MORTGAGE NOTE
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(VARIABLE RATE)
$7,637,500.00 April 16, 2002
FOR VALUE RECEIVED, the undersigned, SOUTHSIDE MALL, LLC, a Delaware
limited liability company with offices at c/o Glimcher Properties Limited
Partnership, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (hereinafter referred
to as "Maker"), promises to pay to the order of BANK ONE, NA, a national banking
association (hereinafter referred to as "Payee," which term shall include any
holder hereof), at its principal place of business at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000-0000, or at such other place as Payee may designate, the
principal sum of Seven Million Six Hundred Thirty-Seven Thousand Five Hundred
Dollars ($7,637,500.00) or so much thereof as may be advanced by Payee to Maker
from time to time, together with all charges herein provided and interest on the
unrepaid advances of said principal sum from date of disbursement by Xxxxx,
payable in cash at the rates and in the manner hereinafter set forth.
ARTICLE I
DEFINITIONS
1.1 The following terms wherever used in this Note shall have the
following meanings:
"Anchor Tenants" shall mean X.X. Xxxxxx, OfficeMax and K-Mart.
"Calculation Date" shall mean the first day of each calendar quarter
commencing July 1, 2002, and each October 1, January 1, April 1 and July 1
thereafter.
"Default Rate of Interest" shall mean the rate equal to three percent
(3.0%) per annum plus the applicable rate of interest otherwise being charged
hereunder.
"DSCR" shall mean the debt service coverage ratio as determined by
Xxxxx as of each Calculation Date, calculating the ratio of (x) the sum of the
Net Operating Income from the Property for the immediately preceding twelve (12)
months to (y) the sum of the principal and interest payments that would be due
and payable for the immediately preceding twelve (12) months based upon an
assumed amortization of the outstanding principal amount hereunder over a
twenty-five (25) year period at an assumed interest rate of the then-current
10-year U.S. Treasuries plus two and one-half percent (2.50%) per annum, but in
no event at an assumed interest rate less than seven and one-half percent (7.5%)
per annum.
"Effective Rate" shall mean the Prime Rate, LIBOR Rate, or Default Rate
of Interest, whichever shall be applicable.
"Gross Revenues" shall mean for each month all rents, revenues and
other payments received by or for the benefit of Maker in cash or current funds
or other consideration from any
source whatsoever in connection with its ownership, operation and management of
the Property, including all payments received by Maker from all tenants or other
occupants of the Property, BUT EXCLUDING all payments of rent and expense
reimbursements from any Anchor Tenant not in continuous operation at the
Property, although an Anchor Tenant shall not be deemed to have ceased
continuous operation merely because of closure for remodeling (30 days or less)
or reconstruction after casualty (120 days or less). Gross Revenues shall be
determined on an accrual basis and in accordance with general accepted
accounting principles.
"Guarantor" shall mean Glimcher Properties Limited Partnership, a
Delaware limited partnership, which has guaranteed repayment of the loan
evidenced by this Note and performance by Maker of all obligations under the
Loan Documents pursuant to the terms and conditions of the Guaranty.
"Guaranty" shall mean that certain Unconditional Guaranty of Payment
and Performance of even date herewith, executed by Guarantor.
"Interest Period" means each consecutive one month period (the first of
which shall commence on the date of this Note) effective as of the first day of
each Interest Period and ending on the last day of each Interest Period, but in
no event exceeding the maturity date of this Note, and provided that if any
Interest Period is scheduled to end on a date for which there is no numerical
equivalent to the date on which the Interest Period commenced, then it shall end
instead on the last day of such calendar month.
"LIBOR Index" shall mean the offered rate for the period equal to or
next greater than the Interest Period for U.S. Dollar deposits of not less than
$1,000,000.00 as of 11:00 A.M. City of London, England time two London Business
Days prior to the first day of the Interest Period as shown on the display
designated as "British Bankers Association Interest Settlement Rates" on Reuters
Screen FRBD, or such other screen as may replace such screen on Reuters for the
purpose of displaying such rate. In the event that such rate is not available on
Reuters, then such offered rate shall be otherwise independently determined by
Payee from an alternate, substantially similar independent source available to
Payee or shall be calculated by Payee by a substantially similar methodology as
that theretofore used to determine such offered rate.
