LOAN AGREEMENT

Exhibit 10.102

 

TABLE OF CONTENTS

 

 

 

INDEX OF SCHEDULES

 

LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of October 8, 2008, is entered into by and between MORGANTOWN MALL ASSOCIATES LIMITED PARTNERSHIP, an Ohio limited partnership (the " Borrower "), and FIRST COMMONWEALTH BANK (the " Bank ").

RECITALS:

WHEREAS, The Borrower has applied to the Bank for a loan in a principal amount not to exceed the lesser of (i) $40,000,000.00, or (ii) the amount determined based on a 75% Loan to Value Ratio  (the " Loan "); and

WHEREAS, the Borrower intends to use the proceeds from the Loan to refinance existing debt associated with the facility known as the Morgantown Mall and located in Westover Township, Monongalia County, West Virginia (the " Building " and together with the Land (as hereafter defined), collectively, the " Property "); and

WHEREAS, the Bank is willing to make the Loan upon the terms and conditions set forth in this Agreement and the other Loan Documents.

NOW, THEREFORE, in consideration of the foregoing recitals (each of which is incorporated herein by reference) and the mutual promises contained herein and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, and with the intent to be legally bound hereby, the parties hereto agree as follows:

ARTICLE 1.   DEFINITIONS AND OTHER CONVENTIONS

Affiliate :  As to any Person, any other Person which directly or indirectly through one or more intermediaries Controls, is Controlled by, or is under common Control with, such Person.

Agreement :  This Loan Agreement and all exhibits, schedules, extensions, renewals, amendments, substitutions and replacements hereto and hereof.

Anchor Tenants :  Shall mean, collectively, Sears, Roebuck & Co., J. C. Penney Company, Inc., The Elder-Beerman Stores Corp., and Belk, Inc. and each future replacement Tenant for any of the aforementioned.

Anti-Terrorism Laws : Shall mean any laws relating to terrorism or money laundering, including Executive Order No. 13224, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by the United States Treasury Department's Office of Foreign Asset Control (as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced).

Appraisal :  A USPAP appraisal of the Real Estate Collateral addressed to the Bank and furnished by an independent appraiser satisfactory to the Bank.

Assignment of Leases and Rents :  The Assignment of Leases and Rents executed by the Borrower in connection herewith, and all exhibits, schedules, extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Assignment of Management Agreement :  The Assignment of Management Agreement (which shall assign the Management Agreement to the Bank) executed by the Borrower and the Property Manager in connection herewith, together with all extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Bank :  First Commonwealth Bank, and its successors and assigns.

Bank's Lien :  The first and prior perfected liens and security interests granted by the Borrower to the Bank pursuant to the Security Documents.

Blocked Person : Shall mean a Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (2) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (3) a Person with which any financial institution is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (4) a Person that commits, threatens or conspires to commit or supports "terrorism" as defined in Executive Order No. 13224; (5) a Person that is named as a "specially designated national" on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list, or (6) a Person who is affiliated or associated with any of the foregoing.

Borrower :  Shall mean Morgantown Mall Associates Limited Partnership, an Ohio limited partnership.

Building :  This term shall have the meaning given it in the preamble hereto.

Business Day : A day other than a Saturday or a Sunday on which the Bank is open for business at its main office in Indiana, Pennsylvania.

Change in Ownership :  Any event or series of events which results in any change of ownership of any equity interests in Borrower.  A change in ownership does not include any change of ownership of any equity interests in Guarantor.

Closing Date :  October 14, 2008, or such other date as is mutually agreeable to the parties hereto.

Collateral :  Collectively, all of the Borrower's right, title and interest in and to all of the assets of the Borrower described in the Security Documents.

Control :  The possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, partnership interests, other equity interests, by contract or otherwise, including the power to elect a majority of the directors of a corporation or trustees of a trust, as the case may be.

Debt Service Coverage Ratio :  The ratio of (i) the Borrower's Net Operating Income for the twelve (12) calendar  month period  immediately  preceding the date of calculation, to (ii) the Borrower's scheduled payments of principal and interest on its Indebtedness for the twelve  (12)  calendar  month  period  immediately  following  such  calculation, all determined in accordance with GAAP consistently applied.

Deed of Trust :  The Deed of Trust and Security Agreement executed by the Borrower in connection herewith, together with all extensions, renewals, amendments, substitutions and replacements thereto and thereof covering the real property and the improvements thereon commonly known as the Morgantown Mall located in Westover Township, West Virginia.

Default :  Any condition, event, omission or act which with the giving of notice, the passage of time or both would constitute an Event of Default.

