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PROMISSORY NOTE
$8,000,000.00 October 16, 2000
FOR VALUE RECEIVED, GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("GPLP") and GLIMCHER PROPERTIES CORPORATION, a Delaware
corporation ("GPC"; GPLP and GPC collectively referred to as "Borrower"), each
having an address at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, jointly and
severally promise to pay to BANKERS TRUST COMPANY, a New York banking
corporation ("Lender"), or order, at 000 Xxxxxxx Xxxxxx, Xxxxxx-Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as Lender may from time to time in
writing designate, in lawful money of the United States of America, the
principal sum of EIGHT MILLION AND NO/100 DOLLARS ($8,000,000.00) or such other
sum as may be the total amount outstanding pursuant to this Note, on or before
the Maturity Date (as hereinafter defined), together with accrued interest on
the principal balance outstanding from time to time, in like money, from the
date of this Note until fully repaid at the rates hereinafter set forth.
Interest shall be computed and shall accrue on the principal amount from time to
time outstanding from the date hereof to and including the date of repayment in
full at a rate per annum equal to the Applicable Interest Rate (as hereinafter
defined) from time to time in effect. Principal payments shall be payable at the
time and in the manner specified in this Note.
1. DEFINITIONS. As used herein, the terms "Borrower" and "Lender" have
the meanings assigned in the preceding paragraph, and the following terms have
the following meanings:
"Applicable Interest Rate" shall mean, (i) for the period from
and including the date hereof to and including the Initially Scheduled
Maturity Date, a rate per annum equal to Eleven Percent (11.0%) and
(ii) if the Note is extended in accordance with Section 5 hereof, for
the period following the Initially Scheduled Maturity Date, a rate per
annum equal to Fourteen Percent (14.0%).
"Borrowing Date" shall have the meaning assigned to such term
in Section 2(c) hereof.
"Default" shall mean any event which, with the giving of any
applicable notice and/or the passage of any applicable time period to
cure, would constitute an Event of Default.
"Default Rate" shall mean, subject to the provisions of
Section 8 hereof, a rate per annum equal to four percent (4%) plus the
Applicable Interest Rate in effect from time to time.
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"Event of Default" shall mean the occurrence or happening,
from time to time, of any one or more of the following:
(a) If Borrower shall default in the due and punctual
payment of all or any portion of any installment of the Indebtedness as
and when the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment or by acceleration or
otherwise and, if such default relates to the failure to make a payment
of interest, such default shall continue for a period of three days
from the date that such payment was due.
(b) If Borrower shall default in the payment of any
late charge due under this Note as and when the same shall become due
and payable.
(c) If voluntary or involuntary proceedings under the
Federal Bankruptcy Code, as amended, shall be commenced by or against
either Borrower or bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation or other similar proceedings
shall be instituted by or against either Borrower with respect to all
or any part of the property of either Borrower under the Federal
Bankruptcy Code, as amended, or other law of the United States or of
any state or other competent jurisdiction, and if such proceedings are
instituted against either Borrower, any such party shall consent
thereto or shall fail to cause the same to be discharged within 60 days
(any of the events described in this clause (c) a "Bankruptcy Event").
(d) If any representation or warranty made by any
Borrower in, under or pursuant to this Note or the other Loan Documents
shall prove to have been false or misleading in any material respect as
of the date on which such representation or warranty was made.
(e) If a default shall occur with respect to any
covenant or agreement contained in this Note other than as specifically
set forth in this definition or if a default shall occur and be
continuing after the expiration of any applicable grace or cure period
under any of the other Loan Documents.
(f) If a final judgment for the payment of money in
excess of One Million Dollars ($1,000,000) shall be rendered against
either Borrower and the same shall remain unpaid for a period of 60
days during which period execution shall not be effectively stayed.
(g) The dissolution or termination, as may be
applicable, of any Borrower.
(h) If any Borrower shall default in the timely
payment of any outstanding indebtedness which it is legally obligated
to pay in excess of $1,000,000, in the aggregate, or if a joint venture
in which either Borrower is a member or partner shall default in the
timely payment of any outstanding indebtedness which it is legally
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obligated to pay in excess of $1,000,000, in the aggregate, in each
case beyond any applicable cure or grace period.
(i) Any Loan Document shall for any reason cease to
be valid and binding on or enforceable or create the security interest
it purports to create against Borrower, or its assets, any other person
party thereto or any collateral is transferred or assigned in breach of
the terms of the Loan Documents.
