EXHIBIT 10.171
MORTGAGE NOTE
(VARIABLE RATE)
$15,190,000.00 October 30, 2002
FOR VALUE RECEIVED, the undersigned, GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, with offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Maker"), promises to
pay to the order of BANK ONE, NA, a national banking association (hereinafter
referred to as "Payee," which term shall include any holder hereof), at its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
or at such other place as Payee may designate, the principal sum of Fifteen
Million One Hundred Ninety Thousand Dollars ($15,190,000.00) or so much thereof
as may be advanced by Payee to Maker from time to time, together with all
charges herein provided and interest on the unrepaid advances of said principal
sum from date of disbursement by ▇▇▇▇▇, payable in cash at the rates and in the
manner hereinafter set forth.
ARTICLE I
DEFINITIONS
1.1 The following terms wherever used in this Note shall have the
following meanings:
"30-Day LIBOR Rate" shall mean a fixed rate of interest equal to the
LIBOR Rate for a thirty (30) day Interest Period.
"60-Day LIBOR Rate" shall mean a fixed rate of interest equal to the
LIBOR Rate for a sixty (60) day Interest Period.
"90-Day LIBOR Rate" shall mean a fixed rate of interest equal to the
LIBOR Rate for a ninety (90) day Interest Period.
"Audubon Village Mortgage" shall mean a certain Mortgage, Assignment of
Rents and Security Agreement of even date herewith on the Audubon Village
Property given by Maker in favor of Payee to secure payment of this Note.
"Audubon Village Property" shall mean that certain tract of land
consisting of 16.807 acres, more or less, and all improvements, now and
hereafter situated thereon in the City of ▇▇▇▇▇▇▇▇▇, County of ▇▇▇▇▇▇▇▇▇ and
Commonwealth of Kentucky, all of which shall be subject to the Audubon Village
Mortgage.
"Calculation Date" shall mean the first day of each calendar quarter
commencing January 1, 2003, and each April 1, July 1, October 1, and January 1
thereafter.
"Chillicothe Plaza Mortgage" shall mean a certain Open-End Mortgage,
Assignment of Rents and Security Agreement of even date herewith on the
Chillicothe Plaza Property given by Maker in favor of Payee to secure payment of
this Note.
"Chillicothe Plaza Property" shall mean that certain tract of land
consisting of 16.315 acres, more or less, and all improvements, now and
hereafter situated thereon in the City of Chillicothe, County of ▇▇▇▇ and State
of Ohio, all of which shall be subject to the Chillicothe Plaza Mortgage.
"Default Rate of Interest" shall mean the rate equal to three percent
(3.0%) per annum plus the applicable rate of interest otherwise being charged
hereunder.
"DSCR" shall mean the debt service coverage ratio as determined by
▇▇▇▇▇ as of each Calculation Date, calculating the ratio of (x) the sum of the
Net Operating Income from the Properties for the immediately preceding twelve
(12) months to (y) the sum of the principal and interest payments that would be
due and payable for the immediately preceding twelve (12) months based upon an
assumed amortization of the outstanding principal amount hereunder over a
twenty-five (25) year period at an assumed interest rate of the then-current
10-year U.S. Treasuries plus two and one-half percent (2.50%) per annum, but in
no event at an assumed interest rate less than seven and one-half percent (7.5%)
per annum.
"Effective LIBOR Rate" shall mean the Elected LIBOR Rate plus one and
95/100 percent (1.95%) per annum, subject to adjustment pursuant to the
provisions of Sections 2.4 and 2.5.
"Effective Rate" shall mean the Prime Rate, Effective LIBOR Rate, or
Default Rate of Interest, whichever shall be applicable.
"Elected LIBOR Rate" shall mean the 30-Day LIBOR Rate, the 60-Day LIBOR
Rate or the 90-Day LIBOR Rate, as applicable.
"Extension Period" shall mean the period during which the Maturity Date
has been extended pursuant Section 2.6 of this Note.
"Gross Revenues" shall mean for each month all rents, revenues and
other payments received by or for the benefit of Maker in cash or current funds
or other consideration from any source whatsoever in connection with its
ownership, operation and management of the Properties, including all payments
received by Maker from all tenants or other occupants of the Properties. Gross
Revenues shall be determined on an accrual basis and in accordance with general
accepted accounting principles.
