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NOTE
FOR
VALUE RECEIVED, ,
a limited
partnership ("Maker"), hereby promises to pay to the order of
__________________, _____, a national banking association ("Bank"),
the principal sum of
Dollars ($ _____ ),
or so much thereof as may be advanced pursuant to the Loan Agreement
(hereinafter defined), together with interest thereon, as follows.
1.
Definitions. As used herein, the following terms shall
have the indicated meanings:
"Assessment
Rate" for any day shall mean the rate per annum (rounded upward to the
nearest 1/100 of 1%) determined in good faith by Bank in accordance with its
usual procedures (which determination shall be conclusive) to be the maximum
rate per annum payable by a depository institution insured by the Federal
Deposit Insurance Corporation (or any successor) for such day as an assessment
for insurance on Dollar time deposits, exclusive of any credit that is or may
be allowed against such annual assessment on account of assessment payments
made or to be made by such depository institution. The CD Rate shall be adjusted automatically
as of the effective date of each change in the Assessment Rate.
"Business
Day" shall mean any day other than a Saturday, Sunday, public holiday
under the laws of the Commonwealth of Pennsylvania or other day on which
banking institutions are authorized or obligated to close in Pittsburgh,
Pennsylvania.
"CD
Rate" for any day shall mean for each CD Rate Segment corresponding to a
proposed or existing CD Rate Interest Period the rate per annum determined by
Bank by adding (a) the rate per annum obtained by dividing (the resulting
quotient to be rounded upward to the nearest 1/100 of 1%) (i) the rate of
interest (which shall be the same for each day in such CD Rate Interest Period)
determined in good faith by Bank in accordance with its usual procedures (which
determination shall be conclusive) to be the average of the secondary market bid
rates at or about 11:00 a.m., Eastern Time, on the first day of such CD Rate
Interest Period by dealers of recognized standing in negotiable certificates of
deposit for the purchase at face value of negotiable certificates of deposit of
major money center banks for delivery on such day in amounts comparable to such
CD Rate Segment and having maturities comparable to such CD Rate Interest
Period by (ii) a number equal to 1.00 minus the CD Rate Reserve Percentage for such CD Rate Interest Period
plus (b) the Assessment Rate. The
"CD Rate" may also be expressed by the following formula:
[ average of the secondary ]
[ market bid rates determined ]
[ by Bank as set forth above ]
CD Rate = [ ]
+ Assessment Rate
[ 1.00 - CD Rate Reserve ]
[ Percentage ]
"CD
Rate Interest Period" shall mean a period of 30, 60, 90 or 180 days for
which Maker has selected the CD Rate Option to apply to a CD Rate Segment. Each CD Rate Interest Period which would
otherwise end on a day which is not a Business Day shall be extended to the
next succeeding Business Day.
"CD
Rate Option" shall have the meaning assigned to that term in paragraph 2
hereof.
"CD
Rate Portion" shall mean at any time the portion, including the whole, of
the Loan bearing interest at such time under the CD Rate Option.
"CD
Rate Reserve Percentage" for any day in any CD Rate Interest Period shall
mean the percentage (expressed as a decimal, rounded upward to the nearest
1/100 of 1%), as determined in good faith by Bank (which determination shall be
conclusive), which is in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) representing the
maximum reserve requirement (including without limitation supplemental, marginal
and emergency reserve requirements) for a member bank of such System in respect
of nonpersonal time deposits in Dollars in the United States having a maturity
comparable to such CD Rate Interest Period.
The CD Rate shall be adjusted automatically as of the effective date of
each change in the CD Rate Reserve Percentage.
"CD
Rate Segment" at any time shall mean the entire principal amount of the CD
Rate Portion to which at such time there is applicable a particular CD Rate
Interest Period beginning on a particular day and ending on a particular
day. (By definition, the CD Rate Portion
is at all times composed of an integral number of discrete CD Rate Segments and
the sum of the principal amounts of all CD Rate Segments at any time equals the
principal amount of the CD Rate Portion at such time.)