Default Rate :  The rate of interest in effect during an Event of Default, as described in the Note.

Dollars or $ :  The legal tender of the United States of America.

Eligible Institution :  Shall mean a federal or state chartered depository institution  or  trust  company  insured  by  the  Federal   Deposit Insurance Corporation  the short term  unsecured debt  obligations or commercial  paper of which  are rated at least A-1 by S&P,  P-1 by  Moody's  and F-1+ by Fitch in the case of accounts in which funds are held for thirty (30) days or less or, in the case of  Letters of Credit or accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least "AA" by Fitch and S&P and "Aa2" by Moody's.

Encumbrance :  Any security interest, mortgage, deed of trust, charge, pledge, hypothecation, security assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, and the filing of any financing state­ment under the Uniform Commercial Code), whether or not voluntarily given.

Environmental Indemnity Agreement :  The Environmental Indemnity Agreement executed by the Borrower and the Guarantor on or about the Closing Date in connection herewith, and all extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Environmental Law : This term shall have the meaning given it in the Environmental Indemnity Agreement.

Event of Default : Any of the events specified in Section 7.1.

Facility Fee : The fees described in Section 2.1b.

Fiscal Quarter :  Each three-month fiscal period of a Loan Party beginning respectively on each successive January 1, April 1, July 1, and October 1 during the term hereof and ending on the immediately succeeding March 31, June 30, September 30,  and December 31, respectively .

Fiscal Year : Each annual period of any Loan Party beginning January 1 and ending December 31 during the term hereof.

GAAP : Generally accepted accounting principles which are consistent with the principles promulgated or adopted by the Financial Accounting Standards Board, its predecessors and its successors, consistently applied.

General Partner :  Shall mean Glimcher Morgantown Mall, Inc., a Delaware corporation.

Governmental Approval : Any order, consent, authorization, right, license, validation, approval or permit issued by a Governmental Authority required to be obtained by the Borrower or issued by a Governmental Authority in connection with the ownership, operation, maintenance, use, leasing, occupancy and management of the Real Estate Collateral and all extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Governmental Authority : The government of the United States or the government of any state or locality therein, any political subdivision or any governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body or entity or other regulatory bureau, authority, body or entity of the United States or any state or locality therein, including but not limited to any environmental agency, zoning board, planning commission or any comparable authority.

Governmental Rule : Any present or future law, statute, rule, regulation, permit, license, treaty, ordinance, order, writ, injunction, decree, judgment, guideline, award, standard, directive, decision, code, or other legal requirement of any Governmental Authority, and all amendments thereto.

Guarantor :  Shall mean Glimcher Properties Limited Partnership, a Delaware limited partnership.

Guaranty Agreement :  The Guaranty and Suretyship Agreement executed by the Guarantor in connection herewith, together with all extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Improvements :  Collectively, any structure constructed on any portion of the Real Estate Collateral and all additions, replacements, renovations, modifications, substitutions or other improvements thereto or thereof at any time.

Indebtedness :  Individually and collectively, (i) all obligations and indebtedness for borrowed money, (ii) all obligations evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations under conditional sale or other title retention agreements, (iv) all obligations issued or assumed as the deferred purchase price of property or services, (v) all capitalized lease obligations, (vi) the face amount of all letters of credit, (vii) all obligations of others secured by any Encumbrance on property or assets of the Borrower, whether or not the obligations secured thereby have been assumed and (viii) all guarantees and other obligations to guaranty, assume or remain liable for the payment of another Person's obligations.

Indemnified Person :   Any of the Bank, any entity controlling the Bank, their respective successors and assigns, and any of their respective officers, directors, employees and agents.

Internal Revenue Code :  The Internal Revenue Code of 1986 or any successor legislation thereto, and the rules and regulations issued or promulgated thereunder, including any amendments to any of the foregoing.

Inspecting Engineer :  Shall mean such Person as the Bank may designate from time to time to inspect the condition of the Real Estate Collateral and perform other services in connection with the Loan on behalf of the Bank.

Land :  The land described in Exhibit "A" to the Deed of Trust.

Lease :  Any lease or sublease for any portion of the Building, or any other agreement creating a right to use any portion of the Real Estate Collateral entered into from time to time, and all exhibits, schedules, extensions, renewals, amendments, substitutions and replacements to and of any of the foregoing, together, collectively the “ Leases ”.

