Exhibit 10.159
MORTGAGE NOTE
-------------
(VARIABLE RATE)
$7,700,000.00 March 28, 2002
FOR VALUE RECEIVED, the undersigned, GLIMCHER BUENA VISTA, LLC, a
Delaware limited liability company with offices at c/o Glimcher Properties
Limited Partnership, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (hereinafter
referred to as "Borrower"), promises to pay to the order of NATIONAL CITY BANK,
a national banking association (hereinafter referred to as "Lender," which term
shall include any holder hereof), at its principal place of business at 000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, or at such other place as Lender may
designate, the principal sum of Seven Million Seven Hundred Thousand Dollars
($7,700,000.00) or so much thereof as may be advanced by Xxxxxx to Borrower from
time to time, together with all charges herein provided and interest on the
unrepaid advances of said principal sum from date of disbursement by Xxxxxx,
payable in cash at the rates and in the manner hereinafter set forth.
ARTICLE I
DEFINITIONS
1.1 The following terms wherever used in this Note shall have the
following meanings:
"Deed of Trust" shall mean a certain Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing Statement of even date herewith on
the Property given by Borrower in favor of Lender to secure payment of this
Note.
"Default Rate of Interest" shall mean the rate equal to two percent
(2.0%) per annum plus the Prime Rate.
"Effective Rate" shall mean the Prime Rate, LIBOR Rate, or Default Rate
of Interest, whichever shall be applicable.
"Guarantor" shall mean Glimcher Properties Limited Partnership, a
Delaware limited partnership.
"Guaranty" shall mean that certain Unconditional Guaranty of Payment
and Performance of even date herewith, executed by Guarantor.
"LIBOR Business Day" shall mean any day on which both Lender is open
for the regular conduct of business and a day on which dealings in U.S. Dollar
Deposits are carried out in the London, England Interbank Market.
"LIBOR Conversion Option" shall mean the option of Borrower to convert
the interest rate being charged hereunder to the LIBOR Rate.
"LIBOR Election" shall mean written notice from Xxxxxxxx delivered to
Lender electing the LIBOR Rate as the Effective Rate hereunder.
"LIBOR Rate" shall mean the rate per annum equal to the LIBOR Rate
Spread Percentage plus the One Month LIBOR. The LIBOR Rate shall be adjusted, by
Xxxxxx, as necessary, at the end of each LIBOR Business Day during the term
hereof. Lender shall not be required to notify Borrower of any adjustments in
the LIBOR Rate.
"LIBOR Rate Spread Percentage" shall mean two and one-fourth of one
percent (2.25%) per annum.
"Loan Agreement" shall mean that certain Loan Agreement of even date
herewith, pursuant to which the principal amount of this Note is to be
disbursed, by which Xxxxxx agrees to loan funds to Borrower pursuant to the
terms and conditions stated therein.
"Loan Documents" shall collectively mean this Note, the Deed of Trust,
Loan Agreement, Guaranty and any other instrument, affidavit, certificate, or
document heretofore, now or hereafter given by Borrower or any Guarantor in
connection with the closing of the loan evidenced by this Note.
"Note" shall mean this Note and any and all renewals, amendments,
modifications, reductions and extensions hereof and substitutions therefor.
"One Month LIBOR" shall mean the rate per annum (rounded upwards, if
necessary, to the next higher of 1/16 of one percent (1%)) determined by Lender
and equal to the average rate per annum at which deposits (denominated in United
States dollars) in an amount similar to the principal amount outstanding
hereunder on such determination date and with a maturity one (1) month after the
date of reference are offered to Lender at 11:00 a.m. London time (or as soon as
thereafter practicable) on the date of reference by banking institutions in the
London, United Kingdom market, as such interest rate is referenced and reported
by the British Banker's Association in the Bridge Financial Telerate system
"Page 3750" report or, if the same is unavailable, any other generally accepted
authoritative source of such interest rate as Lender may reference from time to
time.
"Prime Rate" shall mean the interest rate established and announced
from time to time by National City Bank as its prime rate, based upon its
consideration of economic, money market, business and competitive factors, and
it is not necessarily the most favorable rate of National City Bank. Each change
in said Prime Rate shall, without notice, automatically and immediately change
the rate of interest due hereon.
"Property" shall mean that certain tract of land and all improvements,
now and hereafter situated thereon in the County of Cochise and State of
Arizona, all of which shall be subject to the Deed of Trust.
