PROMISSORY NOTE
EXHIBIT
10.19
| Loan No.: 502858289 |
Xxxxxxx Xxxxx
|
$27,500,000.00
as of
December 20, 2006
FOR VALUE
RECEIVED, the undersigned, LVP OAKVIEW STRIP CENTER LLC, a
Delaware limited liability company (Borrower”), having
an address c/o The
Lightstone Group, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000,
jointly
and severally promises
to pay to the order of WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association (together with its successors and assigns, “Lender”), at
the office of Lender at Commercial Real Estate Services, 0000 Xxxxxxxx Xxxxx XXX
- 0, XX 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other place as Lender
may designate to Borrower in writing from time to time, the principal sum of
TWENTY-SEVEN MILLION FIVE HUNDRED THOUSAND AND 00/100
DOLLARS ($27,500,000.00),
together with interest on so much thereof as is from time to time outstanding
and unpaid, from the date of the advance of the principal evidenced hereby, at
the rate of five and forty-nine hundredths percent (5.49%) (the “Note Rate”),
together with all other amounts due hereunder or under the other Loan Documents
(as defined herein), in lawful money of the United States of America, which
shall at the time of payment be legal tender in payment of all debts and dues,
public and private.
ARTICLE I
TERMS AND
CONDITIONS
Section
1.1 Computation of
Interest.
Interest shall be computed hereunder based on a 360-day year and based on the
actual number of days elapsed for any period in which interest is being
calculated, including, without limitation, the Interest Only Period (hereinafter
defined), as more particularly set forth on Schedule A attached hereto and
incorporated herein by reference. Interest shall accrue from the date on which
funds are advanced hereunder (regardless of the time of day) through and
including the day on which funds are credited pursuant to Section 1.2
hereof.
Section
1.2 Payment of Principal and
Interest.
Payments in federal funds immediately available at the place designated for
payment received by Lender prior to 2:00 p.m. eastern time on a day on which
Lender is open for business at said place of payment shall be credited prior to
close of business, while other payments, at the option of Lender, may not be
credited until immediately available to Lender in federal funds at the place
designated for payment prior to 2:00 p.m. eastern time on the next day on which
Lender is open for business. A payment in interest only, based on the payments
set forth on Schedule A annexed hereto, shall be made beginning on February 11,
2007 (the "First Payment Date"), and continuing on the eleventh day of each and
every calendar month thereafter (each, an "Interest Only Payment Date") through
and including January 11, 2012 (each, an "Interest Only Payment") (such period
being referred to herein as the "Interest Only Period"). Commencing on February
11, 2012 and continuing thereafter on the eleventh day of each and every
calendar month thereafter through and including December 11, 2016 (each,
together with each Interest Only Payment Date is hereinafter collectively a
"Payment Date"), principal and interest shall be payable in equal consecutive
monthly installments of $155,969.48 each. On January 11, 2017 (the "Maturity
Date"), the entire outstanding principal balance hereof, together with all
accrued but unpaid interest thereon, shall be due and payable in
full.
Section
1.3 Application of
Payments. So long
as no Event of Default (as hereinafter defined) exists hereunder or under any
other Loan Document (as hereinafter defined), each such monthly installment
shall be applied, first, to any amounts hereafter advanced by Lender hereunder
or under any other Loan Document, second, to any late fees and other amounts
payable to Lender, third, to the payment of accrued interest and last to
reduction of principal.
Section
1.4 Payment of “Short
Interest”. If the
advance of the principal amount evidenced by this Note is made on a date other
than a Payment Date, Borrower shall pay to Lender contemporaneously with the
execution hereof interest at the Note Rate for a period from the date hereof
through and including the tenth (10th) day of
either (x) this month, in the event that the date hereof is on or prior to the
11th of the month, and (y) the immediately succeeding month, in the event that
the date hereof is after the 11th of the
month.
Section
1.5 Prepayment;
Defeasance.