(j) If there shall occur a material adverse change in
the financial condition or business prospect of any Project.
(k) Any Transfer occurs in violation of Section 29(b)
of this Note.
"Extended Maturity Date" shall have the meaning assigned to
such term in Section 5 hereof.
"Extension" shall have the meaning assigned to such term in
Section 5 hereof.
"Extension Fee" shall mean a fee payable to Lender in
consideration for the Extension, in an amount equal to 1% of the
Principal Balance.
"Extension Notice" shall have the meaning assigned to such
term in Section 5(a) hereof.
"Indebtedness" shall mean the principal of and accrued
interest on and all other amounts, payments and premiums due under this
Note (including any future advances), and all other amounts, now
existing or hereafter arising of any Borrower owing to Lender under
and/or secured by the Loan Documents, or any amendments, modifications,
renewals, substitutions and extensions of any of the foregoing.
"Initially Scheduled Maturity Date" shall mean January 16,
2001.
"Interest Payment Date" shall have the meaning assigned to
such term in Section 4(a) hereof.
"Loan" shall mean the loan made by Xxxxxx to Borrower
evidenced by this Note.
"Loan Documents" shall mean this Note, the Mortgages (if any)
and any and all other documents now or hereafter executed by any
Borrower by or in favor of Lender, which wholly or partially evidence,
guaranty, or secure the Loan, or are executed in connection therewith,
together with all amendments, modifications, renewals, substitutions
and extensions of any of the foregoing.
"Loan Month" shall mean any full calendar month during the
term of this Note, with the first Loan Month being October 2000.
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"Maturity Date" shall mean the earlier to occur of (i) the
Initially Scheduled Maturity Date (or in the event that this Note is
extended in accordance with Section 5 hereof, the Extended Maturity
Date), or (ii) the date on which the entire principal amount evidenced
by this Note and all accrued interest thereon shall be paid or be
required to be paid in full, whether by prepayment, acceleration or
otherwise.
"Maximum Rate" shall mean the highest interest rate allowed by
New York law, as applicable, as amended from time to time, in effect on
the date for which a determination of interest accrued hereunder is
made; provided however, if United States federal law is preemptive and
requires a lower interest rate such rate shall be applicable.
"Mortgage Collateral" shall mean a first mortgage lien on each
Project, pursuant to a mortgage or deed of trust, as applicable
substantially in the form of the mortgages delivered by affiliates of
the Borrowers to secure the loan made by Xxxxxx in the amount of $10
million on September 15, 1998, with such changes as are reasonably
required by Lender to conform to local law and practice, which lien
shall be insured by a national title insurance company, and which lien
shall be subject only to such exceptions as are acceptable to Lender
and its counsel.
"Projects" shall mean each property identified on Exhibit A
attached hereto, including all improvements thereon and all
appurtenances thereto.
"Principal Balance" shall mean the balance of the following
sums outstanding from time to time: (i) the initial $8,000,000.00
advanced hereunder, plus (ii) any other sums advanced under the Loan
Documents, less (iii) any applicable reduction of principal made in
accordance with the terms of this Note.
"Revolving Credit Agreement" shall mean that certain Second
Amended and Restated Loan Agreement dated as of May 14, 1997 (as
amended on June 17, 1999) among GPLP, as borrower, Glimcher Realty
Trust and Glimcher Properties Corporation, as guarantors the banks and
other financial institutions from time to time a party thereto and The
Huntington National Bank ("Huntington") and Keybank National
Association as co-agents and Huntington as administrative agent, as the
same may be further amended, supplemented, restated or otherwise
modified from time to time.
"Structuring Fee" has the meaning assigned to such term in
Section 25(b) of this Note.
"Transfer" has the meaning assigned to such term in Section
29(b) of this Note.
2. THE LOAN. On the date hereof, Xxxxxx has advanced the Loan in the
amount of $8,000,000 to Borrower.
3. INTEREST RATE. Subject to Sections 8, 10 and 11 below, from the date
of this Note to and including the date that the Loan is repaid in full, the
Principal Balance shall bear interest at the Applicable Interest Rate from time
to time in effect. Interest shall be calculated using the
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actual days the Principal Balance is outstanding hereunder divided by 360 days
and multiplied by the Applicable Interest Rate.
