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Exhibit 10.113
PPM LOAN NO. 99-0018
PROMISSORY NOTE
$90,000,000.00 June 28, 1999
1. PROMISE TO PAY. FOR VALUE RECEIVED, the undersigned, GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership ("Maker") hereby
promises to pay to the order of XXXXXXX NATIONAL LIFE INSURANCE COMPANY, a
Michigan corporation, its successors or assigns ("Noteholder"), the principal
sum of Ninety Million Dollars ($90,000,000.00), with interest on the unpaid
principal balance thereof from the date hereof until maturity at the rate set
forth herein both principal and interest being payable as hereinafter provided
in lawful money of the United States of America at 000 Xxxx Xxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000 or at such other place as from time to time may be
designated by Noteholder. Interest shall be calculated and paid on the basis of
a 30-day month and 360-day year.
2. INTEREST. (a) Maker shall pay interest on the outstanding
principal balance hereof from the date disbursed until paid in full at a rate
per annum equal to the Interest Rate. Until the Conversion Date, the Interest
Rate shall be a variable rate per annum. From and after the Conversion Date, the
Interest Rate shall be a fixed rate per annum. The Initial Interest Rate shall
be 7.36%.
(b) Prior to the Conversion Date, the Interest Rate hereunder shall
be adjusted on each Adjustment Date, with the adjusted rate to become effective
on the first day of the month following the month in which the Adjustment Date
occurs. Noteholder shall give notice to Maker of the new Interest Rate promptly
following the Adjustment Date.
(c) At any time prior to April 19, 2000, Maker may elect to convert
the interest rate hereunder to a fixed rate by providing Noteholder with notice
thereof (a "Rate Fix Notice"). If Noteholder receives a Rate Fix Notice after
7:00 a.m. central time on a Business Day, then the Treasury Rate shall be
determined based on the rate prevailing at 4:00 p.m., central time, on the
Business Day the Rate Fix Notice is received. If Noteholder receives a Rate Fix
Notice prior to 7:00 a.m. central time on a Business Day, then the Treasury Rate
shall be determined based on the rate prevailing at 4:00 p.m., central time, on
the Business Day preceding the Business Day the Rate Fix Notice is received. If
Noteholder does not receive a Rate Fix Notice by April 19, 2000, then the
interest rate shall automatically convert to a fixed rate on May 1, 2000 and the
Treasury Rate shall be determined at the close of business on April 19, 2000.
(d) As used herein, the following terms shall have the meanings set
forth below:
"ADJUSTMENT DATE" shall mean the last Business Day of each
September, December, March and June occurring during the term
of the Loan and prior to the Conversion Date.
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"CONVERSION DATE" shall mean the date on which the Interest Rate
adjusts to a fixed rate pursuant to Section 2(c) below, which
shall be the first day of the month following the date on which
a Rate Fix Notice is received by Noteholder or, if no Rate Fix
Notice is received, May 1, 2000.
"INTEREST RATE" shall mean (a) prior to the Conversion Date, a
rate per annum equal to the greater of (i) the Index Rate plus
2.10% (210 basis points) and (ii) six percent (6.0%) and (b)
from and after the Conversion Date, a rate per annum equal to
the greater of (i) the Treasury Rate plus 2.10% (210 basis
points) and (ii) six percent (6%).
"INDEX RATE" shall mean the three month interbank offered rate
for dollar deposits in the London market ("LIBOR"), as shown in
the "Money Rates" column in the "Money and Investing" section of
the Wall Street Journal, as published on the business day prior
to the Adjustment Date or, in the event that the Wall Street
Journal shall cease to publish such rate daily, then as
published by Bloomberg L.P. or a similar service designated by
Noteholder. If the three month LIBOR shall cease to exist, then
Noteholder and Maker shall in good faith mutually agree upon an
alternate Index Rate.
"TREASURY RATE" shall mean the average yield of the ten-year
U.S. Government/Treasury Constant Maturities, as reported by
Bloomberg, L.P. at the time specified in Section 2(c).
3. PAYMENTS. A payment of interest only on the unpaid principal
balance of this Note shall be due and payable in advance on the date hereof in
an amount equal to interest accrued from and including the date hereof through
June 30, 1999*. Xxxxx agrees to pay Noteholder monthly installment payments of
principal and interest on the 1st day of August, 1999* and on the same day of
each succeeding month through and including the 1st day of July, 2009 (the
"Maturity Date"), on which date all unpaid principal and interest, together with
any other sums due under the terms of this Note, shall be due and payable. Such
payments shall be determined based on the then-applicable Interest Rate and a
principal amortization schedule of twenty (20) years.
4. TREATMENT OF PAYMENTS. All payments of principal, interest, late
charges (as described below), and prepayment premium (as described below), if
any, due under this Note shall be paid to Noteholder by wire transfer or check
of immediately available funds to such bank or place, and in such other manner,
as Noteholder may from time to time designate. If such payment is received by
2:00 p.m., such payment will be credited to Maker's account as of the date on
which received. If such payment is received after 2:00 p.m., such payment will
be credited to Maker's account on the business day next following the date on
which received. Each installment payment under this Note shall be applied first
to the payment of any cost or expense for which Maker is liable hereunder or
under the other Loan Documents, including any unpaid late charge, then to
accrued interest and the remainder to the reduction of unpaid principal. Time is
of the essence as to all payments hereunder.
