EXHIBIT 10.33
December 22, 2003
EM COLUMBUS, LLC
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
RE: FINANCING FOR THE ACQUISITION AND RENOVATION OF THE EASTLAND MALL (THE
"PROJECT") ON PROPERTY LOCATED AT SOUTH ▇▇▇▇▇▇▇▇ ROAD AND REFUGEE ROAD (THE
"PROPERTY").
Ladies and Gentlemen:
The Huntington National Bank ("Huntington") offers and, upon acceptance
by ▇▇▇▇▇▇▇▇ and Guarantors, commits (respectively this "Offer" and this
"Commitment") to provide a first mortgage loan for the acquisition of the
Property and the development and construction of the Project subject to the
following terms and conditions:
BORROWER: EM COLUMBUS, LLC, a Delaware limited liability company.
GUARANTORS: Glimcher Properties Limited Partnership, a Delaware limited
partnership and Glimcher Properties Corporation, a Delaware
corporation shall jointly and severally guarantee payment
and performance.
LOAN AMOUNT: Thirty Six Million And 00/100 Dollars ($36,000,000.00);
Twenty Four Million And 00/100 Dollars ($24,000,000.00) of
which will be disbursed to Borrower for the acquisition of
the Project. Out of the remaining Twelve Million And 00/100
Dollars ($12,000,000.00) of loan proceeds, up to
$5,000,000.00 will be disbursed by Borrower to May
Department Stores Company as an inducment to it to cause
its ▇▇▇▇▇▇▇▇'▇ division entry into the Project. The
remainder will be advanced monthly as construction
progresses following receipt and approval by Huntington and
it's participant in the loan, National City Bank ("National
City") of plans and specifications for the renovation of
the Project.
CONDITIONS TO
FUNDING ADDITIONAL
$12,000,000.00 OF
LOAN PROCEEDS: In addition to any applicable conditions set forth in the
General Conditions, the following special conditions, each
of which shall survive closing and the execution and
delivery of the Loan Documents as hereinafter defined, must
be complied within ninety (90) days of initial funding and
shall be conditions to Huntington's obligations to advance
the additional $12,000,000.0 of loan proceeds:
1. A cost breakdown satisfactory to Huntington
and National City.
2. An amendment to the existing REA or a new
REA satisfactory in all respects to
Huntington and National City and executed by
the Borrower, Lazarus, Sears, and either May
Department Stores Company or a similar
anchor store.
3. An amendment to the existing ground lease to
▇▇▇▇▇▇'▇ permitting the renovation of the
Mall and the addition of May Department
Stores Company, satisfactory to Huntington
and National City.
4. If new foundations are to be built in
connection with the renovation, a soils
report satisfactory to Huntington and
National City.
5. An updated appraisal to reflect stabilized
value following completion of the
renovations, reflecting a loan to value
ratio not greater than seventy-five percent
(75%) based on full loan disbursement.
6. An income and expense pro forma satisfactory
to Huntington and National City.
LOAN FEE: One Hundred Twenty Thousand and 00/100 Dollars
($120,000.00), earned in full and non-refundable and
payable by Borrower at loan closing and Sixty Thousand And
00/100 Dollars ($60,000.00) payable by Borrower when the
conditions to the funding of the additional $12,000,000.00
of loan proceeds have been complied with by Borrower.
MATURITY: Thirty Six (36) months after loan closing.
Interest on the initial advance of Twenty Four Million And
00/100 Dollars ($24,000,000.00) shall be charged at a
variable rate equal to the sum of Two percent (2%) per
annum plus the one month LIBO Rate. Interest on the
remaining balance of Twelve Million And 00/100 Dollars
($12,000,000.00) shall be charged at a variable rate equal
to the sum of two percent (2%) per annum plus the Daily
LIBO Rate. Following disbursement of the full principal
balance of the loan, the LIBO component of the Variable
Rate may, at Borrower's option either be at the Daily LIBO
Rate or the one month LIBO Rate. Following disbursement of
the full principal balance, the Variable Rate shall be
further adjusted as follows: If Borrower is not in default
and there exists a Debt Service Coverage Ratio of 1.10 to 1
the
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Variable Rate shall equal the sum of 1 and 9/10 percent
(1.9%) per annum plus the one month LIBO Rate or Daily LIBO
Rate. If Borrower is not in default and there exists a
Debt-Service Coverage Ratio of 1.20 to 1, the variable rate
shall equal the sum of 1 and 85/100 percent per annum plus
the one month LIBO Rate or Daily LIBO Rate. If Borrower is
not in default and there exists a Debt Service Coverage
Ratio of 1.30 to 1 the variable rate shall equal the sum of
1 and -3/4 percent (1.75%) per annum plus the one month
LIBO Rate or the Daily LIBO Rate:
PAYMENTS: Interest shall be due and payable monthly until maturity.
Upon Maturity, whether by lapse of time or acceleration,
all unrepaid principal and accrued interest shall be due
and payable.
PREPAYMENTS: Borrower may prepay, upon five (5) business days' prior
written notice to Huntington, all or any portion of the
principal, without premium provided, that if such
prepayment follows default and acceleration, then a
prepayment premium shall be payable equal to five percent
(5%) of the amount then due and provided further that
Borrower shall pay any costs incurred by Huntington with
respect to prepayment of advances bearing interest at the
LIBO Rate.
EQUITY
CONTRIBUTION: Borrower shall provide equity in form satisfactory to
Huntington.
SECURITY: A first-lien mortgage on the Property and the Project; a
first-lien assignment of rents from and leases on the
Property or the Project; a senior security interest in
Project furnishings, fixtures and equipment and other
tangible and intangible personal property; and senior
security interests in the architect's agreement, the plans
and specifications, the general contractor's agreement, all
management agreements, leasing agreements, operating
agreements and franchise agreements, and all permits,
approvals, agreements and contracts affecting the Property
or the Project.
RELEASE
PROVISIONS: If Borrower is not in default, Huntington shall release a
tract to be conveyed to the May Department Stores Company
(▇▇▇▇▇▇▇▇'▇) from the operation of its Loan Documents
without the payment of any release price, provided that the
following conditions are satisfied to Huntington's
satisfaction at no cost or expense to Huntington: (a)
Huntington has received evidence that a validly created and
approved lot split has been obtained of the tract to be
released from the mall Property; (b) the size and location
of the tract to be released is satisfactory in all respects
to Huntington; (c) a satisfactory survey and legal
description for the tract to be released have been
furnished to Huntington; and (d) reciprocal easement rights
(the "Easement Rights")
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between the tract to be released and the mall property have
been created to the satisfaction of Huntington.
COSTS AND
EXPENSES: Borrower shall be responsible for all out-of-pocket costs
and expenses incurred by Huntington in connection with this
Loan, whether or not a closing occurs. Such costs and
expenses include, without limitation, the fees and expenses
of ▇▇▇▇▇▇▇▇▇▇'s outside counsel, charges for title
insurance, survey, appraisal and environmental site
assessment, fees and expenses of ▇▇▇▇▇▇▇▇▇▇'s independent
inspecting architect, and recording fees and taxes.
▇▇▇▇▇▇▇▇▇▇'S OBLIGATIONS UNDER THIS COMMITMENT ARE SUBJECT TO THE ATTACHED
GENERAL CONDITIONS, EACH OF WHICH SHALL BE DEEMED SATISFIED ONLY WHEN THE
DOCUMENT OR EVIDENCE PROVIDED IN SATISFACTION THEREOF HAS BEEN REVIEWED AND
APPROVED BY HUNTINGTON AS TO FORM AND CONTENT.
This letter sets forth the entire agreement between ▇▇▇▇▇▇▇▇, Guarantors and
Huntington and supersedes any and all agreements, understandings, statements or
representations, whether oral or written, of Huntington or anyone acting on
behalf of Huntington. Any modification or waiver of any provision of this Offer
or Commitment must be in writing and be signed by ▇▇▇▇▇▇▇▇ and Huntington and
shall bind Guarantors. To the extent that the terms and conditions of this
Commitment are not contradicted by the terms and conditions of documents later
executed and delivered, the terms and conditions hereof shall survive the
execution and delivery of such later documents.
▇▇▇▇▇▇▇▇▇▇'s counsel in this matter will be ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇ suggests that Borrower or ▇▇▇▇▇▇▇▇'s counsel contact ▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq., of that firm at (▇▇▇)▇▇▇-▇▇▇▇ regarding Commitment requirements
or loan closing. Our counsel will prepare and send a closing checklist upon your
acceptance of this Offer.
THIS OFFER HAS BEEN ACCEPTED BY ▇▇▇▇▇▇▇▇ AND GUARANTORS ONLY WHEN HUNTINGTON HAS
RECEIVED TWO ORIGINALS OF THIS LETTER WITH ▇▇▇▇▇▇▇▇'S AND GUARANTORS'
ACCEPTANCES ENDORSED THEREON AND PAYMENT OF THE COMMITMENT FEE. UNLESS ALREADY
ACCEPTED, THIS OFFER SHALL EXPIRE ON THE TENTH (10TH) DAY AFTER THE DATE HEREOF.
ACCEPTANCE BY ▇▇▇▇▇▇▇▇ AND GUARANTORS OF THIS OFFER SHALL CREATE A BINDING
AGREEMENT BETWEEN HUNTINGTON AND BORROWER AND GUARANTORS. IF THE LOAN IS NOT
CLOSED WITHIN FORTY (40) DAYS AFTER THE DATE HEREOF, THEN ▇▇▇▇▇▇▇▇▇▇'S
OBLIGATIONS HEREUNDER SHALL TERMINATE.
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We thank you for your interest in financing the Project with Huntington and look
forward to a mutually satisfactory business relationship.
