TERM NOTE
Exhibit
10.125
| $47,000,000.00 |
January 30,
2009
|
THIS
TERM NOTE (together with all extensions, renewals, amendments, substitutions and
replacements hereto and hereof, the "Note") is executed and
delivered under and pursuant to the terms of that certain Loan Agreement dated
as of even date herewith (together with all extensions, renewals, amendments,
substitutions and replacements thereto and thereof the "Agreement") by and between
GRAND CENTRAL LIMITED PARTNERSHIP, a Delaware limited partnership (the "Borrower"), and FIRST
COMMONWEALTH BANK (the "Bank").
FOR
VALUE RECEIVED, the Borrower hereby promises to pay to the order of the Bank,
its successors and assigns, at the office of the Bank at Philadelphia and Xxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 or such other location as the Bank shall
designate from time to time, the principal amount of FORTY SEVEN MILLION AND
00/100 DOLLARS ($47,000,000.00) or such lesser amount as may be advanced to or
for the benefit of the Borrower hereunder and which is outstanding from time to
time hereunder, together with interest accruing on the outstanding principal
balance from the date hereof, as provided below.
1. Interest
Rates.
(a) For the term of this
Note, interest shall be charged on the outstanding principal balance of this
Note at a rate equal to the greater of: (i) a fixed rate equal to five and
one-half of one percent (5.5%) per annum; or (ii) a floating rate
equal to the sum of (x) the one-month London Inter Bank Offered Rate or
"LIBOR", (determined as
set forth below) plus (y) a margin
equal to three hundred fifty (350) basis points, or three and one-half of one
percent (3.5%) (the "Margin"); subject in each case
to adjustment as set forth below.
"LIBOR" shall mean, for each
Reset Date, the interest rate per annum determined by the Bank by dividing (i)
the rate which appears as USD-LIBOR-BBA on Dow Xxxxx Page 3750 previously known
as Telerate Page 3750 (or on such other substitute Dow Xxxxx page that displays
rates at which US dollar deposits are offered by leading banks in the London
interbank deposit market), or the rate which is quoted by another source
selected by the Bank which has been approved by the British Bankers’ Association
as an authorized information vendor for the purpose of displaying rates at which
US dollar deposits are offered by leading banks in the London interbank deposit
market (an "Alternate
Source"), at approximately 11:00 a.m., London time, two (2) Business Days
prior to such Reset Date, as the one (1) month London interbank offered rate for
U.S. Dollar deposits commencing on such Reset Date (or if there shall at any
time, for any reason, no longer exist a Dow Xxxxx Page 3750 previously known as
Telerate Page 3750 (or any substitute page) or any Alternate Source, a
comparable replacement rate determined by the Bank at such time (which
determination shall be conclusive absent manifest error)), by (ii) a number
equal to 1.00 minus the LIBOR Reserve Percentage.
"LIBOR Reserve Percentage"
shall mean the maximum effective percentage in effect on such day as prescribed
by the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without limitation,
supplemental, marginal and emergency reserve requirements) with respect to
eurocurrency funding (currently referred to as "Eurocurrency
liabilities").
"Reset Date" shall mean,
initially February 1, 2009, and the first day of each month thereafter
commencing on March 1, 2009.
(b) Interest
shall be calculated on a 360-day simple interest basis; that is by applying the
ratio of the annual interest rate over a year of 360 days multiplied by the
outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding.
(c) Upon
the occurrence and during the continuance of an Event of Default (as defined in
the Agreement) including failure to pay upon final maturity, the Bank may,
pursuant to the Agreement, require that amounts outstanding under this Note bear
interest at a rate per annum equal to the sum of the rate otherwise in effect
hereunder plus five percent (5%) (the "Default Rate").
(d) Interest
will continue to accrue on the outstanding unpaid principal balance of this
Note, including at the Default Rate if it has been imposed, whether or not
judgment is entered on this Note.
(e) In
no event will the rate of interest hereunder exceed the maximum rate of interest
permitted by applicable law.
2. Payments of Principal and
Interest.
