AMENDED AND RESTATED PROMISSORY NOTE 2 EXHIBIT 10.179-2
--------------------------------------
$70,000,000.00 New York, New York
As of June 30, 2003
THIS AMENDED AND RESTATED PROMISSORY NOTE A2 (this "NOTE A2") is made
as of this 26 day of June, 2003, by and between LC PORTLAND, LLC, a Delaware
limited liability company, having its principal place of business at 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 ("BORROWER"), and XXXXXX BROTHERS HOLDINGS
INC., doing business as Xxxxxx Capital, a division of Xxxxxx Brothers Holdings
Inc., having an address at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("LENDER").
R E C I T A L S
WHEREAS, on May 12, 2003 Lender made a loan (the "LOAN") in the
aggregate principal amount of $140,000,000.00 to Borrower, which Loan is (a)
evidenced by that certain Promissory Note dated as of May 12, 2003 (the "NOTE")
and (b) secured by, among other things, that certain Fee and Leasehold Deed of
Trust and Security Agreement dated as of May 12, 2003 (the "MORTGAGE");
WHEREAS, there is now owing on the Note and the Mortgage the unpaid
principal sum of $140,000,000.00, together with interest;
WHEREAS, Borrower and Lender desire to amend and restate the Note in
its entirety and split the indebtedness evidenced by the Note into two separate
obligations of indebtedness evidenced by (a) this Note A2 evidencing the
principal sum of Component A2 (as described in that certain Amendment to Loan
Agreement dated the date hereof between Borrower and Lender (together with that
certain Loan Agreement dated as of May 12, 2003 between Borrower and Lender, the
"LOAN AGREEMENT")) in the aggregate principal amount of Seventy Million and
No/100 Dollars ($70,000,000.00) and (b) that certain Amended and Restated
Promissory Note A1 dated as of the date hereof evidencing the principal sum of
Component A1 (as described in the Loan Agreement) in the principal amount of
Seventy Million and No/100 Dollars ($70,000,000.00) ("NOTE A1"); and
WHEREAS, each of this Note A2 and Note A1 shall continue to be secured
by the Mortgage and shall collectively be referred to as the "Note" in the
Mortgage, the Loan Agreement and all other Loan Documents (as defined in the
Loan Agreement).
NOW, THEREFORE, in consideration of the premises, the agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby covenant
and agree as follows, effective as of the date first above written:
Borrower and Lender hereby agree that the portion of the Note to be
hereafter evidenced by this Note A2 is hereby amended, restated and replaced in
its entirety with respect to the principal indebtedness evidenced by this Note
A2 to read as follows:
AMENDED AND RESTATED PROMISSORY NOTE A2
---------------------------------------
$70,000,000 New York, New York
As of June __, 2003
FOR VALUE RECEIVED LC PORTLAND, LLC, a Delaware limited liability
company, as maker, having its principal place of business at 00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("BORROWER"), hereby unconditionally promises to
pay to the order of XXXXXX BROTHERS HOLDINGS INC., doing business as Xxxxxx
Capital, a division of Xxxxxx Brothers Holdings Inc., having an address at 000
Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LENDER"), or at such other
place as the holder hereof may from time to time designate in writing, the
principal sum of SEVENTY MILLION AND NO/100 DOLLARS ($70,000,000), in lawful
money of the United States of America with interest thereon to be computed from
the date of this Note A2 at the Applicable Interest Rate, and to be paid in
accordance with the terms of this Note A2 and that certain Loan Agreement dated
as of May 12, 2003 between Borrower and Lender, as amended by that certain
Amendment to Loan Agreement dated of even date herewith between Borrower and
Lender (collectively, the "LOAN AGREEMENT"). All capitalized terms not defined
herein shall have the respective meanings set forth in the Loan Agreement.
