NOTE
New York, New York
$135,000,000 May 31, 2002
NOTE, dated as of May 31, 2002 (this "NOTE"), by N.J. METROMALL URBAN
RENEWAL, INC., a New Jersey corporation ("FEE OWNER"), and GLIMCHER JERSEY
GARDENS, LLC, a Delaware limited liability company ("MASTER Lessee"; Fee Owner
and Master Lessee are collectively referred to herein as "BORROWER"), having an
office at c/o Glimcher Realty Trust, 00 X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000,
in favor of GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation
(together with its successors and assigns, "LENDER"), having an office at 00
Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, pursuant to the terms of this Note and the Loan Agreement
(defined below, Lender has agreed to make a loan (the "LOAN") to Borrower in the
original principal amount of One Hundred Thirty Five Million Dollars
($135,000,000);
WHEREAS, repayment of this Note is secured, in part, by that certain
Combined Fee and Leasehold Mortgage, Security Agreement, Financing Statement,
Fixture Filing and Assignment of Leases, Rents and Security Deposits dated as of
the date hereof (the "MORTGAGE"), made by Borrower in favor of Lender;
WHEREAS, Lender and Borrower intend these Recitals to be a material
part of this Note.
NOW, THEREFORE, FOR VALUE RECEIVED, Borrower promises to pay to the
order of Lender the Principal Amount (as defined below), together with interest
from the date hereof and other fees, expenses and charges as provided in this
Note.
1. DEFINED TERMS.
a. Capitalized terms used but not otherwise defined herein shall
have the respective meanings given thereto in the Loan
Agreement, unless otherwise expressly provided herein. All
references to sections shall be deemed to be references to
sections of this Note, unless otherwise indicated.
b. The following terms shall have the meaning ascribed thereto:
BORROWER shall have the meaning provided in the first paragraph hereof.
1
DEFAULT RATE shall mean, with respect to an acceleration of the Loan, a
rate per annum equal to the lesser of (a) the Maximum Legal Rate and
(b) four percent (4%) above LIBOR Rate, adjusted from time to time as
set forth herein.
EXTENDED MATURITY DATE shall have the meaning set forth in SECTION 5(a)
EXTENSION FEE shall mean a non-refundable fee equal to 0.25% of the
outstanding Principal Amount and payable simultaneously with Borrower's
delivery of the Extension Notice relating to the Second Extension
Option or the Third Extension Option, as the case may be.
EXTENSION NOTICE shall have the meaning set forth in SECTION 5(a).
FIRST EXTENSION OPTION shall have the meaning set forth in SECTION
5(a).
FIRST EXTENDED MATURITY DATE shall have the meaning set forth in
SECTION 5(a).
INITIAL MATURITY DATE shall mean June 9, 2004.
INTEREST DETERMINATION DATE shall mean, with respect to each Interest
Period, the date which is two (2) Business Days prior to the fifteenth
(15th) day of each calendar month.
INTEREST PERIOD shall mean each interest period commencing on the
fifteenth (15th) calendar day of a calendar month and ending on (and
including) the fourteenth (14th) calendar day of the following calendar
month; PROVIDED that the first interest period shall commence on the
date hereof.
LENDER shall have the meaning provided in the first paragraph hereof.
