EXHIBIT 10.107
PROMISSORY NOTE
---------------
$50,000,000.00
Columbus, Ohio
March 14, 2006
FOR
VALUE RECEIVED, the undersigned Maker promises to pay to the order
of
CHARTER ONE BANK, N.A. (the "Bank"), at its office at 1215 Superior
Avenue,
Cleveland, Ohio 44114, or at such other place as the holder hereof
may from time
to time designate in writing, the principal sum of FIFTY MILLION
DOLLARS
($50,000,000.00) or so much thereof as may be advanced from time to
time,
together with interest on the unpaid principal balance thereon from
time to time
outstanding, at the rates and at the times hereinafter provided.
The proceeds of
the loan evidenced hereby may be advanced, repaid and readvanced in
partial
amounts during the term of this Note and prior to the Maturity Date
pursuant to
the terms and conditions of the Loan Agreement of even date
herewith by and
between Maker and Bank (the "Loan Agreement"). Each such advance
shall be made
to the undersigned upon receipt by the Bank of the undersigned's
application
therefore and disbursement instructions, which shall be in such
form as the Bank
shall from time to time prescribe. The Bank shall be entitled to
rely on any
oral or telephonic communication requesting an advance and/or
providing
disbursement instructions hereunder, which shall be received by it
in good faith
from anyone reasonably believed by the Bank to be the undersigned,
or the
undersigned's authorized agent. The undersigned agree that all
advances made by
the Bank will be evidenced by entries made by the Bank into its
electronic data
processing system and/or internal memoranda maintained by the Bank.
The
undersigned further agree that the sum or sums shown on the most
recent printout
from the Bank's electronic data processing system and/or on such
memoranda shall
be rebuttably presumptive evidence of the amount of the Principal
Sum and of the
amount of any accrued interest.
1. Definitions. As used herein, the following terms shall have the
following
definitions:
Applicable Margin: The percentage set forth below corresponding to
the loan
to value ratio in effect at such time:
-----------------------------------------------------------------------------
Level
Loan to Value Ratio
Applicable Margin for
LIBOR Rate Loans
-----------------------------------------------------------------------------
1
<
or = 0.50 to 1.00
1.20%
-----------------------------------------------------------------------------
2
>
0.50 to 1.00 and < or = 0.60 to 1.00
1.35%
-----------------------------------------------------------------------------
3
>
0.60 to 1.00
1.50%
-----------------------------------------------------------------------------
The Applicable Margin shall be determined by the Bank from time to
time, based
on the loan to value ratio as determined by Bank in its sole
discretion.
<PAGE>
Business Day:
(a)
any day which is
neither a Saturday or Sunday nor a legal holiday on
which commercial banks are authorized or required to be closed
in
Cleveland, Ohio;
(b)
when such term is used
to describe a day on which a payment or
prepayment is to be made in respect of a LIBOR Rate Loan, any
day
which is: (i) neither a Saturday or Sunday nor a legal holiday
on
which commercial banks are authorized or required to be closed in
New
York City; and (ii) a London Banking Day; and
(c)
when such term is used
to describe a day on which an interest rate
determination is to be made in respect of a LIBOR Rate Loan, any
day
which is a London Banking Day.
Hedging Contracts: Interest rate swap agreements, interest rate
cap
agreements and interest rate collar agreements, or any other
agreements or
arrangements entered into between the Maker and the Bank and
designed to protect
the Maker against fluctuations in interest rates or currency
exchange rates.
Hedging Obligations: With respect to the Maker, all liabilities of
the
Maker to the Bank under Hedging Contracts.
Interest Payment Date: Relative to any LIBOR Rate Loan, each
Business Day
which is the 14th day of each month provided that if such day is
not a Business
Day, then, the first Business Day following the 14th day of each
month, and the
last day of such Interest Period. Relative to any Prime Rate Loan,
each Business
Day which is the 14th day of each month provided that if such day
is not a
Business Day, then, the first Business Day following the 14th day
of each month.
Interest Period:
relative to any LIBOR Rate Loans
(i)
initially, the period
beginning on (and including) the date on which
such LIBOR Rate Loan is made or continued as, or converted into,
a
LIBOR Rate Loan pursuant to Section 2 or 3 and ending on (but
excluding) the day which numerically corresponds to such date
one,
two, three, or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such
month), in each case as the Maker may select in its notice pursuant
to
Section 2 or 3; and
(ii)
thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such LIBOR Rate Loan
and
ending one, two, three, or six months thereafter, as selected by
the
Maker by irrevocable notice to the Bank not less than two
Business
Days prior to
the last day of the then current Interest Period with
respect thereto;
provided, however, that
-2-
<PAGE>
(a)
the Maker shall not be permitted to select Interest Periods to be
in
effect at any one time which have expiration dates occurring on
more than
three (3) different dates;
(b)
Interest Periods commencing on the same date for LIBOR Rate
Loans
comprising part of the same advance under this Note shall be of the
same
duration;
(c)
Interest Periods for LIBOR Rate Loans in connection with which
Maker
has
or may incur Hedging Obligations with the Bank shall be of the
same
duration as the relevant periods set under the applicable
Hedging
Contracts;
(d)
if such Interest Period would otherwise end on a day which is not
a
Business Day, such Interest Period shall end on the next following
Business
Day
unless such day falls in the next calendar month, in which case
such
Interest Period shall end on the first preceding Business Day;
and
(e)
no Interest Period may end later than the termination of this
Note.
