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Exhibit 10.1
PROMISSORY NOTE
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$64,898,546.00 December 17, 1997
FOR VALUE RECEIVED, the undersigned, GLIMCHER UNIVERSITY MALL
LIMITED PARTNERSHIP, a Delaware limited partnership, with an address of 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esquire,
Senior Vice President and General Counsel, Telefax Number (000) 000-0000
("MAKER"), promises to pay to the order of NOMURA ASSET CAPITAL CORPORATION, a
Delaware corporation (together with any subsequent holder of this Note, and
their respective successors and assigns, "HOLDER") at its office located at Two
World Financial Center, Building B, 21st Floor, New York, New York, 10281,
Attention: Xxxxxx Xxxxxxxxxx, Vice President, Telefax Number (000) 000-0000, or
at such other address as Holder may from time to time designate in writing, the
principal sum of SIXTY-FOUR MILLION EIGHT HUNDRED NINETY-EIGHT THOUSAND FIVE
HUNDRED FORTY-SIX DOLLARS ($64,898,546.00) together with interest thereon,
Default Rate interest, Yield Maintenance Premium, if any, the Event of Default
Return-of-Fee Amount, if any, and all other sums due under and secured by the
Mortgage or by any other Loan Documents; such principal, interest, Default Rate
interest, Yield Maintenance Premium, if any, the Event of Default Return-of-Fee
Amount, if any, and other sums to be calculated and payable as provided in that
certain Loan Agreement of even date herewith between Maker and Holder (as
amended, modified and supplemented and in effect from time to time, the "LOAN
AGREEMENT"). Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Loan Agreement.
All payments made hereunder shall be applied as provided in
SECTION 2.7 of the Loan Agreement.
The Loan Agreement provides for, among other things:
(1) a payment of interest only for the first Interest Accrual
Period on the date hereof;
(2) a monthly constant payment of $486,785.71 (which payment
is calculated by using the Initial Interest Rate and an amortization schedule of
three hundred sixty (360) months) to be made beginning on January 11, 1998, and
on the eleventh (11th) day of each and every calendar month thereafter;
PROVIDED, HOWEVER, that for purposes of making such payments hereunder, but not
for purposes of calculating interest accrual periods, if the eleventh (11th) day
of a given month is not a Business Day then the Payment Date for such month
shall be the next Business Day;
(3) a maturity date of January 11, 2028;
(4) an Initial Interest Rate of 8.233% per annum;
(5) a Revised Interest Rate equal to the greater of (x) the
sum of the Initial
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Interest Rate plus four hundred (400) basis points, or (y) as of the Optional
Prepayment Date, the sum of the Optional Prepayment Date Treasury Rate plus five
hundred twenty-five (525) basis points, such Revised Interest Rate not to exceed
the Maximum Amount;
(6) an Optional Prepayment Date of January 11, 2013;
(7) a Default Rate equal to the lesser of (i) the Maximum
Amount or (ii) the Interest Rate plus four percent (4%);
(8) the Loan cannot be voluntarily prepaid prior to the
Optional Prepayment Date; on and after the Optional Prepayment Date, (a) the
Loan may be prepaid in whole or in part and (b) SECTION 2.6 of the Loan
Agreement requires mandatory prepayment of all Excess Cash Flow;
(9) interest shall accrue on the outstanding principal balance
of the Loan and all other amounts due to Holder under the Loan Documents
commencing on the Closing Date, and such interest shall accrue (a) before the
Optional Prepayment Date, at the Initial Interest Rate and (b) on and after the
Optional Prepayment Date, at the Revised Interest Rate. Interest shall be
computed on the actual number of days elapsed in each year over a 360-day year;
and
(10) assuming that payments in the exact Base Payment amount
are made on each and every Payment Date during the term of the Loan including,
without limitation, the Base Payment that is due and payable on the Optional
Prepayment Date, the amount of principal oustanding on the Optional Prepayment
Date will be $52,357,986.
The obligations of Maker under this Note are secured by, among
other things, the following:
(1) the Mortgage; and
(2) the other Loan Documents, and Xxxxx granted in favor of
Holder by Maker and/or encumbering or affecting the Facility.