"LIBOR Rate" shall mean, initially, the LIBOR Index plus one and 95/100
percent (1.95%) per annum (also referred to as the "Initial LIBOR Rate"),
subject to adjustment pursuant to the provisions of Section 2.4.
"Loan Agreement" shall mean that certain Loan Agreement of even date
herewith, pursuant to which the principal amount of this Note is to be
disbursed, by which Xxxxx agrees to loan funds to Maker pursuant to the terms
and conditions stated therein.
"Loan Documents" shall collectively mean this Note, the Mortgage, Loan
Agreement, Guaranty and any other instrument, affidavit, certificate, or
document heretofore, now or hereafter given by Maker or Guarantor in connection
with the closing of the loan evidenced by this Note.
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"London Business Day" means any day other than a Saturday, Sunday or a
day on which banking institutions are generally authorized or obligated by law
or executive order to close in the City of London, England.
"Maturity Date" shall mean the earlier of May 1, 2004, or the date of
acceleration of the Indebtedness by Xxxxx.
"Mortgage" shall mean a certain Mortgage, Assignment of Rents and
Security Agreement of even date herewith on the Property given by Maker in favor
of Payee to secure payment of this Note.
"Net Operating Income" shall mean, for each month calculated by Payee
based upon Xxxxx's review of Maker's monthly financial statements provided to
Payee, together with such other information as Payee may reasonably request, the
difference between the Gross Revenues for said month and all the Operating
Expenses for said month.
"Operating Expenses" shall mean the reasonably necessary and customary
costs and expenses incurred and actually paid by Maker in connection with its
ownership, operation and management of the Property, determined on an accrual
basis and in accordance with generally accepted accounting principles;
specifically excluding from Operating Expenses, however (a) all capital
expenditures incurred by Maker, (b) principal, interest and all other payments
made under the Loan Documents and costs and expenses incurred by Maker in
connection with the execution of the Loan Documents, and (c) depreciation and
all other non-cash expenses of the Property.
"Prime Rate" shall mean the interest rate established and announced
from time to time by Bank One, NA, as its prime rate, based upon its
consideration of economic, money market, business and competitive factors, and
it is not necessarily the most favorable rate of Bank One, NA. Each change in
said Prime Rate shall, without notice, automatically and immediately change the
rate of interest due hereon.
"Property" shall mean that certain tract of land consisting of 32.22
acres, more or less, and all improvements, now and hereafter situated thereon in
the Town of Oneonto, County of Otsego and State of New York, all of which shall
be subject to the Mortgage.
ARTICLE II
PAYMENTS OF PRINCIPAL AND INTEREST
2.1 Subject to the provisions of Sections 2.2 and 2.4 below, interest
on the unrepaid advances of the principal sum from date of disbursement by Payee
at the LIBOR Rate shall be due and payable monthly on the first day of each
month commencing May 1, 2002, and continuing on the first day of each month
thereafter throughout the term of this Note.
2.2 Notwithstanding the foregoing, if any advances of the principal sum
are made by Payee to Maker that are not made at the beginning of the Interest
Period for the LIBOR Rate,
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such advances shall bear interest at the Prime Rate until the end of the
Interest Period in which such advances were made, and then such advances shall
be added to the outstanding principal sum bearing interest at the LIBOR Rate for
the next Interest Period.
2.3 Interest on this Note is computed by applying the ratio of the
annual interest rate over a year of three hundred sixty (360) days, multiplied
by the outstanding principal balance, multiplied by the actual number of days
the principal balance is outstanding.
2.4 Effective as of any Calculation Date, in the event that Payee
determines: (a) that the DSCR is equal to or less than 1.65, but greater than
1.50, then the LIBOR Rate charged hereunder shall adjust to be equal to the
LIBOR Index plus two and 10/100 percent (2.10%) per annum; (b) that the DSCR is
equal to or less than 1.50, then the LIBOR Rate charged hereunder shall adjust
to be equal to the LIBOR Index plus two and 25/100 percent (2.25%) per annum;
and (c) that the DSCR is greater than 1.65, then the LIBOR Rate charged
hereunder shall adjust to be equal to the Initial LIBOR Rate.
