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Exhibit 10.75
MORTGAGE LOAN COOPERATION AGREEMENT, dated as of September 15,
1998 (this "Agreement"), among XXXXXXXX XXXXX VENTURE, LLC, a Delaware limited
liability company ("Borrower"), GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership ("Borrower Parent/Sponsor"), and XXXXXXX SACHS
MORTGAGE COMPANY, a New York limited partnership ("GSMC").
WHEREAS, Borrower is the owner of the real property commonly
known as Xxxxx Center, located in Portland, Oregon (the "Property"); and
WHEREAS, GSMC has agreed to provide certain financing to
Borrower in the approximate aggregate amount of $130,000,000.00 secured by,
among other things, the Property on the terms set forth in a Loan Agreement,
dated as of the date hereof, between Borrower and GSMC, (as same may be amended
from time to time, the "Loan") this Agreement and the other Loan Documents (as
such term is defined in said Loan Agreement) (all terms used but not defined
herein shall have the meaning given such terms in the Loan Agreement); and
WHEREAS, it is contemplated that, subsequent to the funding of
the Loan by GSMC, the Loan will be sold, in whole or in part, whether as a whole
loan sale, or a sale of participation interests, a private placement, Rule 144A
offering or registered public offering of pass-through trust certificates or of
debt or equity securities issued by Borrower, GSMC (or an affiliate thereof), or
otherwise; and GSMC may deem it necessary or desirable to amend or modify
certain of the Loan Documents in connection therewith.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. When used herein, the following
capitalized terms shall have the following meanings:
"Certificates" shall mean, collectively, any senior and/or
subordinate note, debenture or pass-through certificate(s), or other evidence(s)
of indebtedness, or debt or equity security(ies), or any combination of the
foregoing, representing a direct or beneficial interest, in whole or in part, in
the Loan either alone or together with other loans. Certificates may be issued
in a single class or multiple classes.
"Bifurcation" shall mean the restructuring of the loan as two
(2) or more separate loans in accordance with, and pursuant to, the provisions
of Section 2(h) hereof.
"Bifurcation Borrowers" shall mean, collectively and/or
individually, the Borrower and the members of Borrower who shall be the borrower
under a Bifurcation Loan.
"Bifurcation Loans" shall mean, collectively and/or
individually, one (1) or more loans to the Borrower and/or the members of
Borrower secured by the Property and/or liens on all membership interests in
Borrower which shall result from a Bifurcation.
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"Rating Agencies" shall mean each of Standard & Poor's Ratings
Group, Duff & Xxxxxx Credit Rating Co., Xxxxx'x Investors Service, Inc., Fitch
IBCA, Inc. or such other nationally recognized statistical securities rating
organizations as may be designated by GSMC to assign a rating to the Loan or any
Certificates.
"Rating Agency Requirements" shall mean such requirements as
the Rating Agencies may impose, after such discussions as GSMC (in its sole
discretion) shall determine to be appropriate, as a condition to their assigning
to the Loan or any Certificates such ratings as may be acceptable to GSMC.
Borrower and Borrower Parent/Sponsor acknowledge that the Loan and/or
Certificates are contemplated to include the highest ratings assigned by the
Rating Agencies.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securitization" shall mean the first transaction in which
GSMC actually (i) sells or participates one hundred percent (100%) of the Loan,
the Notes and the other Loan Documents to one or more investors as a whole loan,
(ii) deposits the Loan, the Deed of Trust, the Notes and other Loan Documents
with a trust (including a REMIC trust), and such trust issues Certificates, one
hundred percent (100%) of which Certificates are offered and sold (except for
any Certificate representing any non-economic residual interest in such REMIC
trust that may be retained by GSMC or any affiliate thereof), or (iii) otherwise
sells the Loan or all interests therein to investors, including through the sale
of Certificates, provided that no Securitization shall be deemed to have
occurred for purposes hereof and the Loan Agreement, if (x) following the
completion of any sale or participation described above in this definition, GSMC
or any affiliate of GSMC shall continue to have a participation or any other
economic interest in the Loan (except for any Certificate representing any
non-economic residual interest in such REMIC trust that may be retained by GSMC
or any affiliate thereof); or (y) the Loan is purchased by a third-party that
represents and warrants to GSMC that (A) such purchaser (either directly or
through its affiliates) is regularly engaged in the business of buying loans for
subsequent securitization and (B) it is such purchaser's intention, as of the
time of such purchase, to securitize or cause the securitization of the Loan
within one (1) year. Notwithstanding the foregoing, the conveyance by GSMC of
its interest in the Loan to LaSalle National Bank, as custodian and collateral
agent (the "Custodian"), in connection with the commercial-mortgage-loan-sale
facility (the "Facility") created by GSMC with a commercial paper issuer (the
"CP Issuer") sponsored by Societe Generale pursuant to that certain Seller
Agreement, dated as of December 18, 1996, among GSMC, as seller, Xxxxxx Capital
Corporation, as purchaser, and Societe Generale, as agent, and that certain
Mortgage Loan Purchase Agreement, dated as of December 18, 1996, among GSMC, as
administrator, Xxxxxx Capital Corporation, as purchaser, and Societe Generale,
as agent, and any reconveyance of such interest by the Custodian to GSMC shall
not constitute a Securitization under this Agreement even after the first
anniversary of any such conveyance. In connection with the conveyance by GSMC of
the Loan to the Custodian, GSMC will not convey its rights under this Agreement
to the Custodian or the CP Issuer and therefore neither the Custodian nor the CP
Issuer shall have any rights under this Agreement.
