EXHIBIT 10.19
LOAN AGREEMENT
BETWEEN
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
A DELAWARE LIMITED PARTNERSHIP
HAVING ITS PRINCIPAL OFFICE AT
000 X. XXX XXXXXX, XXXXXXXX, XXXX 00000
AND
BANK ONE, NA,
A NATIONAL BANKING ASSOCIATION
HAVING ITS PRINCIPAL OFFICE AT
000 XXXX XXXXX XXXXXX, XXXXXXXX, XXXX 00000-0000
Dated as of January 5, 2004
TABLE OF CONTENTS
ARTICLE 1................................................................................ 1
INCORPORATION OF RECITALS AND EXHIBITS................................................... 1
1.1 Incorporation of Recitals.................................................... 1
1.2 Incorporation of Exhibits.................................................... 2
ARTICLE 2................................................................................ 2
DEFINITIONS.............................................................................. 2
2.1 Defined Terms................................................................ 2
2.2 Other Definitional Provisions................................................ 12
ARTICLE 3................................................................................ 12
BORROWER'S REPRESENTATIONS AND WARRANTIES................................................ 12
3.1 Representations and Warranties............................................... 12
3.2 Survival of Representations and Warranties................................... 15
ARTICLE 4................................................................................ 16
LOAN AND LOAN DOCUMENTS.................................................................. 16
4.1 Agreement to Borrow and Lend; Lender's Obligation to Disburse................ 16
4.2 Loan Documents............................................................... 16
4.3 Term of Loan................................................................. 17
4.4 Prepayments.................................................................. 18
4.5 Required Principal Payments.................................................. 18
4.6 Late Charge.................................................................. 18
ARTICLE 5................................................................................ 19
INTEREST................................................................................. 19
5.1 Interest Rate................................................................ 19
ARTICLE 6................................................................................ 22
ARTICLE 7................................................................................ 22
LOAN EXPENSE AND ADVANCES................................................................ 22
7.1 Loan and Administration Expenses............................................. 22
7.2 Commitment Fee............................................................... 22
7.3 Extension Fee................................................................ 22
7.4 Lender's Attorneys' Fees and Disbursements................................... 22
7.5 Time of Payment of Fees and Expenses......................................... 23
7.6 Right of Lender to Make Advances to Cure Borrower's Defaults................. 23
ARTICLE 8................................................................................ 23
OTHER COVENANTS.......................................................................... 23
8.1 Borrower further covenants and agrees as follows:............................ 23
8.2 Authorized Representative.................................................... 24
ARTICLE 9................................................................................ 25
ASSIGNMENTS BY LENDER AND BORROWER....................................................... 25
9.1 Assignments and Participations............................................... 25
9.2 Prohibition of Assignments and Transfers by Borrower......................... 25
9.3 Successors and Assigns....................................................... 25
ARTICLE 10............................................................................... 25
TIME OF THE ESSENCE...................................................................... 25
10.1 Time is of the Essence....................................................... 25
Borrower agrees that time is of the essence under this Agreement...................... 25
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ARTICLE 11............................................................................... 25
EVENTS OF DEFAULT........................................................................ 25
ARTICLE 12............................................................................... 27
LENDER'S REMEDIES IN EVENT OF DEFAULT.................................................... 27
12.1 Remedies Conferred Upon Lender............................................... 27
ARTICLE 13............................................................................... 27
13.1 Captions..................................................................... 28
13.2 Modification; Waiver......................................................... 28
13.3 Governing Law................................................................ 28
13.4 Acquiescence Not to Constitute Waiver of Lender's Requirements............... 28
13.5 Disclaimer by Lender......................................................... 28
13.6 Partial Invalidity; Severability............................................. 28
13.7 Definitions Include Amendments............................................... 29
13.8 Execution in Counterparts.................................................... 29
13.9 Entire Agreement............................................................. 29
13.10 Waiver of Damages............................................................ 29
13.11 Claims Against Lender........................................................ 29
13.12 Jurisdiction................................................................. 30
13.13 Set-Offs..................................................................... 31
ARTICLE 14............................................................................... 31
ARTICLE 15............................................................................... 33
EXHIBITS TO LOAN AGREEMENT
Exhibit A List of Class A Members
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DRAFT 12/31/03
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made as January 5, 2004, by and
between GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership
("Borrower"), and BANK ONE, NA, a national banking association, its successors
and assigns ("Lender").
RECITALS
A. Borrower is the Manager of Polaris Mall, LLC, a Delaware
limited liability company ("Guarantor"), which is the sole member of PFP
Columbus, LLC, a Delaware limited liability company ("PFP") that owns the
enclosed mall commonly known as Polaris Fashion Place located in Columbus, Ohio
(the "Property").
B. Guarantor has three (3) groups of members, (i) Borrower, that
owns 39.2857% of Guarantor's total issued and outstanding membership interests
("GPLP Interest"), (ii) N.P. Limited Partnership, an Ohio limited partnership
("NPLP") that owns 21.4286% of Guarantor's total issued and outstanding
membership interests (the "NPLP Interest"), and (iii) the Class A Members, all
of which are more specifically identified, along with each of their ownership
percentages on Exhibit "A" attached hereto and incorporated herein, and the
Class A Members collectively own 39.2857% of Guarantor's total issued and
outstanding membership interests (the "Class A Interest").
C. Borrower wishes to purchase the NPLP Interest and the Class A
Interest from their respective owners (the "Share Acquisition") and has
requested a loan from Lender for the purpose of financing the Share Acquisition
(the "Loan") and Lender wishes to make the Loan to Borrower for the purpose of
financing the Share Acquisition, which will be secured by a pledge and lien on
Borrower's One Hundred Percent (100%) membership interest in Guarantor (the
"Pledged Interest") and on such other terms and conditions as hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1
INCORPORATION OF RECITALS AND EXHIBITS
1.1 Incorporation of Recitals.
The foregoing preambles and all other recitals set forth herein are
made a part hereof by this reference.
1.2 Incorporation of Exhibits.
Exhibit A to this Agreement, attached hereto is incorporated in this
Agreement and expressly made a part hereof by this reference.
ARTICLE 2
DEFINITIONS
2.1 Defined Terms.
The following terms as used herein shall have the following meanings:
Adjusted Annual EBITDA: As of the date of calculation, an annualized
amount determined by taking the Consolidated Net Income for the twelve (12) most
recent months for which financial results have been reported, as adjusted by (a)
deducting lease termination fees and adding or deducting for, as appropriate,
any adjustment made under GAAP for straight lining of rents, gains or losses
from sales of assets, accrued distributions to owners of minority interests,
other extraordinary items, real estate related depreciation, amortization and
interest expense (including the Consolidated Group Pro Rata Share of such
deductions and such adjustments made under GAAP); (b) deducting an annual
capital reserve amount equal to the aggregate of (i) $0.15 per square foot times
the gross leaseable area of Community Centers owned by the Consolidated Group at
the end of such period, (ii) $0.25 per square foot times the gross leaseable
area of Regional Malls owned by the Consolidated Group at the end of such
period, (iii) the product of (A) the Consolidated Group Pro Rata Share
multiplied by (B) $0.15 per square foot times the gross leaseable area of
Community Centers owned by Investment Affiliates at the end of such period, and
(iv) the product of (A) the applicable Consolidated Group Pro Rata Share
multiplied by (B) $0.25 per square foot times the gross leaseable area of
Regional Malls owned by Investment Affiliates at the end of such period
Adjusted Leverage EBITDA: For any period, Adjusted Annual EBITDA for
such period (i) less that portion of positive Net Operating Income attributable
to any Projects sold during the twelve (12) month period to which such positive
Net Operating Income applies, (ii) less that portion of positive Net Operating
Income attributable to any Projects acquired during such twelve (12) month
period and (iii) plus an amount calculated by annualizing the Consolidated Group
Pro Rata Share of the actual Net Operating Income of any Projects acquired by an
Investment Affiliate during such period, calculated as if they were owned one
hundred percent (100%) for the entire twelve (12) month period.
Adjusted Prime Rate: A rate per annum equal to the sum of (a) the Prime
Rate Margin and (b) the Prime Rate. Any change in the Adjusted Prime Rate shall
be effective immediately from and after such change in the Adjusted Prime Rate.
Adjusted Prime Rate Amount: Some or all of the indebtedness that bears
interest or is requested to bear interest at the Adjusted Prime Rate.
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Affiliate: With respect to a specified person or entity, any
individual, partnership, corporation, limited liability company, trust,
unincorporated organization, association or other entity which, directly or
indirectly, through one or more intermediaries, controls or is controlled by or
is under common control with such person or entity, including, without
limitation, any general or limited partnership in which such person or entity is
a partner.
Agreement: This Loan Agreement.
Authorized Representative: As such term is defined in Section 8.2.
Bankruptcy Code: Title 11 of the United States Code entitled
"Bankruptcy" as now or hereafter in effect, or any successor thereto or any
other present or future bankruptcy or insolvency statute.
Borrower: Glimcher Properties Limited Partnership, a limited
partnership organized under the laws of the State of Delaware, and its
successors and assigns.
