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Exhibit 10.76
PROMISSORY NOTE
$10,000,000.00 September 15, 1998
FOR VALUE RECEIVED, GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("GPLP") and GLIMCHER PROPERTIES CORPORATION, a Delaware
corporation ("GPC"; GPLP and GPC collectively referred to as "Borrower"), each
having an address at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, jointly and
severally promise to pay to BANKERS TRUST COMPANY, a New York banking
corporation ("Lender"), or order, at 000 Xxxxxxx Xxxxxx, Xxxxxx-Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as Lender may from time to time in
writing designate, in lawful money of the United States of America, the
principal sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) or such other
sum as may be the total amount outstanding pursuant to this Note, on or before
the Maturity Date (as hereinafter defined), together with accrued interest on
the principal balance outstanding from time to time, in like money, from the
date of this Note until fully repaid at the rates hereinafter set forth.
Interest shall be computed and shall accrue on the principal amount from time to
time outstanding from the date hereof to and including the Maturity Date at a
rate per annum equal to the Applicable Interest Rate (as hereinafter defined)
from time to time in effect. Principal payments shall be payable at the time and
in the manner specified in this Note.
1. DEFINITIONS. As used herein, the terms "Borrower" and "Lender" have
the meanings assigned in the preceding paragraph, and the following terms have
the following meanings:
"Applicable Interest Rate" shall mean, (i) for the period from
and including the date hereof to and including the Initially Scheduled
Maturity Date, a rate per annum equal to the LIBOR Rate from time to
time in effect plus 550 basis points and (ii) if the Note is extended
in accordance with Section 5 hereof, for the period following the
Initially Scheduled Maturity Date, a rate per annum equal to the LIBOR
Rate from time to time in effect plus 575 basis points.
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"Borrowing Date" shall have the meaning assigned to such term
in Section 2(c) hereof.
"Cash Flow After Debt Service" shall mean, for any period of
determination thereof, with respect to any Project or Other Property
the excess, if any, of the Project Income for such period over the
aggregate of (i) the Project Expenses for such period and (ii) an
assumed reserve for capital expenditures, tenant improvements, leasing
commissions and other tenant expenditures in an amount as determined by
Lender.
"Default" shall mean any event which, with the giving of any
applicable notice and/or the passage of any applicable time period to
cure, would constitute an Event of Default.
"Default Rate" shall mean, subject to the provisions of
Section 8 hereof, a rate per annum equal to four percent (4%) plus the
Applicable Interest Rate in effect from time to time.
"Event of Default" shall mean the occurrence or happening,
from time to time, of any one or more of the following:
(a) If Borrower shall default in the due and punctual
payment of all or any portion of any installment of the Indebtedness as
and when the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment or by acceleration or
otherwise and, if such default relates to the failure to make a payment
of interest, such default shall continue for a period of three days
from the date that such payment was due.
(b) If Borrower shall default in the payment of any
late charge due under this Note as and when the same shall become due
and payable.
(c) If any Pledgor shall default in the due
observance or performance of any of the Obligations other than payment
of any installment of the Indebtedness and such default shall not be
curable, or if curable shall continue for a period of 30 days after
written notice thereof from Lender to the relevant Pledgor (unless such
default, if curable, requires work to be performed, acts to be done or
conditions to be remedied which by their nature cannot be performed,
done or remedied, as the case may be, within such
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30-day period and the relevant Pledgor shall commence to cure such
default within such 30-day period and shall thereafter diligently and
continuously process the same to completion, but in no event shall the
period for cure exceed 60 days unless otherwise agreed in writing by
Lender, and in no event shall the period for such cure extend beyond
the Maturity Date).
(d) If voluntary or involuntary proceedings under the
Federal Bankruptcy Code, as amended, shall be commenced by or against
either Borrower, any Project Owner, York, any Pledgor or the REIT, or
bankruptcy, receivership, insolvency, reorganization, dissolution,
liquidation or other similar proceedings shall be instituted by or
against either Borrower, any Project Owner, York, any Pledgor or the
REIT with respect to all or any part of the property of either
Borrower, any Project Owner, York, such Pledgor or the REIT under the
Federal Bankruptcy Code, as amended, or other law of the United States
or of any state or other competent jurisdiction, and if such
proceedings are instituted against either Borrower, any Project Owner,
York, any Pledgor or the REIT, any such party shall consent thereto or
shall fail to cause the same to be discharged within 60 days.
