EXHIBIT 4.3
[FORM OF NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR
THEIR AGENTS FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A
NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE. BENEFICIAL
INTERESTS IN THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE INDENTURE.]/1/
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT, EXCEPT (A)(I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
PURSUANT TO AN EXEMPTION (IF AVAILABLE) FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER OR (III) IN A TRANSACTION OUTSIDE OF THE
UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT AND (B)
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION OF THE
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UNITED STATES. THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUERS
THAT THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE.
THIS NOTE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER UNLESS THE
REGISTRAR OR TRANSFER AGENT IS SATISFIED THAT THE RESTRICTIONS ON TRANSFER SET
FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE INDENTURE.]/2/
[THIS NOTE WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A
GLOBAL NOTE UNLESS THE HOLDER OF THIS NOTE, SUBSEQUENT TO SUCH EXCHANGE, WILL
HOLD A MINIMUM AGGREGATE BENEFICIAL INTEREST IN THE GLOBAL NOTE OF AT LEAST ONE
HUNDRED THOUSAND DOLLARS ($100,000).]/3/
[THIS NOTE IS A REGULATION S TEMPORARY GLOBAL NOTE WITHIN THE MEANING OF
THE INDENTURE REFERRED TO HEREINAFTER. INTERESTS IN THIS REGULATION S TEMPORARY
GLOBAL NOTE MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE REGULATION S RESTRICTED
PERIOD (AS DEFINED IN THE INDENTURE), AND NO TRANSFER OR EXCHANGE OF AN INTEREST
IN THIS REGULATION S TEMPORARY GLOBAL NOTE MAY BE MADE FOR AN INTEREST IN THE
RESTRICTED GLOBAL NOTE OR IN THE UNRESTRICTED GLOBAL NOTE UNTIL AFTER THE LATER
OF THE DATE OF TERMINATION OF THE REGULATION S RESTRICTED PERIOD AND THE DATE ON
WHICH THE OWNER SECURITIES CERTIFICATION AND THE DEPOSITARY SECURITIES
CERTIFICATION RELATING TO SUCH INTEREST HAVE BEEN PROVIDED IN ACCORDANCE WITH
THE TERMS OF THE INDENTURE, TO THE EFFECT THAT THE BENEFICIAL OWNER OR OWNERS OF
SUCH INTEREST ARE NOT U.S. PERSONS.]/4/
[THIS IS ONE OF THE "NOTES" REFERRED TO AND DEFINED IN THAT CERTAIN
CONSOLIDATION AND SPLITTING AGREEMENT OF EVEN DATE HEREWITH BETWEEN LOCKPORT
L.L.C. AND XXXXX (THE "LOCKPORT CONSOLIDATION AGREEMENT") AND THAT CERTAIN
CONSOLIDATION AND SPLITTING AGREEMENT OF EVEN DATE HEREWITH BETWEEN SOONER
FASHION MALL L.L.C. AND XXXXX (THE "SOONER CONSOLIDATION AGREEMENT" AND TOGETHER
WITH THE LOCKPORT CONSOLIDATION AGREEMENT HEREINAFTER REFERRED TO AS THE
"CONSOLIDATION AND SPLITTING AGREEMENTS").]
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Series [ ]/5/ Fixed Rate Note
No. R-____ [CUSIP No.________]
U.S.$__________________
The thirteen entities identified on Exhibit A hereto (herein called the
"Issuers"), for value received, hereby promise to pay in lawful currency of the
United States of America to _____________/6/, or registered assigns, the
principal sum of ______________ Million Dollars (U.S.$____,000,000) as provided
in the Indenture, and to pay interest thereon in arrears on the 15th day of each
month, commencing December 15, 1997 (each an "Interest Payment Date"), from the
date hereof until the principal hereof is paid or made available for payment,
provided, however, that if any Interest Payment Date is not a Business Day, the
Interest Payment Date shall be the next succeeding Business Day, without
additional interest. The interest payable on this Note for the period from the
date of issuance to, but not including, the Maturity Date shall be [ ]%/7/ per
annum. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such Interest Payment Date,
which shall be the fifth (5th) Business Day next preceding such Interest Payment
Date. Interest shall be calculated on the basis of twelve 30-day Interest
Periods (as defined in the Indenture). If, for any reason, interest on any Note
is not paid on or prior to the Interest Payment Date on which such interest is
due, or the principal of any Note is not repaid on or prior the Maturity Date
applicable to such Note, the Issuers will be required to pay Default Interest as
set forth in Section 3.11(b) of the Indenture. Upon default by the Issuers, in
the payment of interest on principal on the Notes, such interest and Default
Interest payable in connection therewith shall forthwith cease to be payable to
the Holder on such Regular Record Date, and Default Interest will instead be
paid to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such Default Interest to be fixed by the Trustee, notice whereof shall be given
to Holders not less than five (5) Business Days prior to such Special Record
Date, all as more fully provided in the Indenture. Payment of the principal of
this Note will be payable against surrender thereof at the office or agency of
the Issuers maintained for that purpose in the Borough of Manhattan, the City of
New York, by wire or by check mailed on or before the due date for such payment
to the Person entitled thereto at such Person's address appearing on the
Register or to such other address as the registered Holder shall provide in
writing at the time of such surrender. All capitalized terms used but not
defined herein shall have the meanings specified in the Indenture.