2.5 All principal and all accrued and unpaid interest shall be due and
payable in full on the Maturity Date, unless a principal payment is otherwise
required prior to the Maturity Date pursuant to the provisions of Section 5.3 of
the Loan Agreement, in which case such principal payment shall be accordingly
made; provided further, however, that Maker may elect, subject to Payee's
approval which may be withheld in Payee's sole and absolute discretion, to
extend the Maturity Date of this Note to May 1, 2005, by giving Payee written
notice of such request after January 1, 2004, but prior to March 1, 2004, and by
paying to Payee, prior to the then current Maturity Date, a non-refundable loan
extension fee in the amount of one-fourth of one percent (0.25%) of the then
outstanding principal balance of this Note; provided further that, at the time
of such election, there shall not have occurred any uncured Event of Default, as
hereinafter defined, or any event which after notice or the passage of time, or
both, could give rise to an Event of Default, or any materially adverse change
in the financial condition of Maker or Guarantor.
2.6 In the event that Maker and Payee shall have agreed to extend the
Maturity Date of this Note to May 1, 2005, pursuant to the terms and conditions
of Section 2.5 hereinabove, Maker may elect, subject to Xxxxx's approval which
may be withheld in Xxxxx's sole and absolute discretion, to extend further the
Maturity Date of this Note to May 1, 2006, by giving Payee written notice of
such request after January 1, 2005, but prior to March 1, 2005, and by paying to
Payee, prior to the then current Maturity Date, an additional nonrefundable loan
extension fee in the amount of one-fourth of one percent (0.25%) of the then
outstanding principal balance of this Note; provided further that, at the time
of such election, there shall not have occurred any uncured Event of Default, as
hereinafter defined, or any event which after notice or the passage of time, or
both, could give rise to an Event of Default, or any materially adverse change
in the financial condition of Maker or Guarantor.
2.7 Unless otherwise agreed to, in writing, or otherwise required by
applicable law, payments will be applied first to accrued, unpaid interest, then
to principal, and any remaining amount to any unpaid collection costs, late
charges and other charges, provided, however, upon an Event of Default, Payee
reserves the right to apply payments among principal, interest, late
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charges, collection costs and other charges at its discretion. All prepayments
shall be applied to the indebtedness owing hereunder in such order and manner as
Xxxxx may from time to time determine in its sole discretion.
2.8 All payments of principal and interest due under this Note shall be
made by Maker without any rights of offset or other reduction of the amount of
such payments.
ARTICLE III
LATE CHARGES
3.1 If any of said payments of principal or interest or any combination
thereof be not paid in full within ten (10) days after such payment is due, then
in addition to the amount of said payment there shall be due, and Maker promises
to pay, a late charge in respect of each said payment in the amount of five
percent (5.0%) of the regularly scheduled payment or $25.00, whichever is
greater, up to the maximum amount of One Thousand Five Hundred Dollars
($1,500.00) per late charge, which Maker agrees is a fair and reasonable charge
for costs incurred by Payee in processing such late payment and shall not be
deemed a penalty. The late charge may be assessed without notice, shall be
immediately due and payable and shall be in addition to all other rights and
remedies available to Payee.
ARTICLE IV
PREPAYMENT
4.1 The privilege is hereby reserved by Maker to prepay, upon five (5)
business days' prior written notice to Payee, the outstanding principal balance
of this Note in whole or in part at any time and from time to time without
premium or penalty, provided that a payment of all accrued and unpaid interest
to the date of such prepayment is included with such prepayment. Notwithstanding
the foregoing, if Maker makes any such prepayment other than on the last day of
an Interest Period, Maker (a) with such prepayment, shall pay all accrued and
unpaid interest to the date of such prepayment, (b) with such prepayment, shall
pay an administrative fee of $100.00, and (c) on demand, shall reimburse Payee
and hold Payee harmless from all losses and expenses incurred by Payee as a
result of such prepayment, including, without limitation, any losses and
expenses arising from the liquidation or reemployment of deposits acquired to
fund or maintain the principal amount prepaid. Such reimbursement shall be
calculated as though Payee funded the principal amount prepaid through the
purchase of U.S. Dollar deposits in the London, England interbank market having
a maturity corresponding to such Interest Period and bearing an interest rate
equal to the LIBOR Rate for such Interest Period, whether in fact that is the
case or not. Xxxxx's determination of the amount of such reimbursement shall be
conclusive in the absence of manifest error. In the event that the prepayment is
made as a result of Acceleration as defined in Section 5.2 below, then a
prepayment premium shall be payable equal to five percent (5%) of the amount
then due.