"Corresponding
Source of Funds" shall mean (a) in the case of any CD Rate Segment, the
proceeds of hypothetical issuances by Bank of one or more of its certificates
of deposit at the beginning of the CD Rate Interest Period corresponding to
such CD Rate Segment, having maturities approximately equal to such CD Rate
Interest Period and in an aggregate amount approximately equal to such CD Rate
Segment, and (b) in the case of any Euro-Rate Segment, the proceeds of hypothetical
receipts by Bank of one or more Dollar deposits in the interbank eurodollar
market at the beginning of the Euro-Rate Interest Period corresponding to such
Euro-Rate Segment, having maturities approximately equal to such Euro-Rate
Interest Period and in an aggregate amount approximately equal to such
Euro-Rate Segment.
"Default
Rate" shall mean (a) with respect to any part of the Prime Rate Portion, a
rate per annum equal to 4% above the Prime Rate Option, (b) with respect to any
part of any Segment (i) until the end of the Interest Period for such Segment,
a rate per annum equal to 4% above the rate otherwise applicable to such
Segment and (ii) thereafter, a rate per annum equal to 4% above the Prime Rate
Option and (c) with respect to any other amount payable to Bank hereunder
or under any other Loan Document, a rate per annum equal to 4% above the Prime
Rate Option.
"Dollar",
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Euro-Rate"
for any day shall mean for each Euro-Rate Segment corresponding to a proposed
or existing Euro-Rate Interest Period the rate per annum determined by Bank by
dividing (the resulting quotient to be rounded upward to the nearest 1/100 of
1%) (a) the rate of interest (which shall be the same for each day in such
Euro-Rate Interest Period) determined in good faith by Bank in accordance with
its usual procedures (which determination shall be conclusive) to be the
average of the rates per annum for deposits in Dollars offered to major money
center banks in the London interbank market at approximately 11:00 o'clock
a.m., London time, two London Business Days prior to the first day of such
Euro-Rate Interest Period for delivery on the first day of such Euro-Rate
Interest Period in amounts comparable to such Euro-Rate Segment and having
maturities comparable to such Euro-Rate Interest Period by (b) a number equal
to 1.00 minus the Euro-Rate Reserve Percentage.
The "Euro-Rate" may also be expressed by the following
formula:
[average of the
rates offered to major money ]
[center banks in
the London interbank market ]
Euro-Rate = [as
determined by Bank as set forth above ]
[1.00 - Euro-Rate
Reserve Percentage ]
"Euro-Rate
Interest Period" shall mean a period of one, two, three or six months for
which Maker has selected the Euro-Rate Option to apply to a Euro-Rate
Segment. Each Euro-Rate Interest Period
shall begin on a London Business Day, and the term "month", when used
in connection with a Euro-Rate Interest Period shall be construed in accordance
with prevailing practices in the interbank eurodollar market at the
commencement of such Euro-Rate Interest Period, as determined in good faith by
Bank (which determination shall be conclusive).
"Euro-Rate
Option" shall have the meaning assigned to that term in paragraph 2
hereof.
"Euro-Rate
Portion" shall mean at any time the portion, including the whole, of the
Loan bearing interest at such time under the Euro-Rate Option.
"Euro-Rate
Reserve Percentage" for any day shall mean the percentage (expressed as a
decimal, rounded upward to the nearest 1/100 of 1%), as determined in good
faith by Bank (which determination shall be conclusive), which is in effect on
such day as prescribed by the Board of Governors of the Federal Reserve System
(or any successor) representing the maximum reserve requirement (including,
without limitation, supplemental, marginal and emergency reserve requirements)
with respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities") of a member bank in such System. The Euro-Rate shall be adjusted automatically
as of the effective date of each change in the Euro-Rate Reserve Percentage.
"Euro-Rate
Segment" at any time shall mean the entire principal amount of the
Euro-Rate Portion to which at such time there is applicable a particular
Euro-Rate Interest Period beginning on a particular day and ending on a
particular day. (By definition, the
Euro-Rate Portion is at all times composed of an integral number of discrete Euro-Rate
Segments and the sum of the principal amounts of all Euro-Rate Segments at any
time equals the principal amount of the Euro-Rate Portion at such time.)
"Event
of Default" shall have the meaning assigned to that term in
Section 4.01 of the Mortgage.
"Extension
Option" shall mean the First Extension Option or the Second Extension
Option.
"First
Extended Maturity Date" shall have the meaning assigned to that term in
paragraph 5 hereof.