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Section 2. General Obligation to Cooperate. Without limiting
any obligations of Borrower imposed in any other Loan Document, Borrower hereby
agrees that it shall:
(a) Use reasonable efforts, at GSMC's request, to satisfy the
market standards to which GSMC customarily adheres or which may be
reasonably required in the marketplace or by the Rating Agencies in
connection with a Securitization; cooperate fully and in good faith
with GSMC's efforts to structure and document the Loan and to arrange
for the issuance and sale of Certificates and the other actions
contemplated hereby; and take any and all actions that may reasonably
be requested by GSMC to permit the issuance of Certificates and the
sale thereof on such terms as GSMC may determine to be necessary or
desirable. Without limiting the generality of the foregoing, each
Person will (i) cooperate in any manner that may reasonably be
requested by GSMC with each Rating Agency, the SEC, the underwriters
and/or placement agents for any Certificates, any accountants, due
diligence firms, trustees, servicers or other service providers engaged
in connection with the Securitization, counsel to any such persons, and
such other persons as may be designated by GSMC from time to time and
(ii) execute and deliver all documentation and take all actions deemed
reasonably necessary or desirable by GSMC for the implementation of any
Securitization, including in connection with:
(1) The preparation, completion, execution
and delivery of (a) in the case of a public offering of
Certificates, a registration statement and accompanying
prospectus (and all necessary amendments thereto) for the
offer and sale of Certificates, or (b) in the case of a
private placement or Rule 144A offering of Certificates, all
necessary offering circulars and/or private placement
memoranda, in either case containing such information
regarding Borrower, the Loan, the Property, any Person and
such other matters as may be customary for public offerings or
private offerings (as applicable) of securities similar to the
Certificates or as may be required by the SEC or deemed
appropriate by GSMC in connection therewith, including audited
and unaudited financial statements (including, if requested by
GSMC, interim audited financial statements) fulfilling SEC and
GSMC requirements as to form, content and period covered, an
auditors' comfort letter from a "Big Five" accounting firm (or
successor thereto), and an agreed-upon-procedures letter
issued by such firm regarding income-in-place at the Property;
(2) The satisfaction of all Rating Agency
Requirements; and
(3) The satisfaction of ongoing periodic
reporting requirements under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), arising out of the
registration of the Certificates.
For greater certainty, certain specific actions that GSMC
expects will be required in connection with the Securitization
and the Bifurcation, if required by GSMC, are set forth
herein. However, the specific agreements set forth herein
shall not be construed to limit the generality of the
obligations of any Person under this Section 2, except to the
extent expressly set forth below;
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(b) Provide (or cause its affiliates to provide) (i)
to the Rating Agencies and (ii) to GSMC any information in
Borrower's possession or which can be obtained by Borrower and
can be disclosed without violating any applicable law or
breaching any applicable confidentiality agreement (including
financial statements) that, in the opinion of GSMC, is
necessary or desirable (for legal disclosure or marketing
purposes) for inclusion in any registration statement,
preliminary or final prospectus, preliminary or final private
placement memorandum or other disclosure documents used in any
such public offering or Rule 144A or private placement
(collectively, together with any amendment thereof or
supplement thereto, "Disclosure Documents");
(c) Provide such financial and other information (to
the extent such information is in Borrower's possession or can
be reasonably obtained by Borrower and can be disclosed
without violating any applicable law or breaching any
applicable confidentiality agreement) with respect to the
Property, Borrower and its Affiliates, the Property Manager
and any Tenants; provide business plans and budgets, to the
extent available, relating to the Property and perform or
permit or cause to be performed or permitted such site
inspections, appraisals, market studies, environmental reviews
and reports (Phase I's and, if appropriate, Phase II's),
engineering reports and other due diligence investigations of
the Property, as may be reasonably requested in writing by
GSMC or the Rating Agencies or as may be necessary or
appropriate, in GSMC's opinion, in connection with the
Securitization, together, if customary, with appropriate
verification and/or consents of such information and materials
through letters of auditors or opinions of counsel of
independent attorneys reasonably acceptable to GSMC and the
Rating Agencies;
(d) Use best efforts to cause counsel to render
opinions as to non-consolidation, fraudulent conveyance and
true sale, and any other opinion customary in securitization
or loan transactions, with respect to the Property and
Borrower and its Affiliates, which counsel and opinions shall
be reasonably satisfactory to GSMC and the Rating Agencies;
(e) Make such representations and warranties as of
the closing date of the Securitization and the Bifurcation
with respect to the Property, Borrower and the Loan Documents
as are customarily provided in securitization transactions or
