement and the other Loan Documents have been duly executed
and
delivered by Borrower Parties party thereto and each of the Loan
Documents to
which a Borrower Party is a party when delivered will constitute, a
legal, valid
and binding obligation of the applicable Borrower Party,
enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency,
reorganization, moratorium or other laws of affecting creditors'
rights
generally and subject to general principles of equity (regardless
of whether
such enforceability is considered in a proceeding in equity or at
law).
4.03
Government Approvals; No Conflicts. The Transactions (a) do not
require any Government Approvals of, registration or filing with,
or any other
action by, any Governmental Authority, except for (i) such as have
been obtained
or made and are in full force and effect and (ii) filings and
recordings in
respect of the Liens created pursuant to the Security Documents,
(b) will not
violate any Applicable Law or the Organizational Documents of any
of Borrower
Parties, (c) will not violate or result in a default under any
indenture,
agreement or other instrument binding upon any of Borrower Parties,
or give rise
to a right thereunder to require any payment to be made by any of
Borrower
Parties, and (d) except for the Liens created pursuant to the
Security
Documents, will not result in the creation or imposition of any
Lien on any
asset of any of Borrower Parties.
4.04
Financial Condition. Borrower has heretofore furnished to each of
the
Lenders certain financial statements of Borrower and Guarantor. All
such
financial statements are complete and correct in all material
respects and
fairly present the financial condition of Borrower and Guarantor as
of the dates
of such financial statements, all in accordance with GAAP. Neither
Borrower or
Guarantor has on the date hereof any Indebtedness, material
contingent
liabilities, liabilities for taxes, unusual forward or long-term
commitments or
unrealized or anticipated losses from any unfavorable commitments,
except as
referred to or reflected or provided for in said balance sheets as
at said
dates. Since the applicable dates of such financial statements,
there has been
no event that would have a Material Adverse Effect.
4.05
Litigation. Except as disclosed in Schedule II hereto, (a) there
are
no legal or arbitral proceedings, or any proceedings by or before
any
Governmental Authority or agency, now pending or (to the Knowledge
of Borrower)
threatened against Borrower or the Property and (b) except with
respect to
proceedings which, if adversely determined, would not have a
Material Adverse
Effect, there are no legal or arbitral proceedings, or any
proceedings by or
before any Governmental Authority or agency, now pending or (to the
Knowledge of
Borrower) threatened against any other Borrower Party.
4.06
ERISA. Borrower has not established any Plan which would cause
Borrower to be subject to ERISA and none of Borrower's assets
constitutes or
will constitute "plan assets" of one or more Plans. No ERISA Event
has occurred
or is reasonably expected to occur that, when taken together with
all other such
ERISA Events for which liability is reasonably expected to occur,
could
reasonably be expected to result in a Material Adverse Effect. Each
Plan, and,
to the Knowledge of Borrower Parties, each, Multiemployer Plan, is
in compliance
with, the applicable provisions of ERISA, the Code and any other
Applicable Law.
22
<PAGE>
4.07
Taxes. Each of Borrower Parties has timely filed or timely caused
to
be filed all Tax returns and reports required to have been filed
and has paid or
caused to be paid all Taxes required to have been paid by it,
except (a) Taxes
that are being contested in good faith by appropriate proceedings
and for which
such Borrower Party has set aside on its books adequate reserves in
accordance
with GAAP or (b) to the extent that the failure to do so could not
reasonably be
expected to result in a Material Adverse Effect.
4.08
Investment and Holding Company Status. None of Borrower Parties is
(a)
an "investment company" as defined in, or subject to regulation
under, the
Investment Company Act of 1940 or (b) a "holding company", or an
"affiliate" of
a "holding company" or a "subsidiary company" of a "holding
company", as defined
in, or subject to regulation under, the Public Utility Holding
Company Act of
1935.
4.09
Organizational Structure.
(a) Borrower has heretofore delivered to Administrative Agent a
true and complete copy of the Organizational Documents of each
Borrower Party. The General Partner is the sole manager of the
Borrower.
(b) Schedule III contains a true and accurate chart reflecting
the ownership of all of the direct and indirect Equity Interests
in
Borrower, including the percentage of ownership interest of the
Persons shown thereon.
(c) Borrower has no Subsidiaries.
4.10
Title.