Very truly yours,
THE HUNTINGTON NATIONAL BANK
By:________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
The undersigned hereby accept the foregoing Offer this ________ day of
December, 2003, and agree to be bound by the terms and conditions hereof.
BORROWER:
EM COLUMBUS, LLC,
a Delaware limited liability company
By: Glimcher Properties Limited Partnership,
a Delaware limited partnership, its member
By: Glimcher Properties Corporation,
a Delaware corporation, its General Partner
By:________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
GUARANTORS:
Glimcher Properties Limited Partnership,
a Delaware Limited Partnership
By: Glimcher Properties Corporation,
Its General Partner
By:________________________________________
Glimcher Properties Corporation,
a Delaware Corporation
By:________________________________________
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GENERAL CONDITIONS
1.1 PLANS AND SPECIFICATIONS: Prior to the disbursement of any funds for
the renovation of the Project, Borrower shall provide a complete set of the
final plans and specifications for the development and construction of the
Project. Such plans and specifications shall comply with the requirements of all
governmental authorities having jurisdiction and shall incorporate any
recommendations contained in the geotechnical, environmental or wetlands
reports.
1.2 GEOTECHNICAL REPORT: Prior to the disbursement of any funds for the
renovation of the Project which requires additional foundations, borrower shall
provide a narrative report regarding the condition of soils on the property to
be improved, which report shall include all test results and recommendations
regarding drainage, excavation, fill, compaction and foundations and shall be
certified by a licensed geotechnical engineer acceptable to Huntington. If the
construction on the additional property requires fill, then Huntington reserves
the right to require an updated geotechnical report upon completion of such
fill.
1.3 ENVIRONMENTAL REPORT: Borrower shall provide a current "Phase One"
environmental site assessment regarding hazardous wastes, toxic materials and
other environmental hazards on the Property, which report shall be certified by
an environmental consultant and shall conform in all respects with Huntington's
"Phase One Environmental Site Assessment Requirements," a copy of which is
attached as Exhibit "A" and made a part hereof. If warranted by the Phase One
environmental site assessment, Borrower shall provide a detailed audit of the
same matters. Such consultant must appear on Huntington's list of approved
environmental consultants or be specifically approved in writing by Huntington.
1.4 ZONING: Borrower shall provide evidence that the Property is zoned to
permit the development, construction, use and operation of the Project, that the
referendum or appeal period has expired for any ordinance, resolution, variance
or special permit establishing the zoning and that there is no pending action,
either administrative, legislative or judicial, which could adversely affect the
zoning of the Property or the development, construction, use or operation of the
Project.
1.5 SURVEY: Borrower shall provide a current survey of the Property, which
survey shall be certified by a licensed surveyor acceptable to Huntington and
shall conform in all respects with ▇▇▇▇▇▇▇▇▇▇'s "Survey Requirements," a copy of
which is attached as Exhibit "B" and made a part hereof.
1.6 TAX PARCEL: Borrower shall provide evidence that the Property comprises
one or more separate tax parcels.
1.7 TITLE INSURANCE COMMITMENT: Borrower shall provide a current ALTA title
insurance commitment for the Property and all appurtenant easements, which
commitment shall be issued by an agent and underwriter acceptable to Huntington
and shall conform in all respects with ▇▇▇▇▇▇▇▇▇▇'s "Title Insurance
Requirements," a copy of which is attached as Exhibit "C" and made a part
hereof.
1.8 CONSTRUCTION LOAN AGREEMENT: Prior to the disbursement of any finds for
the renovation of the Project, Huntington and Borrower shall enter into a
Construction Loan Agreement on the form attached hereto as Exhibit "E".
1.9 OTHER AGREEMENTS AND CONTRACTS: Borrower shall provide copies of all
management agreements, leasing agreements, operating agreements, franchise
agreements and other agreements and contracts affecting the Project and entered
into prior to loan closing.
1.10 INSURANCE: Borrower shall provide evidence of casualty and liability
insurance for the Project and the Property, which insurance shall be issued by
underwriters acceptable to Huntington and shall conform in all respects with
Huntington's "Insurance Requirements," a copy of which is attached as Exhibit
"D" and made a part hereof.
1.11 LEASES: Borrower shall provide originals or certified copies of all
executed leases (including all amendments) of the Property, the Project or any
portion thereof and shall not enter into any new leases of 7,500 square feet or
more unless the identity of the tenant and the form of the lease has been
approved by Huntington. Further, upon ▇▇▇▇▇▇▇▇▇▇'s request, Huntington shall be
provided with a Subordination, Attornment and Non-Disturbance Agreement for each
such tenant.
1.12 ACQUISITION DOCUMENTS: Borrower shall provide a certified copy of the
agreement for the acquisition of the Property and, if the Property is acquired
prior to loan closing, certified copies of the deed and closing statement.
1.13 APPRAISAL: Huntington must be able to procure from an independent
appraiser selected by Huntington an appraisal of the Property and the Project
evidencing a loan to value ratio not greater than seventy-five percent (75%)
and, from its review appraiser, a confirmation of such loan to value ratio. In
the event such appraisal or confirmation cannot be procured, this requirement
shall be deemed unsatisfied and Huntington shall not be obligated to attempt
procurement from a second appraiser. The appraisal shall comply with the most
recent regulations of the Comptroller of the Currency. Prior to the disbursement
of any funds for renovation, an additional appraisal is to be obtained at
Borrower's costs, reflecting a loan to value ratio not greater than
seventy-five percent (75%) of stabilized value based on full loan disbursement
and upon completion of improvements.
1.14 LIMITED PARTNERSHIP DOCUMENTS: Borrower shall provide the following,
including any and all amendments thereto, for Glimcher Properties Limited
Partnership:
(a) Limited Partnership agreement;
(b) Certificate of limited partnership;
(c) Evidence of authority to transact business in Ohio; and
(d) Resolution authorizing the loan transaction and designating
document signatories.
1.15 CORPORATION DOCUMENTS: Borrower shall provide the following, including
any and all amendments thereto, for Glimcher Properties Corporation:
(a) Articles of incorporation certified by the proper official of
the state of incorporation;
(b) Evidence of good standing certified by the proper official of
the state of incorporation;
(c) If incorporated in a state other than Ohio, then evidence of
authority to transact business in the State of Ohio certified
by the Secretary of State;
(d) Code of regulations certified by the corporation's secretary;
and
(e) Resolution authorizing the loan transaction and designating
document signatories, complete with incumbency certificate,
certified by the corporation's secretary.
1.16 LIMITED LIABILITY COMPANY DOCUMENTS: Borrower shall provide the
following, including any and all amendments thereto, for EM COLUMBUS, LLC:
(a) Articles of organization certified by the proper official of
the state of organization;
(b) Evidence of good standing certified by the proper official of
the state of organization;
(c) If organized in a state other than Ohio, then evidence of
authority to transact business in the State of Ohio certified
by the Secretary of State;
(d) Certified copy of the Operating Agreement; and
(e) Resolution authorizing the loan transaction and
designating document signatories.
2. CLOSING REQUIREMENTS
2.1 LOAN DOCUMENTS GENERALLY: ▇▇▇▇▇▇▇▇'s obligation to repay the loan shall
be evidenced by a cognovit promissory note made by Borrower in the loan amount.
The promissory note shall be secured by:
(a) An open-end mortgage, assignment of rents and security
agreement;
(b) At the time of the first disbursement of loan proceeds for
renovation, a security agreement and assignment of architect's
agreement and plans and specifications, acknowledged by the
architect;
(c) At the time of the first disbursement of loan proceeds for
renovation, a security agreement and assignment of general
contractor's agreement acknowledged by the general contractor;
(d) A security agreement and assignment of management agreements
leasing agreements, operating agreements and franchise
agreements, acknowledged by the other contracting party;
(e) A security agreement and assignment of all other agreements
and contracts affecting the Property or the Project,
engineering drawings, plans, specifications, permits,
licenses, consents and approvals; and
(f) U.C.C. Financing Statements.
The loan proceeds shall be advanced in accordance with the terms and conditions
of a Construction Loan Agreement. Guarantors' obligations shall be evidenced by
cognovit Unconditional Guaranties of Payment and Performance. Borrower shall
sign a ▇▇▇▇▇▇▇▇'s Affidavit with regard to off-record matters affecting the
Property and other matters as of the date of loan closing. The above-referenced
loan documents and any other loan documents deemed necessary for the perfection
of the security or for the effective administration of the loan (the "Loan
Documents") shall be in form and content acceptable to Huntington and shall be
governed by Ohio law.
2.2 SPECIFIC PROVISIONS OF THE LOAN DOCUMENTS: The Loan Documents will
provide, among other things, for the following:
(a) Late Payment Penalty: If any payment is not paid on or before
the fifteenth (15th) day of any month, Borrower shall pay a
service charge of five percent (5%) of the payment amount.
(b) Default Rate of Interest: In the event of default, interest
shall be charged at a rate equal to the sum of two percent
(2%) per annum plus the prime commercial rate of The
Huntington National Bank.
(c) Escrows: Huntington reserves the right, after any instance of
failure of timely payment by Borrower or upon any other
default, to require Borrower to deposit monthly with
Huntington an amount equal to one-twelfth (1/12th) of the
annual taxes, insurance premiums, and assessments against the
Property and the Project.
(d) Cross Default: Default under this obligation or any other
obligation of Borrower or any Guarantor held by Huntington
shall constitute a default under all such obligations.