as may be reasonably requested by the holder of the Notes or
the Rating Agencies and consistent with the facts covered by
such representations and warranties as they exist on the date
thereof, including the representations and warranties made in
the Loan Documents as of the Closing Date, in each case
specifying any exceptions to such representations and
warranties (and the existence of such exceptions (to the
extent arising in the period subsequent to the Closing Date)
shall not, in and of itself, be a breach of this Agreement or
of any of the Loan Documents);
(f) Subject to Section 4, promptly upon request of
GSMC (and in no event more than ten (10) business days after
being provided with a form of
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such document), execute such restatements, amendments,
supplements, replacements or other modifications to the Loan
Documents and, if required by GSMC, documentation for the
Bifurcation Loans, and the Bifurcation generally and
Borrower's and the Bifurcation Borrowers', if any,
organizational documents (or the organizational documents of
Borrower's, of the Bifurcation Borrowers', if any, general
partner or member if Borrower, or if the Bifurcation
Borrowers, if any, are limited partnerships or limited
liability companies, respectively) as may be requested by GSMC
in order to permit the Securitization and the Bifurcation or
in order to satisfy Rating Agency Requirements, including any
of the foregoing to better ensure that Borrower and the
Bifurcation Borrowers, if any, are special purpose bankruptcy
remote entities, to require periodic updates of accounting
matters, appraisals and environmental and engineering
assessments at origination of and/or during the term of the
Loan, and to incorporate customary mortgage and/or indenture
terms and restrictions for transactions involving the issuance
of rated debt through means such as the Certificates. In
respect of this Agreement, Borrower acknowledges that it is
generally familiar with the requirements imposed by rated
securitization transactions and the mortgage loan and
securities offering documentation required thereby;
(g) Deliver certificates of the relevant Governmental
Authorities in all relevant jurisdictions indicating the good
standing and qualification of Borrower and the Bifurcation
Borrowers, if any, as of the date of the Securitization and
Bifurcation, as applicable; and
(h) Cooperate fully, at GSMC's request, which
requests shall be made or withheld at the sole discretion of
GSMC, to accomplish a Bifurcation by restructuring the Loan as
two (2) or more separate loans whose initial principal
balances shall be in such proportion as GSMC shall request,
but whose aggregate principal balance shall be the Loan
Amount. The Bifurcation shall result in two (2) or more
Bifurcation Loans which shall be secured by deed of trust
liens on the Property and Borrower's other assets. The
respective interest rates payable under the Bifurcation Loans
shall be as GSMC shall elect, provided that the average
interest rate for both of such loans (weighted by the sum of
the outstanding principal balances thereof) shall not exceed
the interest rate on the Loan as specified in the Loan
Agreement.
Section 3. Intentionally Deleted.
Section 4. Limitation on Borrower's Obligations.
NOTWITHSTANDING THE PROVISIONS OF SECTION 2, BORROWER SHALL NOT BE OBLIGATED
HEREUNDER TO AGREE TO ANY MODIFICATION OF A LOAN DOCUMENT OR ANY BORROWER
ORGANIZATIONAL DOCUMENTS THAT WOULD MATERIALLY AND ADVERSELY AFFECT BORROWER OR
THAT WOULD CHANGE THE OUTSTANDING PRINCIPAL BALANCE, INCREASE THE INTEREST RATE
OR INTEREST PAYMENTS, INCREASE THE RATE OF AMORTIZATION, SHORTEN THE MATURITY
DATE OR
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AFFECT THE LIMITATIONS ON RECOURSE AGAINST BORROWER SET FORTH IN THE LOAN
DOCUMENTS.
Section 5. Securitization Indemnification.
(a) Offering of Certificates. Borrower acknowledges that
Certificates may be offered in a public offering registered with the SEC, in a
private placement or Rule 144A transaction, in an unregistered public offering
outside the United States or in some combination thereof, and Borrower
understands and agrees that any of the information provided or to be provided by
Borrower or Borrower Parent/Sponsor in connection with the Securitization,
whether hereunder or under any Loan Document or otherwise (collectively, the
"Provided Information") may be included in a Disclosure Document and in filings
with the SEC pursuant to the Securities Act or the Exchange Act, or, subject to
the provisions of this Section 5, provided or made available to investors or
prospective investors in the course of effecting a Securitization, the Rating
Agencies and service providers relating to the Securitization. Upon request,
Borrower will provide GSMC and any underwriter or placement agent for any
Certificates with written confirmation of the origin and/or accuracy of any
Provided Information. In the event that a Disclosure Document is required to be
revised prior to the sale of all Securities, Borrower will cooperate with GSMC
or the holder of the Notes in updating the Provided Information for inclusion or
summary in such Disclosure Document by providing all current information in
Borrower's or Borrower Parent/Sponsor's possession or reasonably obtainable by
Borrower or Borrower Parent/Sponsor (to the extent that the disclosure of such
information would not violate any applicable law or breach any confidentiality
agreement pertaining to Borrower or Borrower Parent/Sponsor or the Property)
necessary to keep such Disclosure Document accurate and complete in all material
respects with respect to the matters covered in the Provided Information.