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ARTICLE V
DEFAULT
5.1 The term "Event of Default" shall mean the occurrence of any one or
more of the following:
(a) A failure by Maker to make any payment of principal or interest or
any combination thereof on this Note within fifteen (15) days after payment is
due;
(b) The material incorrectness as of the date hereof of any
representation or warranty made by Maker or any Guarantor to Payee in any of the
Loan Documents, any financial statement or any other document delivered to Payee
in connection with the loan evidenced by this Note;
(c) The abandonment of the Property, or any portion thereof, without
the written consent of Payee;
(d) Intentionally Omitted;
(e) The sale (by land contract or otherwise), assignment, mortgaging,
leasing, encumbering, refinancing or conveyance of the Property, or any portion
thereof or legal or equitable interest therein, except as otherwise expressly
permitted in the Loan Documents;
(f) That a mechanic's or materialmen's lien is filed upon the Property,
which lien is not discharged or bonded off or fully reserved for, within thirty
(30) days after such filing;
(g) Thirty (30) days after Xxxxx's notice to Maker of Maker's failure
to keep in full force and effect or obtain and thereafter keep in full force and
effect all certificates, licenses, franchise or management agreements, permits
and other agreements necessary in Payee's reasonable discretion, for the lawful
occupancy, use and operation of the Property for its intended purposes,
including, but not limited to, a retail center.
(h) A failure by Maker to keep in effect the policies of insurance
required by the Mortgage;
(i) The change in the identity of any of the members of Maker;
(j) The occurrence of any event of default, acceleration, or
commencement of foreclosure under any other deed of trust, lien or encumbrance
on the Property, prior or subordinate to the Mortgage;
(k) The entry of any judgment or lien in an amount in excess of One
Hundred Thousand Dollars ($100,000.00) against Maker by or in favor of any third
person which judgment or lien is not satisfied, discharged, reserved for, or
bonded off within thirty (30) days from the date of entry of said judgment or
lien;
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(l) The appointment of a receiver, trustee, custodian, conservator, or
liquidator, or other similar official for Maker, or any Guarantor, any of the
Property, or any other property of Maker or any Guarantor;
(m) Maker or any Guarantor shall admit in writing inability to pay
debts, or shall make a general assignment for the benefit of creditors;
(n) Maker or any Guarantor shall commence any case, proceeding or other
action seeking reorganization, arrangement, adjustment, liquidation, dissolution
or composition of Maker or any Guarantor or any debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors;
(o) Any case, proceeding or other action commenced against Maker or any
Guarantor seeking to have an order for relief entered against Maker or any
Guarantor, as debtor, or seeking a reorganization, arrangement, adjustment,
liquidation, dissolution or composition of Maker or any Guarantor or any debts,
under any law relating to bankruptcy, insolvency, reorganization or debtor
relief laws, or seeking an appointment of a receiver, trustee, custodian or
other similar official for Maker or any Guarantor or for all or any of the
Property, or any other property of Maker or any Guarantor, and such case,
proceeding or other action (i) results in the entry of an order for relief
against Maker or any Guarantor or (ii) remains undismissed for a period of sixty
(60) days;
(p) Maker or any Guarantor shall have concealed, removed, or permitted
to be concealed or removed, any part of its property, with intent to hinder,
delay or defraud its creditors or any of them, or made or suffered a transfer of
any of its property which may be fraudulent under any bankruptcy, fraudulent
conveyance or similar law; or shall have suffered or permitted, while insolvent,
any creditor to obtain a lien upon any of its property through legal proceedings
which is not vacated within sixty (60) days from the date thereof;
(q) An occurrence of any event or condition which results in a default
in the payment of any other indebtedness or the performance of any other
obligation of Maker or any Guarantor to Payee;
(r) The liquidation, termination or dissolution of Maker or any
Guarantor; or
(s) A failure by Maker or any Guarantor to comply with any of the other
terms or conditions specified herein or in any other of the Loan Documents or
Maker's or any Guarantor's failure to perform any of Maker's or any Guarantor's
covenants under the Loan Documents and such failure remains uncured for thirty
(30) days after Payee provides written notice of such failure in accordance with
the terms of the Mortgage.