(e) Conveyance, Etc. as an Event of Default: Borrower shall not
sell, assign, mortgage, pledge, lease or otherwise convey or
further encumber the Property, the Project or the personal
property securing the loan or any legal, equitable or
beneficial interest therein, without ▇▇▇▇▇▇▇▇▇▇'s prior
written approval, provided, however, that personal property
may be disposed of in the ordinary course of business so long
as it is replaced by personal property of a like kind or
similar personal property. Further, there shall be no
conveyance or encumbrance of corporate shares or partnership
interests or limited liability company interests, the
effect of which is to violate the foregoing prohibition or to
cause a change in the control of Borrower. The foregoing shall
not be deemed to prohibit transfers of partnership interests
in Glimcher Properties Limited Partnership or the issuance or
transfer of shares in Glimcher Realty Trust.
(f) Waiver of Trial by Jury: ▇▇▇▇▇▇▇▇ and Guarantors shall waive
any right to have a jury participate in resolving any dispute
arising out of the loan transaction.
(g) Limitation on Transfer of Assets: Borrower and Guarantors
shall not transfer assets to others that would constitute
fraudulent transfers under Ohio law or under the United States
Bankruptcy Code or in other than the ordinary course of
business, without ▇▇▇▇▇▇▇▇▇▇'s prior written approval.
(h) Leases: Any lease of 7,500 square feet or more not approved by
Huntington prior to loan closing, together with financial
statements for the tenant and any lease guarantor and plans,
specifications and costs for any tenant finish to be provided
by ▇▇▇▇▇▇▇▇, shall be submitted to Huntington for prior
written approval. Each lease so submitted shall be expressly
subordinate to ▇▇▇▇▇▇▇▇▇▇'s first mortgage lien and shall
obligate the tenant to attorn, at Huntington's option, to
Huntington upon acquisition of title and to execute and
deliver documents confirming such subordination and attornment
and estoppel certificates as Huntington may, from time to
time, request.
The foregoing description of specific provisions shall not be construed as
limiting in any way the requirement that Loan Documents be in form and content
acceptable to Huntington.
2.3 NOTICE OF COMMENCEMENT; NO PRIOR WORK: ▇▇▇▇▇▇▇▇ shall deliver to the
title insurer a notice of commencement to be filed prior to the commencement of
any renovation work.
2.4 TITLE INSURANCE POLICY: Borrower shall cause the title insurer to issue
within thirty (30) days after closing, the title insurance policy described in
the title insurance commitment, insuring ▇▇▇▇▇▇▇▇▇▇'s mortgage as the first
mortgage lien on the Property subject only to exceptions acceptable to
Huntington.
2.5 LEGAL OPINION: Borrower shall provide the favorable opinion of
▇▇▇▇▇▇▇▇'s and Guarantors' counsel regarding the organization, existence,
standing, power and authorization of ▇▇▇▇▇▇▇▇ and Guarantors; the execution,
delivery and enforceability of the Loan Documents; the absence of conflict with
other obligations; the absence of adverse matters affecting ▇▇▇▇▇▇▇▇, Guarantors
or the Property; the conformity of the Loan Documents with the laws of usury;
and the compliance of Borrower with laws and other requirements. A specimen
opinion, acceptable to Huntington, is available upon request.
2.6 DEED AND CLOSING STATEMENT: If not provided in satisfaction of a
Pre-Closing Requirement, Borrower shall provide a certified copy of the deed and
closing statement for the acquisition of the Property.
3. GENERAL REQUIREMENTS
3.1 SIGNAGE: Huntington shall have the right, at Huntington's expense, to
erect its own construction sign on the Property in connection with the
renovation work and to otherwise advertise its provision of financing in
appropriate print media.
3.2 DISCLOSURE OF FINANCIAL INFORMATION: Borrower and Guarantors consent to
▇▇▇▇▇▇▇▇▇▇'s disclosure of financial statements, information or other material
submitted to Huntington to other financial institutions in connection with the
sale of participating interests in the loan and the servicing of the loan on
behalf of loan participants.
3.3 ASSIGNABILITY; NO THIRD PARTY BENEFICIARY: Neither this Commitment nor
the loan proceeds may be assigned by Borrower without ▇▇▇▇▇▇▇▇▇▇'s prior written
consent. This Commitment is a contract between Huntington and Borrower, and
there are no third-party beneficiaries.
3.4 MATERIAL CHANGE: Should any material, adverse change occur in the
creditworthiness of Borrower or any Guarantor or in the Property or should any
of the financial statements, information or other material submitted to
Huntington in connection with the application for and the closing of the loan be
or become materially inaccurate, then Huntington shall have the right to cancel
the Commitment. In such event, the Commitment Fee shall be paid by ▇▇▇▇▇▇▇▇ and
retained by Huntington as liquidated damages. ▇▇▇▇▇▇▇▇ agrees to promptly notify
Huntington in writing of any such material, adverse change or material
inaccuracy.
3.5 REGULATORY COMPLIANCE: Should it be determined that the closing of the
loan as contemplated herein would constitute a violation of any requirement
imposed on Huntington by regulatory authorities, then, unless ▇▇▇▇▇▇▇▇ agrees in
writing to such changes in the Commitment as may be required to conform the loan
to any such requirement, the Commitment Fee and any portion of the Loan Fee
previously paid by Borrower will be refunded and the Commitment shall be
canceled and considered null and void.
3.6 BROKERS: Huntington shall not be required to pay any brokerage fees or
commissions arising through Borrower from the issuance of the Offer or the
Commitment or the making of the loan, and ▇▇▇▇▇▇▇▇ agrees to defend and
indemnify Huntington against any such claims therefor. Borrower's obligation for
costs and expenses and for defense and indemnity shall survive any expiration or
cancellation of the Commitment, whether arising from a material change or
failure of regulatory compliance.
3.7 NOTICES: Any notice to Huntington that is required or permitted by the
terms and conditions of the Offer, the Commitment or the Loan Documents shall be
directed to The Huntington National Bank, Commercial Real Estate Group, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President.
EXHIBIT "A"
HUNTINGTON BANKS PHASE I ENVIRONMENTAL SITE ASSESSMENT (ESA)
REPORT REQUIREMENTS
1. The Borrower shall select and contract with a Huntington Listed Company
("Consultant") to perform the Phase I Environmental Site Assessment
(ESA) Report ("Report"). The Borrower shall instruct the Consultant to
complete the Report in accordance with Huntington's current Phase I ESA
Report Requirements and Phase I ESA Checklist ("Requirements") (NOTE:
In the event that the subject property is outside the market area of
Huntington, the Borrower shall instruct the Consultant to contact
▇▇▇▇▇▇▇▇▇▇'s representative at its Ohio regional office to acquire the
Requirements).
2. The selected Consultant preparing the Report shall provide the Borrower
with one original Report and Huntington (via the Borrower) with two
original copies of the report. A letter of Transmittal shall be
attached to the Report which states "the Report was prepared in
accordance with the current Huntington Phase I ESA Report
Requirements". The letter of Transmittal shall state that "the Report
was prepared for the exclusive use of the `client' and Huntington Banks
and each may rely on the contents of the Report". The Letter of
Transmittal shall also instruct the Borrower to transmit two reports to
the Huntington Account Executive.
3. The Report shall contain a Title Page, Table of Contents, Executive
Summary, and Limitations and Exceptions to the Requirements. The Title
Page shall indicate Huntington as a recipient of the Report.
4. Section One of the Report shall contain a detailed account of findings
for publicly available state and local records inclusive of 50 year
chain of title (or property tax records), aerial photographs, ▇▇▇▇▇▇▇
Fire Insurance Maps, City Directories, and building department records.
The Consultant shall also report on interviews with past/present
owners/tenants of the subject property and adjacent properties and on
any previous investigations.
5. Section Two of the Report shall contain a detailed account of the site
inspection inclusive of: name of inspector and date and time of
inspection, weather conditions at the time of inspection, general
physical setting of subject property, current use of the subject
property, intended use of the subject property, public utilities
available and utility company, water ▇▇▇▇▇ (subject and adjacent
properties), on-site septic systems, interview(s) with current
tenant(s)/owner(s), building interior (including transformers, floor
drains, hazardous waste/material storage, etc.), Describe interior
hazardous waste stream(s), building exterior (including the grounds),
"exterior" site operations, hazardous waste disposal, solid waste
stream and disposal, underground storage tanks/above ground storage
tanks (USTs/ASTs) (state if USTs are in compliance and whether ASTs
have
secondary containment) and any other hazardous materials containers,
pits, ponds, lagoons and waste disposal areas,
transformers/capacitors/light ballasts (LOCATION, OWNERSHIP AND
CONTENT), Electromagnetic Fields, vegetation (condition of, staining,
anomalies), oil and gas ▇▇▇▇▇, topography, drainage patterns, general
soil profile, geology, local groundwater flow, legal description of
subject property (or copy of), and cursory inspection of the adjoining
property uses.
6. Section Three of the Report shall contain the findings of an asbestos
(ACM) inspection. This section shall apply only where the on-site
structure(s) were constructed prior to 1989. This section shall
contain: identification of the certified ACM inspector (including name
and current certification number) and the date the inspection was
performed; identification of suspect non-friable ACM in good condition
and amount; identification of suspect non-friable ACM in damaged
condition and amount; analytical results of representative samples
acquired from Section 3.3; identification of suspect friable ACM in
good condition and amount; analytical results of representative samples
acquired from Section 3.5 (ceiling tiles and textured ceiling material
only); identification of suspect friable ACM in damaged condition and
those suspect ACM to be disturbed and amount; and analytical results of
representative samples acquired from Section 3.7. All samples shall be
representative in nature but the actual analysis of all samples shall
be conducted in accordance with the Occupational Safety and Health Act
(OSHA) protocol in 29 Code of Federal Regulations (CFR) 1910.1001.