"First
Extension Option" shall have the meaning assigned to that term in
paragraph 5 hereof.
"Funding
Breakage Date" and "Funding Breakage Indemnity" shall have the
meanings assigned to those terms in paragraph 3 hereof.
"Governmental
Authority" shall have the meaning assigned to that term in the Loan
Agreement.
"Improvements"
shall have the meaning assigned to that term in the Loan Agreement.
"Initial
Maturity Date" shall have the meaning assigned to that term in
paragraph 5 hereof.
"Interest
Period" shall mean any CD Rate Interest Period or Euro-Rate Interest
Period.
"Interest
Rate Option" shall have the meaning assigned to that term in
paragraph 2 hereof.
"Law"
shall have the meaning assigned to that term in the Loan Agreement.
"Loan"
shall mean the $
loan to be made by Bank to Maker pursuant to the Loan Agreement and evidenced
by this Note.
"Loan
Advance" shall have the meaning assigned to that term in the Loan
Agreement.
"Loan
Agreement" shall mean the Construction Loan Agreement of even date
herewith between Maker and Bank pursuant to which this Note has been issued, as
the same may be amended, modified or supplemented from time to time.
"Loan
Documents" shall have the meaning assigned to that term in the Loan
Agreement.
"London
Business Day" shall mean a day for dealing in deposits in Dollars by and
among banks in the London interbank market and which is a Business Day.
"Maturity
Date" shall mean the Initial Maturity Date or, if one or more of the
Extension Options are duly exercised, the First Extended Maturity Date or the
Second Extended Maturity Date, as the case may be.
"Mortgage"
shall have the meaning assigned to that term in the Loan Agreement.
"Mortgaged
Property" shall have the meaning assigned to that term in the Mortgage.
"Person"
shall have the meaning assigned to that term in the Loan Agreement.
"Prime
Rate" shall mean the interest rate per annum announced from time to time
by Bank as its Prime Rate. The Prime
Rate may be greater or less than other interest rates charged by Bank to other
borrowers and is not solely based or dependent upon the interest rate which
Bank may charge any particular borrower or class of borrowers.
"Prime
Rate Option" shall have the meaning assigned to that term in paragraph 2
hereof.
"Prime
Rate Portion" shall mean at any time the portion, including the whole, of
the Loan bearing interest at such time under the Prime Rate Option.
"Project
Cash Flow" shall mean for any period (a) the sum of Project Operating
Income, prepaid rent from tenants of the Mortgaged Property, unearned income of
Maker (such as dividends and interest) and proceeds from borrowed money (other
than Loan Advances) received by Maker for such period, less (b) Project
Operating Expenses for such period.
"Project
Debt Service" for any period shall mean principal, interest and other
charges payable under this Note or any other Loan Documents for such period.
"Project
Debt Service Coverage Ratio" for any period shall mean the ratio of (a)
Project Operating Income (excluding however revenues from leases with terms of
six months or less [, leases whose tenants are in material default
thereunder] and leases whose tenants are insolvent or in bankruptcy
proceedings) for such period, less Project Operating Expenses for such period,
to (b) Project Debt Service for such period.
"Project
Operating Expenses" for any period shall mean all expenses incurred for
such period in the normal course of operating the Mortgaged Property (excluding
interest and other charges payable on the Loan), including but not limited to
maintenance fees, real estate taxes and insurance premiums, expenses and
capital expenditures related to the repair and maintenance of the Mortgaged
Property, expenses related to the management, leasing and marketing of the
Mortgaged Property, and all legal and accounting expenses. Project Operating Expenses shall be
determined on a cash basis method, except that any expense otherwise defined as
a Project Operating Expense which is regularly incurred on a yearly, quarterly,
bimonthly, semiannual or biannual basis, or at any other regular interval
spanning more than one month, shall be amortized over the number of months
included within that interval for the purpose of calculating Project Operating
Expenses.
