EXHIBIT
10.28














CONSTRUCTION,
ACQUISITION


AND
INTERIM LOAN AGREEMENT





DATED
AS OF NOVEMBER 30, 2007





AMONG





KIERLAND
CROSSING, LLC


AS
BORROWER





AND





KEYBANK
NATIONAL ASSOCIATION


AS
ADMINISTRATIVE AGENT





AND





KEYBANC
CAPITAL MARKETS


AS
LEAD ARRANGER AND BOOK MANAGER





AND





EUROHYPO
AG, NEW YORK BRANCH


AS
SYNDICATION AGENT





AND





THE
HUNTINGTON NATIONAL BANK


AS
DOCUMENTATION AGENT





AND





THE
SEVERAL LENDERS


FROM
TIME TO TIME PARTIES HERETO,


AS
LENDERS







TABLE
OF
CONTENTS




PageARTICLE
      1 DEFINITIONS AND ACCOUNTING TERMS
              21.1
              Defined
      Terms
              21.2
              Use
      of Defined Terms
              201.3
              Accounting
      Terms
              201.4
              Exhibits
      and Schedules
              201.5
              Miscellaneous
      Terms
              20ARTICLE
      2 LOANS
              202.1
              Agreement
      to Borrow and Lend
              202.2
              Alternate
      Base Rate Loans
              222.3
              LIBOR
      Rate Loans
              222.4
              Administrative
      Agent's Right to Assume Funds Available for Loans
              222.5
              Loan
      Documents
              232.6
              Extension
      of Maturity Date
              242.7
              Wolff
      Transaction
              25ARTICLE
      3 PAYMENTS AND FEES
              253.1
              Principal
      and Interest
              253.2
              Agent's
      Fees
              263.3
              Yield
      Protection
              263.4
              Changes
      in Capital Adequacy Regulations
              273.5
              Availability
      of Types of Advances
              273.6
              Funding
      Indemnification
              283.7
              Late
      Payments
              283.8
              Computation
      of Interest and Fees
              283.9
              Non
      Banking Days
              283.10
              Manner
      and Treatment of Payments
              293.11
              Lender
      Statements; Survival of Indemnity
              313.12
              Administrative
      Agent's Right to Assume Payments Will be Made by Borrower
              31ARTICLE
      4 REPRESENTATIONS AND WARRANTIES
              324.1
              Existence
      and Qualification; Power; Compliance With Laws
              324.2
              Authority;
      Compliance With Other Agreements and Instruments and Government
      Regulations
              324.3
              No
      Governmental Approvals Required
              334.4
              Financial
      Statements
              334.5
              No
      Other Liabilities
              334.6
              Intangible
      Assets
              334.7
              Litigation
              334.8
              Binding
      Obligations
              334.9
              No
      Default
              334.10
              ERISA
              344.11
              Regulations
      T, U and X; Investment Company Act
              344.12
              Disclosure
              344.13
              Tax
      Liability
              34
  i
 4.14
              Hazardous
      Materials
              344.15
              Ownership
      Rights
              354.16
              Governmental
      Project Matters
              354.17
              Brokers
              354.18
              Other
      Debt
              354.19
              Solvency
              354.20
              No
      Fraudulent Intent
              354.21
              No
      Bankruptcy Filing
              364.22
              OFAC
      Representation
              364.23
              Project-Related
      Representations
              364.24
              Survival
      of Representations and Warranties
              38ARTICLE
      5 LOAN EXPENSE AND ADVANCES
              395.1
              Loan
      and Administration Expenses
              395.2
              Upfront
      Fees
              395.3
              Administrative
      Agent's Attorneys' Fees and Disbursements
              395.4
              Time
      of Payment of Fees and Expenses
              395.5
              Expenses
      and Advances Secured by Loan Documents
              395.6
              Right
      of Lenders to Make Advances to Cure Borrower's Defaults
              40ARTICLE
      6 NON-CONSTRUCTION REQUIREMENTS PRECEDENT TO THE  EFFECTIVENESS
      OF THIS AGREEMENT AND SUBSEQUENT DISBURSEMENTS
              406.1
              Non-Construction
      Conditions Precedent to Effectiveness of the Agreement
              406.2
              Non-Construction
      Conditions Precedent to Loan Opening
              426.3
              Non-Construction
      Conditions Precedent to Subsequent Disbursements
              43ARTICLE
      7 CONSTRUCTION REQUIREMENTS PRECEDENT TO THE OPENING OF THE
      LOAN
              437.1
              Required
      Construction Documents
              43ARTICLE
      8 BUDGET AND CONTINGENCY FUND
              458.1
              Budget
              458.2
              Budget
      Line Items
              458.3
              Contingency
      Fund
              458.4
              Optional
      Method for Payment of Interest
              46ARTICLE
      9 SUFFICIENCY OF LOAN
              469.1
              Loan
      In Balance
              46ARTICLE
      10 CONSTRUCTION PAYOUT REQUIREMENTS
              4710.1
              Applicability
      of Sections
              4710.2
              Monthly
      Payouts
              4710.3
              Documents
      to be Furnished for Each Disbursement
              4710.4
              Retainages
              4810.5
              Disbursements
      for Materials Stored On-Site
              4810.6
              Disbursements
      for Offsite Materials
              4910.7
              Disbursements
      For Tenant Work and Allowances
              4910.8
              Disbursement
      of the Developer's Fee
              49ARTICLE
      11 FINAL DISBURSEMENT FOR CONSTRUCTION
              5011.1
              Final
      Disbursement for Construction
              50
  ii
 ARTICLE
      12 AFFIRMATIVE COVENANTS OTHER THAN INFORMATION AND REPORTING
      REQUIREMENTS
              5112.1
              Payment
      of Taxes and Other Potential Liens
              5112.2
              Preservation
      of Existence
              5112.3
              Maintenance
      of the Project
              5112.4
              Maintenance
      of Insurance
              5112.5
              Compliance
      With Laws
              5212.6
              Single
      Purpose Entity
              5212.7
              Keeping
      of Records and Books of Account
              5212.8
              Compliance
      With Agreements
              5212.9
              Use
      of Proceeds
              5212.10
              Hazardous
      Materials Laws
              5212.11
              Inspection
      of Project
              5212.12
              Construction
      of Improvements
              5312.13
              Correction
      of Defects
              5312.14
              Inspection
      by the Administrative Agent
              5312.15
              Furnishing
      Notices
              5312.16
              Furnishing
      Reports
              5412.17
              Indemnification
              54ARTICLE
      13 NEGATIVE COVENANTS
              5413.1
              Single
      Asset Entity; Compliance With Laws
              5413.2
              Limitation
      on Distributions
              5513.3
              Affiliate
      Agreements
              5513.4
              Secondary
      Financing
              5513.5
              Liens
              5613.6
              Formation
      Documents
              5613.7
              Restrictions
      on Transfer
              5613.8
              Changes
      in Plans and Specifications
              5713.9
              Changes
      in Ground Lease
              5713.10
              Changes
      in Phase III Purchase Agreement
              5713.11
              Leasing
      Guidelines
              5713.12
              Defaults
      Under Leases
              5713.13
              Management
      and Leasing Contracts
              5813.14
              Construction
      Contracts
              5813.15
              Continued
      Glimcher Management
              58ARTICLE
      14 CASUALTIES AND CONDEMNATION
              5814.1
              Lenders'
      Election to Apply Proceeds on Indebtedness
              5814.2
              Borrower's
      Obligation to Rebuild and Use of Proceeds Therefor
              59ARTICLE
      15 INFORMATION AND REPORTING REQUIREMENTS
              6015.1
              Financial
      and Business Information
              6015.2
              Appraisals
              61ARTICLE
      16 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
              6116.1
              Events
      of Default
              6116.2
              Remedies
      Upon Event of Default
              63ARTICLE
      17 THE ADMINISTRATIVE AGENT
              6517.1
              Appointment
      and Authorization
              65
  iii
 17.2
              Administrative
      Agent and Affiliates
              6517.3
              Proportionate
      Interest in any Collateral
              6517.4
              Lenders'
      Credit Decisions
              6517.5
              Action
      by Administrative Agent
              6617.6
              Liability
      of Administrative Agent
              6717.7
              Indemnification
              6817.8
              Successor
      Administrative Agent
              6817.9
              No
      Obligations of Borrower
              6917.10
              Additional
      Agents
              69ARTICLE
      18 MISCELLANEOUS
              6918.1
              Cumulative
      Remedies; No Waiver
              6918.2
              Costs,
      Expenses and Taxes
              6918.3
              Nature
      of Lenders' Obligations
              7018.4
              Survival
      of Representations and Warranties
              7018.5
              Notices
              7118.6
              Execution
      of Loan Documents
              7118.7
              Binding
      Effect; Assignment
              7118.8
              Right
      of Setoff
              7418.9
              Sharing
      of Setoffs
              7418.10
              Indemnity
      by Borrower
              7418.11
              Nonliability
      of the Lenders
              7518.12
              No
      Third Parties Benefited
              7618.13
              Confidentiality
              7618.14
              Further
      Assurances
              7918.15
              Integration
              7918.16
              Governing
      Law
              7918.17
              Severability
      of Provisions
              7918.18
              Headings
              7918.19
              Time
      of the Essence
              7918.20
              [Intentionally
      Omitted]
              7918.21
              Removal
      of a Lender
              7918.22
              WAIVER
      OF RIGHT TO TRIAL BY JURY
              8018.23
              PURPORTED
      ORAL AMENDMENTS
              8018.24
              Sign
      and Publicity
              8018.25
              Replacement
      of Notes
              8018.26
              Defaulting
      Lenders
              80ARTICLE
      19 AMENDMENTS; CONSENTS
              8219.1
              Amendments;
      Consents
              82




iv


EXHIBITS





A-1
              Legal
      Description of Phase I/Phase II
Land


A-2
            Legal
      Description of Phase III Parcels


A-3
            Site
      Plan of Phase I


A-4
            Site
      Plan of Full Project


B
            Commitments
      Assignments and Acceptance - Assignment and Acceptance
      Agreement


C
            Compliance
      Certificate


D
            Note


E
            Permitted
      Exceptions


F
            Insurance
      Requirements


G
            Initial
      Budget


H
            Borrower’s
      Certificate


I
            Soft
      and Hard Cost Requisition Form





SCHEDULES





1.1
            Loan
      Commitment Schedule


4.7
            Lititgation
      and Judgments


4.15
            Hazardous
      Material Disclosure





v


CONSTRUCTION, ACQUISITION
AND INTERIM LOAN AGREEMENT




This
CONSTRUCTION, ACQUISITION AND INTERIM LOAN AGREEMENT is entered into as of
November 30, 2007 (the “Agreement Effective
Date”) by and among KIERLAND CROSSING, LLC, a Delaware limited liability
company (“Borrower”), KEYBANK
NATIONAL ASSOCIATION, a national banking association, and each lender which is a
signatory hereto or which may hereafter become a party to this Agreement
pursuant to Section 18.7
(collectively, together with KeyBank National Association, the “Lenders” and,
individually, a “Lender”) and KEYBANK
NATIONAL ASSOCIATION, not individually but as Administrative Agent.




RECITALS




WHEREAS,
Borrower has previously acquired a leasehold interest in that certain parcel of
land located in the City of Scottsdale, in County of Maricopa County, Arizona,
legally described in Exhibit A-1
attached hereto (such leasehold interest, the “Phase I/Phase II
Land”) and desires to construct on the Phase I/Phase II Land the first
two phases of a three phase, approximately 619,000 square foot lifestyle retail
and office center to be known as “Scottsdale Crossing”.  The first
phase of the Project is planned to include approximately 133,000 square feet of
retail space, approximately 141,000 square feet of office space and two parking
decks providing in the aggregate not less than 2350 parking spaces (“Phase I”). The second
phase of the Project is planned to include approximately 200,000 square feet of
retail space (including the theater) and approximately 76,000 square feet of
office space (“Phase
II”).  The improvements to be constructed on the Phase I/Phase
II Land are referred to herein as the “Improvements”;




WHEREAS,
Borrower has previously entered in that certain Purchase Agreement and Escrow
Instructions with Kierland Crossing Residential, LLC, an Arizona limited
liability company dated effective as of May 12, 2006 (as amended, the “Phase III Purchase
Agreement”) to acquire upon completion a condominium unit containing
approximately 70,000 square foot (or more) of retail space in the third phase of
the Project (collectively, the “Phase III Retail
Unit”), which is to be located on three contiguous parcels of land,
comprising in the aggregate 8.994 acres, adjoining the Phase I/Phase II Land,
legally described in Exhibit
A-2 attached hereto (the “Phase III Parcels”).
The location and anticipated configuration of Phase I is shown on the site plan
attached hereto as Exhibit
A-3 and made a part hereof.  The location and anticipated
configuration of Phases I and II, and the Phase III Retail Unit, are shown on
the overall site plan attached hereto as Exhibit
A-4 and made a part hereof;




WHEREAS,
Borrower has requested a loan to finance the construction of the Improvements,
the acquisition of the Phase III Retail Unit and the construction and
installation of certain other improvements thereon and KeyBank and the Lenders
are prepared to make such a loan available on the terms and conditions stated
herein.




NOW,
THEREFORE, in consideration of the recitals herein and the mutual covenants
contained herein, the parties hereto hereby agree as follows:







ARTICLE
1




DEFINITIONS
AND ACCOUNTING TERMS




1.1           Defined
Terms .  As
used in this Agreement, the following terms shall have the meanings set forth
below:




“Actual DSCR” means,
as of any date, the ratio of (a) the then-current actual NOI for the Project for
the most recent fiscal quarter for which NOI has been reported to the
Administrative Agent multiplied by four (4) to (b) the then-current Implied
Annual Debt Service.




“Administrative Agent”
means KeyBank, when acting in its capacity as the Administrative Agent under any
of the Loan Documents, or any successor Administrative Agent appointed pursuant
to the terms hereof.




“Administrative Agent’s
Office” means the Administrative Agent’s office located at
127 Public Square, Cleveland, Ohio 44114, or such other office as the
Administrative Agent hereafter may designate by written notice to Borrower and
the Lenders.




“Advance” means that
portion of any Loan funded by a single Lender.




“Affiliate” means, as
to any Person, any other Person which directly or indirectly controls, or is
under common control with, or is controlled by, such Person.  As used
in this definition, “control” (and the correlative terms, “controlled by” and
“under common control with”) shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise); provided that, in any
event, any Person which owns, directly or indirectly, 10% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation, or 10% or more of the partnership or other
ownership interests of any other Person, will be deemed to be an Affiliate of
such corporation, partnership or other Person.




“Affiliate Agreements”
means those development, leasing, management or other service agreements which
Borrower may from time to time enter into in connection with the Project with
any Affiliate of Borrower or its Members.




“Agreement” means this
Construction, Acquisition and Interim Loan Agreement, either as originally
executed or as it may from time to time be extended, supplemented, consolidated,
amended, restated, increased, renewed or modified.




“Alternate Base Rate”
means, as of any date of determination, the rate per annum equal to the higher
of (a) the Prime Rate in effect on such date and (b) the Federal Funds
Effective Rate in effect on such date plus one-half of 1% (50 basis points)
plus, in either case, the Applicable Margin.




“Alternate Base Rate
Advance” means an Advance made hereunder and specified to be an Alternate
Base Rate Advance in accordance with Article 2.




-2-


“Alternate Base Rate
Loan” means a Loan made hereunder and specified to be an Alternate Base
Rate Loan in accordance with Article 2.




“Applicable Laws”
shall have the meaning ascribed to such term in Section
4.23(c).




“Applicable Margin”
means (i) one and one half of one percent (1.50%) per annum with respect to
LIBOR Rate Loans and (ii) zero with respect to Alternate Base Rate Loans,
provided that the Applicable Margin with respect to LIBOR Rate Loans under
clause (i) shall be reduced to one and thirty hundredths of one percent (1.30%)
once the Pro Forma DSCR equals or exceeds 1.00 to 1.  The effective
date of any such reduction in the Applicable Margin with respect to LIBOR Rate
Loans shall be established by the Administrative Agent, at the request of
Borrower, promptly after the Administrative Agent has received satisfactory
evidence that the required Pro Forma DSCR has been achieved.




“Appraisal” shall mean
an MAI certified appraisal of the Project performed in accordance with FIRREA
and Administrative Agent’s appraisal requirements by National Valuation
Consultants (with respect to the initial Appraisal) or such other appraiser as
may be selected and retained by Administrative Agent.




“Architect” shall mean
Nelsen Partners, Inc.




“Banking Day” means
(i) with respect to any borrowing, payment or rate selection of LIBOR Rate
Advances, a day (other than a Saturday or Sunday) on which banks generally are
open in Cleveland, Ohio and New York, New York for the conduct of substantially
all of their commercial lending activities and on which dealings in Dollars are
carried on in the London interbank market and (ii) for all other purposes, a day
(other than a Saturday or Sunday) on which banks generally are open in
Cleveland, Ohio, and New York, New York for the conduct of substantially all of
their commercial lending activities.




“Borrower’s Equity
Requirement” shall mean an amount equal to the difference between the
aggregate projected Project Costs as shown in the then-current approved Budget
as of the Loan Opening Date and the Maximum Loan Amount, which difference shall
be invested by Borrower from time to time on a pro rata basis as Loans are
disbursed so that the amount of Loans outstanding never exceeds the percentage
of such aggregate projected Project Costs represented by the Maximum Loan
Amount.




“Breakage Fee” shall
have the meaning ascribed to such term in Section
3.6.




“Budget” means the
budget for Project Costs through Stabilization as submitted by Borrower and
reasonably approved by the Administrative Agent pursuant to Section 8.1, as
it may be modified from time to time as provided herein.




“Budget Line Items”
shall have the meaning ascribed to such term in Section 8.2.




“Calculation Date”
shall mean any date on which Administrative Agent determines the Pro Forma DSCR
or the Actual DSCR.




-3-


“Calculation Period”
shall mean a twelve (12) month period commencing on a Calculation
Date.




“Capitalized Lease” of
a Person means any lease of Property imposing obligations on such Person, as
lessee thereunder, which are required in accordance with GAAP to be capitalized
on a balance sheet of such Person.




“Capitalized Lease
Obligations” of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a balance
sheet of such Person prepared in accordance with GAAP.




“Cash
Equivalents”  means, as of any date:




(i)           securities
issued or directly and fully guaranteed or insured by the United States of
America government or any agency or instrumentality thereof having maturities of
not more than one year from such date;




(ii)           mutual
funds organized under the United States Investment Company Act of 1940, as
amended, rated AAm or AAm-G by S&P and P-1 by Moody’s;




(iii)           certificates
of deposit or other interest-bearing obligations of a bank or trust company
which is a member in good standing of the Federal Reserve System having a short
term unsecured debt rating of not less than A-1 by S&P and not less than P-1
by Moody’s (or in each case, if no bank or trust company is so rated, the
highest comparable rating then given to any bank or trust company, but in such
case only for funds invested overnight or over a weekend) provided that such
investments shall mature or be redeemable upon the option of the holders thereof
on or prior to a date one month from the date of their purchase;




(iv)           certificates
of deposit or other interest-bearing obligations of a bank or trust company
which is a member in good standing of the Federal Reserve System having a short
term unsecured debt rating of not less than A-1+ by S&P, and not less than
P-1 by Moody’s and which has a long term unsecured debt rating of not less than
A1 by Moody’s (or in each case, if no bank or trust company is so rated, the
highest comparable rating then given to any bank or trust company, but in such
case only for funds invested overnight or over a weekend) provided that such
investments shall mature or be redeemable upon the option of the holders thereof
on or prior to a date three months from the date of their purchase;




(v)           bonds
or other obligations having a short term unsecured debt rating of not less than
A-1+ by S&P and P-1+ by Moody’s and having a long term debt rating of not
less than A1 by Moody’s issued by or by authority of any state of the United
States of America, any territory or possession of the United States of America,
including the Commonwealth of Puerto Rico and agencies thereof, or any political
subdivision of any of the foregoing;




-4-


(vi)           repurchase
agreements issued by an entity rated not less than A-1+ by S&P, and not less
than P-1 by Moody’s which are secured by United States of America government
securities of the type described in clause (i) of this definition maturing on or
prior to a date one month from the date the repurchase agreement is entered
into;




(vii)           short
term promissory notes rated not less than A-1+ by S&P, and  not
less than P-1 by Moody’s maturing or to be redeemable upon the option of the
holders thereof on or prior to a date one month from the date of their purchase;
and




(viii)                      commercial
paper (having original maturities of not more than 365 days) rated at least A-1+
by S&P and P-1 by Moody’s and issued by a foreign or domestic issuer who, at
the time of the investment, has outstanding long-term unsecured debt obligations
rated at least A1 by Moody’s.




“Cash Flow Hedge”
means an interest rate swap agreement to be entered into not later than the Loan
Opening by Borrower and KeyBank which shall provide for fixed payments by
Borrower on a nominal amount of at least seventy percent (70%) of the Loan
Commitment based on a projected disbursement schedule satisfactory to the
Administrative Agent and having a term that expires on the initial Maturity Date
in exchange for payments at the LIBOR Base Rate on such nominal amount from the
counterparty thereto, and which shall be otherwise acceptable in all respects to
the Administrative Agent.




“Certificate” means a
certificate signed by a Senior Officer or Responsible Official (as applicable)
of the Person providing the certificate.




“Code” means the
Internal Revenue Code of 1986, as amended or replaced and as in effect from time
to time.




“Collateral” means all
of the property, rights and interests of Borrower in and with respect to the
Project that are subject to the security interests and Liens created by the
Security Documents.




“Commitments” means
the commitments of each of the Lenders (as initially specified in Schedule 1.1
hereto) to make Advances under this Agreement.




“Commitments Assignment and
Acceptance” means an assignment and acceptance agreement substantially in
the form of Exhibit B.




“Completion
Conditions” shall have the meaning ascribed to such term in Section 11.1.




“Completion Guaranty”
shall have the meaning ascribed to such term in Section 2.5(e).




“Condominium
Documents” means all documents that will govern the establishment and
ownership of the Phase III Retail Unit as described in the Phase III Purchase
Agreement.




“Confidential
Information” means (i) all of the terms, covenants, conditions or
agreements set forth in this Agreement or any amendments hereto and any related
agreements of whatever nature, (ii) the information and reports provided in
compliance with Articles 6 and 7
of this Agreement, (iii) any and all information provided, disclosed or
otherwise made available to the Administrative Agent and the Lenders including,
without limitation, any and all plans, maps, studies (including market studies),
reports or other data, operating expense information, as-built plans,
specifications, site plans, drawings, notes, analyses, compilations, or other
documents or materials relating to the Project or its condition or use, whether
prepared by Borrower or others, which use, or reflect, or that are based on,
derived from, or are in any way related to the foregoing, and (iv) any and
all other information of Borrower, Guarantor or Guarantor’s Subsidiaries to
which the Administrative Agent or any Lender may have access.




-5-


“Construction” or
“construction” means (i) the demolition of the existing improvements on
the Phase I/Phase II Land, (ii) the grading and related sitework required on the
Phase I/Phase II Land to accommodate the Project, (iii) the
construction and equipping of the Improvements in accordance with the Plans and
Specifications, (iv) with respect to all three (3) Phases, all Tenant Work and
related improvements and/or tenant improvement allowances required to be
performed and/or paid for by Borrower under those Leases executed from time to
time, and (v) the installation of all personal property, fixtures and
equipment required to be installed by Borrower for the operation of the
Project.




“Construction
Schedule” shall have the meaning ascribed to such term in Section 7.1(g).




“Contingency Fund”
shall have the meaning ascribed to such term in Section 8.3.




“Contractual
Obligation” means, as to any Person, any provision of any outstanding
security issued by that Person or of any material agreement, instrument or
undertaking to which that Person is a party or by which it or any of its
Property is bound.




“Control Agreement”
shall have the meaning ascribed to such term in Section
2.5(k).




“Debtor Relief Laws”
means the Bankruptcy Code of the United States of America, as amended from time
to time, and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of creditors
generally.




“Default” means any
event that, with the giving of any applicable notice or passage of time
specified in Section 16.1 or
both, would be an Event of Default.




“Default Rate” means
the interest rate prescribed in Section 3.7.




“Defaulting Lender”
means (a) any Lender that has failed to fund any Advance within
two (2) Banking Days after such funding is required pursuant to this
Agreement; or (b) any Lender that has (i) breached any other material
term or condition of this Agreement or (ii) failed to make any other
payment to the Administrative Agent (whether such payment is a reimbursement for
costs, expenses or attorneys’ fees, an indemnity payment, the repayment of
erroneously paid funds, a portion of any set-off to be turned over to the
Administrative Agent or otherwise) when such payment is due and payable under
this Agreement or any other Loan Document, if such breach or failure has not
been cured or paid within ten (10) days after notice thereof from the
Administrative Agent to such Lender.




-6-


“Deficiency Deposit”
shall have the meaning ascribed to such term in Section 9.1.




“Depository” means
Smith Barney, a division of Citigroup Global Markets Inc.




“Developer’s Fee”
shall have the meaning ascribed to such term in Section
10.8.




“Dial Corporation
Building” means the existing office building occupied by the Dial
Corporation on the Phase I/Phase II Land which is to be demolished as a part of
the Project.




“Distribution” means,
with respect to any shares of capital stock or any warrant or option to purchase
an equity security or other equity security or interest issued by a Person,
(i) the retirement, redemption, purchase or other acquisition for cash or
for Property by such Person of any such security or interest, (ii) the
payment by such Person of any dividend in cash or in Property on or with respect
to any such security or interest, (iii) any Investment by such Person in
the holder of 5% or more of any such security or interest if a purpose of such
Investment is to avoid characterization of the transaction as a Distribution or
(iv) any other payment in cash or Property by such Person constituting a
distribution under applicable Laws with respect to such security or
interest.




“Dollars” or “$” means United
States of America dollars.




“Employee Plan” means
any (a) employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to Title I of ERISA, (b) any plan (as defined in
Section 4975(e)(1) of the Code) that is subject to Section 4975 of the
Code, (c) any entity the underlying assets of which include plan assets (as
defined in 29 C.F.R. Section 2510.3-101 or otherwise under ERISA) by reason
of a plan’s investment in such entity (including an insurance company general
account), or (d) a governmental plan (as defined in Section 3(32) of
ERISA or Section 414(d) of the Code) organized in a jurisdiction within the
United States of America having prohibitions on transactions with such
governmental plan substantially similar to those contained in Section 406
of ERISA or Section 4975 of the Code.




“Engineer” means David
Evans and Associates, Inc.




“Environmental
Indemnity” shall have the meaning ascribed to such term in Section 2.5(h).




“ERISA” means the
Employee Retirement Income Security Act of 1974, and any regulations issued
pursuant thereto, as amended or replaced and as in effect from time to
time.




“ERISA Affiliate”
means each Person (whether or not incorporated) which is required to be
aggregated with Parent pursuant to Section 414 of the Code.




“Escrow Agent” means
Flagler Title Company, or such other escrow agent as may be reasonably approved
in writing by the Administrative Agent.




“Event of Default”
shall have the meaning ascribed to such term in Section 16.1.




-7-


“Excluded Taxes”
means, in the case of each Lender or applicable LIBOR Lending Office and the
Administrative Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it, by any jurisdiction with taxing authority over the
Lender.




“Extension Fee” shall
have the meaning ascribed to such term in Section 2.6




“Extension Option”
shall have the meaning ascribed to such term in Section 2.6.




“Federal Funds Effective
Rate” shall mean, for any day, the rate per annum announced by the
Federal Reserve Bank of Cleveland on such day as being the weighted average of
the rates on overnight federal funds transactions arranged by federal funds
brokers on the previous trading day, as computed and announced by such Federal
Reserve Bank in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the “Federal Funds
Effective Rate.”




“Final Completion”
shall have the meaning ascribed to such term in Section 11.1.




“First Extended Maturity
Date” shall be May 29, 2012.




“First Extension
Option” shall have the meaning ascribed to such term in Section
2.6.




“Fiscal Quarter” means
the fiscal quarter of the Glimcher Consolidated Group ending on each
March 31, June 30, September 30 and
December 31.




“Fiscal Year” means
the fiscal year of Borrower ending on each December 31.




“General Contract”
shall mean, with respect to each Phase of the Project after Phase IA, the
general contract to be entered into between Borrower and General Contractor
providing for a guaranteed maximum price and pertaining to the construction of
such Phase of the Improvements and all onsite and offsite improvements necessary
for the operation of such Phase.




“General Contract (Phase
IA)” shall mean the general contract to be entered into between Borrower
and General Contractor prior to the date of Loan Opening providing for a
guaranteed maximum price and pertaining to the construction of Phase IA of the
Improvements and all onsite and offsite improvements necessary for the operation
of Phase IA.




“General Contractor”
shall mean The Whiting-Turner Contracting Company, or such other national
construction contractor as may be approved by the Administrative
Agent.




“Generally Accepted
Accounting Principles” or “GAAP” means generally
accepted accounting principles in the United States of America as in effect from
time to time, applied in a manner consistent with that used in preparing the
financial statements referred to in Section
6.1.




“Glimcher Consolidated
Group” means the Guarantor, its general partner, Glimcher Properties
Corporation, and all Subsidiaries which are consolidated with them for financial
reporting purposes under GAAP.




-8-


“Governmental Agency”
means (a) any international, foreign, federal, state, county or municipal
government, or political subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau, commission, department,
instrumentality or public body or (c) any court or administrative tribunal,
each of competent jurisdiction.




“Governmental
Approvals” shall have the meaning ascribed to such term in Section
4.23(d).




“Ground Lease” means
that certain First Amended and Restated Ground Lease with Respect to the Phase
I/Phase II Land dated as of December 6, 2006 between Borrower and Ground Lessor,
which shall be amended by a First Amendment thereto in a form which has been
approved by the Administrative Agent in connection with the Wolff
Transaction.




“Ground Lessor” shall
mean Sucia Scottsdale, LLC, a Delaware limited liability company, or any of its
successors and assigns as landlord under the Ground Lease.




“Ground Lessor’s Fee
Mortgagee” shall mean General Electric Capital Corporation, a Delaware
corporation, or its successors in interest as the holder of a first priority
deed of trust or mortgage on the fee simple interest in the Phase I/Phase II
Land.




“Guarantee” means, as
to any Person, any (a) guarantee by that Person of Indebtedness of, or
other obligation performable by, any other Person or (b) assurance given by
that Person to an obligee of any other Person with respect to the performance of
an obligation by, or the financial condition of, such other Person, whether
direct, indirect or contingent, including any purchase or repurchase agreement
covering such obligation or any collateral security therefor, any agreement to
provide funds (by means of loans, capital contributions or otherwise) to such
other Person, any agreement to support the solvency or level of any balance
sheet item of such other Person or any “keep-well” or other arrangement of
whatever nature given for the purpose of assuring or holding harmless such
obligee against loss with respect to any obligation of such other Person; provided, however, that the
term Guarantee shall not include endorsements of instruments for deposit or
collection in the ordinary course of business.  The amount of any
Guarantee in respect of Indebtedness shall be deemed to be an amount equal to
the stated or determinable amount of the related Indebtedness (unless the
Guarantee is limited by its terms to a lesser amount, in which case to the
extent of such amount) or, if not stated or determinable, the reasonably
anticipated liability in respect thereof as determined by the Person in good
faith pursuant to Generally Accepted Accounting Principles.




“Guarantor” means
Glimcher Properties Limited Partnership, a Delaware limited
partnership.




“Guaranties” means,
collectively, the Payment Guaranty dated as of the Agreement Effective Date
executed by Guarantor, the Completion Guaranty dated as of the Agreement
Effective Date executed by the Guarantor, and the Non-Recourse Exception
Guaranty dated as of the Agreement Effective Date executed by
Guarantor.




“Hazardous Materials”
means substances defined as “hazardous substances” pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
§9601 et seq., or as “hazardous”, “toxic” or “pollutant” substances or as
“solid waste” pursuant to the Hazardous Materials Transportation Act, 49 U.S.C.
§1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
§6901, et seq., or as “friable asbestos” pursuant to the Toxic Substances
Control Act, 15 U.S.C. §2601 et seq. or any other applicable Hazardous
Materials Law, in each case as such Laws are amended from time to
time.




-9-


“Hazardous Materials
Laws” means all Laws governing the treatment, transportation or disposal
of Hazardous Materials applicable to any part of the Project.