2
ARTICLE II
PAYMENTS OF PRINCIPAL AND INTEREST
2.1 Interest on the unrepaid advances of the principal sum shall be due
and payable monthly, in arrears, on the first day of each month commencing on
May 1, 2002. Commencing on the date of disbursement, interest on the unrepaid
advances of the principal sum shall accrue at the Prime Rate. Notwithstanding
the foregoing, Borrower shall have the option, as set forth in Section 2.2
hereof, to periodically convert the interest rate charged on the outstanding
principal balance to the LIBOR Rate. In the event Borrower shall effectively
convert the interest charged on the outstanding principal balance pursuant to
Section 2.2, interest shall accrue as set forth in Section 2.2.
2.2 Unless there shall have occurred and be continuing an Event of
Default, as hereinafter defined, Borrower may exercise Borrower's LIBOR
Conversion Option to convert the interest rate payable hereunder from the Prime
Rate to the LIBOR Rate by submitting a LIBOR Election to Lender. In the event
Borrower shall effectively elect the LIBOR Rate, interest on the outstanding
principal balance shall accrue at the applicable LIBOR Rate until Borrower shall
elect by notice in writing to Lender to reconvert to the Prime Rate, at which
time the interest rate accruing hereunder on such outstanding principal balance
shall reconvert to the Prime Rate. Interest payments shall continue to be paid
on the first day of each month, in arrears, based upon the interest accrued at
the Prime Rate or the LIBOR Rate, as applicable
If (a) deposits in dollars for periods of one (1) month are not
available to the Lender in the London Interbank Market, or (b) the LIBOR Rate
will not accurately cover the cost to Lender of making or maintaining the
related LIBOR Rate, or (c) by reason of national or international financial,
political or economic conditions or by reason of any applicable law, treaty,
rule or regulation (whether domestic or foreign) now or hereafter in effect, or
the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by
Lender with any request or directive of such authority (whether or not having
the force of law), including without limitation exchange controls, it is
impracticable, unlawful or impossible for Lender to continue to charge interest
hereunder at the LIBOR Rate so long as such circumstances continue, interest
hereunder shall accrue at the Prime Rate.
2.3 All interest payable in accordance with this Note shall be computed
on the basis of a year consisting of three hundred sixty (360) days, but applied
to actual days elapsed.
2.4 In addition to the interest payments set forth in Sections 2.1 and
2.2, whichever is applicable, commencing May 1, 2002, principal payments shall
be due and payable monthly on the first day of each month throughout the balance
of the term of this Note in an amount equal to Twenty Thousand Two Hundred
Ninety-Eight Dollars ($20,298.00).
2.5 All principal and all accrued and unpaid interest shall be due and
payable in full on April 1, 2005.
3
ARTICLE III
LATE CHARGES
3.1 If any of said payments of principal or interest or any combination
thereof be not paid in full within fifteen (15) days after such payment is due,
then in addition to the amount of said payment there shall be due, and Borrower
promises to pay, a late charge in respect of each said payment in the amount of
five percent (5.0%) of said payment, which Borrower agrees is a fair and
reasonable charge for costs incurred by Xxxxxx in processing such late payment
and shall not be deemed a penalty.
ARTICLE IV
PREPAYMENT
4.1 The privilege is hereby reserved by Borrower to prepay the
outstanding principal balance of this Note in whole or in part at any time and
from time to time without premium or penalty, provided that a payment of all
accrued and unpaid interest to the date of such prepayment is included with such
prepayment.
4.2 Partial prepayments shall not postpone or reduce regular payments
of principal or interest, but shall be credited to installments of principal, if
any, in their inverse order of maturity.
ARTICLE V
DEFAULT
5.1 The term "Event of Default" shall mean the occurrence of any one or
more of the following:
(a) A failure by Borrower to make any payment of principal or interest
or any combination thereof on this Note within fifteen (15) days after payment
is due;
(b) The material incorrectness as of the date hereof of any
representation or warranty made by Borrower or any Guarantor to Lender in any of
the Loan Documents, any financial statement or any other document delivered to
Lender in connection with the loan evidenced by this Note;
(c) The abandonment of the Property, or any portion thereof, without
the written consent of Xxxxxx;
(d) Thirty (30) days after notice to Borrower of Xxxxxx's reasonable
determination that the condition of the Property has deteriorated to the degree
that Xxxxxx's security has been materially impaired;
4
(e) The sale (by land contract or otherwise), assignment, mortgaging,
leasing, encumbering, refinancing or conveyance of the Property, or any portion
thereof or legal or equitable interest therein, except as otherwise expressly
permitted in the Loan Documents;
(f) That a mechanic's or materialmen's lien is filed upon the Property,
which lien is not discharged or bonded off or fully reserved for, within thirty
(30) days after such filing;
(g) Thirty (30) days after Xxxxxx's notice to Borrower of Xxxxxxxx's
failure to keep in full force and effect or obtain and thereafter keep in full
force and effect all certificates, licenses, franchise or management agreements,
permits and other agreements necessary in Lender's reasonable discretion, for
the lawful occupancy, use and operation of the Property for its intended
purposes, including, but not limited to, a retail center.