The principal sum evidenced by this Note, together with
accrued interest, Default Rate interest, and Yield Maintenance Premium, if any,
the Event of Default Return-of-Fee Amount, if any, and all other sums due under
and secured by the Mortgage or by any other Loan Document shall become
immediately due and payable at the option of Holder upon the occurrence of any
Event of Default.
If Maker fails to make (i) the payment due on the Maturity
Date or (ii) any other payment of principal or interest, the Yield Maintenance
Premium, if any, the Event of Default Return-of-Fee Amount, if any, or other sum
due on any date on which such payment is due, all amounts due hereunder
thereafter will bear interest at the Default Rate. Maker will also pay to
Holder, after the occurrence of an Event of Default, in addition to the amount
due, all reasonable costs of collecting, securing, or attempting to collect or
secure this Note or any other Loan Document, including, without limitation,
court costs and reasonable attorneys' fees (including
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reasonable attorneys' fees on any appeal by either Maker or Holder and in any
bankruptcy proceedings).
With respect to the amounts due pursuant to this Note, Maker
waives the following:
(1) All rights of exemption of property from levy or sale
under execution or other process for the collection of debts under the
Constitution or laws of the United States or any State thereof;
(2) Demand, presentment, protest, notice of dishonor, notice
of nonpayment, notice of protest, notice of intent to accelerate, notice of
acceleration, suit against any party, diligence in collection of this Note and
in the handling of securities at any time existing in connection herewith, and
all other requirements necessary to enforce this Note except for notices
required by Governmental Authorities and notices required by the Loan Agreement;
and
(3) Any further receipt by Xxxxxx or acknowledgement by Holder
of any collateral now or hereafter deposited as security for the Loan.
It is the intention of Maker and Holder to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated hereby
would be usurious under applicable law then, in that event, notwithstanding
anything to the contrary in any agreement entered into in connection with or as
security for this Note, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under applicable law that is taken,
reserved, contracted for, charged or received under this Note or under any of
the other aforesaid agreements or otherwise in connection with this Note shall
under no circumstances exceed the maximum amount of interest allowed by
applicable law, and any excess shall be credited on account of this Note by the
holder hereof (or if this Note shall have been paid in full, refunded to Maker)
in accordance with the Loan Agreement; and (ii) in the event that maturity of
this Note is accelerated by reason of an election by the Holder resulting from
any default hereunder or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may never include
more than the maximum amount of interest allowed by applicable law, and any
interest in excess of the maximum amount of interest allowed by applicable law,
if any, provided for in this Note or otherwise shall be cancelled automatically
as of the date of such acceleration or prepayment and, if theretofore prepaid,
shall be credited on account of this Note (or if this Note shall have been paid
in full, refunded to Maker).
In determining whether or not the interest paid or payable
under any specific contingency exceeds the maximum amount allowed by applicable
law, the Holder shall, to the maximum extent permitted under applicable law (a)
exclude voluntary prepayments and the effects thereof, and (b) amortize,
prorate, allocate and spread, in equal parts, the total amount of interest
throughout the entire contemplated term of this Note so that the interest rate
is uniform throughout the entire term of this Note; provided, that if this Note
is paid and performed in full prior to the end of the full contemplated term
hereof, and if the interest received for the actual period of existence thereof
exceeds the maximum amount allowed by applicable law, Holder shall refund to
Maker the amount of such excess, and in such event, Holder shall not be subject
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to any penalties provided by any laws for contracting for, charging or receiving
interest in excess of the maximum amount allowed by applicable law.
Holder shall not by any act, delay, omission or otherwise be
deemed to have modified, amended, waived, extended, discharged or terminated any
of its rights or remedies, and no modification, amendment, waiver, extension,
discharge or termination of any kind shall be valid unless in writing and signed
by Holder and Maker. All rights and remedies of Holder under the terms of this
Note and applicable statutes or rules of law shall be cumulative, and may be
exercised successively or concurrently. Maker agrees that there are no defenses,
equities or setoffs with respect to the obligations set forth herein, and to the
extent any such defenses, equities, or setoffs may exist, the same are hereby
expressly released, forgiven, waived and forever discharged.
Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable Legal
Requirements, but if any provision of this Note shall be prohibited by or
invalid under applicable Legal Requirements, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Note.
Holder may, at its option, release any Collateral given to
secure the indebtedness evidenced hereby, and no such release shall impair the
obligations of Maker to Holder.
The proceeds of this Note were disbursed from the State of New
York, which State the parties agree has a substantial relationship to the
parties and to the underlying transaction embodied hereby, and in all respects,
including, without limitation, matters of construction, validity and
performance, this Note and the obligations arising hereunder shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to contracts made and performed in such State and any applicable law
of the United States of America. To the fullest extent permitted by law, Maker
hereby unconditionally and irrevocably waives any claim to assert that the law
of any other jurisdiction governs this Note, and this Note shall be governed by
and construed in accordance with the laws of the State of New York pursuant to
ss. 5-1401 of the New York General Obligations Law.
Any legal suit, action or proceeding against Holder or Maker
arising out of or relating to this Note shall be instituted in any federal or
state court in New York, New York, pursuant to ss. 5-1402 of the New York
General Obligations Law, or in any federal or state court in the jurisdiction in
which any Collateral is located, and Maker waives any objection which it may now
or hereafter have to the laying of venue of any such suit, action or proceeding,
and Maker hereby irrevocably submits to the jurisdiction of any such court in
any suit, action or proceeding. Maker does hereby designate and appoint CT
Corporation, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 as its authorized agent to accept
and acknowledge on its behalf service of any and all process which may be served
in any such suit, action or proceeding in any such federal or state court, and
agrees that service of process upon said agent at said address (or at such other
office in New York, New York as may be designated by such agent in accordance
with the terms hereof) with copies to Maker at the address set forth in the
first paragraph of this Note and to Frost & Xxxxxx LLP, One Columbus, Xxxxx
0000, 00 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-
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3467, Attention: Xxxx X. Xxxxxxxxxxx, Esquire, and written notice of said
service of Maker mailed or delivered to Maker in the manner provided in the Loan
Agreement shall be deemed in every respect effective service of process upon
Maker, in any such suit, action or proceeding. Maker (i) shall give prompt
notice to Holder of any changed address of its authorized agent hereunder, (ii)
may at any time and from time to time designate a substitute authorized agent
(which office shall be designated as the address for service of process), and
(iii) shall promptly designate such a substitute if its authorized agent ceases
to have an office or is dissolved without leaving a successor.
MAKER AND HOLDER TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY
DO SO, WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS
NOTE OR THE OTHER LOAN DOCUMENTS. EACH OF MAKER AND XXXXXX AGREES THAT THE OTHER
MAY FILE A COPY OF THIS WAIVER WITH ANY COURT AS WRITTEN EVIDENCE OF THE
KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF THE OTHER IRREVOCABLY TO WAIVE ITS
RIGHT TO TRIAL BY JURY, AND THAT, TO THE FULLEST EXTENT THAT IT MAY LAWFULLY DO
SO, ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN MAKER AND HOLDER SHALL INSTEAD
BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
Holder may assign all or part of its right, title and interest
in and to this Note to another Person, including without limitation, to a
trustee or servicer before or after a Securitization, and such Person shall be
entitled to exercise all or any portion of Xxxxxx's rights hereunder.
The proper amount of Florida Documentary Stamp Taxes and
Intangible Taxes have been paid in connection with the recordation of the
Mortgage.
Without limiting the applicability of the terms of any Loan
Document to this Note, this Note is and shall be subject to the exculpation
provisions of SECTION 8.14 of the Loan Agreement.
[Signature on the following page]
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IN WITNESS WHEREOF, intending to be legally bound, Maker has
caused this Promissory Note to be properly executed as of the date first above
written and has authorized this Promissory Note to be dated as of the day and
year first above written.
MAKER:
GLIMCHER UNIVERSITY MALL
LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Glimcher Tampa, Inc., a
Delaware corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Senior Vice President
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Pay to the order of ________________________________________________________,
a_____________________________________________________, having an address of
____________________________________________________________________________
____________________________________________________________________________
without recourse, representation or warranty.
NOMURA ASSET CAPITAL CORPORATION, a
Delaware corporation
Date: By:
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Name:
Title:
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