(a) Beginning
on March 1, 2009 and continuing on the first (1st) day of
each month thereafter, consecutive monthly installments of principal and
interest shall be due and payable, each such installment amount being that
amount of combined principal and interest which would, at the then applicable
interest rate described in paragraph 1(a) above, amortize over a period of
twenty-five (25) years, the then outstanding principal balance of this
Note. The monthly payments hereunder shall be automatically adjusted
upon each Reset Date based on any change in the Index using the then current
outstanding principal balance and the number of months remaining in the
twenty-five (25) year amortization period. In addition, the
monthly payments hereunder shall be automatically increased effective on the
date of funding of any additional Term Loans advanced pursuant to the terms of
Section 2.1b of the Agreement based on the new principal amount outstanding
after giving effect to such additional Term Loans, the interest rate then in
effect, and the number of months (or partial months) remaining in the
twenty-five (25) year amortization period.
(b) On
the Maturity Date, (including any revised Maturity Date in connection with any
Extension Period pursuant to the terms of Section 2.5 of the Agreement) the then
outstanding principal balance of the Obligations (as defined in the Agreement)
of the Borrower, shall be due and payable in full.
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(c) If
any payment of principal or interest is not made within ten (10) days following
the due date for such payment, the Borrower will pay to the Bank immediately
upon demand a late charge in an amount equal to the greater of $25.00 or five
percent (5%) of the amount that has not been paid, not to exceed $27,000 in any
one event (the "Late
Charge").
(d) All
payments of principal, interest and other amounts shall be made at the office of
the Bank at its address set forth above.
(e) If
any payment under this Note shall become due on a Saturday, Sunday or public
holiday under the laws of the State where the Bank’s office indicated above is
located, such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing interest in connection with
such payment. The Borrower hereby authorizes the Bank to charge the
Borrower's deposit account at the Bank for any payment if not made when
due. If Borrower is in default under this Note, payments received
will be applied to charges, fees and expenses (including attorneys’ fees),
accrued interest and principal in any order the Bank may choose, in its sole
discretion. If Borrower is not in default under this Note, payments
shall be applied to the purpose earmarked by Borrower, and if no purpose is
earmarked by Borrower in writing, then first to accrued but unpaid interest,
second to principal and then lastly to any charges, fees and expenses due
Bank.
(f) Both
the Late Charge and the Default Rate are imposed as liquidated damages for the
purpose of defraying the Bank’s expenses incident to the handling of delinquent
payments, but are in addition to, and not in lieu of, the Bank’s exercise of any
rights and remedies hereunder, under the other Loan Documents or under
applicable law, and any fees and expenses of any agents or attorneys which the
Bank may employ. In addition, the Default Rate reflects the increased
credit risk to the Bank of carrying a loan that is in default. The
Borrower agrees that the Late Charge and Default Rate are reasonable forecasts
of just compensation for anticipated and actual harm incurred by the Bank, and
that the actual harm incurred by the Bank cannot be estimated with certainty and
without difficulty.
3. Prepayments. The principal
owed hereunder may be prepaid in whole or in part at any time, and from time to
time, subject to the payment of the prepayment premium described in the
Agreement. All prepayments shall be applied as set forth in the
Agreement.
4. Incorporation
of Terms. This Note is the
Note referred to in the Agreement. Reference is made to the Agreement
for the provisions for the acceleration of the maturity hereof. All
of the terms, conditions, covenants, representations and warranties of the
Agreement are incorporated herein by reference as if the same were more fully
set forth herein. All capitalized terms used herein which are not defined
herein, but which are defined in the Agreement, shall have the meanings herein
which are given to them in the Agreement.
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5. Remedies
Upon Default. Upon the
occurrence of an Event of Default specified in the Agreement, the principal
hereof and accrued interest hereon may become forthwith due and payable, all as
provided in the Agreement.
6. Certain
Waivers. Demand,
presentment, protest, notice of dishonor, notices of default or nonpayment and
all other notices of any kind are hereby waived.
7. Successors
and Assigns. Subject to the
terms of the Agreement, this Note may be assigned by the Bank (or any other
holder hereof), in whole or in part, at any time and from time to
time. This Note shall be binding upon the successors and assigns of
the Borrower and shall inure to the benefit of the successors and assigns of the
Bank (and any holder hereof); provided that the
Borrower may not assign this Note without the prior written consent of the
Bank.
8. Governing
Law. This Note shall
be governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of Pennsylvania without regard to the principles thereof regarding
conflict of laws, excepting applicable Federal Law.