"Interest Period" means each consecutive one, two or three month
period, as applicable (the first of which shall commence on the date of this
Note) effective as of the first day of each Interest Period and ending on the
last day of each Interest Period, but in no event exceeding the Maturity Date of
this Note, and provided that if any Interest Period is scheduled to end on a
date
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for which there is no numerical equivalent to the date on which the Interest
Period commenced, then it shall end instead on the last day of such calendar
month.
"LIBOR Index" shall mean the offered rate for the period equal to or
next greater than the Interest Period for U.S. Dollar deposits of not less than
$1,000,000.00 as of 11:00 A.M. City of London, England time two London Business
Days prior to the first day of the Interest Period as shown on the display
designated as "British Bankers Association Interest Settlement Rates" on Reuters
Screen FRBD, or such other screen as may replace such screen on Reuters for the
purpose of displaying such rate. In the event that such rate is not available on
Reuters, then such offered rate shall be otherwise independently determined by
Payee from an alternate, substantially similar independent source available to
Payee or shall be calculated by Payee by a substantially similar methodology as
that theretofore used to determine such offered rate.
"LIBOR Rate" shall mean, initially, the LIBOR Index plus one and 95/100
percent (1.95%) per annum, subject to adjustment pursuant to the provisions of
Section 2.5.
"LIBOR Rate Conversion Notice" shall mean written notice from Maker
delivered to Lender not less than two (2) London Business Days prior to the end
of any Interest Period specifying that Maker elects either the 60-Day LIBOR Rate
or the 90-Day LIBOR Rate as the Elected LIBOR Rate for the next Interest Period.
"Liberty Plaza Deed of Trust" shall mean a certain Deed of Trust,
Assignment of Rents and Security Agreement of even date herewith on the Liberty
Plaza Property given by Maker in favor of Payee to secure payment of this Note.
"Liberty Plaza Property" shall mean that certain tract of land
consisting of 8.10 acres, more or less, and all improvements, now and hereafter
situated thereon in the City of Morristown, County of ▇▇▇▇▇▇▇ and State of
Tennessee, all of which shall be subject to the Liberty Plaza Deed of Trust.
"Loan Agreement" shall mean that certain Loan Agreement of even date
herewith, pursuant to which the principal amount of this Note is to be
disbursed, by which ▇▇▇▇▇ agrees to loan funds to Maker pursuant to the terms
and conditions stated therein.
"Loan Documents" shall collectively mean this Note, the Mortgages, Loan
Agreement, and any other instrument, affidavit, certificate, or document
heretofore, now or hereafter given by Maker in connection with the closing of
the loan evidenced by this Note.
"London Business Day" means any day other than a Saturday, Sunday or a
day on which banking institutions are generally authorized or obligated by law
or executive order to close in the City of London, England.
"Maturity Date" shall mean the earlier of November 1, 2004 (or November
1, 2005 if extended pursuant to Section 2.6 of this Note), or the date of
acceleration of the Indebtedness by ▇▇▇▇▇.
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"Mortgages" shall mean, collectively, the Audubon Village Mortgage, the
Chillicothe Plaza Mortgage, the Liberty Plaza Deed of Trust, and the
Prestonsburg Village Center Mortgage.
"Net Operating Income" shall mean, for each month calculated by Payee
based upon ▇▇▇▇▇'s review of Maker's monthly financial statements provided to
Payee, together with such other information as Payee may reasonably request, the
difference between the Gross Revenues for said month and all the Operating
Expenses for said month.
"Operating Expenses" shall mean the reasonably necessary and customary
costs and expenses incurred and actually paid by Maker in connection with its
ownership, operation and management of the Properties, determined on an accrual
basis and in accordance with generally accepted accounting principles;
specifically excluding from Operating Expenses, however (a) all capital
expenditures incurred by Maker, (b) principal, interest and all other payments
made under the Loan Documents and costs and expenses incurred by Maker in
connection with the execution of the Loan Documents, and (c) depreciation and
all other non-cash expenses of the Properties.