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5. LATE CHARGES. If any monthly installment of principal and/or
interest is not paid in full on or before the tenth day of the month in which
such payment is due, then a charge for late payment ("Late Charge") in the
amount of five percent (5%) of the amount of such installment shall be
immediately assessed and shall be immediately due and payable by Maker. The
parties hereby recognize that the Late Charge is a reasonable approximation of
an actual loss difficult to estimate. Noteholder's failure to collect such Late
Charge shall not constitute a waiver of Noteholder's right to require payment of
such Late Charge for past or future defaults. The Late Charge shall be in
addition to all other rights and remedies available to Noteholder upon the
occurrence of a default under the Loan Documents.
6. DEFAULT INTEREST. Upon the occurrence of (a) an Event of Default
(as defined in the Loan Agreement) and acceleration of the Loan or (b) maturity
of this Note, interest shall accrue hereunder at an annual rate (the "Default
Rate") equal to the lesser of (i) eighteen percent (18%) and (ii) the maximum
rate allowed by law. The Default Rate shall accrue on the entire outstanding
balance hereof, including, without limitation, delinquent interest and any and
all costs and expenses incurred by Noteholder in connection therewith.
7. SECURITY. This Note is made pursuant to a Loan Agreement of even
date herewith (the "Loan Agreement") and secured by, among other things, certain
mortgages, deeds of trust and deeds to secure debt of even date herewith for the
benefit of Noteholder evidencing liens on certain real properties described
therein and in the Loan Agreement, and evidencing a security interest in certain
personal property, fixtures and equipment described therein. Capitalized terms
not otherwise defined herein shall have the meanings ascribed to such terms in
the Loan Agreement.
8. EVENT OF DEFAULT. Upon the failure to pay any installment of
principal and/or interest due on this Note as above promised or upon the
occurrence of an Event of Default, Noteholder shall have the option of declaring
the indebtedness evidenced hereby to be immediately due and payable ("the Loan
Acceleration"). After Loan Acceleration, Noteholder shall have the option of
applying any payments received to principal or interest or any other costs due
pursuant to the terms of this Note or the Loan Documents.
9. PREPAYMENT. This Note may not be prepaid before July 1, 2002.
Thereafter, Maker may prepay this Note in whole or in part upon payment of a
prepayment premium equal to the greater of (i) 1% of the prepaid amount and (ii)
an amount calculated at the time of prepayment using a formula designed to
compensate Noteholder for the loss of its performing Loan. The amount referred
to in clause (ii) will be calculated by (a) determining the present value on the
date of prepayment of all future principal and interest payments, including any
balloon payments, assuming payment in accordance with the terms of this Note and
(b) subtracting therefrom the then-outstanding principal balance of this Note.
The discount rate for purposes of determining such present value shall be the
quotient obtained by dividing (A) the Treasury Rate plus 50 basis points by (B)
twelve. As used herein, "Treasury Rate" shall mean the yield (as of the date
three (3) business days prior to the date of prepayment) as reported by
Bloomberg L.P. of U.S. Government Treasury Securities having a maturity date
which is the same as the Maturity Date; provided, however, that if no Treasury
Constant Maturities are published for the specific length of time to the
Maturity Date, the index to be utilized shall be the weighted average of the
Treasury Constant Maturities published for the two periods most nearly
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corresponding to the Maturity Date, and provided further that if such yields are
no longer reported by Bloomberg L.P., the Treasury Rate shall be based on the
yields reported in another publication of comparable reliability and
institutional acceptance as selected by Lender in its sole discretion which most
closely approximates yields in percent per annum of selected U.S. Treasury
securities of varying maturities. Maker may prepay the Loan at par during the
ninety (90) day period preceding the Maturity Date. No prepayment premium will
be charged on amounts attributable to insurance or condemnation proceeds applied
to reduce the principal balance of this Note. Maker agrees that Noteholder shall
not be obligated to actually reinvest the amount prepaid in any Treasury
obligations as a condition precedent to receiving a prepayment premium
hereunder. In addition to the foregoing right to prepay this Note in full, Maker
may, commencing on July 1, 2002, prepay an amount up to 5% of the
then-outstanding principal balance of this Note in any year without any
prepayment premium or penalty.
10. LIMITATION ON PERSONAL LIABILITY. The personal liability of
Maker and its general partners hereunder is limited to the extend provided in
Section 9.18 of the Loan Agreement.
