EXHIBIT 10.128
NOTE
$5,000,000.00 April 23, 2008
FOR VALUE RECEIVED, CATALINA PARTNERS, L.P., a Delaware limited
partnership, having an office at 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx,
Xxxx 00000 ("Borrower"), promises to pay to the order of U.S. BANK NATIONAL
ASSOCIATION, a national banking association, and its successors and assigns
("U.S. Bank") having an office at 00 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx,
Xxxx 00000 at U.S. Bank's office aforesaid, or at such other place as U.S. Bank,
as administrative agent under the Loan Agreement, may designate, the principal
sum of Five Million Dollars ($5,000,000.00), or so much thereof as may be
advanced by U.S. Bank to Borrower from time to time, together with interest on
the unrepaid advances of said principal sum from date of disbursement by U.S.
Bank and with all other charges herein provided, payable in cash, at the rates
and in the manner hereinafter set forth.
1. DEFINITIONS
The following terms wherever used in this Note shall have the following
meanings:
1.1. "Adjusted One Month LIBOR Rate" shall mean the interest on each
advance hereunder shall accrue at an annual rate equal to 1.65% plus the
one-month LIBOR rate quoted by U.S. Bank from Reuters Screen LIBOR01 Page or any
successor thereto, which shall be that one-month LIBOR rate in effect two New
York Banking Days prior to the Reprice Date, adjusted for any reserve
requirement and any subsequent costs arising from a change in government
regulation, and such rate to be reset monthly on each Reprice Date. If the
initial advance under this Note occurs other than on the Reprice Date, the
initial one-month LIBOR rate shall be that one-month LIBOR rate in effect two
New York Banking Days prior to the date of the initial advance, which rate plus
the percentage described above shall be in effect until the first day of the
next Reprice Date. U.S. Bank's internal records of applicable interest rates
shall be determinative in the absence of manifest error.
1.2. "Adjusted Three Month LIBOR Rate" shall mean the interest on each
advance hereunder shall accrue at an annual rate equal to 1.65% plus the
three-month LIBOR rate quoted by U.S. Bank from Reuters Screen LIBOR01 Page or
any successor thereto, which shall be that three-month LIBOR rate in effect two
New York Banking Days prior to the Reprice Date, adjusted for any reserve
requirement and any subsequent costs arising from a change in government
regulation, and such rate to be reset on each Reprice Date. If the initial
advance under this Note occurs other than on the Reprice Date, the initial
three-month LIBOR rate shall be that three-month LIBOR rate in effect two New
York Banking Days prior to the date of the initial advance, which rate plus the
percentage described above shall be in effect until the first day of the next
Reprice Date. U.S. Bank's internal records of applicable interest rates shall be
determinative in the absence of manifest error.
1.3. "Adjusted Two Month LIBOR Rate" shall mean the interest on each
advance hereunder shall accrue at an annual rate equal to 1.65% plus the
two-month LIBOR rate quoted by U.S. Bank from Reuters Screen LIBOR01 Page or any
successor thereto, which shall be that two-month LIBOR rate in effect two New
York Banking Days prior to the Reprice Date, adjusted for any reserve
requirement and any subsequent costs arising from a change in government
regulation, and such rate to be reset on each Reprice Date. If the initial
advance under this Note occurs other than on the Reprice Date, the initial
two-month LIBOR rate shall be that two-month LIBOR rate in effect two New York
Banking Days prior to the date of the initial advance, which rate plus the
percentage described above shall be in effect until the first day of the next
Reprice Date. U.S. Bank's internal records of applicable interest rates shall be
determinative in the absence of manifest error.
1.4. "Conversion Option" shall mean the option of Borrower to convert the
interest rate being charged hereunder to a rate permitted hereunder (the
"Elected Rate"). From the date hereof the rate being charged hereunder, shall be
either the Adjusted One Month LIBOR Rate, the Adjusted Two Month LIBOR Rate, the
Adjusted Three
Month LIBOR Rate or the Prime Rate. In the absence of an election the Adjusted
One Month LIBOR Rate shall be deemed to have been elected. Once an Elected Rate
has been selected, that Elected Rate, as such may be adjusted as provided
herein, will be in effect until Borrower has effectively exercised a Conversion
Option. A Conversion Option may only be effectively made if Borrower has given
U.S. Bank a valid Notice of Election. Such Notice of Election shall be
applicable and applied to all notes executed and delivered pursuant to the Loan
Agreement. If an Event of Default has occurred, has been declared by U.S. Bank
and is continuing, Borrower shall be deemed to have made a Conversion Option (at
the end of the applicable interest rate period if the Prime Rate, the Adjusted
Two Month LIBOR Rate, or the Adjusted Three Month LIBOR Rate is the Elected Rate
at the time of the Event of Default) electing the Adjusted One Month LIBOR Rate.