(e) If any representation or warranty made by any
Borrower or any Pledgor in, under or pursuant to this Note, the Pledge
Agreement or the other Loan Documents shall prove to have been false or
misleading in any material respect as of the date on which such
representation or warranty was made.
(f) If any lender or servicer institutes foreclosure
or other proceedings for the enforcement of its remedies under any of
the Mortgage Loan Documents (as defined in the Pledge Agreement), or if
a default exists and is continuing beyond any applicable grace or cure
period under any Mortgage Loan Document. Notwithstanding anything
herein to the contrary, the filing of a foreclosure proceeding or suit
to collect any loan under the Mortgage Loan Documents shall, at
Xxxxxx's sole option and without notice to Borrower, immediately
constitute an Event of Default hereunder.
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(g) If a default shall occur and be continuing after
the expiration of any applicable grace or cure period under any of the
Loan Documents.
(h) If a final judgment for the payment of money in
excess of Two Hundred Fifty Thousand Dollars ($250,000.00) shall be
rendered against any Project Owner or York, or if a final judgment for
the payment of money in excess of One Million Dollars ($1,000,000)
shall be rendered against either GPLP or the REIT and the same shall
remain unpaid for a period of 60 days during which period execution
shall not be effectively stayed.
(i) The dissolution or termination, as may be
applicable, of any Project Owner, York, any Pledgor or the REIT.
(j) If any Project Owner, York or GPI shall default
in the timely payment of any outstanding indebtedness which it is
legally obligated to pay in excess of $250,000, in aggregate, or if
either GPLP or the REIT shall default in the timely payment of any
outstanding indebtedness which it is legally obligated to pay in excess
of $1,000,000, in the aggregate, or if a joint venture (other than any
Project Owner) in which GPLP is a member or partner shall default in
the timely payment of any outstanding indebtedness which it is legally
obligated to pay in excess of $1,000,000, in the aggregate, in each
case beyond any applicable cure or grace period.
(k) Any Loan Document shall for any reason cease to
be valid and binding on or enforceable or create the security interest
it purports to create against Borrower or the Pledgors, as the case may
be, or their assets, any other person party thereto or any collateral
is transferred or assigned in breach of the terms of the Loan
Documents.
(l) If, with respect to any calendar month, the
Qualifying Cash Flow After Debt Service for all Projects and Other
Property in the aggregate shall fall below $660,000.
(m) If there shall occur a material adverse change in
the financial condition or business prospect of any Project Owner or
any Project.
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(n) If the New Collateral (together with other
customary documentation) is not delivered to Lender on or before
October 31, 1998.
"Extended Maturity Date" shall have the meaning assigned to
such term in Section 5 hereof.
"Extension" shall have the meaning assigned to such term in
Section 5 hereof.
"Extension Fee" shall mean a fee payable to Lender in
consideration for the Extension, in an amount equal to 0.50% of the
Principal Balance.
"Extension Notice" shall have the meaning assigned to such
term in Section 5(a) hereof.
"Indebtedness" shall mean the principal of and accrued
interest on and all other amounts, payments and premiums due under this
Note (including any future advances), and all other amounts, now
existing or hereafter arising of any Pledgor owing to Lender under
and/or secured by the Loan Documents, or any amendments, modifications,
renewals, substitutions and extensions of any of the foregoing.
"Initial LIBOR Rate" shall have the meaning assigned to such
term in Section 3 hereof.
"Initially Scheduled Maturity Date" shall mean December 15,
1998.
"Interest Payment Date" shall have the meaning assigned to
such term in Section 4(a) hereof.
"LIBOR Rate" shall mean either (i) the rate per annum for U.S.
dollar deposits with a three month maturity in the London U.S. dollar
interbank market appearing on Telerate Page 3750 as of 11:00 a.m. New
York City time on the day that the Applicable Interest Rate is to be
determined hereunder, rounded upward to the nearest whole multiple of
1/100 of 1% per annum, or (ii) if the rate referred to in the preceding
subparagraph (i) is not available or cannot be determined, such other
page or service that shall replace it
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for purposes of displaying London interbank offered rates of major U.S.
banks for U.S. Dollar deposits.