7. Section Four of the Report shall contain a detailed account of federal,
state and local regulatory agency records. The records to be included
in this section include: National Priority List (NPL) - subject
property to 1 mile, Comprehensive Environmental Response Compensation
and Liability Act (CERCLA) - subject property to 1 mile, state Master
Sites list - subject property to 1 mile, Treatment Storage and Disposal
Facilities (TSDF) - subject property to 1 mile, Resource Conservation
and Recovery Act (RCRA) generators (Large Quantity Generators/Small
Quantity Generators (LQG/SQG) - subject property to -1/4 mile,
Emergency Response Notification System (ERNS) - subject property to
-1/4 mile, Leaking Underground Storage Tanks (LUSTS) - subject property
to -1/2 mile, Solid Waste Landfills - subject property to 1 mile,
Underground Storage Tanks (USTS) - subject property and adjacent
properties, Department of Natural Resources (DNR) - Division of Oil and
Gas (well logs) - subject property, Natural Heritage Program (i.e.
endangered species and unique habitats) - subject property only (for
undeveloped property only), local fire department - subject property
only, local health department - subject property only, local building
department - subject property only, and local zoning department -
subject property only. A map locating all identified sites and their
actual distance from the subject property shall be located in this
section.
8. Section Five of the Report shall contain a lead paint screen by a
licensed lead inspector. This section of the Report applies only for
multi-tenant residential sites (4+ units) inclusive of nursing homes
and day care centers constructed prior to 1978. The screen shall
include: identification of the certified lead risk assessor (including
name and current certification number) and the date the inspection was
performed, narrative of the
methods and procedures utilized, findings of the inspection and
recommendations for further investigation, and analytical results for
the representative samples acquired and analyzed. Where painted
surfaces do not meet the definition requiring sampling and analysis
under the Lead Base Paint Poisoning Prevention Act (LBPPA), samples are
not required.
9. Section Six of the Report shall contain a preliminary radon inspection
by a licensed radon inspector. This section of the Report applies only
for multi-tenant residential sites (4+ units) with subsurface living
units. The inspection shall include: identification of the certified
radon inspector (including name and current certification number) and
the date the inspection was performed, narrative of the methods land
procedures utilized, findings of the inspection and recommendations for
further investigation, and analytical results for all canisters
analyzed.
10. Section Seven of the Report shall contain a lead in drinking water
test. This section of the Report applies only for multi-tenant
residential sites (4+ units) inclusive of nursing homes and day care
centers constructed prior to 1978. The test shall include:
identification of the inspector and the date the inspection was
performed, narrative of the methods and procedures utilized, findings
of the inspection and recommendations for further investigation, and
analytical results for all water samples analyzed. The protocol to be
followed for this task is the Safe Drinking Water Act (SDWA)
methodology for National Primary Drinking Water Standards.
11. Section Eight of the Report shall contain a wetlands evaluation
performed by a Consultant approved by Huntington to conduct such
investigations. This section of the Report applies only for undeveloped
property equal to or greater than one third of one acre in size (and is
not a mowed maintained lot). The wetlands evaluation shall include:
identification of Huntington approved wetlands consultant including the
date the inspection was performed, results of the on-site review of
United States Geographical Service (USGS) 7.5 Minute Topographic
Map(s), National Wetlands Inventory Maps (NWI)/State Wetland Maps/local
wetland maps, Soil Conservation Service (SCS) maps(s), Serial aerial
photos of the subject property, available site specific information
(e.g. the proposed development plan), other available sources of
information including: National Insurance Agency Flood Maps, Land Use
Maps, National Wetland Plant Database, Soil Drainage Guides, Stream
Gauge Data, Watershed Projects, Department of Natural Resources Natural
Heritage Program File, and local expertise. An on-site determination
which closely adheres to that presented in the "Corps of Engineers
Wetland Delineation Manual", 1987 shall then be conducted. Should the
Wetland Evaluation result in the identification of wetland areas and
that an excess of 1/3 of one acre of said wetlands is to be altered or
filled, a Wetlands Delineation shall be conducted pursuant to the
procedure for Routine level wetland determination method described in
the "Corps of Engineers Wetland Delineation Manual", 1987. The Wetlands
Delineation Report shall be prepared in accordance with the Corps of
Engineers "Guidance For Submittal of Wetland Delineation Reports",
March 1990.
12. Section Nine of the Report shall include a multi-media compliance
inspection. This section applies only when the subject property is a
Large Quantity Generator (LQG) of hazardous waste as defined by the
Resource Conservation and Recovery Act (RCRA). As each industry is
different, the Consultant is asked to contact the Huntington
Environmental Specialist prior to completing this task to determine the
scope of service. In the event the subject property is a Small Quantity
Generator (SQG), the Consultant shall review the on-site regulatory
compliance documentation for the on-site operations and report on the
findings. Where the subject property is located in Ohio, the Consultant
shall make a determination as to whether or not the current or intended
operations are required to submit an Annual Chemical Inventory Report
as defined by 3750.08 or the Ohio Revised Code (ORC) (see Section B.4
page 18).
13. Section Ten of the Report shall contain: the conclusions of the Phase I
ESA, Recommendations for the client and a completed Certificate of
Compliance (see attached) as a separate page following the
Recommendations.
14. Section Eleven of the Report shall contain the following appendices in
the order listed here: Bibliography, subject property location map,
subject property site drawing, color photos of subject property
(minimum of 6), USGS 7.5 Quad Map, aerial photos, ▇▇▇▇▇▇▇ Maps,
regulatory file review documentation, county soil survey soil map,
pertinent well log information, legal description of subject property,
property tax file documentation, city directory documentation, FOIA
requests/responses, any previous reports, ACM inspector
certificate/chain of custody/analytical results (where applicable), LBP
inspector certificate/chain of custody/analytical results (where
applicable), Radon inspector certificate/chain of custody/analytical
results (where applicable), Lead in water sample chain of
custody/analytical results (where applicable), supplemental
information, and Site Inspector's Resume.
HBI PHASE I ESA CERTIFICATE OF COMPLIANCE
A Phase I Environmental Site Assessment (ESA) was completed by__________________
(Company Name)
for the property located at _________________________ and published on _________
(complete address) (Date)
YES NO
1. Was the Phase I ESA completed by A HBI LISTED COMPANY? ___ ___
2. Was the Phase I ESA completed per the "MINIMUM REPORTING
REQUIREMENTS AND PROCEDURES FOR ENVIRONMENTAL
INVESTIGATIONS FOR HBI - 1999."? ___ ___
3. During the investigation, were any ACTIONABLE ENVIRONMENTAL
ITEM(S) (AEI)* identified? ___ ___
Should you have any questions regarding the results of the investigation, please
contact the undersigned at _____________________.
(phone number)
(Consultant Signature) (Consultant Signature)
_______________________ ___________________ _______________ ___________
(Printed Name) (Date) (Printed Name) (Date)
*ACTIONABLE ENVIRONMENTAL ITEM (AEI): is the presence or likely presence of any
hazardous substance or petroleum product on a property under conditions that
indicate an existing release, a past release, or a material threat of a release
into structures on the property or into the ground, ground water, or surface
water of the property. An AEI can include the potential threat of a release on
the property from another property (see section 4.0, Comment #2 of the HBI
Minimum Reporting Requirements). An AEI also includes asbestos, wetlands,
lead-based paint, and radon on the subject property or areas of regulatory
non-compliance (based on a multi-media compliance inspection as defined in
section 9.0 of the HBI Minimum Reporting Requirements) where these specific AEIs
were required to be evaluated in the scope of work because of their
applicability to the subject property. This term is not intended to include de
minimis conditions that generally do not present a material risk of harm to
public health or the environment and that generally would not be the subject of
an enforcement action if brought to the attention of appropriate governmental
agencies as defined by ASTM E 1527, section 3.3.28.
EXHIBIT "B"
SURVEY REQUIREMENTS
BORROWER SHOULD PROVIDE THESE REQUIREMENTS TO THE SURVEYOR.
HNB WILL REQUIRE STRICT COMPLIANCE WITH THESE REQUIREMENTS.
A. PROPERTY SURVEY:
1. The survey shall be certified to The Huntington National Bank and to
the title insurance company by a registered land surveyor using the
attached certification. The survey shall have the surveyor's original
signature and seal affixed and shall reflect a current date. Older
surveys are acceptable if updated and recertified. The survey must show
the North arrow.
2. The full legal description and street address must be shown. The legal
description must be identical to that contained in the title insurance
commitment or any discrepancies explained. The legal description must
conform to the record legal description or any discrepancies noted on
the survey and explained. If the premises are described as being on a
filed plat or map, the survey must contain a legend relating the parcel
to the map on which it is shown, and the surveyor must certify that any
land which has been platted or mapped is the same as that described on
the survey.
3. If the property consists of more than one parcel, show interior
property lines and certify that the parcels are contiguous along their
common lines. If only a portion of a parcel is being surveyed, the
balance of the parcel must be indicated.
4. All perimeter property lines must be specifically identified. Show the
location by courses and distances of the property to be covered by the
mortgage; clearly designate the point of beginning and the relation (by
courses and distances) of the point of beginning for the property to
the monument (i.e., nearest street intersection) from which it is
fixed; show and label all servient easements; show all building lines,
whether established by subdivision plat, recorded restrictions or
zoning or building ordinance; show and label all easements appurtenant
to said parcel; show all driveways and alleys on or crossing the
property; show the right of way lines of the street or streets abutting
the parcel, the names and width of said streets, whether the streets
are dedicated, whether there are limitations on access, all curb cuts
from the property to such street or streets, and the distance from the
nearest intersecting street.
5. Show the number of square feet or acres contained in the parcel.
6. All easements, set-back lines and other exceptions in the title
insurance commitment (except liens) must either: (a) be plotted or (b)
if not plottable, identified on the face of
the survey as not plottable with an explanation as to why they are not
plottable or (c) if inapplicable, certified as not affecting the
property.