The Elected Rate may not be converted prior to the end of the applicable
Interest Period.
1.5. "Default Rate of Interest" shall mean an interest rate equal to three
percent (3.00%) per annum plus the applicable rate of interest being charged
hereunder.
1.6. "Elected Rate" shall mean the Elected Rate as set forth in the
definition of the Conversion Option. The Elected Rate shall be applied to the
entire outstanding principal balance and the Elected Rate shall be the same
Elected Rate for each of the notes executed and delivered pursuant to the Loan
Agreement.
1.7. "Event of Default" shall have the meaning set forth in the Loan
Agreement.
1.8. "Guarantor" shall mean Glimcher Properties Limited Partnership, a
Delaware limited partnership.
1.9. "Guaranty" shall mean collectively the Unconditional Guaranty of
Payment and Performance, of even date herewith, made by Guarantor to U.S. Bank
to guarantee payment and performance in accordance with the terms and conditions
of the Loan Documents.
1.10. "Indebtedness" shall mean every sum payable to U.S. Bank by Borrower
in accordance with the terms and conditions of the Loan Documents.
1.11. "Interest Period" shall mean a period commencing on the day a LIBOR
Rate Advance shall be made by U.S. Bank and ending on the date one month, three
months or six months thereafter as applicable, provided, that (i) any Interest
Period with respect to a LIBOR Rate Advance that shall commence on the last
LIBOR Business Day of the calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last LIBOR Business Day of the appropriate subsequent calendar
month; and (ii) each Interest Period with respect to a LIBOR Rate Advance that
would otherwise end on a day which is not a LIBOR Business Day shall end on the
next succeeding LIBOR Business Day or, if such next succeeding LIBOR Business
Day falls in the next succeeding calendar month, on the next preceding LIBOR
Business Day.
1.12. LIBOR Rate Advance" shall mean any amount owed by Borrower under the
Note that bears interest at a rate calculated with reference to either the
Adjusted One Month LIBOR Rate, the Adjusted Two Month LIBOR Rate or the Adjusted
Three Month LIBOR Rate.
1.13. "LIBOR Business Day" shall mean a day which is both a New York
Banking Day and a day on which dealings in U.S. dollar deposits are carried out
in the London interbank market.
1.14. "Loan Agreement" shall mean that certain Loan Agreement of even date
herewith by and between Borrower and U.S. Bank as lender and as administrative
agent, pursuant to which this Note shall be disbursed.
1.15. "Loan Documents" shall mean collectively the Loan Agreement, Note,
any other notes executed and delivered pursuant to the Loan Agreement, Mortgage,
Guaranty and any other instrument, document, certificate or affidavit
heretofore, now or hereafter given by Borrower evidencing or securing or by
Guarantor guaranteeing all or any part of the foregoing.
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1.16. "Mortgage" shall mean that certain Open-End Fee Mortgage, Leasehold
Mortgage Assignment of Rents and Security Agreement and Fixture Filing, of even
date herewith, made by Borrower to U.S. Bank as administrative agent, to secure
payment and performance by Borrower of the Loan Documents.
1.17. "Mortgaged Property" shall mean the property comprising "Mortgaged
Property" as said term is defined in the Mortgage.
1.18. "New York Banking Day" shall mean any day (other than a Saturday or
Sunday) on which commercial banks are open for business in New York, New York.
1.19. "Note" shall mean this Note and any and all renewals, amendments,
modifications, reductions and extensions hereof and substitutions therefor.