Breakage Costs: The cost to Lender of re-employing funds bearing
interest at a Fixed Rate, incurred (or expected to be incurred) in connection
with the Loan and relating to (i) any payment of any portion of the Loan bearing
interest at a Fixed Rate prior to the termination of any applicable Interest
Period, or (ii) the conversion of a Fixed Rate to any other applicable interest
rate on a date other than the last day of the relevant Interest Period.
Business Day: With respect to any borrowing, payment or rate selection
of Fixed Rate Amounts, a day (other than a Saturday or Sunday) on which banks
generally are open in Columbus, Ohio and/or New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market, and for
all other purposes, a day other than a Saturday, Sunday or any other day on
which national banking associations are authorized or obligated to close.
Capitalized Lease: Any lease of Property imposing obligations on such
Person, as lessee thereunder, which are required in accordance with GAAP to be
capitalized on a balance sheet of such Person.
Capitalized Lease Obligations: The amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a balance
sheet of such Person prepared in accordance with GAAP.
Capitalization Rate: (a) with respect to Community Centers, ten percent
(10%) and (b) with respect to Regional Malls, eight and one-half percent (8.5%).
Cash Equivalents: As of any date, (i) securities issued or directly and
fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than one year from such
date; (ii) mutual funds organized under the United States Investment Company Act
rated AAm or AAm-G by S&P and P-1 by Xxxxx'x; (iii) certificates of deposit or
other interest-bearing obligations of a bank or trust company which is a member
in good standing of the Federal Reserve System having a short term unsecured
debt
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rating of not less than A-1 by S&P and not less than P-1 by Xxxxx'x (or in each
case, if no bank or trust company is so rated, the highest comparable rating
then given to any bank or trust company, but in such case only for funds
invested overnight or over a weekend) provided that such investments shall
mature or be redeemable upon the option of the holders thereof on or prior to a
date one month from the date of their purchase; (iv) certificates of deposit or
other interest-bearing obligations of a bank or trust company which is a member
in good standing of the Federal Reserve System having a short term unsecured
debt rating of not less than A-1+ by S&P, and not less than P-1 by Xxxxx'x and
which has a long term unsecured debt rating of not less than Al by Xxxxx'x (or
in each case, if no bank or trust company is so rated, the highest comparable
rating then given to any bank or trust company, but in such case only for funds
invested overnight or over a weekend) provided that such investments shall
mature or be redeemable upon the option of the holders thereof on or prior to a
date three months from the date of their purchase; (v) bonds or other
obligations having a short term unsecured debt rating of not less than A-1+ by
S&P and P-1+ by Xxxxx'x and having a long term debt rating of not less than A 1
by Xxxxx'x issued by or by authority of any state of the United States, any
territory or possession of the United States, including the Commonwealth of
Puerto Rico and agencies thereof, or any political subdivision of any of the
foregoing; (vi) repurchase agreements issued by an entity rated not less than
A-1+ by S&P, and not less than P-1 by Xxxxx'x which are secured by U.S.
Government securities of the type described in clause (i) of this definition
maturing on or prior to a date one month from the date the repurchase agreement
is entered into; (vii) short term promissory notes rated not less than A-1+ by
S&P, and not less than P-1 by Xxxxx'x maturing or to be redeemable upon the
option of the holders thereof on or prior to a date one month from the date of
their purchase; and (viii) commercial paper (having original maturities of not
more than 365 days) rated at least A-l+ by S&P and P-1 by Xxxxx'x and issued by
a foreign or domestic issuer who, at the time of the investment, has outstanding
long-term unsecured debt obligations rated at least A1 by Xxxxx'x.
CCP Acquisition Contract: The agreement to purchase real estate by and
among Community Center Properties I, LLC, a Delaware limited liability company,
or any Affiliate as purchaser, and Borrower and its Affiliates, as sellers.
Change in Control: Any change in the identity of the owners of the
general partnership interests in the Borrower unless any such owner is a Parent
Entity.
Closing: The consummation of the Loan pursuant to the terms of this
Agreement.
Closing Date: January 5, 2004.
Community Centers: Any Project that does not qualify as a Regional
Mall.
Consolidated Debt Service: For any period, without duplication, (a)
Consolidated Interest Expense for such period plus (b) the aggregate amount of
scheduled principal payments attributable to Consolidated Outstanding
Indebtedness (excluding optional prepayments and scheduled principal payments in
respect of any such Indebtedness which is not amortized through periodic
installments of principal and interest over the term of such Indebtedness)
required to be made during such period by any member of the Consolidated Group
plus (c) a percentage of all such scheduled principal payments required to be
made during such period by
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any Investment Affiliate on Indebtedness taken into account in calculating
Consolidated Interest Expense, equal to the greater of (x) the percentage of the
principal amount of such Indebtedness for which any member of the Consolidated
Group is liable and (y) the Consolidated Group Pro Rata Share of such Investment
Affiliate.
Consolidated Group: The Borrower, the Parent Entities and all
Subsidiaries which are consolidated with them for financial reporting purposes
under GAAP.
Consolidated Group Pro Rata Share: With respect to any Investment
Affiliate, the percentage of the total equity ownership interests held by the
Consolidated Group, in the aggregate, in such Investment Affiliate determined by
calculating the percentage of the issued and outstanding stock, partnership
interests or membership interests in such Investment Affiliate held by the
Consolidated Group in the aggregate.
Consolidated Interest Expense: For any period without duplication, the
sum of (a) the amount of interest expense, determined in accordance with GAAP,
of the Consolidated Group for such period attributable to Consolidated
Outstanding Indebtedness during such period plus (b) the applicable Consolidated
Group Pro Rata Share of any interest expense, determined in accordance with
GAAP, of each Investment Affiliate for such period, whether recourse or
non-recourse. Interest incurred on construction loans to fund Construction in
Progress will be excluded from Consolidated Interest Expense provided that a
reserve then projected to be sufficient to pay all interest due on such
construction loan through the date the related Project is expected to reach
stabilization has been established.
Consolidated Net Income: For any period, the sum of (i) net earnings
(or loss) after taxes (from continuing operations) of the Consolidated Group
(adjusted by eliminating any such earnings or loss attributable to Investment
Affiliates) plus (ii) the applicable Consolidated Group Pro Rata Share of net
earnings (or loss) of all Investment Affiliates for such period, in each case
determined in accordance with GAAP.
Consolidated Net Worth means, as of any date of determination, an
amount equal to (a) Total Asset Value minus (b) Consolidated Outstanding
Indebtedness as of such date.
Consolidated Outstanding Indebtedness: As of any date of determination,
without duplication, the sum of (a) all Indebtedness of the Consolidated Group
outstanding at such date, determined on a consolidated basis in accordance with
GAAP, plus without duplication (b) the greater of (i) the applicable
Consolidated Group Pro Rata Share of all Indebtedness of each Investment
Affiliate (other than Indebtedness of such Investment Affiliate to a member of
the Consolidated Group) and (ii) the amount of Indebtedness of such Investment
Affiliate which is also Recourse Indebtedness to a member of the Consolidated
Group
Construction in Progress: As of any date, the projected total
construction cost of any Projects then under development plus the book value of
all land not then included in Unimproved Land.
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Control: As such term is used with respect to any person or entity,
including the correlative meanings of the terms "controlled by" and "under
common control with", shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies of such person
or entity, whether through the ownership of voting securities, by contract or
otherwise.
Default or default: Any event, circumstance or condition, which, if it
were to continue uncured, would, with notice or lapse of time or both,
constitute an Event of Default hereunder.
Default Rate: A rate per annum equal to three percent (3%) in excess of
the Adjusted Prime Rate or Fixed Rate otherwise applicable on the Adjusted Prime
Rate Amount and/or each Fixed Rate Amount outstanding, but shall not at any time
exceed the highest rate permitted by law.
Event of Default: As such term is defined in Article 11.
Extension Fee: As such term is defined in Section 7.3.
Extended Maturity Date: As such term is defined in Section 4.3(a).
Extension Option: As such term is defined in Section 4.3(a).
Extension Term: The period of time commencing on the day after the
Initial Maturity Date and ending on the Extended Maturity Date.
Financial Contract: (i) any exchange - traded or over-the-counter
futures, forward, swap or option contract or other financial instrument with
similar characteristics, or (ii) any Rate Management Transaction.
First Mortgage Receivables: Any Indebtedness owing to a member of the
Consolidated Group which is secured by a first-priority mortgage or deed of
trust on commercial real estate having a value in excess of the amount of such
Indebtedness and which has been designated by the Borrower as a "First Mortgage
Receivable" in its most recent compliance certificate.
Fixed Charges: For any period, the sum of (i) Consolidated Debt
Service, (ii) all dividends payable on account of preferred stock or preferred
operating partnership units of the Borrower or any other Person in the
Consolidated Group (including dividends payable to Investment Affiliates) and
(iii) all ground lease payments to the extent not deducted as an expense in
calculating Adjusted Annual EBITDA.
Fixed Rate: The rate per annum equal to the sum of (i) three percent
(3.0%) per annum, and (ii) the quotient of (a) the LIBO Rate divided by (b) one
minus the Reserve Requirement expressed as a decimal.
