EXHIBIT 10.14
PROMISSORY NOTE
$36,500,000 January 5, 2004
Columbus, Ohio
FOR VALUE RECEIVED, the undersigned, GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("Borrower"), promises to pay to the
order of Bank One, NA, a national banking association, or the holder hereof from
time to time ("Lender"), at such place as may be designated in writing by
Xxxxxx, the principal sum of THIRTY-SIX MILLION FIVE HUNDRED THOUSAND AND
NO/100THS DOLLARS ($36,500,000.00) or so much thereof as may be disbursed by
Lender to or for the benefit or account of Borrower, with interest thereon as
hereinafter provided. This note (this "Note") is issued pursuant to the terms of
a Loan Agreement of even date herewith by and between Xxxxxxxx and Lender (said
Loan Agreement, as same may be amended and modified from time to time, is
referred to hereinafter as the "Loan Agreement"). All capitalized terms used but
not defined herein shall have the respective meanings ascribed to them in the
Loan Agreement. All sums owing hereunder are payable in lawful money of the
United States of America, in immediately available funds.
Interest accrued on this Note shall be due and payable on the first day
of each month commencing with the first month after the date of this Note at the
applicable rate determined in accordance with the terms and conditions of the
Loan Agreement of either (i) a rate equal to one-half of one percent (.50%) per
annum in excess of Xxxxxx's "Prime Rate" in effect from time to time, which
means a rate per annum equal to the prime rate of interest announced from time
to time by Lender or its parent (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate changes; or (ii)
a rate equal to the sum of (i) three percent (3%) per annum, and (ii) the
quotient of (a) the LIBO Rate divided by (b) one (1) minus the Reserve
Requirement expressed as a decimal.
The outstanding principal balance of this Note, together with all
accrued and unpaid interest, shall be due and payable upon the occurrence of the
earlier of the closing of the sale of at least sixty-six percent (66%) of the
properties identified in the CCP Acquisition Contract, or on July 5, 2004 (the
"Initial Maturity Date"); provided that the maturity date of this Note shall be
January 5, 2005 in the event said date of maturity is extended pursuant to the
terms and conditions of the Loan Agreement (the "Extended Maturity Date").
This Note is issued pursuant to the terms of a Loan Agreement and is
secured by and entitled to the benefits of, among other things, two (2) Pledge
and Security Agreements from Borrower, of both its (a) forty-eight and 99/100
percent (48.99%) limited liability company membership interest in Polaris Mall,
LLC, a Delaware limited liability company, and subsidiary of Borrower ("Polaris
Mall") and (b) fifty-one and 01/100 percent (51.01%) limited liability company
membership interest in Polaris Mall, to Lender of even date herewith (said
Pledge and Security Agreements, as same may be amended and modified from time to
time, is referred to hereinafter as the "Pledge Agreements"). In case an Event
of Default, as defined under the Pledge Agreements, the Loan Agreement, or other
Loan Document, shall occur and be continuing (any of the foregoing being an
"Event of Default" hereunder), the principal of this Note together with all
accrued interest thereon may, at the option of the holder hereof, immediately
become due and payable on demand; provided, however, that if any Loan Document
related to this Note provides for automatic acceleration of payment of sums
owing
hereunder, all sums owing hereunder shall be automatically due and payable in
accordance with the terms of that document.
Unless otherwise agreed to in writing, or otherwise required by
applicable law, payments will be applied first to accrued, unpaid interest, then
to principal, and any remaining amount to any unpaid collection costs, late
charges and other charges, provided, however, upon delinquency or other default,
Lender reserves the right to apply payments among principal, interest, late
charges, collection costs and other charges at its discretion. All prepayments
shall be applied to the indebtedness owing hereunder in such order and manner as
Xxxxxx may from time to time determine in its sole discretion. The amount of the
principal balance of the Loan outstanding from time to time as shown on the
records of Xxxxxx shall be conclusive absent manifest error as to such amount.