“Implied Annual Debt
Service means, as of any date, the aggregate annual amount of principal
and interest payments that would be needed to fully amortize either the Loan
Commitment (when calculating the Pro Forma DSCR) or the then-current Maximum
Loan Amount (when calculating the Actual DSCR) by equal monthly payments of
principal and interest over a 30 year period, using an annual interest rate
equal to the greater of (i) the sum of (A) the then-current annual yield on
obligations of the United States of America Treasury maturing approximately 10
years after such date plus (B) 1.25% per
annum, or (ii) 6.25% per annum.




“Improvements” shall
have the meaning ascribed to such term in the first recital of this
Agreement.




“In Balance” or “in
balance” shall have the meaning ascribed to such terms in Article 9.




“Indebtedness” means,
with respect to a Person, at the time of computation thereof, all of the
following (without duplication): (a) all obligations of such Person in respect
of money borrowed; (b) all obligations of such Person, whether or not for money
borrowed (i) represented by notes payable, or drafts accepted, in each case
representing extensions of credit, (ii) evidenced by bonds, debentures, notes or
similar instruments, or (iii) constituting purchase money indebtedness,
conditional sales contracts or other similar instruments, upon which interest
charges are customarily paid or that are issued or assumed as full or partial
payment for Property or services rendered; (c) Capital Lease Obligations of such
Person; (d) all reimbursement obligations of such Person under any letters of
credit or acceptances (whether or not the same have been presented for payment);
(e) all obligations of such Person in respect of any repurchase obligation,
takeout commitment or forward equity commitment, in each case evidenced by a
binding agreement (it being understood that the term “Indebtedness” shall not
include trade payables incurred in the ordinary course of business or
obligations of such Person under purchase agreements pertaining to potential
acquisition by such Person of additional real properties (and related assets));
(f) net mark to market exposure of such Person under any interest rate
protection agreement (including, without limitation, any interest rate swaps,
caps, floors, collars and similar agreements) and currency swaps and similar
agreements; (g) all Indebtedness of other Persons which such Person has
Guaranteed or is otherwise recourse to such Person (except for guaranties of
customary non-recourse “carve-out” exceptions for fraud, misapplication of
funds, environmental indemnities and other similar exceptions to recourse
liability (but not exceptions relating to bankruptcy, insolvency, receivership
or other similar events)); and (h) all Indebtedness of another Person secured by
any Lien on Property owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness or other payment
obligation.




-10-


“Intangible Assets”
means assets that are considered intangible assets under Generally Accepted
Accounting Principles, including customer lists, goodwill, copyrights, trade
names, trademarks and patents.




“Joint Development
Agreement” means that certain Joint Development Agreement dated as of
November 26, 2007 by and among Borrower, the Phase III Developers and Glimcher
Development Corporation, as contract administrator with respect to certain site
work, offsite work and related improvements for the benefit of the Phase I/Phase
II Land and the Phase III Parcels, as it may be amended hereafter with the
reasonable prior approval of the Administrative Agent.




“KeyBank” means
KeyBank National Association, a national banking association.




“Laws” means,
collectively, all international, foreign, federal, state and local statutes,
treaties, rules, regulations, ordinances, codes and administrative or judicial
precedents.




“Lead Arranger” means
KeyBanc Capital Markets.




“Leases” shall mean,
collectively, all leases, subleases and occupancy agreements affecting the
Project or any part thereof now existing or hereafter executed and all material
amendments, material modifications or supplements thereto, all as approved in
writing by the Administrative Agent as and to the extent required under Section
13.11.




“Lender” means each
lender whose name is set forth in the signature pages of this Agreement and each
lender which may hereafter become a party to this Agreement pursuant to Section 18.7.




“Lender Party” shall
have the meaning ascribed to such term in Section
18.13.




“Lenders’ Consultant”
shall mean an independent consulting architect and/or engineer designated by
Administrative Agent in Administrative Agent’s reasonable
discretion.




“LIBOR Base Rate”
means, with respect to a LIBOR Rate Advance for the relevant LIBOR Period, the
applicable British Bankers’ Association LIBOR rate for deposits in Dollars as
reported by any generally recognized financial information service as of 11:00
a.m. (London time) two Banking Days prior to the first day of such LIBOR Period,
and having a maturity equal to such LIBOR Period, provided that, if no such
British Bankers’ Association LIBOR rate is available to the Administrative
Agent, the applicable LIBOR Base Rate for the relevant LIBOR Period shall
instead be the rate determined by the Administrative Agent to be the rate at
which KeyBank or one of its Affiliate banks offers to place deposits in Dollars
with first class banks in the London interbank market at approximately 11:00
a.m. (London time) two Banking Days prior to the first day of such LIBOR Period,
in the approximate amount of the relevant LIBOR Rate Advance and having a
maturity equal to such LIBOR Period.




“LIBOR Lending Office”
means, as to each Lender, its office or branch so designated by written notice
to Borrower and the Administrative Agent as its LIBOR Lending
Office.  If no LIBOR Lending Office is designated by a Lender, its
LIBOR Lending Office shall be its office at its address for purposes of notices
hereunder.




-11-


“LIBOR Period” means,
as to each LIBOR Rate Loan, a period of one, two, three or six months,
commencing on a Banking Day, as selected by Borrower pursuant to Section 2.1(d),
provided that (i) any LIBOR Period which begins on a day for which there is no
numerically corresponding date in the calendar month in which such LIBOR Period
would otherwise end shall instead end on the last Banking Day of such calendar
month, (ii) the first day of any LIBOR Period shall be a Banking Day, (iii) any
LIBOR Period that would otherwise end on a day that is not a Banking Day shall
be extended to the next succeeding Banking Day unless such Banking Day falls in
another calendar month, in which case such LIBOR Period shall end on the next
preceding Banking Day, and (iv) no LIBOR Period shall extend beyond the Maturity
Date.  Notwithstanding the foregoing, at any one time there will be no
more than five (5) LIBOR Periods outstanding.




“LIBOR Rate” means, as
of any date during any LIBOR Period, the sum of (A) the LIBOR Base Rate
applicable to such LIBOR Period divided by one minus the then-current Reserve
Percentage and (B) the Applicable Margin with respect to LIBOR Rate
Loans.




“LIBOR Rate Advance”
means an Advance made hereunder and specified to be a LIBOR Rate Advance in
accordance with Article 2.




“LIBOR Rate Loan”
means a Loan made hereunder and specified to be a LIBOR Rate Loan in accordance
with Article 2.




“Lien” means any
mortgage, deed of trust, pledge, hypothecation, assignment for security,
security interest, encumbrance, lien or charge of any kind, whether voluntarily
incurred or arising by operation of Law or otherwise, affecting any Property,
including any
conditional sale or other title retention agreement, any lease in the nature of
a security interest, and/or the filing of any financing statement (other than a
precautionary financing statement with respect to a lease that is not in the
nature of a security interest) under the Uniform Commercial Code or comparable
Law of any jurisdiction.




“Loan” means each
Advance made or to be made by the Lenders to Borrower as provided in Section 2.1, and
each Alternate Base Rate Loan and LIBOR Rate Loan that is a continuation or
conversion of such Advances as determined pursuant to Article 2.




“Loan Commitment”
means $220,000,000.  The respective Percentages of the Lenders with
respect to the Loan Commitment are set forth in Schedule 1.1.




“Loan Documents”
means, collectively, this Agreement, the Notes, the Guaranties, the
Environmental Indemnity, the Security Documents and any other agreements of any
type or nature hereafter executed and delivered by Borrower or Guarantor to the
Administrative Agent or to any Lender in any way relating to or in furtherance
of this Agreement, (but excluding the Cash Flow Hedge or any similar interest
rate protection agreement), in each case either as originally executed or as the
same may from time to time be supplemented, modified, amended, restated,
extended or supplanted.




-12-


“Loan Parties” means,
collectively, as of any date, Borrower and the Guarantor.




“Major Subcontractor”
shall mean any subcontractor under a Major Subcontract.




“Major Subcontracts”
shall mean any subcontracts between the General Contractor and any
subcontractors and material suppliers which provide for an aggregate contract
price equal to or greater than $2,000,000.




“Managing Member”
means Glimcher Kierland Crossing, LLC, a Delaware limited liability company or
its permitted successors and assigns as the managing member of
Borrower.




“Margin Stock” means
“margin stock” as such term is defined in Regulation T, U
or X.




“Maturity Date” means
May 29, 2011, subject to extension for up to two (2) twelve month periods upon
satisfaction of the conditions set forth in Section 2.6.




“Maximum Loan Amount”
is defined in Section 2.1(a).




“Members” means, as of
any date, those Persons which hold membership interests in
Borrower.




“Monthly Payment Date”
means the first day of each calendar month.




“Moody’s” means
Moody’s Investor Service, Inc. and its successors.




“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3)
of ERISA to which one or more members of the Glimcher Consolidated Group or any
of their ERISA Affiliates contribute or are obligated to
contribute.




“NOI” shall mean, as
of any date with respect to any period, (a) all revenues received by Borrower
with respect to such period from Tenants of the Project which were in occupancy
and had commenced paying rent under their Leases before or during such period,
including “property rental and other income” (as determined by GAAP), provided
however that, if any such Tenant (or the direct or indirect holder of a majority
of the ownership interests in any such Tenant) is in bankruptcy, then any
revenues received from such Tenant shall be excluded from revenues for purposes
of this clause (a), minus (b) all
operating expenditures with respect to the operation of the Project in the
normal course of business during such period.




“Non-Recourse
Indebtedness” means Indebtedness for which the liability of the obligor
thereunder (except with respect to fraud, Hazardous Materials Laws liability and
other customary non-recourse “carve-out” exceptions) either is contractually
limited to collateral securing such Indebtedness or is so limited by operation
of Law.




“Non-U.S. Lender”
shall have the meaning ascribed to such term in Section
3.10.




“Note” means any of
the promissory notes made by Borrower to a Lender evidencing Advances made under
that Lender’s Commitment, substantially in the form of Exhibit D,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.




-13-


“Obligations” means
all present and future obligations of every kind or nature of the Loan Parties
at any time and from time to time owed to the Administrative Agent or the
Lenders or any one or more of them, under any one or more of the Loan Documents,
whether due or to become due, matured or unmatured, liquidated or unliquidated,
or contingent or noncontingent, including obligations
of performance as well as obligations of payment, and including interest
that accrues after the commencement of any proceeding under any Debtor Relief
Law by or against any Loan Party.




“Opening of the Loan” or
“Loan Opening” shall mean the first disbursement of Loan
proceeds.




“Opinion of Counsel”
means the favorable written legal opinion of Squire, Sanders & Dempsey
L.L.P., counsel to Borrower in form and substance reasonably satisfactory to the
Administrative Agent.




“Outstanding Loan
Amount” means, as of any date, the aggregate of all Advances outstanding
on such date.




“Party” means any
Person other than the Administrative Agent and the Lenders, which now or
hereafter is a party to any of the Loan Documents.




“Payment Guaranty”
shall have the meaning ascribed to such term in Section 2.5(f).




“PBGC” means the
Pension Benefit Guaranty Corporation or any successor thereof established under
ERISA.




“Pension Plan” means
any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a
Multiemployer Plan, which is subject to Title IV of ERISA and with respect
to the Consolidated Group is maintained by a member of the Consolidated Group or
to which a member of the Consolidated Group contributes or has an obligation to
contribute.




“Percentage” means,
with respect to each Lender, the percentage derived by dividing that Lender’s
Commitment by the aggregate Loan Commitment, which shall initially be as set
forth opposite the name of that Lender on Schedule 1.1,
as such percentage may be increased or decreased pursuant to a Commitments
Assignment and Acceptance executed in accordance with Section 11.8.




“Permitted Exceptions”
shall mean those matters listed on Exhibit E
hereto to which title to the Project is subject on the Agreement Effective Date
and thereafter such other title exceptions as the Administrative Agent may have
reasonably approved in writing.




“Permitted Liens” is
defined in Section 13.5.




“Permitted Transfer”
shall have the meaning ascribed to such term in Section 13.7
hereof.




-14-


“Person” means any
individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated organization,
business association, firm, joint venture, Governmental Agency, or other
entity.




”Phase” means any of
Phases IA, IB, IC, II and III of the Project.




”Phase I” shall have
the meaning ascribed to such term in the Recitals and includes three subphases
referred to as “Phase IA”, “Phase IB” and “Phase IC” as identified on Exhibit
A-3.




”Phase II” shall have
the meaning ascribed to such term in the Recitals.




”Phase III” shall mean
the Phase III Retail Unit and the performance of all Tenant Work related
thereto.




”Phase I/Phase II
Land” shall have the meaning ascribed to such term in the
Recitals.




”Phase III Developers”
shall mean the Phase III Retail Unit Seller, Kierland Crossing Residential II,
LLC and Kierland Crossing Residential III, LLC, the three entities which
collectively own the Phase III Parcels.




”Phase III Parcels”
shall have the meaning ascribed to such term in the Recitals.




“Phase III Purchase
Agreement” shall have the meaning ascribed to such term in the Recitals,
as it may be amended and restated in a form which has been approved by the
Administrative Agent in connection with the Wolff Transaction.




“Phase III Retail
Unit” shall have the meaning ascribed to such term in the
Recitals.




“Phase III Retail Unit
Seller” shall mean Kierland Crossing Residential, LLC, an Arizona limited
liability company, or, after the effective date of the Wolff Transaction, the
Phase III Developers or any of their respective successors or assigns as the
Seller under the Phase III Purchase Agreement, as amended and
restated.




“Plans and
Specifications” shall mean, with respect to a Phase, those detailed plans
and specifications for the Improvements to be included in such Phase as approved
by the Administrative Agent and as thereafter modified from time to time in
accordance with the terms hereof.




“Prime Rate” means a
rate per annum equal to the prime rate of interest publicly announced from time
to time by KeyBank or its parent as its prime rate (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate
changes.  In the event that there is a successor to the Administrative
Agent by merger, or the Administrative Agent assigns its duties and obligations
to an Affiliate, then the term “Prime Rate” as used in this Agreement shall mean
the prime rate, base rate or other analogous rate of the new Administrative
Agent.




-15-


“Pro Forma DSCR”
means, as of any date, the ratio of (A) the then-current Pro Forma
NOI  to (B) the then-current Implied Annual Debt Service.




“Pro Forma NOI” shall
mean, as of any date, (a) all projected revenues to be derived during the twelve
(12) months immediately following the then-current projected date of
Stabilization from actual scheduled income (rental and reimbursement) from
Tenants under Leases which have been executed on or before such date of
determination which are projected to be in occupancy and paying rent under such
Leases during such twelve (12) month period, provided however, if any such
Tenant (or the direct or indirect holder of a majority of the ownership
interests in such Tenant) is in bankruptcy as of such date of determination then
such revenues shall be excluded from revenues for purposes of this clause (a),
minus (b) all
Pro Forma Operating Expenses.




“Pro Forma Operating
Expenses” shall mean the projected stabilized operating expenditures with
respect to the operation of the Project in the normal course of business for the
first twelve (12) months after the projected date of Stabilization, which shall
be initially as established by the initial Appraisal, subject to such reasonable
adjustments as may be made by the Administrative Agent to such projection from
time to time.




“Project” means the
collective reference to (i) the Phase I/Phase II Land, together with all
buildings, structures and improvements located or to be located thereon,
including the Improvements, (ii) the Phase III Retail Unit to be purchased under
the Phase III Purchase Agreement; (iii) all Tenant Work to be installed in
the Phases, (iv) all rights, privileges, easements and hereditaments relating or
appertaining thereto, and (v) all personal property, fixtures and equipment
of the Borrower required or beneficial for the operation thereof.




“Project Costs” shall
mean the aggregate cost to acquire and complete the Project, including without
limitation the acquisition of the Phase III Retail Unit pursuant to the Phase
III Purchase Agreement, together with all associated soft costs and carrying
costs through Stabilization, as established by the most recent Budget approved
by the Administrative Agent.




“Property” means any
interest in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible.




“Rating Agencies”
shall mean S & P, Moody’s and Fitch Inc. (“Fitch”).




“Regulation D”
means Regulation D, as at any time amended, of the Board of Governors of
the Federal Reserve System, or any other regulation in substance substituted
therefor.




“REA” shall mean that
certain Reciprocal Easement Agreement dated November 26, 2007 among the
Phase III Developers and Borrower among the Phase I/Phase II Land and the Phase
III Parcels, to which the Deed of Trust shall be subordinated by the
Administrative Agent, as it may be amended hereafter with the reasonable prior
approval of the Administrative Agent.




“Regulations T, U and
X” means Regulations T, U and X, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulations in
substance substituted therefor.




-16-


“Request for Loan”
means a written request for an Advance, either the initial funding thereof or
any conversion or continuation thereof, substantially in the form of the Soft
and Hard Cost Requisition attached hereto as Exhibit I,
signed by a Senior Officer of Borrower, and properly completed to provide all
information required to be included therein.




“Required Pre-Funding
Leases” means (A) Leases with Village Roadshow Gold Class Cinemas LLC and
at least three of the following six (6) Tenants:  Oakville Grocery,
Williams Sonoma Home, Apple Computer, Ann Taylor, Armani and one other fashion
retailer reasonably acceptable to the Administrative Agent, plus (B) such other
Leases as may be required so that the aggregate gross leaseable area demised
under Leases executed and delivered prior to the Opening of the Loan equals or
exceeds 180,000 square feet, being approximately thirty percent (30%) of the
projected gross leaseable area of all Phases of the Project, all such Leases to
be in form and substance consistent with the leasing assumptions reflected in
the initial Appraisal and the initial Budget, as reasonably determined by the
Administrative Agent, and to be subject to the prior approval of the
Administrative Agent as and to the extent required under Section 13.11
below.




“Requirement of Law”
means, as to any Person, the articles or certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any
Law, or judgment, award, decree, writ or determination of a Governmental Agency,
in each case applicable to or binding upon such Person or any of its Property or
to which such Person or any of its Property is subject.




“Requisite Lenders”
means, as of any date of determination, Lenders having in the aggregate
Commitments equal to 66-2/3% of the Loan Commitment, or if the Loan Commitment
has been terminated, Lenders holding Notes evidencing in the aggregate 66-2/3%
or more of the Outstanding Loan Amount.




“Reserve Percentage”
means for any day with respect to a LIBOR Rate Loan, the maximum rate (expressed
as a decimal) at which any lender subject thereto would be required to maintain
reserves (including, without limitation, all base, supplemental, marginal and
other reserves) under Regulation D against “Eurocurrency Liabilities” (as
that term is used in Regulation D), if such liabilities were
outstanding.  The Reserve Percentage shall be adjusted automatically
on and as of the effective date of any change in the Reserve
Percentage.




“Responsible Official”
means (a) when used with reference to a Person other than an individual,
any corporate officer of such Person, general partner or managing member of such
Person, corporate officer of a corporate general partner or managing member of
such Person, or corporate officer of a corporate general partner of a
partnership that is a general partner of such Person or corporate managing
member of a limited liability company that is a managing member of such Person,
or any other responsible official thereof duly acting on behalf thereof, and
(b) when used with reference to a Person who is an individual, such
Person.  The Administrative Agent and the Lenders shall be entitled to
conclusively rely upon any document or certificate that is signed or executed by
a Responsible Official of Borrower or Guarantor as having been authorized by all
necessary corporate, partnership and/or other action on the part of Borrower or
Guarantor, as the case may be.




-17-


“S&P” means
Standard & Poor’s Rating Group or its successors.




“Second Extended Maturity
Date” shall mean May 29, 2013.




“Second Extension
Option” shall have the meaning ascribed to such term in Section
2.6.




“Secured Indebtedness”
means any Indebtedness of a Person that is secured by a Lien on any Property of
such Person, provided that the portion of such Indebtedness included in “Secured
Indebtedness” shall not exceed the aggregate value of the assets securing such
Indebtedness at the time such Indebtedness was incurred.




“Security Documents”
means that certain Leasehold Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing executed by Borrower as of the Agreement Effective
Date, that certain Assignment of Leases and Rents executed by Borrower as of the
Agreement Effective Date, that certain Collateral Assignment of Construction
Documents, Contracts, Licenses and Permits executed by Borrower as of the
Agreement Effective Date, that certain Collateral Assignment of Joint
Development Agreement and Purchase Agreement and Escrow Instructions executed by
Borrower as of the Agreement Effective Date, that certain Collateral Assignment
of Interest Rate Protection Product to be executed by Borrower as of the date of
Loan Opening and any further collateral assignments to the Administrative Agent
for the benefit of the Lenders.




“Senior Officer” means
(a) the chief executive officer, (b) the chairman, (c) the chief
financial officer or (d) the executive vice president, of any of the
members of the Glimcher Consolidated Group or of any of their corporate general
partners or managing members, as applicable.




“Soil
Report”  shall have the meaning ascribed to such term in Section 7.1(h).




“Special LIBOR
Circumstance” means the application or adoption after the Agreement
Effective Date of any Law or interpretation, or any change therein or thereof,
or any change in the interpretation or administration thereof by any
Governmental Agency, central bank or comparable authority charged with the
interpretation or administration thereof, or compliance by any Lender or its
LIBOR Lending Office with any request or directive (whether or not having the
force of Law) of any such Governmental Agency, central bank or comparable
authority.




“Stabilization” means,
as of any date, the then-current projected date on which the full Project
(including the Phase III Retail Unit) is expected to achieve an Actual DSCR of
1.00 to 1.0.




“Subsidiary” means, as
of any date of determination and with respect to any Person, (a) any
corporation, limited liability company, partnership or other Person (whether or
not, in any case, characterized as such or as a joint venture), whether now
existing or hereafter organized or acquired: (i) in the case of a
corporation, of which a majority of the securities having ordinary voting power
for the election of directors or other governing body (other than securities
having such power only by reason of the happening of a contingency) are at the
time beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (ii) in the case of a partnership or limited liability company,
of which a majority of the partnership, membership or other ownership interests
are at the time beneficially owned by such Person and/or one or more of its
Subsidiaries; and (b) any other Person the accounts of which are
consolidated with the accounts of the designated parent in accordance with
GAAP.




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“Substantial
Completion” shall be defined as Lien-free completion (subject to
Permitted Liens) of the Construction of the Improvements on the Phase I/Phase II
Land (including completion of all Tenant Work and the funding of all tenant
improvement allowances under all executed Leases in Phases I and II which
Borrower was obligated to complete or fund by the date of such completion) in
accordance with the Plans and Specifications for Phase I and II (but excluding
punch-list items and Tenant Work or tenant improvement allowances on unleased
portions of Phases I and II which Borrower was not obligated to have completed
or funded by the date of such completion) and the receipt of temporary
certificates of occupancy for the Project including all spaces then leased to
Tenants under Leases of Phase I and Phase II.




“Substantial Completion
Date” shall mean May 29, 2011 with respect to the Improvements included
in Phases I and II of the Project.




“Taxes” shall have the
meaning ascribed to such term in Section
3.9(d).




“Tenant” shall mean
any tenant under a Lease.




“Tenant Work” shall
mean the work that Borrower is obligated to perform pursuant to Leases for
individual Tenants in their respective leased premises within any of the Phases
of the Project.




“Title Insurer” shall
mean Lawyers Title Insurance Corporation, or such other title insurance company
as may be reasonably approved in writing by the Administrative
Agent.




“Title Policy” shall
have the meaning ascribed to such term in Section 6.1(e).




“to the best knowledge
of” means, when modifying a representation, warranty or other statement
of any Person, that the fact or situation described therein is known by the
Person (or, in the case of a Person other than a natural Person, known by a
Responsible Official of that Person) making the representation, warranty or
other statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable Person in
similar circumstances would have done) would have been known by the Person (or,
in the case of a Person other than a natural Person, would have been known by a
Responsible Official of that Person).




“Total Undisbursed Committed
Funds” shall have the meaning ascribed to such term in Section
9.1.




“Trade Payables” shall
have the meaning ascribed to such term in Section
13.4.




-19-


“type”, when used with
respect to any Loan or Advance, means the designation of whether such Loan or
Advance is an Alternate Base Rate Loan or Advance or a LIBOR Rate Loan or
Advance.




“Unavoidable Delay”
shall mean, as of any date, any event that would constitute a force majeure
event or similar delay beyond reasonable control under the General Contracts and
those Leases in existence as of such date.




“Unsecured Credit
Agreement” means that certain First Amended and Restated Credit Agreement
dated as of December 14, 2006 by and among Guarantor, KeyBank and certain other
lenders identified therein, as it may have been, or may hereafter be, amended,
restated or modified from time to time.




“Wholly-Owned
Subsidiary” means, with respect to any Person, a Subsidiary of such
Person, 100% of the capital stock or other equity interest of which is owned,
directly or indirectly, by such Person.




“Wolff Transaction”
shall have the meaning ascribed to such term in Section
2.7.




1.2           Use of Defined
Terms .  Any
defined term used in the plural shall refer to all members of the relevant
class, and any defined term used in the singular shall refer to any one or more
of the members of the relevant class.




1.3           Accounting
Terms .  All
accounting terms not specifically defined in this Agreement shall be construed
in conformity with, and all financial data required to be submitted by this
Agreement shall be prepared in conformity with, Generally Accepted Accounting
Principles applied on a consistent basis, except as otherwise specifically
prescribed herein.




1.4           Exhibits and
Schedules .  All
Exhibits and Schedules to this Agreement, either as originally existing or as
the same may from time to time be supplemented, modified or amended, are
incorporated herein by this reference.  A matter disclosed on any
Schedule shall be deemed disclosed on all Schedules.




1.5           Miscellaneous
Terms .  The
term “or” is disjunctive; the term “and” is conjunctive.  The term
“shall” is mandatory; the term “may” is permissive.  Masculine terms
also apply to females; feminine terms also apply to males.  The term
“including” is by way of example and not limitation.




ARTICLE
2




LOANS




2.1           Agreement to Borrow and
Lend .  Subject
to the terms, provisions and conditions of this Agreement and the other Loan
Documents, Borrower agrees to borrow from Lenders, and Lenders agree to lend to
Borrower, Loans not exceeding in the aggregate the Maximum Loan Amount for the
purposes and subject to all of the terms, provisions and conditions contained in
this Agreement.  Each Lender, severally (and not jointly and
severally), agrees to fund its Percentage of each such Loan as an Advance
hereunder, up to the amount of its Commitment.




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(a)           The
maximum aggregate amount of all Loans to be made hereunder (the “Maximum Loan Amount”)
shall be the lowest of: (i) the Loan Commitment, (ii) seventy-five percent (75%)
of the projected value of the Project on Stabilization based on the initial or
any subsequently prepared Appraisal of the Project approved by the
Administrative Agent, (iii) eighty-five percent (85%) of the total projected
Project Costs as established by the most recent Budget approved by the
Administrative Agent; and (iv) the Maximum Loan Amount that will produce a
Pro Forma DSCR of 1.20 to 1.0.




(b)           After
the initial disbursement at Loan Opening Borrower shall be entitled to receive
successive monthly disbursements of the proceeds of the Loan in accordance with
Articles 6,
7, 10 and 11 provided that (i)
the Loan remains In Balance; (ii) Borrower has complied with all conditions
precedent to disbursement from time to time including the requirements of Articles 6, 7, 10 and 11; and (iii) no
Default or Event of Default exists hereunder.




(c)           To
the extent that the Lenders may acquiesce in noncompliance with any requirements
precedent to the Opening of the Loan or precedent to any subsequent disbursement
of Loan proceeds, such acquiescence shall not constitute a waiver by Lenders,
except to the extent provided in any written notice or agreement signed by the
Administrative Agent after obtaining any consent of some or all of the Lenders
to the extent required hereunder, and Lenders may at any time after such
acquiescence require Borrower to comply with all such requirements.




(d)           Each
Loan shall be made pursuant to a Request for Loan from Borrower which shall
specify the requested (i) date of such Loan (which must be a Banking Day), (ii)
type of Loan, (iii) amount of such Loan, (iv) wiring instructions for such Loan,
and (v) in the case of a LIBOR Rate Loan, LIBOR Period for such
Loan.




(e)           Promptly
following receipt of a Request for Loan from Borrower, the Administrative Agent
shall (by the end of business on the same day that such Request for Loan was
received) notify each Lender of the requested date of funding of such Loan
(which shall be determined in accordance with Section 2.2 or Section 2.3(a), as
applicable), the type of the Loan, the LIBOR Period, if applicable, and that
Lender’s Percentage of the Loan.  Not later than 1:00 p.m., Cleveland
time, on the date specified for any Loan (which must be a Banking Day), each
Lender shall make its Percentage of the Loan in immediately available funds
available to the Administrative Agent at the Administrative Agent’s
Office.  Upon satisfaction or waiver of the applicable conditions set
forth in Articles 6,
7, 10 and 11, such Loan shall be wire transferred on that date in
immediately available funds to the account or accounts designated in the wiring
instructions included in such Request for Loan.  On the date of the
Request for Loan for any such Loan disbursement, the Administrative Agent shall,
upon request from any Lender, forward to such Lender the pay applications
(prepared using AIA Form G702 and G703) certified by Borrower along with (i) the
Borrower’s Request for Loan and (ii) such evidence as the Administrative Agent
has obtained confirming the completion of any inspections by Lender’s
Consultant, and the recommendation of Lender’s Consultant to fund the requested
Loan disbursement. In addition, the Administrative Agent shall, upon request
from any Lender, forward to such Lender not later than the date of any such Loan
disbursement such evidence as the Administrative Agent has obtained confirming
the title company’s commitment to issue the relevant date down endorsement as of
the date of such Loan disbursement, and receipt of a completed and executed
Borrower’s Certificate in the form attached as Exhibit H and a
completed Soft and Hard Cost Requisition Form. Copies of all such materials
(together with all items requested by such Lender under Section 10.3) shall
be supplied or made available to each such requesting Lender promptly after such
Loan disbursement.




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(f)           Unless
the Requisite Lenders otherwise consent, each LIBOR Rate Loan shall be not less
than $1,000,000.




(g)           The
Advances made by each Lender under its Commitment shall be evidenced by that
Lender’s Note.




(h)           If
no Request for Loan has been made within the requisite notice periods set forth
in Section 2.2 or
2.3 prior to
the end of the LIBOR Period for any LIBOR Rate Loan, then on the last day of
such LIBOR Period, such LIBOR Rate Loan shall be automatically converted into an
Alternate Base Rate Loan in the same amount.




2.2           Alternate Base Rate
Loans .  Each
request by Borrower for an Alternate Base Rate Loan shall be made pursuant to a
Request for Loan received by the Administrative Agent, at the Administrative
Agent’s Office, not later than 1:00 p.m., Cleveland time, on the Banking Day
immediately prior to the date of the requested Alternate Base Rate
Loan.  All Loans shall constitute Alternate Base Rate Loans unless
properly designated as a LIBOR Rate Loan pursuant to Section 2.3.




2.3           LIBOR Rate
Loans .




(a)           Each
request by Borrower for a LIBOR Rate Loan shall be made pursuant to a Request
for Loan received by the Administrative Agent, at the Administrative Agent’s
Office, not later than 1:00 p.m., Cleveland time, at least three (3) Banking
Days before the first day of the applicable LIBOR Period.




(b)           On
the date which is two (2) Banking Days before the first day of the applicable
LIBOR Period, the Administrative Agent shall confirm its determination of the
applicable LIBOR Rate (which determination shall be conclusive in the absence of
manifest error) and promptly shall give notice of the same to Borrower and the
Lenders.




(c)           Unless
the Administrative Agent and the Requisite Lenders otherwise consent, there
shall be no more than five (5) LIBOR Periods in effect at any one
time.




(d)           No
LIBOR Rate Loan may be requested or continued during the continuation of an
Event of Default.




(e)           Nothing
contained herein shall require any Lender to fund any LIBOR Rate Advance in the
London interbank market.




-22-


2.4           Administrative Agent’s Right
to Assume Funds Available for Loans .  Unless
the Administrative Agent shall have been notified by any Lender no later than
1:00 p.m., Cleveland time on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender’s Percentage of such Loan, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on the date of the Loan and the Administrative Agent
may, in reliance upon such assumption, make available to Borrower a
corresponding amount.  If the Administrative Agent has made funds
available to Borrower based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender plus an administrative fee of $200.  If such
Lender does not pay such corresponding amount forthwith upon the Administrative
Agent’s demand therefor, the Administrative Agent promptly shall notify Borrower
and Borrower shall pay such corresponding amount (but not the administrative
fee) to the Administrative Agent.  The Administrative Agent also shall
be entitled to recover from such Lender or Borrower interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to Borrower to the date
such corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (i) from such Lender, the daily Federal Funds Effective Rate
or (ii) from Borrower, at the applicable rate for such Loan.  Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or Borrower
may have against any Lender as a result of any default by such Lender
hereunder.