(a) Borrower owns and has on the date hereof good, indefeasible
and insurable fee simple and leasehold title to the Property free
and
clear of all Liens, other than Permitted Liens. Borrower owns and
has
on the date hereof good and marketable title to all other portions
of
the Property. There are no outstanding options to purchase or
rights
of first refusal affecting the Property.
(b) Borrower owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by Borrower does
not
infringe upon the rights of any other Person, except for any
such
infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Borrower is now and shall continue to be the sole owner of
the Collateral free from any lien, security interest or adverse
claim
of any kind whatsoever, except for liens or security interests
in
favor of Administrative Agent, the interest of a lessor pursuant to
a
lease of personal property approved by Administrative Agent, in
Administrative Agent's sole good faith discretion, or liens or
security interests otherwise approved by Administrative Agent
in
Administrative Agent's sole good faith discretion. Notwithstanding
the
foregoing, any leases for personal property valued at less than
$250,000.00 shall not require the approval of Administrative
Agent
pursuant to this Section 4.10 (c).
23
<PAGE>
4.11
No Bankruptcy Filing. Borrower is not contemplating either the
filing
of a petition by it under any state or federal bankruptcy or
insolvency laws or
the liquidation of all or a major portion of Borrower's assets or
property, and
Borrower has no Knowledge of any Person contemplating the filing of
any such
petition against it.
4.12
Executive Offices; Places of Organization. The location of
Borrower's
and the general partner of Borrower's and the general partner of
Borrower's
principal place of business is the address set forth in the
preamble of this
Agreement, except to the extent changed in accordance with Section
6.06.
Borrower was and remains organized under the laws of the State of
Delaware.
4.13
Compliance; Government Approvals.
To
the best of Borrower's knowledge, Borrower, the Property and
Borrower's
use thereof and operations thereat comply, and upon completion of
construction
of the Improvements will comply, in all material respects with all
Applicable
Laws.
4.14
Condemnation; Casualty. No Condemnation has been commenced or,
to
Borrower's knowledge, is contemplated with respect to all or any
portion of the
Property or for the relocation of roadways providing access to the
Property. No
Casualty has occurred with respect to the Property.
4.15
Solvency. On the Closing Date and after and giving effect to the
Loans
occurring on the Closing Date, and the disbursement of the proceeds
of such
Loans pursuant to Borrower's instructions, each Borrower Party is
and will be
Solvent.
4.16
Governmental Regulations. Borrower is not a "foreign person"
within
the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as
amended from time to time. No part of the proceeds of the Loan made
hereunder
will be used for "purchasing" or "carrying" "margin stock" as so
defined or for
any purpose which violates, or which would be inconsistent with,
the provisions
of the Regulations of the Board of Governors of the Federal Reserve
System. The
Loan is an exempt transaction under the Truth-in-Lending Act (15
U.S.C.A.
Sections 1601, et seq.).
4.17
No Joint Assessment; Separate Lots. Borrower has not suffered,
permitted or initiated the joint assessment of the Property with
any other real
property constituting a separate tax lot.
4.18
Security Documents and Liens. Upon recording the Security
Documents
will create, as security for the Obligations, valid and
enforceable, exclusive,
perfected first priority security interests in and Liens on all of
the
respective collateral intended to be covered thereunder, in favor
of
Administrative Agent as administrative agent for the ratable
benefit of the
Lenders, subject to no Liens other than the Permitted Liens, except
as
enforceability may be limited by applicable insolvency, bankruptcy
or other laws
24
<PAGE>
affecting creditors rights generally, or general principles of
equity, whether
such enforceability is considered in a proceeding in equity or at
law. Such
security interests in and Liens on such collateral shall be
superior to and
prior to the rights of all third parties in such collateral, and,
other than in
connection with any future change in Borrower's name or the
location in which
Borrower is organized or registered, no further recordings or
filings are or
will be required in connection with the creation, perfection or
enforcement of
such security interests and Liens, other than the filing of
continuation
statements in accordance with applicable law. A financing statement
for all
property covered by any Security Document that is subject to a
Uniform
Commercial Code financing statement has been filed and/or recorded,
as
appropriate, (or irrevocably delivered to a title agent for such
recordation or
filing) in all places necessary to perfect a valid first priority
security
interest with respect to the rights and property that are the
subject of such
Security Document to the extent governed by the Uniform Commercial
Code. All
continuations and any assignments of any such financing statements
required to
be executed and recorded by Borrower have been or will be timely
filed or
refiled, as appropriate, in the appropriate filing offices.