ARTICLE I: PAYMENT TERMS
(a) Borrower agrees to pay the principal sum of this Note A2 and
interest on the unpaid principal sum of this Note A2 from time to time
outstanding in accordance with this Note A2 and the Loan Agreement. The
outstanding balance of the principal sum of this Note A2, all accrued and unpaid
interest thereon and all other amounts due hereunder and under the Mortgage and
the other Loan Documents shall be due and payable on June 11, 2033, or such
other date which by acceleration or otherwise the principal sum of this Note A2
becomes due and payable (the "MATURITY DATE").
(b) Prior to June 11, 2013 (the "ANTICIPATED REPAYMENT DATE"), interest
on the outstanding principal balance of this Note A2 shall accrue at a fixed
rate per annum equal to 5.42% (the "REGULAR INTEREST RATE"). From and after the
Anticipated Repayment Date, interest on the outstanding principal balance of
this Note A2 shall accrue at the Matured Performing Rate (as defined in the Loan
Agreement). After the occurrence and during the continuance of an Event of
Default, interest on the outstanding principal balance of this Note A2 shall
accrue at the Default Rate.
(c) Commencing on July 11, 2003 and on the first day of each succeeding
calendar month (each such date a "PAYMENT DATE") through and including the
Anticipated Repayment Date Borrower shall pay to Lender a monthly payment of
$393,946.00 (the "MONTHLY DEBT SERVICE PAYMENT AMOUNT") to be applied by Lender
in accordance with the Loan Agreement. If any Payment Date is not a Business
Day, the applicable payment shall be
-2-
made by Borrower on the first Business Day succeeding the applicable Payment
Date. After the Anticipated Repayment Date, Borrower shall pay to Lender the
Monthly Debt Service Payment Amount together with such additional amounts
required to be paid by Borrower as more fully described in the Loan Agreement.
(d) All amounts due under this Note A2 shall be payable without setoff,
counterclaim or any other deduction whatsoever.
(e) Interest on the outstanding principal balance of this Note A2 shall
be calculated by multiplying (a) the actual number of days elapsed in the period
for which the calculation is being made by (b) a daily rate based on a three
hundred sixty (360) day year by (c) the outstanding principal balance.
(f) Each payment by Borrower under this Note A2 shall be made in funds
settled through the New York Clearing House Interbank Payments System or other
funds immediately available to Lender by 2:00 p.m., New York City time, on the
date such payment is due, to Lender by deposit to such account as Lender may
designate by written notice to Borrower in accordance with the Loan Agreement.
Whenever any payment under this Note A2 shall be stated to be due on a day which
is not a Business Day, such payment shall be made on the first Business Day
succeeding such scheduled due date.
ARTICLE II: DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and payable at the
option of Lender if any payment required in this Note A2 is not paid on or prior
to the date when due or if not paid on the Maturity Date or on the happening of
any other Event of Default. In the event that, and for so long as, any Event of
Default shall have occurred and be continuing, the outstanding principal balance
of the Loan shall accrue interest at the Default Rate.
ARTICLE III: LOAN DOCUMENTS
This Note A2 is secured by the Mortgage and the other Loan Documents.
All of the terms, covenants and conditions contained in the Loan Agreement, the
Mortgage and the other Loan Documents are hereby made part of this Note A2 to
the same extent and with the same force as if they were fully set forth herein.
In the event of a conflict or inconsistency between the terms of this Note A2
and the Loan Agreement, the terms and provisions of the Loan Agreement shall
govern.
ARTICLE IV: PREPAYMENTS
This Note A2 may not be prepaid in whole or in part except in
compliance with the terms, provisions and conditions of the Loan Agreement.
-3-
ARTICLE V: SAVINGS CLAUSE
Notwithstanding anything to the contrary, (a) all agreements and
communications between Borrower and Lender are hereby and shall automatically be
limited so that, after taking into account all amounts deemed interest, the
interest contracted for, charged or received by Lender shall never exceed the
maximum lawful rate or amount, (b) in calculating whether any interest exceeds
the lawful maximum, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender receives
or is deemed to receive interest in excess of the lawful maximum, any such
excess shall be deemed to have been applied toward payment of the principal of
any and all then outstanding indebtedness of Borrower to Lender, or if there is
no such indebtedness, shall immediately be returned to Borrower.