2.5           Loan
Documents .  Borrower,
on or before the Agreement Effective Date, shall execute and deliver or cause to
be executed and delivered, to the Administrative Agent the following documents
in form and substance acceptable to the Administrative Agent:




(a)           This
Agreement executed by Borrower.




(b)           A
Note payable to each Lender in the amount of such Lender’s Commitment executed
by Borrower.




(c)           A
first priority leasehold deed of trust, assignment of leases and rents, security
agreement and fixture filing (the “Deed of Trust”),
executed by Borrower in favor of the Administrative Agent for the benefit of the
Lenders securing this Agreement, the Notes and all obligations of Borrower in
connection with the Loan, granting a first priority lien on Borrower’s leasehold
interest in the Phase I/Phase II Land and the Improvements subject only to the
Permitted Exceptions.




(d)           An
assignment of leases and rents (“Assignment of Leases and
Rents”) executed by Borrower in favor of Agent for the benefit of the
Lenders assigning all leases, subleases and other agreements relating to the use
and occupancy of all or any portion of the Project, and all present and future
leases, rents, issues and profits therefrom.




(e)           A
guaranty of completion (“Completion
Guaranty”), executed by Guarantor.




(f)           A
guaranty of repayment (“Payment Guaranty”)
executed by Guarantor.




(g)           A
guaranty of all exceptions to the non-recourse provisions of the Loan Documents
(“Non-Recourse
Exception Guaranty”) executed by Guarantor.




-23-


(h)           An
environmental indemnity (“Environmental
Indemnity”) from Borrower and Guarantor.




(i)           An
assignment of construction documents, contracts, licenses and permits (the
“Assignment of
Construction Documents”) executed by Borrower in favor of the
Administrative Agent for the benefit of the Lenders, together with consents to
such assignment from the General Contractor, the Architect, the Engineer and
Borrower’s retail and office leasing brokers in the forms attached to the
Assignment of Construction Documents.




(j)           An
assignment of general contract rights with respect to the Phase III Purchase
Agreement and the Joint Development Agreement (the “Assignment of Phase III
Related Rights”) executed by Borrower in favor of the Administrative
Agent for the benefit of the Lenders, together with consents and estoppels from
the other parties to the Phase III Purchase Agreement and Joint Development
Agreement.




(k)           An
irrevocable direction and acknowledgement related to that certain Control
Agreement and Addendum to Control Agreement each dated as of December 6, 2006
and executed by Borrower, Ground Lessor, Ground Lessor’s Fee Mortgagee and the
Depository with respect to the advance rent deposit delivered by Tenant under
the Ground Lease (collectively, the “Control Agreement”)
executed by Borrower and acknowledged by the Depository in a form satisfactory
to the Agent.




(l)           An
Amended and Restated Subordination, Non-Disturbance Agreement executed by
Borrower, Ground Lessor and Ground Lessor’s Fee Mortgagee in a form satisfactory
to the Agent.




(m)           UCC
financing statements to perfect or notify third parties of the security
interests intended to be created by the Loan Documents.




2.6           Extension of Maturity
Date .  The
Borrower shall have two (2) options (“Extension Options”)
to extend the Maturity Date, one for a period of twelve (12) months ending on
the First Extended Maturity Date (the “First Extension
Option”) and the second for a period of twelve (12) months ending on the
Second Extended Maturity Date (the “Second Extension
Option”), upon satisfaction of the following conditions
precedent:




(a)           As
of the date of Borrower’s delivery of notice of its intent to exercise an
Extension Option, and as of the then-current Maturity Date, no Event of Default
shall have occurred and be continuing and Borrower shall so certify in
writing;




(b)           Borrower
shall provide Administrative Agent with written notice of the Borrower’s intent
to exercise an Extension Option not less than forty-five (45) days prior to the
then-current Maturity Date;




(c)           Substantial
Completion shall have occurred;




(d)           As
of the date of Borrower’s delivery of notice of its intent to exercise the First
Extension Option and as of the initial Maturity Date, the Pro Forma DSCR is not
less than 1.10 to 1.0, or, if the Pro Forma DSCR is less than 1.10 to 1.0 as of
the date of delivery of such notice, then not later than the initial Maturity
Date Borrower shall have made sufficient repayments of the Loans so that such
criteria is satisfied;




-24-


(e)           As
of the date of Borrower’s delivery of notice of its intent to exercise the
Second Extension Option and as of the First Extended Maturity Date, (A) the
Actual DSCR is not less than 1.25 to 1.00 and (B) the Outstanding Loan Amount
does not exceed seventy-five percent (75%) of the then-current value of the
Project based on an Appraisal of the Project on an “as is” basis approved by the
Administrative Agent, or if the Actual DSCR is less than 1.25 to 1.0, or the
percentage of such value of the Project established by the Appraisal represented
by the Outstanding Loan Amount is greater than 75% as of the date of delivery of
such notice, then not later than the First Extended Maturity Date Borrower shall
have made sufficient repayments of the Loans so that both of such criteria are
satisfied.




(f)           With
respect each Extension Option on the last Business Day immediately preceding the
first day of such Extension Option, Administrative Agent is paid a fee for the
ratable benefit of the then-current Lenders equal to ten one-hundredths of one
percent (0.10%) of the then-current  Outstanding Loan Amount (an
“Extension
Fee”).




2.7           Wolff
Transaction .  The
Managing Member has entered into an agreement with WC Kierland Crossing, LLC,
which is currently the other Member in Borrower, to purchase 100% of such other
Member’s interest in Borrower, which purchase is expected to close after the
Agreement Execution Date and prior to the Loan Opening Date.  Such
purchase shall include an amendment and restatement of the current Phase III
Purchase Agreement, in a form to be reasonably approved by the Administrative
Agent, and an amendment to the Ground Lease, in substantially the form
previously approved by the Administrative Agent.




ARTICLE
3




PAYMENTS
AND FEES




3.1           Principal and
Interest .




(a)           Interest
shall be payable on the outstanding daily unpaid principal amount of each
Advance from the date thereof until payment in full is made and shall accrue and
be payable at the rates set forth or provided for herein before and after
Default, before and after maturity, before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest at the Default Rate in each case to the fullest
extent permitted by applicable Laws.




(b)           Interest
accrued on each Alternate Base Rate Loan shall be due and payable in arrears on
each Monthly Payment Date and at maturity, whether by acceleration or
otherwise.  Except as otherwise provided in Section 3.6, the
unpaid principal amount of any Alternate Base Rate Loan shall bear interest at a
fluctuating rate per annum equal to the Alternate Base Rate.  Each
change in the interest rate under this Section 3.1(b)
due to a change in the Alternate Base Rate shall take effect simultaneously with
the corresponding change in the Alternate Base Rate.




-25-


(c)           Interest
accrued on each LIBOR Rate Loan shall be due and payable in arrears on each
Monthly Payment Dateand at maturity, whether
by acceleration or otherwise.  Except as otherwise provided in Section 3.5, the
unpaid principal amount of any LIBOR Rate Loan shall bear interest at a rate per
annum equal to the LIBOR Rate for the applicable LIBOR Period.




(d)           If
not sooner paid, the outstanding principal balance of the Notes shall be due and
payable in full on the Maturity Date, as it may be extended in accordance with
Section 2.6, or
such earlier date as such amounts may otherwise become due pursuant to the
express terms hereof.




(e)           The
Notes may, at any time and from time to time, voluntarily be paid or prepaid in
whole or in part without premium or penalty, except that with respect to any
voluntary prepayment under this Section, (i) any partial prepayment shall be not
less than $1,000,000, (ii) the Administrative Agent shall have received
written notice of any prepayment by noon, Cleveland time on the date of
prepayment (which must be a Banking Day) in the case of an Alternate Base Rate
Loan, and, in the case of a LIBOR Rate Loan, at least three (3) Banking Days
before the date of prepayment, which notice shall identify the date and amount
of the prepayment and the Loan(s) being prepaid, (iii) any payment or prepayment
of all or any part of any LIBOR Rate Loan on a day other than the last day of
the applicable LIBOR Period shall be subject to Section 3.6 and
(iv) upon any partial prepayment of a LIBOR Rate Loan that reduces it below
$1,000,000, the remaining portion thereof shall automatically convert to an
Alternate Base Rate Loan.




3.2           Agent’s
Fees .  Borrower
shall pay to the Administrative Agent when due all administrative and other fees
due from time to time to the Administrative Agent under that certain letter
agreement dated September 24, 2007 between Borrower and the Administrative
Agent.




3.3           Yield
Protection .  If,
on or after the date of this Agreement, the adoption of any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any change in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable LIBOR Lending Office with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:




(i)           subjects
any Lender or any applicable LIBOR Lending Office to any Taxes, or changes the
basis of taxation of payments (other than with respect to Excluded Taxes) to any
Lender in respect of its LIBOR Rate Loans, or




(ii)           imposes
or increases or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any applicable LIBOR
Lending Office (other than the Reserve Requirement and any other reserves and
assessments taken into account in determining the interest rate applicable to
LIBOR Rate Advances), or




-26-


(iii)           imposes
any other condition the direct result of which is to increase the cost to any
Lender or any applicable LIBOR Lending Office of making, funding or maintaining
its LIBOR Rate Loans, or reduces any amount receivable by any Lender or any
applicable LIBOR Lending Office  in connection with its LIBOR Rate
Loans, or requires any Lender or any applicable LIBOR Lending Office to make any
payment calculated by reference to the amount of LIBOR Rate Loans, by a material
amount.




and the
result of any of the foregoing is to increase the cost to such Lender or
applicable LIBOR Lending Office, as the case may be, of making or maintaining
its LIBOR Rate Loans or Commitment or to reduce the return received by such
Lender or applicable LIBOR Lending Office in connection with such LIBOR Rate
Loans or Commitment, then, within 15 days of demand by such Lender, the Borrower
shall pay such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction in amount received.




3.4           Changes in Capital Adequacy
Regulations .  If
a Lender in good faith determines the amount of capital required or expected to
be maintained by such Lender, any LIBOR Lending Office of such Lender or any
corporation controlling such Lender  is increased as a result of a
Change (as hereinafter defined), then, within 15 days of demand by such Lender,
the Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender in good faith determines is attributable to this Agreement, its
outstanding credit exposure hereunder or its obligation to make Loans hereunder
(after taking into account such Lender’s policies as to capital
adequacy).  “Change” means
(i) any change after the date of this Agreement in the Risk-Based Capital
Guidelines (as hereinafter defined) or (ii) any adoption of or change in
any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any LIBOR Lending Office or any
corporation controlling any Lender.  “Risk-Based Capital
Guidelines” means (i) the risk-based capital guidelines in effect in
the United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
“International Convergence of Capital Measurements and Capital Standards,”
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.




3.5           Availability of Types of
Advances .  If
any Lender in good faith determines that maintenance of any of its LIBOR Rate
Loans at a suitable LIBOR Lending Office would violate any applicable law, rule,
regulation or directive, whether or not having the force of law, the
Administrative Agent shall, with written notice to Borrower, suspend the
availability of the affected Type of Advance and require any LIBOR Rate Advances
of the affected Type to be repaid; or if the Requisite Lenders in good faith
determine that (i) deposits of a type or maturity appropriate to match fund
LIBOR Rate Advances are not available, the Administrative Agent shall, with
written notice to Borrower, suspend the availability of the affected Type of
Advance with respect to any LIBOR Rate Advances made after the date of any such
determination, or (ii) an interest rate applicable to a Type of Advance
does not accurately reflect the cost of making a LIBOR Rate Advance of such
Type, then, if for any reason whatsoever the provisions of Section 3.3 are
inapplicable, the Administrative Agent shall, with written notice to Borrower,
suspend the availability of the affected Type of Advance with respect to any
LIBOR Rate Advances made after the date of any such determination.  If
the Borrower is required to so repay a LIBOR Rate Advance, the Borrower may
concurrently with such repayment borrow from the Lenders, in the amount of such
repayment, a Loan bearing interest at the Alternate Base Rate.




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3.6           Funding
Indemnification .  If
any payment of a ratable LIBOR Rate Advance, or any conversion of a ratable
LIBOR Rate Advance to an Alternate Base Rate Advance, occurs on a date which is
not the last day of the applicable LIBOR Period, whether because of
acceleration, prepayment or otherwise, or a ratable LIBOR Rate Advance is not
made on the date specified by the Borrower for any reason other than default by
the Lenders or as a result of unavailability pursuant to Section 3.5, the
Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom (a “Breakage Fee”),
including, without limitation, any loss or cost (incurred or expected to be
incurred) in liquidating or employing deposits acquired to fund or maintain the
ratable LIBOR Rate Advance and shall pay all such losses or costs within fifteen
(15) days after written demand therefor.




3.7           Late
Payments .  If
any installment of principal or interest or any fee or cost or other amount
payable under any Loan Document to the Administrative Agent or any Lender is not
paid when due, subject to all applicable notice and cure periods, it shall
thereafter bear interest at a fluctuating interest rate per annum (the “Default Rate”) at all
times equal to (i) in the case of interest or principal, the sum of the rate
otherwise applicable to the Loans, plus 3% and (ii) in the case of any other
amount, the sum of the Alternate Base Rate plus 3%, to the fullest extent
permitted by applicable Laws.  Accrued and unpaid interest on past due
amounts (including, without limitation, interest on past due interest) shall be
compounded monthly, on the last day of each calendar month, to the fullest
extent permitted by applicable Laws, and shall be payable upon
demand.  In addition, Borrower shall pay, upon demand, a late charge
equal to five percent (5%) of any amount of interest and/or principal payable on
the Loans or any other amounts payable hereunder or under the other Loan
Documents which is not paid within ten (10) days of the date when
due.




3.8           Computation of Interest and
Fees .  Computation
of interest and fees under this Agreement shall be calculated on the basis of a
year of 360 days and the actual number of days elapsed, except that interest at
the Alternate Base Rate shall be calculated on the basis of a 365 or 366 day
year, as applicable.  Interest shall accrue on each Loan for the day
on which the Loan is made; interest shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid.  Any
Loan that is repaid on the same day on which it is made shall bear interest for
one day.  Notwithstanding anything in this Agreement to the contrary,
interest in excess of the maximum amount permitted by applicable Laws shall not
accrue or be payable hereunder or under the Notes, and any amount paid as
interest hereunder or under the Notes which would otherwise be in excess of such
maximum permitted amount shall instead be treated as a payment of
principal.




3.9           Non Banking
Days .  If
any payment to be made by Borrower or any other Party under any Loan Document
shall come due on a day other than a Banking Day, payment shall instead be
considered due on the next succeeding Banking Day, unless, in the case of a
payment relating to a LIBOR Rate Loan, such next succeeding Banking Day is in
the next calendar month, in which case such payment shall be made on the next
preceding Banking Day, but the extension of time shall not be reflected in
computing interest and fees.




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3.10           Manner and Treatment of
Payments .




(a)           Each
payment hereunder (except payments pursuant to Sections 3.4, 3.5, 18.3, 18.11 and 18.21) or on the
Notes or under any other Loan Document shall be made to the Administrative Agent
at the Administrative Agent’s Office for the account of the Lenders or the
Administrative Agent, as the case may be, in immediately available funds not
later than 2:00 p.m., Cleveland time, on the day of payment (which must be a
Banking Day).  All payments received after such time, on any Banking
Day, shall be deemed received on the next succeeding Banking Day.  The
amount of all payments received by the Administrative Agent for the account of
the Lenders shall be paid in immediately available funds by the Administrative
Agent to the Lenders entitled to receive such amounts in accordance with this
Agreement. If any payment is received by the Administrative Agent by 2:00 p.m.,
Cleveland time, on a Banking Day and not so made available to the account of a
Lender on that Banking Day, the Administrative Agent shall reimburse that Lender
for the cost to such Lender of not receiving the amount of such payment by
paying the Federal Funds Effective Rate on such payment for each day that
payment is delayed.  All payments shall be made in
Dollars.




(b)           Each
payment or prepayment to a Lender shall be applied first to Alternate Base Rate
Loans held by such Lender and then to LIBOR Rate Loans held by such
Lender.




(c)           Each
Lender shall keep a record (in writing or by an electronic data entry system) of
Advances made by it and payments received by it with respect to each of its
Notes and, subject to Section 17.6(g),
such record shall, as against Borrower, be presumptive evidence of the amounts
owing, absent manifest error.  Notwithstanding the foregoing sentence,
the failure by any Lender to keep such a record shall not affect Borrower’s
obligation to pay the Obligations.




(d)           All
payments by the Borrower to or for the account of any Lender or the
Administrative Agent hereunder or under any Note shall be made free and clear of
and without deduction for any and all Taxes.  If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 3.10(d) such
Lender or the Administrative Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (b) the
Borrower shall make such deductions, (c) the Borrower shall pay the full amount
deducted to the relevant authority in accordance with applicable law and (d) the
Borrower shall furnish to the Administrative Agent the original copy of a
receipt evidencing payment thereof within 30 days after such payment is
made.




(e)           In
addition, the Borrower hereby agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note (“Other Taxes”).




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(f)           The
Borrower hereby agrees to indemnify the Administrative Agent and each Lender for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section 3.10(d)) paid
by the Administrative Agent or such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto.  Payments due under this indemnification shall be made within
30 days of the date the Administrative Agent or such Lender makes demand
therefor.




(g)           Each
Lender that is not incorporated under the laws of the United States of America
or a state thereof (each a “Non-US Lender”)
agrees that it will, not more than ten Business Days after the Agreement
Execution Date, (i) deliver to each of the Borrower and the Administrative Agent
two duly completed copies of United States Internal Revenue Service Form W-8BEN
or W-8ECI, certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, and (ii) deliver to each of the Borrower and the
Administrative Agent a United States Internal Revenue Form W-8 or W-9, as the
case may be, and certify that it is entitled to an exemption from United States
backup withholding tax.  Each Non-U.S. Lender further undertakes to
deliver to each of the Borrower and the Administrative Agent (x) renewals or
additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by the
Borrower or the Administrative Agent.  All forms or amendments
described in the preceding sentence shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such Lender
advises the Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.




(h)           For
any period during which a Non-U.S. Lender has failed to provide the Borrower
with an appropriate form pursuant to Section 3.10(g) above
(unless such failure is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.10 with
respect to Taxes imposed by the United States.




(i)           Any
Lender that is entitled to an exemption from or reduction of withholding tax
with respect to payments under this Agreement or any Note pursuant to the law of
any relevant jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law as will permit such payments to be made without withholding or at a reduced
rate following receipt of such documentation.




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(j)           If
the U.S. Internal Revenue Service or any other governmental authority of the
United States or any other country or any political subdivision thereof asserts
a claim that the Administrative Agent did not properly withhold tax from amounts
paid to or for the account of any Lender (because the appropriate form was not
delivered or properly completed, because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered its exemption
from withholding ineffective, or for any other reason), such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Administrative Agent under this
subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent).  The
obligations of the Lenders under this Section 3.10(j)
shall survive the payment of the Obligations and termination of this Agreement
and any such Lender obligated to indemnify the Administrative Agent shall not be
entitled to indemnification from the Borrower with respect to such amounts,
whether pursuant to this Article or otherwise,
except to the extent the Borrower participated in the actions giving rise to
such liability.




3.11           Lender Statements; Survival
of Indemnity .  To
the extent reasonably possible, each Lender shall designate an alternate LIBOR
Lending Office with respect to its LIBOR Rate Loans to reduce any liability of
the Borrower to such Lender under Sections 3.3, 3.4 and
3.10 or to avoid the unavailability of LIBOR Rate Advances under Section 3.5, so long
as such designation is not, in the reasonable judgment of such Lender,
disadvantageous to such Lender.  Each Lender shall deliver a written
statement of such Lender to the Borrower (with a copy to the Administrative
Agent) as to the amount due, if any, under Sections 3.3, 3.4, 3.6 or
3.10.  Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such amount and shall
be final, conclusive and binding on the Borrower in the absence of manifest
error.  Determination of amounts payable under such Sections in
connection with a LIBOR Rate Loan shall be calculated as though each Lender
funded its LIBOR Rate Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
LIBOR Rate applicable to such Loan, whether in fact that is the case or
not.  Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable on demand after receipt by the
Borrower of such written statement.  The obligations of the Borrower
under Sections 3.3,
3.4, 3.6 and
3.10 shall survive payment of the Obligations and termination of this
Agreement.




3.12           Administrative Agent’s Right
to Assume Payments Will be Made by Borrower .  Unless
the Administrative Agent shall have been notified by Borrower prior to the date
on which any payment to be made by Borrower hereunder is due that Borrower does
not intend to remit such payment, the Administrative Agent may, in its
discretion, assume that Borrower has remitted such payment when so due and the
Administrative Agent may, in its discretion and in reliance upon such
assumption, make available to each Lender on such payment date an amount equal
to such Lender’s share of such assumed payment.  If Borrower has not
in fact remitted such payment to the Administrative Agent, each Lender shall
forthwith on demand repay to the Administrative Agent the amount of such assumed
payment made available to such Lender, together with interest thereon in respect
of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Effective Rate.




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ARTICLE
4




REPRESENTATIONS
AND WARRANTIES




Borrower
represents and warrants to the Lenders that:




4.1           Existence and Qualification;
Power; Compliance With Laws .  Borrower
and Managing Member is a limited liability company duly formed, validly existing
and in good standing under the Laws of Delaware.  Guarantor is a
limited partnership, duly formed, validly existing and in good standing under
the Laws of Delaware.  Each of the Loan Parties is duly qualified or
registered to transact business and is in good standing in each other
jurisdiction in which the conduct of its business or the ownership or leasing of
its Properties makes such qualification or registration necessary, except where
the failure so to qualify or register and to be in good standing would not
constitute a Material Adverse Effect.  Each of the Loan Parties has
all requisite power and authority to conduct its business, to own and lease its
Properties and to execute and deliver each Loan Document to which it is a Party
and to perform its Obligations.  To Borrower’s knowledge, each of the
Loan Parties is in compliance with all Laws and other legal requirements
applicable to its business, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished all filings,
registrations and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the transaction
of its business, except where the failure so to comply, obtain authorizations,
etc., file, register, qualify or obtain exemptions does not constitute a
Material Adverse Effect.  Glimcher Properties Corporation, the general
partner of Guarantor, is a corporation duly formed, validly existing and in good
standing under the laws of Delaware.




4.2           Authority; Compliance With
Other Agreements and Instruments and Government Regulations .  The
execution, delivery and performance by each of the Loan Parties of the Loan
Documents to which it is a Party have been duly authorized by all necessary
corporate, partnership or limited liability company action, as applicable, and
do not and will not:




(a)           Require
any consent or approval not heretofore obtained of any partner, director,
stockholder, security holder or creditor of the Loan Parties;




(b)           Violate
or conflict with any provision of any Loan Party’s charter, articles of
incorporation, bylaws or other organizational agreements, as
applicable;




(c)           Result
in or require the creation or imposition of any Lien upon or with respect to any
Property now owned or leased or hereafter acquired by the Loan
Parties;




(d)           Violate
in any material respect any material Requirement of Law applicable to the Loan
Parties; or




(e)           Result
in a breach of or constitute a default under, or cause or permit the
acceleration of any obligation owed under, any indenture or loan or credit
agreement or any other Contractual Obligation to which the Loan Parties are a
party or by which the Loan Parties or any of their Property is bound or
affected;




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and none
of the Loan Parties is in violation of, or default under, any Requirement of Law
or Contractual Obligation, or any indenture, loan or credit agreement described
in Section 4.2(e),
in any respect that constitutes a Material Adverse Effect.




4.3           No Governmental Approvals
Required .  Except
as previously obtained or made, and except for consents, approvals or permits
pertaining to construction or development of a type that would not normally be
obtained before the commencement of performance and which Borrower believes will
be obtained as and when required, no authorization, consent, approval, order,
license or permit from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize or permit under
applicable Laws the execution, delivery and performance by any of the Loan
Parties of the Loan Documents to which it is a Party.




4.4           Financial
Statements .  All
financial statements and other information previously delivered to the
Administrative Agent by the Loan Parties fairly present in all material respects
the financial condition, results of operations, cash flows and/or other
information described therein.




4.5           No Other
Liabilities .  The
Loan Parties do not have any material liability or material contingent liability
required under Generally Accepted Accounting Principles to be reflected or
disclosed, and not reflected or disclosed, in the balance sheets described in
Section 4.4,
other than liabilities and contingent liabilities arising in the ordinary course
of business since the date of such financial statements.




4.6           Intangible
Assets .  The
Loan Parties own, or possess the right to use to the extent necessary in their
respective businesses, all material trademarks, trade names, copyrights,
patents, patent rights, computer software, licenses and other Intangible Assets
that are used in the conduct of their businesses as now operated, and no such
Intangible Asset, to the best knowledge of Borrower, conflicts with the valid
trademark, trade name, copyright, patent, patent right or Intangible Asset of
any other Person.




4.7           Litigation .  Except
for (a) any matter fully covered as to subject matter and amount (subject to
applicable deductibles and retentions) by insurance for which the insurance
carrier has not asserted lack of subject matter coverage or reserved its right
to do so, (b) matters of an administrative nature not involving a claim or
charge against Borrower or Managing Member and (c) matters set forth in Schedule
4.7, there are no actions, suits, proceedings or investigations pending
as to which Borrower, Managing Member or the Project have been served or have
received notice or, to the best knowledge of Borrower, threatened against or
affecting Borrower, Managing Member or the Project, or any Property of Borrower
or Managing Member before any Governmental Agency, mediator or
arbitrator.  As of the Agreement Effective Date, there are no
judgments outstanding against or affecting Borrower, Managing Member or the
Project except as set forth on Schedule
4.7.




4.8           Binding
Obligations .  Each
of the Loan Documents to which the Loan Parties are a Party will, when executed
and delivered by the Loan Parties, constitute the legal, valid and binding
obligation of the Loan Parties, enforceable against the Loan Parties in
accordance with its terms, except as enforcement may be limited by Debtor Relief
Laws or equitable principles relating to the granting of specific performance
and other equitable remedies as a matter of judicial discretion.




4.9           No
Default .  No
event has occurred and is continuing that is a Default or Event of
Default.




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4.10           ERISA .




(a)           With
respect to each Pension Plan:




(i)           such
Pension Plan complies in all material respects with ERISA and any other
applicable Laws to the extent that noncompliance would constitute a Material
Adverse Effect;




(ii)           such
Pension Plan has not incurred any “accumulated funding deficiency” (as defined
in Section 302 of ERISA) in excess of $1,000,000 in the
aggregate;




(iii)           no
“reportable event” (as defined in Section 4043 of ERISA, but excluding such
events as to which the PBGC has by regulation waived the requirement therein
contained that it be notified within thirty days of the occurrence of such
event) has occurred that would constitute a Material Adverse Effect;
and




(iv)           neither
Borrower nor Guarantor nor any of Guarantor’s Subsidiaries has engaged in any
nonexempt “prohibited transaction” (as defined in Section 4975 of the Code)
that would constitute a Material Adverse Effect.




(b)           neither
Borrower nor Guarantor nor any of Guarantor’s Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan in excess of
$250,000 in the aggregate.




4.11           Regulations T, U and X;
Investment Company Act .  No
part of the proceeds of any Loan hereunder will be used to purchase or carry, or
to extend credit to others for the purpose of purchasing or carrying, any Margin
Stock in violation of Regulations T, U and X.  Neither Borrower nor
Guarantor nor any of Guarantor’s Subsidiaries is or is required to be registered
as an “investment company” under the Investment Company Act of 1940, as
amended.




4.12           Disclosure .  No
written statement made by a Senior Officer to the Administrative Agent or any
Lender in connection with this Agreement, or in connection with any Loan, as of
the date thereof contained any untrue statement of a material fact or omitted a
material fact necessary to make the statement made not misleading in light of
all the circumstances existing at the date the statement was made.




4.13           Tax
Liability .  Each
Loan Party has filed all tax returns which are required to be filed, and have
paid, or made provision for the payment of, all taxes with respect to the
periods, Property or transactions covered by said returns, or pursuant to any
assessment received by them, except (a) such taxes, if any, as are being
contested in good faith by appropriate proceedings and as to which adequate
reserves have been established and maintained, and (b) immaterial taxes so long
as no material Property of any Loan Party or any of Guarantor’s Subsidiaries is
at impending risk of being seized, levied upon or forfeited.




4.14           Hazardous
Materials .  Except
as described in Schedule
4.14, as of the Agreement Effective Date (a) neither Borrower, nor to the
best knowledge of Borrower, any other Loan Party, or any other Person at any
time has disposed of, discharged, released or threatened the release of any
Hazardous Materials on, from or under the Project in violation of any Hazardous
Materials Law, (b) to the best knowledge of Borrower, no condition exists that
violates any Hazardous Material Law affecting the Project, (c) neither the
Project nor any portion thereof is or has been utilized by the Borrower nor, to
the best knowledge of Borrower, any other Loan Party, or any other Person as a
site for the manufacture of any Hazardous Materials, (d) to the extent that any
Hazardous Materials are used, generated or stored by Borrower or any other
Person on the Project, or transported to or from the Project by the Loan Parties
or any other Person, such use, generation, storage and transportation by the
Loan Parties and, to the best knowledge of Borrower, by any other Person are in
compliance with all Hazardous Materials Laws, and (e) the Project is not subject
to any remediation, removal, containment or similar action conducted by or on
behalf of any Loan Party or, to the knowledge of Borrower, any other Person,
except in connection with the demolition of the Dial Corporation
Building.




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4.15           Ownership
Rights .  As
of Agreement Effective Date, all of the membership interests in the Borrower are
held by the Members and are not subject to any pledge, or security interest in
favor of any Person other than the Administrative Agent.  The
organizational documents of Borrower and the Managing Member do not prohibit,
restrict or limit the Liens created on the Project in favor of the
Administrative Agent or the subsequent transfer or encumbrance of the Project or
any portion thereof or interest therein.




4.16           Governmental Project
Matters .  There
are no unpaid or outstanding real estate or other taxes or assessments on or
against the Project (except only real estate or other taxes or assessments, that
are not yet due and payable).  There are no pending eminent domain
proceedings against the Project, and, to the knowledge of Borrower, no such
proceedings are presently threatened by any taking authority.




4.17           Brokers .  None
of the Loan Parties has engaged or otherwise dealt with any broker, finder or
similar entity in connection with this Agreement or the Loans contemplated
hereunder.




4.18           Other
Debt .  Neither
Borrower nor the Managing Member is in default (after expiration of all
applicable grace and cure periods) in the payment of any other Indebtedness or
under any mortgage, deed of trust, security agreement, financing agreement or
indenture involving Indebtedness or under any other material agreement or lease
to which any of them is a party.  None of the Loan Parties is a party
to or bound by any agreement, instrument or indenture that may require the
subordination in right or time of payment of any of the Obligations to any other
Indebtedness or obligation of such Loan Party.




4.19           Solvency .  As
of the Agreement Effective Date and after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents, including all of
the Loans made or to be made hereunder, none of the Loan Parties (taken on a
consolidated basis) is insolvent on a balance sheet basis such that the sum of
such Person’s assets exceeds the sum of such Person’s liabilities (taken on a
consolidated basis), each Loan Party is able to pay its debts as they become
due, and each Loan Party has sufficient capital to carry on its
business.




4.20           No Fraudulent
Intent .  Neither
the execution and delivery of this Agreement or any of the other Loan Documents
nor the performance of any actions required hereunder or thereunder is being
undertaken by any Loan Party with or as a result of any actual intent by any of
such Persons to hinder, delay or defraud any entity to which any of such Persons
is now or will hereafter become indebted.




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4.21           No Bankruptcy
Filing .  None
of the Loan Parties or any of their respective Subsidiaries is contemplating
either the filing of a petition by it under any state or federal bankruptcy or
insolvency laws or the liquidation of its Properties, and none of the Loan
Parties has any knowledge of any Person contemplating the filing of any such
petition against it or any Subsidiary.