4.19
Material Agreements. Borrower has heretofore delivered to
Administrative Agent a true, correct and complete copy of each
Material
Agreement, and the Material Agreements constitute all of the
agreements to which
Borrower (or any predecessor-in-interest to Borrower) is a party
that materially
affects or relates to the ownership or operation of the Shopping
Center. Subject
to the terms of Section 6.13, none of the Material Agreement has
been further
Modified. The Material Agreements are in full force and effect and
Borrower is
not in default beyond any applicable notice or cure periods under
or with
respect to any Material Agreement. To Borrower's Knowledge, no
other party to a
Material Agreement is in default under any material covenant or
obligation set
forth therein.
4.20
Leases. Except as disclosed on the rent rolls attached hereto
as
Schedule IV, with respect to the Leases: (1) the rents rolls
attached hereto as
Schedule IV are true, correct and complete with respect to Leases
(with all
leases for a term of 13 months or longer) and all the Leases
referred to thereon
are all valid and in full force and effect; (2) the Leases
(including any
Modifications thereto) are in writing and there are no oral
agreements with
respect thereto; (3) the copies of each of the Leases delivered
to
Administrative Agent are true, correct and complete; (4) neither
Borrower nor,
to Borrower's knowledge, any tenant is in default under any of the
Leases; (5)
Borrower has no Knowledge of any notice of termination or notice of
default with
respect to any Lease; (6) Borrower has not assigned or pledged any
of the
Leases, the rents or any interests therein except to Administrative
Agent; (7)
no tenant or other party has an option or right of first refusal to
purchase all
or any of portion of the Property; and (8) no tenant has prepaid
more than one
month's rent in advance.
4.21
Ground Lease. (a) Borrower has delivered to the Administrative
Agent a
true and complete copy of the Ground Lease, (b) the Ground Lease
has not been
further Modified or terminated, (c) the Ground Lease is in full
force and
effect, (d) neither the Borrower nor, to Borrower's Knowledge,
Ground Lessor is
in default thereunder, and no event or circumstance exists that
with the passage
of time or the giving of notice, or both, would constitute a
default by either
party thereunder; (e) the Ground Lease or a memorandum thereof has
been duly
recorded in the Official Records, (f) the Ground Lease permits the
interest of
the Borrower thereunder to be encumbered by the Security Instrument
and assigned
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to the Administrative Agent without the need to obtain the consent
of Ground
Lessor, and in the event that it is so assigned or the
Administrative Agent
forecloses on the same pursuant to the Security Instrument, it is
further
assignable by the Administrative Agent in connection with the sale
or other
disposition of the Improvements without the need to obtain the
consent of Ground
Lessor; (g) the Ground Lease has a remaining term of not less than
fifty (50)
years beyond the Stated Maturity Date (h) the Ground Lease does not
prohibit
subletting; (i) all rent and other sums payable by the Borrower
under the Ground
Lease have been paid through the date of on which this
representation is made
(or deemed made); and (j) the Borrower has accepted possession of
the leased
Property pursuant to the Ground Lease.
4.22
Insurance. Borrower has in force, and has paid the Insurance
Premiums
in respect of, all of the insurance required by Section 8 of the
Mortgage
4.23
Flood Zone. No portion of the Improvements is located in a
flood
hazard area as designated by the Federal Emergency Management
Agency or, if in
the flood zone, flood insurance is maintained therefor in full
compliance with
the provisions of Section 8 of the Mortgage.
4.24
Property Management Agreement . The (a) Property Management
Agreement
is (i) the only management related to the Property and (ii) in full
force and
effect with no default or event of default existing thereunder.
4.25
Boundaries. Except as disclosed on the ALTA survey delivered to
U.S.
Bank in connection with the Loan, none of the Improvements are
outside the
boundaries of the Property (or building restriction or setback
lines applicable
thereto) and no improvements on adjoining properties encroach upon
the Land and
no easements or other encumbrances upon the Land encroach upon any
of the
Improvements so as to adversely effect the value or marketability
of the
Property.
4.26
Illegal Activity. No portion of the Property has been purchased
with
proceeds of any illegal activity and no part of the proceeds of the
Loans will
be used in connection with any illegal activity.
