TERM NOTE
|
$40,000,000.00
|
October 8, 2008
|
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 Sixth Streets, Indiana, Pennsylvania 15701 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 Jones Page 3750 previously
known as Telerate Page 3750 (or on such other substitute Dow Jones
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 Jones 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 (1
st ) 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 1 st ,
2010 and continuing on the first (1 st )
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.
(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) &nb