4.22           OFAC
Representation .  Each
of the Borrower, the Managing Member and Guarantor is not, and shall not be at
any time, a person with whom the Lenders are restricted from doing business
under the regulations of the Office of Foreign Asset Control (“OFAC”) of the
Department of Treasury of the United States of America (including, those Persons
named on OFAC’s Specially Designated and Blocked Persons list) or under any
statute, executive order (including, the September 24, 2001 Executive Order
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action and is not and
shall not engage in any dealings or transactions or otherwise be associated with
such persons.  In addition, the Borrower hereby agrees to provide to
the Administrative Agent or any Lender any information that the Administrative
Agent or such Lender deems necessary from time to time in order to ensure
compliance with all applicable Laws concerning money laundering and similar
activities.




4.23           Project-Related
Representations .




(a)           Each
of the representations and warranties made by the Borrower in any Security
Document with respect to the Project is true and correct in all material
respects.




(b)           The
Project is not located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any
successor law, or, if located within any such area, Borrower has obtained and
will maintain through the Maturity Date the insurance prescribed in the
Insurance Requirements set forth in Exhibit
F attached hereto.




(c)           To
the Borrower’s knowledge, the Project and the present use and occupancy thereof
are in material compliance with all material zoning ordinances (without reliance
upon adjoining or other properties), building codes, land use and Environmental
Laws, and other similar laws (“Applicable Laws”),
except as disclosed in Schedule
4.14.




(d)           Neither
the construction of the Improvements nor the use of the Project when completed
as an office and retail lifestyle center and the contemplated accessory uses
will materially violate (i) any Applicable Laws, or (ii) any building
permits, restrictions of record, or agreements affecting the Project or any part
thereof.  Without limiting the foregoing, all consents, licenses and
permits and all other material authorizations or approvals (collectively, “Governmental
Approvals”) required for the current state of Construction in accordance
with the Plans and Specifications have been obtained or will be obtained prior
to the Agreement Effective Date, and all Applicable Laws relating to the
Construction and operation of the Improvements have been complied with and all
material permits and licenses required for the operation of the Project which
cannot be obtained until such Construction is completed can be obtained if the
Improvements are completed in accordance with the Plans and
Specifications.




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(e)           The
Project will have adequate water, gas and electrical supply, storm and sanitary
sewerage facilities, other required public utilities, fire and police
protection, and means of access between the Project and public highways; none of
the foregoing will be foreseeably delayed or impeded by virtue of any
requirements under any applicable Laws.




(f)           All
public roads and streets necessary for service of and access to the Project for
the current or contemplated use thereof have been completed, and are open for
use by the public, except for such roads and streets within the Project as may
be dedicated in connection with the Construction of the
Improvements.




(g)           To
the Borrower’s knowledge, (i) no condemnation of any portion of the
Project, (ii) no condemnation or relocation of any roadways abutting the
Project, and (iii) no proceeding to deny access to the Project from any
point or planned point of access to the Project, has commenced or is
contemplated by any Governmental Authority.




(h)           The
amounts set forth in the Budget present a full and complete itemization by
category of all costs, expenses and fees which Borrower reasonably expects to
pay or reasonably anticipates becoming obligated to pay to complete the
Construction, acquire the Phase III Retail Unit and operate the Project (until
the Project achieves Stabilization).  Borrower is unaware of any other
such costs, expenses or fees which are material and are not covered by the
Budget.




(i)           Borrower
has not made any material contract or arrangement, the performance of which by
the other party thereto could give rise to a lien on the Project or any portion
thereof, except for the Permitted Exceptions, the Leases and its agreements with
the General Contractor, the Architect, the Engineer, and certain management and
leasing agreements and their agreements with various subcontractors and material
suppliers, all of which have been disclosed in writing to the Administrative
Agent or are set forth in the Budget.




(j)           The
Phase I/Phase II Land is taxed separately without regard to any other property
and constitutes one or more separate tax parcels and for all purposes the Phase
I/Phase II Land may be mortgaged and conveyed as an independent parcel. The
Phase III Retail Unit, once created, will be taxed separately without regard to
any other property, other than the common elements of the condominium of which
it is a part, and will constitute a separate tax parcel and for all purposes the
Phase III Retail Unit, once created, may be mortgaged and conveyed as an
independent parcel.




(k)           Borrower
has not entered into any Leases, subleases or other arrangements for occupancy
of space within the Project other than as delivered to Administrative
Agent.  True, correct and complete copies of all Leases, as amended,
have been delivered to Administrative Agent and constitute the legal, valid and
binding obligations of Borrower, enforceable in accordance with their respective
terms.  All Leases are in full force and effect.  Borrower
is not in default under any Lease and Borrower has disclosed to Lenders in
writing any material default, of which Borrower has knowledge, by the tenant
under any Lease.




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(l)           When
the Construction is completed in accordance with the Plans and Specifications
and the Phase III Retail Unit has been completed in accordance with the
requirements of the Phase III Purchase Agreement, no building will encroach upon
any property line, building line, setback line, side yard line or any recorded
or visible easement (or other easement of which Borrower is aware or has reason
to believe may exist) with respect to the Project.




(m)           To
the Borrower’s knowledge, there are no material delinquent taxes, ground rents,
water charges, sewer rents, assessments, insurance premiums, leasehold payments,
or other outstanding charges affecting the Project except to the extent such
items are being contested in good faith and as to which adequate reserves have
been provided.




(n)           Borrower
is not aware of any material latent or patent structural or other significant
deficiency of the Project.  The Project is free of damage and waste
that would materially and adversely affect the value of the
Project.  The Project is free from damage caused by fire or other
casualty.  Notwithstanding the foregoing, Borrower makes no
representation or warranty with respect to the physical condition of the Dial
Corporation Building




(o)           To
Borrower’s knowledge, all liquid and solid waste disposal, septic and sewer
systems located on the Project are in a good and safe condition and repair and
to Borrower’s knowledge, in material compliance with all applicable Laws with
respect to such systems.  Notwithstanding the foregoing, Borrower
makes no representation or warranty with respect to the condition, repair or
compliance of such systems serving the Dial Corporation Building.




4.24           Survival of Representations
and Warranties .  Each
Loan Party agrees that all of the representations and warranties set forth in
Article 4
and elsewhere in this Agreement are true as of the Agreement Effective Date,
and, except for matters which have been disclosed in writing by Borrower to the
Administrative Agent (which written disclosures the Administrative Agent agrees
to forward to the Lenders) and approved by the Administrative Agent in writing,
at all times thereafter.  Each request for a disbursement under the
Loan Documents shall constitute a reaffirmation of such representations and
warranties (except for those representations which are limited by reference to a
specific date or period of time), as deemed modified in accordance with the
disclosures made and approved as aforesaid, as of the date of such
request.  It shall be a condition precedent to each subsequent
disbursement that each of said representations and warranties is true and
correct in all material respects as of the date of such requested
disbursement.  Borrower shall reaffirm such representations and
warranties in writing prior to each disbursement hereunder.




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ARTICLE
5




LOAN
EXPENSE AND ADVANCES




5.1           Loan and Administration
Expenses .  Borrower
unconditionally agrees to pay all of Administrative Agent’s reasonable third
party, out of pocket expenses of the Loan, including all amounts payable
pursuant to Sections 5.2 and
5.3, and any
and all other fees owing to Administrative Agent or any Lender pursuant to the
Loan Documents, and also including, without limiting the generality of the
foregoing, all recording, filing and registration fees and charges, mortgage or
documentary taxes, all insurance premiums, title insurance premiums and other
charges of the Title Insurer, survey fees and charges, cost of certified copies
of instruments, charges of the Title Insurer or other escrowee for administering
disbursements, all fees and disbursements of Lenders’ Consultant, all appraisal
fees, insurance consultant’s fees, travel related expenses and all costs and
expenses incurred by Administrative Agent in connection with the determination
of whether or not Borrower has performed the obligations undertaken by Borrower
hereunder or has satisfied any conditions precedent to the obligations of
Lenders hereunder and, if any Event of Default occurs hereunder or under any of
the Loan Documents or if the Loan or Notes or any portion thereof is not paid in
full when and as due, subject to applicable notice and cure periods, all costs
and expenses of Lenders (including, without limitation, court costs and
reasonable counsel’s fees and disbursements) incurred by Lenders in attempting
to enforce payment of the Loan and expenses of Lenders incurred (including court
costs and reasonable counsel’s fees and disbursements) in attempting to realize,
while an Event of Default exists, on any security or incurred in connection with
the sale or disposition (or preparation for sale or disposition) of any security
for the Loan.  Borrower agrees to pay all brokerage, finder or similar
fees or commissions payable in connection with the transactions contemplated
hereby and shall indemnify and hold Lenders harmless against all claims,
liabilities, costs and expenses (including reasonable third party attorneys’
fees and expenses) actually incurred in relation to any claim by broker, finder
or similar person.




5.2           Upfront
Fees .  Borrower
has paid on or before the Agreement Effective Date such fees as were then due to
the Lenders and the Administrative Agent as set forth in the separate fee letter
between Borrower and Administrative Agent and the commitment letters of the
Lenders.




5.3           Administrative Agent’s
Attorneys’ Fees and Disbursements .  Borrower
agrees to pay Administrative Agent’s reasonable third party attorneys’ fees,
paralegals’ fees and disbursements actually incurred in connection with this
Loan, including (i) the preparation and attendance upon execution of this
Agreement and the other Loan Documents and the preparation of the closing
binders, (ii) the disbursement, syndication and administration of the Loan and
(iii) the enforcement of the terms of this Agreement and the other Loan
Documents.




5.4           Time of Payment of Fees and
Expenses .  Borrower
shall pay all expenses and fees incurred as of the Agreement Effective Date on
the Agreement Effective Date (unless sooner required herein).  The
Administrative Agent may require the payment of outstanding fees and expenses as
a condition to any disbursement of the Loan.




5.5           Expenses and Advances
Secured by Loan Documents .  Any
and all advances or payments made by the Administrative Agent or any Lender
under this Article 5 from
time to time, and any amounts expended by the Administrative Agent and Lenders
pursuant to Section 16.2(a),shall, as and when advanced or incurred, constitute additional
indebtedness evidenced by the Notes and secured by the Deed of Trust and the
other Loan Documents.




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5.6           Right of Lenders to Make
Advances to Cure Borrower’s Defaults .  In
the event that Borrower fails to perform any of Borrower’s covenants, agreements
or obligations contained in this Agreement or any of the other Loan Documents
(after the expiration of applicable grace periods, except in the event of an
emergency or other exigent circumstances), the Lenders may (but shall not be
required to) perform any of such covenants, agreements and obligations, and any
reasonable amounts expended by Lenders in so doing shall constitute additional
indebtedness evidenced by the Notes and secured by the Deed of Trust and the
other Security Documents.




ARTICLE
6




NON-CONSTRUCTION
REQUIREMENTS PRECEDENT TO THE


EFFECTIVENESS
OF THIS AGREEMENT AND SUBSEQUENT DISBURSEMENTS




6.1           Non-Construction Conditions
Precedent to Effectiveness of the Agreement .  Borrower,
at the Agreement Effective Date, shall satisfy the following conditions
precedent in form and substance satisfactory to the Administrative
Agent:




(a)           Borrower
shall have executed and delivered all of the Loan Documents as described in
Section 2.5
above;




(b)           The
Administrative Agent shall receive, with respect to each of the Loan Parties,
such documentation as the Administrative Agent reasonably required to establish
the due organization, valid existence and good standing of each of the Loan
Parties, its qualification to engage in business in each material jurisdiction
in which it is engaged in business or required to be so qualified, its authority
to execute, deliver and perform the Loan Documents to which it is a Party, the
identity, authority and capacity of each Responsible Official thereof authorized
to act on its behalf, including certified copies of articles of incorporation
and amendments thereto, bylaws and amendments thereto, certificates of good
standing and/or qualification to engage in business, tax clearance certificates,
certificates of corporate resolutions, incumbency certificates, Certificates of
Responsible Officials, and the like, together with such certificates from
Members as the Administrative Agent may require with respect to compliance with
OFAC and similar regulations;




(c)           The
representations and warranties of Borrower contained in Article 4 shall
be true and correct in all material respects;




(d)           Borrower
and any other Loan Parties are in compliance with all the terms and provisions
of the Loan Documents, and giving effect to the initial Loan no Default or Event
of Default shall have occurred and be continuing;




(e)           Borrower
shall furnish to the Administrative Agent an ALTA Loan Title Insurance Policy,
insuring the Loan, in the amount of the Maximum Loan Amount issued by the Title
Insurer, insuring the lien of the Deed of Trust as a valid first and prior lien
upon the Borrower’s leasehold interest in the Phase I/Phase II Land and all
appurtenant easements, subject to no exceptions other than the Permitted
Exceptions  (the “Title
Policy”);




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(f)           Borrower
shall have furnished to Administrative Agent legible copies of all title
exception documents cited in the Title Policy;




(g)           Borrower
shall furnish to Lender an ALTA plat of survey of the Phase I/Phase II Land
prepared and certified by a surveyor licensed in Arizona and otherwise
satisfactory to the Administrative Agent;




(h)           Borrower
shall furnish to the Administrative Agent policies or binders evidencing that
commercial general liability insurance coverage is in effect with respect to the
Project and Borrower, in a form satisfactory to the Administrative
Agent;




(i)           Borrower
shall furnish to the Administrative Agent customary opinions from counsel for
Borrower and Guarantor in form and substance reasonably satisfactory to
Administrative Agent;




(j)           Administrative
Agent shall have received environmental reports prepared at Borrower’s expense
by a qualified environmental consultant reasonably approved by Administrative
Agent, which reports shall be satisfactory to Administrative Agent in all
respects;




(k)           Borrower
shall furnish to Administrative Agent current bankruptcy, federal tax lien and
judgment searches and searches of all Uniform Commercial Code financing
statements filed in Delaware and Arizona with respect to Borrower, demonstrating
the absence of adverse claims;




(l)           Borrower
shall furnish to Administrative Agent current annual financial statements of
Borrower and, the Guarantor, each in form and substance and certified by such
individual as reasonably acceptable to Administrative Agent;




(m)           Borrower
shall deliver to Administrative Agent executed copies of any leasing, management
and development agreements entered into by Borrower in connection with the
Construction and/or the operation of the Project, together with executed
subordination agreements from any parties to such agreements that are Affiliates
of Borrower or one of its Members;




(n)           Administrative
Agent shall have received evidence that the Project is not located in an area
designated by the Secretary of Housing and Urban Development as a special flood
hazard area, or that flood hazard insurance acceptable to Administrative Agent
in its reasonable discretion has been obtained;




(o)           Borrower
shall deliver to Administrative Agent copies of any Leases then in
effect;




(p)           Borrower
shall deliver to Administrative Agent a reasonably satisfactory estoppel
certificate from the Dial Corporation; and




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(q)           Borrower
shall deliver to Administrative Agent certified copies of the current Ground
Lease, the REA, the Joint Development Agreement, the Phase III Purchase
Agreement, the Control Agreement and the Letter of Credit Agreement dated as of
December 6, 2006 among Borrower, the Ground Lessor and the Ground Lessor’s Fee
Mortgagee.




6.2           Non-Construction Conditions
Precedent to Loan Opening .  Borrower,
at Loan Opening, shall satisfy the following conditions precedent in form and
substance satisfactory to the Administrative Agent:




(a)           The
representations and warranties of Borrower contained in Article 4 shall
be true and correct in all material respects;




(b)           Borrower
and any other Loan Parties are in compliance with all the terms and provisions
of the Loan Documents, and giving effect to the initial Loan no Default or Event
of Default shall have occurred and be continuing;




(c)           Administrative
Agent shall have received an Appraisal of the Project reflecting a maximum loan
to value of seventy five percent (75%) (based upon the Project’s stabilized
value after completion of Construction and acquisition of the Phase III Retail
Unit) which Appraisal shall be satisfactory to Administrative Agent in all
respects;




(d)           Borrower
shall provide evidence reasonably satisfactory to the Administrative Agent that
Borrower has invested the applicable pro rata portion of the Borrower’s Equity
Requirement into acquisition and development of the Project prior to the funding
of the initial Loan (it being understood that if Borrower has invested more than
such pro rata portion at the time of Loan Opening no further investment of
Borrower’s Equity Requirement shall be required until sufficient Loan
disbursements have been made so that the remaining undisbursed Maximum Loan
Amount bears the appropriate ratio to the remaining uninvested Borrower’s Equity
Requirement);




(e)           Borrower
shall comply with the applicable requirements of Articles 7 and
10;




(f)           Borrower
shall deliver to Administrative Agent copies of the Required Pre-Funding Leases
and any other Leases then in effect;




(g)           Borrower
shall deliver to Administrative Agent reasonably satisfactory tenant estoppel
certificates from all of the Required Pre-Funding Leases and any other Tenants
under Leases then in effect, to the extent not delivered on or before the
Agreement Effective Date;




(h)           Borrower
shall furnish to Administrative Agent executed subordination, non-disturbance
and attornment agreements from Tenants under all Leases which demise more than
10,000 square feet of rentable area (in the case of office Leases) or of gross
leasable area (in the case of retail Leases) to the extent not furnished on or
before the Agreement Effective Date;




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(i)           Borrower
shall deliver a collateral assignment of interest rate protection product with
respect to the Cash Flow Hedge executed by Borrower in favor of the
Administrative Agent for the benefit of the Lenders, together with a consent to
such collateral assignment from the provider of the Cash Flow
Hedge;




(j)           Borrower
shall deliver to Administrative Agent certified copies of all documents executed
in connection with the Wolff Transaction; and




(k)           Borrower
shall deliver to Administrative Agent policies or binders evidencing that
builder’s risk and other insurance coverage is in effect with respect to Phase I
of the Project and Borrower in a form and with endorsements satisfactory to the
Administrative Agent and generally in accordance with the Insurance Requirements
attached as Exhibit
F for which the premiums have been fully prepaid.




6.3           Non-Construction Conditions
Precedent to Subsequent Disbursements




.
Borrower agrees that the Lenders’ obligation to make further disbursements of
Loan proceeds following the date of Loan Opening is conditioned upon Borrower’s
performance and satisfaction of the following conditions precedent in form and
substance satisfactory to the Administrative Agent in its reasonable
discretion:




(a)           the
representations and warranties of Borrower contained in Article 4 shall
be true and correct in all material respects;




(b)           no
Default or Event of Default shall have occurred and be continuing, or shall
occur, after giving effect to such disbursement;




(c)           Borrower
shall provide evidence reasonably satisfactory to the Administrative Agent that
Borrower has invested the applicable pro rata portion of the Borrower’s Equity
Requirement into acquisition and development of the Project prior to the funding
of such Loan; and




(d)           Borrower
shall have complied with the applicable requirements of Article 10.




ARTICLE
7




CONSTRUCTION
REQUIREMENTS PRECEDENT


TO THE
OPENING OF THE LOAN




7.1           Required Construction
Documents .  Borrower,
on or before the Loan Opening Date, shall have caused to be furnished to
Administrative Agent the following, in form and substance satisfactory to
Administrative Agent in all respects, for Administrative Agent’s approval prior
to the Opening of the Loan, except as noted below:




(a)           Fully
executed copies of the following, each satisfactory to Administrative Agent in
all respects: (i) the General Contract (Phase IA) and (ii) all contracts
with the Architect and Engineer;




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(b)           A
schedule of values, including a trade payment breakdown, setting forth a
description of all contracts let by Borrower and/or the General Contractor for
the design, engineering, construction and equipping of Phase IA of the
Improvements;




(c)           A
current sworn statement of the General Contractor, approved by Borrower and
Architect covering all work done and to be done on Phase IA, together with lien
waivers covering all work and/or materials for which payments have been made
prior to the Loan Opening;




(d)           Copies
of all subcontracts between the General Contractor and the Major Subcontractors
for Phase IA, together with payment and performance bonds from such Major
Subcontractors and a multiple obligee rider to each such bond naming the
Administrative Agent;




(e)           Copies
of each of the material building permits, environmental permits, utility
permits, land use permits, wetland permits and any other material permits,
approvals or licenses issued by any Governmental Authority which are required in
connection with the Construction of Phase IA, except for those permits,
approvals or licenses for operation of such buildings which cannot be issued
until completion of Construction, in which event such permits, approvals or
licenses will be obtained by Borrower on a timely basis in accordance with all
recorded maps and conditions, and applicable building, land use, zoning and
environmental codes, statutes and regulations and will be delivered to
Administrative Agent promptly;




(f)           Full
and complete detailed Plans and Specifications in duplicate, prepared by the
Architect, for Phase IA;




(g)           A
schedule (“Construction
Schedule”) reasonably satisfactory to Administrative Agent, establishing
a timetable for completion of the Construction, showing, on a monthly basis, the
anticipated progress of the Construction and also showing that the Improvements
can be substantially completed on or before the Substantial Completion
Date;




(h)           A
soil test report (“Soil Report”)
prepared by a licensed engineer reasonably satisfactory to Administrative Agent
indicating to the satisfaction of Administrative Agent that the soil and
subsurface conditions underlying the Project will support the
Improvements;




(i)           The
Administrative Agent has retained Lenders’ Consultant to issue a report which
will contain an analysis of the Plans and Specifications for Phase IA, the
Budget, the Construction Schedule, the General Contract (Phase IA), all
subcontracts for Phase IA then existing and the Soil Report.  Such
report shall contain (i) an analysis satisfactory to the Administrative
Agent demonstrating the adequacy of the Budget to complete the Project and
(ii) a confirmation that the Construction Schedule is
realistic.




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ARTICLE
8




BUDGET
AND CONTINGENCY FUND




8.1           Budget .  Disbursement
of the Loan shall be governed by a budget for the Project (the “Budget”), in form and
substance acceptable to Administrative Agent in the Administrative Agent’s
reasonable discretion, specifying the amount of cash equity to be invested in
the Project and all costs and expenses of every kind and nature whatever to be
incurred by Borrower in connection with the Project prior to the Maturity Date
as described more fully in Section 8.2
below.  The Budget shall include, in addition to the Budget Line Items
described in Section 8.2
below, the Contingency Fund described in Section 8.3
below, and amounts satisfactory to Administrative Agent for soft costs and other
reserves acceptable to Administrative Agent.  The initial Budget is
attached hereto as Exhibit G
and made a part hereof.  Except as expressly provided herein to the
contrary, all changes to the Budget shall in all respects be subject to the
prior written approval of Administrative Agent. Changes in the scope of
construction work or to any construction related contract must be documented
with a change order on the AIA Form G 701 or equivalent form.




8.2           Budget Line
Items .  The
Budget shall include as line items (“Budget Line Items”),
to the extent determined to be applicable by Administrative Agent in its
reasonable discretion, the cost of all labor, materials, equipment, fixtures and
furnishings needed for the completion of Construction, and all other costs, fees
and expenses relating in any way whatsoever to the Construction of the
Improvements, leasing commissions, tenant improvements and tenant allowances,
operating deficits, real estate taxes, the acquisition of the Phase II Retail
Unit and all other sums due in connection with Construction and operation of the
Project, the Loan, and this Agreement.  Borrower agrees that all Loan
proceeds shall be used only for the Budget Line Items for which such proceeds
were disbursed.




Without
limiting Borrower’s rights under Section 8.3
below, Borrower shall have the right to reallocate cost savings effected by
final change order or other appropriate final documentation to other Budget Line
Items subject to Administrative Agent’s prior written consent not to be
unreasonably withheld.




Lenders
shall not be obligated to disburse any amount for any category of costs set
forth as a Budget Line Item which is greater than the amount set forth for such
category in the applicable Budget Line Item.  Borrower shall pay as
they become due all amounts set forth in the Budget with respect to costs to be
paid for by Borrower.




8.3           Contingency
Fund .  The
Budget contains a line item titled “Hard Cost Contingency” designated for
contingency (“Contingency Fund”)
which shall represent an amount necessary to provide reasonable assurances to
Lenders that additional funds are available to be used if additional costs and
expenses are incurred or additional interest accrues on the Loan, or
unanticipated events or problems occur.  Borrower may from time to
time request that the Contingency Fund be reallocated to pay needed Project
Costs of the Project, subject to Administrative Agent’s written approval in its
reasonable discretion.




Borrower
agrees that the decision with respect to utilizing portions of the Contingency
Fund in order to keep the Loan “In Balance” shall, except as provided in the
preceding paragraph of this Section 8.3, be
made by the Administrative Agent in its reasonable discretion, and that the
Administrative Agent may require Borrower to make a Deficiency Deposit even if
funds remain in the Contingency Fund.




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8.4           Optional Method for Payment
of Interest .  For
Borrower’s benefit, the Budget includes a Budget Line Item for
interest.  Borrower hereby authorizes the Administrative Agent from
time to time, for the mutual convenience of Lenders and Borrower, to disburse
Loan proceeds to pay all the then accrued interest on the Notes, regardless of
whether Borrower shall have specifically requested a disbursement of such
amount.  Any such disbursement, if made, shall be added to the
outstanding principal balance of the Note.  The authorization hereby
granted, however, shall not obligate Lender to make disbursements of the Loan
for interest payments (except upon Borrower’s qualifying for and requesting
disbursement of that portion of the proceeds of the Loan allocated for such
purposes in the Budget) nor prevent Borrower from paying accrued interest from
its own funds.  Once the Project begins to generate NOI, Borrower may
only borrow from the Loan interest in excess of the NOI so
generated.




ARTICLE
9




SUFFICIENCY
OF LOAN




9.1           Loan In
Balance .  Anything
in this Agreement contained to the contrary notwithstanding, it is expressly
understood and agreed that in the Administrative Agent’s reasonable discretion
the Loan shall at all times be “In Balance” on a line-by-line and an aggregate
basis. Each line item in the Budget shall be deemed to be “In Balance” only when
the undisbursed portion of the then-current line item equals or exceeds the
costs required to complete all elements of the construction of the Project
intended to be covered by such line item. The Loan shall be deemed to be “In
Balance” in the aggregate only when the total of (i) the undisbursed portion of
the then-current Maximum Loan Amount less (ii) the then-current Contingency Fund
plus (iii) the undisbursed portion of the Borrower’s Equity Requirement
(collectively, the “Total Undisbursed Committed
Funds”) equals or exceeds the aggregate of (a) the costs required to
complete the Construction of the Project in accordance with the Plans and
Specifications and the Budget, including, without limitation, all Tenant Work
required to be performed by Borrower or tenant allowances to be paid for by
Borrower under Leases or reasonably anticipated for unleased space in any Phase;
(b) the amounts to be paid as retainages to persons who have supplied labor or
materials to the Project; (c) the cost to acquire the Phase III Retail Unit; (d)
the amount in excess of projected NOI required to pay interest on the Loan
through the Maturity Date; and (e) all other hard and soft costs not yet paid
for in connection with the Project.  Such costs and amounts described
in clauses (a), (b), (c), (d) and (e) may be estimated and/or approved in
writing by the Administrative Agent from time to time.  Borrower
agrees that if for any reason, in the Administrative Agent’s reasonable
discretion, the amount of the Total Undisbursed Committed Funds shall at any
time be or become insufficient for such purpose regardless of how such condition
may be caused, Borrower will, within ten (10) days after written request by the
Administrative Agent, deposit the deficiency with the Administrative Agent
(“Deficiency
Deposit”).  The Deficiency Deposit shall first be exhausted
before any further disbursement of Loan proceeds shall be
made.  Lenders shall not be obligated to make any Loan disbursements
if and for as long as the Loan is not “In Balance”.  Notwithstanding
anything contained herein to the contrary, if, as a result of any subsequent
events, such Deficiency Deposit is no longer needed in order for the Loan to be
“In Balance”, then to the extent that any portion of such Deficiency Deposit has
not otherwise been applied to Project Costs, such Deficiency Deposit funds held
by Administrative Agent shall be returned to Borrower.




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ARTICLE
10




CONSTRUCTION
PAYOUT REQUIREMENTS




10.1           Applicability of
Sections .  The
provisions contained in this Article 10 shall
apply to the Opening of the Loan and to all disbursements of Loan proceeds
during Construction.




10.2           Monthly
Payouts .  After
the Opening of the Loan, further disbursements shall be made during Construction
from time to time as Construction progresses, but no more frequently than
oncein each
calendar month (excluding any disbursements made under Section 8.4)
within ten (10) Business Days after receipt of all required documentation for
such disbursement.




10.3           Documents to be Furnished
for Each Disbursement .  As
a condition precedent to each disbursement of the Loan proceeds with respect to
a Phase, Borrower shall furnish or cause to be furnished to Administrative Agent
the following documents with respect to such Phase covering such disbursement,
in form and substance satisfactory to Administrative Agent:




(a)           A
completed Borrower’s Certificate in the form of Exhibit H
attached hereto and made a part hereof, a completed Soft and Hard Cost
Requisition Form in the form of Exhibit I
attached hereto and made a part hereof certified by Borrower, each executed by a
duly authorized representative of Borrower, together with pay applications
(prepared using AIA Form G702 and G703) certified by Borrower with a soft cost
register;




(b)           General
Contractor’s sworn statements and unconditional waivers of lien as and to the
extent required pursuant to the terms of the General Contract for such Phase, as
well as any and all subcontractors’, material suppliers’ and laborers’
conditional waivers of lien required per the terms of the applicable General
Contract;




(c)           Prior
to the first disbursement with respect to a Phase, a fully executed copy of the
General Contract for such Phase, together with a consent from the General
Contractor in the same form as was delivered to the Administrative Agent with
respect to Phase IA and such subcontracts, payment and performance bonds,
multiple obligee riders with respect to Major Subcontracts, builder’s risk
insurance covering such Phase and other materials with respect to such Phase as
were required under Section 7.1 with
respect to Phase IA of the Project;




(d)           Paid
invoices or other evidence satisfactory to the Administrative Agent that
fixtures and equipment have been paid for and are free of any lien or security
interest therein;




(e)           An
endorsement to the Title Policy issued to the Administrative Agent on behalf of
the Lenders increasing the insured amount to the then-current Outstanding Loan
Amount (after giving effect to such disbursement) and showing the Deed of Trust
as a first and prior lien on the Borrower’s interest in the Project subject only
to the Permitted Exceptions and particularly that nothing has intervened to
affect the validity or priority of the Deed of Trust;




(f)           In
the case of the first disbursement of Loan Proceeds with respect to Phase III,
an amendment to the Deed of Trust encumbering the Phase III Retail Unit and
recorded within the applicable land records, together with an endorsement to the
Title Policy adding the Phase III Retail Unit to the parcels insured thereunder
subject only to the Permitted Exceptions.




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(g)           Copies
of any change orders, whether proposed or executed, which have not been
previously furnished to the Administrative Agent;




(h)           Copies
of all other construction contracts (including subcontracts) which have been
executed since the last disbursement;




(i)           Such
other instruments, documents and information as the Administrative Agent or the
Title Insurer may reasonably request; and




(j)           A
favorable interim inspection report completed by Lenders’ Consultant which
report is reasonably satisfactory to the Administrative Agent in all
respects.




After
such disbursement is made the Administrative Agent shall provide to each Lender,
upon request, copies of all of the foregoing (or such of the foregoing as such
Lender may request).




10.4           Retainages .  At
the time of each disbursement of Loan proceeds, ten percent (10%) of the total
amount then due the General Contractor and the various contractors,
subcontractors and material suppliers for costs of Construction with respect to
a Phase shall be deducted from each amount disbursed until 50% completion of the
Construction on such Phase is achieved.  No further retainage shall be
withheld from amounts disbursed after 50% Construction completion of a Phase is
achieved.  On the Loan Opening Date, Borrower shall deliver to
Administrative Agent a statement from the General Contractor that shall confirm
the retainage that has been withheld from the General Contractor with respect to
Phase IA, and that the Budget includes the appropriate retainage, given the
then-current status of Construction of such Phase and all prior payments to the
General Contractor.  The retained Loan amounts for Construction costs
for a Phase will be disbursed only at the time of the final disbursement of Loan
proceeds for such Phase under Article 11
below; provided, however, upon the
satisfactory completion of one hundred percent (100%) of the work on a Phase
with respect to any trade (including any trade performed by General Contractor)
or the delivery of all materials with respect to such Phase pursuant to a
purchase order in accordance with the Plans and Specifications as certified by
the Architect and Lenders’ Consultant, the retainages with respect to such trade
or order, as the case may be, on such Phase shall be disbursed to Borrower
within thirty (30) days after Lenders’ Consultant’s approval of all such work
and materials and the Administrative Agent’s receipt of a final waiver of lien
with respect to such completed work or delivered materials.