(h) A failure by Borrower to keep in effect the policies of insurance
required by the Deed of Trust;
(i) The change in the identity of any of the members of Xxxxxxxx;
(j) The occurrence of any event of default, acceleration, or
commencement of foreclosure under any other deed of trust, lien or encumbrance
on the Property, prior or subordinate to the Deed of Trust;
(k) The entry of any judgment or lien against Borrower by or in favor
of any third person which judgment or lien is not satisfied, discharged,
reserved for, or bonded off within thirty (30) days from the date of entry of
said judgment or xxxx;
(l) The appointment of a receiver, trustee, custodian, conservator, or
liquidator, or other similar official for Borrower, or any Guarantor, any of the
Property, or any other property of Borrower or any Guarantor;
(m) Borrower or any Guarantor shall admit in writing inability to pay
debts, or shall make a general assignment for the benefit of creditors;
(n) Borrower or any Guarantor shall commence any case, proceeding or
other action seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of Borrower or any Guarantor or any debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors;
(o) Any case, proceeding or other action commenced against Borrower or
any Guarantor seeking to have an order for relief entered against Borrower or
any Guarantor, as debtor, or seeking a reorganization, arrangement, adjustment,
liquidation, dissolution or composition of Borrower or any Guarantor or any
debts, under any law relating to bankruptcy, insolvency, reorganization or
debtor relief laws, or seeking an appointment of a receiver, trustee, custodian
or other similar official for Borrower or any Guarantor or for all or any of the
Property, or any other property of Borrower or any Guarantor, and such case,
proceeding or other action (i) results in the entry of an order for relief
against Borrower or any Guarantor or (ii) remains undismissed for a period of
sixty (60) days;
5
(p) Borrower or any Guarantor shall have concealed, removed, or
permitted to be concealed or removed, any part of its property, with intent to
hinder, delay or defraud its creditors or any of them, or made or suffered a
transfer of any of its property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or shall have suffered or permitted, while
insolvent, any creditor to obtain a lien upon any of its property through legal
proceedings which is not vacated within sixty (60) days from the date thereof;
(q) An occurrence of any event or condition which results in a default
in the payment of any other indebtedness or the performance of any other
obligation of Borrower or any Guarantor to Lender;
(r) The liquidation, termination or dissolution of Borrower or any
Guarantor; or
(s) A failure by Borrower or any Guarantor to comply with any of the
other terms or conditions specified herein or in any other of the Loan Documents
or Borrower's or any Guarantor's failure to perform any of Borrower's or any
Guarantor's covenants under the Loan Documents and such failure remains uncured
for thirty (30) days after Xxxxxx provides written notice of such failure in
accordance with the terms of the Deed of Trust.
5.2 Upon the occurrence of any Event of Default, the entire unpaid
balance of principal and interest evidenced by this Note, together with all sums
of money advanced by Lender in accordance with the terms of any one or more of
the Loan Documents, and all sums due and owing for any late charge or charges
hereunder (the foregoing being hereinafter collectively referred to as the
"Indebtedness") shall thereupon bear interest at the Default Rate of Interest,
and at the option of Lender, all the Indebtedness together with interest thereon
at the Default Rate of Interest shall immediately become due and payable
("Acceleration") without demand made therefor and without notice to any person,
notice of the exercise of said option being hereby expressly waived, and Xxxxxx
shall have all remedies of a secured party under law and equity to enforce the
payment of all of the Indebtedness, time being of the essence of this Note. The
Default Rate of Interest shall be charged to Borrower upon the occurrence of any
Event of Default notwithstanding any invoices or billing statements sent by
Xxxxxx to Borrower indicating an interest rate to the contrary. In addition, any
waiver of Xxxxxx's right to charge the Default Rate of Interest or to accelerate
the Indebtedness must be made in writing and cannot be waived by oral
representation or the submission to Borrower of monthly billing statements.
