Exhibit 10 (dddd)
Prudential Loan No. 0-000-000
PROMISSORY NOTE
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$65,000,000.00 August 28, 1997
FOR VALUE RECEIVED, THE UNDERSIGNED, OVERSEAS PARTNERS (333), INC., an
Illinois corporation ("Maker") hereby promise(s) to pay to the order of THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation, its successor
or assigns ("Noteholder") the principal sum of Sixty-Five Million and no/ 100
Dollars ($65,000,000.00), with interest on the unpaid principal balance thereof
from the date hereof until maturity at the rate of Seven and 57/100 percent
(7.57%) per annum ("Interest Rate"), both principal and interest being payable
as hereinafter provided in lawful money of the United States of America at 000
Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000, 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, other than interest due on the
first Monthly Due Date (as such term is defined below) and the Maturity Date (as
such term is defined below), which shall be calculated based on the actual
number of days in the month and year in which such payments are made.
1. PAYMENTS. Maker agrees to pay Noteholder as follows:
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(a) interest only from the date of this Note through October 15, 1997, and
principal in the amount of Seventy-Three Thousand Two Hundred Sixty-
Six and 09/100 Dollars ($73,266.09) shall be due and payable on
October 15, 1997. The first month's payment is an adjusted payment;
and
(b) monthly installment payments of Four Hundred Eighty-Three Thousand
Three Hundred Seven and 76/100 Dollars ($483,307.76) of principal and
interest on the 15th day of November, 1997 and on the same day of each
succeeding month (the "Monthly Due Date") through and including the
15th day of September, 2012 (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.
2. TREATMENT OF PAYMENTS. All payments of principal, interest, late
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charge (as described below), and Prepayment Premium (as described below), if
any, due under this Note, shall be paid to Noteholder by wire transfer of
immediately available funds to such bank or place or by check, and in such other
manner, as Noteholder may from time to time designate. Each installment payment
under this Note shall be applied first to the payment of any unpaid late
August 27, 1997
charge, then to accrued interest and the remainder to the reduction of unpaid
principal. As to all installment payments, time is of the essence.
3. LATE CHARGES. If any monthly installment of principal and/or
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interest is not in full on or before the Monthly Due Date and remains unpaid for
four (4) days after the Monthly Due Date, then a charge for late payment ("Late
Charge") of $250.00 per day (the "Per Diem Late Charge") shall be assessed by
Noteholder and paid by Maker for each day that such payment is not paid
(commencing four (4) days after the Monthly Due Date, but including the date
upon which such payment is made; provided, however, that if any such monthly
principal and/or interest payment, together with all accrued Per Diem Late
Charges, is not made in full on or before the fourteenth (14th) day immediately
following such Monthly Due Date, a Late Charge equal to four percent (4 %) of
the monthly principal and/or interest payment (the "Monthly Late Charge") shall
be deemed to be immediately assessed and shall be immediately due and payable by
Maker. The Monthly Late Charge shall be payable in lieu of and not in addition
to any Per Diem Late Charges that shall have accrued during the two-week period
immediately preceding the assessment of the Monthly Late Charge. The Per Diem
Late Charge and Monthly Late Charge shall be in addition to all other rights and
remedies available to Noteholder upon the occurrence of an Event of Default
under the Loan Documents.
4. DEFAULT INTEREST. In the event and during the continuance of an
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Event of Default under this Note, the Mortgage or any other Loan Documents, or
after the maturity of this Note, interest shall accrue hereunder at an annual
rate of the lesser of (i) the maximum rate allowable by law or (ii) the greater
of (A) Prime Rate plus five percent (5 %) per annum or (B) the Interest Rate
plus five percent (5 %) per annum ("Default Rate"). "Prime Rate" shall mean the
prime rate published in the Wall Street Journal on the date the default occurs.
5. SECURITY. This Note is secured by a Mortgage and Security
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Agreement (hereinafter called the "Mortgage") of even date herewith evidencing a
lien on certain real property in Cook County, Illinois, described therein, and
evidencing a security interest in certain personal property, fixtures and
equipment described therein and by other documents to which reference is hereby
made for a description of the property covered thereby, the nature and extent of
the security and the rights and powers of Noteholder in respect to such
security, and for certain terms used in this Note. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
Mortgage.
6. EVENT OF DEFAULT. (i) Upon the failure to pay any installment of
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principal and/or interest due on this Note as above promised within four (4)
days after notice by Noteholder (the "Monthly Payment Grace Period"), (ii) upon
the occurrence of an Event of Default specified in any of the Loan Documents, or
(iii) upon the failure to pay any sums due Noteholder other than monthly
installments of principal and interest within ten (10) days after notice by
Noteholder, Noteholder shall have the option of declaring the Indebtedness to be
immediately due and payable (the "Loan Acceleration"). Notwithstanding anything
contained herein to the contrary, in the event that Maker shall fail to pay any
installment of principal and/or interest due on this Note on the Monthly Due
Date more than (i) two (2) times in any twelve month period, or
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(ii) four (4) times in the aggregate during the term hereof, the Monthly Payment
Grace Period shall terminate. Thereafter, upon the failure to pay any
installment of principal and/or interest on the Monthly Due Date, Noteholder
shall have the option of 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.