Borrower hereby consents (on behalf of itself and each of its related Persons)
to the inclusion in any such Disclosure Document of any Provided Information now
in possession of GSMC or acquired by GSMC pursuant to this Agreement or
otherwise.
(b) Each of Borrower and Borrower Parent/Sponsor hereby agrees
to deliver the certificate and provide the indemnification set forth in Section
5(c) below and to provide the indemnification set forth in Section 5(e) below;
provided that each of Borrower and Borrower Parent/Sponsor have been given at
least a five (5) Business Day period to review the applicable Disclosure
Document or filing (or a two (2) Business Day period with respect to any amended
or final Disclosure Document or filing which has previously been reviewed) (such
five (5) or two (2) Business Day period, as applicable, being referred to herein
as the "Review Period") so that each of Borrower and Borrower Sponsor/Parent
may, with respect to the portions contained therein specifically relating to
Borrower Parent/Sponsor, Borrower, the Bifurcation Borrowers, if any, the
Property, the Loan, or the Bifurcation Loans, if any, and any other sections
pertaining to Borrower, Borrower Parent/Sponsor, Bifurcation Borrowers, if any,
the Property, the Loan or the Bifurcation Loans, if any, that GSMC has
reasonably requested Borrower and Borrower Parent/Sponsor to review (the
"Borrower Disclosure Information") either confirm for themselves that the same
is accurate and complete in all material respects or propose in writing to GSMC
such corrections, additions, deletions or qualifications as shall be reasonably
required by Borrower and Borrower Parent/Sponsor to issue the certificate
required in Section 5(c)(i) and provide the indemnification set forth in Section
5(c)(ii) or 5(e) below.
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(c) In connection with each Disclosure Document which Borrower
and Borrower Parent/Sponsor have had an opportunity to review pursuant to
Section 5(b) above and which reflect any changes reasonably required by Borrower
and Borrower Parent/Sponsor in writing prior to the expiration of the applicable
Review Period to issue the certificate required in Section 5(c)(i) below and to
provide the indemnity set forth in Section 5(c)(ii) below, each of Borrower and
Borrower Parent/Sponsor hereby agrees to:
(i) Upon GSMC's reasonable request from time
to time, provide a certificate to GSMC in substantially the
form set forth on Exhibit A hereto certifying that (1)
Borrower and Borrower Parent/Sponsor have examined the
Borrower Disclosure Information in such Disclosure Document
including the Borrower Disclosure Information contained in
applicable portions of the sections entitled "Special
Considerations", "Description of the Mortgages", "Description
of the Mortgage Loans and Mortgaged Properties", "The
Manager", "The Borrower" and (to the extent it relates to the
Loan) "Certain Legal Aspects of the Mortgage Loan[s]", (2)
such Borrower Disclosure Information does not, as of the date
of such certificate, contain any untrue statement of a
material fact and such Disclosure Document does not, as of the
date of such certificate, omit to state a material fact
specifically relating to Borrower, Borrower Parent/Sponsor,
Bifurcation Borrowers, if any, the Property, the Loan or the
Bifurcation Loans, if any, necessary in order to make the
statements made in the Disclosure Document specifically
relating to Borrower, Borrower Parent/Sponsor, Bifurcation
Borrowers, if any, the Property, the Loan or the Bifurcation
Loans, if any, in the light of the circumstances under which
they were made, not misleading except, with respect to such
omissions, to the extent specifically set forth in such
certificate and (3) that such Borrower Disclosure Information
is accurate and complete in all material respects;
(ii) indemnify and hold harmless, with
respect to such Disclosure Document, each of The Xxxxxxx Xxxxx
Group, L.P., Xxxxxxx, Sachs & Co., GSMC and any other
Affiliate of The Xxxxxxx Xxxxx Group, L.P. ("Goldman"), and
each of their respective directors and officers, and each
Person who controls any Person that is included within the
definition of Goldman within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act
(collectively, the "Goldman Group"), and any other
underwriters in a Securitization and any of such underwriters'
Affiliates (the "Underwriters"), and each of the Underwriters'
respective directors and officers, and each Person who
controls any Person that is included within the definition of
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (collectively, the
"Underwriter Group") against any losses, claims, damages or
liabilities, joint and several (the "Liabilities"), to which
the Goldman Group in its capacity as an issuer, an underwriter
or otherwise, and/or the Underwriter Group in its capacity as
an underwriter or otherwise, may become subject under the Act
or otherwise insofar as the Liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in
the Borrower Disclosure Information, or arise out of or are
based upon the omission or
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alleged omission to state in the Disclosure Document a
material fact specifically relating to Borrower, Borrower
Parent/Sponsor, Bifurcation Borrowers, if any, the Property,
the Loan or the Bifurcation Loans, if any, required to be
stated in the Disclosure Document necessary in order to make
the statements specifically relating to Borrower, Borrower
Parent/Sponsor, Bifurcation Borrowers, if any, the Property,
the Loan or the Bifurcation Loans, if any, in the Disclosure
Document not misleading (except if the failure to state such
fact was specifically set forth in the certificate referred to
in Section 5(c)(i) above) or arise out of or are based upon
the failure of the Borrower Disclosure Information to be
accurate and complete in all material respects (except that
the obligation of Borrower and Borrower Parent/Sponsor to
indemnify in respect of any decrement or weighted average life
tables included in the Registration Statement prepared by a
person other than Borrower or Borrower Parent/Sponsor (and not
on behalf of Borrower or Borrower Parent/Sponsor) shall be
limited to any untrue statement or alleged untrue statement
therein or omission therefrom that results directly from an
error in any information provided by or on behalf of Borrower
or Borrower Parent/Sponsor).