Fixed Rate Amount: Some or all of the indebtedness that bears or is
requested to bear interest at the Fixed Rate.
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GAAP: Generally accepted accounting principles in the United States of
America as in effect from time to time, applied in a manner consistent with that
used in preparing the financial statements referred to in Section 3.1(d).
Governmental Approvals: Collectively, all consents, licenses, and
permits and all other authorizations or approvals required from any Governmental
Authority.
Governmental Authority: Any federal, state, county or municipal
government, or political subdivision thereof, any governmental or
quasi-governmental agency, authority, board, bureau, commission, department,
instrumentality, or public body, or any court, administrative tribunal, or
public utility.
Guarantee Obligations: As to any Person (the "guaranteeing person"),
any obligation (determined without duplication) of (a) the guaranteeing person
or (b) another Person (including, without limitation, any bank under any Letter
of Credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counter-indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the maximum stated amount of the primary' obligation
relating to such Guarantee Obligation (or, if less, the maximum stated liability
set forth in the instrument embodying such Guarantee Obligation), provided, that
in the absence of any such stated amount or stated liability, the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
Guarantor: Polaris Mall, LLC, a Delaware limited liability company.
Guaranty: A guaranty of payment executed by Guarantor and pursuant to
which the Guarantor guarantees payment of principal, interest and other amounts
due under the Loan Documents.
Including or including: Including but not limited to.
Indebtedness: Of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money including without limitation
any repurchase obligation or liability of such Person with respect to
securities, accounts or notes receivable sold by such
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Person, (b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices),
to the extent such obligations constitute indebtedness for the purposes of GAAP,
(c) any other indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (d) all Capitalized Lease Obligations, (e) all
obligations of such Person in respect of acceptances issued or created for the
account of such Person, (f) all Guarantee Obligations of such Person (excluding
in any calculation of consolidated Indebtedness of the Consolidated Group,
Guarantee Obligations of one member of the Consolidated Group in respect of
primary obligations of any other member of the Consolidated Group), (g) all
reimbursement obligations of such Person for letters of credit and other
contingent liabilities, (h) any Net Xxxx-to-Market Exposure and (i) all
liabilities secured by any lien (other than liens for taxes not yet due and
payable) on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
Indemnified Party: As such term is defined in Section 8.1(e).
Initial Maturity Date: As such term is defined in Section 4.3(a).
Initial Term: The period beginning on the Closing Date and ending on
the Initial Maturity Date.
Interest Period: A period commencing on the date selected by Borrower
and ending on the last day of the period selected by Borrower as provided
herein. The duration of each Interest Period shall be in one (1), two (2), three
(3) or six (6) month increments only, as selected by Borrower as provided
herein; provided, however, that (a) Interest Periods commencing on the same date
shall be of the same duration; (b) whenever the last day of an Interest Period
would otherwise occur on a day other than a Business Day, the last day of the
Interest Period shall be extended to occur on the next succeeding Business Day,
provided, however, that if the extension would cause the last day of the
Interest Period to occur in the next following calendar month, the last day of
the Interest Period shall occur on the next preceding Business Day; and (c) no
Interest Period shall extend beyond the Maturity Date.
Interest Rate Option: As defined in Section 5.1(b).
Internal Revenue Code: The Internal Revenue Code of 1986, as amended
from time to time.
Investment Affiliate: Any Person in which the Consolidated Group,
directly or indirectly, has any ownership interest, whose financial results are
not consolidated under GAAP with the financial results of the Consolidated
Group.
Laws: Collectively, all federal, state and local laws, statutes, codes,
ordinances, orders, rules and regulations, including judicial opinions or
precedential authority in the applicable jurisdiction.
Late Charge: As defined in Section 4.6.
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Lender: As defined in the opening paragraph of this Agreement, and
including any successor holder of the Loan from time to time.
Letter of Credit: A letter of credit or similar instrument which is
issued upon the application of such Person or upon which such Person is an
account party or for which such Person is in any way liable.
LIBO Rate: The applicable British Bankers' Association LIBOR 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 (2) Business Days prior to the first day of the Interest Period as
reported by any generally recognized financial information service, provided
that, if no such British Bankers Association LIBOR rate is available, the
applicable rate shall instead be the rate determined by Lender to be the rate at
which Lender or one of its affiliates banks offers to place deposits in U.S.
Dollars with first-class banks in the London interbank market as of 11:00 A.M.
City of London, England time two (2) Business Days prior to the first day of the
Interest Period.
Loan: As such term is defined in Recital C.
Loan Amount: The maximum amount of the Loan as set forth in Section
4.1(a) as reduced by principal payments made from time to time.
Loan Documents: The collective reference to this Agreement, the
documents and instruments listed in Section 4.2, and all the other documents and
instruments entered into from time to time, evidencing or securing the Loan or
any obligation of payment thereof or performance of Borrower's or Guarantor's
obligations in connection with the transaction contemplated hereunder, each as
amended.
Management Fee: With respect to each Project for any period, an amount
equal to the greater of (i) actual management fees payable with respect thereto
and (ii) three percent (3%) per annum on the aggregate base rent and percentage
rent due and payable under leases at such Project.
Material Adverse Change or material adverse change or Material Adverse
Effect: If the business prospects, operations or financial condition of a
person, entity or property has changed in a manner which would likely impair the
value of Lender's security for the Loan, prevent timely repayment of the Loan or
otherwise prevent the applicable person or entity from timely performing any of
its material obligations under the Loan Documents.
Maturity Date: July 5, 2004, or, if Borrower satisfies the conditions
to extend the term of the Loan pursuant to Section 4.3(b), the Extended Maturity
Date.
Net Xxxx-to-Market Exposure: As of any date of determination, the
excess (if any) of all unrealized losses over all unrealized profits of such
Person arising from Rate Management Transactions or any other Financial
Contract. "Unrealized losses" means the fair market value of
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the cost to such Person of replacing such Rate Management Transaction or other
Financial Contract as of the date of determination (assuming the Rate Management
Transaction or other Financial Contract were to be terminated as of that date),
and "unrealized profits" means the fair market value of the gain to such Person
of replacing such Rate Management Transaction or other Financial Contract as of
the date of determination (assuming such Rate Management Transaction or other
Financial Contract were to be terminated as of that date).
Net Operating Income: With respect to any Project for any period,
"property rental and other income" (as determined by GAAP) attributable to such
Project accruing for such period minus the amount of all expenses (as determined
in accordance with GAAP) incurred in connection with and directly attributable
to the ownership and operation of such Project for such period, including,
without limitation, Management Fees and amounts accrued for the payment of real
estate taxes and insurance premiums, but excluding any general and
administrative expenses related to the operation of the Borrower or the Parent
Entities, any interest expense or other debt service charges and any non-cash
charges such as depreciation or amortization of financing costs.
Note: A promissory note, in the Loan Amount, executed by Borrower and
payable to the order of Lender, evidencing the Loan.
Parent Entities: Glimcher Realty Trust and Glimcher Properties
Corporation.
Person: Any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
Prime Rate: A rate per annum equal to the prime rate of interest
announced from time to time by Lender or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
Prime Rate Margin: .50% (50 basis points) per annum.
Property: Any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.
Project: Any real estate asset owned by the Borrower or any of its
Subsidiaries or any Investment Affiliate, and operated or intended to be
operated as a retail property.
Rate Management Transaction: Any transaction (including an agreement
with respect thereto) now existing or hereafter entered into by the Borrower
which is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked
10
to one or more interest rates, foreign currencies, commodity prices, equity
prices or other financial measures.
Regional Mall: A Project having a gross leaseable area of at least
150,000 square feet for in-line tenants.
Reserve Requirement: With respect to an Interest Period, the maximum
aggregate reserve requirement (including all basic, supplemental, marginal and
other reserves) which is imposed under Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
State: The State of Ohio.