7. PREPAYMENT. Subject to Maker's payment of the premium for early
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repayment referred to below and all accrued interest and other sums due under
this Note, the Mortgage and any other Loan Documents, if any, Maker shall have
the right to prepay all or part of the outstanding principal balance of this
Note on any date upon giving not less than ten (10) days prior written notice to
Noteholder of Maker's intention to prepay. If the principal of this Note is
prepaid for any reason, whether voluntarily or involuntarily, or after Loan
Acceleration, exclusive, however, of prepayment from casualty or condemnation
proceeds pursuant to the Loan Documents, Maker shall pay a premium for
prepayment equal to the greater of (a) or (b) (hereinafter called the
"Prepayment Premium") where:
(a) is $0; and
(b) is an amount equal to the Present Value of this Note (as hereinafter
defined) less the amount of principal being prepaid, including accrued interest,
if any, calculated as of the date on which prepayment will be made (hereinafter
called the "Prepayment Date"); provided, however, that in the event the
Prepayment Premium is construed to be interest under applicable law in any
circumstances, in whole or in part, the Prepayment Premium shall not be required
to the extent that the amount thereof, together with other interest payable
hereunder, exceeds the maximum interest that may be lawfully charged under
applicable law.
Noteholder shall notify Maker of the amount (to be determined as of the
Prepayment Date) and basis of determination of the Prepayment Premium. On or
before the Prepayment Date, Maker shall pay to Noteholder the Prepayment Premium
together with the amount of the principal being prepaid and all accrued interest
and other sums due under this Note and the Loan Documents. Noteholder shall not
be obligated to accept any prepayment of the principal balance of this Note
unless such prepayment is accompanied by the Prepayment Premium and all accrued
interest and other sums due under this Note and the Loan Documents.
For purposes of determining the Prepayment Premium, the following terms
shall have the following meanings:
(i) the "Treasury Rate" is the semi-annual yield on the Treasury Constant
Maturity Series with maturity equal to the remaining weighted average
life of the payments due on this Note, for the week prior to the
Prepayment Date, as reported in Federal Reserve Statistical Release H.
15 - Selected Interest Rates, conclusively determined by Noteholder on
the Prepayment Date. The rate will be determined by linear
interpolation between the yields reported in Release
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August 26, 1997
H. 15, if necessary. In the event Release H. 15 is no longer published
Noteholder shall select a comparable publication to determine the
Treasury Rate.
(ii) The "Discount Rate" is the rate which, when compounded monthly,
is equivalent to the Treasury Rate, when compounded semi-annually.
(iii) The "Present Value" shall be determined by discounting all
scheduled payments of principal and interest remaining to maturity of
this Note, attributed to the amount being prepaid, at the Discount
Rate. If prepayment occurs on a date other than a Monthly Due Date,
the actual number of days remaining from the Prepayment Date to the
next Monthly Due Date will be used to discount within this period.
Maker agrees that Noteholder shall not be obligated to actually reinvest the
amount prepaid in any Treasury obligations as a condition precedent to receiving
the Prepayment Premium.
Notwithstanding the foregoing, no Prepayment Premium will be due if this Note is
prepaid in full or in part within ninety (90) days prior to the Maturity Date.
8. LIMITATION ON PERSONAL LIABILITY. Neither Maker nor Guarantor
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(singularly or collectively, the "Exculpated Parties") shall have any personal
liability for the Loan or any obligations set forth in the Loan Documents.
Notwithstanding the preceding sentence, Noteholder may bring a foreclosure
action or other appropriate action to enforce the Loan Documents or realize upon
and protect the Property (including, without limitation, naming the Exculpated
Parties in the actions, prior to exhausting all other rights and remedies,
either at law or in equity) and in addition THE EXCULPATED PARTIES SHALL HAVE
PERSONAL LIABILITY FOR any actual losses or damages incurred by Noteholder on
account of-.