ARTICLE VI: NO ORAL CHANGE
This Note A2 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 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.
ARTICLE VII: WAIVERS
Borrower and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and non-payment and all other
notices of any kind. No release of any security for the Debt or extension of
time for payment of this Note A2 or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note A2, the Loan Agreement or the
other Loan Documents made by agreement between Lender or any other Person shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other Person who may become liable for the
payment of all or any part of the Debt, under this Note A2, the Loan Agreement
or the other Loan Documents. No notice to or demand on Borrower shall be deemed
to be a waiver of the obligation of Borrower or of the right of Lender to take
further action without further notice or demand as provided for in this Note A2,
the Loan Agreement or the other Loan Documents. If Borrower is a partnership,
the agreements herein contained shall remain in force and applicable,
notwithstanding any changes in the individuals comprising the partnership, and
the term "Borrower," as used herein, shall include any alternate or successor
partnership, but any predecessor partnership and their partners shall not
thereby be released from any liability. If Borrower is a corporation, the
agreements contained herein shall remain in full force and applicable
notwithstanding any changes in the shareholders comprising, or the officers and
directors relating to, the corporation, and the term "Borrower" as used herein,
shall include any alternative or successor corporation, but any predecessor
corporation shall not be relieved of liability hereunder. (Nothing in the
foregoing sentence shall be construed as a consent to, or a waiver of, any
prohibition or restriction on transfers of interests in such partnership which
may be set forth in the Loan Agreement, the Mortgage or any other Loan
Document.)
-4-
ARTICLE VIII : TRANSFER
Upon the transfer of this Note A2, Borrower hereby waiving notice of
any such transfer, Lender may deliver all the collateral mortgaged, granted,
pledged or assigned pursuant to the Loan Documents, or any part thereof, to the
transferee who shall thereupon become vested with all the rights herein or under
applicable law given to Lender with respect thereto, and Lender shall thereafter
forever be relieved and fully discharged from any liability or responsibility in
the matter; but Lender shall retain all rights hereby given to it with respect
to any liabilities and the collateral not so transferred.
ARTICLE IX: EXCULPATION
The provisions of Section 9.4 of the Loan Agreement are hereby
incorporated by reference into this Note A2 to the same extent and with the same
force as if fully set forth herein.
ARTICLE X: GOVERNING LAW
(A) THIS NOTE A2 WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY
BORROWER AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF
THIS NOTE A2 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 LIMITING
THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS NOTE A2 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 (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF
AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS NOTE A2 AND THIS NOTE A2 SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS NOTE A2 MAY AT LENDER'S OPTION BE INSTITUTED
IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX XXX XXXX,
PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER
WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR
FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY
-5-
SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.
BORROWER DOES HEREBY DESIGNATE AND APPOINT
CORPORATION SERVICE COMPANY
00 XXXXX XXXXXX
XXXXXX, XXX XXXX 00000-0000
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 FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
ARTICLE XI: NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.
[NO FURTHER TEXT ON THIS PAGE]
-6-
IN WITNESS WHEREOF, Borrower and Lender have duly executed this Amended
and Restated Promissory Note A2 as of the day and year first above written.
BORROWER:
---------
LC PORTLAND, LLC,
a Delaware limited liability company
By: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP,
a Delaware limited partnership,
its sole member
By: GLIMCHER PROPERTIES CORPORATION,
a Delaware corporation,
its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
LENDER:
-------
XXXXXX BROTHERS HOLDINGS INC.,
DOING BUSINESS AS XXXXXX CAPITAL,
A DIVISION OF XXXXXX BROTHERS
HOLDINGS INC.
By:
------------------------------------
Name:
Title:
