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Exhibit 10.70
NOTE
$15,000,000.00
New York, New York
July 15, 1998
FOR VALUE RECEIVED, the undersigned, Glimcher Properties
Limited Partnership, a Delaware limited partnership, hereby unconditionally
promises to pay to the order of Xxxxxx Brothers Holdings Inc., a Delaware
corporation, d/b/a Lehman Capital, a division of Xxxxxx Brothers Holdings Inc.
("MEZZANINE LENDER"), located at Three World Financial Center, New York, New
York 10285, to such account as Mezzanine Lender may direct in written notice to
Borrower, in lawful money of the United States of America and by wire transfer
of immediately available funds, the principal amount of Fifteen Million Dollars
($15,000,000.00), in such amounts and at such times as set forth in the
Mezzanine Loan Agreement, with a final payment of the unpaid principal amount
hereof, together with unpaid interest accrued hereon and all other amounts due
hereunder, on the Maturity Date (as defined in the Mezzanine Loan Agreement).
The undersigned further agrees to pay interest in like money
to such account on the unpaid principal amount hereof from time to time from the
date hereof and on the dates and at the applicable rate per annum as provided in
the Mezzanine Loan Agreement until paid in full (both before and after
judgment).
This Note is the Mezzanine Note referred to in the loan
agreement, dated as of the date of this note (the "MEZZANINE LOAN AGREEMENT"),
between the undersigned and Mezzanine Lender and is entitled to the benefits
thereof and subject to the terms thereof. Capitalized terms used herein but not
defined herein shall have the meanings ascribed thereto in the Mezzanine Loan
Agreement.
Upon the occurrence of any one or more of the Events of
Default specified in the Mezzanine Loan Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided therein.
This Note may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Borrower or Mezzanine Lender, but only by an agreement in writing signed
by the party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought. Whenever used, the
singular number shall include the plural, the plural the singular, and the words
"Mezzanine Lender" and "Borrower" shall include their respective successors,
assigns, heirs, executors and administrators.
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Xxxxxxxx and all others who may become liable for the payment
of all or any part of the indebtedness hereunder do hereby severally waive
presentment and demand for payment, notice of dishonor, protest, notice of
protest, notice of nonpayment, notice of intent to accelerate the maturity
hereof and of acceleration. No release of any security for the indebtedness
hereunder or any person liable for payment of the indebtedness hereunder, no
extension of time for payment of this Note or any installment hereof, and no
alteration, amendment or waiver of any provision of the Mezzanine Loan Documents
made by agreement between Mezzanine Lender and any other person or party shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other person or party who may become liable
under the Mezzanine Loan Documents for the payment of all or any part of the
indebtedness hereunder.
Borrower (and the undersigned representative of Borrower, if
any) represents that Borrower has full power, authority and legal right to
execute, deliver and perform its obligations pursuant to this Note, the
Mezzanine Loan Agreement and the other Mezzanine Loan Documents and that this
Note, the Mezzanine Loan Agreement and the other Mezzanine Loan Documents
constitute valid and binding obligations of Borrower.
All notices or other communications required or permitted to
be given pursuant hereto shall be given in the manner specified in the Mezzanine
Loan Agreement directed to the parties at their respective addresses as provided
therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be
executed and delivered as of the day first above written.
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, as Borrower
By: Glimcher Properties Corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
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