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Promissory Note
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$130,000,000.00 September 15, 1998
New York, New York
FOR VALUE RECEIVED, the undersigned, XXXXXXXX XXXXX VENTURE,
LLC, a Delaware limited liability company ("MAKER"), promises to pay to the
order of Archon Financial, L.P., a Delaware limited partnership, its successors
and assigns ("HOLDER"), on or before the Maturity Date at such place as Holder
may from time to time designate in writing, the principal sum of ONE HUNDRED
THIRTY MILLION AND 00/100 DOLLARS ($130,000,000.00) in lawful money of the
United States of America, together with interest thereon, to be computed and
paid as more particularly set forth in the Loan Agreement (as hereinafter
defined).
Except as otherwise defined or limited herein, capitalized
terms used herein shall have the meanings ascribed to them in the Loan Agreement
(the "LOAN AGREEMENT"), dated as of September 15, 1998, by and between Maker and
Holder. This is the Note referred to in the Loan Agreement. The terms of this
Note are hereby supplemented in full by the terms of the Loan Agreement, the
Deed of Trust and the other Loan Documents, including, without limitation, with
respect to Loan repayment and Breakage Costs, Prepayment Premiums, Exit Fees,
Spread Maintenance Premiums, offsets, counterclaims and defenses and expenses of
Lender.
1. PAYMENTS OF PRINCIPAL AND INTEREST
On the date hereof, Maker shall pay an installment of interest
as set forth in Section 2.3.1 of the Loan Agreement.
Commencing with the Payment Date on November 11, 1998, and on
each and every Payment Date thereafter through but excluding the Maturity Date,
Maker shall pay interest at the Applicable Interest Rate on the outstanding
principal balance hereof calculated as more fully set forth in the Loan
Agreement. Interest on the Loan shall be calculated on the basis of the actual
number of days elapsed in the Interest Accrual Period in question in a 360-day
year.
Interest on the principal sum shall begin to accrue on the
date hereof. On the Maturity Date, payment in full of all remaining obligations
of Maker under this Note, the Loan Agreement and the other Loan Documents shall
become due and payable.
Payments made at any time hereon (including payments from the
proceeds of any sale of any Collateral (as hereinafter defined) pursuant to any
of the Loan Documents) shall be applied as provided in the Loan Agreement and
the Deed of Trust. For purposes of this Note, "COLLATERAL" shall mean all
monies, accounts, instruments and other property (including, without limitation,
all rent, revenues, issues, Proceeds, profits, security and other monies payable
or receivable under any Loan Document or with respect thereto and the
after-acquired property clauses thereof) subject or intended to be subject to
the Deed of Trust and the other Loan Documents for the performance by Maker of
its obligations thereunder or hereunder as of any particular time, and the
proceeds of the foregoing.
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2. SECURITY FOR THE LOAN.
This Note is issued pursuant to the Loan Agreement, and the
Holder is and shall be entitled to the benefits thereof and remedies provided
therein and the security provided for therein including, without limitation, the
security provided by the Deed of Trust encumbering the Trust Property (as
defined in the Deed of Trust) and the Lien on and security interest in certain
other property described therein, and by other Loan Documents affecting and
granting a Lien on and security interest in other portions of the Collateral,
including but not limited to, the Assignment of Leases and the Assignment of
Agreements.
3. ACCELERATION; PREPAYMENT PREMIUMS.
The Loan Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events, and for the payment of certain prepayment premiums (if the circumstances
require) by Maker upon the terms and conditions therein specified.
4. EVENTS OF DEFAULT.
Upon the occurrence of an Event of Default, the entire
principal sum hereof outstanding, together with accrued interest hereon and all
other fees, premiums, charges, and costs due under the Loan Documents, if any,
shall, at the option of the Holder (unless otherwise specified under the Loan
Agreement), at once become due and payable without notice. Failure to exercise
the aforementioned option shall not constitute a waiver of the right to exercise
the same in the event of any subsequent Event of Default. In addition to
principal and interest, Xxxxx agrees to pay to Holder (i) all costs of
collection incurred by Xxxxxx, including reasonable attorneys' fees and
disbursements and (ii) any other payments which may become due under the Loan
Agreement or the other Loan Documents.
5. DEFAULT INTEREST RATE.
Maker does hereby agree that, if an Event of Default shall
have occurred and is continuing, Maker shall pay interest at the Default Rate on
the outstanding amount of the Loan and due but unpaid interest thereon, upon
demand from time to time, to the extent permitted by applicable law.
6. AUTHORITY.
Maker represents that it has full power, authority and legal
right to execute and deliver this Note and to perform its obligations hereunder,
and that this Note constitutes the valid and binding obligation of Maker,
enforceable against Maker in accordance with its terms, except as enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
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moratorium, or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity, regardless of whether
considered in proceedings at law or in equity.
7. NOTICES.
All notices or other communications required or permitted to
be given pursuant hereto shall be given in the manner specified in the Loan
Agreement directed to the parties at their respective addresses as provided
therein.