"Prestonsburg Village Center Mortgage" shall mean a certain Mortgage,
Assignment of Rents and Security Agreement of even date herewith on the
Prestonsburg Village Center Property given by Maker in favor of Payee to secure
payment of this Note.
"Prestonsburg Village Center Property" shall mean that certain tract of
land consisting of 28.417 acres, more or less, and all improvements, now and
hereafter situated thereon in the City of Prestonsburg, County of ▇▇▇▇▇ and
Commonwealth of Kentucky, all of which shall be subject to the Prestonsburg
Village Center Mortgage.
"Prime Rate" shall mean the interest rate established and announced
from time to time by Bank One, NA, as its prime rate, based upon its
consideration of economic, money market, business and competitive factors, and
it is not necessarily the most favorable rate of Bank One, NA. Each change in
said Prime Rate shall, without notice, automatically and immediately change the
rate of interest due hereon.
"Properties" shall mean, collectively, the Audubon Village Property,
the Chillicothe Plaza Property, the Liberty Plaza Property, and the Prestonsburg
Village Center Property.
ARTICLE II
PAYMENTS OF PRINCIPAL AND INTEREST
2.1 Subject to the provisions of this Article II, interest on the
unrepaid advances of the principal sum from date of disbursement by ▇▇▇▇▇ at the
Effective LIBOR Rate shall be due and payable monthly on the first day of each
month commencing November 1, 2002, and continuing on the first day of each month
thereafter to and including the Maturity Date.
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2.2 Notwithstanding the foregoing, if any advances of the
principal sum are made by Payee to Maker that are not made at the beginning of
the Interest Period for the Effective LIBOR Rate, such advances shall bear
interest at the Prime Rate until the end of the Interest Period in which such
advances were made, and then such advances shall be added to the outstanding
principal sum bearing interest at the Effective LIBOR Rate for the next Interest
Period.
2.3 Interest on this Note is computed by applying the ratio of the
annual interest rate over a year of three hundred sixty (360) days, multiplied
by the outstanding principal balance, multiplied by the actual number of days
the principal balance is outstanding.
2.4 The Elected LIBOR Rate shall at all times hereunder be the
30-Day LIBOR Rate unless Maker shall effectively elect a 60-Day LIBOR Rate or
90-Day LIBOR Rate by timely delivery to Payee of a LIBOR Rate Conversion Notice.
2.5 Effective as of any Calculation Date, in the event that Payee
determines: (a) that the DSCR is equal to or less than 1.65, but greater than
1.50, then the Effective LIBOR Rate charged hereunder shall adjust to be equal
to the Elected LIBOR Rate plus two and 10/100 percent (2.10%) per annum; (b)
that the DSCR is equal to or less than 1.50, then the Effective LIBOR Rate
charged hereunder shall adjust to be equal to the Elected LIBOR Rate plus two
and 25/100 percent (2.25%) per annum; and (c) that the DSCR is greater than
1.65, then the Effective LIBOR Rate charged hereunder shall adjust to be equal
to the Elected LIBOR Rate plus one and 95/100 percent (1.95%) per annum.
2.6 All principal and all accrued and unpaid interest shall be due
and payable in full on the Maturity Date, unless a principal payment is
otherwise required prior to the Maturity Date pursuant to the provisions of
Section 5.4 of the Loan Agreement, in which case such principal payment shall be
accordingly made; provided further, however, that Maker may elect, subject to
Payee's approval which may be withheld in Payee's sole and absolute discretion,
to extend the Maturity Date of this Note to November 1, 2005, by giving Payee
written notice of such request after July 1, 2004, but prior to October 1, 2004,
and by paying to Payee, prior to the then current Maturity Date, a
non-refundable loan extension fee in the amount of one-fourth of one percent
(0.25%) of the then outstanding principal balance of this Note; provided further
that, at the time of such election, there shall not have occurred any uncured
Event of Default, as hereinafter defined, or any event which after notice or the
passage of time, or both, could give rise to an Event of Default, or any
materially adverse change in the financial condition of Maker.
2.7 Should the Maturity Date be extended pursuant to Section 2.6
of this Note, during the Extension Period, Maker shall make monthly principal
payments to Payee in an amount equal to one-three hundredths (1/300) of the
outstanding principal due under this Note as of, and commencing on, the first
day of the Extension Period, in addition to the interest payments due under
Section 2.1.