Subsidiaries: (i) any corporation more than fifty percent (50%) of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than fifty percent (50%) of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower
Total Asset Value: shall mean, as of the date of calculation, the
aggregate of (a) that portion of the Adjusted Leverage EBITDA attributable to
Community Centers owned by a member of the Consolidated Group at all times
during the most recent twelve (12) month period for which financial results have
been reported divided by the Capitalization Rate applicable to Community
Centers, plus (b) that portion of the Adjusted Leverage EBITDA attributable to
Retail Malls owned by a member of the Consolidated Group at all times during
such twelve (12) month period divided by the Capitalization Rate applicable to
Regional Malls, plus (c) one hundred percent (100%) of the price paid (including
assumed debt) for any Community Centers or Regional Malls (to the extent not
included in Construction in Progress in clauses (h) or (i) of this definition)
acquired by a member of the Consolidated Group or the Consolidated Group Pro
Rata Share thereof if acquired by an Investment Affiliate during such twelve
(12) month period, plus (d) that portion of Adjusted Leverage EBITDA
attributable to Projects owned by Investment Affiliates (excluding one hundred
percent (100%) of the Adjusted Annual EBITDA attributable to Projects not owned
by an Investment Affiliate for the entire twelve (12) months from which Adjusted
Leverage EBITDA is calculated) divided by the Capitalization Rate applicable to
such Project plus (e) the applicable Consolidated Group Pro Rata Share of the
price paid (including assumed debt) for Projects (to the extent not included in
Construction in Progress in clauses (h) and (i) of this definition) acquired by
Investment Affiliates during such twelve (12) month period, plus (f) Cash, Cash
Equivalents and First Mortgage Receivables owned by a member of the Consolidated
Group, plus (g) the applicable Consolidated Group Pro Rata Share of Cash, Cash
Equivalents and First Mortgage Receivables owned by any Investment Affiliate
plus (h) the book value (as determined in accordance with GAAP) of Construction
In Progress and Unimproved Land of the Consolidated Group, plus, (i) the
applicable Consolidated Group Pro Rata Share of the book value (as determined in
accordance with GAAP) of Construction In
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Progress and Unimproved Land of each Investment Affiliate. For purposes of
clauses (h) and (i), Construction In Progress shall include any newly built
Project for which a certificate of occupancy has been issued, if, as of the end
of the twelve (12) months for which Adjusted Leverage EBITDA is calculated, it
has been twelve (12) months or less since such certificate of occupancy was
issued; provided, however, Borrower, at its option, may elect not to include a
Project which otherwise qualifies for inclusion in Construction In Progress and
include the income from such Project in the calculation of (a), (b) and (d)
above, as applicable.
Transfer: Any sale, transfer, conveyance, alienation, pledge,
assignment, mortgage, encumbrance hypothecation or other disposition of (a) all
or any portion of the Pledged Interest, or (b) all or any portion of the
Borrower's right, title and interest (legal or equitable) in and to the Pledged
Interest.
Unimproved Land: As of any date, any land which (i) is not
appropriately zoned for retail development, (ii) does not have access to all
necessary utilities or (iii) does not have access to publicly dedicated streets,
unless such land has been designated in writing by the Borrower in a certificate
delivered to Lender as land that is reasonably expected to satisfy all such
criteria within six (6) months after such date.
2.2 Other Definitional Provisions.
All terms defined in this Agreement shall have the same meanings when
used in the Note, Mortgage, any other Loan Documents, or any certificate or
other document made or delivered pursuant hereto. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement.
ARTICLE 3
BORROWER'S REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties.
To induce Lender to execute this Agreement and perform its obligations
hereunder, Borrower hereby represents and warrants to Lender as follows:
(a) Borrower is a limited partnership duly organized and
validly existing under the laws of the State of Delaware, with its principal
place of business in Columbus, Ohio and is duly qualified as a foreign limited
partnership, properly licensed (if required), in good standing and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted, except where the failure to be so qualified, licensed and
in good standing and to have the requisite authority would not have a Material
Adverse Effect. Guarantor is organized, validly existing and in full force and
effect under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except where the failure to be so qualified,
licensed and in good standing or in full force and effect and to have the
requisite authority would not have a Material Adverse Effect.
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(b) The Borrower has the limited partnership power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper limited partnership proceedings, and the Loan
Documents constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
(c) Neither the execution and delivery by the Borrower of
the Loan Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
the Borrower or Guarantor or the Borrower's or Guarantor's articles of
organization, operating agreements, partnership agreement, or by-laws, or the
provisions of any indenture, instrument or agreement to which the Borrower or
Guarantor is a party or is subject, or by which it, or its Property, is bound,
or conflict with or constitute a default thereunder, except where such
violation, conflict or default would not have a Material Adverse Effect, or
result in the creation or imposition of any Lien in, of or on the Property of
the Borrower or Guarantor pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
(d) All consolidated financial statements of Borrower
heretofore or hereafter delivered to the Lender were prepared in accordance with
GAAP in effect on the preparation date of such statements and fairly present in
all material respects the consolidated financial condition and operations of the
Borrower at such date and the consolidated results of their operations for the
period then ended, subject, in the case of interim financial statements, to
normal and customary year-end adjustments. From the preparation date of the most
recent financial statements delivered to Lender through the execution date
hereof, there was no change in the business, properties, or condition (financial
or otherwise) of the Borrower and Guarantor which could reasonably be expected
to have a Material Adverse Effect.
(e) The Borrower and Guarantor have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or Guarantor except such taxes, if any, as
are being contested in good faith and as to which adequate reserves have been
provided. No tax liens have been filed and no claims are being asserted with
respect to such taxes. The charges, accruals and reserves on the books of the
Borrower and Guarantor in respect of any taxes or other governmental charges are
adequate.
(f) There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower and/or Guarantor
which could reasonably be expected to have a Material Adverse
13
Effect. The Borrower has no material contingent obligations not provided for or
disclosed in the financial statements delivered to Lender or as set forth in a
separate written notice to Lender after the execution date hereof on or about
the date such material contingent obligations are incurred.
(g) No information, exhibit or report furnished by
Borrower and/or Guarantor to Lender in connection with the negotiation of, or
compliance with, the Loan Documents contained any material misstatement of fact
or omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading.
(h) Neither the Borrower nor Guarantor is a party to any
agreement or instrument or subject to any charter or other corporate restriction
which could reasonably be expected to have a Material Adverse Effect. Neither
the Borrower nor Guarantor is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default could have a Material
Adverse Effect, or (ii) any agreement or instrument evidencing or governing
Indebtedness, which default would constitute a Default hereunder.
(i) The Borrower and the Guarantor have complied with all
applicable statutes, rules, regulations, orders and restrictions of any domestic
or foreign government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property, except for any non-compliance which would not have a
Material Adverse Effect. Neither the Borrower nor Guarantor have received any
notice to the effect that its operations are not in material compliance with any
of the requirements of applicable federal, state and local environmental, health
and safety statutes and regulations or the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could have a Material Adverse Effect.
(j) Neither the Borrower nor Guarantor nor any Subsidiary
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
(k) Neither the Borrower nor the Guarantor nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(l) Immediately after the Closing Date and immediately
following the making of the Loan and after giving effect to the application of
the proceeds of such Loan, (a) the fair value of the assets of the Borrower and
its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the
debts and liabilities, subordinated, contingent or otherwise, of the Borrower
and its Subsidiaries on a consolidated basis; (b) the present fair saleable
value of the Property of the Borrower and its Subsidiaries on a consolidated
basis will be greater than the amount that will be required to pay the probable
liability of the Borrower and its Subsidiaries on a consolidated basis on their
debts and other liabilities, subordinated, contingent or otherwise, as
14
such debts and other liabilities become absolute and matured; (c) the Borrower
and its Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(m) The Borrower does not intend to, or to permit any of
its Subsidiaries to, and does not believe that it or any of its Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature, taking
into account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
(n) The execution, delivery or performance of the Loan
Documents required to be delivered by the Borrower hereunder will not result in
the creation of any Lien on any Projects of the Consolidated Group. No consent
to the transactions contemplated hereunder is required from any ground lessor or
mortgagee or beneficiary under a deed of trust or any other party except as has
been delivered to the Lender.
(o) Borrower and Guarantor are not (and will not be) a
person with whom Lender is restricted from doing business under regulations of
the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury
of the United States of America (including, those Persons named on OFAC's
Specially Designated and Blocked Persons list) or under any statute, executive
order (including, the September 24, 2001 Executive Order Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action and is not and shall not knowingly
engage in any dealings or transactions or otherwise be associated with such
persons. In addition, Borrower hereby agrees to provide to Lender with any
additional information that Lender deems necessary from time to time in order to
ensure compliance with all applicable Laws concerning money laundering and
similar activities.
(p) The membership interests owned by Borrower in
Guarantor are uncertificated within the meaning of Article 8 of the Uniform
Commercial Code as applicable in the State of Delaware.
(q) All statements set forth in the Recitals are true and
correct.
3.2 Survival of Representations and Warranties.
Borrower agrees that all of the representations and warranties set
forth in Section 3.1 and elsewhere in this Agreement are true as of the date
hereof, will be true on the Closing Date and, except for matters which have been
disclosed by Borrower and approved by Lender in writing, at all times
thereafter. Each request for a disbursement under the Loan Documents shall
constitute a reaffirmation of such representations and warranties, as deemed
modified in accordance with the disclosures made and approved as aforesaid, as
of the date of such request. It shall be a condition precedent to the Closing
and any subsequent disbursement that each of said representations and warranties
is true and correct as of the date of such requested disbursement.
15
Each disbursement of Loan proceeds shall be deemed to be a reaffirmation by
Borrower that each of the representations and warranties is true and correct as
of the date of such disbursement. In addition, at Lender's request, Borrower
shall reaffirm such representations and warranties in writing prior to each
disbursement hereunder.
ARTICLE 4
LOAN AND LOAN DOCUMENTS
4.1 Agreement to Borrow and Lend; Lender's Obligation to Disburse.
Subject to the terms, provisions and conditions of this Agreement and
the other Loan Documents, Borrower agrees to borrow from Lender and Lender
agrees to lend to Borrower the Loan Amount, for the purposes and subject to all
of the terms, provisions and conditions contained in this Agreement.