7. Locate and identify all utility lines that serve the property
improvements (sewer, water, gas, electric and telephone). Indicate
whether the utility lines are above or below grade and show the sizes
of the respective services.
8. Show and describe encroachments or make a positive statement that there
are not encroachments.
9. State whether or not the property appears on any U.S. Department of
H.U.D. Flood Insurance Boundary Map or any special flood hazard area
map published by the Federal Emergency Management Agency and, if so,
further state the map number and date and whether or not the property
appears in the "Flood Hazard Area" shown on the map.
10. State the zoning classification of the property.
11. Show the location of any underground tanks and of any railroad tracks
and sidings.
12. Show the location of rubbish fills, sloughs, springs, filled in ▇▇▇▇▇
or cisterns and seep holes, if applicable.
13. For property on which existing improvements are to remain, show (a) all
structures and improvements including sidewalks, ▇▇▇▇▇▇, overhangs, and
parking areas; (b) the square footage of all structures; (c) horizontal
lengths of all sides of all structures and improvements and the
relations thereof by distances to all boundary lines of the parcel, all
servient easements, all established building lines and all street
lines; and (d) all parking and paved areas, with the number of vehicles
that may be parked in each parking area.
B. FOUNDATION SURVEY:
The property survey must be updated to show the location of added
building foundations. The survey shall show horizontal lengths of all sides and
the relation thereof by distances to: (a) all boundary lines of the parcel; (b)
servient easements; (c) established building lines; and (d) street lines. The
certification must be updated to the date the foundation survey was made.
C. FINAL SURVEY:
The property survey must be updated to show all completed parking
areas, structures and improvements in the same manner as required in item 13(a)
above. The certification must be updated to the date the final survey was made.
SURVEYOR'S CERTIFICATE
The undersigned hereby certifies to The Huntington National Bank and to [INSERT
NAME OF TITLE INSURER] as of ____________________, _____ that this survey was
actually made upon the ground; that it and the information, courses and
distances shown thereon are accurate; that the title lines and lines of actual
possession are the same; that the property description "closes" by engineering
calculation; that this survey correctly shows the size, location and type of all
buildings, structures and other improvements on the property and all are within
the boundary lines and applicable set-back lines (whether established by
subdivision plat, recorded restrictions or applicable zoning or building codes)
affecting the property; that there are no easements or uses affecting the
property appearing from a careful physical inspection of the same, other than
those shown thereon; that all utility services necessary for the operation of
the property are present on the property or within adjacent public right of way
or recorded easement; that there are no encroachments on adjoining premises,
streets or alleys by any of said buildings, structures or other improvements or
encroachments upon the property by any building, structure or other improvement
situated upon any adjoining premises; and that the property is in Zone ______
(areas determined to be ____________________________) on Flood Insurance Rate
Map, Panel ________ of ________, County, ________ and incorporated areas, Map
No. _______ (effective date: ________________). This survey was made in
accordance with the "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys" jointly established by ALTA, ACSM and NSPS in 1999. Pursuant to
the Accuracy Standards as adopted by ALTA, ACSM and NSPS and in effect on the
date of this certification, the undersigned further certifies that the survey
measurements were made in accordance with the "Minimum Angle, Distance and
Closure Requirements for Survey Measurements Which Control Land Boundaries for
ALTA/ACSM Land Title Surveys."
________________ __________________________________
[Name of Surveyor] [Registration Number]
________________ __________________________________
[Address} [Telephone Number]
EXHIBIT "C"
TITLE INSURANCE REQUIREMENTS
BORROWER SHOULD PROVIDE THESE REQUIREMENTS TO THE TITLE INSURANCE AGENT.
HNB WILL REQUIRE STRICT COMPLIANCE WITH THESE REQUIREMENTS.
1. The issuing agent and underwriter must be acceptable to HNB. HNB
reserves the right to require reinsurance of part or all of the
coverage.
2. The ALTA form of commitment shall be used.
3. The insured property shall be the real property securing ▇▇▇▇▇▇▇▇'s
loan and all appurtenant easements. The legal description shall be set
forth in an exhibit attached to the commitment, which exhibit may be
used as an exhibit to the mortgage.
4. The commitment shall show "The Huntington National Bank, its successors
and assigns, as their interests may appear", as proposed insured.
5. The amount of coverage shall be Thirty Six Million And 00/100 Dollars
($36,000,000.00), with a "pending disbursements" clause acceptable to
HNB.
6. The commitment shall expressly state that the form of loan title
insurance policy will be ALTA form (1970 Revision, Amended 10-17-70 and
10-17-84) and that the same will be issued with ALTA Form 6.0 Variable
Rate Endorsement and any other endorsement deemed necessary by HNB. A
specimen of each such endorsement shall be attached to the commitment.
7. The commitment shall expressly state that upon receipt of a survey and
title affidavit acceptable to the title insurer, the loan title policy
shall be issued free from the survey, mechanics' lien and other
standard exceptions. The title affidavit required for deletion of the
standard exceptions shall be attached to the commitment.
8. The commitment shall set forth in full the requirements for issuance of
the loan title insurance policy.
9. Each exception to title must be acceptable to HNB. A legible copy of
the document referenced in each such exception to title and of any
applicable recorded or unrecorded plat shall be attached to the
commitment.
10. The loan title insurance policy shall insure HNB's mortgage as the
first and best lien, subject only to exceptions to title acceptable to
HNB.
EXHIBIT "D"
INSURANCE REQUIREMENTS
BORROWER SHOULD PROVIDE THESE REQUIREMENTS TO THE INSURANCE AGENT.
HNB WILL REQUIRE STRICT COMPLIANCE WITH THESE REQUIREMENTS.
1. Borrower shall provide an original binder or policy, or a certificate
of insurance and a certified copy of the binder and policy, for the
required coverages, together with a paid receipt, prior to loan
closing. Certificates of insurance for "builder's risk" and other
casualty loss coverages must be issued on the ▇▇▇▇▇ 27 form.
2. The issuing underwriter shall have a Best's Insurance Reports policy
holders rating of A+ and a financial size category of Class XV or be
expressly approved by HNB.
3. Each policy of casualty insurance shall contain a mortgagee clause,
substantially in the form of the standard New York mortgagee clause,
and otherwise acceptable to HNB, showing "The Huntington National Bank,
its successors and assigns, as their interests may appear," as the
mortgagee and loss payee. Each policy of liability insurance shall show
"The Huntington National Bank" as an additional insured.
4. Borrower shall provide a policy of insurance against loss or damage to
the improvements and the personal property securing Borrower's loan
caused by fire and any of the risks covered by insurance of the type
now known as "Special Form" (coverage against physical loss), in an
amount equal to one hundred percent (100%) of the replacement cost of
such improvements and personal property and sufficient to prevent
Borrower and HNB from becoming co-insurers, and otherwise with terms
and conditions acceptable to HNB.
5. Borrower shall provide a policy of insurance for "Commercial General
Liability," insuring against any and all claims for personal injury,
death or property damage occurring on, in or about the property, the
improvements and the adjoining streets, sidewalks and passageways,
subject to a combined single limit of not less than One Million Dollars
($1,000,000.00) for personal injury, death or property damage arising
out of any one accident, a general aggregate limit of not less than Two
Million Dollars ($2,000,000.00), with excess liability coverage in an
amount not less than Three Million Dollars ($3,000,000.00), and
otherwise with terms and conditions acceptable to HNB.
6. Borrower shall provide worker's compensation insurance (including
employer's liability insurance, if available and requested by HNB) for
all employees of Borrower engaged on or with respect to the property
and the improvements in the limits established by law, or, if limits
are not so established, in such amounts as are acceptable to HNB.
7. Borrower shall provide, during the course of any construction,
builder's completed value risk insurance against physical loss,
including collapse and transit coverage, in an amount equal to one
hundred percent (100%) of the replacement cost of the improvements and
sufficient to prevent ▇▇▇▇▇▇▇▇ and HNB from becoming co-insurers, and
otherwise with terms and conditions acceptable to HNB.
8. Borrower shall provide, upon obtaining a certificate of occupancy for
the improvements or any portion thereof, "Business Income" insurance in
an amount satisfactory to HNB and/or loss of "rental value" insurance
in an amount not less than the appraised rentals for the improvements
for a minimum of twelve (12) months, and with terms and conditions
acceptable to HNB.
9. If the improvements are located in a federally designated flood hazard
area, then Borrower shall provide flood hazard coverage in the maximum
amount available and otherwise with terms and conditions acceptable to
HNB.
10. Borrower shall provide such other insurance coverages, and in such
amounts, as may from time to time be required by HNB against the same
or other hazards.
11. Unless the policy expressly so provides, each policy of insurance shall
contain an endorsement by the insurer that any loss shall be payable in
accordance with the terms of such policy notwithstanding any act or
negligence of Borrower which might otherwise result in forfeiture of
said insurance and that any right of set-off, counterclaim or deduction
against Borrower is waived.
12. Unless the policy expressly so provides, each policy of insurance shall
contain an endorsement by the insurer that such policy shall not be
canceled or changed except upon not less than thirty (30) days prior
written notice delivered to HNB.
13. Nothing contained in these Requirements shall prevent Borrower from
keeping the property or improvements insured or causing the same to be
insured against the risks referred to in these Requirements under a
policy or policies of blanket insurance which may cover other property;
provided however, that any such policy of blanket insurance (a) shall
specify therein by "agreed amount" endorsement the amount of the total
insurance allocated to the property securing Borrower's loan, which
amount shall be not less than the amount otherwise required to be
carried under these Requirements; (b) shall not contain any clause
which would result in the insured thereunder becoming a co-insurer of
any loss with the insurer under such policy; and (c) shall in all other
respects comply with the provisions of these Requirements.