LIBOR shall mean, with respect to any Interest Determination Date, the
rate (expressed as a percentage per annum rounded upwards, if
necessary, to the nearest one hundredth (1/100) of one percent (1%))
for deposits in U.S. Dollars for a one (1) month period that appears on
Telerate Page 3750 (as defined below) as of 11:00 a.m., London time, on
such Interest Determination Date. If such rate does not appear on
Telerate Page 3750 as of 11:00 a.m., London time, on the applicable
Interest Determination Date, LIBOR will be the arithmetic mean
(expressed as a percentage per annum rounded upwards, if necessary, to
the nearest one hundredth (1/100) of one percent (1%)) of the offered
rates for deposits in U.S. Dollars for a one (1) month period that
appear on the Reuters Screen LIBO Page (as defined below) as of 11:00
a.m., London time, on such Interest Determination Date, if at least two
(2) such offered rates so appear. If fewer than two (2) such offered
rates appear on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, on the applicable Interest Determination Date, the Lender shall
request the principal London office of any four (4) major reference
banks in the London interbank market selected by the Lender to provide
such bank's offered quotation (expressed as a percentage per annum
rounded upwards, if necessary to the nearest one hundredth (1/100) of
one percent
2
(1%)) to prime banks in the London interbank market for deposits in
U.S. Dollars for a one (1) month period as of 11:00 a.m., London time,
on such Interest Determination Date in a principal amount of not less
than One Million Dollars ($1,000,000) that is representative for a
single transaction in the relevant market at the relevant time. If at
least two (2) such offered quotations are so provided, LIBOR will be
the arithmetic mean of such quotations. If fewer than two (2) such
quotations are so provided, the Lender will request any three (3) major
banks in New York City selected by the Lender to provide such bank's
rate (expressed as a percentage per annum rounded upwards, if
necessary, to the nearest one hundredth (1/100) of one percent (1%))
for loans in U.S. Dollars to leading European banks for a one (1) month
period as of approximately 11:00 a.m., New York City time, on the
applicable Interest Determination Date for amounts comparable to the
then outstanding Principal Amount (if available). If at least two (2)
such rates are so provided, LIBOR will be the arithmetic mean of such
rates. If fewer than two (2) rates are so provided, then LIBOR will be
LIBOR used to determine the LIBOR Rate during the immediately preceding
Interest Period.
LIBOR MARGIN shall mean 197 basis points (1.97%) per annum.
LIBOR RATE shall mean, with respect to each Interest Period, an
interest rate per annum equal to the sum of (a) LIBOR, determined as of
the Interest Determination Date immediately preceding the commencement
of such Interest Period, plus (b) the LIBOR Margin.
LOAN shall have the meaning provided in the Recitals to this Note.
LOAN AGREEMENT shall mean the Loan and Security Agreement, dated the
date hereof, between Borrower and Lender.
LOCKOUT PERIOD shall mean the period from the date hereof through (i)
in the event the First Extension Option is exercised, June 9, 2004, and
(ii) if the First Extension Option is not exercised, May 9, 2004,
during which time no prepayment of the Loan shall be permitted.
LOCKOUT RELEASE DATE shall mean (i) if Borrower exercises the First
Extension Option, July, 9, 2004, and (ii) if Borrower does not exercise
the First Extension Option, June 9, 2004.
LTV shall have the meaning provided in SECTION 5(a)(v) hereof.
MATURITY DATE shall mean the Initial Maturity Date or, upon the
exercise by Borrower of the Extension Option pursuant to SECTION 5(a)
of this Note, the First Extended Maturity Date, the Second Extended
Maturity Date or the Third Extended Maturity Date, as the case may be,
or such earlier date on which the final payment of principal of this
Note becomes due and payable as provided in the Loan Agreement or this
Note, whether at such stated maturity date, by declaration of
acceleration, or otherwise.
3
NOTE shall have the meaning provided in the first paragraph hereof.
PAYMENT DATE shall be the ninth (9th) calendar day of each calendar
month and if such day is not a Business Day, then the Business Day
immediately preceding such day, commencing on July 9, 2002 and
continuing to and including the Maturity Date.
PRINCIPAL AMOUNT shall mean $135,000,000 or so much as may be
outstanding under this Note.
REUTERS SCREEN LIBO PAGE shall mean the display designated as page
"LIBO" on the Reuters Monitor Money Rates Service (or such other page
as may replace the LIBO page on that service) for the purpose of
displaying interbank rates from London in U.S. Dollars.
SECOND EXTENSION OPTION shall have the meaning set forth in SECTION
5(a).
SECOND EXTENDED MATURITY DATE shall have the meaning set forth in
SECTION 5(a). TELERATE PAGE 3750 shall mean the display designated as
"Page 3750" on the Dow Xxxxx Telerate Service (or such other page as
may replace Page 3750 on that service) or such other service as may be
nominated by the British Bankers' Association as the information vendor
for the purpose of displaying British Bankers' Association Interest
Settlement Rates for U.S. Dollar deposits.
