EXHIBIT 10.4
NOTE
U.S. $36,000,000.00
Columbus, Ohio
December 22, 2003
FOR VALUE RECEIVED, EM COLUMBUS, LLC, a Delaware limited liability
company having an office at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000
("Borrower"), promises (jointly and severally if more than one) to pay to the
order of THE HUNTINGTON NATIONAL BANK, a national banking association, having an
office at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Huntington," which term
shall include any subsequent holder hereof), at Xxxxxxxxxx's office aforesaid,
or at such other place as Huntington may designate, the principal sum of
Thirty-six Million And 00/100 Dollars ($36,000,000.00), or so much thereof as
may be advanced by Huntington to Borrower from time to time, together with
interest on the unrepaid advances of said principal sum from date of
disbursement by Huntington and with all other charges herein provided, payable
in cash, at the rates and in the manner hereinafter set forth.
1. DEFINITIONS
The following terms wherever used in this Note shall have the following
meanings:
1.1 "Daily LIBO Rate" shall mean, with respect to any Daily LIBO
Rate Advance, the per annum rate that is determined daily and is equal to the
quotient of:
(a) the actual or estimated arithmetic mean of the per
annum rates of interest at which deposits in U.S. dollars for a period of one
(1) month and in an aggregate amount comparable to the amount of such Daily LIBO
Rate Advance are being offered to U.S. banks by one or more prime banks in the
London interbank market on the LIBO business day on which the determination is
made, or, if determination is made on a day other than a LIBO business day, on
the most recently elapsed LIBO business day as determined by Huntington in its
discretion based upon reference to information appearing on page LIBOR01,
captioned "British Bankers Assoc. Interest Settlement Rates," of the Reuters
America Network, a service of Reuters America Inc. (or such other page that may
replace that page on that service for the purpose of displaying London interbank
offered rates) or any comparable index selected by Huntington, the obtaining of
rate quotations, or any other reasonable procedure, calculated to five places to
the right of the decimal point, all as determined by Huntington; divided by
(b) a percentage equal to 100% minus the rate (expressed
as a percentage), if any, at which reserve requirements are imposed on
Huntington, as of the most recent LIBO business day, with respect to any
"Eurocurrency liabilities" under Regulation D of the Board of Governors of the
Federal Reserve System or any other regulations of any governmental authority
having jurisdiction with respect thereto (including, without limitation, any
marginal, emergency,
supplemental, special or other reserves) for a 1 month term. This provision is
for the benefit of Huntington and is not intended to increase the expected yield
to Huntington above the rates of interest provided for in this Agreement.
1.2 "Daily LIBO Rate Advance" shall mean any amount advanced as
part of the loan, which shall bear interest at a rate calculated with reference
to the Daily LIBO Rate. "LIBO business day" shall mean, with respect to any
Daily LIBO Rate Advance, a day which is both a day on which Huntington is open
for business and a day on which dealings in U.S. dollar deposits are carried out
in the London interbank market. Subject to any maximum or minimum interest rate
limitation specified herein or by applicable law, the rate of interest on every
Daily LIBO Rate Advance obtained hereunder shall change automatically without
notice to the undersigned immediately with each change in the Daily LIBO Rate.
1.3 "Debt Service Coverage Ratio" shall mean the ratio of Net
Operating Income to Assumed Debt Service. "Assumed Debt Service" shall mean the
amount of principal and interest that would be due on a loan in the Loan Amount
being amortized in equal consecutive monthly payments over twenty (20) years at
an interest rate equal to the per annum rate payable on ten-year United States
Treasury Securities as published in the most recent edition of Federal Reserve
Statistical Release H.15 (519) preceding the date of testing, plus two and one
half (2.50%) per annum. "Net Operating Income" shall mean all rents and revenues
of the Project and Property based on executed leases less pro forma expenses of
the Project and Property, as set forth in the appraisal provided to Huntington
and acceptable to Huntington and/or in the leases, exclusive of any payment of
interest or principal on the Note and of any charges or fees for the services of
Borrower, its members, their respective families or any party or entity
financially affiliated with any of the same.
1.4 "Default Rate of Interest" shall mean an interest rate equal
to the sum of two percent (2%) per annum plus the Prime Commercial Rate.
1.5 "Event of Default" shall have the meaning set forth in Section
5 of this Note.