EXHIBIT "E"
CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT (the "Loan Agreement"), dated as of
the day of ___, 2004, by and between THE HUNTINGTON NATIONAL BANK, a national
banking association, having an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ("Huntington") and EM COLUMBUS, LCC, an Ohio limited liability company,
having an office at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Borrower").
WITNESSETH:
In consideration of the covenants contained herein and other valuable
consideration, Huntington and ▇▇▇▇▇▇▇▇ agree as follows:
1. DEFINITIONS
The following terms wherever used in this Loan Agreement shall have the
following meanings:
1.1 "Change Orders" shall mean any amendments or modifications to
the Plans or General Contract.
1.2 "Completion" shall mean substantial completion of the Project,
in accordance with the Plans, and of any necessary access and utilities serving
the Project; issuance of all approvals and certificates by Governmental
Authorities required for the permanent use and occupancy of the Project;
issuance of a Certificate of Substantial Completion on AIA Document G704 by the
Project Architect and the General Contractor; verification of substantial
completion by ▇▇▇▇▇▇▇▇▇▇'s architect; and presentation of evidence of acceptance
by all tenants having a right of acceptance as a lease condition.
1.3 "Completion Date" shall mean ___________ 200__.
1.4 "Construction Loan Checking Account" shall mean a separate
non-interest-bearing checking account established by Borrower with Huntington.
1.5 "Cost Breakdown" shall mean a statement setting forth, by line
item and category, the Hard Costs and Soft Costs and the Loan Budget Amounts in
respect of Hard Costs and Soft Costs.
1.6 "General Contract" shall mean any contract between Borrower
and the General Contractor or any other person which requires the General
Contractor or such other person to
provide, or supervise or manage the procurement of, substantially all labor and
materials needed for Completion of the Project.
1.7 "General Contractor" shall mean ____________________________.
1.8 "Governmental Authorities" shall mean the United States, the
state in which the Property is located and any political subdivision, agency,
department, commission, board, bureau or instrumentality of either of them,
including any local authorities, which exercises jurisdiction over the Project
or the Property.
1.9 "Guarantor" shall mean Glimcher Properties Limited Partnership
and Glimcher Properties Corporation.
1.10 "Guaranty" shall mean collectively the Unconditional Guaranty
of Payment and Completion, of even date herewith, made by the Guarantor to
Huntington to guarantee payment and performance in accordance with the terms and
conditions of the Loan Documents.
1.11 "Hard Costs" shall mean the costs of all labor, materials,
equipment, fixtures and furnishings necessary for Completion of the Project.
1.12 "Hard Costs Loan" shall mean that portion of the Loan Amount
applicable and equal to the sum of the Loan Budget Amount for Hard Costs shown
on the Cost Breakdown.
1.13 "Hard Costs Statement" shall mean a statement on AIA Documents
G702 and G703 setting forth, by line item and category, Hard Costs incurred, to
be prepared and certified by the General Contractor, certified and approved as
accurate by Borrower, Project Architect and such others as Huntington shall
reasonably require and submitted to Huntington with each Requisition.
1.14 "Huntington's Counsel" shall mean ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
1.15 "Initial Advance" shall mean the first advance of Loan
proceeds for renovations.
1.16 "Loan" shall mean the aggregate of the Hard Costs Loan and the
Soft Costs Loan, which aggregate is equal to the Loan Amount.
1.17 "Loan Amount" shall mean Twelve Million And 00/100 Dollars
($12,000,000.00) of a loan in the total principal amount of Thirty Six Million
And 00/100 Dollars ($36,000,000.00) less any amounts disbursed by Borrower to
May Department Stores (not to exceed 5,000,000.00) to induce ▇▇▇▇▇▇▇▇▇'▇ to
build and occupy a store at the Project.
1.18 "Loan Budget Amounts" shall mean the portion of the Loan
Amount set forth in the Cost Breakdown to be advanced for each line item and
category of Hard Costs and Soft Costs.
1.19 "Loan Documents" shall mean collectively the Loan Agreement,
the Note, the Mortgage, the Guaranty and any other instrument, document,
certificate or affidavit heretofore, now or hereafter given by Borrower
evidencing or securing or by any of the Guarantor guaranteeing all or any part
of the foregoing.
1.20 "Major Subcontract" shall mean any contract entered into by
the General Contractor for work to be performed to the Project or work and
materials to be furnished to the Project in an amount of Seven Hundred Fifty
Thousand And 00/100 Dollars ($750,000.00) or greater.
1.21 "Mortgage" shall mean that certain Open-End Mortgage,
Assignment of Rents and Security Agreement, of even date herewith, granted by
Borrower to Huntington to secure payment and performance by Borrower in
accordance with the terms and conditions of the Loan Documents.
1.22 "Mortgaged Property" shall mean the Property and other
property comprising "Mortgaged Property", as said term is defined in the
Mortgage.
1.23 "Note" shall mean that certain Note, dated ________, 2003,
made by Borrower to Huntington in the amount of Thirty Six Million And 00/100
Dollars ($36,000,000.00) to evidence the Loan and any and all renewals,
amendments, modifications, reductions and extensions thereof and substitutions
therefore.
1.24 "Payment Receipts" shall mean receipts from contractors,
subcontractors and suppliers evidencing payment of Hard Costs.
1.25 "Plans" shall mean collectively the final plans and
specifications prepared by Borrower, Project Architect or the General
Contractor, and approved by Huntington, which describe and show the labor,
materials, equipment, fixtures and furnishings necessary for the Completion of
the Project, including all amendments thereto and modifications thereof made by
approved Change Orders.
1.26 "Project" shall mean the renovation of the existing mall known
as Eastland located on the Property.
1.27 "Project Architect" shall mean _________________________.
1.28 "Property" shall mean the real property described in the
Mortgage, upon which the Project is to be developed and constructed.
1.29 "Retained Amounts" shall mean ten percent (10%) of the Hard
Costs incurred, on a contract by contract basis, until the Contractor under a
particular General Contract has performed fifty percent (50%) of the work
required to be performed thereunder. Thereafter there shall be no retainage for
Hard Costs unless the General Contract or General Contracts provide for
retainage in which event retainage from the loan proceeds shall be in that
amount. Such
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retainage shall be advanced upon presentation to Huntington of a certificate
from the Project architect that such General Contract has been fully performed
and verification of such performance by ▇▇▇▇▇▇▇▇▇▇'s architect. Notwithstanding
the foregoing, retainage with respect to future tenant improvements shall be
separately retained and advanced on substantially the same basis.
1.30 "Requisition" shall mean a statement executed by Borrower
which is to be delivered to the Agent setting forth the amount of the Loan
advance requested in each instance and including:
(a) the Hard Costs Statement and Soft Costs Statement;
(b) Payment Receipts for all Hard Costs covered by a previous
Requisition;
(c) proof of payment of all Soft Costs covered by a previous
Requisition; and
(d) a list of proposed payees.
1.31 "Soft Costs" shall mean all costs, other than Hard Costs,
necessary for Completion of the Project, including without limitation,
architects' and attorneys' fees, ground rents, interest, real estate taxes,
survey costs and insurance premiums.
1.32 "Soft Costs Loan" shall mean that portion of the Loan Amount
applicable and equal to the sum of the Loan Budget Amount for Soft Costs shown
on the Cost Breakdown.
1.33 "Soft Costs Statement" shall mean a statement setting forth,
by line item and category, Soft Costs incurred and to be incurred, to be
prepared, certified and approved as accurate by Borrower and submitted to
Huntington with each Requisition.
1.34 "Title Insurer" shall mean the issuer of the title insurance
policy insuring the lien of the Mortgage.
2. BORROWER COVENANTS
2.1 Borrower shall construct the Project in a good and workmanlike
manner and in accordance with the Plans, using only materials, fixtures,
furnishings and equipment purchased new and not functionally obsolete and shall
cause the Completion of the Project free from defects and in accordance with the
Plans. Upon demand of Huntington, Borrower shall correct any defects in the
Project or any departures from the Plans not approved by Huntington.
2.2 Borrower shall not enter into any Major Subcontract until
Huntington has received a copy thereof and has approved such subcontractor. Such
approval shall be deemed to have been given unless Huntington responds within
fourteen (14) business days following receipt of such subcontract for review.
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2.3 Borrower shall protect from theft and vandalism all portions
of the Project and all tools and building materials stored on the Property.
2.4 Borrower shall pay all Hard Costs and Soft Costs required for
Completion of the Project and all costs of completing any work required to be
performed by Borrower under any purchase contract for or lease of all or part or
the Project, or detailed work letter with respect thereto, to permit the lawful
occupancy of space, including public space, in the Project by purchasers or
lessees of such space as contemplated in the purchase contracts or leases for
the same. Borrower shall keep the Project free from mechanics' and materialmen's
liens, except as expressly permitted in the Mortgage.
2.5 Borrower shall receive and deposit all Loan advances in the
Construction Loan Checking Account and hold the same as a trust fund for the
purpose of paying only Hard Costs and Soft Costs.
2.6 Borrower shall not enter into any Change Order until
Huntington shall have received a copy thereof. Further, Borrower shall not enter
into any Change Order without ▇▇▇▇▇▇▇▇▇▇'s written consent if such Change Order
(a) will increase or decrease the cost of achieving Completion in excess of Ten
Thousand And 00/100 Dollars ($10,000.00), (b) will, when aggregated with all
previous Change Orders, increase or decrease the cost of achieving Completion in
excess of Fifty Thousand And 00/100 Dollars ($50,000.00), or (c) will change the
character, size, value or utility of the Project. Such consent shall be deemed
to have been given unless Huntington responds within fourteen (14) business days
following receipt of such Change Order for review. The approval of any Change
Order by Huntington shall not be construed as obligating Huntington to increase
or advance any Loan Budget Amount on account of any such Change Order.