THIRD EXTENSION OPTION shall have the meaning set forth in SECTION
5(a).
THIRD EXTENDED MATURITY DATE shall have the meaning set forth in
SECTION 5(a).
2. INTEREST.
a. Prior to the Maturity Date, interest shall accrue on the
Principal Amount as follows:
i. from and including the date hereof to, but not
including, the first (1st) day of the second (2nd)
Interest Period (i.e., the 15th day of the first
calendar month immediately after the date hereof), at
a rate per annum equal to 3.81%; and
ii. from and including the first (1st) full day of the
second (2nd) Interest Period immediately following
the date of this Note, during the term of this Note
and thereafter during each Interest Period, at the
LIBOR Rate.
b. From and after the Maturity Date and from and after the date
of any Event of Default, interest shall accrue on the
Principal Amount at the Default Rate.
4
c. Except as expressly set forth in the Loan Agreement to the
contrary, interest shall accrue on all amounts advanced by
Lender pursuant to the Loan Documents at the Default Rate.
d. Interest, for any given Interest Period, shall be computed on
the Principal Amount on the basis of a fraction, the
denominator of which shall be 360 and the numerator of which
shall be the actual number of days in the relevant Interest
Period.
e. The provisions of this SECTION 2 are subject in all events to
the provisions of SECTION 2.2.4 of the Loan Agreement.
3. PAYMENTS.
a. On each Payment Date, Borrower shall pay to Lender interest
accruing hereunder during the entire Interest Period in which
said Payment Date occurs.
b. All payments made by Borrower hereunder or under any of the
Loan Documents shall be made on or before 2:00 p.m. New York
City time. Any payments received after such time shall be
credited to the next following Business Day.
c. All amounts advanced by Lender pursuant to the Loan Documents,
other than the Principal Amount, or other charges provided in
the Loan Documents, shall be due and payable as provided in
the Loan Documents. In the event any such advance or charge is
not so repaid by Borrower, Lender may, at its option, first
apply any payments received under this Note to repay such
advances, together with any interest thereon, or other charges
as provided in the Loan Documents, and the balance, if any,
shall be applied in payment of any installment of interest or
principal then due and payable.
d. The entire Principal Amount of this Note, all unpaid accrued
interest, all interest that would accrue on the Principal
Amount through the end of the Interest Period during which the
Maturity Date occurs (even if such period extends beyond the
Maturity Date) and all other fees and sums then payable
hereunder or under the Loan Documents (collectively, the
"MATURITY DATE PAYMENT") shall be due and payable in full on
the Maturity Date.
e. Amounts due on this Note shall be payable, without any
counterclaim, setoff or deduction whatsoever, at the office of
Lender or its agent or designee at the address set forth on
the first page of this Note or at such other place as Lender
or its agent or designee may from time to time designate in
writing.
5
f. All amounts due under this Note, including, without
limitation, interest and the Principal Amount, shall be due
and payable in lawful money of the United States.
g. To the extent that Borrower makes a payment or Lender receives
any payment or proceeds for Borrower's benefit, which are
subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee,
debtor in possession, receiver, custodian or any other party
under any bankruptcy law, common law or equitable cause, then,
to such extent, the obligations of Borrower hereunder intended
to be satisfied shall be revived and continue as if such
payment or proceeds had not been received by Lender.