"Project
Operating Income" for any period shall mean the gross income and revenues
for such period (determined on a cash basis method) derived in any manner
whatsoever from the operation of the Mortgaged Property, including but not
limited to rents (fixed, minimum, guaranteed, additional, overage, percentage,
participation and any other type or kind), fees, charges (including, without
limitation, escalation or contribution charges), business interruption
insurance, or otherwise for the use or occupancy of all or any part of the
Mortgaged Property, or for any services, equipment or furnishings provided in
connection with such use or occupancy, including without limitation vending
machine income, forfeited deposits, fees from amenities offered at the
Mortgaged Property, utility income and reimbursement for Project Operating
Expenses. Project Operating Income shall
specifically exclude any unearned income (such as dividends and interest),
proceeds from hazard insurance or condemnation awards, security deposits,
prepaid rent, and any payment received by Maker representing proceeds of
borrowed money.
"Second
Extended Maturity Date" shall have the meaning assigned to that term in
paragraph 5 hereof.
"Second
Extension Option" shall have the meaning assigned to that term in
paragraph 5 hereof.
"Segment"
shall mean any CD Rate Segment or Euro-Rate Segment.
"Treasury
Rate" as of any Funding Breakage Date shall mean the rate per annum
determined by the applicable Lender (which determination shall be conclusive)
to be the semiannual equivalent yield to maturity (expressed as a semiannual
equivalent and decimal and, in the case of United States Treasury bills, converted
to a bond equivalent yield) for United States Treasury securities maturing on
the last day of the corresponding Interest Rate Period and trading in the
secondary market in reasonable volume (or if no such securities mature on such
date, the rate determined by standard securities interpolation methods as
applied to the series of securities maturing as close as possible to, but
earlier than, such date, and the series of such securities maturing as close as
possible to, but later than, such date).
2.
Interest Rates.
(a)
Rate Options. The unpaid principal amount of the Loan
shall, subject to subparagraphs (b) and (c) of this paragraph 2, bear interest
for each day on one or more bases selected by Maker from among the following
interest rate options ("Interest Rate Options"), it being understood
that subject to the provisions hereof Maker may select different Interest Rate
Options to apply simultaneously to different parts of the Loan and may select
different Segments to apply simultaneously to different parts of the CD Rate
Portion or the Euro-Rate Portion: (i) a
rate per annum for each day equal to %
above the Prime Rate for such day (the "Prime Rate Option"), (ii) a
rate per annum for each day equal to %
above the CD Rate for such day (the "CD Rate Option"), or (iii) a
rate per annum for each day equal to %
above the Euro-Rate for such day (the "Euro-Rate Option").
(b)
[Rate Reduction. At such time as Maker has maintained a
Project Debt Service Coverage Ratio of at least
to 1 for each of consecutive months after lien
free completion of construction of the Improvements in accordance with
Section 5.01 of the Loan Agreement, the interest rate under each Interest
Rate Option shall be reduced % as of the date Bank receives
from Maker a written request for such reduction together with evidence satisfactory to Bank that such
condition has been satisfied; provided, however, that, if Maker fails to
maintain a Project Debt Service Coverage of at least
to 1 for any month thereafter, the interest rate under each Interest Rate
Option shall revert to its level before the above-described reduction,
effective as of the first day of such month.]
(c)
Default Rate. During the continuation of any default by
Maker in the payment of principal of or interest on this Note, during the
continuation of any Event of Default and/or after the maturity hereof (whether
by acceleration or otherwise), both before and after judgment, the Loan shall
bear interest at the Default Rate.
(d)
Calculations. Each interest rate hereunder (i) shall
be based on a year of 360 days and actual days elapsed and (ii) shall
change automatically from time to time effective as of the effective date of
each change in the Prime Rate, the Assessment Rate, the CD Rate Reserve
Percentage or the Euro-Rate Reserve Percentage.
3.
Interest Rate Selection; Reimbursement;
Indemnity.
(a)
Selections, Conversions and Renewals. Selections, conversions and renewals of
Interest Rate Options shall be made as set forth in this paragraph 3. Maker (i) shall, at least three Business Days
prior to the making of a Loan Advance, give Bank notice of the Interest Rate
Option or Options which it is selecting to apply to such Loan Advance, (ii)
shall, at least three Business Days prior to the end of each Interest Period,
give Bank notice of the Interest Rate Option or Options which it is selecting
to apply to the corresponding Segment commencing on the day after the end of
such Interest Period and (iii) may, on three Business Days' prior notice,
select the CD Rate Option or the Euro-Rate Option to apply to all or part of
the Prime Rate Portion, such notice under this clause (iii) to state the date
of conversion which shall be a Business Day.