2.7 Borrower shall permit Huntington and its representatives, at
the reasonable expense of ▇▇▇▇▇▇▇▇, to enter upon the Property and inspect the
Project and all materials to be used in the construction thereof and examine all
detailed plans and shop drawings which are or may be kept at the construction
site. Borrower will cooperate and cause the General Contractor to cooperate with
Huntington in the performance of such inspections. At the time of each such
inspection, Borrower will make available to Huntington on demand, daily log
sheets covering the period since the immediately preceding inspection, showing
the date, weather, subcontractors on the job, number of workers and status of
construction.
2.8 Borrower shall comply with all laws, statutes, ordinances,
rules, regulations and orders of Governmental Authorities and shall promptly
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ with reports of any official searches and claims of
violations made by Governmental Authorities.
2.9 Borrower shall comply with all restrictions, covenants and
easements affecting the Project or the Property and shall satisfy and keep
satisfied any conditions to the zoning of the Property and to the approvals of
Public Authorities, including without limitation, conditions to building
permits, curb cut permits, storm water and other discharge permits, operating
permits, licenses and site plan approvals.
5
2.10 Borrower shall show Huntington as the source of construction
financing on any construction sign erected on the Property at locations approved
by Borrower and in compliance with local laws and ordinances. Borrower shall
permit Huntington to erect its own construction sign on the Property and
otherwise advertise its provision of construction financing all at Huntington's
expense.
2.11 Borrower shall promptly provide to Huntington copies of all
contracts, bills of sale, statements, receipted vouchers and agreements under
which title is claimed by Borrower to any materials, furniture, fixtures or
equipment incorporated into the Project or subject to the lien of the Mortgage
and any other data or documents in connection with the Project as Huntington may
from time to time request.
2.12 Borrower shall indemnify and hold Huntington harmless from all
claims of every person, including, without limitation, employees, contractors
and tenants of Borrower, subcontractors, subtenants or concessionaires of any
contractors or tenants, and employees and business invitees of any contractors,
subcontractors, tenants, subtenants or concessionaires, arising from or out of
the acquisition, development, construction, use, occupancy or possession of the
Project or the Property, excluding however, any claim arising solely from the
gross negligence or willful misconduct of Huntington, its officers, employees,
agents or contractors.
3. LOAN ADVANCES GENERALLY
3.1 Subject to the provisions of this Loan Agreement, Huntington
will advance and Borrower will accept the Loan Amount in installments. The
amount of advances shall not exceed the amount set forth in the separate Cost
Breakdown to be furnished. The Initial Advance and all subsequent advances shall
be made upon satisfaction of the applicable conditions precedent set forth in
Section 4 hereof, in amounts which shall be equal to the aggregate of the Hard
Costs and Soft Costs incurred by Borrower through the end of the period covered
by the Requisition less:
(a) the Retained Amounts; and
(b) the total of the Loan advances theretofore made; and
(c) at the election of Huntington, any combination of the
following further amounts:
(i) all or a portion of the amount by which any Hard
Costs or Soft Costs are or are reasonably estimated
by Huntington to be greater than the respective Loan
Budget Amounts for such costs; and
(ii) any costs covered by the Requisition not approved or
certified by Borrower, Project Architect or General
Contractor, as the case may be, any Hard Costs
covered by a previous Requisition for which Payment
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Receipts have not been received by Huntington and any
Soft Costs covered by a previous Requisition for
which proof of payment has not been received by
Huntington; and
(iii) any costs covered by the Requisition and payable to a
major subcontractor or prime contractor not approved
by Huntington.
3.2 Borrower shall submit a Requisition for the Initial Advance
and for subsequent advances, not more frequently than monthly thereafter, and
for a final advance (except for advances for tenant improvements, soft costs and
accrued interest after completion) promptly upon Completion. Requisitions shall
conform to the Cost Breakdown and shall be received by Agent at least ten (10)
business days prior to the date of the requested advance. All advances to
Borrower are to be made at ▇▇▇▇▇▇▇▇▇▇'s principal office or at such other place
as Agent may designate and shall be deposited in the Construction Loan Checking
Account.
3.3 ▇▇▇▇▇▇▇▇'s Requisition, the progress of construction and the
conformity of the construction with the Plans is subject to Huntington's
verification and approval, which shall not be unreasonably withheld or delayed.
Huntington shall engage the services of an independent outside architect for
such verification and approval to review plans, specifications and engineering
reports.
3.4 Retained Amounts shall be advanced upon the satisfaction of
the conditions set forth in Section 4.2 hereof, provided that Retained Amounts
with respect to future tenant improvements, if any, shall be separately retained
and advanced on a tenant by tenant basis.
3.5 Huntington may, in its sole discretion, advance all or any
portion of the amounts to be advanced hereunder, without regard to ▇▇▇▇▇▇▇▇'s
satisfaction of the conditions precedent to its entitlement to Loan proceeds,
and no person dealing with Borrower or the General Contractor or any other
person shall have standing to demand any different performance from Huntington.
3.6 Huntington may require that Loan advances be disbursed through
a disbursing agent selected by Huntington and that disbursements be made
directly to General Contractor, subcontractors and materialmen. In such event,
interest shall accrue to Huntington from the time the Loan proceeds are advanced
to the disbursing agent. Further, Huntington may, in lieu of the presentation of
proofs of payment and Payment Receipts with the Requisition for the succeeding
month, require the immediate presentation of proofs of payment, Payment
Receipts, lien waivers and releases against the advance of Loan proceeds.
3.7 Huntington shall not make Loan advances for materials or
furnishings which are stored on the Property, but not yet affixed to or
incorporated into the Project, except in the case of major materials approved by
Huntington and intended to be incorporated into the Project pursuant to the
Plans, and then not until Huntington shall have received: (a) bills of sale and
other documentation evidencing payment in full for such materials, Borrower's
ownership thereof and the release of any right, title or lien in respect thereof
by any vendor; (b) evidence
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that such materials are covered by the insurance policies required by the Loan
Documents and are identified and protected against loss, theft and damage in a
manner acceptable to Huntington; and (c) evidence that advances made by
Huntington for said materials do not, at any one time, exceed in the aggregate
Five Hundred Thousand And 00/100 Dollars ($500,000.00), inclusive of the amount
requested.
4. CONDITIONS PRECEDENT TO OBLIGATION TO MAKE LOAN ADVANCES
4.1 Huntington shall not be obligated to make the Initial Advance
or subsequent advances unless the following conditions precedent shall have been
and remain satisfied:
(a) Huntington shall have received a Requisition for the
Initial Advance or subsequent advance, as the case
may be;
(b) Huntington shall have received an endorsement to the
title insurance policy insuring the lien of the
Mortgage, which endorsement shall (i) modify the
effective date of such title insurance policy to or
immediately prior to the date of the advance, (ii)
show no additional exceptions, except those approved
by ▇▇▇▇▇▇▇▇▇▇'s Counsel and (iii) acknowledge the
aggregate amount of Loan proceeds then advanced;
(c) For the advance immediately after any foundations
have been constructed, Huntington shall have received
and approved a survey of the perimeter of such
foundation, certified to within ten (10) days of the
advance to Huntington and the Title Insurer, and
otherwise conforming to Huntington's Survey
Requirements, a copy of which is attached to the Loan
Commitment;
(d) Existing improvements on the Property, if any, shall
not have been materially injured or damaged by fire
or other casualty, unless Huntington shall have
received insurance proceeds sufficient in the
reasonable judgment of Huntington to effect the
satisfactory restoration of the said improvements and
to permit completion of said improvements prior to
the Completion Date pursuant to terms of disbursement
satisfactory to Huntington;
(e) The representations made in Section 6 hereof shall be
true and correct on and as of the date of the advance
with the same effect as if made on such date; and
(f) There shall exist no Event of Default under the Note
or Mortgage, as therein defined, or any event or
state of facts which after notice or the passage of
time, or both, could give rise to such an Event of
Default.
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(g) Huntington shall have received copies of all Major
Subcontracts for the construction of the Project,
which subcontractors shall have been approved by
Huntington.
4.2 Huntington shall not be obligated to advance Retained Amounts
unless the following conditions precedent shall have been and remain satisfied:
(a) Huntington shall have received and approved evidence
that Completion has been achieved; and
(b) Huntington shall have received and approved an "as
built" survey of the Project and the Property,
certified to within ten (10) days of the advance to
Huntington and the Title Insurer, and otherwise
conforming to Huntington's Survey Requirements, a
copy of which has heretofore been furnished to
Borrower.
Notwithstanding the foregoing provision, Retained Amounts with respect to future
tenant improvements shall be separately retained and advanced on a tenant by
tenant basis.
4.3 Borrower shall cause the satisfaction of each and every of the
foregoing conditions precedent, whether precedent to the obligation to make the
Initial Advance, a subsequent advance or the advance of Retained Amounts.
5. ADJUSTMENTS TO COST BREAKDOWN
5.1 Borrower shall prepare, certify and provide to Huntington a
revised Cost Breakdown on AIA Document G703 with any Change Order provided to
Huntington as required under Section 2.8 hereof in addition to separate Cost
Breakdown.
5.2 If at any time Huntington gives notice to Borrower that, in
▇▇▇▇▇▇▇▇▇▇'s sole discretion, the undisbursed balance of the Loan Budget Amount
for any line item or category of cost shown on the Cost Breakdown is
insufficient to achieve Completion and to pay the Hard Costs and Soft Costs, as
the case may be, remaining unpaid, then Huntington may reallocate to such Loan
Budget Amount any excess in any other Loan Budget Amount balance that
Huntington, in its sole discretion, deems to be excessive. In such event,
Borrower shall prepare, certify and provide to Huntington a revised Cost
Breakdown on AIA Document G703.