1.6 "Guaranties" shall mean, collectively, the Unconditional
Guaranties of Payment and Performance, of even date herewith, made by each of
the Guarantors to Huntington to guarantee payment and performance in accordance
with the terms and conditions of the Loan Documents.
1.7 "Guarantors" shall mean Glimcher Properties Limited
Partnership and Glimcher Properties Corporation.
1.8 "Indebtedness" shall mean every sum payable to Huntington by
Borrower in accordance with the terms and conditions of the Loan Documents.
1.9 "Interest Period" shall mean with respect to any Quoted LIBO
Rate Advance, an initial period commencing, on the day such an advance shall be
made by Huntington, and ending on the date one (1) month, thereafter, provided
that any Interest Period with respect to a Quoted LIBO Rate Advance that shall
commence on the last LIBO business day of the calendar month
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(or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last LIBO business day
of the appropriate subsequent calendar month; and each Interest Period with
respect to a Quoted LIBO Rate Advance that would otherwise end on a day which is
not a LIBO business day shall end on the next succeeding LIBO business day or,
if such next succeeding LIBO business day falls in the next succeeding calendar
month, on the next preceding LIBO business day.
1.10 "Loan Documents" shall mean, collectively, this Note, the
Mortgage, and the Loan Commitment Letter and the Construction Loan Agreement, as
those terms are defined in the Mortgage the Guaranties and any other instrument,
document, certificate or affidavit heretofore, now or hereafter given by
Borrower evidencing or securing, or by any of the Guarantors guaranteeing, all
or any part of the foregoing.
1.11 "Mortgage" shall mean that certain Open-End Mortgage,
Assignment of Rents and Security Agreement, of even date herewith, made by
Borrower to Huntington to secure payment and performance by Borrower of the Loan
Documents.
1.12 "Mortgaged Property" shall have the meaning defined in the
Mortgage.
1.13 "Note" shall mean this Note and any and all renewals,
amendments, modifications, reductions and extensions hereof and substitutions
hereof.
1.14 "Prime Commercial Rate" shall mean the interest rate
established from time to time by Huntington as its Prime Commercial Rate, based
upon its consideration of economic, money market, business and competitive
factors, and not necessarily the most favorable rate of Huntington. If for any
reason, Huntington ceases to establish a Prime Commercial Rate, then the
interest rate calculations required herein shall be determined based upon a
comparable rate in Columbus, Ohio, selected by Huntington.
1.15 "Project" shall mean the multi-tenant mall known as Eastland
Mall, located at Refugee Road and Xxxxxxxx Road in Columbus, Ohio.
1.16 "Property" shall mean the real property described in the
Mortgage.
1.17 "Quoted LIBO Rate" shall mean with respect to any Quoted LIBO
Rate Advance and the related Interest Period, the per annum rate that is equal
to the quotient of:
(i) the actual or estimated arithmetic mean of the per
annum rates of interest at which deposits in U.S.
dollars for the related Interest Period and in an
aggregate amount comparable to the amount of such
Quoted LIBO Rate Advance are being offered to U.S.
banks by one or more prime banks in the London
interbank market, as determined by Huntington in its
discretion based upon reference to information which
appears on page LIBOR01 captioned "British Bankers
Assoc. Interest Settlement Rates," of the Reuters
American Network, a service of Reuters America, Inc.
(or such other page that may replace that page on
that service for the purpose
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of displaying London interbank offered rates), or, if
such service ceases to be available or ceases to be
used by Huntington, such other reasonably comparable
money rate service selected by Huntington, the
obtaining of rate quotations, or any other reasonable
procedure, at approximately 11:00 a.m. London,
England time, on the second LIBO Business Day prior
to the first day of the related Interest Period; all
as determined by Huntington, divided by
(ii) a percentage equal to 100% minus the rate (expressed
as a percentage), if any, at which reserve
requirements are imposed on Huntington, on the second
LIBO Business Day prior to the first day of the
related Interest Period, with respect to any
"Eurocurrency liabilities" under Regulation D of the
Board of Governors of the Federal Reserve System or
any other regulations of any governmental authority
having jurisdiction with respect thereto (including,
without limitation, any marginal, emergency,
supplemental, special or other reserves) for a term
comparable to such Interest Period. This provision is
for the benefit of Huntington and is not intended to
increase the expected yield to Huntington above the
rates of interest provided for in the Note.
1.18 "Quoted LIBO Rate Advance" shall mean any amount advanced
under the Note which shall bear interest at a rate calculated with reference to
the Quoted LIBO Rate.
1.19 "Stated Maturity Date" shall mean January 1, 2007.
1.20 "Variable Rate" shall mean a variable rate of interest, which
shall equal the sum of two percent (2.00%) per annum plus the Daily LIBO Rate or
the Quoted LIBO Rate as the case may be. Until the entire principal amount of
the Note has been advanced, the initial Twenty Four Million And 00/100 Dollars
($24,000,000.00) advanced under the Note shall bear interest at the Quoted LIBO
Rate. Until the entire principal amount of the Note has been advanced, any
amount advanced as part of the loan after the initial Twenty Four Million And
00/100 Dollars ($24,000,000.00) principal has been made, shall bear interest at
the Daily LIBO Rate. After the entire principal amount of the Note has been
advanced, the Variable Rate shall be further adjusted as follows: when there
exists a Debt Service Coverage Ratio (as heretofore defined) of 1.10 to 1 the
variable rate shall equal the sum of one and 90/100 percent (1.90%) per annum
plus the Daily LIBO Rate or the Quoted LIBO Rate; when there exists a Debt
Service Coverage Ratio of 1.20 to 1, the Variable Rate shall equal the sum of
one and 85/100 percent (1.85%) per annum plus the Daily LIBO Rate or the Quoted
LIBO Rate and when there exists a Debt Service Coverage Ratio of 1.30 to 1, the
Variable Rate shall equal one and three-fourths percent (1.75%) per annum plus
the Daily LIBO Rate or the Quoted LIBO Rate. After the entire principal amount
of the Note has been advanced, Borrower may elect to have the LIBO component of
the Variable Rate accrue on the entire principal amount at either the Daily LIBO
Rate or the Quoted LIBO Rate.
2. PAYMENTS OF PRINCIPAL AND INTEREST
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2.1 The unrepaid advances of the principal sum shall bear interest
at the Variable Rate. Installments of interest shall be due and payable on each
Interest Payment Date, "Interest Payment Date" shall mean (i) the lst day of
each Interest Period in the case of a Quoted LIBO Rate advance; and (ii) in the
case of a Daily LIBO Rate Advance, the first business day of each month.
2.2 For any partial month prior to the Stated Maturity Date,
however, interest on the principal sum shall be calculated and charged at a
variable rate per annum equal to the Prime Commercial Rate.
2.3 All interest payable in accordance with the Note shall be
calculated on the unrepaid advances of the principal sum on the basis of the
actual number of calendar days elapsed and a year of three hundred sixty (360)
days.
2.4 Unless sooner paid or declared due and payable in accordance
with Subsection 5.2 of this Note, the Indebtedness shall be due and payable in
full on the Stated Maturity Date.
2.5 In the event that a regulatory requirement shall (a) affect
the basis of taxation of payments to Huntington of any amounts payable by
Borrower for Quoted LIBO Rate Advances or Daily LIBO Rate Advances under this
Note (other than taxes imposed on the overall net income of Huntington by the
jurisdiction, or by any political subdivision or taxing authority of any such
jurisdiction, in which Huntington has its principal office), or (b) shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by Huntington, or (c) shall impose any other condition, requirement or
charge with respect to this Note or the loan (including, without limitation, any
capital adequacy requirement, any requirement which affects the manner in which
Huntington allocates capital resources to its commitments or any similar
requirement), and the result of any of the foregoing change in external
conditions is to increase the actual cost to Huntington of making or maintaining
the respective advance, to reduce the actual amount of any sum receivable by
Huntington thereon, or to reduce the actual rate of return on the capital of
Huntington from the actual cost, sum receivable or rate of return applicable on
the date of this Note, then Borrower shall pay to Huntington, from time to time,
upon written request of Huntington, additional amounts sufficient to compensate
Huntington for such increased cost, reduced sum receivable or reduced rate of
return (collectively, "Reduced Earnings") to the extent Huntington is not
compensated therefor in the computation of the interest rates applicable to the
Note. A detailed statement as to the amount of such increased cost, reduced sum
receivable or reduced rate of return, prepared in good faith and submitted by
Huntington to Borrower, shall be conclusive and binding for all purposes, absent
manifest error in determination. Huntington shall promptly notify Borrower in
writing of any event occurring after the date of this Note that entitles
Huntington to additional compensation pursuant to this paragraph. This provision
is for the benefit of Huntington and is not intended to increase the yield to
Huntington above the rates of interest provided for in this Note. This provision
shall survive the payment in full of this Note. In such circumstance, Borrower
may elect, as of the end of the Interest Period, to have interest be calculated
and charged at a variable rate per annum equal to the Prime Commercial Rate.
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Notwithstanding any other provision of this Note to the contrary, if,
(a) deposits in U.S. dollars for periods comparable to one month LIBO are not
available to Huntington in the London interbank market, or (b) the Quoted LIBO
Rate or Daily LIBO Rate will not accurately cover the cost to Huntington of
making or maintaining the related Quoted LIBO Rate Advance or Daily LIBO Rate
Advance, or (c) by reason of national or international financial, political or
economic conditions or by reason of any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect, or the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by Huntington
with any request or directive of such authority (whether or not having the force
of law), including without limitation exchange controls, it is unlawful,
impossible or unduly burdensome for Huntington (i) to make the Quoted LIBO Rate
Advance or Daily LIBO Rate Advance or (ii) to continue such Quoted LIBO Rate
Advance or Daily LIBO Rate Advance, then Borrower shall not be entitled, so long
as such circumstances continue, to request a Quoted LIBO Rate Advance or Daily
LIBO Rate Advance. During the period that such circumstances exist, interest on
the principal sum bearing interest at a the Quoted LIBO Rate or Daily LIBO Rate
shall be calculated and charged at variable rate (subject to daily adjustment)
per annum equal to the Prime Commercial Rate. In the event that such
circumstances no longer exist, Huntington shall again consider requests for
Quoted LIBO Rate Advances and Daily LIBO Rate Advances.
In the event that any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect, or any interpretation
or administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by Huntington with any
request or directive of such authority (whether or not having the force of law),
including without limitation exchange controls, shall make it unlawful or
impossible for Huntington to maintain any Quoted LIBO Rate Advance or Daily LIBO
Rate Advance under this Note, Borrower shall after receipt of written notice
thereof from Huntington, repay in full that portion of the outstanding unpaid
balance of the principal sum bearing interest at the Quoted LIBO Rate or Daily
LIBO Rate , together with all accrued interest thereon to the date of payment
and all amounts due to Huntington under the following paragraph, (i) on the last
day of the then current Interest Period applicable to such advance, if
Huntington may lawfully continue to maintain such advance to such day, or (b)
immediately, if Huntington may not continue to maintain such advance to such
day. This provision is for the benefit of Huntington and is not intended to
increase the yield to Huntington above the rates of interest provided for in
this Note. This paragraph shall apply only as long as such illegality exists.
Huntington shall use reasonable, lawful efforts to avoid the impact of such law,
treaty, rule or regulation. As an alternative to the repayment obligation
provided in this paragraph, Borrower may, at its option, and at the time
provided in this paragraph, convert the advance to an advance bearing interest
at a variable rate per annum equal to the Prime Commercial Rate, accompanied by
the payment of all accrued interest to the date of conversion and all amounts
due to Huntington under the following paragraph.
If Borrower makes any payment of principal with respect to a Quoted
LIBO Rate Advance on any other date than the last day of an Interest Period
applicable thereto or fails to make any payment of principal or interest when
due or at the maturity date, Borrower shall reimburse Huntington on demand for
any resulting actual and direct loss or expense incurred by
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Huntington, determined in Huntington's reasonable opinion, including without
limitation any loss incurred in obtaining, liquidating or employing deposits
from third parties. A detailed statement as to the amount of such loss or
expense, prepared in good faith and submitted by Huntington to Borrower, shall
be conclusive and binding for all purposes absent manifest error in
determination. This provision is for the benefit of Huntington and is not
intended to increase the yield to Huntington above the rates of interest
provided for in this Note. This provision shall survive the payment in full of
this Note.
3. LATE CHARGES
3.1 If any payment of principal or interest or both is not paid in
full on or before the fifteen (15th) day of the calendar month in which it is
due, then, in addition to the amount of said payment, there shall be due and
payable a late charge for each such payment in the amount of five percent (5%)
of such payment, which Borrower agrees is a fair and reasonable charge for costs
incurred by Huntington in processing such late payment and is not a penalty.
