TERM NOTE
Exhibit
10.103
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$40,000,000.00
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October 8,
2008
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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
MORGANTOWN MALL ASSOCIATES LIMITED PARTNERSHIP, an Ohio 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 MILLION AND 00/100
DOLLARS ($40,000,000.00) 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 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 fifty hundredths
of one percent (3.50%)(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 October 14, 2008, and the first day of each month thereafter
commencing on November 1, 2008.
(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 November 1, 2008 and continuing on the first (1st) day of
each month thereafter up to and including October 1, 2010, consecutive monthly
installments of principal shall be due and payable in the respective amounts and
at the times set forth on Exhibit "A" attached
hereto and made a part hereof. Accrued interest on the unpaid
principal balance of this Note shall be payable in arrears at the same times as
the principal payments.
(b) Beginning
on November 1st, 2010
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 commencing on the Closing
Date.
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(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.
(d) 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.
(e) All
payments of principal, interest and other amounts shall be made at the office of
the Bank at its address set forth above.
(f) 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.
(g) 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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MORGANTOWN
MALL ASSOCIATES LIMITED
PARTNERSHIP,
an Ohio limited partnership
By: GLIMCHER
MORGANTOWN MALL,
INC.,
a
Delaware corporation, its
general partner
By:
GLIMCHER PROPERTIES CORPORATION,
a
Delaware corporation,
its sole shareholder
By:______________________(SEAL)
Name:
Xxxx X. Xxxx
Title:
Executive Vice President, Chief Operating Officer and
Treasurer
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