Relative to any Prime Rate Loans, the period beginning on (and
including)
the
date on which such Prime Rate Loan is made or continued as, or
converted into, a Prime Rate Loan pursuant to Section 2 or 3 and
ending on
(but
excluding) the day which numerically corresponds to such date
one
month thereafter
LIBOR Rate: Relative to any Interest Period for LIBOR Rate Loans,
the
offered rate for deposits of U.S. Dollars in an amount
approximately equal to
the amount of the requested LIBOR Rate Loan for a term coextensive
with the
designated Interest Period which the British Bankers' Association
fixes as its
LIBOR rate as of 11:00 a.m. London time on the day which is two
London Banking
Days prior to the beginning of such Interest Period.
LIBOR Rate Loan: Any Loan the rate of interest applicable to which
is based
upon the LIBOR Rate.
LIBOR Lending Rate: Relative to any LIBOR Rate Loan to be made,
continued
or maintained as, or converted into, a LIBOR Rate Loan for any
Interest Period,
a rate per annum determined pursuant to the following formula:
LIBOR Lending Rate
=
LIBOR Rate
----------
(1.00 - LIBOR Reserve Percentage)
LIBOR-Reference Banks Loan: Any Loan the rate of interest
applicable to
which is based upon the LIBOR-Reference Banks Rate.
LIBOR-Reference Banks Lending Rate: Relative to a LIBOR-Reference
Banks
Rate Loan for any Interest Period, a rate per annum determined
pursuant to the
following formula:
LIBOR-Reference Banks Lending Rate = LIBOR-Reference Banks
Rate
--------------------------
(1.00 - LIBOR Reserve Percentage)
-3-
<PAGE>
LIBOR-Reference Banks Rate: Relative to any Interest Period for
LIBOR-Reference Banks Loans, the rate for which deposits in U.S.
Dollars are
offered by the Reference Banks to prime banks in the London
interbank market in
an amount approximately equal to the amount requested
LIBOR-Reference Banks Loan
at approximately 11:00 a.m., London time on the day that is two
London Banking
Days prior to the beginning of such Interest Period. The Bank will
request the
principal London office of each of the Reference Banks to provide a
quotation of
its rate. If at least two such quotations are provided, the rate
for such date
will be the arithmetic mean of the quotations. If fewer than two
quotations are
provided as requested, the rate for such date will be the
arithmetic mean of the
rates quoted by major banks in New York City selected by the Bank,
at
approximately 11:00 a.m. New York City time for loans in U.S.
Dollars to leading
European banks for such Interest Period and in an amount
approximately equal to
the amount requested LIBOR-Reference Banks Loan.
LIBOR Reserve Percentage: Relative to any day of any Interest
Period for
LIBOR Rate Loans, the maximum aggregate (without duplication) of
the rates
(expressed as a decimal fraction) of reserve requirements
(including all basic,
emergency, supplemental, marginal and other reserves and taking
into account any
transitional adjustments or other scheduled changes in reserve
requirements)
under any regulations of the Board of Governors of the Federal
Reserve System
(the "Board") or other governmental authority having jurisdiction
with respect
thereto as issued from time to time and then applicable to assets
or liabilities
consisting of "Eurocurrency Liabilities", as currently defined in
Regulation D
of the Board, having a term approximately equal or comparable to
such Interest
Period.
Loan: All amounts outstanding under this Note.
Loan
Agreement: As defined above.
Loan
Documents: As defined in the Loan Agreement.
London Banking Day: A day on which dealings in US dollar deposits
are
transacted in the London interbank market.
Maturity Date: _______________, 2009.
Mortgage: That certain mortgage with power of sale, security
agreement and
financing statement of even date herewith on that certain property
located in
the City of Tulsa, County of Tulsa, and State of Oklahoma, as more
particularly
described therein, given by Maker in favor of Bank to secure this
Note.
Note: This Promissory Note.
Prime Rate: The rate of interest announced by Bank in Cleveland,
Ohio from
time to time as its "Prime Rate." The Maker acknowledges that the
Bank may make
loans to its customers above, at or below the Prime Rate. Interest
accruing by
reference to the Prime Rate shall be calculated on the basis of
actual days
elapsed and a 360-day year.
Prime Rate Loan: Any Loan for the period(s) when the rate of
interest
applicable to such Loan is calculated by reference to the Prime
Rate.
-4-
<PAGE>
Reference Banks: Four major banks in the London interbank
market.
2.
Borrowing Procedures.