"Loan" shall mean the loan made by Xxxxxx to Borrower
evidenced by this Note.
"Loan Documents" shall mean this Note, the Pledge Agreement
and any and all other documents now or hereafter executed by either
Pledgor by or in favor of Lender, which wholly or partially evidence,
guaranty, or secure the Loan, or are executed in connection therewith,
together with all amendments, modifications, renewals, substitutions
and extensions of any of the foregoing.
"Loan Month" shall mean any full calendar month during the
term of this Note, with the first Loan Month being September 1998.
"Maturity Date" shall mean the earlier to occur of (i) the
Initially Scheduled Maturity Date (or in the event that this Note is
extended in accordance with Section 5 hereof, the Extended Maturity
Date), or (ii) the date on which the entire principal amount evidenced
by this Note and all accrued interest thereon shall be paid or be
required to be paid in full, whether by prepayment, acceleration or
otherwise; provided, that Lender shall have the right to give written
notice to Borrower at any time after October 31, 1998 of demand for
payment in full of the entire principal amount of the Note and all
accrued interest thereon, which shall then become due and payable.
"Maximum Rate" shall mean the highest interest rate allowed by
New York law, as applicable, as amended from time to time, in effect on
the date for which a determination of interest accrued hereunder is
made; provided however, if United States federal law is preemptive and
requires a lower interest rate such rate shall be applicable.
"New Collateral" shall mean (i) a first mortgage lien on each
Other Property, which lien shall be insured by a national title
insurance company, and which lien shall be subject only to such
exceptions as are acceptable to Lender and its counsel and (ii) a full
pledge by GPLP of 49% of the equity interests in Dayton Mall Venture,
LLC, a Delaware limited
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liability company and in Glimcher University Mall Limited Partnership,
a Delaware limited partnership.
"Obligations" shall have the meaning assigned to such term in
the Pledge Agreement.
"Other Property" shall mean each property identified on
Exhibit A attached hereto.
"Other Property Owner" shall mean, with respect to the
properties identified on Exhibit A and located in Chatham, New York,
South Glens Falls, New York and Xxxxxx, New York, Glimcher York
Associates Limited Partnership, a Delaware limited partnership and,
with respect to the properties identified on Exhibit A and located in
Mount Vernon, Ohio and Manhattan, Kansas, Glimcher Properties Limited
Partnership, a Delaware limited partnership.
"Pledge Agreement" shall mean that certain Pledge Agreement of
even date herewith, executed by Xxxxxxxx and certain other entities in
favor of Xxxxxx, as the same may be amended, restated, supplemented or
of otherwise modified from time to time.
"Pledgors; Pledgor" shall have the meaning assigned thereto in
the Pledge Agreement.
"Principal Balance" shall mean the balance of the following
sums outstanding from time to time: (i) the initial $10,000,000.00
advanced hereunder, plus (ii) any other sums advanced under the Loan
Documents, less (iii) any applicable reduction of principal made in
accordance with the terms of this Note.
"Project" shall mean each of Montgomery Mall, Xxxxxxxxxx
County, Alabama; University Mall, Hillsborough County, Florida; and
Dayton Mall, Xxxxxxxxxx County, Ohio.
