EXHIBIT 10.18
NEGATIVE PLEDGE AGREEMENT
THIS NEGATIVE PLEDGE AGREEMENT (this "Agreement") is dated as of
January 5, 2004, and is made by and between Glimcher Properties Limited
Partnership, a Delaware limited partnership ("Borrower") and Bank One, NA, a
national banking association ("Lender").
RECITALS
A. Borrower is primarily engaged in the business of purchasing,
owning, operating, leasing and managing retail properties.
B. Borrower has requested and Lender has agreed to make a loan
(the "Loan") available to Borrower to enable Borrower to
acquire the remaining sixty-one percent (61%) of the issued
and outstanding membership interest in Polaris Mall, LLC, a
Delaware limited liability company pursuant to a Loan
Agreement between Borrower and Lender dated of even date
herewith (the "Loan Agreement").
C. Borrower has agreed as a form of security for Lender to
identify a pool of properties owned by Borrower and agreed not
to encumber such properties during the term of the Loan and
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
1. Properties Identified. Borrower has, on Exhibit A attached
hereto and incorporated herein, identified Twenty-Five (25) properties owned,
operated, leased and/or managed by Borrower (the "Affected Properties"), that
are not subject to a lien, mortgage, pledge (other than this negative pledge),
hypothecation, encumbrance or like arrangement, and that provide Borrower with
an annual Net Operating Income of Five Million Five Hundred Thousand and 00/100
Dollars ($5,500,000.00) as of the end of the period stated on Exhibit A and
otherwise comply with the terms of this Agreement.
2. Grant of Negative Pledge. Subject to Section 3 hereof,
Borrower hereby agrees with Lender that it shall not xxxxx x Xxxx on the
Affected Properties.
3. Rights of Borrower. Borrower may sell, transfer or assign an
Affected Property so long as it provides Lender with advance written notice of
the sale or assignment
4. Representations and Warranties of Borrower. Borrower
represents and warrants that (a) Borrower owns all right, title and interest in
and to the Affected Properties; (b) the Affected Properties are free and clear
of any and all Liens; (c) the Net Operating Income of the Affected Properties is
as stated on the attached Exhibit A indicated thereon not less than Five Million
Five Hundred Thousand Dollars and 00/100 ($5,500,000.00) as of the end of the
period stated on Exhibit A.
5. Financial Statements. Borrower shall deliver or cause to be
delivered to Lender (a) quarterly rent roll for the Affected Properties within
sixty (60) days of the end of each fiscal quarter, and (b) quarterly operating
statements for the Affected Properties within sixty (60) days of the end of each
fiscal quarter.
6. Defined Terms. Capitalized terms used and not otherwise
defined herein shall have the meanings given to them in the Loan Agreement.
7. Further Assurances. Borrower agrees that, at any time and from
time to time upon the written request of Lender, Borrower will execute and
deliver such further documents and do such further acts and things as Lender may
reasonably request in order to effect the purposes of this Agreement.
8. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9. No Waiver; Cumulative Remedies. Lender shall not, by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by
Lender, and then only to the extent therein set forth. A waiver by Lender of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Lender would otherwise have on any future occasion. No
failure to exercise nor any delay in exercising on the part of Lender, any
right, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided are
cumulative and may be exercised singly or concurrently, and are not exclusive of
any rights or remedies provided by law.
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10. Binding Effect. This Agreement and all obligations of Borrower
hereunder shall be binding upon the successors and assigns of Borrower, and
shall, together with the rights and remedies of Lender hereunder, inure to the
benefit of Lender and its successors and assigns. This Agreement shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Ohio.
BORROWER: Glimcher Properties Limited
Partnership, a Delaware limited partnership
By: Glimcher Properties Corporation, its sole
general partner, a Delaware corporation
By:______________________________________________
Xxxxxx X. Xxxxxxx, Executive Vice President
LENDER: BANK ONE, NA, a national banking
association
By:______________________________________________
Its:_____________________________________________
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EXHIBIT A
Affected Properties
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