8. CONSENT TO JURISDICTION; GOVERNING LAW.
(a) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND
MADE BY MAKER AND ACCEPTED BY HOLDER IN THE STATE OF NEW YORK, AND THE PROCEEDS
DELIVERED PURSUANT HERETO 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 MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO NOTES MADE AND PERFORMED IN SUCH STATE AND
ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. IT IS UNDERSTOOD THAT THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE VALIDITY AND THE ENFORCEABILITY OF
THIS NOTE AND ALL OF THE INDEBTEDNESS OR OBLIGATIONS ARISING HEREUNDER OR UNDER
ANY OTHER LOAN DOCUMENT (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANOTHER LOAN
DOCUMENT). TO THE FULLEST EXTENT PERMITTED BY LAW, MAKER HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS NOTE.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST MAKER OR
HOLDER ARISING OUT OF OR RELATING TO THIS NOTE SHALL BE INSTITUTED IN ANY
FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND MAKER WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND MAKER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING. MAKER DOES HEREBY
DESIGNATE AND APPOINT CT CORPORATION SYSTEM WITH OFFICES AT 0000 XXXXXXXX, XXX
XXXX, XXX XXXX 00000, XX AT SUCH OTHER OFFICE IN [NEW YORK], NEW YORK, 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 MAKER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED
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IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON MAKER, IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. MAKER (I) SHALL GIVE PROMPT
NOTICE TO HOLDER 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 OFFICE SHALL BE DESIGNATED AS THE
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.
9. WAIVER OF JURY TRIAL.
MAKER XXXXXX AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY MAKER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
XXXXXX IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING
AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.
10. SAVINGS CLAUSE.
It is expressly stipulated and agreed to be the intent of
Maker and Holder at all times to comply with applicable state law or applicable
United States federal law (to the extent that it permits Holder to contract for,
charge, take, reserve, or receive a greater amount of interest than under state
law) and that this paragraph shall control every other covenant and agreement in
this Note and the other Loan Documents. If the applicable law (state or federal)
is ever judicially interpreted so as to render usurious any amount called for
under this Note or under any of the other Loan Documents, or contracted for,
charged, taken, reserved, or received with respect to the Debt, or if Holder's
exercise of the option to accelerate the Maturity Date, or if any prepayment
results in Maker having paid any interest in excess of that permitted by
applicable law, then it is Holder's express intent that all excess amounts
theretofore collected by Holder shall be credited on the principal balance of
this Note and all other Debt and the provisions of this Note and the other Loan
Documents immediately be deemed reformed and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of any
new documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder. All
sums paid or agreed to be paid to Holder for the use, forbearance, or detention
of the Debt shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term of the Debt
until payment in full so that the rate or amount of interest on account of the
Debt does not exceed the maximum lawful rate from time to time in effect and
applicable to the Debt for so
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long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Holder to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such
acceleration.
11. MISCELLANEOUS.
(a) No release of any security for the Debt evidenced hereby
or any Person liable for payment of the Debt evidenced hereby, no extension of
time for payment of the Debt evidenced hereby or any installment hereof, and no
alteration, amendment or waiver of any provision of the Loan Documents made by
agreement between Holder and any other Person or party shall release, modify,
amend, waive, extend, change, discharge, terminate or affect the liability of
Maker or any other Person or party who might be or become liable for the payment
of all or any part of the Debt evidenced hereby, under the Loan Documents,
except as explicitly provided in a writing satisfying the requirements of
paragraph 11(c) hereof.
(b) Maker and all others who may become liable for the payment
of all or any part of the Debt evidenced hereby do hereby severally waive
presentment and demand for payment, notice of dishonor, protest, notice of
protest, notice of non-payment, and notice of intent to accelerate the maturity
hereof and (except as may be expressly provided for in the Loan Documents) of
actual acceleration.
(c) 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 Maker or Holder, 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.
(d) Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Holder" and "Maker" shall
include their respective successors, assigns, heirs, executors and
administrators as permitted under the Loan Documents.
(e) The provisions of Section 12.24 of the Loan Agreement,
relating to the exculpation of Maker, are hereby incorporated by reference, as
if set forth in full herein.
[signature on next page.]
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IN WITNESS WHEREOF, Maker has duly executed or has caused its
respective duly authorized officers to execute this Note on its behalf, as of
the day and year first above written.
MAKER: XXXXXXXX XXXXX VENTURE, LLC,
a Delaware limited liability company
By: Glimcher Portland, Inc.,
its managing member
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Senior Vice President
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COUNTY OF NEW YORK )
ss:
STATE OF NEW YORK )
On the 15th day of September, 1998 before me, the undersigned, a notary public
in and for said State, personally appeared Xxxxxx X. Xxxxxxx, personally known
to me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her capacity, and that by his/her signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
/s/ Xxxxx Xxxxx
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Notary Public