4.27
Permitted Liens. None of the Permitted Liens individually or in
the
aggregate, materially interferes with the benefits of the security
intended to
be provided by the Loan Documents, materially and adversely affects
the value of
the Property, impairs the use or the operation of the Property or
impairs
Borrower's ability to pay its obligations in a timely manner.
4.28
Anti-Terrorism Laws.
(a) None of Borrower or, to Borrower's Knowledge, its
Affiliates
is in violation of any Anti-Terrorism Laws.
(b) None of Borrower or, to Borrower's Knowledge, any of its
Affiliates, or any of its brokers or other agents acting or
benefiting
in any capacity in connection with the Loan is any of the
following:
(i) a person or entity that is listed in the Annex to, or is
otherwise
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subject to the provisions of, the Anti-Terrorism Order; (ii) a
person
or
entity owned or controlled by, or acting for or on behalf of,
any
person or entity that is listed in the Annex to, or is
otherwise
subject to the provisions of, the Anti-Terrorism Order; (iii) a
person
or entity with whom any Lender is prohibited from dealing or
otherwise
engaging in any transaction by any Anti-Terrorism Law; (iv) a
person
or entity who commits, threatens or conspires to commit or
supports
"terrorism" as defined in the Anti-Terrorism Order; or (v) a person
or
entity that is named as a "specially designated national and
blocked
person" 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.
(c) None of Borrower or, to Borrower's Knowledge, any of its
Affiliates or any of its brokers or other agents acting in any
capacity in connection with the Loan (i) conducts any business
or
engages in making or receiving any contribution of funds, goods
or
services to or for the benefit of any Person described in clause
(b)
above, (ii) deals in, or otherwise engages in any transaction
relating
to, any property or interests in property blocked pursuant to
the
Anti-Terrorism Order, or (iii) engages in or conspires 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.
4.29
Defaults. No Event of Default exists.
4.30
Other Representations. All of the representations in the other
Loan
Documents by Borrower and its Affiliates are true and correct in
all material
respects as of the date hereof.
4.31
Employee Benefit Plans. Borrower maintains no pension, retirement
or
profit sharing employee benefit plan that is subject to any
provision of ERISA.
Borrower has no employees.
4.32
Consents, Etc. No consent, approval, authorization of, or
registration, declaration or filing with any Governmental Authority
or any
Person is required on the part of Borrower in connection with the
execution and
delivery of the Loan Documents or the performance of or compliance
with the
terms, provisions and conditions hereof or thereof.
4.33
Appraisal. Borrower is not aware of any facts or circumstances of
any
nature which make the Appraisal of the Property inaccurate in any
material
respect.
4.34
Labor Controversies. To Borrower's knowledge there are no labor
controversies pending or threatened against Borrower with respect
to the
Property or any construction contractor involved in the
construction of the
Improvements which have not been disclosed in writing to the
Administrative
Agent or the Lenders and would not constitute or result in a
Material Adverse
Effect.
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4.35
Insider. Neither Borrower nor any Affiliate of Borrower (which
shall
not include any limited partner of Borrower which is not deemed to
have
"control" of Borrower respectively, as the term "control" is
defined in 12
U.S.C. ss.375b(9)(B) or in regulations promulgated pursuant
thereto) nor any
other Person having "control" (as so defined) of Borrower is, or is
a "related
interest" of, an "executive officer", "director", or Person who
"directly or
indirectly, or acting through or in concert with one or more
persons, owns,
controls, or has the power to vote more than 10 percent of any
class of voting
securities" or other "insider" (as those terms are defined in 12
U.S.C. ss.375b
or in regulations promulgated pursuant thereto) of any Lender, of a
bank holding
company of which any Lender is a subsidiary, or of any subsidiary
of a bank
holding company of which any Lender is a subsidiary, or of any bank
at which any
Lender maintains a correspondent account, or of any bank which
maintains a
correspondent account with any Lender.