4. PREPAYMENTS. Prior to the Lockout Release Date, the outstanding
Principal Amount may not be paid in whole or in part.
a. VOLUNTARY PREPAYMENTS. Borrower shall have the right only on
an Payment Date on or after the Lockout Release Date to prepay
the Principal Amount in whole, but not in part, upon
satisfaction of the following conditions:
i. Borrower shall provide prior irrevocable written
notice (the "PREPAYMENT NOTICE") to Lender specifying
the proposed date on which the prepayment is to be
made, which date must be on a Payment Date and shall
be no earlier than thirty (30) days after the date of
such Prepayment Notice (the date of such prepayment
pursuant to this SECTION 4(a) and SECTION 4(b) below
being the "PREPAYMENT DATE"); and
ii. Borrower shall comply with the provisions set forth
in SECTION 4(c) and SECTION 4(d) of this Note.
b. MANDATORY PREPAYMENTS.
i. On the next occurring Payment Date following the date
on which Borrower actually receives any Proceeds, if
Lender is not obligated to make such Proceeds
available to Borrower for the restoration of the
Property, in accordance with the terms of the Loan
Agreement, Borrower shall prepay the outstanding
principal balance of the Note in an amount equal to
one hundred percent (100%) of such Proceeds; and
ii. Borrower shall comply with the provisions set forth
in SECTION 4(c) and SECTION 4(d) of this Note.
c. PAYMENTS IN CONNECTION WITH A PREPAYMENT.
i. On the date on which a prepayment, voluntary or
involuntary, is made under this Note or as required
under the Loan Agreement, which date must
6
be a Payment Date, Borrower shall pay to Lender the
entire outstanding Principal Amount together with all
unpaid interest on the Principal Amount, such unpaid
interest calculated through the end of the Interest
Period during which such prepayment is made.
ii. On the Prepayment Date, Borrower shall pay to Lender
all other sums, not including scheduled interest
payments then due under the Note, the Loan Agreement,
the Security Instrument, and the other Loan
Documents; and
iii. Borrower shall pay all reasonable costs and expenses
of Lender incurred in connection with the prepayment
(including without limitation, any costs and expenses
associated with a release of the Lien of the related
Security Instrument as set forth in SECTION 2.3.3 of
the Loan Agreement as well as reasonable attorneys'
fees and expenses).
d. LIQUIDATED DAMAGES AMOUNT.IF NOTWITHSTANDING THE PROHIBITIONS
OF THIS PARAGRAPH 4, THE LOAN IS VOLUNTARILY OR INVOLUNTARILY
REPAID DURING THE LOCKOUT PERIOD, INCLUDING AS A RESULT OF AN
ACCELERATED MATURITY DATE, THEN BORROWER SHALL PAY TO LENDER,
AS LIQUIDATED DAMAGES FOR SUCH DEFAULT AND NOT AS A PENALTY,
AND IN ADDITION TO ANY AND ALL OTHER SUMS AND FEES PAYABLE
UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS, AN AMOUNT EQUAL
TO TEN PERCENT (10%) OF THE PRINCIPAL AMOUNT BEING REPAID (THE
"LIQUIDATED DAMAGES AMOUNT").
5. EXTENSION OPTION.
a. EXTENSION OPTION. Subject to the provisions of this SECTION 5,
Borrower shall have (i) the option (the "FIRST EXTENSION
OPTION"), by irrevocable written notice (an "EXTENSION
NOTICE") delivered to Lender no later thirty (30) days prior
to the Initial Maturity Date, to extend the Initial Maturity
Date to June 9, 2005 (the "FIRST EXTENDED MATURITY DATE"),
(ii) the option (the "SECOND EXTENSION OPTION"), by delivering
to Lender an Extension Notice no later thirty (30) days prior
to the First Extended Maturity Date, to extend the First
Extended Maturity Date to June 9, 2006 (the "SECOND EXTENDED
MATURITY DATE"), and (iii) the option (the "THIRD EXTENSION
OPTION"), by delivering to Lender an Extension Notice no later
thirty (30) days prior to the Second Extended Maturity Date,
to extend the Second Extended Maturity Date to June 9, 2007
(the "THIRD EXTENDED MATURITY DATE") . Borrower's right to so
extend the Maturity Date shall be subject to the satisfaction
of the following conditions precedent as of the delivery of
the applicable Extension Notice and as of the Initial Maturity
Date, the First Extended Maturity Date or the Second Extended
Maturity Date, as the case may be, prior to such extension
hereunder:
7
i. no Monetary Default or Event of Default shall have
occurred and be continuing under the Loan Documents,
the Bond Documents, the Financial Agreement, the
Redevelopment Agreement and/or the Special Assessment
Agreement, provided, however, that any failure by the
Guarantor to fund its obligations under the Franchise
Assessment Guaranty (as such term is defined in the
Redevelopment Agreement) shall not be deemed to be an