Letter of Credit :  Shall mean an irrevocable, unconditional, transferable, clean sight draft letter of credit reasonably acceptable to Bank (either an evergreen letter of credit or one which  does not expire until at least thirty (30) Business Days after the Maturity Date) in favor of Bank and entitling Bank to draw  thereon, issued by a domestic Eligible Institution or the U.S. agency or branch of a foreign Eligible Institution.  If at any time the institution issuing any such  Letter of Credit shall cease to be an Eligible Institution, Bank shall have the right immediately to draw down the same in full and hold the proceeds of such draw in accordance with the applicable provisions hereof.

Loan :  Shall have the meaning set forth in the preamble hereto.

Loan Account : The loan account referred to in Section 2.4.

Loan Amount : The lesser of (i) $40,000,000, or (ii) the amount determined based on a 75% Loan to Value Ratio.

Loan Documents :  Any of this Agreement, the Note, all Security Documents, the Environmental Indemnity Agreement, any non-disturbance agreements requested  by the Bank from time to time, any written authorization to transfer funds, and all other documents and instruments executed and delivered from time to time by any Loan Party to govern, evidence, perform or secure the Obligations, including any Rate Management Agreement entered into by and between the Bank and the Borrower in connection with the Loan, and all extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Loan Party :  The Borrower and Guarantor.

Loan Parties :  Shall mean collectively the Borrower and the Guarantor.

Lockbox Account :  The U.S. post office lockbox and related deposit account established pursuant to Section 4.7(b)(ii) by the Borrower at the Bank for deposit of all rental and other payments due to the Borrower in connection with the operation and leasing of the Real Estate Collateral in accordance with Section 4.7 hereof.

Lockbox Agreement :  The Lockbox Service Agreement executed by the Borrower pursuant to Section 4.7(b)(ii), together with all extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Management Agreement :  The Management Agreement entered into by and among the Borrower, the Property Manager and the Guarantor in effect as of the Closing Date for the Real Estate Collateral.

Material Adverse Change :  Any set of circumstances or events which (i) has or could reasonably be expected to have any material adverse effect whatsoever upon the validity or enforceability of any of the Loan Documents, (ii) is or could reasonably be expected to be material and adverse to the business, properties, assets, financial condition, results of operations of the Borrower, (iii) impairs materially or could reasonably be expected to impair materially the ability of any Loan Party to duly and punctually pay or perform the Obligations or any of their obligations pursuant to any Loan Documents to which it is a party, or (iv)  impairs materially or could reasonably be expected to impair materially the ability of the Bank to enforce the Bank's legal remedies pursuant to the Loan Documents.

Material Adverse Effect :  An effect that results in or causes or has a reasonable likelihood of resulting in or causing a Material Adverse Change.

Maturity Date :  October 13, 2011, or if such date is not a Business Day, the next preceding Business Day, as the same may be extended pursuant to the terms of Section 2.5.

Morgantown Commons shall mean the Morgantown Commons retail complex, the legal description for which is set forth in Schedule 1.1 hereto.

Net Operating Income   shall mean Operating Income from the Real Estate Collateral less Operating Expenses for the Real Estate Collateral.

Note :  The term note in the principal amount of $40,000,000 executed by the Borrower in connection herewith and delivered to the Bank to evidence the Loan, together with all extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Obligations :  Collectively, (i) all unpaid principal and accrued and unpaid interest (including interest calculated at the Default Rate and interest accruing after the date of commencement of any case or proceeding of the type described in Section 7.1c, whether or not the Bank's claim for such interest is allowed in such case or proceeding) under the Loan and the Note, (ii) all accrued and unpaid fees hereunder or any of the other Loan Documents, (iii) any other amounts due hereunder and under any of the other Loan Documents, including all reimbursements, indemnities, fees, costs, expenses, prepayment premiums (if any) and other obligations of the Borrower to the Bank or any Indemnified Person hereunder or under any of the other Loan Documents, (iv) all reasonable out-of-pocket costs and expenses incurred by the Bank in connection with this Agreement and the other Loan Documents, including but not limited to the reasonable fees and expenses of the Bank's counsel, and (v) any Rate Management Obligations with the Bank.

Operating Expenses   shall mean the expenses incurred by Borrower with respect to the ownership, operation, leasing and occupancy of, or otherwise associated with, the Real Estate Collateral in the normal course of business, determined in accordance with generally accepted accounting principles ("GAAP") applied on a consistent basis, including, but not limited to, the following:

(a)        personal property and real estate taxes;

(b)       sales taxes or any tax on rents;

(c)        payroll taxes and employee benefits;

(d)        costs of utilities;

(e)        maintenance, repair and custodial costs;

(f)         premiums payable for insurance;

(g)        office supplies, other administrative expenses and professional fees;

 

(h)        advertising and marketing;

(i)          telephone;

(j)          garbage;

(k)         landscaping;

(l)          an allowance for income items which are determined to be uncollectible;

(m)        any compensation or fees paid to managing agents under the Management Agreement; and

(n)         payments made to the reserve account as required by the Deed of Trust.