(iii) Reimburse the Goldman Group and/or the
Underwriter Group for any legal or other expenses reasonably
incurred by any such Persons in connection with investigating
or defending the Liabilities as such expenses are incurred.
This indemnity agreement will be in addition to any liability
which Borrower or Borrower Parent/Sponsor may otherwise have.
(d) In connection with each filing under the Exchange Act
which Borrower and Borrower Parent/Sponsor have had an opportunity to review
pursuant to Section 5(b) above and which reflects any changes reasonably
required by Borrower and Borrower Parent/Sponsor in writing prior to the
expiration of the applicable Review Period to provide the indemnity set forth in
this Section 5(d), each of Borrower and Borrower Parent/Sponsor agrees to (i)
indemnify and hold harmless the Goldman Group for any Liabilities, joint and
several, to which the Goldman Group may become subject insofar as the
Liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Borrower Disclosure Information contained in such filings or the omission or
alleged omission to state in the Disclosure Document, contained in such filings
a material fact specifically relating to Borrower, Borrower Parent/Sponsor, the
Bifurcation Borrowers, if any, the Property, the Loan or the Bifurcation Loans,
if any, required to be stated in the Disclosure Document necessary in order to
make the statements in the Disclosure Document specifically relating to
Borrower, Borrower Parent/Sponsor, Bifurcation Borrowers, if any, the Property,
the Loan or the Bifurcation Loans, if any, in light of the circumstances under
which they were made, not misleading (except if such omitted fact was
specifically identified in a writing delivered to GSMC prior to the expiration
of the applicable review period) or arise out of or are based upon the failure
of the Borrower Disclosure Information to be accurate and complete in all
material respects and (ii) reimburse the Goldman Group and/or the Underwriter
Group for any legal or other expenses reasonably incurred by the Goldman Group
and/or the Underwriter Group in connection with defending or investigating the
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Liabilities as such expenses are incurred. This indemnity agreement will be in
addition to any liability which Borrower or Borrower Parent/Sponsor may
otherwise have.
(e) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify Borrower and Borrower Parent/Sponsor in writing
of the commencement thereof, but the omission to so notify shall not relieve
Borrower and Borrower Parent/Sponsor from any liability which any of them may
have to any indemnified party hereunder. In the event that any action is brought
against any indemnified party, and it notifies Borrower and Borrower
Parent/Sponsor of the commencement thereof, each of Borrower and Borrower
Parent/Sponsor will be entitled to participate therein and, to the extent that
they in their sole discretion may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party (in its reasonable discretion, but such counsel shall
not, except with the consent of the indemnified party in its sole discretion, be
counsel to the indemnifying party). No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party. After notice from Borrower or Borrower
Parent/Sponsor to such indemnified party under this Section, neither Borrower
nor Borrower Parent/Sponsor shall be liable hereunder for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
if the defendants in any such action include both (x) the indemnified party and
(y) each of Borrower and Borrower Parent/Sponsor, and the indemnified party
shall have reasonably concluded that there are any legal defenses available to
it and/or other indemnified parties that are different from or additional to
those available to Borrower and Borrower Parent/Sponsor, the indemnified party
or parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Neither Borrower nor Borrower Parent/Sponsor
shall be liable for the expenses of more than one separate counsel for all
indemnified parties unless an indemnified party reasonably determines that joint
representation of such indemnified party and another indemnified party by the
same counsel would constitute a significant conflict of interest that cannot be
avoided without retaining separate counsel.
(f) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 5(c) or
5(d) is for any reason held to be unenforceable by an indemnified party in
respect of any losses, claims, damages or liabilities (or action in respect
thereof) referred to therein which would otherwise be indemnifiable under
Section 5(c) or 5(d), each of Borrower and Borrower Parent/Sponsor shall
contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages or liabilities (or action in respect thereof);
provided, however, that no Person guilty of fraudulent misrepresentation (within
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the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. In determining the amount of contribution to which the
respective parties are entitled, the following factors shall be considered: (i)
the relative knowledge of, and access to, information concerning the matter with
respect to which the claim was asserted of the Goldman Group and the Underwriter
Group, on the one hand, and of Borrower and Borrower Parent/Sponsor on the
other; (ii) the opportunity to correct and prevent any statement or omission;
and (iii) any other equitable considerations appropriate in the circumstances.