If an Event of Default specified in Section 5.1(4) or 5.1(5) of the
Indenture occurs and is continuing, the amounts specified in the next sentence
shall automatically become and be due and payable immediately without any action
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whatsoever on the part of the Trustee, the Servicer or the Holders. If an Event
of Default specified in Section 5.1(1), 5.1(2), 5.1(3) or 5.1(6) (other than an
Event of Default which arises thereunder solely by virtue of the occurrence of
an Event of Default arising under Section 5.1(4) or Section 5.5(5) of the
Indenture) of the Indenture occurs and is continuing, then in every such case
the Trustee may and at the direction of the Holders of not less than 66 2/3% in
aggregate principal amount of the Outstanding Notes shall, by a notice in
writing to the Issuers and the Servicer, declare the sum of (i) the principal
amount of this Note and (ii) any other amounts, including, but not limited to
accrued interest, Additional Amounts, if any, and Make-Whole Payments, if any,
payable to the Holder under this Note, to the extent such amounts are permitted
by law to be paid, to be due and payable immediately, and upon any such
declaration such amounts shall become immediately due and payable.
This Note is one of a duly authorized issue of securities of the Issuers
(herein called the "Notes") designated as specified in the title hereof, issued
and to be issued in accordance with the Indenture and Servicing Agreement, dated
as of November 25, 1997 (herein called the "Indenture"), among the Issuers,
LaSalle National Bank, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and Midland Loan Services,
L.P., as Servicer, copies of which Indenture are on file and available for
inspection at the corporate trust office of the Trustee in Chicago, Illinois.
Reference is hereby made to the Indenture and all indentures supplemental
thereto for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Issuers, the Trustee, the Principal Paying
Agent and the Holders of the Notes.
The Holder of this Note may receive payment in respect of principal
and interest only as provided in the Indenture.
This Note is subject to mandatory redemption, in whole or in part, on any
Interest Payment Date (i) upon certain events of casualty or condemnation with
respect to the Mortgaged Properties, (ii) at the option of the Trustee upon a
change in laws governing taxation of any Mortgage, and (iii) upon the
determination that the rate of interest on this Note is usurious under
applicable law. The Redemption Price of this Note under such circumstances shall
be equal to 100% of the principal amount, together with accrued and unpaid
interest and Additional Amounts, if any, to the Redemption Date, but without any
Make-Whole Payment of penalty. This Note is also redeemable, at the option of
the Issuers, on any Interest Payment Date, (i) in whole or in part, at a
Redemption Price equal to 100% of the principal amount to be redeemed, together
with accrued and unpaid interest and Additional Amounts, if any, to the
Redemption Date and Make-Whole Payment, if any, and (ii) in whole if held by a
United States Alien upon an amendment to or change in the laws of the United
States or a political subdivision thereof resulting in the Issuers becoming
obligated, pursuant to the
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Indenture, to pay Additional Amounts at a Redemption Price equal to 100% of the
principal amount to be redeemed, together with accrued and unpaid interest and
Additional Amounts, if any, to the Redemption Date, but without any Make-Whole
Payment or penalty.
Notice of redemption of any Notes will be given no later than fifteen (15)
days prior to the proposed Redemption Date for such Notes. Such notice shall
specify, among other things, the Redemption Date, the Redemption Price and (if
less than all Notes are to be redeemed) the principal amount of the Notes to be
redeemed.