Interest Election. Interest on the outstanding principal amount of
this
Note shall accrue, at Maker's option, at one of the following rates
of interest:
(i) the Prime Rate; or (ii) during the Interest Period applicable
thereto at a
rate equal to the sum of the LIBOR Lending Rate for such Interest
Period plus
the Applicable Margin thereto and be payable on each Interest
Payment Date.
LIBOR Loan Request. By delivering a borrowing request to the Bank
on or
before 10:00 a.m., New York time, on a Business Day, the Maker may
from time to
time irrevocably request, on not less than two nor more than five
Business Days'
notice, that a LIBOR Rate Loan be made in a minimum amount of
$10,000 and
integral multiples of $10,000, with an Interest Period of one, two,
three, or
six months. On the terms and subject to the conditions of this
Note, each LIBOR
Rate Loan shall be made available to the Maker no later than 11:00
a.m. New York
time on the first day of the applicable Interest Period by deposit
to the
account of the Maker as shall have been specified in its borrowing
request.
Continuation and Conversion Elections. By delivering a
continuation/conversion notice to the Bank on or before 10:00 a.m.,
New York
time, on a Business Day, the Maker may from time to time
irrevocably elect, on
not less than two nor more than five Business Days' notice, that
all, or any
portion in an aggregate minimum amount of $10,000 and integral
multiples of
$10,000, of any LIBOR Rate Loan be converted on the last day of an
Interest
Period into a LIBOR Rate Loan with a different Interest Period, or
continued on
the last day of an Interest Period as a LIBOR Rate Loan with a
similar Interest
Period, provided, however, that no portion of the outstanding
principal amount
of any LIBOR Rate Loans may be converted to, or continued as, LIBOR
Rate Loans
when any default or Event of Default has occurred and is
continuing, and no
portion of the outstanding principal amount of any LIBOR Rate Loans
may be
converted to LIBOR Rate Loans of a different duration if such LIBOR
Rate Loans
relate to any Hedging Obligations. If any default or Event of
Default has
occurred and is continuing (if the Bank does not otherwise elect to
exercise any
right to accelerate the Loans it is granted hereunder), or in the
absence of
delivery of a continuation/conversion notice with respect to any
LIBOR Rate Loan
at least two Business Days before the last day of the then current
Interest
Period with respect thereto, each maturing LIBOR Rate Loan shall
automatically
be continued as a Prime Rate Loan.
3.
Repayments, Prepayments, and Interest.
Repayments Continuations and Conversions. LIBOR Rate Loans shall
mature and
become payable in full on the last day of the Interest Period
relating to such
LIBOR Rate Loan. Prior to the termination of this Note, upon the
maturity of a
LIBOR Rate Loan it may be continued for an additional Interest
Period or may be
converted to a Prime Rate Loan (if there exists no default or Event
of Default
and the Bank does not otherwise elect to exercise any right to
accelerate the
Loan it is granted hereunder).
-5-
<PAGE>
Voluntary Prepayment of the LIBOR Rate Loan. When classified as a
LIBOR
Rate Loan, the Loan may be prepaid upon the terms and conditions
set forth
herein. The Maker acknowledges that additional obligations may be
associated
with prepayment, in accordance with the terms and conditions of any
applicable
Hedging Contracts. The Maker shall give the Bank, no later than
10:00 a.m., New
York City time, at least four (4) Business Days notice of any
proposed
prepayment of the LIBOR Rate Loan, specifying the proposed date of
payment and
the principal amount to be paid. Each partial prepayment of the
principal amount
of the LIBOR Rate Loan shall be in an integral multiple of $10,000
and
accompanied by the payment of all charges outstanding on the LIBOR
Rate Loan and
of all accrued interest on the principal repaid to the date of
payment. Maker
acknowledges that prepayment or acceleration of the LIBOR Rate Loan
during an
Interest Period shall result in the Bank incurring additional
costs, expenses
and/or liabilities and that it is extremely difficult and
impractical to
ascertain the extent of such costs, expenses and/or liabilities.
Therefore, all
full or partial prepayments of the LIBOR Rate Loan shall be
accompanied by, and
the Maker hereby promises to pay, on each date the LIBOR Rate Loan
is prepaid or
the date all sums payable hereunder become due and payable, by
acceleration or
otherwise, in addition to all other sums then owing, an amount
("LIBOR Rate Loan
Prepayment Fee") determined by the Bank pursuant to the following
formula:
(a)
the then current rate
for United States Treasury securities (bills on
a discounted basis shall be converted to a bond equivalent) with
a
maturity date closest to the end of the Interest Period as to
which
prepayment is made, subtracted from
(b)
the LIBOR Lending Rate
plus the Applicable Margin then applicable to
the LIBOR Rate Loan.
If
the result of this calculation is zero or a negative number, then
there
shall be no LIBOR Rate Loan Prepayment Fee. If the result of
this
calculation is a positive number, then the resulting percentage
shall be
multiplied by:
(c)
the amount of the
LIBOR Rate Loan being prepaid.
The
resulting amount shall be divided by:
(d)
360
and
multiplied by:
(e)
the number of days
remaining in the Interest Period as to which the
prepayment is bein