Borrower and Borrower Parent/Sponsor hereby agree that it may not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation.
Section 6. Rating Surveillance. GSMC will have the right to
retain the Rating Agencies to provide rating surveillance services on the
Certificates and the annual cost of such ongoing rating surveillance will be at
the expense of GSMC.
Section 7. Retention of Servicer. GSMC reserves the right to
retain a Servicer (as well as a special servicer) to act as its agent hereunder
with such powers as are specifically delegated to the Servicer (or such special
servicer) by GSMC, whether pursuant to the Loan Agreement, a Servicing
Agreement, a Deposit Account Agreement or otherwise, together with such other
powers as are reasonably incidental thereto. Borrower shall not be responsible
for the payment of the Servicer's annual fee for master servicing (as
distinguished from special servicing); provided that, Borrower shall pay any
fees and expenses of the Servicer in connection with a prepayment of the Loan,
release of the Property, assumption of the Loan, modification of the Loan made
at Borrower's request, any requests by Borrower for waivers or consents, and the
enforcement of the Loan Documents after an Event of Default and any other
expenses of GSMC that are required to be paid by Borrowers under the Loan
Documents.
Section 8. Breach of Agreement. In the event Borrower or
Borrower Parent/Sponsor fails to fulfill its obligations under this Agreement,
GSMC shall be entitled to notify Borrower or Borrower Parent/Sponsor, as the
case may be, in writing (including by facsimile) of such failure; thereupon,
Borrower or Borrower Parent/Sponsor, as the case may be, shall have five (5)
Business Days from the receipt of any such notice to cure such failure to
fulfill its obligations hereunder. If, following notice from GSMC and the
expiration of such period, the continued failure by Borrower or Borrower
Parent/Sponsor or any other Person to fulfill its obligations under this
Agreement in respect of which GSMC has delivered notice hereunder, will, upon
further written notice from GSMC, in and of itself constitute an immediate event
of default under this Agreement, and if the following occurs at a time when the
Loan is not an asset of or collateral for a Securitization, an immediate Event
of Default under each Loan Document to which Borrower or Borrower Parent/Sponsor
is now or hereafter becomes a party (without regard to any notice requirement or
cure period provided in any such document and whether or not expressly provided
for as an Event of Default) and will entitle GSMC to pursue any or all of its
remedies at law and under any such document. The terms of Section 12.24 of the
Loan Agreement (captioned "Exculpation") shall not be applicable with respect to
the obligations of Borrower and Borrower Parent/Sponsor under this Agreement.
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Section 9. Termination. This Agreement shall terminate if a
Securitization has not occurred on or before the second anniversary of this
Agreement. From and after the closing of a Securitization, Borrower and Borrower
Parent/Sponsor shall no longer have any obligations under Section 2 (other than
Section 2(a)(3)) of this Agreement.
Section 10. Loan Summary. In addition to any other certificate
required under the terms of this Agreement, upon the request of GSMC and as soon
as reasonably practical after the date hereof each of Borrower and Borrower
Parent/Sponsor shall execute a certificate in favor of GSMC in substantially the
form set forth on Exhibit B hereto (A) certifying that (i) each of Borrower and
Borrower Parent/Sponsor has reviewed the summary of the Loan prepared on behalf
of GSMC for inclusion in the Disclosure Document (the "Loan Summary") and (ii)
as of the date hereof, the information contained in the Loan Summary pertaining
to Borrower, Borrower Parent/Sponsor, the Bifurcation Borrowers, if any, the
Property, the Loan and the Bifurcation Loans is accurate and complete in all
material respects and does not contain any untrue statement of a material fact
and does not omit to state a material fact specifically relating to Borrower,
Borrower Parent/Sponsor, the Bifurcation Borrowers, if any, the Property, the
Loan or the Bifurcation Loans, if any, necessary to make the statements made in
the Loan Summary specifically relating to Borrower, Borrower Parent/Sponsor,
Bifurcation Borrowers, if any, the Property, the Loan or the Bifurcation Loans,
if any, in light of the circumstances under which they were made, not misleading
and (B) consenting to GSMC's use of such Loan Summary in a Disclosure Document.
Section 11. Governing Law. THIS AGREEMENT WAS NEGOTIATED IN
THE STATE OF NEW YORK, AND MADE BY GSMC AND ACCEPTED BY BORROWER AND BORROWER
PARENT/SPONSOR IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE LOAN ARE BEING
DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF BORROWER AND BORROWER
PARENT/SPONSOR HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT
THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, AND THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK PURSUANT TO ss. 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
Section 12. Submission to Jurisdiction. ANY LEGAL SUIT, ACTION
OR PROCEEDING AGAINST BORROWER, BORROWER PARENT/SPONSOR OR GSMC ARISING OUT OF
OR RELATING TO THIS AGREEMENT SHALL BE INSTITUTED IN ANY FEDERAL OR STATE COURT
IN NEW YORK, NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, AND EACH OF BORROWER, BORROWER PARENT/SPONSOR AND GSMC WAIVES
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING AND HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT,
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ACTION OR PROCEEDING. EACH OF BORROWER AND BORROWER PARENT/SPONSOR DOES HEREBY
DESIGNATE AND APPOINT CT CORPORATION SYSTEM, 0000 XXXXXXXX, XXX XXXX, XXX XXXX
00000 OR AT SUCH OTHER OFFICE IN NEW YORK, NEW YORK, AS MAY BE DESIGNATED FROM
TIME TO TIME AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF
SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT
SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID
SERVICE OF BORROWER AND BORROWER PARENT/SPONSOR MAILED OR DELIVERED TO ANY OF
BORROWER AND BORROWER PARENT/SPONSOR IN THE MANNER PROVIDED HEREIN SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER AND BORROWER
PARENT/SPONSOR, IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK.