10.5           Disbursements for Materials
Stored On-Site . Any
requests for disbursements which in whole or in part relate to materials,
equipment or furnishings which Borrower owns and which are not incorporated into
the Improvements as of the date of the request for disbursement, but are to be
temporarily stored at the Project, shall be made in an aggregate amount not to
exceed $2,000,000 outstanding at any time.  Any such request must be
accompanied by evidence satisfactory to Administrative Agent that (i) such
stored materials are included within the coverages of insurance policies carried
by Borrower, (ii) the ownership of such materials is vested in Borrower
free of any liens and claims of third parties, (iii)  such materials are
properly insured and protected against theft or damage, (iv) the materials used
in the Construction are not commodity items but are uniquely fabricated for the
Construction, (v) if requested by the Administrative Agent, the Lenders’
Consultant has viewed and inspected the stored materials, and (vi) if so
requested by Administrative Agent, in the reasonable opinion of the Lenders’
Consultant the stored materials are physically secured and can be incorporated
into the Project within forty five (45) days.  Administrative Agent
may require separate Uniform Commercial Code financing statements to cover any
such stored materials.




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10.6           Disbursements for Offsite
Materials .  Administrative
Agent shall make disbursements for materials stored off-site not to exceed
$3,000,000 in the aggregate (subject to an increase in such maximum amount to
$5,000,000 during such time as such stored off-site materials include pre-cast
concrete for the Project), provided all of the requirements of Section 10.5
shall be applicable to such disbursement as well as any other requirements which
the Administrative Agent may, in its sole discretion, determine are appropriate
under the circumstances.




10.7           Disbursements For Tenant
Work and Allowances .




(a)           Lenders
will agree to make interim disbursements for Tenant Work or tenant allowances
for Tenants under the Leases as required to comply with the terms of any such
Lease.




(b)           The
first request for disbursement for Tenant Work in connection with a specific
leased space in the Project shall be accompanied by the following, all of which
shall be subject to the review and approval of the Lender’s Consultant and the
reasonable approval of Administrative Agent:




(i)           copies
of all contracts, if not previously delivered to Administrative Agent, for the
performance of such Tenant Work;




(ii)           a
cost breakdown for each trade performing Tenant Work in such leased space, and
an estimated commencement and completion date;




(iii)           an
estimate of all direct costs of the Tenant Work to be performed in such leased
space which has not been contracted for or made subject to a work order or order
to proceed;




(iv)           plans
and specifications for the leased space, together with a certificate from an
architect acceptable to the Administrative Agent that such plans and
specifications comply with all Laws affecting the Project and the lease covering
such leased space; and




(v)           evidence
of all insurance required to be maintained in connection with such Tenant Work
pursuant to the terms of the Leases, including, without limitation, builder’s
risk insurance coverage, all as evidenced by insurance certificates in favor of
and acceptable to Administrative Agent.




10.8           Disbursement of the
Developer’s Fee .  The
Budget includes a development management fee with respect to Phase I in the
amount of $8,184,549 and a development management fee with respect to Phase II
in the amount of $3,840,750 (collectively, the “Developer’s Fee”)
payable to Borrower’s managing member.  The Developer’s Fee will be
disbursed by the Administrative Agent in monthly disbursements commencing on the
Loan Opening Date.  Each such disbursement with respect to Phase I or
Phase II, when aggregated with all prior disbursements for such Phase, shall not
exceed a percentage of the portion of the Developer’s Fee allocable to such
Phase equal to the percentage of the completion of the Improvements on such
Phase as of the date of disbursement, as evidenced by the General Contractor’s
most recent sworn statement.




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ARTICLE
11




FINAL
DISBURSEMENT FOR CONSTRUCTION




11.1           Final Disbursement for
Construction .  Lenders
will advance to Borrower the final disbursement for the cost of Construction
(including retainages) for each Phase of the Project when the following
conditions (“Completion
Conditions”) have been satisfied with respect to such Phase of the
Project (hereinafter, “Final Completion”
with respect to such Phase), provided that all other conditions in this
Agreement for disbursements have been complied with:




(a)           The
Improvements with respect to such Phase have been fully completed (except for
any Tenant Work on then-unleased portions of such Phase) and equipped in
accordance with the Plans and Specifications free and clear of any Liens (other
than Permitted Liens) and any security interests (other than those provided
hereunder) and are ready for occupancy;




(b)           Borrower
shall have furnished to the Administrative Agent “all risks” casualty insurance
in form and amount and with companies satisfactory to Lender in accordance with
the requirements contained herein;




(c)           Borrower
shall have furnished to the Administrative Agent copies of all material licenses
and permits required by any Governmental Authority having jurisdiction for the
occupancy of such Phase of the Improvements and the operation thereof, including
final, non-conditional certificates of occupancy from the municipality in which
the Project is located, or a letter from the appropriate Governmental Authority
that no such certificate is issued;




(d)           All
Tenants in such Phase shall have executed acknowledgments of acceptance of their
respective premises to the extent required pursuant to the terms of the
applicable Leases;




(e)           Borrower
shall have furnished an ALTA survey showing the completed Phase of the
Improvements certified to the Administrative Agent and otherwise in a form
reasonably satisfactory to the Administrative Agent;




(f)           All
fixtures, furnishings, furniture, equipment and other property required for the
operation of such Phase of the Project shall have been installed free and clear
of all Liens (other than Permitted Liens) and all security interests (other than
those provided hereunder);




(g)           Borrower
shall have furnished to the Administrative Agent copies of all release and
payment receipt affidavits from the General Contractor and all subcontractors
and material suppliers who supplied materials and/or performed the work and
constructed the Improvements in such Phase, together with any other statements
and forms required for compliance with the mechanics’ lien laws of the State of
Arizona;




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(h)           Borrower
shall have furnished to the Administrative Agent a certificate from the
Architect or other evidence satisfactory to the Administrative Agent dated at or
about the Substantial Completion Date stating that (i) such Phase of the
Improvements has been completed in accordance with the Plans and Specifications,
and (ii) the Improvements as so completed comply with all Applicable Laws;
and




(i)           The
Administrative Agent shall have received a certificate from Lenders’ Consultant
that such Phase of the Improvements have been satisfactorily completed in
accordance with the Plans and Specifications.




ARTICLE
12




AFFIRMATIVE
COVENANTS OTHER THAN


INFORMATION
AND REPORTING REQUIREMENTS




So long
as any Advance remains unpaid or any other Obligation remains unpaid, or any
portion of the Loan Commitment remains in force, Borrower shall, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:




12.1           Payment of Taxes and Other
Potential Liens .  Pay
and discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon the Project or any part thereof and upon their
respective income or profits or any part thereof, and all claims for labor,
materials or supplies that if unpaid might by Law become a Lien upon the Project
or their direct or indirect ownership interests therein, except that the Loan
Parties shall not be required to pay or cause to be paid (a) any tax,
assessment, charge, levy or claim that is not yet past due, or is being
contested in good faith by appropriate proceedings so long as the relevant
entity has established and maintains adequate reserves for the payment of the
same or (b) any immaterial tax or claim so long as no material portion of the
Project or their direct or indirect ownership interests therein is at immediate
risk of being seized, levied upon or forfeited.




12.2           Preservation of
Existence .  Preserve
and maintain their respective existences in the jurisdiction of their formation
and all material authorizations, rights, franchises, privileges, consents,
approvals, orders, licenses, permits, or registrations from any Governmental
Agency that are necessary for the transaction of their respective business and
qualify and remain qualified to transact business in each jurisdiction in which
such qualification is necessary in view of their respective business or the
ownership or leasing of the Project except (a) as otherwise permitted by this
Agreement and (b) where the failure to so qualify or remain qualified would not
constitute a Material Adverse Effect.




12.3           Maintenance of the
Project .  Maintain,
preserve and protect the Project in good order and condition, subject to wear
and tear in the ordinary course of business, and not permit any waste with
respect to the Project.




12.4           Maintenance of
Insurance .  Maintain
liability, casualty and other insurance with responsible insurance companies in
such amounts, with such deductibles and retentions and against such risks as is
required under the insurance specifications attached hereto as Exhibit
F and in conformance with such other coverages and endorsements as may
have been previously approved by the Administrative
Agent.




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12.5           Compliance With
Laws .  Comply
with all Requirements of Law noncompliance with which would constitute a
Material Adverse Effect, except that Borrower need not comply with a Requirement
of Law then being contested in good faith by appropriate
proceedings.




12.6           Single Purpose
Entity .  Engage
only in activities related to the Project, and only own assets and make
Investments that will be used in connection with the Project and are incidental
thereto.




12.7           Keeping of Records and Books
of Account .  Keep
adequate records and books of account reflecting all financial transactions in
conformity with Generally Accepted Accounting Principles, consistently
applied.




12.8           Compliance With
Agreements .  Promptly
and fully comply with all Contractual Obligations to which any one or more of
them is a party, except for any such Contractual Obligations (a) the performance
of which would cause a Default, (b) then being contested by any of them in good
faith by appropriate proceedings or (c) the failure with which to comply would
not reasonably be expected to constitute a Material Adverse Effect.




12.9           Use of
Proceeds .  Use
the proceeds of the Loan only to pay for Project Costs, including the
acquisition of the Phase III Retail Unit, along with customary transaction and
closing costs.




12.10         Hazardous Materials
Laws .  Keep
and maintain the Project and each portion thereof in compliance in all material
respects with all applicable material Hazardous Materials Laws and promptly
notify the Administrative Agent in writing (attaching a copy of any pertinent
written material) of (a) any and all material enforcement, cleanup, removal or
regulatory actions instituted, completed or threatened in writing by a
Governmental Agency pursuant to any applicable material Hazardous Materials
Laws, (b) any and all material claims made or threatened in writing by any
Person against Borrower relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials and (c)
discovery by any Senior Officer of any material occurrence or condition on the
Project that could reasonably be expected to cause the Project to be subject to
any material restrictions on the ownership, occupancy, transferability or use of
the Project under any applicable Hazardous Materials Laws. Prior to commencing
the demolition of the Dial Corporation Building, to the extent that the
previously delivered environmental assessments do not cover the Dial Corporation
Building, Borrower will perform an environmental assessment regarding any
applicable Hazardous Materials in the Dial Corporation Building and implement
such containment and disposal measures as may be required under any Hazardous
Materials Laws in connection with such demolition, including the retention of a
contractor licensed to handle any such Hazardous Materials.




12.11        Inspection of
Project .  Permit
the Lenders, through the Administrative Agent or any representative designated
by the Administrative Agent, at Borrower’s expense (provided that, so long as no
Event of Default shall have occurred and be then continuing, Borrower shall only
be obligated to pay for one (1) such inspection per calendar year after
Substantial Completion), to visit and inspect the Project (subject to the rights
of any Tenants), to examine the books of account of the Loan Parties (and to
make copies thereof and extracts therefrom) and to discuss the affairs, finances
and accounts of the Loan Parties with, and to be advised as to the same by,
their Senior Officers, all at such reasonable times (during normal business
hours) and intervals as the Administrative Agent or any Lender may reasonably
request upon reasonable notice.  The Lenders shall use good faith
efforts to coordinate such visits and inspections so as to minimize the
interference with and disruption to the Loan Parties’ normal business
operations.




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12.12       Construction of
Improvements .  Construct
and equip the Improvements and install the Tenant Work in a good and workmanlike
manner with materials of high quality, in accordance with the Plans and
Specifications (or in accordance with any changes therein that may be reasonably
approved in writing by the Administrative Agent or as to which the
Administrative Agent’s approval is not required), and each Phase of Construction
and equipping will be prosecuted with due diligence and continuity in accordance
with the Construction Schedule and fully completed not later than the
Substantial Completion Date.  The Substantial Completion Date shall be
extended in writing by the Administrative Agent by the number of days resulting
from any Unavoidable Delay in the construction of the Project, (but under no
circumstances shall the Administrative Agent be obligated to extend the
Substantial Completion Date by more than thirty (30) days on account of
Unavoidable Delays), provided that the Administrative Agent shall not be
obligated to grant any such extension unless (a) Borrower gives notice of such
delay to the Administrative Agent within ten (10) days of learning of the event
resulting in such delay, (b) after giving effect to the consequences of
such delay, the Loan shall remain “In Balance” and (c) such delay does not
cause Borrower to be in default under any of the Leases, or Borrower obtains a
written extension from each Tenant whose Lease does not permit such
delay.




12.13      Correction of
Defects .  Promptly
after Borrower acquires knowledge of or receives notice of a material defect in
the Improvements or any Tenant Work or any material departure from the Plans and
Specifications, or from any other requirement of this Agreement, Borrower will
proceed with diligence to correct or cause to be corrected all such defects and
departures.




12.14      Inspection by the
Administrative Agent .  Cooperate
with the Administrative Agent in arranging for inspections by representatives of
Lenders of the progress of Construction from time to time at reasonable times
and upon reasonable prior notice, including an examination of (i) the
Improvements and any Tenant Work, (ii) all materials to be used in the
Construction, (iii) all plans and shop drawings which are or may be kept at the
construction site, (iv) any contracts, bills of sale, statements, receipts or
vouchers in connection with the Improvements and Tenant Work, (v) all work done,
labor performed, materials furnished in and about the Improvements and Tenant
Work, (vi) all books, contracts and records with respect to the Improvements and
Tenant Work, and (vii) any other documents relating to the Construction;
provided, however, that such
inspections do not interfere with the construction of the Improvements or the
Tenant Work and comply with all applicable safety requirements of the General
Contractor. Borrower shall cooperate with Lenders’ Consultant to enable him to
perform his functions hereunder.




12.15     Furnishing
Notices .  Provide
Administrative Agent with copies of all material notices pertaining to the
Project received by Borrower from any Tenant, Governmental Authority or
insurance company within seven (7) Banking Days after such notice is
received.




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12.16     Furnishing
Reports .  Upon
request, provide the Administrative Agent with copies of all material
inspections, reports, test results and other information received by Borrower,
relating to the Project or any part thereof.




12.17     Indemnification .  Borrower
shall indemnify Lenders and their respective officers, directors, employees,
agents, and consultants (each, an “Indemnified Party”)
and defend and hold each Indemnified Party harmless from and against all claims,
injury, damage, loss and liability, cost and expense (including attorneys’ fees,
costs and expenses) of any and every kind to any persons or property by reason
of (i) the Construction; (ii) the operation or maintenance of the
Project; (iii) any breach of representation or warranty, Default or Event
of Default; or (iv) any other matter arising in connection with the Loan,
Borrower or the Project.  No Indemnified Party shall be entitled to be
indemnified against its own negligence or willful misconduct.




ARTICLE
13




NEGATIVE
COVENANTS




So long
as any Advance remains unpaid or any portion of the Loan remains unpaid, or any
portion of the Loan Commitment remains in force, the Borrower shall not, unless
the Administrative Agent otherwise consents (after having obtained the written
approval of the Requisite Lenders or of such other group of Lenders as may be
expressly required to authorize the Administrative Agent to grant such
approval):




13.1           Single Asset Entity;
Compliance With Laws .  Hold
or acquire, directly or indirectly, any ownership interest (legal or equitable)
in any real or personal property other than the Project and any personal
property relating thereto, or become a shareholder of or a member or partner in
any entity which acquires any property other than the Project, until such time
as the Obligations have been fully repaid and Lenders have no further
obligations hereunder.  The organizational documents of Borrower shall
limit its purpose to the acquisition, development, operation, management and
disposition of the Project and/or matters relating thereto, shall adopt the
covenants contained in this Section 13.1, and such purposes shall not be amended
without the prior written consent of the Requisite Lenders.  Borrower
hereby covenants:




(a)           To
maintain its assets, accounts, books, records, financial statements, stationery,
invoices and checks separate from and not commingled with any of those of any
other person or entity;




(b)           To
conduct its own business in its own name, pay its own liabilities out of its own
funds, allocate fairly and reasonably any overhead for shared employees and
office space, and to maintain an arm’s length relationship with its
Affiliates;




(c)           To
hold itself out as a separate entity, correct any known misunderstanding
regarding its separate identity, maintain adequate capital in light of its
contemplated business operations, and observe all organizational
formalities;




(d)           Not
to guarantee or become obligated for the debts of any other entity or person or
hold out its credits as being available to satisfy the obligations of others,
including not acquiring obligations or securities of its partners, members or
shareholders, except in connection with the Loan;




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(e)           Not
to pledge its assets for the benefit of any other entity or person or make any
loans or advances to any person or entity, except in connection with the
Loan;




(f)           Not
to enter into any contract or agreement with any Affiliate (other than
agreements which are subordinated to the Obligations), except upon terms and
conditions that are intrinsically fair and substantially similar to those that
would be available on an arms-length basis with third parties other than any
Affiliate;




(g)           Neither
Borrower nor any constituent party of Borrower will seek the dissolution or
winding up, in whole or in part, of Borrower and/or such constituent party of
Borrower, nor will Borrower merge with or be consolidated into any other
entity;




(h)           Borrower
has maintained and will maintain its assets in such a manner that it will not be
costly or difficult to segregate, ascertain or identify its individual assets
from those of any constituent party of Borrower, any Affiliate, Guarantor or any
other person;




(i)           Borrower
does not now have and will not hereafter have any debts or obligations other
than normal accounts payable (including equipment financing) in the ordinary
course of business and obligations under the Leases, the Phase III Purchase
Agreement, the Joint Development Agreement, the Ground Lease and the Cash Flow
Hedge, and its Indebtedness and Obligations under the Notes, the Loan, the Deed
of Trust and the other Loan Documents; and any other indebtedness or other
obligation of Borrower has been paid in full prior to or through application of
proceeds from the funding of the Loan; and




(j)           Borrower
shall conduct its affairs in a lawful manner and in compliance with all Laws
applicable thereto, including, without limitation, all provisions of
ERISA.




13.2           Limitation on
Distributions .Borrower shall
not make any distributions to its Members until the Project has achieved an
Actual DSCR of 1.25 to 1.0.




13.3           Affiliate
Agreements .  Amend,
modify or change in any material respect any of the Borrower’s agreements with
its Affiliates, without the prior written consent of Administrative Agent, which
shall not be unreasonably withheld or delayed.  To the extent
permitted by Laws, Borrower shall cause each of such agreements to be
subordinated to the lien of the Deed of Trust and the Loan
Documents.  At the request of Administrative Agent, Borrower and each
other party to such agreements shall execute and deliver such documents and
instruments, in recordable form, as Administrative Agent may reasonably request
to evidence such party’s agreement to such subordination.




13.4           Secondary
Financing .  Permit
Borrower to incur or undertake any Indebtedness or other secured or unsecured
financing relating to the Project, other than (i) the Obligations under the Loan
Documents, (ii) financing of the purchase of equipment used in the operation of
the Project and (iii) trade payables (excluding payables incurred with respect
to the Construction)  (“Trade Payables”) and
other Indebtedness necessary for the operation of the Project and incurred in
the ordinary course of business, provided that the aggregate amount of Trade
Payables and other Indebtedness outstanding at any time shall not exceed
$11,000,000.




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13.5           Liens .  Create,
incur, or suffer to exist any Lien, or any covenant precluding the subsequent
imposition of a Lien, in, of or on the Project or any ownership interests in the
Borrower or in the Managing Member, except:




(a)           Liens
for taxes, assessments or governmental charges or levies on the Project or any
ownership interests in the Borrower or the Managing Member, if the same shall
not at the time be delinquent or thereafter can be paid without material
penalty, or are being contested in good faith and by appropriate proceedings and
for which adequate reserves shall have been set aside on its books;




(b)           Liens
imposed by Law, such as carriers’, warehousemen’s and mechanics’ liens and other
similar liens arising in the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being contested in good
faith in accordance with the terms of the Loan Documents;




(c)           Liens
arising out of pledges or deposits under workers’ compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;




(d)           easements,
restrictions and such other encumbrances or charges against the Project as are
of a nature generally existing with respect to properties of a similar character
and which do not in any material way affect the operation of the Project for its
intended purposes;




(e)           Liens
in favor of the Administrative Agent and the Lenders under the Loan Documents;
and




(f)           Permitted
Exceptions.




Liens
permitted pursuant to this Section 13. 5
shall be deemed to be “Permitted Liens.”




13.6           Formation
Documents .  Permit
any material change to the operating agreement, partnership agreement or any
other material formation documents of the Borrower or the Managing Member
without the written consent of the Requisite Lenders.




13.7           Restrictions on
Transfer .  Directly
or indirectly make or permit to be made, by voluntary or involuntary means, any
sale, assignment, transfer, disposition, mortgage, pledge, hypothecation or
encumbrance of its direct or indirect interest in the Project, the Borrower or
the Members.  Notwithstanding anything contained in Section 13.6 or in
this Section 13.7 to
the contrary, additional membership interests in Borrower may be issued to
Persons who are not currently Members in Borrower and reasonable amendments to
the Borrower’s operating agreement related thereto may be made and Glimcher
Kierland Crossing, LLC may acquire ownership interests in the WC Kierland
Crossing LLC or additional membership interests in Borrower, in each case upon
prior notice to the Administrative Agent (but without the prior written consent
of the Administrative Agent) provided that following such transfer(s) (each, a
“Permitted
Transfer”), no violation of Section 13.15 below
shall have occurred.




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13.8           Changes in Plans and
Specifications .  No
changes will be made in the Plans and Specifications without the prior written
approval of Administrative Agent; provided, however, that
Borrower may make changes to the Plans and Specifications without such prior
written approval if (i) Borrower notifies Administrative Agent in writing
of such changes by means of a monthly report; (ii) Borrower obtains the
approval of all other parties whose approval may be required, including any
tenants under Leases, sureties, and any Governmental Authority to the extent
approval from such parties is required; (iii) the structural integrity of
the Improvements is not impaired; (iv) no material change in architectural
appearance is effected; (v) the performance of the mechanical, electrical,
and life safety systems of the Improvements is not adversely affected; and
(vi) the cost of or reduction resulting from any one such change does not
exceed $750,000 and the aggregate change in cost of all such changes does not
exceed $1,500,000.




13.9           Changes in Ground
Lease .  Amend,
modify or change the Ground Lease without the prior written approval of the
Administrative Agent, which approval shall not be unreasonably withheld,
conditioned or delayed.




13.10         Changes in Phase III
Purchase Agreement .  Amend,
modify or change the Phase III Purchase Agreement or waive any material
obligation of the Seller thereunder without the prior written approval of the
Administrative Agent, which approval shall not be unreasonably withheld,
conditioned or delayed,.




13.11         Leasing
Guidelines .  Without
the prior written consent of Administrative Agent, which consent shall not be
unreasonably withheld, conditioned or delayed, Borrower and Borrower’s agents
shall not (i) enter into any Lease of 10,000 or more square feet of net rentable
area, with respect to office space, or of gross leasable area with respect to
retail space or enter into any Lease that grants the Tenant thereunder the right
to terminate such Lease prior to the stated expiration of the term thereof
except as a result of casualty or condemnation, or (ii) enter into any Lease of
less than 10,000 square feet that either does not substantially comply with the
Lease form for the Project approved by the Administrative Agent or provide for
rents that are less than 90% of the average rents shown in the most recent
approved Budget, or (iii) materially modify or amend or terminate any of the
Required Pre-Funding Leases or any other Lease of 10,000 or more square feet or
any letter of credit provided by the Tenant under such Lease as security; or
(iv) accept any rental payment more than one month in advance of its due
date.  Any consent of Administrative Agent required under this Section
13.11 shall be given or withheld by Administrative Agent within ten (10) Banking
Days after Administrative Agent’s receipt of a copy of such Lease and all
supporting documentation as Administrative Agent may reasonably
require.  If such consent is not expressly given or withheld by
written notice to Borrower within such period, the consent of the Administrative
Agent shall be deemed to have been given.  Borrower shall provide
Administrative Agent with a copy of each fully executed Lease promptly following
its execution.  At the request of Borrower, the Administrative Agent
shall enter into subordination, non-disturbance and attornment agreements, in
substantially the same form as those referenced in Section 6.2 with
Tenants leasing over 10,000 square feet.




13.12        Defaults Under
Leases .  Suffer
or permit any breach or default to occur in any of Borrower’s obligations under
any of the Leases nor suffer or permit the same to terminate by reason of any
failure of Borrower to meet any requirement of any Lease including those with
respect to any time limitation within which any of Borrower’s work is to be done
or the space is to be available for occupancy by the lessee.  Borrower
shall notify Administrative Agent promptly in writing in the event a Tenant
commits a material default under a Lease.




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13.13        Management and Leasing
Contracts .  Enter
into, materially modify or amend, terminate or cancel any material management
contracts and/or leasing agreements for the Project or agreements with agents or
brokers, without the prior written approval of the Administrative Agent, which
approval shall not be unreasonably withheld or delayed.




13.14        Construction
Contracts .  Enter
into, materially modify or amend, terminate or cancel any General Contract or
any other material contracts for the Construction, without the prior written
approval of Administrative Agent, which approval shall not be unreasonably
withheld or delayed.  Borrower will furnish Administrative Agent
promptly after execution thereof executed copies of all material contracts
between Borrower, architects, engineers and contractors and all subcontracts
between the General Contractor or contractors and all of their subcontractors
and suppliers (to the extent such subcontracts are available to Borrower), which
contracts and subcontracts may not have been furnished pursuant to Section 7.1(a)
at the time of the Opening of the Loan.




13.15       Continued Glimcher
Management .  Permit
any Person other than Glimcher Kierland Crossing, LLC, Guarantor or any
wholly-owned Subsidiary of the Guarantor to be the managing member of the
Borrower or permit any Person other than Guarantor to hold a membership interest
in the managing member of the Borrower.




ARTICLE
14




CASUALTIES
AND CONDEMNATION




14.1           Lenders’ Election to Apply
Proceeds on Indebtedness .




(a)           Subject
to the provisions of the Ground Lease and of Section 14.1(b)
below and except as otherwise provided in the Deed of Trust, the Administrative
Agent may elect to collect, retain and apply upon the Advances and other
Obligations all proceeds of insurance or condemnation derived from the Project
(individually and collectively referred to as “Proceeds”) after
deduction of all expenses of collection and settlement, including reasonable
attorneys’ and adjusters’ fees and charges.  Notwithstanding the
foregoing, the Administrative Agent shall permit any Proceeds related to the
Phase III Retail Unit to be collected and applied as provided in the condominium
documents governing Phase III, as approved by the Administrative
Agent.  Any proceeds remaining after repayment of the Obligations
under the Loan Documents shall be paid by the Administrative Agent to
Borrower.




(b)           Notwithstanding
the right of Administrative Agent to apply Proceeds to the Advances and the
other Obligations of Borrower pursuant to Section 14.1(a),
in the event of any casualty to the Improvements or the Phase III Retail Unit or
any condemnation of part of the Project, Borrower shall have the option of
applying the Proceeds to restoration of the Improvements or the Phase III Retail
Unit, as the case may be, if (i) no Event of Default otherwise exists,
(ii) all Proceeds are deposited with Administrative Agent, (iii) in
Administrative Agent’s reasonable judgment, the amount of Proceeds available for
restoration of the Improvements and the Phase III Retail Unit (together with
undisbursed proceeds of the Loan, if any, allocated for the cost of the
Construction and any sums or other security acceptable to Administrative Agent
deposited with Administrative Agent by Borrower for such purpose) is sufficient
to pay the full and complete costs of such restoration, (iv) no material
Leases in effect at the time of such casualty or condemnation are or will be
terminated as a result of such casualty or condemnation, and (v) in
Administrative Agent’s reasonable determination, the Project can be restored to
an architecturally and economically viable project in compliance with Applicable
Laws.




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14.2           Borrower’s Obligation to
Rebuild and Use of Proceeds Therefor .  In
case the Administrative Agent does not elect to apply or does not have the right
to apply the Proceeds to the Obligations, as provided in Section 14.1
above, Borrower shall:




(a)           Proceed
with diligence to make settlement with insurers or the appropriate governmental
authorities and, except as otherwise provided above with respect to the Phase
III Retail Unit or in the Deed of Trust, cause the Proceeds to be deposited with
Administrative Agent;




(b)           In
the event of any delay in making settlement with insurers or the appropriate
governmental authorities or effecting collection of the Proceeds, deposit with
Administrative Agent or with Ground Lessor’s Fee Mortgagee, if and to the extent
required under the terms of the Ground Lease and the Ground Lessor’s deed of
trust the full amount required to complete construction as
aforesaid;




(c)           In
the event the Proceeds and the available proceeds of the Loan are insufficient
to assure the Lenders that the Loan will be In Balance, promptly deposit with
Administrative Agent any amount necessary to place the Loan In Balance;
and




(d)           Promptly
proceed with the assumption of construction of the Improvements or the Phase III
Retail Unit, including the repair of all damage resulting from such fire,
condemnation or other cause and restoration to its former
condition.




Any
request by Borrower for a disbursement by Lenders of Proceeds and funds
deposited by Borrower shall be treated by Lenders as if such request were for an
advance of the Loan hereunder, and the disbursement thereof shall be conditioned
upon Borrower’s compliance with and satisfaction of the same conditions
precedent as would be applicable under this Agreement for an advance of the
Loan.




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ARTICLE
15




INFORMATION
AND REPORTING REQUIREMENTS




15.1           Financial and Business
Information .  So
long as any Advance remains unpaid or any other Obligation remains unpaid, or
any portion of the Loan Commitment remains in force, Borrower shall, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents, at Borrower’s sole expense, deliver to the Administrative
Agent, or cause the Guarantor to deliver a sufficient number of copies for all
of the Lenders of the following to the Administrative Agent (which shall
promptly after receipt distribute such copies to the Lenders):




(a)           As
soon as available, but in any event not later than 45 days after the close of
each fiscal quarter, other than the fourth quarter, for the Glimcher
Consolidated Group, an unaudited consolidated and consolidating balance sheet as
of the close of each such period and the related unaudited consolidated and
consolidating statements of income and retained earnings and of cash flows of
the Glimcher Consolidated Group for such period and the portion of the fiscal
year through the end of such period, setting forth in each case in comparative
form the figures for the previous year, all certified by the Guarantor’s chief
financial officer or chief accounting officer;




(b)           As
soon as available, but in any event not later than 90 days after the close of
each fiscal year, for the Glimcher Consolidated Group, audited financial
statements, including a consolidated and consolidating balance sheet as at the
end of such year and the related consolidated and consolidating statements of
income and retained earnings and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous year, without a
“going concern” or like qualification or exception, or qualification arising out
of the scope of the audit, prepared by independent certified public accountants
of nationally recognized standing reasonably acceptable to the Administrative
Agent;




(c)           Together
with the quarterly and annual financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit  C
(the “ComplianceCertificate”) hereto signed by the Guarantor’s chief financial officer,
chief accounting officer or chief operating officer showing the calculations and
computations necessary to determine compliance with this Agreement and stating
that, to such officer’s knowledge, no Default or Event of Default exists, or if,
to such officer’s knowledge, any Default or Event of Default exists, stating the
nature and status thereof;




(d)           As
soon as possible and in any event within 10 days after receipt by a responsible
officer of the Guarantor, a copy of (a) any notice or claim to the effect that
the Guarantor or any of its Subsidiaries is or may be liable to any Person as a
result of the release by the Borrower, the Guarantor, any of the Guarantor’s
Subsidiaries, or any other Person of any Hazardous Materials into the
environment, and (b) any notice alleging any violation of any federal, state or
local environmental, health or safety law or regulation by the Borrower or any
of its Subsidiaries, which, in the case of either (a) or (b) could have a
Material Adverse Effect;




(e)           Promptly
upon the furnishing thereof to the shareholders of the general partner of the
Guarantor, copies of all financial statements, reports and proxy statements so
furnished;




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(f)           As
soon as available but in any event not later than fifteen (15) days following
the end of each calendar month thereafter, Borrower shall deliver to
Administrative Agent (i) a current rent roll and a summary of all leasing
activity then taking place with respect to the Project, particularly describing
the status of all pending lease negotiations, if any, and (ii) after Substantial
Completion of any Phase of the Construction, monthly unaudited operating cash
flow statements for the Project, certified as true, complete and correct by
Guarantor’s chief financial officer, chief accounting officer or chief operating
officer on behalf of Borrower showing actual sources and uses of cash during the
preceding month; and




(g)           Such
other data and information as from time to time may be reasonably requested by
the Administrative Agent, any Lender (through the Administrative Agent) or the
Requisite Lenders.