1.20. "Notice of Election" shall mean the written election (facsimile being
sufficient) of Borrower to U.S. Bank exercising its Conversion Option to select
an applicable Elected Rate. The Notice of Election must be given not less than
two (2) New York Banking Days prior to the day on which the Elected Rate will
change to another Elected Rate and must be for an Elected Rate that can be
validly selected under Borrower's Conversion Option.
1.21. "Prime Rate" shall mean the prime rate announced by U.S. Bank. If for
any reason, U.S. Bank ceases to establish a Prime Rate, then the interest rate
calculations required herein shall be determined based upon a comparable rate in
Columbus, Ohio selected by U.S. Bank. The interest rate will be adjusted each
time that the Prime Rate changes.
1.22. "Project" shall mean the shopping center located at Route 22 and
Colonial Road in Lower Xxxxxx Township, Dauphin County, Pennsylvania and more
commonly known as the Colonial Park Mall.
1.23. "Reprice Date" shall mean the first day of each Interest Period.
1.24. "Stated Maturity Date" shall mean April 23, 2011.
2. PAYMENTS OF PRINCIPAL AND INTEREST
2.1. Interest on the unrepaid advances of the principal sum from date of
disbursement by U.S. Bank at the Elected Rate shall be due and payable monthly
on the first day of each month commencing June 1, 2008 and continuing on the
first day of each month thereafter throughout the term of this Note. On the date
hereof, Borrower shall be deemed to have elected the Adjusted One Month Libor
Rate. Borrower may convert the Elected Rate pursuant to a valid Notice of
Election.
2.2. All interest payable in accordance with the Note shall be calculated
on the unrepaid advances of the principal sum on the basis of the actual number
of calendar days elapsed and a year of three hundred sixty (360) days.
2.3. Unless sooner paid or declared due and payable in accordance with
Subsection 5.2 of this Note, the Indebtedness shall be due and payable in full
on the Stated Maturity Date.
2.4. U.S. Bank may apply and allocate any payment against any portion of
the Indebtedness then due as U.S. Bank in its sole discretion, may elect.
3. LATE CHARGES
3.1. If any payment of principal or interest or both is not paid in full on
or before the tenth (10th) day of the calendar month in which it is due, then,
in addition to the amount of said payment, there shall be due and payable a late
charge for each such payment in the amount of five percent (5%) of such payment,
which Xxxxxxxx agrees is a fair and reasonable charge for costs incurred by U.S.
Bank in processing such late payment and is not a penalty.
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4. PREPAYMENT
4.1. Borrower shall have the right to prepay the unrepaid advances of the
principal sum, in whole or in part, from time to time, without premium or
penalty (except for "unwinding" cost incurred by U.S. Bank if an Adjusted One
Month, Adjusted Two Month LIBOR Rate or an Adjusted Three Month LIBOR Rate is
prepaid prior to the last day of the applicable Interest Period); provided (a)
that U.S. Bank shall receive written notice of Xxxxxxxx's intention to so prepay
not less than three (3) New York Banking Days prior to such prepayment, and (b)
that a payment of all Indebtedness then due and payable is included with such
prepayment; and provided further, that if such prepayment follows an Event of
Default and a declaration by U.S. Bank that the Indebtedness is due and payable,
then Borrower shall pay to U.S. Bank on the date of such prepayment a prepayment
premium equal to five percent (5%) of the Indebtedness then due, which Xxxxxxxx
agrees is a fair and reasonable charge for costs incurred by U.S. Bank in
processing such Event of Default and declaration and is not a penalty.
4.2. For the purposes of Subsection 4.1 of this Note, repayment of the
Indebtedness following an Event of Default and declaration by U.S. Bank that the
Indebtedness is due and payable shall, notwithstanding such declaration, be
deemed a prepayment.
4.3. Partial prepayments shall not postpone regular payments of interest or
principal.
5. MISCELLANEOUS
5.1. The failure of U.S. Bank 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. Xxxxxxxx hereby agrees that the maturity of all or any part of the
Indebtedness may be postponed or extended and that any covenants and conditions
contained in the Note or in any of the other Loan Documents may be waived or
modified without prejudice to the liability of Borrower on the Note or other
Loan Documents.
5.2. When the Note becomes due, by acceleration or otherwise, U.S. Bank
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. U.S. Bank 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. The provisions hereof shall apply and be
controlling as to all property which may at any time be security herefor.