"Project Expenses" shall mean, with respect to any Project or
Other Property, for any period and as calculated on the accrual basis
of accounting, all expenses incurred by any Project Owner or Other
Property Owner during such period in connection with the ownership,
management, operation,
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cleaning, maintenance, repair, restoration or leasing of such Project
or Other Property, including:
(a) costs and expenses in connection with the
cleaning, ordinary repair, maintenance, decoration and painting of such
Project or Other Property;
(b) wages, benefits, payroll taxes, uniforms,
insurance costs and all other related expenses for employees of such
Project Owner or Other Property Owner engaged in the management,
operation, cleaning, maintenance, repair, restoration and leasing of
such Project or Other Property and service to tenants at such Project
or Other Property;
(c) management fees in an assumed amount equal to
4-1/2% of the gross revenues;
(d) the cost of all services and utilities with
respect to such Project or Other Property, including all electricity,
oil, gas, water, steam, heating, ventilation, air conditioning,
elevator, escalator, landscaping, model furniture, answering services,
telephone maintenance, credit check, snow removal, trash removal and
pest extermination costs and expenses and any other energy, utility or
similar item and overtime services with respect to such Project or
Other Property;
(e) the cost of building and cleaning supplies with
respect to such Project or Other Property;
(f) insurance premiums;
(g) legal, accounting and engineering fees, costs and
expenses incurred by or on behalf of such Project Owner or Other
Property Owner in connection with the ownership, management, operation,
maintenance, repair, restoration, and leasing of such Project or Other
Property, including collection costs and expenses;
(h) costs and expenses of security and security
systems provided to and/or installed and maintained with respect to
such Project or Other Property;
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(i) real property taxes and assessments with respect
to such Project or Other Property and the costs incurred in seeking to
reduce such taxes or the assessed value of such Project or Other
Property;
(j) advertising, marketing and promotional costs and
expenses with respect to such Project or Other Property;
(k) costs and expenses incurred in connection with
lock changes, storage, moving, appraisals, surveys, valuations, title
insurance, inspections, market surveys, permits (and the application or
registration therefor), and licenses (and the application or
registration therefor) with respect to such Project or Other Property;
(l) maintenance and cleaning costs related to tenant
amenities with respect to such Project or Other Property;
(m) contributions by such Project Owner or Other
Property Owner to any merchants' association, whether as dues or
advertising costs or otherwise with respect to such Project or Other
Property;
(n) costs incurred pursuant to any reciprocal
easement agreement affecting such Project or Other Property;
(o) refunds such Project Owner or Other Property
Owner must pay to tenants and other occupants of such Projects; and
(p) all other ongoing expenses which in accordance
with the accrual basis of accounting should be included in such Project
Owner's or Other Property Owners' annual financial statements as
operating expenses of such Project or Other Property.
Notwithstanding the foregoing, Project Expenses shall not
include depreciation and amortization.
"Project Income" shall mean, for any period and as calculated
on the accrual basis of accounting, all regular income received during
such period from the operation of and with respect to each Project and
Other Property, as follows:
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(a) all rents, other income, forfeited security
deposits and other benefits which such Project Owner or Other Property
Owner now or hereafter receive from or in connection with such Project
or Other Property, including all income received from tenants,
licensees, concessionaires and other persons for the occupancy of space
at such Project or Other Property and/or for rendering services to such
Project's or Other Propertys' tenants and other occupants, but
excluding, however, any moneys refunded to such Project Owner or Other
Property Owner as a result of tax certiorari or similar proceedings if
and only to the extent such refund relates to impositions assessed for
a fiscal period ending prior to the closing date;
(b) rent and business interruption insurance proceeds
with respect to such Project or Other Property; and
(c) all other amounts with respect to such Project or
Other Property which are included in the Project Owner's or Other
Property Owners' annual accrual basis financial statements as operating
income.
Notwithstanding the foregoing, Project Income with
respect to each Project or Other Property shall not include (a) any
condemnation proceeds or insurance proceeds (other than insurance
proceeds with respect to rental loss or business interruption insurance
or condemnation proceeds with respect to a temporary taking with
respect to such Project or Other Property and, in either such case,
only to the extent allocable to the applicable period), (b) any
proceeds resulting from the sale, exchange, transfer, financing or
refinancing of all or any portion of such Project or Other Property,
(c) any rent attributable to a lease agreement affecting such Project
or Other Property prior to the date on which the actual payment of rent
is required to commence thereunder (provided that such prepaid rent
shall be included in Project Income at such time as the obligation to
pay such rent accrues), (d) any item of income otherwise includable in
Project Income with respect to such Project or Other Property but paid
directly by any tenant to a person other than the respective Project
Owner or Other Property Owner, or (e) security deposits received from
tenants with respect to such Project or Other Property until forfeited.
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"Project Owner" shall mean each of Dayton Mall Venture, LLC, a
Delaware limited liability company; Glimcher University Mall Limited
Partnership, a Delaware limited partnership; and Xxxxxxxxxx Mall
Associates Limited Partnership, a Delaware limited partnership.
"Qualifying Cash Flow After Debt Service" shall mean, with
respect to any Project or Other Property, the portion of Cash Flow
After Debt Service that is payable to each Pledgor.
"REIT" shall mean GPC.
"York" shall mean Glimcher York Associates Limited
Partnership, a Delaware limited partnership.