15.2           Appraisals .  The
Administrative Agent shall have the right to obtain new or updated Appraisals of
the Project from time to time.  Borrower shall reasonably cooperate
with Administrative Agent in this regard.  If the Appraisal is
obtained to comply with this Agreement or any Applicable Law or regulatory
requirement, or bank policy promulgated to comply therewith, or if an Event of
Default exists, Borrower shall pay for any such Appraisal upon Administrative
Agent’s request; provided, however, that absent
an Event of Default, Borrower shall not be required to pay for any new or
updated Appraisals of the Project more than one time per calendar
year.




ARTICLE
16




EVENTS OF
DEFAULT AND REMEDIES UPON EVENT OF DEFAULT




16.1           Events of
Default .  The
existence or occurrence of any one or more of the following events, whatever the
reason therefor and under any circumstances whatsoever, shall constitute an
“Event of Default”:




(a)           Borrower
fails to pay any principal on any of the Notes, or any portion thereof, on the
date when due; or




(b)           Except
as otherwise expressly provided in Section 13.7
hereinabove with respect to Permitted Transfers, any sale of all or a portion of
the Project (or a sale of all or any portion of the equity interest in the
Borrower) shall occur; or




(c)           Borrower
fails to pay any interest on any of the Notes within five (5) Banking Days after
the date when due; or Borrower fails to pay any other fee or amount payable to
the Lenders or the Administrative Agent under any Loan Document, or any portion
thereof, within ten (10) Banking Days after demand therefor; or




(d)           Borrower
or any of the other Loan Parties fails to comply with any of the covenants
contained in Sections
13.2 or 13.4; or




(e)           Substantial
Completion shall not have occurred by the Substantial Completion Date;
or




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(f)           Borrower
or any other Loan Party fails to perform or observe any other covenant or
agreement (not specified in clause (a), (b), (c) or (d) above, or otherwise set
forth below in this Section 16.1)
contained in any Loan Document on its part to be performed or observed within
thirty (30) days after the giving of notice by the Administrative Agent on
behalf of the Requisite Lenders of such Default or, if such Default is not
reasonably susceptible of cure within such period, within such longer period as
is reasonably necessary to effect a cure so long as Borrower or such Loan Party
continues to diligently pursue cure of such Default but not in any event in
excess of ninety (90) days; and provided further, however, that notwithstanding
the 30-day cure period or extended cure period described above in this clause
(f), if a different notice or cure period is specified under any Loan Document
or under any provision of the Loan Documents as to any such failure or breach,
the specific Loan Document or provision shall control, and Borrower or such Loan
Party shall have no more time to cure the failure or breach than is allowed
under the specific Loan Document or provision as to such failure or breach;
or




(g)           A
discontinuance in the Construction for a period of more than thirty (30)
consecutive days after written notice from Administrative Agent concerning such
discontinuance (subject to Unavoidable Delays), or any material delay in
Construction (subject to Unavoidable Delays) so that the same is not in
accordance with the Construction Schedule and reasonably likely to be completed
on or before the Substantial Completion Date; or




(h)           The
bankruptcy or insolvency of the General Contractor and failure of Borrower to
procure a contract with a new contractor satisfactory to Administrative Agent
within forty-five (45) days from the occurrence of such bankruptcy or
insolvency; or




(i)           Failure
by Borrower to make any Deficiency Deposit with Administrative Agent within the
time and in the manner required by Article 9
hereof; or




(j)           Any
default by Borrower under the Ground Lease which extends beyond the cure period
expressly provided to Borrower under the Ground Lease, or any termination of the
Ground Lease, or any receipt by the Administrative Agent in its capacity as the
“Leasehold Mortgagee” thereunder of notice of such default or termination
triggering its right to exercise its cure rights and remedies thereunder;
or




(k)           Any
representation or warranty of Borrower or any other Loan Party made in any Loan
Document, or in any certificate or other writing delivered by Borrower or any
Loan Party pursuant to any Loan Document, proves to have been incorrect when
made or reaffirmed in any respect that is materially adverse to the interests of
the Lenders; or




(l)           Either
(i) the existence of an “Event of Default” (as defined in the Unsecured
Credit Agreement) under Sections 7.1, 7.2 or 7.3 of the Unsecured Credit
Agreement  (but, with respect to Section 7.3 only if such “Event of
Default” is due to a breach of one or more of Sections 6.11, 6.20, 6.21(iii) and
6.21(iv) thereof) or (ii) the acceleration of the sums due pursuant to the
Unsecured Credit Agreement or any promissory notes evidencing the credit
facility created by the Unsecured Credit Agreement as a result of any other
“Event of Default” under the Unsecured Credit Agreement, provided however that
(A) clause (i) of this Section 16.1(l) shall
be deemed to be of no further force or effect from and after the date on which
the Actual DSCR equals or exceeds 1.25 to 1.0 and only clause (ii) of this Section 16.1(l) shall
be applicable thereafter and (B) if the Unsecured Credit Agreement shall be
terminated and shall no longer be binding upon the Guarantor, an Event of
Default hereunder shall still be deemed to occur hereunder if any event or
condition occurs which (x) would have constituted either such an “Event of
Default” under the Unsecured Credit Agreement for purposes of clause (i) or
(y) could, with the giving of any notice and expiration of any cure period,
have given rise to an acceleration under the Unsecured Credit Agreement if the
Unsecured Credit Agreement had not been terminated; or




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(m)           Any
Loan Document, at any time after its execution and delivery and for any reason
other than the agreement or action (or omission to act) of the Administrative
Agent or the Lenders or satisfaction in full of all the Obligations ceases to be
in full force and effect or is declared by a court of competent jurisdiction to
be null and void, invalid or unenforceable in any respect which is materially
adverse to the interests of the Lenders; or any Loan Party thereto denies in
writing that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind same; or




(n)           Any
Loan Party institutes or consents to the institution of any proceeding under a
Debtor Relief Law relating to it or to all or any material part of its Property,
or is unable or admits in writing its inability to pay its debts as they mature,
or makes an assignment for the benefit of creditors; or applies for or consents
to the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
Property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of that Person and the appointment continues undischarged or unstayed for sixty
(60) calendar days; or any proceeding under a Debtor Relief Law relating to any
such Person or to all or any part of its Property is instituted without the
consent of that Person and continues undismissed or unstayed for sixty (60)
calendar days or such Person consents thereto or acquiesces therein, or a decree
or order for relief is entered in respect of any such Person in such proceeding;
or




(o)           The
occurrence of an Event of Default (as such term is or may hereafter be
specifically defined in any other Loan Document) under any other Loan
Document.




16.2           Remedies Upon Event of
Default .  Without
limiting any other rights or remedies of the Administrative Agent or the Lenders
provided for elsewhere in this Agreement, or the other Loan Documents, or by
applicable Law, or in equity, or otherwise:




(a)           Upon
the occurrence and during the continuance of any Event of Default,
Administrative Agent, on behalf of the Lenders, may take possession of the
Project to complete the Construction, acquire the Phase III Retail Unit, cure
any defaults by Borrower under the Ground Lease as provided in the Ground Lease
and the Deed of Trust and do anything which is necessary or appropriate in its
sole judgment to fulfill the obligations of Borrower under this Agreement and
the other Loan Documents, including either the right to avail itself of and
procure performance of existing contracts or let any contracts with the same
contractors or others.  Without restricting the generality of the
foregoing and for the purposes aforesaid, Borrower hereby appoints and
constitutes Administrative Agent its lawful attorney-in-fact with full power of
substitution:  to complete the Construction in the name of Borrower;
to acquire the Phase III Retail Unit; to use unadvanced funds remaining under
the Loan or which may be reserved, escrowed or set aside for any purposes
hereunder at any time, or to advance funds in excess of the Maximum Loan Amount,
to complete the Construction; to make changes in the Plans and Specifications
which shall be necessary or desirable to complete the Construction in
substantially the manner contemplated by the Plans and Specifications; to retain
or employ new general contractors, subcontractors, architects, engineers and
inspectors as shall be required for said purposes; to pay, settle or compromise
all existing bills and claims, which may be liens or security interests, or to
avoid such bills and claims becoming Liens against the Project; to execute all
applications and certificates in the name of Borrower, to prosecute and defend
all actions or proceedings in connection with the Improvements or the Project;
to take action and require such performance as it deems necessary under any of
the bonds to be furnished hereunder and to make settlements and compromises with
the surety or sureties thereunder, and in connection therewith, to execute
instruments of release and satisfaction; and to do any and every act which the
Borrower might do in its own behalf; it being understood and agreed that this
power of attorney shall be a power coupled with an interest and cannot be
revoked.




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(b)           Upon
the occurrence and during the continuance of any Event of Default, the
Administrative Agent may withhold further disbursement of the proceeds of the
Loan and/or terminate the Lenders’ obligations to make further disbursements
hereunder.




(c)           Upon
the occurrence, and during the continuance, of any Event of Default other than
an Event of Default with respect to Borrower described in Section 16.1(n),
the Requisite Lenders may request the Administrative Agent to, and the
Administrative Agent thereupon shall, declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents to be forthwith due and payable,
whereupon the same shall become and be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower, and Lenders’ Commitments to make
further disbursements hereunder shall be terminated immediately without any
further action.




(d)           Upon
the occurrence and during the continuance of any Event of Default with respect
to Borrower described in Section 16.1(n),
the unpaid principal of all Notes, all interest accrued and unpaid thereon and
all other amounts payable under the Loan Documents shall be forthwith due and
payable, all without protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by Borrower.




(e)           Upon
the occurrence and during the continuance of any Event of Default, the Requisite
Lenders may direct the Administrative Agent to, and the Administrative Agent
thereupon shall, on behalf of the Lenders, without notice to (except as
expressly provided for in any Loan Document) or demand upon Borrower, which are
expressly waived by Borrower (except as to notices expressly provided for in any
Loan Document), proceed to protect, exercise and enforce their rights and
remedies under the Loan Documents against Borrower and any other Loan Party and
such other rights and remedies as are provided by Law or equity.




(f)           The
order and manner in which the Lenders’ rights and remedies are to be exercised
shall be determined by the Administrative Agent and all payments received by the
Administrative Agent and the Lenders, or any of them, shall be applied as
provided for herein.  No application of payments under this clause (f)
will cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent the
exercise, or continued exercise, of rights or remedies of the Lenders hereunder
or thereunder or at Law or in equity.




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ARTICLE
17




THE
ADMINISTRATIVE AGENT




17.1           Appointment and
Authorization .  Subject
to Section 17.8,
each Lender hereby irrevocably appoints and authorizes the Administrative Agent
to take such action as the contractual representative on its behalf and to
exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof or are reasonably incidental, as
determined by the Administrative Agent, thereto.  This appointment and
authorization is intended solely for the purpose of facilitating the servicing
of the Loans and does not constitute appointment of the Administrative Agent as
trustee for any Lender or as representative of any Lender for any other purpose
and, the Administrative Agent shall take such action and exercise such powers
only in an administrative and ministerial capacity.  In taking such
action and exercising such powers, the Administrative Agent shall use the same
degree of care as it normally employs with respect to similar types of loans in
which the Administrative Agent is the sole lender.




17.2           Administrative Agent and
Affiliates .  KeyBank
(and each successor Administrative Agent in its individual capacity) has the
same rights and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the term
“Lender” or “Lenders” includes KeyBank in its individual
capacity.  KeyBank (and each successor Administrative Agent in its
individual capacity) and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with
Borrower or any other member of the Glimcher Consolidated Group, as if it were
not the Administrative Agent and without any duty to account therefor to the
Lenders.  KeyBank (and each successor Administrative Agent in its
individual capacity) need not account to any other Lender for any monies
received by it for reimbursement of its costs and expenses as the Administrative
Agent hereunder, or for any monies received by it in its capacity as a Lender
hereunder, other than as required of any Lender hereunder.  The
Administrative Agent shall not be deemed to hold a fiduciary or agency
relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.




17.3           Proportionate Interest in
any Collateral .  The
Administrative Agent, on behalf of all the Lenders, shall hold in accordance
with the Loan Documents all items of collateral or interests therein received or
held by the Administrative Agent.  Subject to the Administrative
Agent’s and the Lenders’ rights to reimbursement for their costs and expenses
hereunder (including reasonable attorneys’ fees and disbursements and other
professional services and the reasonably allocated costs of attorneys employed
by the Administrative Agent or, upon the occurrence and during the continuation
of an Event of Default, a Lender) and subject to the application of payments in
accordance with Section 16.2(f),
each Lender shall have an interest in the Administrative Agent’s interest in
such collateral or interests therein.




17.4           Lenders’ Credit
Decisions .  Each
Lender agrees that it has, independently and without reliance upon the
Administrative Agent, any other Lender or the directors, officers, agents,
employees or attorneys of the Administrative Agent or of any other Lender, and
instead in reliance upon information supplied to it by or on behalf of Borrower
and upon such other information as it has deemed appropriate, made its own
independent credit analysis and decision to enter into this
Agreement.  Each Lender also agrees that it shall, independently and
without reliance upon the Administrative Agent, any other Lender or the
directors, officers, agents, employees or attorneys of the Administrative Agent
or of any other Lender, continue to make its own independent credit analyses and
decisions in acting or not acting under the Loan Documents.




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17.5           Action by Administrative
Agent .




(a)           Absent
actual knowledge of the Administrative Agent of the existence of a Default, the
Administrative Agent may assume that no Default (other than the failure to make
a payment of principal or interest when due) has occurred and is continuing,
unless the Administrative Agent has received notice from Borrower stating the
nature of the Default or has received notice from a Lender stating the nature of
the Default and that such Lender considers the Default to have occurred and to
be continuing.




(b)           The
Administrative Agent has only those obligations under the Loan Documents as are
expressly set forth therein.




(c)           Except
for any obligation expressly set forth in the Loan Documents and as long as the
Administrative Agent may assume that no Default has occurred and is continuing,
the Administrative Agent may, but shall not be required to, exercise its
discretion to act or not act, except that the Administrative Agent shall be
required to comply with the instructions of those Lenders authorized to instruct
the Administrative Agent from time to time under this Agreement and those
instructions shall be binding upon the Administrative Agent and all the Lenders,
provided that the Administrative Agent shall not be required to comply with such
instructions if to do so would be contrary to any Loan Document or to applicable
Law or would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.




(d)           The
Administrative Agent shall promptly forward to each Lender a copy of any written
notice the Administrative Agent may receive from the Ground Lessor, the General
Contractor, the Phase III Developers or any other third party indicating that
Borrower has failed to perform its obligations to such party or any other
material written notice of events or circumstances that may constitute an Event
of Default by Borrower hereunder. If the Administrative Agent has received a
notice specified in clause (a) or has actual knowledge of the existence of a
Default, the Administrative Agent shall promptly give notice thereof to the
Lenders and shall comply with the instructions of those Lenders then authorized
to instruct the Administrative Agent hereunder, provided that the Administrative
Agent shall not be required to comply with such instructions if to do so would
be contrary to any Loan Document or to applicable Law or would result, in the
reasonable judgment of the Administrative Agent, in substantial risk of
liability to the Administrative Agent. Notwithstanding the foregoing, if such
Lenders fail, for five (5) Banking Days after the receipt of notice from the
Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its reasonable discretion, may act or not act as it
deems advisable for the protection of the interests of the Lenders until the
Administrative Agent receives instructions to the contrary from such
Lenders.




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17.6           Liability of Administrative
Agent .  Neither
the Administrative Agent nor any of its directors, officers, agents, employees
or attorneys shall be liable for any action taken or not taken by them under or
in connection with the Loan Documents, except for their own gross negligence or
willful misconduct.  Without limitation on the foregoing, the
Administrative Agent and its directors, officers, agents, employees and
attorneys:




(a)           May
treat the payee of any Note as the holder thereof until the Administrative Agent
receives notice of the assignment or transfer thereof, in form satisfactory to
the Administrative Agent, signed by the payee, and may treat each Lender as the
owner of that Lender’s interest in the Obligations for all purposes of this
Agreement until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent, signed by
that Lender;




(b)           May
consult with legal counsel (including in house legal counsel), accountants
(including in house accountants) and other professionals or experts selected by
it, or with legal counsel, accountants or other professionals or experts for the
Loan Parties or the Lenders, and shall not be liable for any action taken or not
taken by it in good faith in accordance with any advice of such legal counsel,
accountants or other professionals or experts;




(c)           Shall
not be responsible to any Lender for any statement, warranty or representation
made in any of the Loan Documents or in any notice, certificate, report, request
or other statement (written or oral) given or made in connection with any of the
Loan Documents, except to the extent such statement, warranty or representation
is expressly made by the Administrative Agent;




(d)           Shall
have no duty to ask or inquire as to the performance or observance by Borrower
or the Loan Parties of any of the terms, conditions or covenants of any of the
Loan Documents or to inspect any collateral or any Property, books or records of
the Loan Parties;




(e)           Will
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, effectiveness, sufficiency or value of any Loan
Document, any other instrument or writing furnished pursuant thereto or in
connection therewith (other than undertakings of the Administrative Agent in any
instruments executed by the Administrative Agent ) or any
collateral;




(f)           Will
not incur any liability by acting or not acting in reliance upon any Loan
Document, notice, consent, certificate, statement, request or other instrument
or writing believed in good faith by it to be genuine and signed or sent by the
proper party or parties;




(g)           Will
not incur any liability for any arithmetical error in computing any amount paid
or payable by Borrower or any other Loan Party thereof or paid or payable to or
received or receivable from any Lender under any Loan Document, including,
without limitation, principal, interest, commitment fees, Advances and other
amounts; provided that, promptly upon discovery of such an error in computation,
the Administrative Agent, the Lenders and (to the extent applicable) Borrower
and/or the other Loan Parties shall make such adjustments as are necessary to
correct such error and to restore the parties to the position that they would
have occupied had the error not occurred, including any adjustments to interest
payments or accrued interest, if necessary; and




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(h)           Have
not made nor do they now make any representations or warranties, express or
implied, nor do they assume any liability to the Lenders, with respect to the
creditworthiness or financial condition of the Loan Parties, the value of their
respective assets or the collectability of the Loans.




17.7           Indemnification .  Each
Lender shall, ratably in accordance with its Percentage of the aggregate
Indebtedness then evidenced by the Notes, indemnify and hold the Administrative
Agent and its directors, officers, agents, employees and attorneys harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including reasonable attorneys’ fees and disbursements and
allocated costs of attorneys employed by the Administrative Agent) that may be
imposed on, incurred by or asserted against it or them in any way relating to or
arising out of the Loan Documents (other than losses incurred by reason of the
failure of Borrower to pay the Indebtedness represented by the Notes) or any
action taken or not taken by it as the Administrative Agent thereunder, except
such as result from its own gross negligence or willful
misconduct.  Without limitation on the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for that Lender’s Percentage of
any out of pocket cost or expense incurred by the Administrative Agent in
connection with the negotiation, preparation, execution, delivery, amendment,
waiver, restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
any Borrower or any other Loan Party is required by Section 18.2 to
pay that cost or expense but fails to do so upon demand.  Nothing in
this Section 17.7
shall entitle the Administrative Agent or any indemnitee referred to above to
recover any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from Borrower or any other Loan Party.  To
the extent that the Administrative Agent or any indemnitee referred to above is
later reimbursed such amount by Borrower or any other Loan Party, it shall
return the amounts paid to it by the Lenders in respect of such
amount.




17.8           Successor Administrative
Agent .  The
Administrative Agent may resign as Administrative Agent upon reasonable notice
to the Lenders and Borrower effective not earlier than thirty (30) days after
such notice, upon acceptance of appointment by a successor Administrative
Agent.  The Requisite Lenders may remove the Administrative Agent from
its capacity as Administrative Agent in the event of the Administrative Agent’s
willful misconduct or gross negligence.  If the Administrative Agent
shall resign or be removed as Administrative Agent under this Agreement, the
Requisite Lenders shall appoint a successor Administrative Agent for the
Lenders, provided that any successor Administrative Agent which is not then also
a Lender shall require approval by Borrower so long as no Default or Event of
Default has occurred and is continuing (and such approval shall not be
unreasonably withheld or delayed).  If no successor Administrative
Agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders, a successor Administrative Agent from among the
Lenders.  Upon the acceptance of its appointment as successor
Administrative Agent hereunder, such successor Administrative Agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term “Administrative Agent” shall mean such successor
Administrative Agent and the retiring Administrative Agent’s appointment, powers
and duties as Administrative Agent shall be terminated.  After any
retiring Administrative Agent’s resignation or removal hereunder as
Administrative Agent, the provisions of this Article 17, and
Sections 18.2,
18.10 and 18.21, shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.  Notwithstanding the
foregoing, if no successor Administrative Agent has accepted appointment as
Administrative Agent by the date which is ninety (90) days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Requisite Lenders appoint a successor
Administrative Agent.




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17.9           No Obligations of
Borrower .  Nothing
contained in this Article 17 shall
be deemed to impose upon Borrower any obligation in respect of the due and
punctual performance by the Administrative Agent of its obligations to the
Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this
Agreement.  Without limiting the generality of the foregoing, where
any provision of this Agreement relating to the payment of any amounts due and
owing under the Loan Documents provides that such payments shall be made by
Borrower to the Administrative Agent for the account of the Lenders, Borrower’s
obligations to the Lenders in respect of such payments shall be deemed to be
satisfied upon the making of such payments to the Administrative Agent in the
manner provided by this Agreement.




17.10        Additional
Agents .  Neither
the Documentation Agent nor the Syndication Agent as designated on the cover of
this Agreement have any rights or obligations under the Loan Documents as a
result of such designation or of any actions undertaken in such capacity, such
parties having only those rights or obligations arising hereunder in their
capacities as a Lender.




ARTICLE
18




MISCELLANEOUS




18.1           Cumulative Remedies; No
Waiver .  The
rights, powers, privileges and remedies of the Administrative Agent and the
Lenders provided herein or in any Note or other Loan Document are cumulative and
not exclusive of any right, power, privilege or remedy provided by Law or
equity.  No failure or delay on the part of the Administrative Agent
or any Lender in exercising any right, power, privilege or remedy may be, or may
be deemed to be, a waiver thereof; nor may any single or partial exercise of any
right, power, privilege or remedy preclude any other or further exercise of the
same or any other right, power, privilege or remedy.  The terms and
conditions of Articles
6 and 7 hereof are inserted for the sole benefit of the Administrative
Agent and the Lenders; the same may be waived in whole or in part, with or
without terms or conditions, in respect of any Loan without prejudicing the
Administrative Agent’s or the Lenders’ rights to assert them in whole or in part
in respect of any other Loan.




18.2           Costs, Expenses and
Taxes .  Borrower
shall pay within five (5) Banking Days after demand, accompanied by an invoice
therefor, the reasonable costs and expenses of the Administrative Agent in
connection with the negotiation, preparation, syndication, execution, delivery,
administration and interpretation of the Loan Documents and any amendment
thereto or waiver thereof.  Following and during the continuation of
an Event of Default, Borrower shall also pay on demand, accompanied by an
invoice therefor, the reasonable costs and expenses of the Administrative Agent
and the Lenders in connection with the refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and enforcement or
attempted enforcement of the Loan Documents, and any matter related
thereto.  The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other out
of pocket expenses and the reasonable fees and out of pocket expenses of any
legal counsel (including reasonably allocated costs of legal counsel employed by
the Administrative Agent or any Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any member of the Glimcher
Consolidated Group.  Borrower shall pay any and all documentary and
other taxes, excluding (i) taxes imposed on or measured in whole or in part by
any Lender’s overall net income imposed on such Lender (including taxes on gross
income imposed in lieu of net income, minimum taxes or branch profits taxes) by
(A) any jurisdiction (or political subdivision thereof) in which such
Lender is organized or maintains its principal office or LIBOR Lending Office or
(B) any jurisdiction (or political subdivision thereof) in which such Lender is
“doing business” or (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period with respect to
which any Lender has failed, for any reason, to provide Borrower with the
appropriate form or forms required by Section 18.20,
to the extent such forms are then required by applicable Laws to establish a
complete exemption, and all costs, expenses, fees and charges payable or
determined to be payable in connection with the filing or recording of this
Agreement, any other Loan Document or any other instrument or writing to be
delivered hereunder or thereunder, or in connection with any transaction
pursuant hereto or thereto, and shall reimburse, hold harmless and indemnify on
the terms set forth in Section 18.10
the Administrative Agent and the Lenders from and against any and all loss,
liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations.  Any amount payable to the Administrative
Agent or any Lender under this Section 18.2
shall bear interest from the fifth Banking Day following the date of demand for
payment at the Default Rate.




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18.3           Nature of Lenders’
Obligations .  The
obligations of the Lenders hereunder are several and not joint or joint and
several.  Nothing contained in this Agreement or any other Loan
Document and no action taken by the Administrative Agent or the Lenders or any
of them pursuant hereto or thereto may, or may be deemed to, make the Lenders a
partnership, an association, a joint venture or other entity, either among
themselves or with Borrower or any other Loan Party.  A default by any
Lender will not increase the Percentage of the Commitments attributable to any
other Lender.  Any Lender not in default may, if it desires, assume in
such proportion as the nondefaulting Lenders agree the obligations of any Lender
in default, but is not obligated to do so.  The Administrative Agent
agrees that it will use reasonable efforts (which will not include the payment
of money) either to induce the other Lenders to assume the obligations of a
Lender in default or to obtain another Lender, reasonably satisfactory to
Borrower, to replace such a Lender in default.  A defaulting Lender’s
right to participate in the administration of the Loan Documents, including,
without limitation, any rights to consent to or direct any action or inaction of
the Administrative Agent or to vote on any matter presented to the Lenders shall
be suspended during the pendency of such Lender’s default.




18.4           Survival of Representations
and Warranties .  All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Loan Parties pursuant to any Loan Document, will survive the making
of the Loans hereunder and the execution and delivery of the Notes, and have
been or will be relied upon by the Administrative Agent and each Lender,
notwithstanding any investigation made by the Administrative Agent or any Lender
or on their behalf.




18.5           Notices .  Except
as otherwise expressly provided in the Loan Documents, all notices, requests,
demands, directions and other communications provided for hereunder or under any
other Loan Document must be in writing and must be mailed, telegraphed,
telecopied, dispatched by commercial courier or international courier, as
applicable, or delivered to the appropriate party at the address set forth on
the signature pages of this Agreement or other applicable Loan Document or, as
to any party to any Loan Document, at any other address as may be designated by
it in a written notice sent to all other parties to such Loan Document in
accordance with this Section.  Except as otherwise expressly provided
in any Loan Document, if any notice, request, demand, direction or other
communication required or permitted by any Loan Document is given by mail it
will be effective on the earlier of (i) receipt or (ii) (A) with respect to
notices between parties located in the United States, the fourth Banking Day
after deposit in the United States mail with first class or airmail postage
prepaid or (B) with respect to notices given by or to a party not located in the
United States, the sixth Banking Day following the date of mailing; if given by
telegraph or cable, when delivered to the telegraph company with charges
prepaid; if given by telecopier, when sent; if dispatched by commercial courier,
on the scheduled delivery date; or if given by personal delivery, when delivered
(provided that if any such communication is received after normal business hours
or on a day that is not a Banking Day, it shall be deemed to have been received
on the next Banking Day following receipt).  The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices purportedly
given by or on behalf of Borrower and Lenders shall be entitled to rely and act
upon any notices purportedly given to them by or on behalf of the Administrative
Agent, even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof.  Borrower shall indemnify the
Administrative Agent and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance of such Person on each notice
purportedly given by Borrower, except to the extent of such Person’s gross
negligence.




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18.6           Execution of Loan
Documents .  Unless
the Administrative Agent otherwise specifies with respect to any Loan Document,
(a) this Agreement and any other Loan Document may be executed in any number of
counterparts and any party hereto or thereto may execute any counterpart, each
of which when executed and delivered will be deemed to be an original and all of
which counterparts of this Agreement or any other Loan Document, as the case may
be, when taken together will be deemed to be but one and the same instrument and
(b) execution of any such counterpart may be evidenced by a telecopier
transmission of the signature of such party.  The execution of this
Agreement or any other Loan Document by any party hereto or thereto will not
become effective until counterparts hereof or thereof, as the case may be, have
been executed by all the parties hereto or thereto.




18.7           Binding Effect;
Assignment .




(a)           This
Agreement and the other Loan Documents to which the Loan Parties are a party are
and will be binding upon and inure to the benefit of the Loan Parties, the
Administrative Agent, each of the Lenders, and their respective successors and
assigns, except that, except for Permitted Transfers, the Loan Parties may not
assign their rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders, and any purported
assignment without such consent shall be null and void.  Each Lender
represents that it is not acquiring its Note with a view to the distribution
thereof within the meaning of the Securities Act of 1933, as amended (subject to
any requirement that disposition of such Note must be within the control of such
Lender).  Any Lender may at any time pledge or assign a security in
all or any portion of its Note or any other instrument evidencing its rights as
a Lender under this Agreement to secure obligations of such Lender, including
without limitation (i) any pledge or assignment to secure obligations to a
Federal Reserve Bank, and (ii) any pledge or assignment to any holders of
obligations owed, or security issued, by such Lender, including to any trustee
for, or any other representative of such holders, provided that no such pledge
shall release that Lender from its obligations hereunder or grant to such
Federal Reserve Bank or other pledgee or assignee the rights of a Lender
hereunder absent foreclosure of such pledge or assignment and any such pledge
shall be in conformance with the terms and conditions hereof.




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(b)           From
time to time following the Agreement Effective Date, each Lender may assign all
or any portion of its Commitment; provided that (i) such assignee, if not
then a Lender or an Affiliate of a Lender, shall require approval by the
Administrative Agent and (if no Event of Default then exists) Borrower (neither
of which approvals shall be unreasonably withheld or delayed), (ii) such
assignment shall be evidenced by a Commitments Assignment and Acceptance, a copy
of which, together with any Notes subject to such assignment, shall be furnished
to the Administrative Agent as hereinbelow provided, (iii) except in the case of
an assignment to an Affiliate of the assigning Lender, to another Lender or of
the entire remaining Commitment of the assigning Lender, the assignment shall
not assign a share of the Commitment that is equivalent to less than $5,000,000,
(iv) the assignment shall be of a constant, and not a varying, percentage of the
Assignor’s rights and obligations under this Agreement, and (v) the effective
date of any such assignment shall be as specified in the Commitments Assignment
and Acceptance, but not earlier than the date which is three (3) Banking Days
after the date the Administrative Agent has received the Commitments Assignment
and Acceptance unless otherwise agreed by the Administrative
Agent.  Upon the effective date of such Commitments Assignment and
Acceptance, the assignee named therein shall be a Lender for all purposes of
this Agreement, with a Percentage and Commitment amount as therein (and herein,
if such assignee was already a Lender) set forth and, to the extent of the
portion of the Commitment assigned, the assigning Lender shall be released from
its further obligations under this Agreement.  Borrower agrees that it
shall execute and deliver to such assignee Lender Notes evidencing that assignee
Lender’s Commitment, and to the assigning Lender, Notes evidencing the remaining
balance of such Lender’s Commitment.




(c)           By
executing and delivering a Commitments Assignment and Acceptance, the assignee
thereunder acknowledges and agrees that: (i) the Administrative Agent has not
made any representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability, genuineness
or sufficiency of this Agreement or any other Loan Document; (ii)  the
Administrative Agent has not made any representation or warranty and assumes no
responsibility with respect to the financial condition of the Loan Parties or
the performance by the Loan Parties of the Obligations; (iii) it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 15.1 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Commitments Assignment and
Acceptance; (iv) it will, independently and without reliance upon the
Administrative Agent or any Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) it appoints
and authorizes the Administrative Agent to take such action and to exercise such
powers under this Agreement as are delegated to the Administrative Agent by this
Agreement; and (vi) it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.