5.3 Borrower may elect to reallocate any contingency line item(s)
to increases in Hard Costs, so long as the percentage of the original
contingency line item which has been reallocated to date does not exceed the
percentage of completion of construction of the Project. Final
9
documented cost savings in one line item may be reallocated to another line item
with the approval of Huntington in its reasonable discretion.
5.4 If at any time Huntington gives notice to Borrower that, in
Huntington's sole discretion, the undisbursed balance of the Loan, including
Retained Amounts, is insufficient to achieve Completion and to pay the Hard
Costs and Soft Costs remaining unpaid, Borrower, at its option, shall either:
(a) deposit with Huntington an amount equal to such deficiency, which Huntington
shall from time to time apply, or allow Borrower to apply, to such Hard Costs or
Soft Costs; or (b) make a payment against such Hard Costs or Soft Costs in the
amount of such deficiency so that the undisbursed balance of the Loan, including
Retained Amounts, shall be sufficient to achieve Completion and to pay the Hard
Costs and Soft Costs remaining unpaid, and shall furnish Huntington with such
evidence thereof as Huntington may require. In such event, Borrower shall
prepare, certify and provide to Huntington a revised Cost Breakdown on AIA
Document G703. Huntington shall have a lien on and security interest in any sums
deposited pursuant to clause (a) above. Borrower shall have no right to withdraw
any such sums, except for the payment of Hard Costs or Soft Costs approved by
Huntington. Any such sums not so used shall be released to Borrower upon
Completion. If prior to Completion, an Event of Default shall occur under the
Note or Mortgage, as defined therein, or any event or state of facts which after
notice or the passage of time, or both, would constitute such an Event of
Default, Huntington shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code, as enacted in the State of Ohio, and may, at
its option, apply such sums either to the costs of completing the Project or to
the immediate reduction of outstanding principal or interest or both under the
Note.
6. BORROWER REPRESENTATIONS
6.1 Borrower represents that the Plans (to the extent the same
have been completed) are satisfactory to Borrower, have been reviewed and
approved by Guarantors, the General Contractor, Project Architect; by all
Governmental Authorities, to the extent required by applicable law; by each
beneficiary under any effective restrictive covenant; and by each tenant under
any lease covenant requiring plan approval. Further, that all construction, if
any, already performed on the Project has been performed in accordance with the
Plans approved by the persons named above and with any restrictive covenants
applicable thereto; there are no structural defects in the Project or violations
of any requirement of any Governmental Authorities with respect thereto; that
the planned use of the Project complies with applicable zoning ordinances,
regulations and restrictive covenants affecting the Property as well as all
environmental, ecological, landmark and other applicable laws and regulations;
and that all requirements for such use have been satisfied.
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7. DEFAULT
7.1 Upon the occurrence of any Event of Default under the Note or
Mortgage, as defined therein, Borrower does hereby irrevocably authorize
Huntington to complete the acquisition, development, construction and equipping
of the Project and Property, with such changes as Huntington may, in its sole
discretion, deem appropriate, all at the risk, cost and expense of Borrower, but
Huntington is not obligated to do so. In the event that Huntington elects to
proceed under such authorization, Huntington may assume or reject any contract
entered into by Borrower in connection with the acquisition, development,
construction or equipping of the Project or the Property, may enter into
additional or different contracts for services, labor and materials required in
the judgment of Huntington to complete such acquisition, development,
construction or equipping, and may make, compromise and settle all claims in
connection with such acquisition, development, construction or equipping.
7.2 All sums expended by Huntington in completing the acquisition,
development, construction and equipping of the Project and the Property shall be
deemed advances made by Huntington to Borrower secured by the Mortgage and, to
the extent such advances exceed the Loan Amount, such advances shall be deemed
to be for the protection of the Mortgaged Property and Borrower shall repay such
sums upon demand together with interest from the date of each advance at the
Default Rate of Interest, as defined in the Note.
7.3 Huntington may at any time abandon acquisition, development,
construction and equipping of the Project and Property, after having commenced
it, and may recommence such acquisition, development, construction and equipping
of the Project and Property, upon Huntington's election to do so.
7.4 For the purposes of completing the acquisition, development,
construction and equipping of the Project and Property after an Event of Default
under the Note or Mortgage, as defined therein, Borrower does hereby irrevocably
appoint Huntington its attorney-in-fact with full power to take such action as
may be desirable in the judgment of Huntington to complete such acquisition,
development, construction and equipping, all in the name of Borrower.
7.5 Notwithstanding the foregoing, upon the occurrence of any
Event of Default under the Note or Mortgage, as defined therein, Borrower does
hereby irrevocably authorize Huntington to advance any undisbursed Loan proceeds
directly to the General Contractor, subcontractors, materialmen and other
persons to pay for Completion of the Project, but Huntington is under no
obligation to do so. No further direction or authorization from Borrower shall
be necessary to warrant such direct advances and all such advances shall satisfy
pro tanto the obligations of Huntington hereunder and shall be secured by the
Loan Documents as fully as if made to Borrower, regardless of the disposition
thereof by the General Contractor or other person.
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8. OTHER
8.1 All documentation required or deemed by Huntington to be
necessary in connection with this Loan Agreement shall be acceptable to and
subject to the approval of Huntington as to form and content.
8.2 Borrower acknowledges that ▇▇▇▇▇▇▇▇ has selected all
architects, engineers, contractors, subcontractors, materialmen, and others
furnishing services or materials for the Project and that Huntington shall have
no responsibility whatsoever for them or for any inspection reports or for the
quality of their materials or workmanship. It is understood that ▇▇▇▇▇▇▇▇▇▇'s
sole function is that of lender and that the only consideration passing from
Huntington to Borrower are the Loan proceeds in accordance with and subject to
the terms of this Loan Agreement. Neither Borrower, nor any other person, shall
have any right to rely on any approvals or procedures required by Huntington
herein, such approvals and procedures being solely for the benefit and
protection of Huntington.
8.3 Any advance by Huntington of Loan proceeds hereunder made
prior to or without the fulfillment by Borrower of all of the conditions
precedent thereto, whether or not known to Huntington, shall not constitute a
waiver by Huntington of the requirement that all conditions precedent, including
the non-performed conditions precedent, shall be required with respect to all
future advances.
8.4 No provision of the Loan Documents may be changed, waived,
discharged or terminated orally, by telephone or by any other means, except an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
8.5 All conditions precedent to ▇▇▇▇▇▇▇▇▇▇'s obligation to make
advances hereunder are imposed solely and exclusively for the benefit of
Huntington and may be freely waived or modified in whole or in part by
Huntington at any time, if in its sole discretion Huntington deems it advisable
to do so. Upon satisfaction or waiver of all such conditions precedent, no
person other than Borrower shall have standing to require Huntington to make any
Loan advances or to be a beneficiary of this Loan Agreement or any advances to
be made hereunder.
8.6 (a) All notices, demands, requests and other
communications (collectively, hereinafter "Notices") to Borrower shall be in
writing and shall be deemed to have been sufficiently given for all purposes
when sent by certified mail, return receipt requested, by telecopy or by
personal delivery to Borrower at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President. Any Notice sent by certified mail,
return receipt requested, by personal delivery or by telecopy shall be deemed to
have been given two (2) business days following the date it is sent in
accordance with the foregoing provisions. Any Notice sent by personal delivery
shall be deemed to have been given the business day actually received.
(b) All Notices to Lender shall be in writing and shall
be deemed to have been sufficiently given for all purposes when sent by
certified mail, return receipt requested, telecopy
12
or personal delivery to Lender at The Huntington National Bank, Commercial Real
Estate Group, 8th Floor, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President) or to such other address or addresses of which
▇▇▇▇▇▇ shall have notified Guarantor in writing. Any Notice sent by certified
mail, return receipt requested or by telecopy, shall be deemed to have been
given two (2) business days following the date it is sent. Any Notice sent by
personal delivery shall be deemed to have been given the business day actually
received.
8.7 Except as herein provided, this Loan Agreement shall be
binding upon and inure to the benefit of ▇▇▇▇▇▇▇▇ and Huntington and their
respective heirs, personal representatives, successors and assigns.
Notwithstanding the foregoing, Borrower may not assign, transfer or set over to
another, in whole or in part, all or any part of its benefits, rights, duties
and obligations hereunder, including, without limitation, performance of and
compliance with conditions hereof and the right to receive the proceeds of
current or future advances.
8.8 HUNTINGTON AND ▇▇▇▇▇▇▇▇ HEREBY MUTUALLY, VOLUNTARILY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF THE OTHER ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE LOAN DOCUMENTS, THE TRANSACTIONS RELATED THERETO OR THE
RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT TO
HUNTINGTON AND BORROWER TO ENTER INTO THIS TRANSACTION. IT SHALL NOT IN ANY WAY
AFFECT, WAIVE, LIMIT, AMEND OR MODIFY ▇▇▇▇▇▇▇▇▇▇'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED IN THE LOAN DOCUMENTS.
13
IN WITNESS WHEREOF, the parties have executed this Loan Agreement as of
the day and year first above written, the execution hereof by Borrower
constituting: (a) a certification that the representations made in Section 6
hereof are true and correct as of the date hereof; and (b) the undertaking of
Borrower that each Requisition shall constitute personal affirmation that at the
time thereof said representations are true and correct.
THE HUNTINGTON NATIONAL BANK,
By: ________________________________
Borrower:
EM Columbus, LLC,
a Delaware limited liability company
By: Glimcher Properties Limited Partnership,
a Delaware limited partnership, its member
By: Glimcher Properties Corporation,
a Delaware corporation,
its General Partner
By: ________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice
President
The Huntington National Bank
Commercial Real Estate Group Base Form
January 3, 1994 Revision
Columbus/
14