Notwithstanding anything contained herein, Operating Expenses shall not include:

(o)         expenses incurred in preparing space for occupancy by tenants;

(p)         foreign, U.S., state and local income taxes, franchise taxes or other taxes based on income;

(q)         depreciation, amortization and any other non-cash deduction of Borrower for income tax purposes;

(r)          payments of principal or interest on or fees or other charges related to any loan made to Borrower, including, without limitation, the Loan;

(s)          except as set forth in the Management Agreement, any compensation or fees paid to leasing agents, brokers or other third parties, whether or not affiliates of Borrower;

(t)           any improvements of a capital nature (as determined in accordance with generally-accepted accounting principles); and

(u)          any expenses paid out of any reserve account, as to which the deposit in such reserve account has already been included within Operating Expenses.

Operating Income   shall mean all gross income, revenues and consideration of whatever nature, received by or paid to or for the account or benefit of Borrower, whether received by Borrower or any of its agents, or employees, or any affiliate of Borrower, its agents or employees, from any and all sources, resulting from or attributable to the ownership, operation, leasing and occupancy of the Real Estate Collateral, determined in accordance with GAAP applied on a consistent basis, including, but not limited to, any and all of the following:

(a)      gross, fixed, minimum, guaranteed, percentage and other additional rentals payable by lessees, assignees or subtenants under any Leases and all other tenants or occupants of the Real Estate Collateral (collectively, the "Leases") under any Leases and occupancy agreements, and all amendments, extensions and renewals thereof, covering any portion of the Real Estate Collateral;

(b)      amounts payable by Lessees on account of maintenance or service charges, taxes, assessments, utilities, air conditioning and heating, and other administrative, management, operating, leasing and maintenance expenses for the Real Estate Collateral;

(c)      late charges and interest payable on rentals;

(d)      rents and receipts from licenses, concessions, vending machines and similar items;

(e)       other fees, charges or payments not denominated as rental but payable in connection with the rental or other occupancy of space in the Real Estate Collateral;

(f)        payments made as consideration in whole or in part for the cancellation, modification, extension or renewal of Leases; and

(g)       proceeds of any rental or business interruption insurance.

Outlots :   Those portions of the Real Estate Collateral identified on Schedule 1.2 hereto.

Permitted Encumbrance : Any of the following:

(i)         As of the Closing Date:

(A)       the Bank's Lien;

(B)        Matters shown on Schedule B to the Title Policy which have been determined by the Bank to be acceptable; and

(C)        Matters shown on Schedule 3.10a hereto.

(D)        Matters set forth in that certain Declaration of Access, Sanitary Sewer, Storm Water and Sign Easements executed and recorded by the Borrower contemporaneously herewith.

(ii)         After the Closing Date:

(A)        The matters listed in item (i) above;

(B)         Liens on any of the Collateral for taxes, assessments, governmental charges or levies (other than taxes, assessments, governmental charges or levies that are pursuant to any Environmental Law or those which are at the time due and payable) if they can thereafter be paid without penalty or are being contested in good faith by appropriate actions or proceedings diligently conducted, with respect to which the Borrower has set aside adequate reserves in accordance with GAAP, and which do not at any time exceed an aggregate Dollar amount of $150,000.00;

(C)         Pledges or deposits to secure payment of workers' compensation obligations, unemployment and other insurance, deposits or indemnities to secure public or statutory obligations or for similar purposes, and deposits or indemnities relating to utilities and otherwise customary in connection with the business of the Borrower;

(D)         Any liens arising out of a judgment or award against the Borrower, as to which enforcement has been stayed and the Borrower is prosecuting an appeal or proceeding for review in good faith by appropriate actions or proceedings diligently conducted and with respect to which the Borrower has, in the judgment of the Bank, created adequate reserves or has adequate insurance protection; provided ; however , that at no time may the aggregate Dollar amount of such judgment liens exceed $250,000.00;

(E)         Security interests in favor of lessors of personal property, which property is the subject of a true lease between such lessor and the Borrower;

(F)         Purchase money security interests in equipment, in personal property added to and affixed to the Building and vehicles;

(G)         A junior lien on the Collateral in favor of the Bank as security for other loans made by the Bank to the Borrower from time to time, and liens on assets and properties of the Borrower (other than the Collateral) in favor of the Bank to secure other Indebtedness owed by the Borrower to the Bank; and

(H)         Other Encumbrances to which the Bank has given its prior written consent;

provided , however , that no Encumbrance described in items (ii) (B) through (G), inclusive, above shall be permitted to exist if in the Bank's reasonable judgment such Encumbrance has a Material Adverse Effect on, or threatens to have a Material Adverse Effect on, the Bank's Lien or the value of the Real Estate Collateral.