ARTICLE VI
MISCELLANEOUS
6.1 The failure of Lender to exercise any option herein provided upon
the occurrence of any Event of Default shall not constitute a waiver of the
right to exercise such option in the event of any continuing or subsequent Event
of Default. Borrower hereby agrees that the maturity of all or any part of the
loan may be postponed or extended and that any covenants and conditions
contained in this Note or in any of the other Loan Documents may be waived or
modified without prejudice to the liability of Borrower on said Note or Loan
Documents.
6
6.2 When this Note becomes due, by Acceleration or otherwise, Lender
may, at its option, demand, sue for, collect, or make any compromise or
settlement it deems desirable with reference to property held as security
herefor. Lender shall not be bound to take any steps necessary to preserve any
rights in the property held as security herefor against prior parties, which
Borrower hereby assumes to do. Borrower expressly authorizes Lender to deal in
any manner with any collateral and the security of every kind and character
given to secure the payment of Borrower's obligations under this Note, and
without limiting the generality of the foregoing, Borrower expressly authorizes
Lender to waive any rights which Lender may have relative to requiring
additional collateral or to surrendering or to releasing collateral held by
Xxxxxx, or to substituting any collateral held by Lender for other collateral of
like kind, or of any kind, nor shall the obligations of Borrower under this
Note, nor the rights of Lender under the Loan Documents be diminished or in any
manner affected by the failure of Lender to exercise its rights with reference
to such collateral or in any manner failing to proceed against the collateral or
security pledged or conveyed as security for the obligations of Borrower under
this Note. The provisions hereof shall apply and be controlling as to all
property which may at any time be security herefor.
6.3 Borrower hereby authorizes Xxxxxx, in its sole discretion, upon the
occurrence of an Event of Default, to apply all or any portion of the balance of
any account maintained by Borrower with Lender to the payment or reduction, in
whole or in part, of any and all principal and interest then due, whether by
acceleration or otherwise, to Lender under this Note. Upon the occurrence of any
Event of Default, Lender shall have the right to setoff against all obligations
of Borrower to Lender hereunder, whether matured or unmatured, all amounts owing
to Borrower by Xxxxxx, whether or not then due and payable, and all other funds
or property of Borrower on deposit with or otherwise held in the custody of
Lender or any of its affiliates, all without notice to or demand on Borrower,
such notice and demand being hereby waived.
6.4 Presentment for payment, notice of dishonor, protest, notice of
protest and diligence in bringing suit against any party hereto are hereby
waived by Xxxxxxxx.
6.5 Borrower hereby waives all relief from any and all appraisement or
exemption laws now in force or hereafter enacted.
6.6 The obligations evidenced or created by this Note, as well as all
waivers of rights by Borrower contained herein shall effectively bind and be the
obligations and waivers of any and all others who may at any time become liable
for the payment of all or any part of this Note, including, without limitation,
all indorsers and guarantors.
6.7 Nothing herein contained, nor in any of the other Loan Documents or
other documents relating hereto, shall be construed or so operate as to require
Borrower, or any person liable for the payment of the loan made pursuant to this
Note, to pay interest in an amount or at a rate greater than the highest rate
permissible under applicable law. Should any interest or other charges paid by
Borrower, or any parties liable for the payment of the loan made pursuant to
this Note, result in the computation or earning of interest in excess of the
highest rate permissible under applicable law, then any and all such excess
shall be and the same is hereby waived by Xxxxxx, and all such excess shall be
automatically credited against and in reduction of the
7
principal balance, and any portion of said excess which exceeds the principal
balance shall be paid by Xxxxxx to Borrower and any parties liable for the
payment of the loan made pursuant to this Note, it being the intent of the
parties hereto that under no circumstances shall Borrower or any parties liable
for the payment of the loan hereunder, be required to pay interest in excess of
the highest rate permissible under applicable law. All interest paid or agreed
to be paid to Lender shall, to the extent permitted under applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of this Note, including the period of any renewal or extensions
thereof, so that interest thereon for such full period shall not exceed the
maximum amount permitted by applicable law.
Notwithstanding anything to the contrary herein contained, in the event
that the Effective Rate should ever exceed the highest rate permissible under
applicable law, thereby causing the interest accruing on the indebtedness
evidenced by this Note to be limited to such highest rate permissible under
applicable law, then any subsequent reduction in the Effective Rate shall not
reduce the rate of interest charged hereunder below the highest rate permissible
under applicable law until the total amount of interest accrued on the
indebtedness evidenced by this Note equals the amount of interest which would
have accrued on such indebtedness if the Effective Rate had been in effect at
all times in the period during which the rate charged thereon was limited to the
highest rate permissible under applicable law.