5.3. Borrower hereby authorizes U.S. Bank 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 U.S. Bank, to the payment or reduction,
in whole or in part, of any and all the Indebtedness then due, whether by
acceleration or otherwise. Upon the occurrence of any Event of Default, U.S.
Bank shall have the right to set off all obligations of Borrower to U.S. Bank
hereunder, whether matured or unmatured, against all amounts owing to Borrower
by U.S. Bank 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 U.S.
Bank all without notice to or demand on Borrower, such notice and demand being
hereby waived.
5.4. Presentment for payment, notice of dishonor, protest, notice of
protest and diligence in bringing suit against any party hereto are hereby
waived by Xxxxxxxx.
5.5. Intentionally Omitted.
5.6. The obligations evidenced or created by the 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 the Note, including, without limitation,
all endorsers and guarantors.
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5.7. Nothing contained herein, nor contained in any of the other Loan
Documents, shall be construed or so operate as to require Borrower, or any
person liable for the payment of the Indebtedness, 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 Indebtedness, 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 U.S. Bank and
all such excess shall be automatically credited against and in reduction of the
unrepaid advances of the principal sum, and any portion of said excess which
exceeds the unrepaid advances of the principal sum shall be paid by U.S. Bank to
Borrower and any parties liable for the payment of the Indebtedness, it being
the intent of the parties hereto that under no circumstances shall Borrower or
any parties liable for the payment of the Indebtedness, be required to pay
interest in excess of the highest rate permissible under applicable law. All
interest paid or agreed to be paid to U.S. Bank shall, to the extent permitted
under applicable law, be amortized, prorated, allocated and spread throughout
the full period until payment in full of the Indebtedness, 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 interest rate to be charged hereunder ever exceeds the highest rate
permissible under applicable law, thereby causing the interest accruing on the
Indebtedness to be limited to such rate, then any subsequent reduction in the
interest rate to which Borrower would otherwise be entitled shall be held in
abeyance until the total amount of interest accrued on the Indebtedness equals
the amount of interest which would have accrued on the Indebtedness had the
interest rate not been limited to the highest rate permissible under applicable
law.
5.8. If any provision or any part of any provision, contained in the 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 the Note,
and the 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 the Note shall remain in full force and effect.
5.9. Intentionally Omitted.
5.10. Xxxxxxxx hereby agrees to pay to U.S. Bank all costs in connection
with the making of this loan, including, without limitation, reasonable
attorneys' fees, appraisers' fees, title insurance charges and recording fees.
5.11. Borrower hereby agrees to pay to U.S. Bank all costs of collecting
and securing, and of attempting to collect and to secure the Note, and all costs
of foreclosing the Mortgage, 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 U.S. Bank by virtue of the Loan
Documents may be included in any judgment or decree rendered.
5.12. Any notice required or permitted to be given hereunder shall be in
writing if given in the same manner as required for providing notice under the
Loan Agreement.
5.13. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT To
help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain, verify,
and record information that identifies each person who opens an account. When
you open an account we will ask for your name, address and other information
that will allow us to identify you. We may also ask to see other documents that
substantiate your identity.
5.14. The 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. Borrower hereby
consents to, and by execution of the 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, and the personal jurisdiction of the
courts of County of Dauphin and the Commonwealth of Pennsylvania, for the
purposes of any judicial proceedings which are instituted for the enforcement of
the Note. Xxxxxxxx agrees that venue is proper in any of said courts.
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5.15. U.S. BANK BY ACCEPTANCE OF THIS NOTE, AND BORROWER HEREBY MUTUALLY,
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF THE OTHER
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, RELATED TO,
OR INCIDENTAL TO THE LOAN DOCUMENTS, THE TRANSACTIONS RELATED THERETO OR THE
RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT TO
U.S. BANK AND BORROWER TO ENTER INTO THIS TRANSACTION. IT SHALL NOT IN ANY WAY
AFFECT, WAIVE, LIMIT, AMEND OR MODIFY U.S. BANK'S ABILITY TO PURSUE ITS REMEDIES
CONTAINED IN THE LOAN DOCUMENTS.
CATALINA PARTNERS, L.P., a Delaware limited partnership
By: Glimcher Colonial Park Mall, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Executive Vice President
Chief Financial Officer
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