Person :  Any individual, partnership, corporation, trust, joint venture, unincorporated organization, limited liability company, Governmental Authority or other entity.

Property Restriction :  Any right-of-way, easement, deed restriction or other restriction, whether contractual or otherwise, relating to or affecting the ownership, operation or leasing of the Real Estate Collateral (other than Permitted Encumbrances).

Rate Management Agreement :  Any agreement, device or arrangement which is related to the Property, providing for payments which are related to fluctuations of interest rates, exchange rates, forward rates, or equity prices, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants, and any agreement pertaining to equity derivative transactions (e.g., equity or equity index swaps, options, caps, floors, collars and forwards), including without limitation any ISDA Master Agreement between Borrower and Bank, and any schedules, confirmations and documents and other confirming evidence between the parties confirming transactions thereunder, all whether now existing or hereafter arising, and in each case as amended, modified or supplemented from time to time.

Rate Management Obligations :  Any and all obligations of Borrower to Bank or any affiliate of the Bank, whether absolute, contingent or otherwise and howsoever and whensoever (whether now or hereafter) created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefore), under or in connection with (i) any and all Rate Management Agreements, and (ii) any and all cancellations, buy-backs, reversals, terminations or assignments of any Rate Management Agreement.

Rent Roll :   All leases on Property's rent roll that are not cancelable by the Borrower on 30 days or less notice.

Real Estate Collateral :  All of the Building, the Land, all Improvements thereon, and all other property located on or affixed to such Land.

Roof Replacement Escrow Account :  The interest bearing deposit account maintained with the Bank and funded by the Borrower in accordance with Section 4.11 hereof.

Security Agreement :  The Security Agreement and Collateral Assignment executed by the Borrower in connection herewith, together with all extensions, renewals, amendments, substitutions and replacements thereto and thereof.

Security Document :  Any of (i) the Deed of Trust, (ii) the Assignment of Leases and Rents, (iii) the Security Agreement, (iv) all additional documents and instruments entered into from time to time for the purpose of securing the Obligations, (v) any and all ancillary documents and instruments relating to any of the foregoing, such as Uniform Commercial Code financing statements, and (vi) all extensions, renewals, amendments, substitutions and replacements to and of any of the foregoing.

Settlement Statement :  The settlement statement prepared on the Closing Date by Lawyers Title Insurance Company in connection with the refinance by the Borrower of existing Indebtedness relating to the Real Estate Collateral.

SNDA/Estoppel :  Any Non-Disturbance, Attornment, Estoppel and Subordination Agreement executed by a tenant of the Building for the benefit of the Bank pursuant to which the tenant certifies to the Bank the accuracy of certain information relating to such tenant's Lease for the Building and confirms the subordination of such lease to the lien of the Deed of Trust, which must be satisfactory to the Bank.

Survey :   The ALTA/ACSM Land Title Survey of the Land prepared by Freelance Technical Associates and reviewed in connection with the Loan.

Tax and Insurance Escrow Account : The interest bearing deposit account, if any, maintained with the Bank and funded by the Borrower in accordance with Section 4.7a hereof, and the Deed of Trust.

Title Policy :  The title insurance policy issued by Lawyers Title Insurance Company, meeting the requirements of Section 6.2b(v) hereof.

UCC or Uniform Commercial Code :  The Uniform Commercial Code as enacted in the Commonwealth of Pennsylvania, in effect on the Closing Date and as amended from time to time.

1.2            Rules of Construction .  In this Agreement and the other Loan Documents (except as otherwise expressly provided or unless the context otherwise requires) (i) terms defined in the singular shall have comparable meanings when used in the plural, and vice versa, (ii) any pronoun used shall be deemed to cover all genders, (iii) the words "hereof", "herein" and "hereunder" and words of similar import shall refer to this Agreement or such other Loan Document as a whole and not to any particular provision of this Agreement or such other Loan Document, (iv) all references to particular Articles, Sections, items, clauses, exhibits and schedules are references to the Articles, Sections, items, exhibits and schedules of and to this Agreement or such other Loan Document, (v) all references to any Person shall include such Person's heirs, executors, administrators, successors and assigns, (vi) any references to any Governmental Rule shall be deemed to be a reference to such Governmental Rule as it may have been or may be amended, supplemented or replaced from time to time, (vii) all references to any Loan Document or any other agreement, contract or instrument shall be deemed to include references to any amendments, supplements, extensions, waivers, modifications and replacements thereto and thereof, (viii) the word "including" shall mean "including without limitation," (ix) accounting terms not defined shall have the meanings given them under GAAP, and (x) Article, Section and other headings used in this Agreement and the other Loan Documents are intended for convenience only and shall not affect the meaning or construction of this Agreement or such other Loan Document.