4. PAYMENT OF PRINCIPAL AND INTEREST.
(a) Payment of Interest. Commencing on November 1,
2000, and on the first day of each succeeding month (each, an "Interest
Payment Date") to and including the first day of the Loan Month in which
the Maturity Date occurs, interest on the Principal Balance of the Loan
at the Applicable Interest Rate shall be payable monthly in arrears.
(b) Payments on the Maturity Date. On the Maturity
Date, a final installment shall be payable, which installment shall
include:
(i) all unpaid amounts of the Principal
Balance of the Loan;
(ii) interest accrued and unpaid thereon at
the Applicable Interest Rate; and
(iii) all other sums due under this Note and
the other Loan Documents, including the Structuring Fee, to
the extent not previously paid.
5. EXTENSION. So long as no Event of Default has occurred and is
continuing, Borrower shall have the right to extend the maturity of this Note
(the "Extension") to April 16, 2001 (the "Extended Maturity Date") provided that
Xxxxxxxx's right to extend the Loan shall be subject to the satisfaction of the
following conditions:
(a) delivery to Lender of (i) a written notice (the "Extension
Notice") of the proposed extension on or before a date which is not
less than ten (10) days prior to the Initially Scheduled Maturity Date;
(b) payment to Lender of the Extension Fee on the date that
the Extension Notice is delivered;
(c) If not previously delivered, Borrower shall have delivered
the Mortgage Collateral to Lender in recordable form for recordation,
together with all other deliveries and payments described in Section
29(n); and
(d) Borrower shall have paid the Structuring Fee in accordance
with Section 25(b) of this Note.
6. APPLICATION OF PAYMENTS. Each payment received by Xxxxxx from
Borrower with respect to this Note shall be applied: First, to the payment of
any late charges due and payable hereunder; Second, to the repayment of any
amounts advanced by Lender in accordance with the Loan Documents for insurance
premiums, taxes, assessments or for preservation or protection of the collateral
covered by those documents and to the payment of all costs and expenses incurred
by Lender in connection with the collection of this Note (including, without
limitation, all attorneys' fees payable hereunder); Third, to the payment of
accrued interest; and Fourth, to reduction of the Principal Balance, or in such
order or proportion as Lender, in Xxxxxx's sole discretion, may determine.
Payments shall be deemed made when checks drawn against good funds are received
by Xxxxxx.
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7. PREPAYMENT.
(a) This Note may be prepaid in whole but not in part
at any time upon not less than 10 days prior written notice to Lender
(in accordance with the terms of this Section), provided that any such
prepayment of all or any portion of the Principal Balance, whether
voluntary or involuntary, shall be accompanied by (a) interest accrued
to the date of prepayment on the principal amount prepaid, (b) if such
prepayment occurs prior to the Initially Scheduled Maturity Date, the
Prepayment Adjustment, and (c) payment of the Structuring Fee, to the
extent not previously paid. As used herein, the term "Prepayment
Adjustment" means an amount to be determined by Lender to equal the
difference between the following: (x) the remaining interest that would
have been paid on the Loan calculated as follows: the Principal Balance
multiplied by the Applicable Interest Rate multiplied by the number of
days in the period (the "Remaining Period") commencing on the
prepayment date and ending on the Initially Scheduled Maturity Date,
all divided by 360 less (y) the remaining interest that could be earned
by Xxxxxx in the prevailing market calculated by multiplying the
Principal Balance by the yield to maturity on the United States
Treasury Obligation (offer side) having a maturity of three months (the
"Treasury Rate") multiplied by the number of days in Remaining Period,
all divided by 360. The calculation of the Prepayment Adjustment will
be performed by Lender and will be binding on Borrower absent manifest
error. The Bank and Borrower agree that in the event of a prepayment,
the cost to Lender will be difficult to ascertain and that the
Prepayment Adjustment constitutes a reasonable estimate of such cost
and is not a penalty. Accordingly, the parties agree that upon the
occurrence of a prepayment of the Loan prior to the Initially Scheduled
Maturity Date, the Prepayment Adjustment shall be due from Borrower and
Lender shall not be obligated to mitigate its costs to reduce such
amount.
(b) Amounts prepaid under this Note may not be
reborrowed.
(c) In the event of a sale of any asset of a
Borrower, the net proceeds of such sale payable to Borrower shall,
within two (2) days of such sale, be paid either to the lenders under
the Revolving Credit Agreement (or the replacement thereof), or if not
so paid, to Lender, in repayment of the unpaid principal balance of the
Note, together with accrued interest on such amount. If such prepayment
to Lender is made prior to the Initially Scheduled Maturity Date, the
Prepayment Adjustment shall be due and payable by Borrower to Lender
and if such prepayment is of the entire Principal Balance, the
Structuring Fee shall be due and payable with such prepayment.