Borrower shall have the right, at any time without penalty, to make
prepayments under this Note, in whole or in part, provided that any such
prepayment relates to any portion of the principal amount of the Note bearing
interest at the Adjusted Prime Rate and provided further, that Xxxxxx receives
at least forty-eight (48) hours prior written notice of the intent to make such
prepayment. Borrower may prepay all or any portion of the principal amount of
the Note bearing interest at a Fixed Rate, provided that if Borrower makes any
such prepayment, other than on the last day of an Interest Period, Borrower (a)
with such prepayment, shall pay all accrued interest on the principal amount
prepaid (unless less than all of the principal amount of this Note is being
prepaid, in which case such interest shall be due and payable on the next
scheduled interest payment date), (b) with such prepayment, shall pay an
administrative fee of $250.00, and (c) on demand, shall reimburse Lender and
hold Lender harmless from all losses and expenses incurred by Xxxxxx as a result
of such prepayment, including, without limitation, any losses and expenses
arising from the liquidation or reemployment of deposits acquired to fund or
maintain the principal amount prepaid. Xxxxxx's determination of the amount of
such reimbursement shall be conclusive in the absence of manifest error.
Provided that no Event of Default exists, Borrower shall have the option as
described in (c) below (the "Interest Rate Option") to elect from time to time
in the manner and subject to the conditions hereinafter set forth, a Fixed Rate
as the applicable rate for all or any portion of this Note which would otherwise
bear interest at the Adjusted Prime Rate.
Borrower may elect that as of any Business Day designated by Borrower,
upon notice that is received by Lender not later than noon (Columbus, Ohio,
local time) two (2) Business Days prior to such designated date, interest on a
Fixed Rate Amount accrue at a Fixed Rate during an Interest Period. Each such
notice shall specify (i) the amount of such Fixed Rate Amount, and (ii) the
Interest Period. In addition, Borrower may as of any designated Business Day,
upon notice that is received by Lender not later than noon (Columbus, Ohio,
local time) two (2) Business Days prior to such designated Business Day, convert
an Adjusted Prime Rate Amount into a Fixed Rate Amount or continue a Fixed Rate
Amount as a Fixed Rate Amount for a new Interest Period, provided, that Borrower
may make such conversion or continuation only on the last day of the Interest
Period. Each such notice of conversion or continuation shall specify (A) the
date of such conversion or continuation, (B) the amount to be converted or
continued, and (C) if applicable, the Interest Period. Any amount not complying
with the foregoing requirements for an amount bearing interest at the Fixed Rate
shall bear interest at the Adjusted Prime Rate. Any Fixed Rate Amount not
continued as a Fixed Rate Amount in
2
compliance with the foregoing requirements shall, after the end of the Interest
Period, bear interest at the Adjusted Prime Rate, whether or not Borrower has
elected to convert the Fixed Rate Amount to the Adjusted Prime Rate Amount.
Lender shall be entitled to fund and maintain its funding of all or any
part of this Note in any manner it sees fit; provided, however, for the purpose
of this Note, all determinations hereunder shall be made as if Xxxxxx had
actually funded and maintained each Fixed Rate Amount through the purchase of
deposits having a maturity corresponding to the last day of the Interest Period
and bearing an interest rate equal to the Fixed Rate for such Interest Period.
A Fixed Rate Amount must be in a minimum amount of One Million Dollars
($1,000,000.00), with increments of One Million Dollars ($1,000,000.00)
thereafter, and at no time may there be more than three (3) Interest Periods for
any Fixed Rate Amounts in effect with respect to this Note.
In respect of any Fixed Rate Amount, in the event that Lender shall
have determined that (i) dollar deposits of the relevant amount for the relevant
Interest Period for such Fixed Rate Amount are not available, or (ii) by reason
of circumstances affecting such market, adequate and reasonable means do not
exist for ascertaining the LIBO Rate applicable to such Interest Period in the
manner provided in the definition of such term, or (iii) the relevant interest
rates referred to in the definition of LIBO Rate do not accurately cover the
cost to the Lender of making or maintaining Fixed Rate Amounts, as the case may
be, Lender shall promptly give notice of such determination to the Borrower and
(i) the obligation of Lender to make Fixed Rate Amounts shall be suspended until
Lender notifies Borrower that the circumstances giving rise to the suspension no
longer exist, (ii) any notice of new Fixed Rate Amounts (or the conversion of
existing Fixed Rate Amounts or Adjusted Prime Rate Amounts to Fixed Rate
Amounts) previously given by the Borrower and not yet borrowed (or converted, as
the case may be) shall be deemed a notice that such amounts shall bear interest
at the Adjusted Prime Rate, and (iii) the Borrower shall be obligated either to
prepay or to convert any outstanding Fixed Rate Amounts on the last day of the
then current Interest Period or Periods with respect thereto, as Borrower shall
elect.