EACH OF BORROWER AND BORROWER PARENT/SPONSOR (I) SHALL GIVE PROMPT NOTICE TO
GSMC OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY
TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN
OFFICE IN NEW YORK, NEW YORK (WHICH OFFICE SHALL BE DESIGNATED AS THE ADDRESS
FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF
ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS
DISSOLVED WITHOUT LEAVING A SUCCESSOR.
Section 13. Waiver of Jury Trial. BORROWER AND BORROWER
PARENT/SPONSOR EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
AGREEMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY EACH OF BORROWER AND BORROWER PARENT/SPONSOR, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. GSMC IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY EACH
OF BORROWER AND BORROWER PARENT/SPONSOR
Section 14. Notices. All notices, requests, demands and other
communications required under the terms and provisions hereof shall be in
writing and shall become effective when delivered by hand or received by
telecopier, telegram, certified or registered airmail, postage prepaid, or an
established overnight delivery service, addressed as follows:
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If to GSMC:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx X. Xxxxx
with a copy to:
Archon Financial, L.P.
000 X. Xxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to Borrower:
Xxxxxxxx Xxxxx Venture, LLC
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx,
Xx. Vice President
with a copy to:
Frost & Xxxxxx LLP
One Columbus - Suite 1000
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxxxx, Esq.
If to Borrower Parent/Sponsor:
Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx,
Xx. Vice President
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with a copy to:
Frost & Xxxxxx LLP
One Columbus - Suite 1000
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxxxx, Esq
or to such other address (and such additional addressees, not to exceed four (4)
in number for each party hereto) as the party to receive the notice shall
designate by notice to the other parties.
Section 15. Rules of Construction. The headings used in this
Agreement are for convenience only and constitute no part of this Agreement, and
references herein to articles, sections, subsections or clauses are to this
Agreement unless otherwise specified. Unless otherwise specified, the words
"hereof", "herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The words "includes", "including" and similar terms
shall be construed as if followed by the words "without limitation". Unless
otherwise specified, all meanings attributed to defined terms herein shall be
equally applicable to both the singular and plural forms of the terms so
defined. As used herein, the term "reasonably obtainable" by Borrower or similar
terms, when qualifying Borrower's obligation to deliver a report, statement or
other item hereunder, shall take into account the other obligations of Borrower
and Borrower Parent/Sponsor under the Loan Documents that may relate to the
preparation and/or delivery of such report, statement or other item, and shall
be construed to mean reasonably obtainable by the Borrower, its asset manager,
its property manager, and/or Borrower Parent/Sponsor. Whenever in this Agreement
any Person is referred to, such reference shall be deemed to include the legal
representatives, successors and assigns of such Person.
Section 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
Section 17. Modification, Waiver in Writing. No modification,
amendment, extension, discharge, termination or waiver of any provision of this
Agreement, nor consent to any departure by Borrower or Borrower Parent/Sponsor
therefrom, shall in any event be effective unless the same shall be in a writing
signed by the party against whom enforcement is sought, and then such waiver or
consent shall be effective only in the specific instance, and for the purpose,
for which given. Except as otherwise expressly provided herein, no notice to, or
demand on Borrower or Borrower Parent/Sponsor, shall entitle Borrower or
Borrower Parent/Sponsor to any other or future notice or demand in the same,
similar or other circumstances. Any failure or delay by GSMC in insisting upon
strict performance of any term, condition, covenant or agreement, or exercising
any right, power, remedy or privilege hereunder, shall operate as or constitute
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other future exercise, or the exercise of any other right, power, remedy or
privilege.
Section 18. Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any
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provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
Section 19. No Third Party Beneficiaries. This Agreement is
solely for the benefit of the parties hereto, together with the Goldman Group
and the Underwriter Group, and nothing contained herein shall be deemed to
confer upon other Person any right to insist upon or to enforce the performance
or observance of any of the obligations contained herein.
Section 20. Obligations Joint and Several The obligations of
Borrower and Borrower Parent/Sponsor hereunder shall be joint and several as
among Borrower Parent/Sponsor and each of the Persons included hereinabove
within the definition of "Borrower", and their respective successors and
assigns.