8. MAXIMUM RATE OF INTEREST. All agreements between the Borrower and
the Lender, whether now existing or hereafter arising and whether written or
oral, are hereby expressly
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limited so that in no contingency or event, whether by reason of acceleration of
the maturity of this Note or otherwise, shall the amount paid, or agreed to be
paid to Lender for the use, forbearance, or detention of the money to be loaned
under this Note or otherwise or for the payment or performance of any covenant
or obligation contained herein or in any other document evidencing, securing or
pertaining to the Loan exceed the Maximum Rate. If from any circumstances
whatsoever fulfillment of any provision hereof or any of such other agreements
shall cause the amount paid to exceed the Maximum Rate, then ipso facto, the
amount paid to Lender shall be reduced to the Maximum Rate, and if from any such
circumstances the Lender shall ever receive interest or an amount which might be
deemed interest under applicable law which exceeds the Maximum Rate, such amount
which would be excessive interest shall be applied to the reduction of the
principal of this Note and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal of this Note such excess shall
be refunded to the Borrower. All sums paid or agreed to be paid to Lender for
the use, forbearance or detention of the indebtedness of Borrower to Lender,
shall, to the extent permitted by applicable law, (i) be amortized, prorated,
allocated and spread throughout the full term of such indebtedness until payment
in full so that the actual rate of interest on account of such indebtedness does
not exceed the Maximum Rate now or as hereafter amended, throughout the term
thereof, (ii) be characterized as a fee, expense or other charge other than
interest, and/or (iii) exclude any voluntary prepayments and the effects
thereof. The terms and provisions of this paragraph shall control and supersede
every other provision of all agreements between the Lender and the Borrower.
9. SECURITY. Payment of this Note is secured by the Loan Documents. All
of the agreements, conditions, covenants, provisions and stipulations contained
in the Loan Documents which are to be kept and performed by Borrower are hereby
made a part of this Note to the same extent and with the same force and effect
as if they were fully set forth herein, and Borrower covenants and agrees to
keep and perform them, or cause them to be kept and performed, strictly in
accordance with their terms.
10. LATE CHARGES. Time is of the essence hereof and if any of the
Principal Balance or interest on this Note or other sum due hereunder is not
paid within 10 days of notice that such payment is due, Borrower shall, at
Xxxxxx's sole option, pay to Lender a late charge payment of up to four percent
(4%) of the amount of such installment as specified in a written demand for
same. Such late charge shall not be applicable to the total payment due on the
Maturity Date; provided, however, no applicable grace or cure period shall apply
to such final payment. Such late charge shall be paid without prejudice to the
right of Lender to collect any other amounts provided to be paid or to declare a
default under this Note or the Loan Documents. Any late charges which may accrue
shall be due and payable not later than the date the next monthly installment is
due under this Note. Xxxxxxxx agrees that the late charge is intended to
compensate Lender for damages Xxxxxx will suffer as a result of Xxxxxxxx's late
payment. Such damages include additional expenses in servicing the Loan, sending
out notices, computing interest, segregating delinquent sums and accounting and
data processing costs. Xxxxxxxx agrees that such damages are difficult or
impractical to ascertain, and the late charge is a fair and reasonable
approximation of the amount of damages sustained by Lender for each late
payment. Notwithstanding anything herein to the contrary, the 10 day grace
period is only applicable with respect to the assessment of the late charge, and
should not be construed as a modification or
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waiver of the due date otherwise specified for any sums due Lender hereunder or
under the other Loan Documents. Failure to pay said late charge following
written demand shall constitute an Event of Default.
11. DEFAULT. Upon the occurrence of any Event of Default, the
outstanding balance of this Note, plus all amounts then unpaid under any Loan
Document, shall each bear interest at the Default Rate for so long as the Event
of Default shall remain uncured, payable on each Interest Payment Date. In
addition, Lender, at its option and without further notice, demand or
presentment for payment to Borrower or others, may declare immediately due and
payable the unpaid Principal Balance and interest accrued thereon together with
all other sums owed by Borrower under this Note and the other Loan Documents
(including, but not limited to reasonable attorneys' fees as provided in Section
13), anything in this Note and the other Loan Documents to the contrary
notwithstanding. Payment of such sums may be enforced and recovered in whole or
in part at any time by one or more of the remedies provided to Lender in this
Note or the other Loan Documents. Notwithstanding the foregoing, upon the
occurrence of a Bankruptcy Event, (as defined in the definition of Event of
Default), the unpaid Principal Balance and interest accrued thereon together
with all other sums owed by Borrower under this Note and the other Loan
Documents (including, but not limited to reasonable attorneys' fees as provided
in Section 13) shall automatically become due and payable.