Borrower shall pay to Lender from time to time such amounts as Lender
may determine to be necessary to compensate Lender for any costs incurred by
Lender which Lender determines are attributable to its making or maintaining any
Fixed Rate Amount hereunder or its obligation to make any such Fixed Rate Amount
hereunder, or any reduction in any amount receivable by Lender under the Loan
Agreement in respect of any such Fixed Rate Amount or such obligation (such
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any change after the Closing Date in U.S. federal,
state, municipal, or foreign laws or regulations (including Regulation D), or
the adoption or making after such date of any interpretations, directives, or
requirements applying to a class of banks including Lender of or under any U. S.
federal, state, municipal, or any foreign laws or regulations (whether or not
having the force of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof ("Regulatory Change"),
which: (1) changes the basis of taxation of any amounts payable to Lender under
the Loan Agreement in respect of any such Fixed Rate Amount (other than taxes
imposed on the overall net income of the Lender); or (2)
3
imposes or modifies any reserve, special deposit, compulsory loan, or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of Lender (including any such Fixed Rate
Amount or any deposits referred to in the definition of any LIBO Rate); or (3)
imposes any other condition affecting the Loan Agreement (or any of such
extensions of credit or liabilities). Lender will notify the Borrower of any
event occurring after the Closing Date which will entitle Lender to compensation
pursuant to this paragraph as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation. Determinations by Lender
for purposes of this paragraph of the effect of any Regulatory Change in its
costs of making or maintaining Fixed Rate Amounts or on amounts receivable by it
in respect of Fixed Rate Amounts, and of the additional amounts required to
compensate Lender in respect of any Additional Costs, shall be presumed prima
facie correct.
If at any time any new law, treaty or regulation enacted after the date
hereof, or any change after the date hereof in any existing law, treaty or
regulation, or any interpretation thereof after the date hereof by any
governmental or other regulatory authority charged with the administration
thereof, shall make it unlawful for Lender to fund any Fixed Rate Amounts with
moneys obtained in the London interbank market, the commitment of Lender to
extend Fixed Rate Amounts shall, upon the happening of such event forthwith be
suspended for the duration of such illegality, and Lender shall by written
notice to the Borrower declare that the commitment to extend Fixed Rate Amounts
has been so suspended and, if and when such illegality ceases to exist, such
suspension shall cease and Lender shall similarly notify the Borrower. If any
such change shall make it unlawful for Lender to continue in effect the funding
in the applicable London interbank market of any Fixed Rate Amount previously
made by it hereunder, Lender shall, upon the happening of any such event, notify
the Borrower in writing stating the reasons therefor, and the Borrower shall, on
the earlier of (i) the last day of then current Interest Period or (ii) if
required by such law, regulation or interpretation, on such date as shall be
specified in such notice, either convert all Fixed Rate Amounts to Adjusted
Prime Rate Amounts or prepay all Fixed Rate Amounts to Lender in full, as
Borrower shall elect.
Interest at the Adjusted Prime Rate or one or more Fixed Rates (or
Default Rate), as applicable, shall be computed by applying the ratio of the
applicable annual interest rate over a year of 360 days, multiplied by the
applicable outstanding principal balance, multiplied by the actual number of
days the applicable principal balance is outstanding. In addition, Borrower
shall pay all Breakage Costs incurred from time to time by Lender upon demand.
If any payment due hereunder is due and payable on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of the payment of
interest under this Note. All payments of principal and interest hereunder shall
be made without deduction of any present or future taxes, levies, imposts,
duties, fees, assessments, withholdings or other charges, which amounts shall be
paid by Borrower, and without any other setoff or counterclaim of any kind.
4
After an Event of Default, if any interest payment required hereunder
is not received by Xxxxxx on or before the 11th day of the month in which it
becomes due, Borrower shall pay, at Xxxxxx's option, a late or collection charge
equal to five percent (5%) of the amount of such unpaid interest payment.
From and after the Extended Maturity Date, or such earlier date as all
sums owing on this Note become due and payable by acceleration or otherwise, or
after the occurrence of an Event of Default, interest shall be computed on all
amounts then due and payable under this Note at a "Default Rate" equal to three
percent (3%) per annum (based on a 360-day year and charged on the basis of
actual days elapsed) in excess of the interest rate otherwise accruing under
this Note.