5.2 Upon the occurrence of any Event of Default, the entire unpaid
balance of principal and interest evidenced by this Note, together with all sums
of money advanced by Payee in accordance with the terms of any one or more of
the Loan Documents, and all sums due and owing for any late charge or charges
hereunder (the foregoing being hereinafter collectively referred to as the
"Indebtedness") shall thereupon bear interest at the Default Rate of Interest,
and
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at the option of Payee, all the Indebtedness together with interest thereon at
the Default Rate of Interest shall immediately become due and payable
("Acceleration") without demand made therefor and without notice to any person,
notice of the exercise of said option being hereby expressly waived, and Payee
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 of this Note. The
Default Rate of Interest shall be charged to Maker upon the occurrence of any
Event of Default notwithstanding any invoices or billing statements sent by
Payee to Maker indicating an interest rate to the contrary. In addition, any
waiver of Xxxxx's right to charge the Default Rate of Interest or to accelerate
the Indebtedness must be made in writing and cannot be waived by oral
representation or the submission to Maker of monthly billing statements.
5.3 Notwithstanding the foregoing, upon the occurrence of any Event of
Default and during the continuation thereof, and after maturity, including
maturity upon acceleration and failure to pay upon final maturity, Payee, at its
option, may also, if permitted under applicable law, do one or both of the
following: (a) increase the applicable interest rate under this Note to the
Default Rate of Interest, and (b) add any unpaid accrued interest to principal
and such sum will bear interest therefrom until paid at the rate provided in
this Note (including the Default Rate of Interest). The interest rate under this
Note will not exceed the maximum rate permitted by applicable law.
ARTICLE VI
MISCELLANEOUS
6.1 The failure of Payee 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. Maker hereby agrees that the maturity of all or any part of the loan
may be postponed or extended and that any covenants and conditions contained in
this Note or in any of the other Loan Documents may be waived or modified
without prejudice to the liability of Maker on said Note or Loan Documents.
6.2 When this Note becomes due, by Acceleration or otherwise, Payee
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. Payee shall not be bound to take any steps necessary to preserve any
rights in the property held as security herefor against prior parties, which
Maker hereby assumes to do. Maker expressly authorizes Payee to deal in any
manner with any collateral and the security of every kind and character given to
secure the payment of Maker's obligations under this Note, and without limiting
the generality of the foregoing, Maker expressly authorizes Payee to waive any
rights which Payee may have relative to requiring additional collateral or to
surrendering or to releasing collateral held by Xxxxx, or to substituting any
collateral held by Payee for other collateral of like kind, or of any kind, nor
shall the obligations of Maker under this Note, nor the rights of Payee under
the Loan Documents be diminished or in any manner affected by the failure of
Payee to exercise its rights with reference to such collateral or in any manner
failing to proceed against the collateral or security pledged or conveyed as
security for the obligations of Maker under this Note. The provisions hereof
shall apply and be controlling as to all property which may at any time be
security herefor.
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6.3 Maker hereby authorizes Xxxxx, 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 Maker with Payee to the payment or reduction, in whole
or in part, of any and all principal and interest then due, whether by
acceleration or otherwise, to Payee under this Note. Upon the occurrence of any
Event of Default, Payee shall have the right to setoff against all obligations
of Maker to Payee hereunder, whether matured or unmatured, all amounts owing to
Maker by Xxxxx, whether or not then due and payable, and all other funds or
property of Maker on deposit with or otherwise held in the custody of Payee or
any of its affiliates, all without notice to or demand on Maker, 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 Maker.
6.5 Maker 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 this Note, as well as all
waivers of rights by Maker 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 this Note, including, without limitation,
all indorsers and guarantors.
6.7 Nothing herein contained, nor in any of the other Loan Documents or
other documents relating hereto, shall be construed or so operate as to require
Maker, or any person liable for the payment of the loan made pursuant to this
Note, 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
Maker, or any parties liable for the payment of the loan made pursuant to this
Note, 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 Xxxxx, and all such excess shall be automatically
credited against and in reduction of the principal balance, and any portion of
said excess which exceeds the principal balance shall be paid by Payee to Maker
and any parties liable for the payment of the loan made pursuant to this Note,
it being the intent of the parties hereto that under no circumstances shall
Maker or any parties liable for the payment of the loan hereunder, be required
to pay interest in excess of the highest rate permissible under applicable law.