(i) any environmental indemnity or ERISA indemnity furnished by
Maker or Guarantor in connection with the Loan (including, without
limitation, the hazardous substances and ERISA provisions of the Loan
Documents; the Hazardous Substances Remediation and Indemnification
Agreement; and the ERISA Certificate and Indemnification Agreement);
(ii) real estate taxes and assessments relating to the property, if
and to the extent the Exculpated Parties have assumed personal liability
therefor pursuant to Section 2.10 of the Mortgage;
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(iii) any security deposits of tenants (A) not turned over to
Noteholder upon foreclosure, sale (pursuant to power of sale), or
conveyance in lieu thereof, or (B) not turned over to a receiver or
trustee for the Property after his/her appointment;
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August 26, 1997
(iv) any insurance proceeds or condemnation awards neither turned
over to Noteholder nor used in compliance with the Loan Documents;
(v) the execution by any of the Exculpated Parties of an amendment
that has a financial impact on the terms of the lease or a termination of
any Lease without Noteholder's prior written consent (if Noteholder's
consent was required under the Loan Documents), in which event the
Exculpated Parties shall have personal liability for the greater of:
(A) the Present Value (calculated at the Discount Rate) of
the aggregate total dollar amount (if any) by which (1) rental income
and/or other tenant obligations prior to the amendment of such Lease
exceeds rental income and/or other tenant obligations after the
amendment of such Lease or under any subsequent lease for such space,
and (2) landlord obligations after the amendment of such Lease or under
any subsequent lease for such space exceeds landlord obligations prior
to the amendment of such Lease; or
(B) any termination fee or other consideration paid, less the
actual, reasonable costs paid to a third party for reletting such space
and any reasonable amounts applied to pay the pro rata operating costs
of such space; and
(C) if the amendment or termination involves a Lease with a
Major Tenant, an amount equal to twice the greater of (A) or (B) above
regardless of whether the actual losses or damages incurred by
Noteholder on account of such amendment or termination are less than
such amount.
(vi) physical waste of the Property;
(vii) any rents or other income from the Property received by any of
the Exculpated Parties during the continuance of an Event of Default under the
Loan Documents and not otherwise applied to the indebtedness under the Note or
to the operating and capital expenses of the Property; PROVIDED, HOWEVER, THAT
THE EXCULPATED PARTIES SHALL HAVE PERSONAL LIABILITY for amounts paid as
expenses to a person or entity related to or affiliated with any of the
Exculpated Parties unless the payments are expressly permitted in the Loan
Documents;
(viii) Maker's failure to maintain any letter of credit required under
the Loan Documents or otherwise in connection with the Loan;
(ix) all reasonable legal fees, including allocated costs of
Noteholder's staff attorneys, and other expenses incurred by Noteholder in
enforcing the Loan Documents if Maker contests, delays, or otherwise hinders or
opposes (including, without limitation, the filing of a bankruptcy) any of
Noteholder's enforcement actions unless (except with respect to bankruptcy) the
final decision rendered is in favor of Maker; or
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(x) any material misrepresentation by any of the Exculpated Parties
in connection with the Property, the Loan Documents, the Loan Application
or any other aspect of the Loan.
(a) Notwithstanding the foregoing, the EXCULPATED PARTEES
SHALL HAVE PERSONAL LIABILITY for all indebtedness evidenced by the
Note and all obligations set forth in the Loan Documents not to exceed
$10,000,000, if:
(i) there shall be any breach or violation of the Due
on Sale or Encumbrance section of the Mortgage; or
(ii) there shall be any fraud by any of the Exculpated
Parties in connection with the Property, the Loan Documents, the
Loan Application, or any other aspect of the Loan; or
(iii) the Property or any part thereof shall become an asset in
(i) a voluntary bankruptcy or insolvency proceeding or (ii) an
involuntary bankruptcy or insolvency proceeding which is not
dismissed within ninety (90) days of filing; provided, however, that
this subsection d(iii) shall not apply if an involuntary bankruptcy
is filed by Noteholder. If the involuntary bankruptcy or insolvency
proceeding is not dismissed within ninety (90) days and the Maker
and Guarantor: (a) promptly and diligently pursued the dismissal of
such proceeding; (b) have not orchestrated nor acquiesced in the
filing of such proceeding; and (c) did not contest Noteholder's
efforts to obtain control of the cash collateral, then the
Exculpated Parties shall not have personal liability because of the
failure to dismiss such proceeding within ninety (90) days.
9. NON-USURIOUS LOAN. It is the intent of Noteholder and Maker in
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this Note and all 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, interest at a rate in excess of the 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 end of the term of this
Note, 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
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August 26, 1997
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 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 pursuant to 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 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 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.
10. NOTEHOLDER'S ATTORNEYS' FEES. Should the Indebtedness
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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 the Mortgage 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 attorneys' and
collection fees including those incurred by Noteholder for any appeal.
11. MAKER'S WAIVERS. Maker and all endorsers, guarantors and
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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.
12. PAYMENT OF TAXES AND FEES. Maker agrees to pay the cost of any
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revenue, tax or other documentary fee or stamps now or hereafter required by law
to be affixed to this Note or the Mortgage.
13. GOVERNING LAW. This Note and the rights, duties and liabilities
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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.
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14. WAIVER OF TRIAL BY JURY. MAKER AND ALL EXCULPATED PARTIES HEREBY
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WAIVE, 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.
MAKER:
OVERSEAS PARTNERS (333), INC., an Illinois
corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and CEO
GUARANTOR, SOLELY FOR THE PURPOSE OF CONSENTING TO
AND BEING BOUND BY THE PROVISIONS OF 8 AND 14
HEREOF
OVERSEAS PARTNERS CAPITAL CORP., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: VP