4. PREPAYMENT
4.1 Borrower shall have the right to prepay the unrepaid advances
of the principal sum, in whole or in part, from time to time, without premium or
penalty but upon payment of any costs incurred by Huntington with respect to
advances bearing interest at the Quoted LIBO Rate or Daily LIBO Rate provided
(a) that Huntington shall receive written notice of Xxxxxxxx's intention to
prepay not less than five (5) business days prior to such prepayment, and (b)
that a payment of all accrued and unpaid Indebtedness to the date of such
prepayment is included with such prepayment; and provided further, that if such
prepayment follows an Event of Default and a declaration by Huntington that the
Indebtedness is due and payable, then Borrower shall pay to Huntington on the
date of such prepayment a prepayment premium equal to five percent (5%) of the
Indebtedness then due, which Xxxxxxxx agrees is a fair and reasonable charge for
costs incurred by Huntington in processing such Event of Default and declaration
and is not a penalty.
4.2 For the purposes of Subsections 4.1 and 4.2 of this Note,
repayment of the Indebtedness following an Event of Default and declaration by
Huntington that the Indebtedness is due and payable shall, notwithstanding such
declaration, be deemed a prepayment.
4.3 Prepayments shall not be readvanced.
5. DEFAULT
5.1 The term "Event of Default" shall mean:
(a) A failure by Borrower to make any payment of
principal or interest or both when due pursuant to the terms of this Note;
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(b) Any representation or warranty made by Borrower or
any of the Guarantors to Huntington in any of the Loan Documents, any financial
statement or any other writing delivered to Huntington in connection with the
Indebtedness is false or misleading in any material respect;
(c) Borrower or any of the Guarantors shall make a
general assignment for the benefit of creditors;
(d) Borrower shall transfer assets to others for less
than fair value or in other than the ordinary course of business, without
Xxxxxxxxxx's prior written consent;
(e) Borrower or any of the Guarantors shall commence any
case, proceeding or other action seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of Borrower or any of the
Guarantors or any debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking an appointment of a receiver,
trustee, custodian, conservator, liquidator, or other similar official for
Borrower, any of the Guarantors, all or any of the Mortgaged Property, or any
other property of Borrower or any of the Guarantors;
(f) Any case, proceeding or other action is commenced
against Borrower or any of the Guarantors seeking to have an order for relief
entered against Borrower or any of the Guarantors, as debtor, or seeking a
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of Borrower or any of the Guarantors or any debts, under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking an
appointment of a receiver, trustee, custodian, conservator, liquidator, or other
similar official for Borrower, any of the Guarantors, all or any of the
Mortgaged Property, or any other property of Borrower or any of the Guarantors,
and such case, proceeding or other action (i) results in the entry of an order
for relief against Borrower or any of the Guarantors or (ii) remains undismissed
for a period of sixty (60) days;
(g) Borrower or any of the Guarantors shall have
concealed, removed, or permitted to be concealed or removed property, with
intent to hinder, delay or defraud creditors, or shall have made or suffered a
transfer of property which may be fraudulent under any bankruptcy, fraudulent
conveyance or similar law, or shall have made or suffered a transfer of property
to or for the benefit of a creditor at a time when other creditors similarly
situated have not been paid, or shall have suffered or permitted, while
insolvent, any creditor to obtain a lien upon any property through legal
proceedings which are not vacated within sixty (60) days from the date thereof;
(h) At Huntington's option, death of or appointment of a
guardian for any of the individual Guarantors, unless within ninety (90) days
after such death or appointment Borrower shall have provided a substitute
guarantor or additional security acceptable to Huntington;
(i) The sale, assignment, leasing, mortgaging,
encumbering, or other conveyance of the Mortgaged Property or any portion
thereof or legal, equitable or beneficial
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interest therein, or any contracting for any of the same, except as expressly
permitted in the Loan Documents;
(j) The filing of a mechanic's or materialman's lien upon
the Mortgaged Property, which lien is not discharged, bonded off or insured over
within thirty (30) days after such filing;
(k) The sale, assignment, transfer or other conveyance of
the Mortgaged Property except as expressly permitted in the Loan Documents;
(l) The occurrence of any event of default, acceleration,
or commencement of foreclosure under any other mortgage, lien or encumbrance on
the Mortgaged Property, prior or subordinate to the lien of the Mortgage
(provided that this sentence shall not be construed as a consent to any other
mortgage, lien or encumbrance);
(m) The entry of any judgment or lien against Borrower or
any of the Guarantors by or in favor of any third person which judgment or lien
in excess of $100,000.00 is not satisfied, discharged or bonded off within
thirty (30) days from the date of entry of said judgment or lien; or
(n) A failure by Borrower to comply with any of the other
material terms, conditions or covenants specified herein or in any other of the
Loan Documents and such failure remains uncured for thirty (30) days after
written notice to Borrower of such failure.