2.8 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
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charges and other charges, provided, however, upon an Event of Default, Payee
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 ▇▇▇▇▇
may from time to time determine in its sole discretion.
2.9 All payments of principal and interest due under this Note
shall be made by Maker without any rights of offset or other reduction of the
amount of such payments.
ARTICLE III
LATE CHARGES
3.1 If any of said payments of principal or interest or any
combination thereof be not paid in full within ten (10) days after such payment
is due, then in addition to the amount of said payment there shall be due, and
Maker promises to pay, a late charge in respect of each said payment in the
amount of five percent (5.0%) of the regularly scheduled payment or $25.00,
whichever is greater, up to the maximum amount of One Thousand Five Hundred
Dollars ($1,500.00) per late charge, which Maker agrees is a fair and reasonable
charge for costs incurred by Payee in processing such late payment and shall not
be deemed a penalty. The late charge may be assessed without notice, shall be
immediately due and payable and shall be in addition to all other rights and
remedies available to Payee.
ARTICLE IV
PREPAYMENT
4.1 The privilege is hereby reserved by Maker to prepay, upon five
(5) business days' prior written notice to Payee, the outstanding principal
balance of this Note in whole or in part at any time and from time to time
without premium or penalty, provided that a payment of all accrued and unpaid
interest to the date of such prepayment is included with such prepayment.
Notwithstanding the foregoing, if Maker makes any such prepayment other than on
the last day of an Interest Period, Maker (a) with such prepayment, shall pay
all accrued and unpaid interest to the date of such prepayment, (b) with such
prepayment, shall pay an administrative fee of $100.00, and (c) on demand, shall
reimburse Payee and hold Payee harmless from all losses and expenses incurred by
Payee as a result of such prepayment, including, without limitation, any losses
and expenses arising from the liquidation or reemployment of deposits acquired
to fund or maintain the principal amount prepaid. Such reimbursement shall be
calculated as though Payee funded the principal amount prepaid through the
purchase of U.S. Dollar deposits in the London, England interbank market having
a maturity corresponding to such Interest Period and bearing an interest rate
equal to the LIBOR Rate for such Interest Period, whether in fact that is the
case or not. ▇▇▇▇▇'s determination of the amount of such reimbursement shall be
conclusive in the absence of manifest error. In the event that the prepayment is
made as a result of Acceleration as defined in Section 5.2 below, then a
prepayment premium shall be payable equal to five percent (5%) of the amount
then due.
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ARTICLE V
DEFAULT
5.1 The term "Event of Default" shall mean the occurrence of any
one or more of the following:
(a) A failure by Maker to make any payment of principal or
interest or any combination thereof on this Note within fifteen (15) days after
payment is due;
(b) The material incorrectness as of the date hereof of any
representation or warranty made by Maker to Payee in any of the Loan Documents,
any financial statement or any other document delivered to Payee in connection
with the loan evidenced by this Note;
(c) The abandonment of any of the Properties, or any portion
thereof, without the written consent of ▇▇▇▇▇;
(d) Intentionally Omitted;
(e) The sale (by land contract or otherwise), assignment,
mortgaging, leasing, encumbering, refinancing or conveyance of any of the
Properties, or any portion thereof or legal or equitable interest therein,
except as otherwise expressly permitted in the Loan Documents;
(f) That a mechanic's or materialmen's lien is filed upon any of
the Properties, which lien is not discharged or bonded off or fully reserved
for, within thirty (30) days after such filing;
(g) Thirty (30) days after ▇▇▇▇▇'s notice to Maker of Maker's
failure to keep in full force and effect or obtain and thereafter keep in full
force and effect all certificates, licenses, franchise or management agreements,
permits and other agreements necessary in Payee's reasonable discretion, for the
lawful occupancy, use and operation of the any of the Properties for its
intended purposes, including, but not limited to, a retail center.