12. REMEDIES CUMULATIVE. The remedies of Lender, as provided in this
Note, the Pledge Agreement and the Loan Documents, shall be cumulative and
concurrent and may be pursued singularly, successively or together, at the sole
discretion of Lender, and may be exercised as open as occasion therefor shall
occur; and the failure to exercise any such right or remedy shall in no event be
construed as a waiver or release thereof. In any action, sale of collateral, or
other proceedings to enforce this Note or any other Loan Document, Lender need
not file or produce the original of this Note, but only need file or produce a
photocopy of this Note certified by Lender to be a true and correct copy of this
Note.
13. ATTORNEYS' FEES. In the event that suit be brought hereon, or an
attorney be employed or expenses be incurred to compel payment of this Note or
any portion of the indebtedness evidenced hereby, or to defend the Lender's
interest under any of the Loan Documents, Borrower promises to pay all such
reasonable attorneys' fees, costs and expenses (including attorneys' fees
incurred in collecting attorneys' fees) all as actually incurred by Xxxxxx as a
result thereof and including, without limitation (a) reasonable attorneys' fees,
costs and expenses incurred in appellate proceedings or in any action or
participation in, or in connection with, any case or proceeding under Chapters 7
or 11 of the United States Bankruptcy Code or any successor thereto, and (b)
reasonable attorneys fees, costs and expenses incurred as a result of Lender
exercising its rights to cure any Event of Default by Borrower under this Note
or any other Loan Document, or as a result of the foreclosure, assignment in
lieu thereof or enforcement of any Loan Document. Additionally, Xxxxxxxx agrees
to pay all reasonable attorneys' fees, costs and expenses attributable to any
subsequent modification or restructure of this Note.
14. WAIVER OF NOTICE BY XXXXXXXX. BORROWER WAIVES DILIGENCE,
PRESENTMENT FOR PAYMENT, DEMAND, NOTICE OF DEMAND, NOTICE OF
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PROTEST, NOTICE OF NONPAYMENT OR DISHONOR, NOTICE OF INTENTION TO ACCELERATE,
NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST OF THIS NOTE, AND TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER NOTICES (EXCEPT AS EXPRESSLY
PROVIDED IN ANY OF THE LOAN DOCUMENTS) IN CONNECTION WITH THE DELIVERY,
ACCEPTANCE, PERFORMANCE, DEFAULT, OR ENFORCEMENT OF THE PAYMENT OF THIS NOTE.
BORROWER FURTHER WAIVES ALL VALUATION AND APPRAISEMENT PRIVILEGES, THE BRINGING
OF SUIT, CLAIMS OF LACK OF DILIGENCE OR DELAYS IN COLLECTION OR ENFORCEMENT OF
THIS NOTE, THE RELEASE OF ANY PARTY LIABLE, THE RELEASE OF ANY SECURITY FOR THE
DEBT, THE TAKING OF ANY ADDITIONAL SECURITY AND ANY OTHER INDULGENCE OR
FORBEARANCE.
15. NO WAIVER BY XXXXXX. Lender shall not be deemed, by any act of
omission or commission, to have waived any of its rights or remedies hereunder
unless such waiver is in writing and signed by Xxxxxx, and then only to the
extent specifically set forth in the writing. The acceptance by Lender of any
payment hereunder which is less than payment in full of all amounts due and
payable at the time of such payment shall not constitute a waiver of the right
to exercise any of the foregoing options at that time or at any subsequent time
or nullify any prior exercise of any such option without the express consent of
Lender, except as and to the extent otherwise provided by law. A waiver with
reference to one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy as to a subsequent event.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. PURSUANT TO SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, XXXXXXXX AGREES
THAT THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF
AMERICA AND THE LAWS OF THE STATE OF NEW YORK. IN ACCORDANCE WITH SECTION 5-1402
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, XXXXXXXX AGREES THAT
ANY ACTION TO ENFORCE THE TERMS OF THIS NOTE MAY BE COMMENCED IN ANY COURT
LOCATED IN THE STATE OF NEW YORK. BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS NOTE, AND BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY
MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING.