Section 21. No Securitization or Bifurcation Expense to
Borrower or Borrower Parent/Sponsor. Notwithstanding anything contained herein
to the contrary, neither Borrower nor Borrower Parent/Sponsor shall have
obligation to pay or reimburse GSMC for any expenses incurred by GSMC or its
affiliates in connection with the Securitization, the issuance of Certificates
and any related arrangements or incurred in connection with a Bifurcation;
provided, however, that the foregoing shall not be construed to apply to the
obligations set forth in Sections 5 or 8 hereof.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first hereinabove set forth.
XXXXXXX XXXXX MORTGAGE COMPANY, a New
York limited partnership
By: Xxxxxxx Sachs Real Estate Funding Corp., a
Delaware corporation, its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
XXXXXXXX XXXXX VENTURE, LLC,
a Delaware limited liability company
By: Glimcher Portland, Inc.,
its managing member
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
17
EXHIBIT A
CERTIFICATE
Reference is made to that certain Mortgage Loan Cooperation
Agreement, dated as of September [___], 1998 (the "Cooperation Agreement") among
XXXXXXXX XXXXX VENTURE, LLC, a Delaware limited liability company ("Borrower"),
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership
("Borrower Parent/Sponsor") and XXXXXXX XXXXX MORTGAGE COMPANY, a New York
limited partnership ("GSMC"). Capitalized terms used but not defined herein
shall have the meaning given to them in the Cooperation Agreement. Pursuant to,
and on the terms set forth in, the Cooperation Agreement, each of the
undersigned hereby certifies to GSMC that:
(i) it has examined the information specifically
relating to Borrower, Borrower Parent/Sponsor, the Property or
the Loan (and such other sections pertaining to the Borrower,
Borrower Parent/Sponsor, [the Bifurcation Borrowers,] the
Property [or the Bifurcation Loans] [or the Loan] that GSMC
has reasonably requested that we review) contained in the
[Preliminary Prospectus Supplement] [Final Prospectus
Supplement] dated [_________], 199[_] (the "Prospectus
Supplement"), including such information contained in
applicable portions of the sections entitled "Special
Considerations", "Description of the Mortgages", "The
Manager", "The Borrower" and, to the extent it relates to the
Loan, "Certain Legal Aspects of the Mortgage Loans"
(collectively, the "Covered Portions"), copies of which are
attached hereto as Exhibit A;
(ii) such Covered Portions do not, as of the date
hereof, contain any untrue statement of a material fact and
such Prospectus Supplement does not, as of the date hereof,
omit to state a material fact, in both instances, specifically
relating to Borrower, Borrower Parent/Sponsor, the Property or
the Loan necessary in order to make the statements made in the
Prospectus Supplement specifically relating to Borrower,
Borrower Parent/Sponsor, Bifurcation Borrowers, if any, the
Property, the Loan or the Bifurcation Loans, if any, in light
of the circumstances under which they were made, not
misleading; and
(iii) each of the undersigned has examined the
Covered Portions and such Covered Portions are accurate and
complete in all material respects specifically relating to
Borrower, Borrower Parent/Sponsor, Bifurcation Borrowers, if
any, the Property, the Loan or the Bifurcation Loans, if any.
Nothing herein amends or modifies any of the terms of the
Cooperation Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Certificate as of the [___] day of [________], 1998.
XXXXXXXX XXXXX VENTURE, LLC,
a Delaware limited liability company
By: Glimcher Portland, Inc.,
its managing member
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
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EXHIBIT B
CERTIFICATE
Reference is made to that certain Mortgage Loan Cooperation
Agreement, dated as of the date hereof (the "Cooperation Agreement") among
XXXXXXXX XXXXX VENTURE, LLC, a Delaware limited liability company ("Borrower"),
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership
("Borrower Parent/Sponsor") and XXXXXXX SACHS MORTGAGE COMPANY, a New York
limited partnership ("GSMC"). Capitalized terms used but not defined herein
shall have the meaning given to them in the Cooperation Agreement. Pursuant to,
and on the terms set forth in, Section 10 of the Cooperation Agreement, each of
the undersigned hereby certifies to GSMC that:
(i) it has reviewed the summary of the Loan attached
hereto as Exhibit A (the "Loan Summary");
(ii) as of the date hereof, the information contained
in the Loan Summary pertaining to Borrower, Borrower
Parent/Sponsor, the Property and the Loan is accurate and
complete in all material respects and does not, as of the date
hereof, contain any untrue statement of a material fact and
does not omit to state a material fact specifically relating
to Borrower, Borrower Parent/Sponsor, the Property or the Loan
necessary in order to make the statements made in such Loan
Summary specifically relating to Borrower, Borrower
Parent/Sponsor, the Property or the Loan, in light of the
circumstances under which they were made, not misleading; and
(iii) it hereby consents and agrees that GSMC may
include such Loan Summary in a Disclosure Document.
Nothing herein amends or modifies any of the terms of the
Cooperation Agreement.
20
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Certificate as of the [___]th day of _________, 1998.
XXXXXXXX XXXXX VENTURE, LLC,
a Delaware limited liability company
By: Glimcher Portland, Inc.,
its managing member
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President