2. THE LOAN. On the date hereof, Xxxxxx has advanced the Loan in the
amount of $10,000,000 to Borrower.
3. INTEREST RATE. Subject to Sections 8, 10 and 11 below, from the date
of this Note to and including the Maturity Date, the Principal Balance shall
bear interest at the Applicable Interest Rate from time to time in effect. The
initial Applicable Interest Rate shall be based upon the LIBOR Rate in effect
(the "Initial LIBOR Rate") on the last business day prior to the date hereof.
The Applicable Interest Rate shall be adjusted monthly, commencing on the first
day of the calendar month immediately following the date hereof and on the first
day of each succeeding month to and including the first day of the month in
which the Maturity Date occurs; provided, however, that such Applicable Interest
Rate shall be based on the LIBOR Rate in effect on the last business day of the
preceding calendar month. Interest shall be calculated using the actual days the
Principal Balance is outstanding hereunder divided by 360 days and multiplied by
the Applicable Interest Rate.
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4. PAYMENT OF PRINCIPAL AND INTEREST.
(a) Payment of Interest. Commencing on October 1, 1998, and on
the first day of each succeeding month (each, an "Interest Payment
Date") to and including the first day of the Loan Month in which the
Initially Scheduled Maturity Date (or the Extended Maturity Date, if
applicable) occurs, interest on the Principal Balance of the Loan at
the Applicable Interest Rate shall be payable monthly in arrears.
(b) Payments on the Maturity Date. On the Maturity Date, a
final installment shall be payable, which installment shall include:
(i) all unpaid amounts of the Principal Balance of
the Loan;
(ii) interest accrued and unpaid thereon at the
Applicable Interest Rate; and
(iii) all other sums due under this Note, the Pledge
Agreement and the other Loan Documents.
5. EXTENSION. So long as no Event of Default has occurred and is
continuing, Borrower shall have the right to extend the maturity of this Note to
the date (the "Extended Maturity Date") that is 180 days from the date hereof
(the "Extension") provided that Borrower's right to extend the Loan shall be
subject to the delivery to Lender of (a) a written notice (the "Extension
Notice") of the proposed extension on or before a date which is not less than
ten (10) days prior to the Initially Scheduled Maturity Date, and (b) the
Extension Fee on the date that the Extension Notice is delivered.
6. APPLICATION OF PAYMENTS. Each payment received by Lender from
Borrower with respect to this Note shall be applied: First, to the payment of
any late charges due and payable hereunder; Second, to the repayment of any
amounts advanced by Lender in accordance with the Loan Documents for insurance
premiums, taxes, assessments or for preservation or protection of the collateral
covered by those documents and to the payment of all costs and expenses incurred
by Lender in connection with the collection of this Note (including, without
limitation, all
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attorneys' fees payable hereunder); Third, to the payment of accrued interest;
and Fourth, to reduction of the Principal Balance, or in such order or
proportion as Lender, in Xxxxxx's sole discretion, may determine. Payments shall
be deemed made when checks drawn against good funds are received by Xxxxxx.
7. PREPAYMENT.
(a) This Note may be prepaid in whole but not in part at any
time without premium, on any Interest Payment Date upon not less than
10 days prior written notice to Lender (in accordance with the terms of
this Section), provided that any such prepayment of all or any portion
of the Principal Balance, whether voluntary or involuntary, shall be
accompanied by interest accrued to the date of prepayment on the
principal amount prepaid.
(b) Amounts prepaid under this Note may not be reborrowed.
(c) In the event of a sale of any Project or Other Property,
the net proceeds payable to the respective Project Owner or Other
Property Owner shall, within two (2) days of such sale, be paid to
Lender, in repayment of the unpaid principal balance of the Note.