ARTICLE 2.   THE LOAN

2.1            The Loan .

2.1a          Loan to Borrower .   The Bank agrees, subject to the terms and conditions hereof and relying on the representations and warranties herein set forth, to advance an amount not to exceed the Loan Amount on the Closing Date. The Borrower shall execute and deliver to the Bank on the Closing Date a Note in the amount of $40,000,000.00 in form and substance satisfactory to the Bank to evidence the indebtedness under the Loan.

2.1b          Commitment Fee .  On the Closing Date, the Borrower shall pay to the Bank a Facility Fee in an amount equal to $400,000, or the portion of such fee not previously paid to the Bank.  The Facility Fee shall be fully earned when paid and shall be nonrefundable, regardless of the amount of the Loan advanced or any subsequent prepayment of the Loan.

2.2            Payments and Prepayments .

2.2a          Payments of Principal and Interest .  Payments of principal and interest hereunder shall be calculated and made in accordance with the Note.

2.2b          Prepayments .   Upon two (2) Business Days' prior written notice to Bank, the Borrower may prepay amounts owing under the Note at any time and from time to time.  Such prepayment notice shall specify the amount of the prepayment which is to be applied.  In the event of prepayment, in addition to any payments on early termination due in connection with any applicable Rate Management Agreement entered into in connection with the Loan, the Borrower may be required to pay Bank an additional fee (" Prepayment Charge "), determined in the manner provided in Section 2.2c below, to compensate the Bank for all losses, costs, and expenses incurred in connection with such prepayment.

2.2c          Prepayment Charge .   The Borrower agrees to indemnify the Bank against any liabilities, losses or expenses (including, without limitation, any loss or expense sustained or incurred in liquidating or employing deposits from third parties, and any loss or expense incurred in connection with funds acquired to effect, fund or maintain any amounts hereunder (or any part thereof) bearing interest based on LIBOR) which the Bank sustains or incurs as a consequence of either (i) the Borrower’s failure to make a payment on the due date thereof, or (ii) the Borrower’s payment or prepayment (whether voluntary, after acceleration of the maturity of this Note or otherwise) or conversion of any amounts bearing interest based on LIBOR on a day other than the regularly scheduled due date therefor.  A notice as to any amounts payable pursuant to this paragraph,   the Prepayment Charge, given to the Borrower by the Bank shall, in the absence of manifest error, be conclusive and shall be payable upon demand. The Borrower’s indemnification obligations hereunder shall survive the payment in full of all amounts payable hereunder.

Partial prepayments may be made subject to a prepayment charge based upon the same calculation methodology described above.  Any partial prepayment shall be applied to installments of principal in the inverse order of maturity and shall not postpone the due dates of, or relieve the amount of, any scheduled installment payments due hereunder.

2.3           Method of Payments .  All payments of principal, interest, fees, costs and other amounts due hereunder and under the other Loan Documents shall be made by the Borrower to the Bank at the Bank's main office at Philadelphia and Sixth Streets, Indiana, Pennsylvania 15701, or at such other address as is provided by the Bank to the Borrower, not later than 3:00 p.m. (Eastern time) on the due date.

2.4           Loan Account .  The Bank shall open and maintain on its books a Loan Account in the Borrower's name with respect to disbursements made, repayments, prepayments, the computation and payment of interest, the Facility Fee, any other fees and other amounts due and sums paid to the Bank hereunder and under the other Loan Documents.  Such Loan Account shall be conclusive and binding on the Borrower as to the amount at any time due to the Bank from the Borrower except in the case of manifest error in computation.