Each such notice shall be irrevocable and shall be made by giving Bank
telephonic notice on or before the day such notice is required (to be confirmed
in writing within three days thereafter) of (x) the Interest Rate Option or
Options selected and the principal amounts of the Prime Rate Portion and each
Segment of the CD Rate Portion and the Euro-Rate Portion, as the case may be,
to be selected, converted to or renewed and (y) with respect to each such
Segment to be selected, converted to or renewed, the Interest Period selected
to apply to such Segment. In the absence
of the receipt of a telephonic notice from Maker required by clause (i) or
(ii) above, Maker shall be deemed to have selected the Prime Rate
Option. Maker may not select the CD Rate
Option or Euro-Rate Option if an Event of Default has occurred and is
continuing and may not select an Interest Period which would end after the
Maturity Date.
(b)
Limitations on Segments. There shall be no more than five Segments at
any time and each Segment shall be in an amount which is greater than or equal
to $1,000,000 and which is an integral multiple of $100,000.
(c)
CD Rate or Euro-Rate Unascertainable;
Impracticability.
If (i) on any date on which a CD Rate or Euro-Rate would otherwise be
set Bank shall have determined in good faith (which determination shall be
conclusive) that (A) adequate and reasonable means do not exist for
ascertaining such CD Rate or Euro-Rate, (B) a contingency has occurred which
materially and adversely affects the secondary market for negotiable
certificates of deposit maintained by dealers of recognized standing or the interbank
eurodollar market, as the case may be, or (C) the effective cost to Bank of
funding a proposed CD Rate Segment or Euro-Rate Segment from a Corresponding
Source of Funds shall exceed the CD Rate or the Euro-Rate, as the case may be,
applicable to such Segment or (ii) at any time Bank shall have determined
in good faith (which determination shall be conclusive) that the making,
maintenance or funding of any part of the CD Rate Portion or Euro-Rate Portion
has been made impracticable or unlawful by compliance by Bank in good faith
with any Law or guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof or with any request or directive of any such Governmental Authority (whether
or not having the force of law); then, and in any such event, Bank may notify
Maker of such determination. Upon such
date as shall be specified in such notice (which shall not be earlier than the
date such notice is given) the obligation of Bank to allow Maker to select,
convert to or renew the CD Rate Option or the Euro-Rate Option, as the case may
be, shall be suspended until Bank shall have later notified Maker of Bank's
determination in good faith (which determination shall be conclusive) that the
circumstances giving rise to such previous determination no longer exist.
If
Bank notifies Maker of a determination under clause (ii) of this paragraph
3(c), the CD Rate Portion or the Euro-Rate Portion, as the case may be, shall
automatically be converted to the Prime Rate Option as of the date specified in
such notice (and accrued interest thereon shall be due and payable on such
date).
If
at the time Bank makes a determination under clause (i) or (ii) of this
paragraph 3(c) Maker previously has notified Bank that Maker wishes to select,
convert to or renew the CD Rate Option or the Euro-Rate Option, as the case may
be, but such Interest Rate Option has not yet gone into effect, such
notification shall be deemed to provide for selection of, conversion to or
renewal of the Prime Rate Option instead of the CD Rate Option or the Euro-Rate
Option, as the case may be.