17. CONSTRUCTION OF CERTAIN TERMS. Whenever used, the singular number
shall include the plural, the plural shall include the singular, and the words
"Lender" and "Borrower" shall be deemed to include their respective heirs,
administrators, executors, successors and assigns.
18. NOTICE. Any notice or other communication hereunder shall be in
writing and shall be deemed to have been given when delivered by hand delivery
or by nationally recognized courier service (such as Federal Express) addressed
to the applicable party at its address first
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specified above or to such other address with respect to any party as such party
shall notify the other(s) in writing.
19. SEVERABILITY OF PROVISIONS. In the event any one or more of the
provisions hereof shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining provisions hereof shall be in no way affected,
prejudiced or disturbed thereby.
20. SALE OF INTEREST. Borrower acknowledges that Lender may, in its
sole discretion, sell all or any part of its interest in the Loan as evidenced
by this Note, including participating interests therein. Any such sale may be at
a discount or premium, subject to a brokerage fee or involve a servicing
agreement.
21. HEADING. The section captions are inserted for convenience of
reference only and shall in no way alter or modify the text of such sections.
22. WAIVER OF JURY TRIAL. XXXXXXXX AND XXXXXX MUTUALLY, EXPRESSLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY FOR ANY PROCEEDINGS ARISING
OUT OF OR IN CONNECTION WITH THIS NOTE, OR ANY OTHER LOAN DOCUMENT CONNECTED
WITH THIS TRANSACTION, IN THE INTEREST OF AVOIDING DELAYS AND EXPENSES
ASSOCIATED WITH JURY TRIALS.
23. ENTIRE AGREEMENT. Xxxxxxxx and Xxxxxx, by acceptance of this Note,
hereby agree that the Loan Documents supersede any prior oral or written
agreements of the parties.
24. TIME OF THE ESSENCE. Time is of the essence for the performance of
each and every covenant of Borrower hereunder. No excuse, delay, act of God, or
other reason, whether or not within the control of Borrower, shall operate to
defer, reduce or waive Borrower's performance of any such covenant or
obligation.
25. FEES AND EXPENSES. (a) On the date hereof, the Borrower shall pay
or reimburse the Lender for all of its reasonable costs and expenses incurred in
connection with the negotiation, preparation and execution of, the Loan
Documents, and any other documents and instruments prepared in connection
herewith or therewith, and the consummation of the transactions contemplated
hereby, including, without limitation, Lender's due diligence and underwriting
expenses, appraisal fees, the reasonable fees and disbursements of Lender's
outside counsel and special local counsel to the Lender. If invoices are not
available for any of such costs and expenses, Borrower shall pay such costs and
expenses promptly after request by Xxxxxx.
(b) On the earlier to occur of (i) the Initially
Scheduled Maturity Date and (ii) the date the Loan is prepaid or repaid
in full or otherwise becomes due and payable, Borrower shall pay to
Lender or any affiliate of Lender designated by Lender a structuring
fee equal to $180,000 (the "Structuring Fee").
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26. JOINT AND SEVERAL OBLIGATIONS. The obligations of each Borrower
under this Note shall be joint and several and Lender may enforce such
obligations against either or both parties comprising Borrower in such order as
Lender may determine in its sole discretion.
27. FINANCIAL STATEMENTS. Not later than thirty (30) days after the end
of each monthly period, Borrower shall prepare, or cause to be prepared, and
deliver to Lender, monthly operating statements relating to the Projects for
such monthly period (which statements shall include income and disbursements).
28. SECURITY INTEREST IN CASH FLOW FROM PROJECTS. As collateral
security for the full and punctual payment of the Indebtedness (whether upon
stated maturity, by acceleration or otherwise), GPLP hereby pledges and grants
to Lender, a continuing first priority lien on and security interest in, and, as
a part of such grant and pledge, hereby transfer and assign to Lender, as
collateral security for the Indebtedness all rents, income, revenue, issues,
receipts, profits, cash flow and proceeds from, or related to, the Projects.
29. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) GPLP is the legal and beneficial owner of and has
good and marketable fee simple title to each of the Projects and has
good title to all of the other collateral pledged by it pursuant hereto
or in which it has granted a security interest pursuant hereto or any
other Loan Document, free and clear of all claims, pledges, liens,
encumbrances and security interests of every nature whatsoever except
in favor of Xxxxxx and has the unqualified right to pledge and grant a
security interest in each Project provided without the consent of any
other person, firm or entity which has not been obtained, delivered to
Lender and is in full force and effect.