After the occurrence of an Event of Default, if any attorney is engaged
by Xxxxxx to enforce or defend any provision of this Note or the Pledge
Agreements or any of the other Loan Documents, or as a consequence of any Event
of Default, with or without the filing of any legal action or proceeding, then
Borrower shall pay to Lender immediately upon demand all attorneys' fees and
expenses, together with interest thereon from the date of such demand until paid
at the rate of interest applicable to the principal balance owing hereunder as
if such unpaid attorneys' fees and expenses had been added to the principal.
No previous waiver and no failure or delay by Xxxxxx in acting with
respect to the terms of this Note, the Pledge Agreements or any of the other
Loan Documents shall constitute a waiver of any breach, default or failure of
condition under this Note, the Pledge Agreements or any of the other Loan
Documents or the obligations secured thereby. A waiver of any term of this Note,
the Pledge Agreements or any of the other Loan Documents or of any of the
obligations secured thereby must be made in writing and shall be limited to the
express. written terms of such waiver. In the event of any inconsistencies
between the terms of this Note and the terms of any other Loan Document related
to the Loan evidenced by this Note, the terms of this Note shall prevail.
Except as otherwise provided in the Loan Agreement, Borrower expressly
waives presentment, demand, notice of dishonor, notice of default or
delinquency, notice of acceleration, notice of protest and nonpayment, notice of
costs, expenses or losses and interest thereon, notice of late charges, and
diligence in taking any action to collect any sums owing under this Note or in
proceeding against any of the rights or interests in or to properties securing
payment of this Note. In addition, Xxxxxxxx expressly agrees that this Note and
any payment coming due hereunder may be extended from time to time without in
any way affecting the liability of any such party hereunder.
Time is of the essence with respect to every provision hereof. This
Note shall be construed and enforced in accordance with the laws of the State of
Ohio, except to the extent that Federal laws preempt the laws of the State of
Ohio, and all persons and entities in any manner obligated under this Note
consent to the jurisdiction of any Federal or State court within the State of
Ohio having proper venue and also consent to service of process by any means
authorized by Ohio or Federal law. Any reference contained herein to attorneys'
fees end expenses shall be deemed to be to reasonable fees and expenses and to
include all reasonable fees and expenses of in-house or staff attorneys and the
reasonable fees and expenses of any other experts or consultants.
All agreements between Borrower and Lender (including, without
limitation, this Note, the Loan Agreement, the Pledge Agreements, and any other
Loan Documents securing all or any part of the indebtedness evidenced hereby)
are expressly limited so that in no event whatsoever shall the amount paid or
agreed to be paid to Lender exceed the highest lawful rate of interest
permissible under applicable law. If, from any circumstances whatsoever,
fulfillment of any provision hereof or
5
of the Pledge Agreements, the Loan Agreement or any other Loan Documents
securing all or any part of the indebtedness evidenced hereby at the time
performance of such provisions shall be due, shall involve exceeding the limit
of validity prescribed by law which a court of competent jurisdiction may deem
applicable hereto, then, ipso facto, the obligation to be fulfilled shall be
reduced to the highest lawful rate of interest permissible under such applicable
laws, and if, for any reason whatsoever, Lender shall ever receive as interest
an amount which would be deemed unlawful under such applicable law, such
interest shall be automatically applied to the payment of the principal of this
Note (whether or not then due and payable) and not to the payment of interest or
refunded to Borrower if such principal has been paid in full.
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 Borrower in accordance with
this paragraph. Borrower hereby expressly waives any conflicts of interest that
may now or hereafter exist as a result of any
[Remainder of Page Intentionally Left Blank]
6
attorney representing Xxxxxx confessing judgment against Xxxxxxxx and expressly
consents to any attorney representing Lender or to any other attorney to confess
judgment against Xxxxxxxx in accordance with this paragraph. Xxxxxxxx hereby
further consents and agrees that Xxxxxx may pay any attorney confessing judgment
against Borrower in accordance with this paragraph, a reasonable fee for
confessing judgment and that any fees so paid may be included in the amount of
such judgment.
IN WITNESS WHEREOF, the undersigned has executed by its duly authorized
representative as of the 5th day of January, 2004.
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.
BORROWER: Glimcher Properties Limited Partnership, a
Delaware limited partnership
By: Glimcher Properties Corporation, its sole general
partner, a Delaware corporation
By:____________________________________________
Xxxxxx X. Xxxxxxx, Executive Vice President
7