(h) A failure by Maker to keep in effect the policies of insurance
required by any of the Mortgages;
(i) The change in the identity of any of the general partners of
Maker;
(j) The occurrence of any event of default, acceleration, or
commencement of foreclosure under any other deed of trust, lien or encumbrance
on any of the Properties, prior or subordinate to any of the Mortgages;
(k) The entry of any judgment or lien in an amount in excess of
One Hundred Thousand Dollars ($100,000.00) against Maker by or in favor of any
third person which judgment or lien is not satisfied, discharged, reserved for,
or bonded off within thirty (30) days from the date of entry of said judgment or
lien;
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(l) The appointment of a receiver, trustee, custodian,
conservator, or liquidator, or other similar official for Maker or any of the
Properties or any other property of Maker;
(m) Maker shall admit in writing inability to pay debts, or shall
make a general assignment for the benefit of creditors;
(n) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of Maker or any debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors;
(o) Any case, proceeding or other action commenced against Maker
seeking to have an order for relief entered against Maker, as debtor, or seeking
a reorganization, arrangement, adjustment, liquidation, dissolution or
composition of Maker or any debts, under any law relating to bankruptcy,
insolvency, reorganization or debtor relief laws, or seeking an appointment of a
receiver, trustee, custodian or other similar official for Maker or for all or
any of the Properties, or any other property of Maker, and such case, proceeding
or other action (i) results in the entry of an order for relief against Maker or
(ii) remains undismissed for a period of sixty (60) days;
(p) Maker shall have concealed, removed, or permitted to be
concealed or removed, any part of its property, with intent to hinder, delay or
defraud its creditors or any of them, or made or suffered a transfer of any of
its property which may be fraudulent under any bankruptcy, fraudulent conveyance
or similar law; or shall have suffered or permitted, while insolvent, any
creditor to obtain a lien upon any of its property through legal proceedings
which is not vacated within sixty (60) days from the date thereof;
(q) An occurrence of any event or condition which results in a
default in the payment of any other indebtedness or the performance of any other
obligation of Maker to Payee;
(r) The liquidation, termination or dissolution of Maker; or
(s) A failure by Maker to comply with any of the other terms or
conditions specified herein or in any other of the Loan Documents or Maker's
failure to perform any of Maker's covenants under the Loan Documents and such
failure remains uncured for thirty (30) days after ▇▇▇▇▇ provides written notice
of such failure in accordance with the terms of any of the Mortgages.
5.2 Upon the occurrence of any Event of Default, the entire unpaid
balance of principal and interest evidenced by this Note, together with all sums
of money advanced by Payee in accordance with the terms of any one or more of
the Loan Documents, and all sums due and owing for any late charge or charges
hereunder (the foregoing being hereinafter collectively referred to as the
"Indebtedness") shall thereupon bear interest at the Default Rate of Interest,
and at the option of Payee, all the Indebtedness together with interest thereon
at the Default Rate of Interest shall immediately become due and payable
("Acceleration") without demand made therefor and without notice to any person,
notice of the exercise of said option being hereby expressly waived, and ▇▇▇▇▇
shall have all remedies of a secured party under law and equity to enforce the
payment of all of the Indebtedness, time being of the essence of this Note. The
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Default Rate of Interest shall be charged to Maker upon the occurrence of any
Event of Default notwithstanding any invoices or billing statements sent by
Payee to Maker indicating an interest rate to the contrary. In addition, any
waiver of ▇▇▇▇▇'s right to charge the Default Rate of Interest or to accelerate
the Indebtedness must be made in writing and cannot be waived by oral
representation or the submission to Maker of monthly billing statements.
5.3 Notwithstanding the foregoing, upon the occurrence of any
Event of Default and during the continuation thereof, and after maturity,
including maturity upon acceleration and failure to pay upon final maturity,
Payee, at its option, may also, if permitted under applicable law, do one or
both of the following: (a) increase the applicable interest rate under this Note
to the Default Rate of Interest, and (b) add any unpaid accrued interest to
principal and such sum will bear interest therefrom until paid at the rate
provided in this Note (including the Default Rate of Interest). The interest
rate under this Note will not exceed the maximum rate permitted by applicable
law.
ARTICLE VI
MISCELLANEOUS
6.1 The failure of Payee to exercise any option herein provided
upon the occurrence of any Event of Default shall not constitute a waiver of the
right to exercise such option in the event of any continuing or subsequent Event
of Default. Maker hereby agrees that the maturity of all or any part of the loan
may be postponed or extended and that any covenants and conditions contained in
this Note or in any of the other Loan Documents may be waived or modified
without prejudice to the liability of Maker on said Note or Loan Documents.