8. MAXIMUM RATE OF INTEREST. All agreements between the Borrower and
the Lender, whether now existing or hereafter arising and whether written or
oral, are hereby expressly limited so that in no contingency or event, whether
by reason of acceleration of the maturity of this Note or otherwise, shall the
amount paid, or agreed to be paid to Lender for the use, forbearance, or
detention of the money to be loaned under this Note or otherwise or for the
payment or performance of any covenant or obligation contained herein or in any
other document evidencing, securing or pertaining to the Loan exceed the Maximum
Rate. If from any circumstances whatsoever fulfillment of any provision hereof
or any of such other agreements shall cause the amount paid to exceed the
Maximum Rate, then ipso facto, the amount paid to Lender shall be reduced to the
Maximum Rate, and if from any such circumstances the Lender shall ever receive
interest or an amount which might be deemed interest under applicable law which
exceeds the Maximum Rate, such amount which would be excessive interest shall be
applied to the reduction of
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the principal of this Note and not to the payment of interest, or if such
excessive interest exceeds the unpaid balance of principal of this Note such
excess shall be refunded to the Borrower. All sums paid or agreed to be paid to
Lender for the use, forbearance or detention of the indebtedness of Borrower to
Lender, shall, to the extent permitted by applicable law, (i) be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full so that the actual rate of interest on account of such
indebtedness does not exceed the Maximum Rate now or as hereafter amended,
throughout the term thereof, (ii) be characterized as a fee, expense or other
charge other than interest, and/or (iii) exclude any voluntary prepayments and
the effects thereof. The terms and provisions of this paragraph shall control
and supersede every other provision of all agreements between the Lender and the
Borrower.
9. SECURITY. Payment of this Note is secured by the Pledge Agreement
and the Loan Documents. All of the agreements, conditions, covenants, provisions
and stipulations contained in the Pledge Agreement and the other Loan Documents
which are to be kept and performed by Borrower are hereby made a part of this
Note to the same extent and with the same force and effect as if they were fully
set forth herein, and Borrower covenants and agrees to keep and perform them, or
cause them to be kept and performed, strictly in accordance with their terms.
10. LATE CHARGES. Time is of the essence hereof and if any of the
Principal Balance or interest on this Note or other sum due hereunder is not
paid within 10 days of notice that such payment is due, Borrower shall, at
Xxxxxx's sole option, pay to Lender a late charge payment of up to four percent
(4%) of the amount of such installment as specified in a written demand for
same. Such late charge shall not be applicable to the total payment due on the
Maturity Date; provided, however, no applicable grace or cure period shall apply
to such final payment. Such late charge shall be paid without prejudice to the
right of Lender to collect any other amounts provided to be paid or to declare a
default under this Note, the Pledge Agreement or the Loan Documents. Any late
charges which may accrue shall be due and payable not later than the date the
next monthly installment is due under this Note. Xxxxxxxx agrees that the late
charge is intended to compensate Lender for damages Xxxxxx will suffer as a
result of Xxxxxxxx's late payment. Such damages
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include additional expenses in servicing the Loan, sending out notices,
computing interest, segregating delinquent sums and accounting and data
processing costs. Xxxxxxxx agrees that such damages are difficult or impractical
to ascertain, and the late charge is a fair and reasonable approximation of the
amount of damages sustained by Lender for each late payment. Notwithstanding
anything herein to the contrary, the 10 day grace period is only applicable with
respect to the assessment of the late charge, and should not be construed as a
modification or waiver of the due date otherwise specified for any sums due
Lender hereunder or under the other Loan Documents. Failure to pay said late
charge following written demand shall constitute an Event of Default.
11. DEFAULT. Upon the occurrence of any Event of Default, the
outstanding balance of this Note, plus all amounts then unpaid under any Loan
Document, shall each bear interest at the Default Rate for so long as the Event
of Default shall remain uncured, payable on each Interest Payment Date. In
addition, Lender, at its option and without further notice, demand or
presentment for payment to Borrower or others, may declare immediately due and
payable the unpaid Principal Balance and interest accrued thereon together with
all other sums owed by Borrower under this Note, the Pledge Agreement and the
other Loan Documents (including, but not limited to reasonable attorneys' fees
as provided in Section 13), anything in this Note, the Pledge Agreement and the
other Loan Documents to the contrary notwithstanding. Payment of such sums may
be enforced and recovered in whole or in part at any time by one or more of the
remedies provided to Lender in this Note, the Pledge Agreement or the other Loan
Documents. Notwithstanding the foregoing, upon an Event of Default under clause
(d) of the definition thereof, the unpaid Principal Balance and interest accrued
thereon together with all other sums owed by Borrower under this Note, the
Pledge Agreement and the other Loan Documents (including, but not limited to
reasonable attorneys' fees as provided in Section 13) shall automatically become
due and payable.