9. Power to Confess
Judgment.
(a) The
Borrower hereby irrevocably authorizes and empowers any attorney or the
Prothonotary or Clerk of any Court in the Commonwealth of Pennsylvania, or
elsewhere, to appear at any time after the occurrence and during the continuance
of an Event of Default for the Borrower as of any term, and with or without
complaint filed, confess or enter judgment against the Borrower for the entire
principal balance of this Note and all accrued interest, together with costs of
suit, and an attorney's commission equal to the greater of (a) all reasonable
legal fees and expenses actually incurred and to be incurred by the Bank for the
collection or preservation of the obligations due under this Note or (b) one
percent (1%) of the unpaid principal balance and accrued interest, but in any
event not less than One Thousand Dollars ($1,000), plus other costs incurred by
the Bank under the Agreement; and for so doing, this Note or a copy of this Note
verified by affidavit shall be sufficient warrant. The authority
granted in this Note to confess judgment against the Borrower shall not be
exhausted by any single exercise of that authority, but shall continue from time
to time and at all times until payment in full of all amounts due under this
Note.
(b) The Borrower further acknowledges and
agrees that after the entry of judgment by confession against the undersigned,
the Bank (or any holder of the judgment) may without notice and a hearing
foreclose upon, attach, garnish, levy or otherwise seize property of the
undersigned in full or partial payment of the judgment. The Borrower,
being fully aware of its rights to prior notice and a hearing on the validity of
any claims or defenses that may be asserted against the Bank hereunder, before
and/or after judgment is entered, knowingly, intelligently and willingly waives
these rights and expressly agrees and consents to the entry of judgment by
confessions on this Note against the Borrower and, without notice or hearing,
the taking of such other actions as may be permitted under applicable
law.
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(c) The Borrower agrees that any action
or proceeding arising out of or relating to this Note may be commenced in the
Court of Common Pleas of Indiana County, Pennsylvania or in the United States
District Court for the Western District of Pennsylvania, and the Borrower agrees
that a summons and complaint commencing an action or proceeding in either of
such courts shall be properly served and shall confer personal jurisdiction if
served personally or by certified mail to the Borrower at its address set forth
in the Agreement, or as otherwise provided under the laws of the Commonwealth of
Pennsylvania. Further, the Borrower hereby specifically consents to
the personal jurisdiction of the Court of Common Pleas of Indiana County,
Pennsylvania and the United States District Court for the Western District of
Pennsylvania and waives and hereby acknowledges that the Borrower is estopped
from raising any objection based on forum
non conveniens, any claim that either such court lacks proper venue or
any objection that either such court lacks personal jurisdiction over the
Borrower so as to prohibit either such court from adjudicating any issues raised
in a complaint filed concerning this Note or payment to the Bank. The
Borrower hereby acknowledges and agrees that this choice of forum provision
shall not be deemed to preclude the enforcement of any judgment obtained in any
forum or the taking of any action under this Note to enforce the same in any
appropriate jurisdiction.
10. Waiver of
Jury Trial. Each of the Borrower and the Bank hereby
irrevocably waives any and all right to trial by jury in any action or
proceeding of any kind or nature in any court, arising out of, under or by
reason of this Note or the transactions contemplated hereby. The
Borrower and the Bank acknowledge that this waiver of jury trial has been
specifically negotiated as a part of this Note and the other Loan
Documents.
The
Borrower acknowledges that the Borrower has read and understood all the
provisions of this Note, including the confession of judgment and waiver of jury
trial provisions, and has been advised by counsel as necessary or
appropriate.
[Remainder
of Page Intentionally Left Blank]
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WITNESS
the due execution of this Term Note on the date first above written with the
intent to be legally bound hereby, and with the further intention that this Note
shall constitute a sealed instrument.
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WITNESS/ATTEST:
By:_______________________________
Name:
Title:
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GRAND
CENTRAL LIMITED PARTNERSHIP, a Delaware limited partnership
By: GLIMCHER
GRAND CENTRAL, INC., a Delaware corporation, its general
partner
By:
_______________________(SEAL)
Name: Xxxx
X. Xxxx
Title: Executive
Vice President, Chief Financial Officer and
Treasurer
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