(a) The maximum aggregate principal amount of the Loan
shall not exceed Thirty-Six Million Five Hundred Thousand Dollars
($36,500,000.00).
(b) Lender agrees that it will provide the Loan Amount to
Borrower, so long as (i) Borrower complies with and satisfies all conditions
precedent to Closing, (ii) no Material Adverse Change has occurred with respect
to Borrower or Guarantor, and (iii) no default or Event of Default has occurred
and is continuing hereunder.
(c) To the extent that Lender may have acquiesced in
noncompliance with any requirements precedent to the Closing, such acquiescence
shall not constitute a waiver by Lender unless set forth in a written waiver
executed by Lender, and Lender may at any time after such acquiescence require
Borrower to comply with all such requirements.
4.2 Loan Documents
Borrower agrees that it will, on or before the Closing, execute and
deliver or cause to be executed and delivered to Lender the following documents
in form and substance acceptable to Lender:
(a) The Note.
(b) Pledge and Security Agreement of forty-eight and
99/100 percent (48.99%) of Borrower's membership
interest in Polaris Mall.
(c) Pledge and Security Agreement of fifty-one and 01/100
percent (51.01%) of Borrower's membership interest in
Polaris Mall, representing the balance of Borrower's
one hundred percent (100%) membership interest in
Polaris Mall.
(d) The Guaranty.
(e) Negative Pledge Agreement.
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(f) Such other documents, instruments or certificates as
Lender and its counsel may reasonably require,
including such documents as Lender in its sole
discretion deems necessary or appropriate to
effectuate the terms and conditions of this Agreement
and the Loan Documents, and to comply with the laws
of the State.
4.3 Term of Loan.
(a) All principal, interest and other sums due under the
Loan Documents shall be due and payable in full on the earlier of (i) the
Maturity Date; or (ii) the closing of the sale by Borrower of at least sixty-six
percent (66%) of the properties identified in the CCP Acquisition Contract (the
"Initial Maturity Date"). All references herein to the Maturity Date shall mean
Initial Maturity Date. However, subject to subsection (b) below, Borrower shall
have the right to extend the Maturity Date for an additional six (6) month term
(the "Extension Option"), thereby extending the Maturity Date to the six (6)
month anniversary of the Initial Maturity Date (the "Extended Maturity Date").
(b) Borrower may only exercise the Extension Option upon
satisfying the following conditions:
(1) The closing of the sale of at least
sixty-six percent (66%) of the properties
identified in the CCP Acquisition Contract
shall not have occurred.
(2) Borrower shall have delivered to Lender
written notice of such election no earlier
than sixty (60) days and no later than
thirty (30) prior to the Initial Maturity
Date;
(3) Lender shall have received Borrower's and
Guarantor's current financial statements,
certified as correct by Borrower and
Guarantor. There must be no material adverse
change in Borrower's or Guarantor's
financial condition. Borrower shall provide
a certificate stating and demonstrating that
it is in compliance with the financial
covenants set forth in Section 8.1(c) and
(d) of this Agreement;
(4) Borrower shall pay to Lender on or before
July 6, 2004, the Extension Fee, which shall
be an amount equal to one-eighth of one
percent (0.125% or 125 basis points) of the
Loan Amount; and
(5) No Event of Default exists under the Loan
Documents, nor any event which would be an
Event of Default if not cured within the
time allowed.
17
4.4 Prepayments.
Borrower shall have the right, at any time without penalty, to make
prepayments of the Loan, in whole or in part, provided that any such prepayment
relates to any portion of the principal amount of the Loan bearing interest at
the Adjusted Prime Rate and provided further, that Lender receives at least
forty-eight (48) hours prior written notice of the intent to make such
prepayment. Borrower may prepay all or any portion of the principal amount of
the Loan bearing interest at a Fixed Rate, provided that if Borrower makes any
such prepayment, other than on the last day of an Interest Period, Borrower (a)
with such prepayment, shall pay all accrued interest on the principal amount
prepaid (unless less than all of the principal amount of the Loan is being
prepaid, in which case such interest shall be due and payable on the next
scheduled interest payment date), (b) with such prepayment, shall pay an
administrative fee of $250.00, and (c) on demand, shall reimburse Lender and
hold Lender harmless from all losses and expenses incurred by Lender 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. Lender's determination of the amount of
such reimbursement shall be conclusive in the absence of manifest error.
4.5 Required Principal Payments.
(a) Borrower shall pay to Lender (i) during the Initial
Term on the first day of every calendar month (the "Monthly Payment Date")
beginning February 1, 2004, an amount equal to interest only on the outstanding
principal balance of the Loan, (ii) during the Extension Term on the Monthly
Payment Date, One Hundred Twenty-Five Thousand and 00/100 Dollars ($125,000.00)
plus interest on the outstanding principal balance of the Loan.
(b) For purposes of making payments hereunder, but not
for purposes of calculating interest accrual periods, if the day on which such
payment is due is not a Business Day, then amounts due on such date shall be due
on the immediately succeeding Business Day. Lender shall have the right from
time to time, in its sole discretion, upon not less than thirty (30) days prior
written notice to Borrower, to change the Monthly Payment Date to a different
calendar day each month which is not more than five (5) days earlier nor more
than five (5) days later in any calendar month. All amounts due pursuant to this
Agreement, the Note and the other Loan Documents shall be payable without
set-off, counterclaim, defense or any other deduction whatsoever.
(c) Borrower shall pay to Lender on the Maturity Date the
outstanding principal balance of the Loan, all accrued and unpaid interest and
all other amounts due hereunder and under the Note and the other Loan Documents.
4.6 Late Charge.
Any and all amounts due hereunder or under the other Loan Documents
which remain unpaid more than ten (10) days after the date said amount was due
and payable shall incur a fee (the "Late Charge") of five percent (5%) per annum
of said amount or Twenty-Five Dollars ($25.00), whichever is greater, up to a
maximum amount of One Thousand Five Hundred Dollars ($1,500.00) per Late Charge
to compensate Lender for administrative expenses and other costs
18
of delinquent payments. The Late Charge may be assessed without notice and shall
be immediately due and payable and shall be in addition to all of Lender's other
rights and remedies under the Loan Documents.
4.7 Application of Payments. 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
delinquency or other default, Lender reserves the right to apply payments among
principal, interest, late 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 Lender may from time to time determine in its sole
discretion. The amount of the principal balance of the Loan outstanding from
time to time as shown on the records of Lender shall be conclusive absent
manifest error as to such amount.
ARTICLE 5
INTEREST
5.1 Interest Rate.
(a) The Loan will bear interest at the Adjusted Prime
Rate, unless (i) the Default Rate is applicable; or (ii) Borrower elects an
Interest Rate Option with respect to a portion of the Loan. Borrower shall pay
interest in arrears on the first day of every calendar month in the amount of
all interest accrued and unpaid.
(b) Provided that no Event of Default exists, Borrower
shall have the option as described in (c) below (the "Interest Rate Option") to
elect from time to time in the manner and subject to the conditions hereinafter
set forth, a Fixed Rate as the applicable rate for all or any portion of the
Loan which would otherwise bear interest at the Adjusted Prime Rate.
(c) Borrower may elect that as of any Business Day
designated by Borrower, upon notice that is received by Lender not later than
noon (Columbus, Ohio, local time) two (2) Business Days prior to such designated
date, interest on a Fixed Rate Amount accrue at a Fixed Rate during an Interest
Period. Each such notice shall specify (i) the amount of such Fixed Rate Amount,
and (ii) the Interest Period. In addition, Borrower may as of any designated
Business Day, upon notice that is received by Lender not later than noon
(Columbus, Ohio, local time) two (2) Business Days prior to such designated
Business Day, convert an Adjusted Prime Rate Amount into a Fixed Rate Amount or
continue a Fixed Rate Amount as a Fixed Rate Amount for a new Interest Period,
provided, that Borrower may make such conversion or continuation only on the
last day of the Interest Period. Each such notice of conversion or continuation
shall specify (A) the date of such conversion or continuation, (B) the amount to
be converted or continued, and (C) if applicable, the Interest Period. Any
amount not complying with the foregoing requirements for an amount bearing
interest at the Fixed Rate shall bear interest at the Adjusted Prime Rate. Any
Fixed Rate Amount not continued as a Fixed Rate Amount in compliance with the
foregoing requirements shall, after the end of the Interest Period, bear
19
interest at the Adjusted Prime Rate, whether or not Borrower has elected to
convert the Fixed Rate Amount to the Adjusted Prime Rate Amount.
(d) Lender shall be entitled to fund and maintain its
funding of all or any part of the Loan in any manner it sees fit; provided,
however, for the purpose of the Loan, all determinations hereunder shall be made
as if Lender had actually funded and maintained each Fixed Rate Amount through
the purchase of deposits having a maturity corresponding to the last day of the
Interest Period and bearing an interest rate equal to the Fixed Rate for such
Interest Period.
(e) A Fixed Rate Amount must be in a minimum amount of
One Million Dollars ($1,000,000.00), with increments of One Million Dollars
($1,000,000.00) thereafter, and at no time may there be more than three (3)
Interest Periods for any Fixed Rate Amounts in effect with respect to the Loan.