Event of Default under the Redevelopment Agreement
for purposes of this SECTION 5, and provided, further
however, that with respect to the Redevelopment
Agreement only as such defaults (i) relate to the
Property, or (ii) relate to the Power Center Site and
materially and adversely affect the Property;
ii. Borrower shall obtain and deliver to Lender not later
than one (1) Business Day prior to the Initial
Maturity Date, the First Extended Maturity Date or
the Second Extended Maturity Date, as the case may
be, one or more Replacement Interest Rate Cap
Agreements from an Approved Counterparty which
Replacement Interest Rate Cap Agreement(s) shall be
effective for the period commencing on the day
immediately following the Initial Maturity Date, the
First Extended Maturity Date or the Second Extended
Maturity Date, as the case may be and ending on the
last day of the Interest Period during the month in
which the First Extended Maturity Date, the Second
Extended Maturity Date or the Third Extended Maturity
Date, as the case may be, occurs;
iii. Borrower shall deliver a Counterparty Opinion with
respect to the Replacement Interest Rate Agreement
and the related Acknowledgment;
iv. Simultaneously with the delivery of an Extension
Notice with respect to the Second Extension Option or
the Third Extension Option, as the case may be,
Borrower shall pay to Lender the Extension Fee,
provided, however, that in no event shall an
Extension Fee be payable in connection with
Borrower's exercise of the First Extension Option;
v. Borrower shall obtain an Extension Letter of Credit
pursuant to SECTION 16.7 of the Loan Agreement;
vi. the Property shall have a loan-to-value ratio ("LTV")
of no greater than 70% based upon the appraised value
of the Property as determined by an Independent
third-party MAI appraiser approved by Lender in its
sole discretion in a new FIRREA appraisal which shall
be commissioned by Borrower forty-five (45) days
prior to delivery of the Extension Notice and
delivered no later than fifteen (15) days prior to
delivery of the Extension Notice; and
8
vii. the Net Operating Income shall be equal to or greater
than 95% of $19,246,615.
b. EXTENSION DOCUMENTATION. As soon as practicable following an
extension of the Maturity Date pursuant to this SECTION 5,
Borrower shall execute and deliver an amendment of and/or
restatement of the Note and shall enter into such amendments
to the related Loan Documents as may be necessary or
appropriate to evidence the modifications of the terms of the
extension of the Maturity Date as provided in this SECTION 5;
PROVIDED, HOWEVER, that no failure by Borrower to enter into
any such amendments and/or restatements shall affect the
rights or obligations of Borrower or Lender with respect to
the extension of the Maturity Date.
6. MISCELLANEOUS.
a. WAIVER. Borrower and all endorsers, sureties and guarantors
hereby jointly and severally waive all applicable exemption
rights, valuation and appraisement, presentment for payment,
demand, notice of demand, notice of nonpayment or dishonor,
protest and notice of protest of this Note, and, except as
otherwise expressly provided in the Loan Documents, all other
notices in connection with the delivery, acceptance,
performance, default or enforcement of the payment of this
Note. Borrower and all endorsers, sureties and guarantors
consent to any and all extensions of time, renewals, waivers
or modifications that may be granted by Lender with respect to
the payment or other provisions of this Note and to the
release of the collateral securing this Note or any part
thereof, with or without substitution, and agree that
additional makers, endorsers, guarantors or sureties may
become parties hereto without notice to them or affecting
their liability under this Note.
b. NON-RECOURSE. Recourse to the Borrower with respect to any
claims arising under or in connection with this Note shall be
limited to the extent provided in SECTION 18.1 of the Loan
Agreement and the terms, covenants and conditions of SECTION
18.1 of the Loan Agreement are hereby incorporated by
reference as if fully set forth in this Note.
c. NOTE SECURED. This Note and all obligations of Borrower
hereunder are secured by the Loan Agreement, the Security
Instrument and the other Loan Documents.
d. NOTICES. Any notice, election, request or demand which by any
provision of this Note is required or permitted to be given or
served hereunder shall be given or served in the manner
required for the delivery of notices pursuant to the Loan
Agreement.