(b) GPLP will not sell, assign, or otherwise dispose
of, grant any option with respect to, or mortgage, pledge, grant a
security interest in or otherwise encumber any Project or any interest
therein, directly or indirectly, or suffer any of the same to exist
(any of the foregoing, a "Transfer"); and any Transfer of any nature
whatsoever made in violation of this covenant shall be a nullity and of
no force and effect, and upon demand of Lender, shall forthwith be
canceled or satisfied by an appropriate instrument in writing. Xxxxxxxx
agrees at the request of Xxxxxx and at Xxxxxxxx's sole cost and
expense, to record in the real estate records in the jurisdictions
where the Projects are located, an agreement similar in substance to
this subparagraph (b), which agreement will not be released prior to
the date that the Loan is repaid in full.
(c) The principal place of business and chief
executive office of GPLP is at its address first set forth above. No
Borrower will change such principal place of business or chief
executive office or remove such records or change its name, identity or
structure unless such Borrower shall provide Lender with at least
thirty (30) days' prior written notice thereof.
(d) There are no currently effective financing
statements on file in any jurisdiction covering any Project or portion
thereof. Borrowers will not, without the prior
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written consent of Xxxxxx, execute and, until payment in full of all of
the Indebtedness, there will not ever be on file in any public office,
any financing statement or statements covering any or all of the
Projects, except financing statements filed or to be filed in favor of
Xxxxxx, as secured party.
(e) No Borrower is insolvent (in any sense of the
word) now, nor was it insolvent at the time it acquired title to the
Projects, nor will it be rendered insolvent by reason of this Note.
(f) Each Borrower has been duly organized and is
validly existing and in good standing with requisite power and
authority to own its properties and to transact the businesses in which
it is now engaged. Each such party is duly qualified to do business and
is in good standing in each jurisdiction where it is required to be so
qualified in connection with its properties, businesses and operations
and possesses all rights, licenses, permits and authorizations,
governmental or otherwise, necessary to entitle it to own its
properties and to transact the businesses in which it is now engaged.
(g) Each Borrower has taken all necessary action to
authorize the execution, delivery and performance of the Loan Documents
to which it is a party. This Agreement and such other Loan Documents
have been duly executed and delivered by each Borrower, and constitute
legal, valid and binding obligations of such parties enforceable
against them in accordance with their respective terms, subject to
applicable bankruptcy, insolvency and similar laws affecting rights of
creditors generally and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law)
without offset, defense or counterclaim.
(h) The execution, delivery and performance by each
Borrower of this Note and the other Loan Documents to which they are a
party will not conflict with or result in a material breach of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance (other
than pursuant to the Loan Documents) upon any of such parties'
properties or assets pursuant to the terms of any indenture, mortgage,
deed of trust, loan agreement, organizational agreement or other
agreement to which it is a party or to which any of its properties or
assets is subject, nor will such action result in any violation of the
provisions of any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over it or any of
its properties or assets, and any consent, approval, authorization,
order, registration or qualification of or with any court or any such
regulatory authority or other governmental agency or body required for
the execution, delivery and performance by such parties of this Note
and the other Loan Documents to which they are a party has been
obtained and is in full force and effect.
(i) No information contained in this Note, the other
Loan Documents, or any written statement furnished by or on behalf of
the Borrowers contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements contained
herein or therein not misleading in light of the circumstances under
which they were made. There is no fact or circumstance presently known
to it which has
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not been disclosed to Lender and which materially adversely affects, or
is likely to materially adversely affect, the Projects, any Borrower or
their business, operations or condition (financial or otherwise).
(j) No Borrower is an employee benefit plan subject
to Title I of ERISA and none of their assets constitutes or will
constitute plan assets.
(k) No part of the proceeds of the Loan will be used
for the purpose of purchasing or acquiring any "margin stock" within
the meaning of Regulation U of the Board of Governors of the Federal
Reserve System or for any other purpose which would be inconsistent
with such Regulation U or any other Regulations of such Board of
Governors, or for any purposes prohibited by legal requirements or by
the terms and conditions of this Note or the other Loan Documents.