In the event that this Note is redeemed in part only, a New Note for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
As more fully described in the Indenture and the Mortgage, this Note is
secured by the Collateral. The Indenture constitutes a security agreement under
the Uniform Commercial Code as in effect in each state where property which is a
part of the Collateral is located and the Payment Account, the Holdover Account
and any other similar account established by the Trustee or the Servicer in
furtherance of its rights or responsibilities under this Indenture or any other
Security Document are located. Upon the occurrence of any Event of Default, the
Trustee shall have all rights and remedies in respect of the Collateral of a
secured party on default under the Uniform Commercial Code to enforce the
assignments and security interests contained in the Indenture and the Mortgage
and under applicable law.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof or the modification of the rights and obligations of the
Issuers and the rights of the Holders of the Notes under the Indenture at any
time by the Issuers and the Trustee with the consent of the Holders of not less
than 66 2/3% in aggregate principal amount of the Notes at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Holders of all the Notes, to waive compliance by the Issuers
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consents or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
As provided in the Indenture and subject to the limitations therein set
forth, the transfer of this Note is registrable in the Register, upon surrender
of this Note for registration of transfer at the office or agency of the Trustee
in the Borough of
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Manhattan, the City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuers and the Registrar
duly executed by, the Holder hereof or his or her attorney duly authorized in
writing, and thereupon one or more New Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
This Note may not be exchanged for Notes in bearer form. The Notes issued
are issuable only in registered form without coupons in authorized denominations
of $100,000 and integral multiples of $1,000 in excess thereof.
Prior to due presentation of this Note for registration of transfer, the
Issuers, the Trustee and any agent of any Issuer or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof, for all
purposes, whether or not this Note be overdue, and neither any Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The agreements contained herein shall remain in full force and effect
notwithstanding any changes in the shareholders or other equity owners of, or
the officers and directors relating to, any Issuer, and the term "Issuers" as
used herein, shall include any alternate or successor Person, but any
predecessor Person shall not be relieved of any liability hereunder except as
provided in Article XIV of the Indenture.
The Issuers and all others who may become liable for the payment of all or
any part of the amounts due under this Note do hereby severally waive
presentment and demand for payment, notice of dishonor, protest, notice of
protest and non-payment and all other notices of any kind, except those
expressly required under the Indenture and the other Security Documents. No
notice to or demand on any Issuer or any other Person shall be deemed to be a
waiver of the obligation of any Issuer or the right of the Trustee, on behalf of
the Holders, to take further action without notice or demand as permitted in
this Note, the Indenture and the other Security Documents.
It is not intended that, and none of the terms and conditions of the
Indenture, the Mortgage or the other Security Documents shall ever be construed
to create a contract whereby, any Issuer or any guarantor, endorser or other
party now or hereafter becoming liable for payment of this Note shall be
required to pay interest on this Note at a rate in excess of the maximum
interest that may be lawfully charged under applicable law. If the Notes, the
Mortgage or any other Security Document would otherwise be usurious under
applicable law, the terms of Article 48 of the Mortgage shall govern.
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The representations, undertakings, covenants and agreements of the Issuers
contained in the Indenture are those of the Issuers only and not of the Trustee
and the Trustee will have no liability with respect thereto.
As provided in Section 1.14 of the Indenture, this Note is a non-recourse
obligation of the Issuers payable only from and secured only by the Collateral.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
[The remainder of this page was intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be duly
executed.
Dated:
--------- ---, -----
SIGNATURE BLOCKS FOR ISSUERS TO
COME
By:
---------------------------
Name:
Title:
This Note is one of the Notes referred
to in the above-mentioned Indenture.
LaSalle National Bank, as Trustee
By:
---------------------------
Name:
Title:
/1/ Insert if the Note is a Global Note.
/2/ Insert if the Note is a Restricted Note.
/3/ Intentionally deleted.
/4/ Insert if the Note is a Regulation S Temporary Global Note.
/5/ Insert the applicable letter and number designation for the Series of which
this note is a part.
/6/ Insert "Cede & Co." if the Note is a Global Note.
/7/ Insert the interest rate applicable to the Series of which this Note is a
part.
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Repayments of Principal, Make-Whole Payments, if any, and
Transfers Affecting the Note
(Initial Principal Balance on ________ __, ____: $_____)
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Amount of Repayment or
Transfer To or From Amount of Make-Whole Date of Repayment or Balance After Repayment Notation Made
Another Note Payment, if any Transfer or Transfer By:
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