(f) In respect of any Fixed Rate Amount, in the event
that Lender shall have determined that (i) dollar deposits of the relevant
amount for the relevant Interest Period for such Fixed Rate Amount are not
available, or (ii) by reason of circumstances affecting such market, adequate
and reasonable means do not exist for ascertaining the LIBO Rate applicable to
such Interest Period in the manner provided in the definition of such term, or
(iii) the relevant interest rates referred to in the definition of LIBO Rate do
not accurately cover the cost to the Lender of making or maintaining Fixed Rate
Amounts, as the case may be, Lender shall promptly give notice of such
determination to the Borrower and (i) the obligation of Lender to make Fixed
Rate Amounts shall be suspended until Lender notifies Borrower that the
circumstances giving rise to the suspension no longer exist, (ii) any notice of
new Fixed Rate Amounts (or the conversion of existing Fixed Rate Amounts or
Adjusted Prime Rate Amounts to Fixed Rate Amounts) previously given by the
Borrower and not yet borrowed (or converted, as the case may be) shall be deemed
a notice that such amounts shall bear interest at the Adjusted Prime Rate, and
(iii) the Borrower shall be obligated either to prepay or to convert any
outstanding Fixed Rate Amounts on the last day of the then current Interest
Period or Periods with respect thereto, as Borrower shall elect.
(g) Borrower shall pay to Lender from time to time such
amounts as Lender may determine to be necessary to compensate Lender for any
costs incurred by Lender which Lender determines are attributable to its making
or maintaining any Fixed Rate Amount hereunder or its obligation to make any
such Fixed Rate Amount hereunder, or any reduction in any amount receivable by
Lender under this Agreement in respect of any such Fixed Rate Amount or such
obligation (such costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any change after the Closing Date in U.S.
federal, state, municipal, or foreign laws or regulations (including Regulation
D), or the adoption or making after such date of any interpretations,
directives, or requirements applying to a class of banks including Lender of or
under any U. S. federal, state, municipal, or any foreign laws or regulations
(whether or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration thereof
("Regulatory Change"), which: (1) changes the basis of taxation of any amounts
payable to Lender under the Loan Agreement in respect of any such Fixed Rate
Amount (other than taxes imposed on the overall net income of the Lender); or
(2) imposes or modifies any reserve, special deposit, compulsory
20
loan, or similar requirements relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of Lender (including any
such Fixed Rate Amount or any deposits referred to in the definition of any LIBO
Rate); or (3) imposes any other condition affecting this Agreement (or any of
such extensions of credit or liabilities). Lender will notify the Borrower of
any event occurring after the Closing Date which will entitle Lender to
compensation pursuant to this paragraph as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation.
Determinations by Lender for purposes of this paragraph of the effect of any
Regulatory Change in its costs of making or maintaining Fixed Rate Amounts or on
amounts receivable by it in respect of Fixed Rate Amounts, and of the additional
amounts required to compensate Lender in respect of any Additional Costs, shall
be presumed prima facie correct.
(h) If at any time any new law, treaty or regulation
enacted after the date hereof, or any change after the date hereof in any
existing law, treaty or regulation, or any interpretation thereof after the date
hereof by any governmental or other regulatory authority charged with the
administration thereof, shall make it unlawful for Lender to fund any Fixed Rate
Amounts with moneys obtained in the London interbank market, the commitment of
Lender to extend Fixed Rate Amounts shall, upon the happening of such event
forthwith be suspended for the duration of such illegality, and Lender shall by
written notice to the Borrower declare that the commitment to extend Fixed Rate
Amounts has been so suspended and, if and when such illegality ceases to exist,
such suspension shall cease and Lender shall similarly notify the Borrower. If
any such change shall make it unlawful for Lender to continue in effect the
funding in the applicable London interbank market of any Fixed Rate Amount
previously made by it hereunder, Lender shall, upon the happening of any such
event, notify the Borrower in writing stating the reasons therefor, and the
Borrower shall, on the earlier of (i) the last day of then current Interest
Period or (ii) if required by such law, regulation or interpretation, on such
date as shall be specified in such notice, either convert all Fixed Rate Amounts
to Adjusted Prime Rate Amounts or prepay all Fixed Rate Amounts to Lender in
full, as Borrower shall elect.
(i) Interest at the Adjusted Prime Rate or one or more
Fixed Rates (or Default Rate), as applicable, shall be computed by applying the
ratio of the applicable annual interest rate over a year of 360 days, multiplied
by the applicable outstanding principal balance, multiplied by the actual number
of days the applicable principal balance is outstanding.
(j) Borrower shall pay all Breakage Costs incurred from
time to time by Lender upon demand.
5.2 Payment on the Maturity Date. The entire unpaid principal
balance, all accrued and unpaid interest and all other amounts due and payable
hereunder shall be due and payable in full on the Maturity Date.
5.3 Payment on a Non-Business Day. If any payment due hereunder is
due and payable on a day which is not a Business Day, such payment shall be made
on the next succeeding Business Day and such extension of time shall be included
in the computation of the payment of interest under this Agreement. All payments
of principal and interest hereunder shall be made without deduction of any
present or future taxes, levies, imposts, duties, fees,
21
assessments, withholdings or other charges, which amounts shall be paid by
Borrower, and without any other setoff or counterclaim of any kind.
ARTICLE 6
[Intentionally Omitted]
ARTICLE 7
LOAN EXPENSE AND ADVANCES
7.1 Loan and Administration Expenses.
Borrower unconditionally agrees to pay all direct expenses of the Loan,
including all amounts payable pursuant to Sections 7.2 and 7.3 and any and all
other reasonable out of pocket expenses incurred by Lender pursuant to the Loan
Documents, and also including, without limiting the generality of the foregoing,
all recording and filing and all costs and expenses incurred by Lender in
connection with the determination of whether or not Borrower has performed the
obligations undertaken by Borrower hereunder or has satisfied any conditions
precedent to the obligations of Lender hereunder and, if any default or Event of
Default occurs hereunder or under any of the Loan Documents or if the Loan or
Note or any portion thereof is not paid in full when and as due, all costs and
expenses of Lender (including, without limitation, court costs and counsel's
fees and disbursements and fees and costs of paralegals) incurred in attempting
to enforce payment of the Loan and expenses of Lender incurred (including court
costs and counsel's fees and disbursements and fees and costs of paralegals) in
attempting to realize, while a default or Event of Default exists, on any
security or incurred in connection with the sale or disposition (or preparation
for sale or disposition) of any security for the Loan.
7.2 Commitment Fee.
Borrower shall pay to Lender at Closing, a commitment fee equal to
..375% of the Loan Amount.
7.3 Extension Fee.
On or before July 6, 2004, provided that Borrower shall exercise
Borrower's Extension Option, Borrower shall pay to Lender an extension fee equal
to .125% percent of the Loan Amount (the "Extension Fee").
7.4 Lender's Attorneys' Fees and Disbursements.
Borrower agrees to pay Lender's attorney fees and disbursements
incurred in connection with this Loan, including (i) the preparation of this
Agreement, the other Loan Documents and the preparation of the closing binders,
and (ii) after an Event of Default, the enforcement of the terms of this
Agreement and the other Loan Documents.
22
7.5 Time of Payment of Fees and Expenses.
Borrower shall pay all expenses and fees incurred as of the Closing on
the Closing Date (unless sooner required herein). At the time of the Closing,
Lender may pay from the proceeds of the initial disbursement of the Loan all
Loan expenses. Lender may require the payment of outstanding fees and expenses
as a condition to any disbursement of the Loan.
7.6 Right of Lender to Make Advances to Cure Borrower's Defaults.
In the event that Borrower fails to perform any of Borrower's
covenants, agreements or obligations contained in this Agreement or any of the
Loan Documents (including the obligation to pay accrued interest upon the Loan
when due) (after first providing Borrower with notice and the expiration of
applicable grace periods, except in the event of an emergency or other exigent
circumstances), Lender may (but shall not be required to) perform any of such
covenants, agreements and obligations, and any amounts expended by Lender in so
doing and shall constitute additional indebtedness evidenced by the Note and
secured by the Loan Documents and shall bear interest at a rate per annum equal
to the applicable rate hereunder (or Default Rate following an Event of
Default).
ARTICLE 8
OTHER COVENANTS
8.1 Borrower further covenants and agrees as follows:
(a) Closing of Loan on or Prior to Loan Closing Date. All
conditions precedent to the Closing of the Loan shall be complied with on or
prior to the Closing Date. If such conditions are not complied with as of the
Closing Date, Lender may at its sole option terminate Lender's obligation to
fund the Loan by written notice to Borrower.