(l) No Borrower is (i) an "investment company" or a
company "controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended; or (ii) a "holding
company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company"
within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(m) The Borrowers agree that all of the covenants
(including those contained in Sections 10 and 11 thereof) of the
Borrowers and Glimcher Realty Trust contained in the Revolving Credit
Agreement as it exists on the date hereof are hereby expressly
incorporated by reference in this Agreement, whether or not such
covenants have been modified or waived and whether or not the Revolving
Credit Agreement is in full force and effect (provided that if any such
covenants are modified or if a new senior revolving credit agreement is
entered into with covenants more restrictive to Borrowers or its
subsidiaries, such modified covenants shall be incorporated herein). If
prior approval of the "Required Banks" or the "Agent" or of any
"Lender" (as such terms are defined in the Revolving Credit Agreement)
is required under the Revolving Credit Agreement in order for a
Borrower or Glimcher Realty Trust to be permitted to deviate from such
covenants, neither Borrower nor Glimcher Realty Trust shall take any
such action or be granted any waiver of such covenants under this Note
without the prior written approval of Lender. If at any time prior to
the payment in full of the Indebtedness, the Revolving Credit Agreement
is no longer outstanding, then the affirmative and negative covenants
in such Revolving Credit Agreement shall continue to apply with the
same force and effect as if such Revolving Credit Agreement were still
outstanding. The Borrowers agree that, separate and apart from the
obligations under the Revolving Credit Agreement, Lender shall be
entitled to enforce the covenants incorporated by reference herein as
if such covenants were fully set forth herein. Nothing contained herein
shall be interpreted or construed to limit the rights of Lender to
enforce its rights and remedies contained in the Loan Documents.
(n) Within ten business days of request by Xxxxxx,
Borrower shall deliver the Mortgage Collateral to Lender as collateral
for this Note, together with (i) the
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payment of all title insurance premiums, including endorsements
required by Lender or its counsel, (ii) the payment of all applicable
mortgage recording taxes and filing fees, (iii) if required by Xxxxxx,
favorable opinions of counsel qualified in the relevant jurisdictions
where the Projects are located, confirming the enforceability and other
customary matters relating to the Mortgage Collateral, (iv) the title
insurance described in the definition of Mortgage Collateral in Section
1 above, (v) recent environmental audits showing no matters
unsatisfactory to Lender, (vi) UCC-1 Financing Statements required by
Lender or its counsel to perfect Lender's security interest in fixtures
and personal property located at the Projects; (viii) ALTA surveys of
the Projects showing no matters unsatisfactory to Lender and its
counsel, and (ix) such other documents and deliveries reasonably
requested by Xxxxxx as are customarily required to be delivered to
institutional lenders in connection with mortgaged properties similar
to the Projects.
(o) On or prior to the date of this Note, Xxxxxxxx
has delivered to Lender a letter from a national title insurance
company (the "Title Company"), certifying that the Projects are each
owned by GPLP and that no Project is encumbered by a mortgage, deed of
trust or security interest (a "Security Instrument"). Within 15
business days of the date of this Note, Borrower shall cause title
insurance commitments of the Title Company to be delivered to Lender
with respect to the Projects. It shall be an immediate Event of Default
hereunder if such title commitments indicate that GPLP is not the owner
in fee simple of each Project or that there are any Security
Instruments encumbering any Projects or any other monetary lien
encumbering any Project other than mechanics' liens and municipal liens
which Borrower will bond over or otherwise discharge within 15 days of
discovery.
(p) GPLP shall not transfer any of its assets to
Glimcher Realty Trust, other than in the ordinary course of business.
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IN WITNESS WHEREOF, each Borrower, intending to be legally bound
hereby, has duly executed this Note the day and year first above written.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation, general partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President/COO/CFO
GLIMCHER PROPERTIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President/COO/CFO
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EXHIBIT A
1. (#000) Xxxxxx Xxxx Xxxxx, Xxxx Xxxxxx Xxxxx, Xxxxx, XX 00000-2520
2. (#009) Clarksville Plaza, 748-000X X. Xxxxxxx 000, Xxxxxxxxxxxx, XX 00000
3. (#053) Hills Plaza East, 0000-0000 Xxx Xxxxxx, Xxxx, XX 00000-0000
4. (#012) Indian Mound Plaza, 857-863 S. 30th. Street, Heath, OH 43056-1207
5. (#013) Middletown Plaza, 2535-0000 X. Xxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX
00000-0000
6. (#017) Xxxxxxx Plaza, 0000-0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000-0000