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(d)           The
Administrative Agent shall maintain at the Administrative Agent’s Office a copy
of each Commitments Assignment and Acceptance delivered to it and a register
(the “Register”) of the names and address of each of the Lenders and the
Percentage applicable and Commitment amount held by each Lender, giving effect
to each Commitments Assignment and Acceptance.  The Register shall be
available during normal business hours for inspection by Borrower or any Lender
upon reasonable prior notice to the Administrative Agent.  After
receipt of a completed Commitments Assignment and Acceptance executed by any
Lender and an assignee and the Notes subject to such assignment, and receipt of
an assignment fee of $3,500 from such Lender or assignee (which fee shall be
imposed only once with respect to simultaneous transfers on a single day to
different Affiliates of such Lender), the Administrative Agent shall, promptly
following the effective date thereof, upon the request of any party, provide to
Borrower and the Lenders a revised Schedule
1.1 giving effect thereto.  Borrower, the Administrative Agent
and the Lenders shall deem and treat the Persons listed as Lenders in the
Register as the holders and owners of the Commitments listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment shall be
effective, in each case unless and until a Commitments Assignment and Acceptance
effecting the assignment or transfer thereof shall have been accepted by the
Administrative Agent and recorded in the Register as provided
above.  Prior to such recordation, all amounts owed with respect to
the applicable Commitment shall be owed to the Lender listed in the Register as
the owner thereof, and any request, authority or consent of any Person who, at
the time of making such request or giving such authority or consent, is listed
in the Register as a Lender shall be conclusive and binding on any subsequent
holder, assignee or transferee of such Commitment.




(e)           Each
Lender may from time to time grant participations to one or more banks or other
financial institutions (including another Lender but excluding an Employee Plan)
in a portion of its Commitment; provided, however, that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other financial institutions
shall not be a Lender hereunder for any purpose except, if the participation
agreement so provides, for the purposes of Sections 3.7, 3.8, and 18.10 but only to the
extent that the cost of such benefits to Borrower does not exceed the cost which
Borrower would have incurred absent the participation, (iv) Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement, (v) the participation interest shall be
expressed as a percentage of the granting Lender’s Commitment as it then exists
and shall not afford such participant any rights or privileges under the Loan
Documents except as provided in clause (iii) above.




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18.8           Right of
Setoff .  If
an Event of Default has occurred and is continuing, the Administrative Agent or
any Lender (but in each case only with the consent of the Requisite Lenders and
subject to the provisions of Section 18.9)
may exercise its rights under Article 9 of the Uniform Commercial Code and
other applicable Laws and, to the extent permitted by applicable Laws, apply any
funds in any deposit account maintained with it by Borrower and/or any Property
of Borrower in its possession against the Obligations.  any and all
rights to require administrative agent or any lender to exercise its rights or
remedies with respect to any other collateral which secures the loan (if any),
prior to exercising its right of setoff with respect to such deposits, credits,
or other property of borrowers, are hereby, knowingly, voluntarily, and
irrevocably waived.




18.9           Sharing of
Setoffs .  Each
Lender severally agrees that if it, through the exercise of any right of setoff,
banker’s lien or counterclaim against Borrower, or otherwise, receives payment
of the Obligations held by it that is ratably more than any other Lender,
through any means, receives in payment of the Obligations held by that Lender,
then, subject to applicable Laws: (a) the Lender exercising the right of setoff,
banker’s lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from each of the
other Lenders a participation in the Obligations held by the other Lenders and
shall pay to the other Lenders a purchase price in an amount so that the share
of the Obligations held by each Lender after the exercise of the right of
setoff, banker’s lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker’s
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all of the Lenders share any payment obtained in
respect of the Obligations ratably in accordance with each Lender’s share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker’s lien, counterclaim or
otherwise is thereafter recovered from the purchasing Lender by Borrower or any
Person claiming through or succeeding to the rights of Borrower, the purchase of
a participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest (unless the Lender
from which such payment is recovered is required to pay interest thereon, in
which case each Lender returning funds to such Lender shall pay its pro rata
share of such interest).  Nothing in the preceding sentence shall
require any Lender to share payments it may receive from Borrower, Guarantor or
any Affiliate of Guarantor on account of any loan or obligations due to such
Lender other than the Obligations described herein. Each Lender that purchases a
participation in the Obligations pursuant to this Section 18.9
shall from and after the purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations
purchased.  Borrower expressly consents to the foregoing arrangements
and agrees that any Lender holding a participation in an Obligation so purchased
pursuant to this Section 18.9 may
exercise any and all rights of setoff, banker’s lien or counterclaim with
respect to the participation as fully as if the Lender were the original owner
of the Obligation purchased.




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18.10       Indemnity by
Borrower .  Borrower
agrees to indemnify, save and hold harmless the Administrative Agent and Lead
Arranger and each Lender and their respective directors, officers, agents,
attorneys and employees (collectively the “Indemnitees”) from
and against: (a) any and all claims, demands, actions or causes of action
(except a claim, demand, action, or cause of action for any amount excluded from
the definition of “Taxes” in Section 3.9(d))
if the claim, demand, action or cause of action arises out of or relates to any
act or omission (or alleged act or omission) of Borrower, the other Loan Parties
or any of their officers, directors or stockholders relating to the Commitments,
the use or contemplated use of proceeds of any Loan, or the relationship of
Borrower and the Lenders under this Agreement; (b) any administrative or
investigative proceeding by any Governmental Agency arising out of or related to
a claim, demand, action or cause of action described in clause (a) above; and
(c) any and all liabilities, losses, costs or expenses (including reasonable
attorneys’ fees and the reasonably allocated costs of attorneys employed by any
Indemnitee and disbursements of such attorneys and other professional services)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action; provided that no Indemnitee
shall be entitled to indemnification for any loss caused by its own negligence
or willful misconduct or for any loss asserted against it by another
Indemnitee.  If any claim, demand, action or cause of action is
asserted against any Indemnitee, such Indemnitee shall promptly notify Borrower,
but the failure to so promptly notify Borrower shall not affect Borrower’s
obligations under this Section unless such failure materially prejudices
Borrower’s right to participate in the contest of such claim, demand, action or
cause of action, as hereinafter provided.  Such Indemnitee may (and
shall, if requested by Borrower in writing) contest the validity, applicability
and amount of such claim, demand, action or cause of action and shall permit
Borrower to participate in such contest.  Any Indemnitee that proposes
to settle or compromise any claim or proceeding for which Borrower may be liable
for payment of indemnity hereunder shall give Borrower written notice of the
terms of such proposed settlement or compromise reasonably in advance of
settling or compromising such claim or proceeding and shall obtain Borrower’s
prior written consent (which shall not be unreasonably withheld or
delayed).  In connection with any claim, demand, action or cause of
action covered by this Section 18.10
against more than one Indemnitee, all such Indemnitees shall be represented by
the same legal counsel (which may be a law firm engaged by the Indemnitees or
attorneys employed by an Indemnitee or a combination of the foregoing) selected
by the Indemnitees and reasonably acceptable to Borrower; provided, that if such
legal counsel determines in good faith that representing all such Indemnitees
would or could result in a conflict of interest under Laws or ethical principles
applicable to such legal counsel or that a defense or counterclaim is available
to an Indemnitee that is not available to all such Indemnitees, then to the
extent reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each affected
Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrower, with all such
legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and further provided that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the
foregoing).  Any obligation or liability of Borrower to any Indemnitee
under this Section 18.10
shall survive the expiration or termination of this Agreement and the repayment
of all Loans and the payment and performance of all other Obligations owed to
the Lenders.




18.11       Nonliability of the
Lenders .  Borrower
acknowledges and agrees that:




(a)           Any
inspections of any Property of Borrower or any other Loan Party made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Loan only and Borrower and such other Loan Parties are not
entitled to rely upon the same (whether or not such inspections are at the
expense of Borrower);




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(b)           By
accepting or approving anything required to be observed, performed, fulfilled or
given to the Administrative Agent or the Lenders pursuant to the Loan Documents,
neither the Administrative Agent nor the Lenders shall be deemed to have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or representation
to anyone with respect thereto by the Administrative Agent or the
Lenders;




(c)           The
relationship between Borrower and the Administrative Agent and the Lenders is,
and shall at all times remain, solely that of borrowers and lenders; neither the
Administrative Agent nor the Lenders shall under any circumstance be construed
to be partners or joint venturers of Borrower or any other Loan Party, neither
the Administrative Agent nor the Lenders shall under any circumstance be deemed
to be in a relationship of confidence or trust or a fiduciary relationship with
Borrower or any other Loan Party, or to owe any fiduciary duty to Borrower or
any other Loan Party; neither the Administrative Agent nor the Lenders undertake
or assume any responsibility or duty to Borrower or any other Loan Party, to
select, review, inspect, supervise, pass judgment upon or inform Borrower or any
other Loan Party, of any matter in connection with their Property or the
operations of Borrower or any other Loan Party; Borrower and such other Loan
Parties shall rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise of judgment or supply
of information undertaken or assumed by the Administrative Agent or the Lenders
in connection with such matters is solely for the protection of the
Administrative Agent and the Lenders and neither Borrower nor any other Person
is entitled to rely thereon; and




(d)           The
Administrative Agent and the Lenders shall not be responsible or liable to any
Person for any loss, damage, liability or claim of any kind relating to injury
or death to Persons or damage to Property caused by the actions, inaction or
negligence of Borrower and/or any other Loan Party, and Borrower hereby
indemnifies and holds the Administrative Agent and the Lenders harmless on the
terms set forth in Section 18.10
from any such loss, damage, liability or claim.




18.12       No Third Parties
Benefited .  This
Agreement is made for the purpose of defining and setting forth certain
obligations, rights and duties of Borrower, the Administrative Agent and the
Lenders in connection with the Loans, and is made for the sole benefit of
Borrower, the Administrative Agent and the Lenders, and the Administrative
Agent’s and the Lenders’ successors and assigns.  Except as provided
in Sections
18.7 and 18.10 no other Person
shall have any rights of any nature hereunder or by reason hereof.




18.13       Confidentiality .




(a)           Confidentiality.  Each
Lender and the Administrative Agent (each, a “Lender Party”) hereby
agrees for itself only that, except as specifically set forth herein, such
Lender Party (i) shall not participate in or generate any press release or other
release of information to the general public relating to the Closing of the Loan
without the prior written consent of Borrower, which consent shall not be
unreasonably withheld, conditioned or delayed, (ii) hold the Confidential
Information in strict confidence in accordance with such Lender Party’s
customary procedures to prevent the misuse or disclosure of confidential
information of this nature and in accordance with safe and sound banking
practices, (iii) shall use the Confidential Information solely for the purposes
of underwriting the Loan or acquiring an interest therein, carrying out such
Lender Party’s rights or obligations under this Agreement, in connection with
the syndication of the Loan, the enforcement of the Loan Documents, or other
internal examination, supervision or oversight of the transactions contemplated
hereby as reasonably determined by such Lender Party, or as otherwise permitted
by the terms of this Section 18.13
(collectively, “Permitted Purposes”),
and (iv) shall not disclose the Confidential Information to any third party,
except as expressly authorized in this Agreement or with prior written consent
of Borrower.  Each Lender Party shall promptly notify Borrower in the
event that it becomes aware of any loss or unauthorized disclosure of any
Confidential Information.




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Each
Lender Party shall not have any obligations under this Agreement with respect to
a specific portion of the Confidential Information if such Lender Party can
demonstrate that such Confidential Information (i) was publicly available at the
time it was disclosed to such Lender Party, (ii) became publicly available
subsequent to the time it was disclosed to such Lender Party (except to the
extent such public availability was the result of such Lender Party’s
disclosure), (iii) was in or came into a Lender Party’s possession from a source
not known to such Lender Party (after reasonable inquiry) to be in breach of an
obligation of confidentiality owed to Borrower in making such disclosure to such
Lender Party, (iv) was in or comes into Lender Party’s possession free of any
obligation of confidence owed to Borrower at the time it was disclosed to such
Lender Party, or (v) was developed by the employees or agents of the Lender
Party without the use of the Confidential Information.




(b)           Disclosures.  Any
Lender Party or its legal counsel may disclose the Confidential Information (i)
to Borrower, other Lenders, the Administrative Agent or any of their respective
legal counsel or employees involved with the Loan, (ii) to its auditors in
connection with bank audits or regulatory officials having jurisdiction over
such Lender Party, (iii) to its legal counsel who need to know the Confidential
Information for the purposes of representing or advising the Lender Parties,
(iv) to its consultants, agents and advisors retained in good faith by such
Lender Party with a need to know such information in connection with a Permitted
Purpose or to otherwise advise or consult with such Lender Party, (v) as
required by Law or legal process (subject to the terms below), or in connection
with any legal proceeding to which that Lender Party and any Loan Party are
adverse parties (and Borrower hereby acknowledges and agrees that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001) (the “Act”), each Lender is
required to obtain, verify and record information that identifies the Loan
Parties, which information includes the name and address of the Loan Parties and
other information that will allow such Lender to identify the Loan Parties in
accordance with the Act), (vi) to another potential Lender or participant in
connection with an assignment or proposed assignment to that Person of all or
part of that Lender Party’s interests hereunder or a participation interest in
its Notes, and (vii) to its directors, officers, employees and Affiliates who
need to know the Confidential Information for purposes of underwriting the Loan
or becoming a party to this Agreement, the syndication of the Loan, the
administration, interpretation, performance or exercise of rights under the Loan
Documents, the enforcement of the Loan Documents, or other internal supervision,
examination or oversight of the transactions contemplated hereby as reasonably
determined by such Lender Party, provided that any
Person to whom any of the Confidential Information is disclosed is informed by
such Lender Party of the strictly confidential nature of the Confidential
Information, and such Persons described in clauses (b)(iv) and
(vi) shall
agree in writing to be bound by confidentiality restrictions at least as
restrictive as those contained herein.  Notwithstanding the foregoing,
a Lender Party may disclose Confidential Information to the extent such Lender
Party is requested or required by any Law or any order of any Governmental
Agency or self regulatory body or other legal process to make any disclosure of
or about any of the Confidential Information.  In such event (except
with respect to banking regulators or auditors), such Lender Party shall, if
permitted by Law, promptly notify Borrower in writing so that Borrower may seek
an appropriate protective order or waive compliance with the provisions of this
Agreement (provided that if a
protective order or the receipt of a waiver hereunder has not been obtained, or
if prior notice is not possible, and a Lender Party is, in the opinion of its
counsel, compelled to disclose Confidential Information, such Lender Party may
disclose that portion of the Confidential Information which its counsel advises
it that such Lender Party is compelled to disclose, and provided further that
in any event, such Lender Party will not oppose action by Borrower to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Information.) Each Lender Party
shall be liable (but only to the extent it is finally determined to have
breached the provisions of this Section 18.13(b))
for any actions by such Lender Party (but not any other Person) which are not in
accordance with the provisions of this Section 18.13(b).




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Notwithstanding
anything herein to the contrary, Confidential Information shall not include, and
Administrative Agent and each Lender may disclose to any and all Persons,
without limitation of any kind, any information with respect to the “tax
treatment” and “tax structure” (in each case, within the meaning of Treasury
Regulation Section 1.6011 4) of the transactions contemplated hereby and
all materials of any kind (including opinions or other tax analyses) that are
provided to the Administrative Agent or any Lender relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, and transactions
contemplated hereby.




(c)           No Fiduciary
Duty.  Nothing in this Section shall be construed to create or
give rise to any fiduciary duty on the part of the Administrative Agent or the
Lenders to Borrower.




(d)           Separate
Action.  Borrower covenants and agrees not to, and hereby
expressly waives any right to, raise as a defense, affirmative defense, setoff,
recoupment or otherwise against any Lender Party any claim arising from or
relating to an alleged breach of this Section 18.13 in
any action, claim or proceeding relating to a breach of the Loan Documents by
Borrower or other action to enforce or recover the Obligations, and covenant and
agree that any claim against a Lender Party arising from or relating to an
alleged breach of this Section 18.13 by
a Lender Party shall only be asserted as an affirmative claim in a separate
action against the applicable Lender Party.




-78-


18.14      Further
Assurances .  Borrower
shall, at its expense and without expense to the Lenders or the Administrative
Agent, do, execute and deliver such further acts and documents as the Requisite
Lenders or the Administrative Agent from time to time reasonably require for the
assuring and confirming unto the Lenders or the Administrative Agent of the
rights hereby created or intended now or hereafter so to be, or for carrying out
the intention or facilitating the performance of the terms of any Loan
Document.




18.15      Integration .  This
Agreement, together with the other Loan Documents, comprises the complete and
integrated agreement of the parties on the subject matter hereof and supersedes
all prior agreements, written or oral, on the subject matter
hereof.  In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control and govern; provided that the
inclusion of supplemental rights or remedies in favor of the Administrative
Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement.  Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair
meaning thereof.




18.16      Governing
Law .  Except
to the extent otherwise provided therein, each Loan Document shall be governed
by, and construed and enforced in accordance with, the Laws of the State of Ohio
without any regard to conflicts of law principles that would result in the
application of any Law other than the Laws of the State of Ohio, but giving
effect to federal laws applicable to national banks.




18.17      Severability of
Provisions .  Any
provision in any Loan Document that is held to be inoperative, unenforceable or
invalid as to any party or in any jurisdiction shall, as to that party or
jurisdiction, be inoperative, unenforceable or invalid without affecting the
remaining provisions or the operation, enforceability or validity of that
provision as to any other party or in any other jurisdiction, and to this end
the provisions of all Loan Documents are declared to be severable.




18.18      Headings .  Article
and Section headings in this Agreement and the other Loan Documents are included
for convenience of reference only and are not part of this Agreement or the
other Loan Documents for any other purpose.




18.19      Time of the
Essence .  Time
is of the essence of the Loan Documents.




18.20      [Intentionally
Omitted]




18.21      Removal of a
Lender .  Borrower
shall have the right to remove a Lender as a party to this Agreement if (a) such
Lender is paid a material amount by Borrower pursuant to Section 3.4 or
Section 3.5, (b)
any of the events described in Section 16.1(n)
occurs with respect to such Lender, or (c) such Lender becomes (and at the time
of the proposed removal hereunder remains) a Defaulting Lender
hereunder.  Upon notice from Borrower, such Lender shall execute and
deliver a Commitments Assignment and Acceptance covering that Lender’s
Percentage of the Commitments in favor of such Purchaser as Borrower may
designate with the approval of the Administrative Agent, subject to payment in
full by such assignee of all principal, interest and fees and any other amount
owing to such Lender through the date of assignment.  The removal of
any Defaulting Lender pursuant to this Section 18.21
shall not preclude Borrower from pursuing all remedies available to it against
such Defaulting Lender for damages arising out of such Defaulting Lender’s
breach hereof.




-79-


18.22      Waiver Of Right To Trial By
Jury .  Each
party to this agreement hereby expressly waives any right to trial by jury of
any claim, demand, action or cause of action arising under any loan document or
in any way connected with or related or incidental to the dealings of the
parties hereto or any of them with respect to any loan document, or the
transactions related thereto, in each case whether now existing or hereafter
arising, and whether sounding in contract or tort or otherwise; and each party
hereby agrees and consents that any such claim, demand, action or cause of
action shall be decided by court trial without a jury, and that any party to
this agreement may file an original counterpart or a copy of this section with
any court as written evidence of the consent of the signatories hereto to the
waiver of their right to trial by jury.




18.23      Purported Oral
Amendments .  borrower
expressly acknowledges that this agreement and the other loan documents may only
be amended or modified, or the provisions hereof or thereof waived or
supplemented, by an instrument in writing that complies with section
19.1.  borrower agrees that it will not rely on any course of
dealing, course of performance, or oral or written statements by any
representative of the administrative agent or any lender that does not comply
with section
19.1 to effect an amendment, modification, waiver or supplement to this
agreement or the other loan documents.




18.24      Sign and
Publicity .  Borrower
shall promptly erect a sign approved in advance by the Administrative Agent and
reasonably acceptable to Borrower in a conspicuous location on the Project
during Construction indicating that the financing for the Project is being
provided by the Lenders, provided that such sign shall comply with all
applicable laws and shall not identify any Lender without such Lender’s
consent.




18.25     
Replacement of
Notes .  Upon
receipt of evidence reasonably satisfactory to Borrower of the loss, theft,
destruction or mutilation of any Note, and in the case of any such loss, theft
or destruction, upon delivery of an indemnity agreement relating solely to such
Note on terms reasonably satisfactory to Borrower and the holder of such Note
or, in the case of any such mutilation, upon surrender and cancellation of the
applicable Note, Borrower will execute and deliver, in lieu thereof, a
replacement Note, identical in form and substance to the applicable Note and
dated as of the date of the applicable Note and upon such execution and delivery
all references in the Loan Documents to such Note shall be deemed to refer to
such replacement Note.




18.26     
Defaulting
Lenders .  In
the event that any Lender becomes a Defaulting Lender, then, in addition to any
rights and remedies that may be available to Borrower or the other Lenders and
the Administrative Agent (such other Lenders and the Administrative Agent being
called “Non-Defaulting
Lenders”) at Law or in equity:




(a)           The
Defaulting Lender’s rights to participate in the administration of the Loan and
the Loan Documents, including any right to vote upon, approve, disapprove,
consent to or direct any action of the Administrative Agent (other than
amendments to the Loan Documents directly affecting the Defaulting Lender’s
Commitment), shall be suspended and such rights shall not be reinstated unless
and until such Lender ceases to be a Defaulting Lender (and all decisions,
except the decision to remove the Administrative Agent, which are to be based on
a vote of the Requisite Lenders or all Lenders shall be resolved based upon a
decision or determination made by the required percentage of the Non-Defaulting
Lenders); provided, however, that if the Administrative Agent is a Defaulting
Lender, the Administrative Agent shall continue to have all rights provided for
in this Loan Agreement, as the Administrative Agent only, without any rights to
vote in its capacity as a Lender, with respect to the administration of the Loan
unless it is removed and replaced as the Administrative Agent as provided in
Section 17.8.




-80-


(b)           Any
or all of the Non-Defaulting Lenders shall be entitled (but shall not be
obligated) to:  (i) fund the aggregate amount that the Defaulting
Lender has failed to fund or pay to the Administrative Agent (such amount being
called the “Defaulted Amount”); and (ii) collect interest at the Default Rate on
the Defaulted Amount (after crediting all interest actually paid by Borrower on
the Defaulted Amount from time to time), either directly from the Defaulting
Lender or from amounts otherwise payable to the Defaulting Lender, for the
period from the date on which the Defaulted Amount was funded by the
Non-Defaulting Lenders until the date on which payment is made.  If
the Administrative Agent has funded the Defaulted Amount, the Administrative
Agent shall be entitled to collect interest at the Default Rate from the
Defaulting Lender on the Defaulted Amount as set forth above, as if the
Administrative Agent were a Non-Defaulting Lender that had elected to fund the
Defaulted Amount.




(c)           In
the event the Defaulted Amount is funded by any Non-Defaulting Lenders or the
Administrative Agent pursuant to Section 18.26(b)
above, the Defaulting Lender’s interest in the Loans, the Loan Documents and
proceeds thereof shall be subordinated to any Defaulted Amount funded by any
Non-Defaulting Lenders or the Administrative Agent pursuant to Section 18.26(b)
above, plus all interest which may be due in accordance with Section 18.26(b)
above (to be applied pari passu among the Non-Defaulting Lenders (including the
Administrative Agent, unless the Administrative Agent is the Defaulting Lender)
funding the Defaulted Amount), without necessity for executing any further
documents; provided that such Defaulting Lender’s interest in the Loan, the Loan
Documents and the proceeds thereof shall no longer be so subordinated if the
Defaulted Amount funded by the Non-Defaulting Lenders or the Administrative
Agent (and all interest which has accrued pursuant to Section 18.26(b)
above) shall be repaid in full.




(d)           If,
following the payment in full of all amounts due pursuant to Section 18.26(c)
above to the Non-Defaulting Lenders (including the Administrative Agent, unless
the Administrative Agent is the Defaulting Lender) which have funded all or any
portion of any Defaulted Amount, there remains any unfunded Defaulted Amount
which has not been funded by the Non-Defaulting Lenders, the Administrative
Agent or the Defaulting Lender (“Unfunded Defaulted Amount”), then a portion of
the Defaulting Lender’s interest in the Loan, the Loan Documents and the
proceeds thereof equal to the amount of the Unfunded Defaulted Amount (together
with interest thereon at the rate applicable to the Defaulted Amount from time
to time pursuant to the Loan Documents) shall be subordinated to the interests
of  the Non-Defaulting Lenders (including the Administrative Agent,
unless the Administrative Agent is the Defaulting Lender) unless and until such
Unfunded Defaulted Amount is funded either by one or more Non -Defaulting
Lenders, the Administrative Agent or the Defaulting Lender.




(e)           Subject
to the provisions of Section 18.7
each Non-Defaulting Lender will have the right, but not the obligation, in its
sole discretion, to acquire at par all or a proportionate share (based on the
ratio of its Commitment to the aggregate amount of the Commitments of all of the
Non-Defaulting Lenders that elect to acquire a share of the Defaulting Lender’s
Commitment) of the Defaulting Lender’s Commitment, including without limitation
its proportionate share in the outstanding principal balance of the Loan, and
all rights and interests of the Defaulting Lender under this Agreement and the
other Loan Documents.




-81-


(f)           Nothing
herein contained shall be deemed or construed to waive, diminish, limit, prevent
or estop the Administrative Agent, Borrower or any Lender from exercising or
enforcing any rights or remedies which may be available at law or in equity as a
result of or in connection with any default under this Agreement by a Lender
(including the right to bring suit against the Defaulting Lender to recover the
Defaulted Amount and interest thereon at the rate provided in this Section 18.26).




ARTICLE
19




AMENDMENTS;
CONSENTS




19.1           Amendments;
Consents .  No
amendment, modification, supplement, extension, termination or waiver of any
provision of this Agreement or any other Loan Document, no approval or consent
thereunder not expressly delegated to the Administrative Agent, and no consent
to any departure by Borrower or any other Loan Party therefrom, may in any event
be effective unless in writing signed by (i) in all circumstances other than
those described in clause (ii) of this sentence, the Requisite Lenders and (ii),
in the case of the following actions, all of the Lenders.




(a)           To
amend, modify, forgive, reduce or waive the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on, any Note,
or the amount of the Commitments or the Percentage of any Lender or the amount
of any commitment fee payable to any Lender, or any other fee or amount payable
to any Lender under the Loan Documents or to waive an Event of Default
consisting of the failure of Borrower to pay when due principal, interest or any
fee;




(b)           To
postpone any date fixed for any payment of principal of, prepayment of principal
of or any installment of interest on, any Note or any installment of any fee, or
to extend the term of the Commitments;




(c)           To
amend the provisions of the definition of “Event of Default”, “Requisite
Lenders”, or “Maturity Date” or the provisions of Section 2.6 or of
Section
13.4;




(d)           To
amend or waive this Section
19.1;




(e)           To
amend any provision of this Agreement that expressly requires the consent or
approval of all of the Lenders to require a lesser number of Lenders to approve
such action;




(f)           To
release Borrower or any Guarantor or any Collateral or to subordinate the
Lenders’ security interest in the Collateral, except as specifically provided
herein or in the Security Documents; or




-82-


(g)           To
change the manner of distribution of any payments to the Lenders or the
Administrative Agent;




and, in
the case of any amendment, modification or supplement of or to any Loan Document
to which Borrower or any other Loan Party is a party, signed by each such party,
and, in the case of any amendment, modification or supplement to Section 3.2 or
Article 17,
signed by the Administrative Agent. In addition, with respect to the
Administrative Agent’s approval rights in the following situations, the
Administrative Agent agrees that it shall not give such approval without first
obtaining the prior approval of the Requisite Lenders: (i) the right to approve
the Budget as of the Loan Opening Date and any changes to the Budget after the
Loan Opening Date which increase any line item in the Budget by more than ten
percent (10%) or which would result, in the aggregate, in an increase of more
than ten percent (10%) of the aggregate amount of the Budget as approved on the
Loan Opening Date; (ii) the right to approve the Borrower’s Builder’s Risk
insurance as of the Loan Opening Date under Section 6.2(k);
(iii) the right to approve any amendment, modification or change to the
Ground Lease which materially diminishes the rights of the Borrower or leasehold
mortgagees thereunder or materially increases the obligations of the Borrower
thereunder; and (iv) the right to approve any amendment, modification or change
to the Phase III Purchase Agreement which materially diminishes the rights of
the Borrower thereunder or materially increases the obligations of the Borrower
thereunder. Borrower shall be entitled to rely on any such approval given by the
Administrative Agent without any obligation to confirm that the Administrative
Agent has obtained any such approval from the Requisite Lenders.






-83-


No
amendment, modification, supplement, extension, termination or waiver or consent
may be effective to require a Lender to fund more than its Commitment of a
Request for an Advance, without the approval of any Lender affected
thereby.  Any amendment, modification, supplement, termination, waiver
or consent pursuant to this Section 19.1
shall apply equally to, and shall be binding upon, all the Lenders and the
Administrative Agent.




[Signature
Pages on Following Pages]








-84-


IN
WITNESS WHEREOF, the parties hereto have caused this Construction, Acquisition
and Interim Loan Agreement to be duly executed as of the date first above
written.




BORROWER:




KIERLAND CROSSING, LLC,a
Delaware limited liability company




By:
            Glimcher
      Kierland Crossing, LLC, a Delaware
              limited
      liability company, its managing
member




By:
            Glimcher
      Properties Limited Partnership,
              a
      Delaware limited partnership




By:
            Glimcher
      Properties Corporation, a Delaware
              corporation,
      its general partner




By:/s/ George A.
Schmidt


Name:
George A. Schmidt


Title:
Executive Vice President and Chief Investment Officer




Address:




150 East
Gay Street


24th
Floor


Columbus,
OH  43215


Attn:  General
Counsel







-85-


ADMINISTRATIVE
AGENT:




KEYBANK NATIONAL ASSOCIATION,
a national


banking
association, as Administrative Agent




By:          /s/ Kevin P.
Murray


Name:     Kevin P.
Murray


Title:       Senior Vice
President







Address:




KeyBank -
Real Estate Capital


127
Public Square - 8th Floor


Mail
Code: OH-01-27-0839


Cleveland,
Ohio 44114


Phone:  216-689-4660


Facsimile:  216-689-4997


Attn:  Kevin
Murray




LENDERS:




KEYBANK NATIONAL ASSOCIATION,
a national


banking
association




By:          /s/ Kevin P.
Murray


Name:     Kevin P.
Murray


Title:       Senior Vice
President







Address:




KeyBank -
Real Estate Capital


127
Public Square - 8th Floor


Mail
Code: OH-01-27-0839


Cleveland,
Ohio 44114


Phone:  216-689-4660


Facsimile:  216-689-4997


Attn:  Kevin
Murray




-86-




EUROHYPO AG, NEW YORK
      BRANCH,Individually and as Syndication
  Agent




By:       /s/ Mark A.
Fisher


Name:  Mark A.
Fisher


Title:    Executive
Director




By:       /s/ Stephen
Cox


Name:  Stephen
Cox


Title:    Director




Address
for notices:
  Eurohypo
AG, New York Branch
 1114
Avenue of the Americas, 29th
Floor
 New York,
New York 10036
 Attention: Head of
Portfolio Operations
 Facsimile: 866-267-7680
  with copy
to:
  Eurohypo
AG, New York Branch
 1114
Avenue of the Americas, 29th
Floor
 New York,
New York 10036
 Attention: Head of
Legal Department
 Facsimile: 866-267-7680









-87-








THE HUNTINGTON NATIONAL
      BANK, individually
              and
      as Documentation Agent




By:       /s/ Ronald S.
Content


Name:  Ronald S.
Content


Title:    Vice
President




The
Huntington National Bank
 41 S.
High Street, HC0840
 Columbus,
Ohio  43215
 Attention: Ronald S.
Content, Vice President
 Phone: 614-480-4378
 Facsimile: 614-480-3698








-88-


U.S. BANK NATIONAL
ASSOCIATION








By:        /s/ Anthony J.
Mathena


Name:  
Anthony J.
Mathena


Title:     Vice
President




U.S. Bank
National Association
 175 S.
Third Street
 Columbus,
Ohio  43215
 Attention: Anthony
Mathena, Vice President
 Phone: 614-232-8013
 Facsimile: 614-232-8033


-89-
 NATIONAL
CITY BANK





By:       /s/ Brent
Sobczak


Name:  Brent
Sobczak


Title:    Assistant Vice
President







National
City Bank
 155 E.
Broad Street
 Columbus,
Ohio  43251
 Attention: Brent
Sobczak,
 Assistant
Vice President
 Phone: 614-463-7233
 Facsimile: 614-463-8058






-90-


PNC
BANK, NATIONAL ASSOCIATION





By:       /s/ Richard
Trzybinski


Name:  Richard
Trzybinski


Title:    Vice
President




PNC Bank,
National Association
 201 East
Fifth Street
 Cincinnati,
Ohio  45202
 Attention: Richard
Trzybinski, Vice President
 Phone: 513-651-8939
 Facsimile: 513-651-8931








-91-


EXHIBIT
A-1




Legal Description Of Phase
I/Phase II Land




A portion
of the northwest quarter of Section 11 and the southwest quarter of Section 2,
Township 3 North, Range 4 East of the Gila and Salt River Base and Meridian,
Maricopa County, Arizona being described as follows:




COMMENCING
at a brass cap in hand hole found at the northwest corner of said Section 11,
also being the point of intersection of the monumented centerlines of
Greenway-Gayden Loop and Scottsdale Road, from which a brass cap in hand hole
found at the intersection of the monumented centerlines of Scottsdale Road and
Butherus Road bears South 01◦08’00”
West, of 1100.20 feet;




Thence
South 89◦40’34”
East, along the monumented centerline of Greenway-Hayden Road, a distance of
65.07 feet to brass cap in hand hole and a point on a non-tangent curve, the
radius point of which bears North 00◦19’08”
East, 2,000.00 feet;




Thence
easterly, along the arc of said curve to the left and said monumented centerline
of Greenway-Hayden Loop, through a central angle of 16◦55’21”,
an arc distance of 590.71 feet;




Thence
South 16◦36’13”
East, 65.00 feet to a point on a line lying 65.00 feet south of and parallel to
said monumented centerline of Greenway-Hayden Loop and the TRUE POINT OF
BEGINNING;




Thence
continuing South 16◦36’13”
East 40.25 feet to a point of curvature having a radius of 150.00
feet;




Thence
southerly along said curve to the right through a central angle of 17◦44’55” an
arc distance of 46.47 feet;




Thence
South 01◦08’42”
West, 1000.15 feet to a point on a line lying 50.00 feet north of and parallel
to the monumented centerline of Butherus Road;




Thence
North 88◦51’18”
West, along said line lying 50.00 feet north of and parallel to the monumented
centerline of Butherus Road, 594.92 feet to a point of curvature having a radius
of 25.00 feet;




Thence
northwesterly, along the arc of said curve to the right, through a central angle
of 89◦59’18”,
an arc distance of 39.26 feet to a point on a line lying 65.00 feet east of and
parallel to the monumented centerline of Scottsdale Road;




Thence
North 01◦08’00”
East, along said line lying 65.00 feet east of and parallel to the monumented
centerline of Scottsdale Road 941.49 feet to a point of curvature having a
radius of 20.00 feet;




Thence
northeasterly along the arc of said curve to the right, through a central angle
of 88◦40’15”,
an arc distance of 30.95 feet to a point on a line lying 65.00 feet south of and
parallel to the monumented centerline of Greenway-Hayden Loop and a point of
reverse curvature having a radius of 2,065,00 feet;




Thence
easterly, along the arc of said curve to the left and said line lying 65.00 feet
south of and parallel to the monumented centerline of Greenway-Hayden Loop
through a central angle of 16◦24’28” an
arc distance of 591.35 feet to the TRUE POINT OF BEGINNING.