(b) Furnishing Information. (i) Borrower shall deliver or
cause to be delivered within one hundred and twenty (120) days of the end of
each calendar year to Lender (a) annual audited financial statements for the
Consolidated Group, consolidated and consolidating balance sheet as of the close
of such period and the related audited consolidated and consolidating statements
of income and retained earnings and of cash flows of the Consolidated Group for
such period, setting forth in each case in comparative form the figures for the
previous year, all certified by the Borrower's chief financial officer or chief
accounting officer; and (b) annual audited financial statements for Glimcher
Realty Trust; (ii) Borrower shall also deliver or cause to be delivered to
Lender quarterly interim financial statements for Glimcher Realty Trust within
sixty (60) days of the end of each fiscal quarter.
(c) Consolidated Net Worth. The Consolidated Group shall
maintain a Consolidated Net Worth of not less than Seven Hundred Twenty-Five
Million Dollars ($725,000,000.00) plus eighty-five percent (85%) of the equity
contributions or sales of treasury stock received by the Borrower or any Parent
Entity after the Closing.
(d) Indebtedness and Cash Flow Covenants. The Borrower
shall not permit (i) adjusted Annual EBITDA to be less than 1.65 times
Consolidated Debt Service at any time;
23
(ii) adjusted Annual EBITDA to be less than 1.50 times Fixed Charges at any
time; or (iii) Consolidated Outstanding Indebtedness to be more than sixty-five
percent (65%) of Total Asset Value at any time.
(e) Lost Note. Upon Lender's furnishing to Borrower an
affidavit to such effect, Borrower shall, if the Note is mutilated, destroyed,
lost or stolen, deliver to Lender, in substitution therefor, a new note
containing the same terms and conditions as the Note.
(f) Indemnification. Borrower shall indemnify Lender,
including each party owning an interest in the Loan and their respective
officers, directors, employees and consultants (each, an "Indemnified Party")
and defend and hold each Indemnified Party harmless from and against all claims,
injury, damage, loss and liability, cost and expense (including attorneys' fees,
costs and expenses) of any and every kind to any persons or property by reason
of any breach of representation or warranty, default or Event of Default under
this Agreement or any other Loan Document. No Indemnified Party shall be
entitled to be indemnified against its own gross negligence or willful
misconduct.
(g) Compliance With Laws. Borrower shall comply with all
applicable requirements (including applicable Laws) of any Governmental
Authority having jurisdiction over Borrower.
(h) Organizational Documents. Borrower shall not, without
the prior written consent of Lender, permit (i) the transfer or admission of any
new general partner, or (iii) any dissolution or termination of its existence.
(i) Government Regulation. Borrower shall not (a) be or
become subject to any time to any law, regulation, or list of any government
agency (including, without limitation, the U.S. Office of Foreign Asset Control
list) that prohibits or limits Lender from making any advance or extension of
credit to Borrower or from otherwise conducting business with Borrower, or (b)
fail to provide documentary and other evidence of Borrower's identity as may be
requested by Lender at any time to enable Lender to verify Borrower's identity
or to comply with any applicable law or regulation, including, without
limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
8.2 Authorized Representative.
Borrower hereby appoints Xxxxxx X. Xxxxxxx as its Authorized
Representative for purposes of dealing with Lender on behalf of Borrower in
respect of any and all matters in connection with this Agreement, the other Loan
Documents, and the Loan. Borrower may appoint a successor Authorized
Representative by providing prior written notice of such appointment to Lender.
The Authorized Representative shall have the power, in his discretion, to give
and receive all notices, monies, approvals, and other documents and instruments,
and to take any other action on behalf of Borrower. All actions by the
Authorized Representative shall be final and binding on Borrower. Lender may
rely on the authority given to the Authorized Representative until actual
receipt by Lender of a duly authorized resolution substituting a different
person as the Authorized Representative. No more than on person shall serve as
Authorized Representative at any given time.
24
ARTICLE 9
ASSIGNMENTS BY LENDER AND BORROWER
9.1 Assignments and Participations.
Lender may from time to time sell the Loan and the Loan Documents (or
any interest therein) and may grant participations in the Loan. Borrower agrees
to cooperate with Lender's efforts to do any of the foregoing and to execute all
documents reasonably required by Lender in connection therewith which do not
materially adversely affect Borrower's rights under the Loan Documents.
9.2 Prohibition of Assignments and Transfers by Borrower.
Borrower shall not assign or attempt to assign its rights under this
Agreement and any purported assignment shall be void. Without the prior written
consent of Lender, in Lender's sole discretion, Borrower shall not suffer or
permit any Transfer.
9.3 Successors and Assigns.
Subject to the foregoing restrictions on transfer and assignment
contained in this Article 9, this Agreement shall inure to the benefit of and
shall be binding on the parties hereto and their respective successors and
permitted assigns.
ARTICLE 10
TIME OF THE ESSENCE
10.1 Time is of the Essence.
Borrower agrees that time is of the essence under this Agreement.
ARTICLE 11
EVENTS OF DEFAULT
The occurrence of any one or more of the following shall constitute an
"Event of Default" as said term is used herein:
(a) Failure of Borrower (i) (A) to make any principal
payment when due, (B) to pay any interest within five (5) business days after
the date when due or (C) to observe or perform any of the other covenants or
conditions by Borrower to be performed under the terms
25
of this Agreement or any other Loan Document concerning the payment of money,
for a period of ten (10) days after written notice from Lender that the same is
due and payable; or (ii) for a period of thirty (30) days after written notice
from Lender, to observe or perform any non-monetary covenant or condition
contained in this Agreement or any other Loan Documents; provided that if any
such failure concerning a non-monetary covenant or condition is susceptible to
cure and cannot reasonably be cured within said thirty (30) day period, then
Borrower shall have an additional sixty (60) day period to cure such failure and
no Event of Default shall be deemed to exist hereunder so long as (Y) Borrower
commences such cure within the initial thirty (30) day period and diligently and
in good faith pursues such cure to completion within such resulting ninety (90)
day period from the date of Lender's notice; and provided further that if a
different notice or grace period is specified under any other subsection of this
Section 11.1 with respect to a particular breach, or if another subsection of
this Section 11.1 applies to a particular breach and does not expressly provide
for a notice or grace period the specific provision shall control.
(b) Any Transfer or other disposition in violation of
Section 9.2.
(c) A Change in Control of Borrower.
(d) If any warranty, representation, statement, report or
certificate made now or hereafter by Borrower or Guarantor is untrue or
incorrect at the time made or delivered, provided that if such breach is
reasonably susceptible of cure, then no Event of Default shall exist so long as
Borrower cures said breach (i) within the notice and cure period provided in
(a)(i) above for a breach that can be cured by the payment of money or (ii)
within the notice and cure period provided in (a)(ii) above for any other
breach.
(e) Borrower or Guarantor shall commence a voluntary case
concerning Borrower or such Guarantor under the Bankruptcy Code; or an
involuntary proceeding is commenced against Borrower or Guarantor under the
Bankruptcy Code and relief is ordered against Borrower or Guarantor, or the
petition is controverted but not dismissed or stayed within sixty (60) days
after the commencement of the case, or a custodian (as defined in the Bankruptcy
Code) is appointed for or takes charge of all or substantially all of the
property of Borrower or Guarantor; or the Borrower or Guarantor commences any
other proceedings under any reorganization, arrangement, readjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar Law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or
Guarantor; or there is commenced against Borrower or Guarantor any such
proceeding which remains undismissed or unstayed for a period of sixty (60)
days; or the Borrower or Guarantor fails to controvert in a timely manner any
such case under the Bankruptcy Code or any such proceeding, or any order of
relief or other order approving any such case or proceeding is entered; or the
Borrower or Guarantor by any act or failure to act indicates its consent to,
approval of, or acquiescence in any such case or proceeding or the appointment
of any custodian or the like of or for it for any substantial part of its
property or suffers any such appointment to continue undischarged or unstayed
for a period of sixty (60) days.
(f) Borrower or Guarantor shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or
26
shall consent to the appointment of a receiver or trustee or liquidator of all
of its property or the major part thereof or if all or a substantial part of the
assets of Borrower or Guarantor are attached, seized, subjected to a writ or
distress warrant, or are levied upon, or come into the possession of any
receiver, trustee, custodian or assignee for the benefit of creditors.
(g) If a Material Adverse Change occurs with respect to
Borrower or Guarantor.
The occurrence of any other event or circumstance expressly denominated
as an Event of Default herein or under any of the other Loan Documents and the
expiration of any applicable grace or cure periods, if any, specified for such
Event of Default herein or therein, as the case may be.
ARTICLE 12
LENDER'S REMEDIES IN EVENT OF DEFAULT
12.1 Remedies Conferred Upon Lender.
Upon the occurrence of any Event of Default, Lender may pursue any one
or more of the following remedies concurrently or successively, it being the
intent hereof that none of such remedies shall be to the exclusion of any other:
(a) Execute upon its security interest in the Pledged
Interest pursuant to the terms of the Loan Documents and do anything which is
necessary or appropriate in its sole judgment to fulfill the obligations of
Borrower under this Agreement and the other Loan Documents.
(b) Withhold further disbursement of the proceeds of the
Loan and/or terminate Lender's obligations to make further disbursements
hereunder;
(c) Declare the Note to be immediately due and payable;
(d) Use and apply any monies deposited by Borrower with
Lender, regardless of the purposes for which the same was deposited, to cure any
such default or to apply on account of any indebtedness under this Agreement
which is due and owing to Lender; and
(e) Exercise or pursue any other remedy or cause of
action permitted under this Agreement or any other Loan Documents, or conferred
upon Lender by operation of Law.