9
e. ENTIRE AGREEMENT. This Note, together with the other Loan
Documents, constitutes the entire and final agreement between
Borrower and Lender with respect to the subject matter hereof
and may only be changed, amended, modified or waived by an
instrument in writing signed by Borrower and Lender.
f. NO WAIVER. No waiver of any term or condition of this Note,
whether by delay, omission or otherwise, shall be effective
unless in writing and signed by the party sought to be
charged, and then such waiver shall be effective only in the
specific instance and for the purpose for which given. No
notice to, or demand on, Borrower shall entitle Borrower to
any other or future notice or demand in the same, similar or
other circumstances.
g. SUCCESSORS AND ASSIGNS. This Note shall be binding upon and
inure to the benefit of Borrower and Lender and their
respective successors and permitted assigns. Upon any
endorsement, assignment, or other transfer of this Note by
Lender or by operation of law, the term "Lender," as used
herein, shall mean such endorsee, assignee, or other
transferee or successor to Lender then becoming the holder of
this Note. The term "Borrower" as used herein shall include
the respective successors and assigns, legal and personal
representatives, executors, administrators, devisees, legatees
and heirs of Borrower, if any.
h. CAPTIONS. All paragraph, section, exhibit and schedule
headings and captions herein are used for reference only and
in no way limit or describe the scope or intent of, or in any
way affect, this Note.
i. COUNTERPARTS. This Note may be executed in counterparts, each
of which shall be an original and all of which, when taken
together, shall constitute one binding Note.
j. SEVERABILITY. The provisions of this Note are severable, and
if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part, then such invalidity or
unenforceability shall affect only such clause or provision,
or part thereof, and not any other clause or provision of this
Note.
k. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
WITHOUT REGARD TO CHOICE OF LAW RULES.. BORROWER AGREES THAT
ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR ANY FEDERAL COURT SITTING THEREIN AND CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON BORROWER IN
10
THE MANNER AND AT THE ADDRESS SPECIFIED FOR NOTICES IN THE
LOAN AGREEMENT. BORROWER HEREBY WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
l. JURY TRIAL WAIVER. BORROWER AND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER IT, HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (I) ARISING UNDER
THIS NOTE, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR
FUTURE MODIFICATION THEREOF OR (II) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO THIS NOTE (AS NOW OR HEREAFTER
MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE; AND BORROWER HEREBY AGREES AND CONSENTS THAT AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION MAY BE FILED
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT HERETO TO
THE WAIVER OF ANY RIGHT TO TRIAL BY JURY. BORROWER
ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL
REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGES THAT
THIS WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE MAKING OF THE
LOAN. THIS WAIVER SHALL SURVIVE THE REPAYMENT OF THE LOAN.
m. COUNTERCLAIMS AND OTHER ACTIONS. Borrower hereby expressly and
unconditionally waives, in connection with any suit, action or
proceeding brought by Lender on this Note, any and every right
it may have to (i) interpose any counterclaim therein (other
than a counterclaim which can only be asserted in the suit,
action or proceeding brought by Lender on this Note and cannot
be maintained in a separate action) and (ii) have any such
suit, action or proceeding consolidated with any other or
separate suit, action or proceeding.
11
IN WITNESS WHEREOF, Borrower has caused this Note to be executed and
delivered as of the day and year first above written.
BORROWER:
N.J. METROMALL URBAN RENEWAL, INC., a New Jersey
corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
GLIMCHER JERSEY GARDENS, LLC,
a Delaware limited liability company
By: JG Mezzanine, LLC, a Delaware limited liability
company and its sole equity member
By: Glimcher Properties Limited Partnership,
a Delaware limited partnership and its sole
equity member
By: Glimcher Properties Corporation,
a Delaware corporation and its sole general
partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
12