4.36
True and Complete Disclosure. To Borrower's Knowledge, the
information, reports, financial statements, exhibits and schedules
furnished in
writing by or on behalf of Borrower Parties to Administrative Agent
or any
Lender in connection with the negotiation, preparation or delivery
of this
Agreement and the other Loan Documents or included herein or
therein or
delivered pursuant hereto or thereto, when taken as a whole do not
contain any
untrue statement of material fact or omit to state any material
fact necessary
to make the statements herein or therein, in light of the
circumstances under
which they were made, not misleading. All written information
furnished after
the date hereof by any Borrower Party to Administrative Agent and
the Lenders in
connection with this Agreement and the other Loan Documents and the
Transactions
will be true, complete and accurate in every material respect, or
(in the case
of projections) based on reasonable estimates, on the date as of
which such
information is stated or certified. There is no material fact known
to any
Borrower Party that could reasonably have a Material Adverse Effect
that has not
been disclosed herein, in the other Loan Documents or in a report,
financial
statement, exhibit, schedule, disclosure letter or other writing
furnished to
Administrative Agent or the Lenders for use in connection with the
Transactions.
ARTICLE V
AFFIRMATIVE COVENANTS OF BORROWER
Borrower covenants and agrees with the Lenders and Administrative
Agent
that, so long as any Commitment or Loan is outstanding and until
payment in full
of all amounts payable by Borrower hereunder:
5.01
Information. Borrower shall deliver to Administrative Agent:
(a) Within forty-five (45) days after the close of each
calendar
quarter (except for the fourth quarter) unaudited financial
statements
(in form reasonably satisfactory to Administrative Agent) of
Guarantor
for each such calendar quarter and within ninety (90) days after
the
close of each calendar year, audited annual financial statements
(in
form reasonably satisfactory to Administrative Agent) of Borrower
and
Guarantor including (i) a balance sheet and statement of profit
and
loss setting forth in comparative form figures for the
preceding
calendar year, prepared in accordance with GAAP;
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<PAGE>
(b) not
later than forty-five (45) days after the close of each
calendar quarter of Borrower (in form reasonably satisfactory
to
Administrative Agent): (i) a current rent roll for the Property
setting forth the name of each tenant at the Property, the number
of
square feet comprising the space leased to each such tenant and
the
location on the Property of such space, the amount of rent paid
by
each such tenant and the respective dates of the execution,
commencement and expiration of each Lease for each such tenant;
(c) not later than forty-five (45) days after the close of each
calendar quarter of Borrower (in form reasonably satisfactory
to
Administrative Agent) a financial statement for the Property
consisting of a balance sheet, itemized statement of income and
operating expenses including results for the quarter, year-to-date
and
on a rolling twelve month basis quarterly and year to date figures
for
the preceding calendar year, prepared in accordance with GAAP
and
Borrower shall provide the Administrative Agent with a
compliance
certificate evidencing that no Event of Default exists pursuant
to
Section 5. 13(a) hereof within forty-five (45) days of each
calendar
quarter by submitting a certificate of compliance substantially in
the
form of Exhibit F attached hereto along with supporting
documentation
detailing the covenant calculation;
(d) at the time of the delivery of each of the financial
statements provided for in subsections (a), (b) and (c) of this
Section 5.01, a certificate of an Authorized Officer of
Borrower
and/or the Guarantor, as applicable, certifying that (i) such
respective financial statements and reports as being true,
correct,
and accurate and (ii) that such officer has no knowledge (after
due
inquiry), except as specifically stated, of any Default or if a
Default has occurred, specifying the nature thereof in
reasonable
detail and the action which Borrower is taking or proposes to
take
with respect thereto;
(e) a copy of each executed federal tax return of Borrower,
with
all schedules attached, within thirty (30) days after the last
date
that the same can be filed without imposition of a penalty for
late
filing or a copy of the extension form;
(f) Borrower shall cause Guarantor to provide the
Administrative
Agent with a compliance certificate evidencing that no Event of
Default exists pursuant to Section 7.01(v) of this Agreement
and
further providing any other information reasonably required by
Administrative Agent to evidence such compliance within
forty-five
(45) days subsequent to each calendar quarter end by submitting
a
certificate of compliance substantially in the form of Exhibit
G
attached hereto along with supporting documentation detailing
the
covenant calculation, providing however, that so long as Guarantor
has
timely submitted its quarterly compliance certificate as
required
under the GPLP Revolving Credit Facility, the requirements of
this
subsection 5.01(f) shall be deemed satisfied; and
(g) from time to time such other information regarding the
financial condition, operations, business or prospects of
Borrower,
the Property and/or the other Borrower Parties as Administrative
Agent
may reasonably request.