Notwithstanding the foregoing, upon the occurrence of any Event of
Default under Section 11.1(e), all amounts evidenced by the Note shall
automatically become due and payable, without any presentment, demand, protest
or notice of any kind to Borrower.
27
ARTICLE 13
GENERAL PROVISIONS
13.1 Captions.
The captions and headings of various Articles, Sections and subsections
of this Agreement and Exhibits pertaining hereto are for convenience only and
are not to be considered as defining or limiting in any way the scope or intent
of the provisions hereof.
13.2 Modification; Waiver.
No modification, waiver, amendment or discharge of this Agreement or
any other Loan Document shall be valid unless the same is in writing and signed
by the party against which the enforcement of such modification, waiver,
amendment or discharge is sought.
13.3 Governing Law.
Irrespective of the place of execution and/or delivery, this Agreement
shall be governed by, and shall be construed in accordance with, the laws of the
State of Ohio.
13.4 Acquiescence Not to Constitute Waiver of Lender's
Requirements.
Each and every covenant and condition for the benefit of Lender
contained in this Agreement may be waived by Lender, provided, however, that to
the extent that Lender may have acquiesced in any noncompliance with any
construction or nonconstruction conditions precedent to the Opening of the Loan
or to any subsequent disbursement of Loan proceeds, such acquiescence shall not
be deemed to constitute a waiver by Lender of such requirements with respect to
any future disbursements of Loan proceeds.
13.5 Disclaimer by Lender.
This Agreement is made for the sole benefit of Borrower and Lender, and
no other person or persons shall have any benefits, rights or remedies under or
by reason of this Agreement, or by reason of any actions taken by Lender
pursuant to this Agreement. Lender shall not be liable to any contractors,
subcontractors, supplier, architect, engineer, tenant or other party for labor
or services performed or materials supplied in connection with the Construction.
Lender shall not be liable for any debts or claims accruing in favor of any such
parties against Borrower or others or against the Project. Lender, by making the
Loan or taking any action pursuant to any of the Loan Documents, shall not be
deemed a partner or a joint venturer with Borrower or fiduciary of Borrower. No
payment of funds directly to a contractor or subcontractor or provider of
services shall be deemed to create any third-party beneficiary status or
recognition of same by the Lender.
13.6 Partial Invalidity; Severability.
If any of the provisions of this Agreement, or the application thereof
to any person, party or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this
28
Agreement, or the application of such provision or provisions to persons,
parties or circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
13.7 Definitions Include Amendments.
Definitions contained in this Agreement which identify documents,
including, but not limited to, the Loan Documents, shall be deemed to include
all amendments and supplements to such documents from the date hereof, and all
future amendments, modifications, and supplements thereto entered into from time
to time to satisfy the requirements of this Agreement or otherwise with the
consent of Lender. Reference to this Agreement contained in any of the foregoing
documents shall be deemed to include all amendments and supplements to this
Agreement.
13.8 Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
13.9 Entire Agreement.
This Agreement and any exhibits attached hereto, taken together with
all of the other Loan Documents and all certificates and other documents
delivered by Borrower to Lender, embody the entire agreement and supersede all
prior agreements, written or oral, relating to the subject matter hereof.
13.10 Waiver of Damages.
In no event shall Lender be liable to Borrower for punitive, exemplary
or consequential damages, including, without limitation, lost profits, whatever
the nature of a breach by Lender of its obligations under this Agreement or any
of the Loan Documents, and Borrower for itself and its Guarantor waive all
claims for punitive, exemplary or consequential damages.
13.11 Claims Against Lender.
Lender shall not be in default under this Agreement, or under any other
Loan Documents, unless a written notice specifically setting forth the claim of
Borrower shall have been given to Lender within three (3) months after Borrower
first had knowledge of the occurrence of the event which Borrower alleges gave
rise to such claim and Lender does not remedy or cure the default, if any there
be, promptly thereafter. Borrower waives any claim, set-off or defense against
Lender arising by reason of any alleged default by Lender as to which Borrower
does not give such notice timely as aforesaid. Borrower acknowledges that such
waiver is or may be essential to Lender's ability to enforce its remedies
without delay and that such waiver therefore constitutes a substantial part of
the bargain between Lender and Borrower with regard to the
29
Loan. Guarantor is not intended to have any rights as a third-party beneficiary
of the provisions of this Section 13.11.
13.12 Jurisdiction.
TO THE GREATEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES ANY AND
ALL RIGHTS TO REQUIRE MARSHALLING OF ASSETS BY LENDER. WITH RESPECT TO ANY SUIT,
ACTION OR PROCEEDINGS RELATING TO THIS AGREEMENT (EACH, A "PROCEEDING"),
BORROWER IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE
AND FEDERAL COURTS HAVING JURISDICTION IN THE CITY OF COLUMBUS COUNTY OF
FRANKLIN AND STATE OF OHIO, AND (B) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT
ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM
AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDING, THAT
SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY. NOTHING IN THIS AGREEMENT
SHALL PRECLUDE LENDER FROM BRINGING A PROCEEDING IN ANY OTHER JURISDICTION NOR
WILL THE BRINGING OF A PROCEEDING IN ANY ONE OR MORE JURISDICTIONS PRECLUDE THE
BRINGING OF A PROCEEDING IN ANY OTHER JURISDICTION. BORROWER FURTHER AGREES AND
CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR
UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY PROCEEDING IN ANY OHIO STATE
OR UNITED STATES COURT SITTING IN THE CITY OF COLUMBUS AND COUNTY OF FRANKLIN
MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED
TO BORROWER AT THE ADDRESS INDICATED BELOW, AND SERVICE SO MADE SHALL BE
COMPLETE UPON RECEIPT; EXCEPT THAT IF BORROWER SHALL REFUSE TO ACCEPT DELIVERY,
SERVICE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED.
13.13 USA Patriot Act Notification. The following notification is
provided to Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31
U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To
help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain, verify,
and record information that identifies each person or entity that opens an
account, including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What this means for
Borrower: When Borrower opens an account, if Borrower is an individual, Lender
will ask for Borrower's name, taxpayer identification number, residential
address, date of birth, and other information that will allow Lender to identify
Borrower, and, if Borrower is not an individual, Lender will ask for Borrower's
name, taxpayer identification number, business address, and other information
that will allow Lender to identify Borrower. Lender may also ask, if Borrower is
an individual, to see Borrower's driver's license or other identifying
documents, and, if Borrower is not an individual, to see Borrower's legal
organizational documents or other identifying documents.
30
13.14 Set-Offs.
After the occurrence and during the continuance of an Event of Default,
Borrower hereby irrevocably authorizes and directs Lender from time to time to
charge Borrower's accounts and deposits with Lender (or its Affiliates), and to
pay over to Lender an amount equal to any amounts from time to time due and
payable to Lender hereunder, under the Note or under any other Loan Document.
Borrower hereby grants to Lender a security interest in and to all such accounts
and deposits maintained by the Borrower with Lender (or its Affiliates).
ARTICLE 14
NOTICES
Any notice, demand, request or other communication which any party
hereto may be required or may desire to give hereunder shall be in writing and
shall be deemed to have been properly given (a) if hand delivered, when
delivered; (b) if mailed by United States Certified Mail (postage prepaid,
return receipt requested), three (3) Business Days after mailing (c) if by
Federal Express or other reliable overnight courier service, on the next
Business Day after delivered to such courier service or (d) if by telecopier on
the day of transmission so long as copy is sent on the same day by overnight
courier as set forth below:
If to Borrower: Glimcher Properties Limited Partnership
000 X. Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx Xxxxx Xxxx LLC
One Columbus, Suite 1000
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
31
If to Lender: BANK ONE, NA
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxx X. XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx XxXxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
[Remainder of Page Intentionally Left Blank]
32
ARTICLE 15
WAIVER OF JURY TRIAL
BORROWER AND LENDER EACH 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 THEM
ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, ANY OTHER LOAN DOCUMENT
OR ANY RELATIONSHIP BETWEEN LENDER AND BORROWER. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE OTHER
LOAN DOCUMENTS.
EXECUTED as of the date first set forth above.
BORROWER:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: GLIMCHER PROPERTIES CORPORATION, its
sole general partner, a Delaware
corporation
Name: ___________________________________
Xxxxxx X. Xxxxxxx, Executive Vice
President
Borrower's Tax ID No. 00-0000000
LENDER:
BANK ONE, NA
By: _____________________________________
Name: ___________________________________
Title:___________________________________
33
EXHIBIT A
List of Class A Members
Owner Name Percentage Ownership
---------- --------------------
Yogo Development Co., LLC 3.9286%
Xxxxxxxx-Fair III, LLC 1.9643%
LAW Polaris LLC 14.47795%
NEK Polaris LLC 11.61045%
TPKFF Polaris LLC 2.8675%
Xxxxxx X. Xxxxxx 0.7857%
34