(d)
Reimbursement for Increased Costs or
Reduced Return. If any
Law or guideline or interpretation or application thereof by any Governmental
Authority charged with the interpretation or administration thereof or
compliance with any request or directive of any Governmental Authority (whether
or not having the force of law) now existing or hereafter adopted (i) subjects
Bank to any tax or changes the basis of taxation with respect to this Note, the
Loan Agreement, the Loan or payments by Maker of principal, interest or other
amounts due from Maker hereunder or thereunder (except for taxes on the overall
net income or overall gross receipts of Bank imposed by the jurisdictions
(federal, state and local) in which Bank's principal office is located),
(ii) imposes, modifies or deems applicable any reserve, special deposit or
similar requirement against credits or commitments to extend credit extended
by, assets (funded or contingent) of, deposits with or for the account of, or
other acquisition of funds by, Bank (other than requirements expressly included
herein in the determination of the CD Rate or the Euro-Rate, as the case may
be, hereunder), (iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement against assets (funded or contingent) of, or
credits or commitments to extend credit extended by, Bank, or otherwise
applicable to the obligations of Bank under the Loan Agreement, or (iv) imposes
upon Bank any other condition or expense with respect to this Note, the Loan
Agreement or its making, maintenance or funding of any part of the Loan or any
security therefor, and the result of any of the foregoing is to increase the
cost to, reduce the income receivable by, or impose any expense (including loss
of margin) upon Bank or, in the case of clause (iii) above, any Person
controlling Bank, with respect to this Note, the Loan Agreement or the making,
maintenance or funding of any part of the Loan (or, in the case of any capital
adequacy or similar requirement, to have the effect of reducing the rate of
return on Bank's or such controlling Person's capital, taking into
consideration Bank's or such controlling Person's policies with respect to
capital adequacy) by an amount which Bank deems to be material (Bank being
deemed for this purpose to have made, maintained or funded each Segment from a
Corresponding Source of Funds), Bank may from time to time notify Maker of the
amount determined in good faith (using any averaging and attribution methods)
by Bank (which determination shall be conclusive) to be necessary to compensate
Bank for such increase, reduction or imposition. Such amount shall be due and payable by Maker
to Bank five Business Days after such notice is given.
(e)
Funding Breakage. In the event
that for any reason (i) Maker fails to convert or renew any part of the
Loan which would, after such conversion or renewal, have a Euro-Rate Portion,
after notice requesting such conversion or renewal has been given by the
Borrower (whether such failure results from failure to satisfy applicable
conditions to such conversion or renewal or otherwise), or (ii) any part
of Euro-Rate Segment of any Euro-Rate Portion become due (by acceleration or
otherwise), or is paid, prepaid or converted to another Interest Rate Option
(whether or not such payment, prepayment or conversion is mandatory or
automatic and whether or not such payment or prepayment is then due), on a day
other than the last day of the corresponding Euro-Rate Interest Period, Maker
shall indemnify Bank on demand against any loss, liability, cost or expense of
any kind or nature which Bank may sustain or incur in connection with or as a
result of such event. Such indemnification
in any event shall include an amount equal to the excess, if any, of
(x) the aggregate amount of interest which would have accrued on the
amount of the Euro-Rate Portion not so converted or renewed, or which so
becomes due, or which is so paid, prepaid or converted, as the case may be,
from and including the date on which such conversion or renewal would have been
made pursuant to such notice, or on which such part of such Euro-Rate Segment
so becomes due, or on which such part of such Euro-Rate Segment is so paid,
prepaid or converted, as the case may be, to the last day of the Euro-Rate
Interest Period applicable to such amount (or, in the case of a failure to
convert or renew, the Funding Period that would have been applicable to such
amount but for such failure), in each case at the applicable rate of interest
for such Euro-Rate Portion provided for herein, over (y) the aggregate
amount of interest (as determined in good faith by Bank) which would have
accrued on such amount for such period by placing such amount on deposit for
such period with leading banks in the interbank market. A certificate by the Bank as to any amount
that Bank is entitled to receive pursuant to this Section 3(e) shall be
conclusive if made in good faith.
Such Funding Breakage
Indemnity shall be due and payable on demand.
In addition, Maker shall, on the due date for payment of any Funding
Breakage Indemnity, pay to such Lender an additional amount equal to interest
on such Funding Breakage Indemnity from the Funding Breakage Date to but not
including such due date at the Prime Rate Option (calculated on the basis of a
year of 360 days and actual days elapsed).
The amount payable to Bank under this paragraph 3(e) shall be
determined in good faith by Bank, and such determination shall be conclusive.
4.
Interest Payment Dates. Interest hereunder shall be due and payable
on the first day of each calendar month after the date hereof. After maturity hereof (by acceleration or
otherwise), interest hereunder shall be due and payable on demand.
5.