6.8 Xxxxxxxx acknowledges and agrees that all property pledged or
assigned by Xxxxxxxx to Lender as security for this Note has been pledged or
assigned as security for the entirety of all indebtedness evidenced by this
Note.
6.9 If any provision (or any part of any provision) contained in this
Note shall for any reason be held or deemed to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision (or remaining part of the affected
provision) of this Note, and this Note shall be construed as if such invalid,
illegal or unenforceable provision (or part thereof) had never been contained
herein and the remaining provisions of this Note shall remain in full force and
effect.
6.10 Borrower hereby authorizes any attorney-at-law to appear in any
court of record in the State of Ohio or in any other state or territory of the
United States at any time after this Note becomes due, whether by acceleration
or otherwise, to waive the issuing and service of process, and to confess
judgment against Borrower in favor of Lender for the amount due together with
interest, expenses, the costs of suit and reasonable counsel fees, and thereupon
to release and waive all errors, rights of appeal and stays of execution. Such
authority shall not be exhausted by one exercise, but judgment may be confessed
from time to time as any sums and/or costs, expenses or reasonable counsel fees
shall be due, by filing an original or a photostatic copy of this Note. Xxxxxxxx
waives any right to move any court for an order having any attorney or firm
representing Lender removed or disqualified as counsel for Xxxxxx as a result of
such attorney or firm confessing judgment against Xxxxxxxx in accordance with
this Section 6.10. Borrower hereby expressly waives any conflicts of interest
that may now or hereafter exist as a result of any attorney representing Xxxxxx
confessing judgment against Xxxxxxxx and expressly consents to any attorney
representing Lender or to any other attorney to confess judgment against
Borrower in accordance with this Section 6.10. Xxxxxxxx hereby further consents
and agrees that Xxxxxx
8
may pay any attorney confessing judgment against Xxxxxxxx in accordance with
this Section 6.10, a reasonable fee for confessing judgment and that any fees so
paid may be included in the amount of such judgment.
6.11 Borrower hereby agrees to pay to Lender all costs of preparing,
collecting and securing, and of attempting to collect and to secure this Note,
and all costs of foreclosing the Deed of Trust, including, without limitation,
reasonable attorneys' fees, appraisers' fees, court costs, notice charges and
title insurance charges, whether such attempt be made by suit, in bankruptcy, or
otherwise; and said costs and any other sums due Lender by virtue of this Note
or the Deed of Trust may be included in any judgment or decree rendered.
6.12 BORROWER HEREBY VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN XXXXXX AND BORROWER ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN BORROWER AND LENDER IN CONNECTION WITH THE LOAN DOCUMENTS,
THIS NOTE, OR ANY OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT TO LENDER TO ENTER INTO THE FINANCING TRANSACTION. IT SHALL
NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY XXXXXX'S ABILITY TO PURSUE
ITS REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED IN THE LOAN DOCUMENTS, THIS NOTE OR ANY OTHER
DOCUMENT OR AGREEMENT RELATED HERETO.
This Note is delivered in the State of Ohio and is to be governed by
and construed in accordance with the laws of the State of Ohio. In addition to
any other appropriate jurisdiction determined by Xxxxxx, Xxxxxxxx hereby
consents to, and by execution of this Note, submits to the personal jurisdiction
of the Court of Common Pleas of Franklin County, Ohio and the United States
District Court sitting in Columbus, Ohio for the purposes of any judicial
proceedings which are instituted for the enforcement of this Note. Xxxxxxxx
agrees that venue is proper in said jurisdiction.
9
--------------------------------------------------------------------------------
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
--------------------------------------------------------------------------------
GLIMCHER BUENA VISTA, LLC,
a Delaware limited liability company
By: Glimcher Properties Limited Partnership,
its Managing Member
By: Glimcher Properties Corporation,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, Executive
Vice President, CFO & COO
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 27th day of
March, 2002, by Xxxxxxx X. Xxxxxxx, the Executive Vice President, CFO & COO of
Glimcher Properties Corporation, the General Partner of Glimcher Properties
Limited Partnership, the Managing Member of Glimcher Buena Vista, LLC, a
Delaware limited liability company, on behalf of the corporation, limited
partnership and limited liability company.
/s/ Xxxx X. Church
------------------------------------------
Notary Public
Commission Expires: 1/30/07
---------------------
10