12. REMEDIES CUMULATIVE. The remedies of Lender, as provided in this
Note, the Pledge Agreement and the Loan Documents, shall be cumulative and
concurrent and may be pursued singularly, successively or together, at the sole
discretion of Lender, and may be exercised as open as occasion therefor shall
occur; and the failure to exercise any such right or remedy shall
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in no event be construed as a waiver or release thereof. In any action, sale of
collateral, or other proceedings to enforce this Note, the Pledge Agreement or
any other Loan Document, Lender need not file or produce the original of this
Note, but only need file or produce a photocopy of this Note certified by Lender
to be a true and correct copy of this Note.
13. ATTORNEYS' FEES. In the event that suit be brought hereon, or an
attorney be employed or expenses be incurred to compel payment of this Note or
any portion of the indebtedness evidenced hereby, or to defend the Lender's
interest under the Pledge Agreement or as otherwise provided in the Pledge
Agreement, Borrower promises to pay all such reasonable attorneys' fees, costs
and expenses (including attorneys' fees incurred in collecting attorneys' fees)
all as actually incurred by Xxxxxx as a result thereof and including, without
limitation (a) reasonable attorneys' fees, costs and expenses incurred in
appellate proceedings or in any action or participation in, or in connection
with, any case or proceeding under Chapters 7 or 11 of the United States
Bankruptcy Code or any successor thereto, and (b) reasonable attorneys fees,
costs and expenses incurred as a result of Lender exercising its rights to cure
any Event of Default by Borrower under this Note, the Pledge Agreement or any
other Loan Document, or as a result of the foreclosure, assignment in lieu
thereof or enforcement of the Pledge Agreement. Additionally, Xxxxxxxx agrees to
pay all reasonable attorneys' fees, costs and expenses attributable to any
subsequent modification or restructure of this Note.
14. WAIVER OF NOTICE BY XXXXXXXX. BORROWER WAIVES DILIGENCE,
PRESENTMENT FOR PAYMENT, DEMAND, NOTICE OF DEMAND, NOTICE OF PROTEST, NOTICE OF
NONPAYMENT OR DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF
ACCELERATION, PROTEST AND NOTICE OF PROTEST OF THIS NOTE, AND TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL OTHER NOTICES (EXCEPT AS EXPRESSLY PROVIDED IN
ANY OF THE LOAN DOCUMENTS) IN CONNECTION WITH THE DELIVERY, ACCEPTANCE,
PERFORMANCE, DEFAULT, OR ENFORCEMENT OF THE PAYMENT OF THIS NOTE. BORROWER
FURTHER WAIVES ALL VALUATION AND APPRAISEMENT PRIVILEGES, THE BRINGING OF SUIT,
CLAIMS OF LACK OF DILIGENCE OR DELAYS IN COLLECTION OR ENFORCEMENT OF THIS NOTE,
THE RELEASE OF ANY PARTY LIABLE, THE RELEASE OF ANY SECURITY FOR THE DEBT, THE
TAKING OF ANY ADDITIONAL SECURITY AND ANY OTHER INDULGENCE OR FORBEARANCE.
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15. NO WAIVER BY XXXXXX. Lender shall not be deemed, by any act of
omission or commission, to have waived any of its rights or remedies hereunder
unless such waiver is in writing and signed by Xxxxxx, and then only to the
extent specifically set forth in the writing. The acceptance by Lender of any
payment hereunder which is less than payment in full of all amounts due and
payable at the time of such payment shall not constitute a waiver of the right
to exercise any of the foregoing options at that time or at any subsequent time
or nullify any prior exercise of any such option without the express consent of
Lender, except as and to the extent otherwise provided by law. A waiver with
reference to one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy as to a subsequent event.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. PURSUANT TO SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, XXXXXXXX AGREES
THAT THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF
AMERICA AND THE LAWS OF THE STATE OF NEW YORK (EXCLUSIVE OF ITS LAWS RELATING TO
CONFLICT OF LAWS). IN ACCORDANCE WITH SECTION 5-1402 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, XXXXXXXX AGREES THAT ANY ACTION TO ENFORCE THE
TERMS OF THIS NOTE MAY BE COMMENCED IN ANY COURT LOCATED IN THE STATE OF NEW
YORK. BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, AND BORROWER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING. AT THE SOLE OPTION OF LENDER, LENDER MAY BRING AN ACTION TO ENFORCE
THIS NOTE IN THE STATE OF OREGON AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF UNITED STATES DISTRICT COURT FOR THE STATE OF OREGON OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, AND BORROWER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING.