5.2 Upon the occurrence of any Event of Default, the entire
Indebtedness shall thereupon bear interest at the Default Rate of Interest, and
at the option of Huntington, all the Indebtedness together with interest thereon
at the Default Rate of Interest shall immediately become due and payable,
without regard to the Stated Maturity Date, without demand made therefor, and
without notice to any person, notice of the exercise of said option being hereby
expressly waived; provided, however, that upon the occurrence of an Event of
Default pursuant to Section 5.1(e), the entire principal and all accrued
interest shall automatically become due and payable. Huntington shall have all
remedies of a secured party under law and equity to enforce the payment of all
of the Indebtedness, time being of the essence in the Note. The Default Rate of
Interest shall be charged to Borrower upon the occurrence of any Event of
Default notwithstanding any invoices or billing statements sent by Huntington to
Borrower indicating an interest rate to the contrary. In addition, any waiver of
Xxxxxxxxxx's right to charge the Default Rate of Interest or to declare the
Indebtedness immediately due and payable must be made in writing and cannot be
waived by oral representation or the submission to Borrower of monthly billing
statements.
6. MISCELLANEOUS
6.1 The failure of Huntington to exercise any option herein
provided upon the occurrence of any Event of Default shall not constitute a
waiver of the right to exercise such option in the event of any continuing or
subsequent Event of Default. Xxxxxxxx hereby agrees that the maturity of all or
any part of the Indebtedness may be postponed or extended and that
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any covenants and conditions contained in the Note or in any of the other Loan
Documents may be waived or modified without prejudice to the liability of
Borrower on the Note or other Loan Documents.
6.2 When the Note becomes due, by acceleration or otherwise,
Huntington may, at its option, demand, sue for, collect, or make any compromise
or settlement it deems desirable with reference to property held as security
herefor. Huntington shall not be bound to take any steps necessary to preserve
any rights in the property held as security herefor against prior parties, which
Borrower hereby assumes to do. The provisions hereof shall apply and be
controlling as to all property which may at any time be security herefor.
6.3 Borrower hereby authorizes Huntington, in its sole discretion,
upon the occurrence of an Event of Default, to apply all or any portion of the
balance of any account maintained by Borrower with Huntington to the payment or
reduction, in whole or in part, of any and all the Indebtedness then due,
whether by acceleration or otherwise. Upon the occurrence of any Event of
Default, Huntington shall have the right to set off all obligations of Borrower
to Huntington hereunder, whether matured or unmatured, against all amounts owing
to Borrower by Huntington, whether or not then due and payable, and all other
funds or property of Borrower on deposit with or otherwise held in the custody
of Huntington, all without notice to or demand on Borrower, such notice and
demand being hereby waived.
6.4 Presentment for payment, notice of dishonor, protest, notice
of protest and diligence in bringing suit against any party hereto are hereby
waived by Xxxxxxxx.
6.5 Borrower hereby waives all relief from any and all
appraisement or exemption laws now in force or hereafter enacted.
6.6 The obligations evidenced or created by the Note, as well as
all waivers of rights by Borrower contained herein shall effectively bind and be
the obligations and waivers of any and all others who may at any time become
liable for the payment of all or any part of the Note, including, without
limitation, all endorsers and guarantors.
6.7 Nothing herein contained, nor contained in any of the other
Loan Documents, shall be construed or so operate as to require Borrower, or any
person liable for the payment of the Indebtedness, to pay interest in an amount
or at a rate greater than the highest rate permissible under applicable law.