Maturity. This Note shall mature on
, 19 (the "Initial Maturity
Date"); provided, however, that Maker shall, subject to the terms and
conditions set forth herein, (a) have the option (the "First Extension
Option") to extend the maturity hereof to
(the "First Extended Maturity Date") and (b) if the First Extension
Option has been duly exercised, have the option (the "Second Extension
Option") to extend the maturity hereof to
(the "Second Extended Maturity Date"). It is a condition to the exercise of each
Extension Option that (a) Maker shall have given Bank written notice of the
exercise of such Extension Option not less than 30 days and not more than 90
days prior to the Initial Maturity Date or the First Extended Maturity Date, as
the case may be, in each case accompanied by a nonrefundable extension fee of $ ,
(b) the Improvements shall have been completed in accordance with the
requirements of Section 5.01 of the Loan Agreement, (c) Maker shall have
complied with Sections 2.05 and 2.06 of the Loan Agreement, [(d) in the case of
the First Extension Option, the Project Debt Service Coverage Ratio for each of
the last full calendar months prior to the Initial
Maturity Date shall not be less than to
1] [here insert special conditions for the particular transaction],
[(e)] no Event of Default shall have occurred and be continuing either at
the time such Extension Option is exercised or on the Initial Maturity Date or
the First Extended Maturity Date, as the case may be, and [(f)] Maker
shall have delivered to Bank a written certification as to each of the
foregoing. On the Maturity Date the
entire unpaid principal balance hereof, together with accrued interest thereon,
shall become due and payable in full.
6.
Prepayments.
(a)
Optional. Maker shall have the right at its option to
prepay this Note in whole at any time or in part from time to time without
premium or penalty (subject to the provisions of paragraph 3(e) hereof).
(b)
Mandatory. Within fifteen days after the end of each
calendar month, Maker shall make a mandatory prepayment of principal on the
Loan in an amount equal to Project Cash Flow for such month remaining after
(i) payment of interest on the Loan accruing in such month and (ii) deduction
of the amount, if any, which must be retained to maintain Maker's working
capital at $ .
(c)
Notice of Prepayment. Maker shall give Bank not less than three
Business Days' prior notice of any prepayment permitted or required by this paragraph 6,
specifying the date of prepayment (which shall be a Business Day and, in the
case of a prepayment under paragraph 6(b), shall be within the time period
required for such prepayment), the total principal amount of such prepayment
and the principal amounts of the Prime Rate Portion and each part (which shall
be an entire Segment in the case of paragraph 6(a), but may be part of a
Segment to the extent necessary to comply with paragraph 6(b)) of the CD
Rate Portion and Euro-Rate Portion, as the case may be, to be prepaid. Such notice of prepayment having been given,
on the date specified in such notice, the Prime Rate Portion and each part of
the CD Rate Portion and the Euro-Rate Portion specified in such notice,
together with interest on each such principal amount to such date, shall be due
and payable. If Maker is required to
give notice of a prepayment under paragraph 6(b) hereof but for any reason
fails to do so, the amount as to which Maker is required to have given notice
of prepayment shall nevertheless be due and payable as of the date required to
have been prepaid.
7.
Payments. All payments (including prepayments) to be
made in respect of principal, interest or other amounts due from Maker
hereunder or under any other Loan Document shall be payable at 12:00 Noon,
Pittsburgh time, on the day when due.
Such payments shall be made to Bank at its office at One _____ Bank
Center, Pittsburgh, Pennsylvania 15258, in Dollars in funds immediately
available at such office without setoff, counterclaim or other deduction of any
nature. Any such payment received by
Bank after 12:00 Noon, Pittsburgh time, on any day shall be deemed to have been
received on the next succeeding Business Day.
Whenever any payment to be made under this Note or any other Loan
Document shall be stated to be due on a day which is not a Business Day, such
payment shall be made on the next following Business Day and such extension of
time shall be included in computing interest, if any, in connection with such
payment. To the extent permitted by law,
after there shall have become due (by acceleration or otherwise) interest or
any other amounts due from Maker hereunder or under any other Loan Document,
such amounts shall bear interest for each day until paid (before and after judgment),
payable on demand, at the Default Rate.
8.
Late Charge. In the event that any installment of
interest, principal, principal and interest or escrow deposit shall become
overdue for a period in excess of ten days, a "late charge" in the
amount of 4% of such overdue installment shall be paid by Maker to Bank, which
"late charge" shall be payable on demand. This charge shall be in addition to, and not
in lieu of, any other remedy Bank may have and is in addition to any reasonable
fees and charges of any agents or attorneys which Bank is entitled to employ on
any default hereunder, whether authorized herein, or by law.