6.2 When this Note becomes due, by Acceleration or otherwise,
Payee may, at its option, demand, sue for, collect, or make any compromise or
settlement it deems desirable with reference to property held as security
herefor. Payee shall not be bound to take any steps necessary to preserve any
rights in the property held as security herefor against prior parties, which
Maker hereby assumes to do. Maker expressly authorizes Payee to deal in any
manner with any collateral and the security of every kind and character given to
secure the payment of Maker's obligations under this Note, and without limiting
the generality of the foregoing, Maker expressly authorizes Payee to waive any
rights which Payee may have relative to requiring additional collateral or to
surrendering or to releasing collateral held by ▇▇▇▇▇, or to substituting any
collateral held by Payee for other collateral of like kind, or of any kind, nor
shall the obligations of Maker under this Note, nor the rights of Payee under
the Loan Documents be diminished or in any manner affected by the failure of
Payee to exercise its rights with reference to such collateral or in any manner
failing to proceed against the collateral or security pledged or conveyed as
security for the obligations of Maker under this Note. The provisions hereof
shall apply and be controlling as to all property which may at any time be
security herefor.
6.3 Maker hereby authorizes ▇▇▇▇▇, in its sole discretion, upon
the occurrence of an Event of Default, to apply all or any portion of the
balance of any account maintained by Maker with Payee to the payment or
reduction, in whole or in part, of any and all principal and interest then due,
whether by acceleration or otherwise, to Payee under this Note. Upon the
occurrence
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of any Event of Default, Payee shall have the right to setoff against all
obligations of Maker to Payee hereunder, whether matured or unmatured, all
amounts owing to Maker by ▇▇▇▇▇, whether or not then due and payable, and all
other funds or property of Maker on deposit with or otherwise held in the
custody of Payee or any of its affiliates, all without notice to or demand on
Maker, such notice and demand being hereby waived.
6.4 Presentment for payment, notice of dishonor, protest, notice
of protest and diligence in bringing suit against any party hereto are hereby
waived by Maker.
6.5 Maker hereby waives all relief from any and all appraisement
or exemption laws now in force or hereafter enacted.
6.6 The obligations evidenced or created by this Note, as well as
all waivers of rights by Maker contained herein shall effectively bind and be
the obligations and waivers of any and all others who may at any time become
liable for the payment of all or any part of this Note, including, without
limitation, all indorsers and guarantors.
6.7 Nothing herein contained, nor in any of the other Loan
Documents or other documents relating hereto, shall be construed or so operate
as to require Maker, or any person liable for the payment of the loan made
pursuant to this Note, to pay interest in an amount or at a rate greater than
the highest rate permissible under applicable law. Should any interest or other
charges paid by Maker, or any parties liable for the payment of the loan made
pursuant to this Note, result in the computation or earning of interest in
excess of the highest rate permissible under applicable law, then any and all
such excess shall be and the same is hereby waived by ▇▇▇▇▇, and all such excess
shall be automatically credited against and in reduction of the principal
balance, and any portion of said excess which exceeds the principal balance
shall be paid by Payee to Maker and any parties liable for the payment of the
loan made pursuant to this Note, it being the intent of the parties hereto that
under no circumstances shall Maker or any parties liable for the payment of the
loan hereunder, be required to pay interest in excess of the highest rate
permissible under applicable law. All interest paid or agreed to be paid to
Payee shall, to the extent permitted under applicable law, be amortized,
prorated, allocated and spread throughout the full period until payment in full
of this Note, including the period of any renewal or extensions thereof, so that
interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law.
Notwithstanding anything to the contrary herein contained, in the event
that the Effective Rate should ever exceed the highest rate permissible under
applicable law, thereby causing the interest accruing on the indebtedness
evidenced by this Note to be limited to such highest rate permissible under
applicable law, then any subsequent reduction in the Effective Rate shall not
reduce the rate of interest charged hereunder below the highest rate permissible
under applicable law until the total amount of interest accrued on the
indebtedness evidenced by this Note equals the amount of interest which would
have accrued on such indebtedness if the Effective Rate had been in effect at
all times in the period during which the rate charged thereon was limited to the
highest rate permissible under applicable law.