2.5           Extension Period .  At the request of the Borrower, the Maturity Date hereunder may be extended twice, each time for a period of twelve (12) months (each, an " Extension Period ") provided the Borrower provides the Bank written notice of its intention to seek each Extension Period at least ninety (90) days and no more than one hundred eighty (180) days prior to the then current Maturity Date.  Any such extension shall be specifically conditioned upon the satisfaction of the following, each as of the date of a request (each an " Extension Request Date ") as well as the then applicable Maturity Date:

2.6           Yield Protection; Changes in Law .   If any Law or the interpretation or application thereof by any Governmental Authority charged with the administration thereof or the compliance with any guideline or request from any central bank or other Governmental Authority, whether or not having the force of law:  (i)  subjects the Bank to any tax, levy, impost, charge, fee, duty, deduction or withholding of any kind hereunder (other than any tax imposed or based upon the income of the Bank and payable to any Governmental Authority or taxing authority of the United States of America or any state thereof) or changes the basis of taxation of the Bank with respect to payments by the Borrower of principal, interest or other amounts due from the Borrower hereunder (other than any change which affects, and only to the extent that it affects, the taxation by the United States or any state thereof of the total net income of the Bank); or (ii)  imposes, modifies or deems applicable any reserve, special deposit or similar requirements against assets held by, deposits with or for the account of or credit extended by the Bank; or (iii) imposes upon the Bank any other obligation or condition with respect to this Agreement, and the result of any of the foregoing is to increase the cost to the Bank, reduce the income receivable by the Bank or impose any expenses upon the Bank with respect to the Loans by an amount which the Bank reasonably deems material, then and in any such case, the Bank shall from time to time notify the Borrower of the amount determined by the Bank (which determination, absent manifest error, shall be conclusive) to be reasonably necessary to compensate the Bank (on an after-tax basis) for such increase in cost, reduction in income, reduction in rate of return or additional expenses, setting forth the calculations therefor, and the Borrower shall pay such amount to the Bank, as additional consideration hereunder, within ten (10) Business Days of the Borrower's receipt of such notice.

2.7           Capital Adequacy .   If: (i) any adoption of or any change in or in the interpretation of any Law, (ii) compliance with any Law of any Governmental Authority exercising control over banks or financial institutions generally or any court (whether or not having the force of law), or (iii) any change in the force or effectiveness of the regulations set forth at 12 C.F.R. Part 3 (Appendix A), 12 C.F.R. Part 208 (Appendix A), 12 C.F.R. Part 225 (Appendix A) or 12 C.F.R. Part 325 (Appendix A) affects or would affect the amount of capital required or expected to be maintained by the Bank (a "Capital Adequacy Event"), and the result of such Capital Adequacy Event is to reduce the rate of return on the Bank's capital as a consequence thereof to a level below that which the Bank could have achieved but for such Capital Adequacy Event, taking into consideration the Bank's policies with respect to capital adequacy, by an amount which the Bank deems to be material, the Bank shall deliver to the Borrower a statement of the amount necessary to compensate the Bank for the reduction in the rate of return on its capital attributable to the Loans and the commitment hereunder (the "Capital Compensation Amount").  The Bank shall determine the Capital Compensation Amount in good faith, using reasonable attribution and averaging methods.  Such amount shall be due and payable by the Borrower to the Bank ten (10) Business Days after such notice is given by the Bank.

The above Sections 2.6 and 2.7 shall only be effective as to the Borrower and this Loan if they (or substantially similar provisions) are being applied by the Bank in a generally uniform manner and are not particular to the Borrower hereunder.  Nothing in these two Sections is intended to otherwise restrict or limit the Borrower's ability to prepay the Loan or impose any prepayment penalty in connection therewith.

ARTICLE 3.   REPRESENTATIONS AND WARRANTIES

To induce the Bank to enter into the Loan Documents and to make the Loan, the Borrower makes the following representations and warranties to the Bank:

3.1          Existence .  The Borrower is a limited partnership duly organized and validly existing under the laws of the State of Ohio.  The Borrower is duly qualified or licensed and in good standing in the State of Ohio and in each jurisdiction where the nature of its activities or the ownership of its properties makes such qualification or licensing necessary.

3.2          Equity Ownership .   An organization chart accurately depicting the ownership and management structure of the Borrower is attached to this Agreement as Schedule 3.2 .

3.3          Power and Authority.   The Borrower has the full and lawful power and authority to, and is duly authorized to, (i) enter into, execute, deliver and perform in accordance with the terms of the Loan Documents to which it is a party, (ii) to incur the Obligations and perform all of its obligations under the Loan Documents to which it is a party, (iii) acquire, own, lease, encumber, occupy and manage its properties, including the Real Estate Collateral, and (iv) engage in the business it now conducts or proposes to conduct.  All necessary action required to authorize the execution, delivery and performance of the Loan Documents to which the Borrower is a party and the incurrence of the Obligations has been properly taken by the Borrower.

3.4          Validity and Binding Effect.   The Loan Documents to which the Borrower is a party have been duly executed and delivered by the Borrower, and constitute legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors' rights generally and except as such enforceability may be limited by the availability of equitable remedies.