9.
Default. If an Event of Default shall occur Bank may
accelerate the indebtedness evidenced hereby in accordance with the provisions
of the Mortgage and the Loan Agreement and may exercise the other rights and
remedies provided it in the Mortgage, the Loan Agreement and the other Loan
Documents, as well as those it may have at law or in equity.
10.
Miscellaneous. This Note evidences the Loan and all other
amounts payable by Maker hereunder or under any other Loan Document. This Note is the "Note" referred to
in, and is entitled to the benefits of, the Loan Agreement and the Mortgage,
which among other things provide for the acceleration of the maturity hereof
upon the occurrence of certain events and for prepayments in certain
circumstances and upon certain terms and conditions. This Note is secured by and is entitled to
the benefits of the Mortgage and the other Loan Documents.
The
unpaid principal amount of this Note, the unpaid interest accrued hereon, the
interest rate or rates applicable to such unpaid principal amount and the
duration of such applicability shall at all times be ascertained from the
records of Bank, which shall be conclusive absent manifest error.
Maker
hereby expressly waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, the Loan Agreement, the Mortgage and the
other Loan Documents, and an action for amounts due hereunder or thereunder
shall immediately accrue.
All
notices, requests, demands, directions and other communications (collectively,
"notices") under the provisions hereof shall be in writing (including
telexed communication) unless otherwise expressly permitted hereunder, shall be
sent as provided in the Mortgage and shall be effective when received. Bank may rely on any notice (including
telephoned communication) purportedly made by or on behalf of Maker, and shall
have no duty to verify the identity or authority of the person giving such
notice.
If
this Note is placed in the hands of an attorney at law for collection by reason
of default on the part of Maker, Maker hereby agrees to pay to Bank in addition
to the sums stated above, the reasonable costs of collection, including a
reasonable sum as attorneys' fees.
This
Note may not be amended, modified or supplemented orally.
If
any term or provision of this Note or the application thereof to any Person or
circumstance shall to any extent be invalid or unenforceable, the remainder of
this Note, or the application of such term or provision to Persons or
circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Note shall
be valid and enforceable to the fullest extent permitted by law.
This
Note shall be governed by, and construed and enforced in accordance with, the
laws of the Commonwealth of Pennsylvania.
This
obligation shall bind Maker and its successors and assigns, and the benefits
hereof shall inure to Bank and its successors and assigns.
[The
liability of the partners of Maker for the obligations of Maker hereunder shall
be limited as provided in Section 5.16 of the Mortgage.]
[UPON
THE OCCURRENCE OF AN EVENT OF DEFAULT, MAKER HEREBY EMPOWERS ANY ATTORNEY OF
ANY COURT OF RECORD WITHIN THE UNITED STATES OF AMERICA, OR ELSEWHERE, TO
APPEAR FOR MAKER AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A
SERIES OF JUDGMENTS, AGAINST MAKER IN FAVOR OF ANY HOLDER HEREOF, AS OF ANY
TERM, FOR THE UNPAID BALANCE OF THE PRINCIPAL AMOUNT OF THIS NOTE AND OTHER
SUMS PAYABLE BY MAKER UNDER THE LOAN DOCUMENTS, TOGETHER WITH UNPAID INTEREST
ON SAID PRINCIPAL AMOUNT AND SAID OTHER SUMS AT THE RATE PROVIDED IN THIS NOTE,
COSTS OF SUIT AND OTHER EXPENSES IN CONNECTION THEREWITH, TOGETHER WITH AN
ATTORNEY’S REASONABLE COMMISSION FOR COLLECTION, ON WHICH JUDGMENT OR JUDGMENTS
ONE OR MORE EXECUTIONS MAY ISSUE FORTHWITH; PROVIDED THAT SUCH JUDGMENTS MAY BE
USED BY SUCH HOLDER ONLY IN AID OF EXECUTION ON THE MORTGAGED PROPERTY. MAKER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND
STATES THAT IT HAS BEEN REPRESENTED BY COUNSEL.
NOTE: THE FOREGOING PROVISO SHOULD BE USED FOR ALL
IN
WITNESS WHEREOF, Maker has duly executed and delivered this Note as of the date
first above written.
[NAME OF BORROWER]
By
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