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6.8 Maker acknowledges and agrees that all property pledged or
assigned by Maker to Payee as security for this Note has been pledged or
assigned as security for the entirety of all indebtedness evidenced by this
Note.
6.9 If any provision (or any part of any provision) contained in
this Note shall for any reason be held or deemed to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision (or remaining part of the affected
provision) of this Note, and this Note shall be construed as if such invalid,
illegal or unenforceable provision (or part thereof) had never been contained
herein and the remaining provisions of this Note shall remain in full force and
effect.
6.10 Maker hereby authorizes any attorney-at-law to appear in any
court of record in the State of Ohio or in any other state or territory of the
United States at any time after this Note becomes due, whether by acceleration
or otherwise, to waive the issuing and service of process, and to confess
judgment against Maker in favor of Payee for the amount due together with
interest, expenses, the costs of suit and reasonable counsel fees, and thereupon
to release and waive all errors, rights of appeal and stays of execution. Such
authority shall not be exhausted by one exercise, but judgment may be confessed
from time to time as any sums and/or costs, expenses or reasonable counsel fees
shall be due, by filing an original or a photostatic copy of this Note. Maker
waives any right to move any court for an order having any attorney or firm
representing Payee removed or disqualified as counsel for ▇▇▇▇▇ as a result of
such attorney or firm confessing judgment against Maker in accordance with this
Section 6.10. Maker hereby expressly waives any conflicts of interest that may
now or hereafter exist as a result of any attorney representing Payee confessing
judgment against Maker and expressly consents to any attorney representing Payee
or to any other attorney to confess judgment against Maker in accordance with
this Section 6.10. Maker hereby further consents and agrees that ▇▇▇▇▇ may pay
any attorney confessing judgment against Maker in accordance with this Section
6.10, a reasonable fee for confessing judgment and that any fees so paid may be
included in the amount of such judgment.
6.11 Maker hereby agrees to pay to Payee all costs of preparing,
collecting and securing, and of attempting to collect and to secure this Note,
and all costs of foreclosing any of the Mortgages, including, without
limitation, reasonable attorneys' fees, appraisers' fees, court costs, notice
charges and title insurance charges, whether such attempt be made by suit, in
bankruptcy, or otherwise; and said costs and any other sums due Payee by virtue
of this Note or the any of the Mortgages may be included in any judgment or
decree rendered.
6.12 Maker agrees that Payee may provide any information Payee may
have about Maker or about any matter relating to this Note to BANK ONE
CORPORATION, or any of its subsidiaries or affiliates or their successors, or to
any one or more purchasers or potential purchasers of this Note. Maker agrees
that Payee may at any time sell, assign or transfer one or more interests or
participations in all or any part of its rights or obligations in this Note to
one or more purchasers whether or not related to Payee.
6.13 JURY WAIVER. THE UNDERSIGNED AND PAYEE (BY ITS ACCEPTANCE
HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY
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AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE
UNDERSIGNED AND PAYEE ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, ANY
OTHER LOAN DOCUMENT, ANY OTHER RELATED DOCUMENT, OR ANY RELATIONSHIP BETWEEN
PAYEE AND THE UNDERSIGNED. THIS PROVISION IS A MATERIAL INDUCEMENT TO PAYEE TO
PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS.
This Note is delivered in the State of Ohio and is to be governed by
and construed in accordance with the laws of the State of Ohio. In addition to
any other appropriate jurisdiction determined by ▇▇▇▇▇, Maker hereby consents
to, and by execution of this Note, submits to the personal jurisdiction of the
Court of Common Pleas of Franklin County, Ohio and the United States District
Court sitting in Columbus, Ohio for the purposes of any judicial proceedings
which are instituted for the enforcement of this Note. Maker agrees that venue
is proper in said jurisdiction.
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
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GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive
Vice President
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 30th day of
October, 2002, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Executive Vice President of Glimcher
Properties Corporation, the General Partner of Glimcher Properties Limited
Partnership, a Delaware limited partnership, on behalf of the corporation and
limited partnership.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
Commission Expires: 07/02/05
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