All interest paid or agreed to be paid to Payee shall, to the extent permitted
under applicable law, be amortized, prorated, allocated and spread throughout
the full period until payment in full of this Note, including the period of any
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 Effective Rate should ever exceed the highest rate permissible under
applicable law, thereby causing the interest accruing on the indebtedness
evidenced by this Note to be limited to such highest rate permissible under
applicable law, then any subsequent reduction in the Effective Rate shall not
reduce the rate of interest charged hereunder below the highest rate permissible
under applicable law until the total amount of interest accrued on the
indebtedness evidenced by this Note equals the amount of interest which would
have accrued on such indebtedness if the Effective Rate had
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been in effect at all times in the period during which the rate charged thereon
was limited to the highest rate permissible under applicable law.
6.8 Maker acknowledges and agrees that all property pledged or assigned
by Maker to Payee as security for this Note has been pledged or assigned as
security for the entirety of all indebtedness evidenced by this Note.
6.9 If any provision (or any part of any provision) contained in this
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 this Note, and this 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 this Note shall remain in full force and
effect.
6.10 Maker 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 this Note becomes due, whether by acceleration or
otherwise, to waive the issuing and service of process, and to confess judgment
against Maker in favor of Payee 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 this Note. Maker
waives any right to move any court for an order having any attorney or firm
representing Payee removed or disqualified as counsel for Xxxxx as a result of
such attorney or firm confessing judgment against Maker in accordance with this
Section 6.10. Maker hereby expressly waives any conflicts of interest that may
now or hereafter exist as a result of any attorney representing Payee confessing
judgment against Maker and expressly consents to any attorney representing Payee
or to any other attorney to confess judgment against Maker in accordance with
this Section 6.10. Maker hereby further consents and agrees that Xxxxx may pay
any attorney confessing judgment against Maker in accordance with this Section
6.10, a reasonable fee for confessing judgment and that any fees so paid may be
included in the amount of such judgment.
6.11 Maker hereby agrees to pay to Payee all costs of preparing,
collecting and securing, and of attempting to collect and to secure this 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 Payee by virtue of this Note or
the Mortgage may be included in any judgment or decree rendered.
6.12 Maker agrees that Payee may provide any information Payee may have
about Maker or about any matter relating to this Note to BANK ONE CORPORATION,
or any of its subsidiaries or affiliates or their successors, or to any one or
more purchasers or potential purchasers of this Note. Maker agrees that Payee
may at any time sell, assign or transfer one or more interests or participations
in all or any part of its rights or obligations in this Note to one or more
purchasers whether or not related to Payee.
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6.13 JURY WAIVER. THE UNDERSIGNED AND PAYEE (BY ITS ACCEPTANCE HEREOF)
HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND PAYEE ARISING
OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, ANY OTHER LOAN DOCUMENT, ANY
OTHER RELATED DOCUMENT, OR ANY RELATIONSHIP BETWEEN XXXXX AND THE UNDERSIGNED.
THIS PROVISION IS A MATERIAL INDUCEMENT TO PAYEE TO PROVIDE THE FINANCING
DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS.
This Note is delivered in the State of Ohio and is to be governed by
and construed in accordance with the laws of the State of Ohio. In addition to
any other appropriate jurisdiction determined by Xxxxx, Maker hereby consents
to, and by execution of this 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 this Note. Maker agrees that venue
is proper in said jurisdiction.
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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.
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SOUTHSIDE MALL, LLC,
a Delaware limited liability company
By: Glimcher Properties Limited Partnership,
its Managing Member
By: Glimcher Properties Corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx, Executive
Vice President
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STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 16th day of
April, 2002, by Xxxxxx X. Xxxxxxx, the Executive Vice President of Glimcher
Properties Corporation, the General Partner of Glimcher Properties Limited
Partnership, the Managing Member of Southside Mall, LLC, a Delaware limited
liability company, on behalf of the corporation, limited partnership and limited
liability company.
/s/ Xxxx X. Church
-------------------------------------------
Notary Public
Commission Expires: 1/30/07
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