11. NON-USURIOUS LOAN. It is the intent of Noteholder and Maker in
this Note and the other Loan Documents now or hereafter securing this Note to
contract in strict compliance with applicable usury law. In furtherance thereof,
Noteholder and Maker stipulate and agree that none of the terms and provisions
contained in this Note, or in any other instrument executed in connection
herewith including but not limited to the Loan Documents, shall ever be
construed to create a contract to pay for the use, forbearance or detention of
money, or interest at a rate in excess of the maximum interest rate permitted to
be charged by applicable law. Neither Maker nor any guarantors, endorsers or
other parties now or hereafter becoming liable for payment of this Note shall
ever be required to pay interest on this Note at a rate in excess of the maximum
interest that may be lawfully charged under applicable law, and the provisions
of this paragraph shall control over all other provisions of this Note, the Loan
Documents and any other instruments now or hereafter executed in connection
herewith which may be in apparent conflict herewith. Noteholder expressly
disavows any intention to charge or collect excessive unearned interest or
finance charges in the event the maturity of this Note is accelerated. If the
maturity of this Note is accelerated for any reason or if the principal of this
Note is paid prior to the Maturity Date, and as a result thereof the interest
received for the actual period of existence of this Note exceeds the applicable
maximum lawful rate, Noteholder shall, at its option, either refund the amount
of such excess or credit the amount of such excess against the principal balance
of this Note then outstanding and thereby shall render inapplicable any and all
penalties of any kind provided by applicable law as a result of such excess
interest. In the event that Noteholder collects monies which are deemed to
constitute interest which would increase the effective interest rate on this
Note to a rate in excess of that permitted to be charged by applicable law, all
such sums deemed to constitute interest in excess of the lawful rate shall, upon
such determination, at the option of Noteholder, be either immediately returned
or credited against the principal balance of this Note then outstanding, in
which event any and all penalties of any kind under applicable law as a result
of such excess interest shall be inapplicable. By execution of this Note Maker
acknowledges that it believes this Note and all interest and fees paid in
connection with the loan represented by this Note, to be non-usurious. Maker
agrees that if, at any time, Maker should believe that this Note or the loan
represented by this Note is in fact usurious, Maker will give Noteholder notice
of such condition and Maker agrees that Noteholder shall have ninety (90) days
in which to make appropriate refund or other adjustment in order to
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correct such condition if in fact such condition exists. The term "applicable
law" as used in this Note shall mean the laws of the State of Illinois or the
laws of the United States, whichever allows the greater rate of interest, as
such laws now exist or may be changed or amended or come into effect in the
future.
12. NOTEHOLDER'S ATTORNEY FEES. Should the indebtedness represented
by this Note or any part thereof be collected at law or in equity or through any
bankruptcy, receivership, probate or other court proceedings or if this Note is
placed in the hands of attorneys for collection after default, or if the lien or
priority of the lien represented by any Mortgage or the other Loan Documents is
the subject of any court proceeding, Maker and all endorsers, guarantors and
sureties of this Note jointly and severally agree to pay to Noteholder in
addition to the principal and interest due and payable hereon reasonable
attorney and collection fees including those incurred by Noteholder for any
appeal.
13. MAKER'S WAIVERS. Maker and all endorsers, guarantors and
sureties of this Note and all other persons liable or to become liable on this
Note severally waive presentment for payment, demand, notice of demand and of
dishonor and nonpayment of this Note, notice of intention to accelerate the
maturity of this Note, notice of acceleration, protest and notice of protest,
diligence in collecting, and the bringing of suit against any other party, and
agree to all renewals, extensions, modifications, partial payments, releases or
substitutions of security, in whole or in part, with or without notice, before
or after maturity.
14. PAYMENT OF TAXES AND FEES. Maker agrees to pay the cost of any
revenue, tax or other documentary fee or stamps now or hereafter required by law
to be affixed to this Note or the Mortgages. Maker shall also pay any
out-of-pocket expenses incurred by Noteholder in connection with the conversion
of the Interest Rate hereunder.
15. GOVERNING LAW. This Note and the rights, duties and liabilities
of the parties hereunder and/or arising from or relating in any way to the
indebtedness evidenced by this Note or the transaction of which such
indebtedness is a part shall be governed and construed for all purposes by the
law of the State of Illinois.
16. WAIVER OF TRIAL BY JURY. MAKER XXXXXX XXXXXX, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN, THE APPLICATION FOR THE LOAN, THE LOAN DOCUMENTS OR ANY
ACTS OR OMISSIONS OF NOTEHOLDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION THEREWITH.
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IN WITNESS WHEREOF, Maker has caused this Note to be duly executed as
of the day and year first above written.
MAKER:
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole general
partner
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Executive Vice President/CFO/COO
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(Taxpayer ID Number)
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STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
On the 28th day of June, 1999 before me, a notary public in and for the
State and County aforesaid, personally appeared Xxxxxxx X. Xxxxxxx, who
acknowledged himself/herself to be the Executive Vice President/COO & CFO of
Glimcher Properties Corporation, a Delaware corporation, the general partner of
Glimcher Properties Limited Partnership, a Delaware Limited Partnership, and
that he/she as such officer, being authorized to so do, executed the foregoing
instrument for the purposes therein contained on behalf of such corporation as
general partner of such limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxx
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Notary Public
My Commission Expires: 7-2-2000
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