17. CONSTRUCTION OF CERTAIN TERMS. Whenever used, the singular number
shall include the plural, the plural shall include the singular, and the words
"Lender" and "Borrower" shall
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be deemed to include their respective heirs, administrators, executors,
successors and assigns.
18. NOTICE. All notices which Lender or Borrower may be required or
permitted to give hereunder shall be made in the same manner as set forth in
Section 17 of the Pledge Agreement.
19. SEVERABILITY OF PROVISIONS. In the event any one or more of the
provisions hereof shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining provisions hereof shall be in no way affected,
prejudiced or disturbed thereby.
20. SALE OF INTEREST. Borrower acknowledges that Lender may, in its
sole discretion, sell all or any part of its interest in the Loan as evidenced
by this Note, including participating interests therein. Any such sale may be at
a discount or premium, subject to a brokerage fee or involve a servicing
agreement.
21. HEADING. The section captions are inserted for convenience of
reference only and shall in no way alter or modify the text of such sections.
22. WAIVER OF JURY TRIAL. XXXXXXXX AND XXXXXX MUTUALLY, EXPRESSLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY FOR ANY PROCEEDINGS ARISING
OUT OF OR IN CONNECTION WITH THIS NOTE, OR ANY OTHER SECURITY DOCUMENT CONNECTED
WITH THIS TRANSACTION, IN THE INTEREST OF AVOIDING DELAYS AND EXPENSES
ASSOCIATED WITH JURY TRIALS.
23. ENTIRE AGREEMENT. Xxxxxxxx and Xxxxxx, by acceptance of this Note,
hereby agree that the Loan Documents supersede any prior oral or written
agreements of the parties.
24. TIME OF THE ESSENCE. Time is of the essence for the performance of
each and every covenant of Borrower hereunder. No excuse, delay, act of God, or
other reason, whether or not within the control of Borrower, shall operate to
defer, reduce or waive Borrower's performance of any such covenant or
obligation.
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25. FEES AND EXPENSES. (a) On the date hereof, the Borrower shall pay
or reimburse the Lender for all of its reasonable costs and expenses incurred in
connection with the negotiation, preparation and execution of, the Loan
Documents, and any other documents and instruments prepared in connection
herewith or therewith, and the consummation of the transactions contemplated
hereby, including, without limitation, Lender's due diligence and underwriting
expenses, appraisal fees, the reasonable fees and disbursements of Lender's
outside counsel and special local counsel to the Lender. If invoices are not
available for any of such costs and expenses, Borrower shall pay such costs and
expenses promptly after request by Xxxxxx.
(b) On the date hereof, Borrower shall pay to Lender a loan
fee equal to 1.5% of the original principal amount of this Note.
26. JOINT AND SEVERAL OBLIGATIONS. The obligations of each Borrower
under this Note shall be joint and several and Lender may enforce such
obligations against either or both parties comprising Borrower in such order as
Lender may determine in its sole discretion.
27. FINANCIAL REPRESENTATIONS. The Qualifying Cash Flow After Debt
Service with respect to all of the Projects and Other Property in the aggregate
for the trailing twelve month period ending August 31, 1998 was approximately
$8,800,000.
28. FINANCIAL STATEMENTS. Not later than thirty (30) days after the end
of each monthly period, each Project Owner and Other Property Owner shall
prepare, or cause to be prepared, and deliver to Lender, monthly operating
statements relating to its respective Project or Other Property for such monthly
period (which statements shall include income and disbursements). Each Project
Owner and Other Property Owner shall provide, along with the such financial
statements required by this Section, a statement of the Qualifying Cash Flow
After Debt Service for the immediately preceding month completed.
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IN WITNESS WHEREOF, each Borrower, intending to be legally bound
hereby, has duly executed this Note the day and year first above written.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation,
general partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
GLIMCHER PROPERTIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
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EXHIBIT A
1. Grand Union, Chatham, New York
2. Grand Union, South Glens Falls, New York
3. Grand Union, Xxxxxx, New York
4. Mount Xxxxxx Plaza, Mount Vernon, Ohio
5. Village Plaza, Manhattan, Kansas