Should any interest or other charges paid by Borrower, or any parties liable for
the payment of the Indebtedness, result in the computation or earning of
interest in excess of the highest rate permissible under applicable law, then
any and all such excess shall be and the same is hereby waived by Huntington,
and all such excess shall be automatically credited against and in reduction of
the unrepaid advances of the principal sum, and any portion of said excess which
exceeds the unrepaid advances of the principal sum shall be paid by Huntington
to Borrower and any parties liable for the payment of the Indebtedness, it being
the intent of the parties hereto that under no circumstances shall Borrower or
any parties liable for the payment of the Indebtedness, be required to pay
interest in excess of the highest rate permissible under applicable law. All
interest paid or agreed to be paid to Huntington shall, to the extent permitted
under applicable law, be amortized, prorated, allocated and spread throughout
the full period until payment in full of the Indebtedness, including the period
of any
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renewal or extensions thereof, so that interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law.
Notwithstanding anything to the contrary herein contained, in the event
that the interest rate to be charged hereunder ever exceeds the highest rate
permissible under applicable law, thereby causing the interest accruing on the
Indebtedness to be limited to such rate, then any subsequent reduction in the
interest rate to which Borrower would otherwise be entitled shall be held in
abeyance until the total amount of interest accrued on the Indebtedness equals
the amount of interest which would have accrued on the Indebtedness had the
interest rate not been limited to the highest rate permissible under applicable
law.
6.8 If any provision or any part of any provision contained in the
Note shall for any reason be held or deemed to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or remaining part of the affected provision
of the Note, and the Note shall be construed as if such invalid, illegal or
unenforceable provision or part thereof had never been contained herein and the
remaining provisions of the Note shall remain in full force and effect.
6.9 Borrower hereby authorizes any attorney-at-law to appear in
any court of record in the State of Ohio or in any other state or territory of
the United States at any time after the Note becomes due, whether by
acceleration or otherwise, to waive the issuing and service of process, and to
confess judgment against Borrower in favor of Huntington for the amount due
together with interest, expenses, the costs of suit and reasonable counsel fees,
and thereupon to release and waive all errors, rights of appeal and stays of
execution. Such authority shall not be exhausted by one exercise, but judgment
may be confessed from time to time as any sums and/or costs, expenses or
reasonable counsel fees shall be due, by filing an original or a photostatic
copy of the Note. The attorney-at-law authorized hereby to appear for Borrower
may be an attorney-at-law representing Huntington, and Borrower hereby expressly
waives any conflict of interest that may exist because of such representation.
6.10 Borrower hereby agrees to pay to Huntington all costs of
collecting and securing, and of attempting to collect and to secure the Note,
and all costs of foreclosing the Mortgage, including, without limitation,
reasonable attorneys' fees, appraisers' fees, court costs, notice charges and
title insurance charges, whether such attempt be made by suit, in bankruptcy, or
otherwise, and said costs and any other sums due Huntington by virtue of the
Loan Documents may be included in any judgment or decree rendered.
6.11 Any notice required or permitted to be given hereunder shall
be in writing. If mailed by first class United States mail, postage prepaid,
registered or certified with return receipt requested, then such notice shall be
effective upon its deposit in the mails. Notice given in any other manner shall
be effective only if and when received by the addressee. For purposes of notice,
the addresses of Borrower and Huntington shall be as set forth below; provided
however, that either party shall have the right to change such party's address
for notice hereunder to any other location within the continental United States
by the giving of thirty (30) days' written notice to the other party.
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If to Borrower: EM Columbus, LLC
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxx Xxxxxxx
General Counsel
If to Huntington: The Huntington National Bank
Commercial Real Estate Group
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx
6.12 The Note is a "contract of indebtedness" pursuant to O.R.C.
Section 1301.21. The loan evidenced by the Note is a business loan and is not
incurred for purposes that are primarily "personal, family or household", as
defined in O.R.C. Section 1301.21.
6.13 The Note was executed and delivered by Borrower at Columbus,
Franklin County, Ohio and is to be governed by and construed in accordance with
the laws of the State of Ohio. Borrower hereby consents to, and by execution of
the Note submits to, the personal jurisdiction of the Court of Common Pleas of
Franklin County, Ohio and the United States District Court sitting in Columbus,
Ohio, for the purposes of any judicial proceedings which are instituted for the
enforcement of the Note. Xxxxxxxx agrees that venue is proper in either of said
courts.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
EM COLUMBUS, LLC,
a Delaware limited liability company
By: Glimcher Properties Limited Partnership,
a Delaware limited partnership, its sole member
By: Glimcher Properties Corporation,
a Delaware corporation, its General Partner
By:____________________________________________
Federal Tax Identification Number:
12