EXHIBIT
A-2
  Legal Description Of Phase
III Parcels











-2-













-3-









-4-









-5-











-6-


EXHIBIT
A-3




Site Plan of Phase
I




Phase IA
of the Project shall consist of Buildings B, C and E shown on the attached Site
Plan and all sitework for Phase I of the Project.


Phase IB
of the Project shall consist of Buildings A and D shown on the attached Site
Plan.


Phase IC
of the Project shall consist of Building J shown on the attached Site
Plan.











EXHIBIT
A-3
 Site Plan of Phase
I









-2-
 
 EXHIBIT
A-4
  Site Plan of all
Phases
  
  
  EXHIBIT
B
  Commitments Assignment and
Acceptance
  ASSIGNMENT AND ACCEPTANCE
AGREEMENT
 
 
 This
ASSIGNMENT AND ACCEPTANCE AGREEMENT (the “Assignment and Acceptance”) dated as
of ______________, 200_, is made by and between (“Assignor”) and
_________________ (“Assignee”).
  RECITALS
  WHEREAS,
Assignor is party to that certain Construction, Acquisition and Interim Loan
Agreement dated as of November __, 2007 (as it may have been or hereafter may be
amended, amended and restated, modified, supplemented or renewed from time to
time, the “Agreement”), among
Kierland Crossing, LLC (“Borrower”), the
several financial institutions from time to time party thereto (collectively,
including Assignor, “Lenders”), and
KeyBank National Association, as administrative agent for Lenders (in such
capacity, “Agent”).  Capitalized
terms used in this Assignment and Acceptance and not defined herein have the
meanings given to them in the Agreement;
  WHEREAS,
as provided under the Agreement, Assignor currently has a Commitment in the
amount shown on Schedule 1 attached
hereto, of which the amount shown on Schedule 1 has been
advanced and is outstanding as of the date of Schedule 1;
and
  WHEREAS,
Assignor wishes to assign to Assignee a portion of its rights and obligations
under the Agreement in respect of its Commitment, in the amount shown on Schedule 1 as the
“Assigned
Amount” on the terms and subject to the conditions set forth herein, and
Assignee wishes to accept the assignment of such rights and to assume such
obligations from Assignor on such terms and subject to such
conditions;
  NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements contained
herein, the parties hereto agree as follows:
  1.           Assignment and
Acceptance.
  1.1           Subject
to the terms and conditions of this Assignment and Acceptance, (i) Assignor
hereby sells, transfers and assigns to Assignee, and (ii) Assignee hereby
purchases, assumes and undertakes from Assignor, without recourse and without
representation or warranty (except as provided in this Assignment and
Acceptance) the portion shown on Schedule 1 of (A) the
Commitment of Assignor and (B) all related rights, benefits, obligations,
liabilities and indemnities of Assignor under and in connection with the
Agreement, the other Loan Documents arising from and after the date
hereof.
  1.2           With
effect on and after the Effective Date (as defined in Section 5 hereof),
Assignee shall be a party to the Agreement and shall succeed to all of the
rights and be obligated to perform all of the obligations of a Lender under the
Agreement and arising from and after the date hereof, including the rights with
respect to indemnification, with a Commitment equal to the Assigned Amount (plus
the amount of Assignee’s existing Commitment, if any) as shown on Schedule
1.  Assignee agrees that it will perform in accordance with its
terms all of the obligations that it is required to perform as a Lender under
the Agreement arising from and after the date hereof.  It is the
intent of the parties hereto that the Commitment of Assignor shall, as of the
Effective Date, be reduced by an amount equal to the Assigned Amount and
Assignor shall relinquish its rights and be released from its obligations under
the Agreement to the extent such obligations have been assumed by Assignee;
provided,
however, that Assignor shall not relinquish its rights to be indemnified by
Borrower under Section
18.11 of the Agreement or any other similar indemnity provisions of the
Loan Documents to the extent such rights relate to the time prior to the
Effective Date.
  
 1.3           After
giving effect to the assignment and assumption set forth herein, Assignor’s
Commitment as of the end of the Effective Date, and its Percentage, will be as
shown on Schedule
1.
  1.4           After
giving effect to the assignment and assumption set forth herein, Assignee’s
Commitment as of the end of the Effective Date, and its Percentage, will be as
shown on Schedule
1.
  2.           Payments.  As
consideration for the sale, assignment and transfer contemplated in Section 1 hereof,
Assignee shall pay to Assignor on the Effective Date in immediately available
funds an amount equal to the principal amount of all outstanding Advances
included in the Assigned Amount.
  3.           Re-allocation of
Payments.  Any interest, fees and other payments accrued to the
Effective Date with respect to the Commitment of Assignor shall be for the
account of Assignor.  Any interest, fees and other payments accrued on
and after the Effective Date with respect to the Assigned Amount shall be for
the account of Assignee.  Each of Assignor and Assignee agrees that it
will hold in trust for the other party any interest, fees and other amounts that
it may receive to which the other party is entitled pursuant to the preceding
sentence and pay to the other party any such amounts that it may receive
promptly upon receipt.
  4.           Independent Credit
Decision.  Assignee (a) acknowledges that it has received a
copy of the Agreement and the Exhibits thereto, together with copies of the most
recent financial statements referred to in Section 15.1 of the
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to enter into this
Assignment and Acceptance; and (b) agrees that it will, independently and
without reliance upon Assignor, Agent or any other Lender and based on such
documents and information as it deems appropriate at the time, continue to make
its own credit and legal decisions in taking or not taking action under the
Agreement.
  5.           Effective Date;
Notices.
  5.1           As
between Assignor and Assignee, the effective date for this Assignment and
Acceptance shall be the date so identified on Schedule 1 (the
“Effective
Date”); provided that the
following conditions precedent have been satisfied on or before the Effective
Date:
  -2-
 (a)           this
Assignment and Acceptance shall be executed and delivered by Assignor and
Assignee;
  (b)           if
and to the extent required under Section 18.7(b) of
the Agreement, the consent of Agent and Borrower for the assignment of the
Assigned Amount by Assignor to Assignee shall have been duly obtained and shall
be in full force and effect as of the Effective Date; and
  (c)           Assignee
shall pay to Assignor all amounts due to Assignor under this Assignment and
Acceptance.
  5.2           Promptly
following the execution of this Assignment and Acceptance, Assignor shall
deliver to Agent for acknowledgment by Agent, and if applicable, Borrower, a
Notice of Assignment substantially in the form attached hereto as Schedule
2.
  6.           Agent.
  6.1           Assignee
hereby appoints and authorizes Agent to take such action as agent on its behalf
and to exercise such powers under the Agreement as are delegated to Agent by the
Lenders pursuant to the terms of the Agreement.
  6.2           If
Assignor is also the Agent, Assignee shall assume no duties or obligations held
by Assignor in its capacity as Agent under the Agreement.
  7.           Withholding
Tax.  Assignee (a) represents and warrants to Lenders, Agent
and Borrower that under applicable Law and treaties no tax will be required to
be withheld by the Lenders with respect to any payments to be made to Assignee
hereunder, (b) agrees to comply with (if it is organized under the Laws of any
jurisdiction other than the United States or any state thereof) Section 3.10 of the
Agreement prior to the time that Agent or Borrower is required to make any
payment of principal, interest or fees hereunder or under the Loan Documents to
Assignee.
  8.           Representations and
Warranties.
  8.1           Assignor
represents and warrants that (i) it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear
of any lien or other adverse claim; (ii) it is duly organized and existing and
it has the full power and authority to take, and has taken, all action necessary
to execute and deliver this Assignment and Acceptance and any other documents
required or permitted to be executed or delivered by it in connection with this
Assignment and Acceptance and to fulfill its obligations hereunder; (iii) no
notices to, or consents, authorizations or approvals of, any Person are required
(other than any already given or obtained) for its due execution, delivery and
performance of this Assignment and Acceptance, and apart from any agreements or
undertakings or filings required by the Agreement, no further action by, or
notice to, or filing with, any Person is required of it for such execution,
delivery or performance; and (iv) this Assignment and Acceptance has been duly
executed and delivered by it, and constitutes the legal, valid and binding
obligation of Assignor, enforceable against Assignor in accordance with the
terms hereof, subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other Laws of general application relating to or affecting
creditors’ rights and to general equitable principles.
  -3-
 8.2           Assignor
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement or any other instrument or document
furnished pursuant thereto.  Assignor makes no representation or
warranty in connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of Borrower, or the performance or
observance by Borrower of any of its respective obligations under the Agreement
or any other instrument or document furnished in connection
therewith.
  8.3           Assignee
represents and warrants that (i) it is duly organized and existing and it has
full power and authority to take, and has taken, all action necessary to execute
and deliver this Assignment and Acceptance and any other documents required or
permitted to be executed or delivered by it in connection with this Assignment
and Acceptance, and to fulfill its obligations hereunder; (ii) no notices to, or
consents, authorizations or approvals of, any Person are required (other than
any already given or obtained) for its due execution, delivery and performance
of this Assignment and Acceptance; and apart from any agreements or undertakings
or filings required by the Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it, and constitutes the legal, valid and binding obligation of
Assignee, enforceable against Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other Laws of general application relating to or affecting
creditors’ rights and to general equitable principles; and (iv) it satisfies the
requirements of a Qualified Institutional Lender under the
Agreement.
  9.           Further
Assurances.  Assignor and Assignee each hereby agree to execute
and deliver such other instruments, and take such other action, as either party
may reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to Borrower or Agent, that may be required in
connection with the assignment and assumption contemplated hereby.
  10.           Miscellaneous.
  10.1           Any
amendment or waiver of any provision of this Assignment and Acceptance shall be
in writing and signed by the parties hereto.  No failure or delay by
either party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, and any waiver of any breach of the provisions of
this Assignment and Acceptance shall be without prejudice to any rights with
respect to any other or further breach thereof.
  10.2           All
payments made hereunder shall be made without any set-off or
counterclaim.
  -4-
 10.3           Assignor
and Assignee shall each pay its own costs and expenses incurred in connection
with the negotiation, preparation, execution and performance of this Assignment
and Acceptance.
  10.4           This
Assignment and Acceptance may be executed in any number of counterparts, and all
of such counterparts taken together shall be deemed to constitute one and the
same instrument.
  10.5           THIS
ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS
OF THE STATE OF NEW YORK.  Assignor and Assignee each irrevocably
submits to the non-exclusive jurisdiction of any State or Federal court sitting
in New York, New York over any suit, action or proceeding arising out of or
relating to this Assignment and Acceptance, and irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
such New York, New York State or Federal court.  Each party to this
Assignment and Acceptance hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding.
  10.6           ASSIGNOR
AND ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND
ACCEPTANCE, THE AGREEMENT, ANY RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER ORAL OR
WRITTEN).
  -5-
 IN
WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and
Acceptance to be executed and delivered by their duly authorized officers as of
the date first above written.
  Assignor:               _______________________________________
 
 By:____________________________________________
 Title:___________________________________________
 Name:__________________________________________
 Address:
  _______________________________________________
 _______________________________________________
 _______________________________________________
 _______________________________________________
 Attn: __________________________
 Telephone:______________________
 Facsimile:_______________________
 
  Assignee:              _______________________________________
 By:____________________________________________
 Title:___________________________________________
 Name:__________________________________________
 Address:
  _______________________________________________
 _______________________________________________
 _______________________________________________
 _______________________________________________
 Attn: __________________________
 Telephone:______________________
 Facsimile:_______________________
 
 -6-
 SCHEDULE
1
 TO
ASSIGNMENT AND ACCEPTANCE
 
 
 1.           Effective
Date:  ______________, 200_.
  2.           Assignor:                                                                .
  3.           Assignee:                                                                .
  4.           Assignor’s
Commitment Prior to
Assignment:  $                                                                                                                     .
  5.           Assignor’s
Outstanding Advances Prior to Assignment:  $.
  6.           Total
Assigned
Amount:  $
  7.           Total
Assigned Outstanding
Advances:  $
  8.           Assignor’s
Percentage of Total Loan Commitment after Assignment:  ___%
  9.           Assignor’s
Outstanding Advances after
Assignment:  $
  10.          Assignee’s
Percentage of Total Loan Commitment after
Assignment:  ___%
  11.          Assignee’s
Outstanding Advances after Assignment:  $
  12.          Assignee’s
Notice Address:
    Attention:___________________
 Telephone:__________________
 Facsimile:___________________
 
 13.           Assignee’s
Wiring Instructions:
  Account #
__________________
 At
________________________
 FFC:_______________________
 Attention:___________________
   
 SCHEDULE
2
 
 NOTICE
OF ASSIGNMENT AND ACCEPTANCE
 
 
 ___________,
200_
  To
Agent:
  KeyBank
National Association
 KeyBank -
Real Estate Capital
 127
Public Square - 8th Floor
 Mail
Code: OH-01-27-0839
 Cleveland,
Ohio 44114
 Attn:   Kevin
Murray
 
  To
Borrower:
  Kierland
Crossing, LLC
 c/o_______________________
    Ladies
and Gentlemen:
  We refer
to the Construction, Acquisition and Interim Loan Agreement dated as of November
__, 2007 (as it may be amended, amended and restated, modified, supplemented or
renewed from time to time, the “Agreement”) among
Kierland Crossing, LLC (“Borrower”), the
Lenders referred to therein and KeyBank National Association, as administrative
agent for the Lenders (in such capacity, “Agent”).  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Agreement.
  1.           We
hereby give you notice of, and, to the extent required under the Agreement
request your consent to, the assignment by (“Assignor”) to
_______________________ (“Assignee”) of that
portion of the right, title and interest of Assignor in and to the Agreement
(including, without limitation, that portion of the right, title and interest of
Assignor in and to the Commitment of Assignor and all outstanding Notes held by
Assignor), as proposed to be assigned pursuant to the Assignment and Acceptance
Agreement attached hereto (the “Assignment and
Acceptance”).
  2.           Assignee
agrees that, upon receiving the consent or acknowledgement of Agent to such
assignment, Assignee will be bound by the terms of the Agreement as fully and to
the same extent as if Assignee were the Lender originally holding such interest
in the Agreement.
  3.           You
are entitled to rely upon the representations, warranties and covenants of each
of Assignor and Assignee contained in the Assignment and
Acceptance.
  
 IN
WITNESS WHEREOF, Assignor and Assignee have caused this Notice of Assignment and
Acceptance to be executed by their respective duly authorized officials,
officers or agents as of the date first above mentioned.
  Very
truly yours,
  Assignor:              __________________________________
  By: _______________________________
 Name:_____________________________
 Title:______________________________
 Assignee:              __________________________________
 By: _______________________________
 Name:_____________________________
 Title:______________________________
 
 RECEIPT
ACKNOWLEDGED AND,
 IF
APPLICABLE, ASSIGNMENT
 CONSENTED
TO:
 
 KEYBANK
NATIONAL ASSOCIATION,
 as
Agent
 
 By:____________________________
 Name:__________________________
 Title:___________________________
 
 
 KIERLAND
CROSSING, LLC
 
 By:____________________________
 Name:__________________________
 Title:___________________________
 
 -2-
  EXHIBIT
C
  COMPLIANCE
CERTIFICATE
 
 
 KeyBank
National Association, as Administrative Agent
 127
Public Square
 Cleveland,
Ohio  44114
 
 Re:
                Construction,
      Acquisition and Interim Loan Agreement dated as of November __, 2007 (as
      amended, modified, supplemented, restated, or renewed, from time to time,
      the “Agreement”) between KIERLAND CROSSING, LLC (the “Borrower”), and
      KEYBANK NATIONAL ASSOCIATION, as Administrative Agent for itself and the
      other lenders parties thereto from time to time
    (“Lenders”).
 
 Reference
is made to the Agreement.  Capitalized terms used in this Certificate
(including schedules and other attachments hereto, this “Certificate”) without
definition have the meanings specified in the Agreement.
  Pursuant
to applicable provisions of the Agreement, the undersigned, Glimcher Properties
Limited Partnership (“Guarantor”) hereby certifies to the Lenders that the
information furnished in the attached schedules, including, without limitation,
each of the calculations listed below are true, correct and complete in all
material respects as of the last day of the fiscal periods subject to the
financial statements and associated covenants being delivered to the Lenders
pursuant to the Agreement together with this Certificate (such statements the
“Financial Statements” and the periods covered thereby the “reporting period”)
and for such reporting periods.
  The
Guarantor hereby further certifies to the Lenders that:
  1.           Compliance with Financial
Covenants.  Schedule A attached hereto sets forth financial
data and computations evidencing Guarantor’s compliance with certain covenants
of the Unsecured Credit Agreement, all of which data and computations are true,
complete and correct.
  2.           Review of
Condition.  Guarantor has reviewed the terms of the Agreement,
including, but not limited to, the representations and warranties of the
Borrower set forth in the Agreement and the covenants of the Borrower set forth
in the Agreement, and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and condition of
the Borrower through the reporting periods.
  3.           Representations and
Warranties.  To Guarantor’s actual knowledge, the
representations and warranties of the Borrower contained in the Loan Documents,
including those contained in the Agreement, are true and accurate in all
material respects as of the date hereof and were true and accurate in all
material respects at all times during the reporting period except as expressly
noted on Schedule B hereto.
  
 4.           Covenants.  Guarantor’s
actual knowledge, during the reporting period, the Borrower observed and
performed all of the respective covenants and other agreements under the
Agreement and the Loan Documents, and satisfied each of the conditions contained
therein to be observed, performed or satisfied by the Borrower, except as
expressly noted on Schedule B hereto.
  5.           No
Default.  To the Borrower’s actual knowledge, no Default exists
as of the date hereof or existed at any time during the reporting period, except
as expressly noted on Schedule B hereto.
  IN
WITNESS WHEREOF, this Certificate is executed by the undersigned this ___ day of
_____________, 2007.
  GLIMCHER
PROPERTIES LIMITED PARTNERSHIP,
 a
Delaware limited partnership
  By:  Glimcher
Properties Corporation,
 its sole
general partner
 
 By:___________________________________
  Name:_________________________________
  Title:__________________________________
  
 -2-
  EXHIBIT
D
  NOTE
  $____________________
                November
      __, 2007
 
  FOR VALUE
RECEIVED, KIERLAND CROSSING, LLC, a Delaware limited liability company
(“Borrower”), promises to pay to the order of _________________ (“Lender”) the
principal amount of and 00/100 Dollars ($.00), or such
lesser aggregate amount of Advances as may be made and outstanding pursuant to
Lender’s Commitment under the Loan Agreement hereinafter described, payable as
hereinafter set forth.  Borrower promises to pay interest on the
principal amount hereof remaining unpaid from time to time from the date hereof
until the date of payment in full, payable as hereinafter set
forth.
  Reference
is made to the Construction, Acquisition and Interim Loan Agreement of even date
herewith among Borrower, KeyBank National Association as Administrative Agent,
Lender and the other “Lenders” identified therein (as it may have been or may
hereafter be amended, amended and restated, modified, supplemented or renewed
from time to time, the “Loan Agreement”).  Terms defined in the Loan
Agreement and not otherwise defined herein are used herein with the meanings
ascribed to those terms in the Loan Agreement.  This is one of the
Notes referred to in the Loan Agreement, and any holder hereof is entitled to
all of the rights, remedies, benefits and privileges provided for in the Loan
Agreement.  The Loan Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events upon the terms and conditions therein specified.
  The
principal indebtedness evidenced by this Note shall be payable and prepayable as
provided in the Loan Agreement and in any event on the Maturity Date (which
shall be May __, 2011, subject to extension as provided in Section 2.6 of
the Loan Agreement).
  Interest
shall be payable on the outstanding daily unpaid principal amount of each
Advance outstanding hereunder from the date such Advance was made until payment
in full, and shall accrue and be payable at the rates and on the dates set forth
in the Loan Agreement both before and after default and before and after
maturity and judgment.
  The
amount of each payment hereunder shall be made to Lender at Administrative
Agent’s office (as designated by Administrative Agent from time to time), for
the account of Lender, in Dollars and in immediately available funds not later
than 2:00 p.m., Cleveland time, on the day of payment (which must be a Banking
Day).  All payments received after 2:00 p.m., Cleveland time, on any
Banking Day, shall be deemed received on the next succeeding Banking
Day.  Lender shall keep a record of Advances made by it and payments
of principal with respect to this Note, and such record shall be presumptive
evidence of the principal amount owing under this Note, absent manifest
error.
  Without
limiting any applicable provisions of the Loan Agreement, Borrower hereby
promises to pay all costs and expenses of any holder hereof incurred in
collecting Borrower’s obligations hereunder or in enforcing or attempting to
enforce any of holder’s rights hereunder, including reasonable attorneys’ fees,
whether or not an action is filed in connection therewith.
  
 Borrower
hereby waives presentment, demand for payment, dishonor, notice of dishonor,
protest, notice of protest, and any other notice or formality, to the fullest
extent permitted by applicable Laws.
  Assignment
of this Note is subject to the consent of certain parties pursuant to
Section 18.7 of the Loan Agreement.
  This Note
shall be delivered to and accepted by Lender in the State of Ohio, and shall be
governed by, and construed and enforced in accordance with, the internal Laws
thereof without regard to the choice of law provisions thereof.
  “Borrower”
  KIERLAND
CROSSING, LLC, a Delaware limited
 liability
company
  By:           Glimcher
Kierland Crossing, LLC, a
 Delaware limited liability company,
its
 managing member
  By:
                Glimcher
      Properties Limited Partnership, a
                  Delaware
      limited partnership, its sole
member
  By:
                Glimcher
      Properties Corporation, its
                  sole
      general partner
  By:______________________________
 Name:
 Title:_____________________________
  -2-
  EXHIBIT
E
  PERMITTED
EXCEPTIONS
  See
Schedule B to the Title Policy delivered at Closing
   
 EXHIBIT
F
  INSURANCE
REQUIREMENTS
  Borrower
shall obtain and keep in full force and effect either builder’s risk insurance
(the “Builder’s Risk Insurance policy”) coverage or permanent All Perils
insurance coverage as appropriate, satisfactory to the Administrative Agent, on
the Project.  All insurance policies shall be issued by carriers with
a Best’s Insurance
Reports policy holder’s rating of A and a financial size category of
Class X and shall include a standard mortgage clause (without contribution) in
favor of and acceptable to the Administrative Agent.  The policies
shall provide for the following, and any other coverage that the Administrative
Agent may from time to time deem necessary:
 
 a)
                    Coverage
      Against All Peril and/or Builders Risk in the amount of 100% of the
      replacement cost of all Improvements located or to be located on the Phase
      I/Phase II Land and, from and after the date of its acquisition, the
      Phase III Retail Unit (or evidence that such coverage is being carried
      under the applicable condominium documents). If the policy is written on a
      CO-INSURANCE basis, the policy shall contain an AGREED AMOUNT ENDORSEMENT
      as evidence that the coverage is in an amount sufficient to insure the
      full amount of the mortgage indebtedness.  “KeyBank National
      Association and its successors and assigns acting as administrative agent
      for certain lenders” shall be named as the “Mortgagee” and “Loss
      Payee”.
  b)
                  Public
      liability coverage in a minimum amount of not less than $2,000,000 per
      occurrence and $5,000,000 in the aggregate.  “KeyBank National
      Association and its successors and assigns acting as administrative agent
      for certain lenders” shall be named as an “Additional
      Insured”.
  c)
                  Rent
      loss or business interruption coverage in a minimum amount approved by the
      Administrative Agent of not less than the appraised rentals for a minimum
      of twelve months.
  d)
                  Flood
      hazard coverage in a minimum amount available, if any portion of the
      Project is located in a special flood hazard area (“Flood Hazard Area”) as
      designated by the Federal Emergency Management Agency on its Flood Hazard
      Boundary Map and Flood Insurance Rate Maps, and the Department of Housing
      and Urban Development, Federal Insurance Administration, Special Flood
      Hazard Area Maps.
  e)
                  Workers
      Compensation and Disability insurance as required by
  law.
  f)
                  Such
      other types and amounts of insurance with respect to the Project and the
      operation thereof which are commonly maintained in the case of other
      property and buildings similar to the Project in nature, use, location,
      height, and type of construction, as may from time to time be required by
      the Deed of Trust.
  
 Each
policy shall provide that it may not be canceled, reduced or terminated without
at least thirty (30) days prior written notice to the Administrative
Agent.
  -2-
 EXHIBIT
G
  INITIAL
BUDGET
  
   
 EXHIBIT
H
  BORROWER’S
CERTIFICATE
  KeyBank
National Association
 800
Superior
 Cleveland,
OH  44114
 
 ATTN:  COMMERCIAL
REAL ESTATE DEPARTMENT
 
 RE:
                Application
      for Advance or confirmation of equity contribution in connection with a
      $220,000,000 loan (#______________________) to Kierland Crossing, LLC
      (“Borrower”).
 
 1.
                Pursuant
      to that certain Construction, Acquisition and Interim Loan Agreement dated
      November __, 2007 (the “Construction Loan Agreement”) among Borrower,
      KeyBank National Association, as administrative agent (“Agent”) and
      certain other lenders named therein (“Lenders”),
  Borrower:
  (a)
                hereby
      requests a loan advance as indicated on the Soft and Hard Cost Requisition
      attached hereto.  We acknowledge that this amount is subject to
      inspection, verification, and available
funds.
  (b)
                acknowledges
      and confirms an equity contribution as indicated on the Soft and Hard Cost
      Requisition attached hereto.
  Funding
Instructions
  2.
                This
      Borrower’s Certificate is to be utilized only in satisfaction of costs and
      charges with respect to the Project and the Construction thereon as shown
      on the Soft and Hard Cost Requisition Form, dated ____________________,
      attached hereto.
  3.
                The
      Borrower agrees to provide, if requested by Agent, a Vendor Payee Listing
      showing the name and the amount currently due each party to whom Borrower
      is obligated for labor, material and/or services supplies.  This
      information would be provided in support of the disbursements set forth in
      paragraph 2(a) hereof.
  4.
                The
      Borrower also certifies and agrees
that:
  (a)
                It
      has complied with all duties and obligations required to date to be
      carried out and performed by it pursuant to the terms of the Construction
      Loan Agreement;
  (b)
                No
      Event of Default as defined in the Construction Loan Agreement has
      occurred and is continuing;
  
 (c)
                All
      change orders or changes to the Schedule of Values have been submitted to
      and approved by Agent;
  (d)
                All
      funds previously disbursed have been used for the purposes as set forth in
      the Construction Loan Agreement;
  (e)
                All
      outstanding claims for labor, materials and/or services furnished prior to
      this draw period have been paid or will be paid from the proceeds of this
      disbursement;
  (f)
                All
      Construction prior to the date of this Borrower’s Certificate has been
      accomplished in accordance with the applicable plans and
      specifications;
  (g)
                All
      sums advanced by Agent and the Lenders or contributed by Borrower as
      equity on account of this Application will be used solely for the purpose
      of paying obligations owing as shown on the attached documentation and no
      item(s)  for which payment is requested and/or equity is
      contributed has (have) been the basis for any prior disbursement and/or
      equity contribution;
  (h)
                There
      are no liens outstanding against the Project or its equipment except for
      Permitted Liens and security interests as agreed upon in the Construction
      Loan Agreement;
  (i)
                The
      aggregate amount of undisbursed loan proceeds and unfunded equity
      requirement remaining is sufficient to pay all Project Costs through
      Stabilization, including all costs of Construction in accordance with the
      plans and specifications originally submitted to the Agent as modified by
      Agent approved changed orders;
  (j)
                All
      representations and warranties contained in the Construction Loan
      Agreement are true and correct in all material respects as of the date
      hereof.
  (k)
                The
      undersigned understands that this certification is made for the purpose of
      inducing Agent and the Lenders to make a Loan to Borrower and that, in
      making such Loan, Agent and the Lenders will rely upon the accuracy of the
      matters stated in this certificate.
  5.
                Disbursement
      of the loan proceeds hereby requested are subject to the receipt by the
      Agent, in those states where applicable, of a certificate from the issuing
      title company stating that no claims have been filed of record which
      adversely affects the interest of Borrower in the Project, subsequent to
      the filing of the Deed of Trust.
  -2-
 6.
                The
      terms used in this Borrower’s Certificate have the same meaning and
      definitions as those set forth in the Construction Loan
      Agreement.
  7.
                The
      Borrower, or authorized signer, certifies that the statements made in this
      Borrower’s Certificate and any documents submitted herewith and identified
      herein are true and has duly caused this Borrower’s Certificate to be
      signed on its behalf by the undersigned, thereunto duly
      authorized.
  
  DATE:
  BORROWER:__________________________________
  BY:__________________________________________
  ITS:__________________________________________
  
 -3-
 EXHIBIT
I
  SOFT AND HARD COST
REQUISITION FORM
  
  
 SCHEDULE
1.1
  Loan
Commitment Schedule
 
 Name
      of Lender
                    Commitment
                      Amount
                    Percentage
                      InterestKeyBank
      National Association
                      (Administrative
      Agent)
                    $
      70,000,000
                    31.8182%Eurohypo
      AG, New York Branch
                      (Syndication
      Agent)
                    40,000,000
                    18.1818%Huntington
      National Bank
                      (Documentation
      Agent)
                    40,000,000
                    18.1818%U.S.
      Bank National Association
                    30,000,000
                    13.6364%National
      City Bank
                    20,000,000
                    9.0909%PNC
      Bank, National Association
                    20,000,000
                    9.0909%Total
                    $220,000,000
                    100%
   
 SCHEDULE
4.7
  Litigation and
Judgments
  None
   
 SCHEDULE
4.15
  Hazardous Material
Disclosure
  None