3.5          No Conflict or Violation.   Neither the execution and delivery of the Loan Documents to which the Borrower is a party, nor the incurrence of the Obligations, the consummation of the transactions contemplated by the Loan Documents or compliance with the terms and provisions of the Loan Documents will conflict with, constitute a default under or result in any breach of (i) the terms and conditions of the Borrower's limited partnership certificate, agreement of limited partnership or other organizational, formation documents, (ii) any Governmental Rule, Governmental Approval or Property Restriction, or (iii) any indenture, mortgage, deed of trust, franchise, contract, permit, agreement, instrument, order, writ, judgment, injunction or decree to which the Borrower is a party or by which it is bound or is subject, or will result in the creation or enforcement of any Encumbrance whatsoever upon any of the Borrower's properties, including the Collateral, whether now owned or hereafter acquired, except for Permitted Encumbrances, nor are there any defaults or violations by the Borrower of or under any of the foregoing.

3.6          Liabilities .   The Borrower has no material liabilities, whether direct or indirect, fixed or contingent, or any liabilities for taxes (other than those incurred in the ordinary course of business and not past due), long-term leases or unusual forward or long-term commitments, which in each case have not been disclosed to the Bank in writing.

3.7          Material Adverse Change; Events of Default; Violations .  Since [ January 31, 2008 ] , there has been no Material Adverse Change and there have been no events or developments that individually or in the aggregate have had a Material Adverse Effect.  No Default or Event of Default has occurred and is continuing and no condition exists or will exist after giving effect to the Loan which constitutes a Default or an Event of Default.

3.8          Litigation .  There are no actions, suits, proceedings or investigations, at law or in equity, before any Governmental Authority, court or arbitrator, pending or, to the best of the Borrower's knowledge, threatened (i) against or with respect to the Borrower, the General Partner, or the Real Estate Collateral, and (ii) which purport to affect the rights and remedies of the Bank pursuant to the Loan Documents or which purport to restrain or enjoin (either temporarily, preliminarily or permanently) the performance by any Loan Party of any action contemplated by any of the Loan Documents.  All pending, or, to the Borrower's knowledge, threatened, litigation that is not adequately covered by liability insurance, is listed in Schedule 3.8 .

3.9          Compliance with Laws .  The Borrower, a third party, or a predecessor in interest of the Borrower, has duly complied with, and the Real Estate Collateral, business operations and leaseholds are in compliance in all material respects with the provisions of all Governmental Rules, Governmental Approvals and Property Restrictions applicable to the Borrower and its properties (including the Real Estate Collateral) and the conduct of its businesses.

3.10        Matters Relating to the Collateral .

3.10a      Title .  The Borrower owns good and indefeasible fee simple title to the Collateral.  As of the effective date hereof, none of the Collateral is subject to any Encumbrance, except for Permitted Encumbrances, including those listed on Schedule 3.10a .  The Borrower has received all deeds, assignments, waivers, consents, non-disturbance and recognition or similar agreements, bills of sale and other documents and instruments, have been granted all easements and rights-of-way, and have duly effected all recordings, filings and other actions necessary to establish, protect and perfect the Borrower's right, title and interest in and to all of the Collateral.

3.10b      No Options, Etc .   Except for Leases of the Property in the ordinary course of business, the Borrower is not obligated under or a party to any option, right of first refusal or other contractual obligation to sell, assign, lease or dispose of any of the Property or the Collateral.

3.10c      Condemnation Proceedings .  The Borrower has not received any notice of and has no knowledge of any pending, or threatened in writing condemnation proceeding affecting the Real Estate Collateral or any part thereof.

3.10d      Casualty Loss .  No portion of the Property has suffered any material damage by fire or other casualty loss except for those (i) of which the Borrower has given the Bank notice and (ii) as to which the Property has been completely repaired and restored to its original condition.

3.10e      Use of Property .   The present and anticipated use of the Property complies with all applicable zoning ordinances, regulations and restrictive covenants affecting the Land, and all other Governmental Rules, Governmental Approvals and Property Restrictions with respect to such current and anticipated use have been satisfied.

3.10f       Utilities and Municipal Services .  All utility and municipal services necessary for the construction, operation and leasing of the Building and the Improvements and the use and operation thereof for their present and intended purpose are available at the Property, including water, sanitary and storm sewer, electric, gas and telephone facilities, and shall, by the Completion Date, be installed and operating.  All such utilities enter the Land through adjoining public streets or, if any pass through adjoining private lands, they do so