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<PAGE>
5.02
Notices of Material Events. Borrower shall give to
Administrative
Agent prompt written notice of the following:
(a) the occurrence of any Default or Event of Default,
including
a description of the same in reasonable detail;
(b) the commencement (or threatened commencement) of any legal
or
arbitral proceedings, and of all proceedings by or before any
Governmental Authority, and any material development in respect
of
such legal or other proceedings that could reasonably be expected
to
result in a Material Adverse Effect affecting any of Borrower
Parties,
the Property, the Ground Lease or any Material Agreement;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably
be
expected to result in liability of Borrower;
(d) the occurrence of any material default by any other party
under (i) the Ground Lease, (ii) any Major Lease, or (iii) any
Material Agreement;
(e) copies of any material notices or documents that could
reasonably be expected to result in a Material Adverse Effect (i)
sent
to or received by Borrower pursuant to the Ground Lease, any
Lease,
any Material Agreement and (ii) any notices or documents that
could
reasonably be expected to result in a Material Adverse Effect
received
from any Governmental Authority;
(f) notice of any threatened Condemnation, or the occurrence of
any Casualty; and
(g) any other development that results in, or could reasonably
be
expected to result in, a Material Adverse Effect.
Each
notice delivered under this Section 5.02 shall be accompanied by
a
statement of an Authorized Officer of Borrower setting forth the
details of the
event or development requiring such notice and any action taken or
proposed to
be taken with respect thereto.
5.03
Existence, Etc. Borrower will, and will cause each other
Borrower
Party to, preserve and maintain its legal existence and all
material rights,
privileges, licenses and franchises necessary for the maintenance
of its
existence and the conduct of its affairs.
5.04
Compliance with Laws; Adverse Regulatory Changes.
(a) Borrower shall comply in all material respects (subject to
such more stringent requirements as may be set forth elsewhere
herein)
with all Applicable Laws. Borrower shall maintain in full force
and
effect all Government Approvals and shall from time to time obtain
all
Government Approvals as shall now or hereafter be necessary
under
Applicable Law in connection with the operation or maintenance of
the
Property. Upon request, Borrower shall promptly furnish a true
and
complete copy of each such Government Approval to
Administrative
Agent. Borrower shall, unless otherwise approved by
Administrative
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<PAGE>
Agent, use its reasonable efforts to contest any proceedings
before
any Governmental Authority and to resist any proposed adverse
changes
in Applicable Law to the extent that such proceedings or changes
are
directed specifically toward the Property or could reasonably
be
expected to have a Material Adverse Effect.
(b) Borrower, at its own expense, may contest by appropriate
legal proceedings promptly initiated and conducted in good faith
and
with due diligence, the validity or application of any Applicable
Law;
provided that: (i) no Event of Default or monetary Default of
which
Administrative Agent has given Borrower notice exists; (ii)
Borrower
shall pay any outstanding fines, penalties or other payments
under
protest unless such proceeding shall suspend the collection of
such
items; (iii) such proceeding shall be permitted under and be
conducted
in accordance with the provisions of any other instrument to
which
Borrower or the Property is subject and shall not constitute a
default
thereunder; (iv) no part of or interest in the Property will be
in
imminent danger of being sold, forfeited, terminated, canceled or
lost
during the pendency of the proceeding; (v) such proceeding shall
not
subject Borrower, Administrative Agent or any Lender to criminal
or
civil liability (other than civil liability as to which
adequate
security has been provided pursuant to clause (vi) below); (vi)
unless
paid under protest, Borrower shall have furnished such security as
may
be required in the proceeding, or as may be reasonably requested
by
Administrative Agent, to insure the payment of any such items,
together with all interest and penalties thereon, which shall not
be
less than 110% of the maximum liability of Borrower as
reasonably
determined by
Administrative Agent, which security shall be deposited
in a Controlled Account; and (vii) Borrower shall promptly upon
final
determination thereof pay the amount of such items, together with
all
costs, interest and penalties.
5.05
Management of the Property, Leasing of the Property.
(a) Borrower shall (i) cause the Property to be managed by the
Property Manager in accordance with the Property Management
Agreement,
and (ii) promptly notify Administrative Agent in writing of any
material default under the Property Management Agreement of which
it
is aware.
(b) Borrower will not, without the prior written approval of
Administrative Agent, (i) enter into any new Property
Management
Agreement, (ii) Modify the Property Management Agreement,
either
orally or in writing, in any respect or (iii) consent to, approve
or
agree to any assignment or transfer by or with respect to the
Property
Manager (including transfer