(a) This Note
may not be prepaid, in whole or in part (except as otherwise specifically
provided herein), at any time prior to the Payment Date occurring two (2)
Payment Dates immediately prior to the Maturity Date (the “Lockout Expiration
Date”). In
the event that Xxxxxxxx wishes to have the Property (as defined in the Security
Instrument) released from the lien of the Security Instrument (as hereinafter
defined) prior to the Lockout Expiration Date, Borrower’s sole option shall be a
Defeasance (as hereinafter defined) upon satisfaction of the terms and
conditions set forth in Section
1.5(d) hereof.
Notwithstanding anything contained in this Note or any of the other Loan
Documents to the contrary, this Note may be prepaid in whole but not in part
without premium or penalty on any Payment Date (subject to the proviso below)
occurring from and after the Lockout Expiration Date provided (i) written notice
of such prepayment is received by Lender not more than ninety (90) days and not
less than thirty (30) days prior to the date of such prepayment, and (ii) such
prepayment is accompanied by all interest accrued hereunder through the date of
such prepayment and all other sums due hereunder or under the other Loan
Documents; provided, however, that if such prepayment is received on a day that
is not a Payment Date, Borrower shall pay interest on the outstanding principal
balance hereof immediately preceding such prepayment at the Note Rate for a
period from the date of such payment through and including the tenth (10th) day
of either (x) the month in which the prepayment occurs if such payment is made
prior to the 11th day of such month, and (y) the immediately succeeding month in
which the prepayment occurs if such payment is made after the 11th day of such
month. If, upon any such permitted prepayment on any Payment Date occurring on
or after the Lockout Expiration Date, the aforesaid prior written notice has not
been timely received by Lender, there shall be due a prepayment fee equal to the
lesser of (i) thirty (30) days’ interest computed at the Note Rate on the
outstanding principal balance of this Note so prepaid and (ii) interest computed
at the Note Rate on the outstanding principal balance of this Note so prepaid
that would have been payable for the period from, and including, the date of
prepayment through the Maturity Date, as though such prepayment had not
occurred.
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(b) If, prior
to the Lockout Expiration Date, the indebtedness evidenced by this Note shall
have been declared due and payable by Lender pursuant to Article II hereof or
the provisions of any other Loan Document due to an Event of Default by
Borrower, then, in addition to the indebtedness evidenced by this Note being
immediately due and payable, there shall also then be immediately due and
payable a prepayment fee in an amount equal to the Yield Maintenance Premium (as
hereinafter defined) based on the entire indebtedness on the date of such
acceleration. In addition to the amounts described in the preceding sentence, in
the event of any such acceleration or tender of payment of such indebtedness
occurs or is made on or prior to the first (1st) anniversary of the date of this
Note, there shall also then be immediately due and payable an additional
prepayment fee of three percent (3%) of the principal balance of this Note. The
term “Yield Maintenance
Premium” shall
mean an amount equal to the greater of (A) two percent (2.0%) of the principal
amount being prepaid, and (B) the present value of a series of payments each
equal to the Payment Differential (as hereinafter defined) and payable on each
Payment Date over the remaining original term of this Note and on the Maturity
Date, discounted at the Reinvestment Yield (as hereinafter defined) for the
number of months remaining as of the date of such prepayment to each such
Payment Date and the Maturity Date. The term “Payment
Differential” shall
mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided
by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under
this Note after application of the constant monthly payment due under this Note
on the date of such prepayment, provided that the Payment Differential shall in
no event be less than zero. The term “Reinvestment
Yield” shall
mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue
(primary issue) with a maturity date closest to the Maturity Date, or (ii) the
yield on the U.S. Treasury issue (primary issue) with a term equal to the
remaining average life of the indebtedness evidenced by this Note, with each
such yield being based on the bid price for such issue as published in the Wall
Street Journal on the date that is fourteen (14) days prior to the date of such
prepayment (or, if such bid price is not published on that date, the next
preceding date on which such bid price is so published) and converted to a
monthly compounded nominal yield. In the event that any prepayment fee is due
hereunder, Xxxxxx shall deliver to Borrower a statement setting forth the amount
and determination of the prepayment fee, and, provided that Lender shall have in
good faith applied the formula described above, Borrower shall not have the
right to challenge the calculation or the method of calculation set forth in any
such statement in the absence of manifest error, which calculation may be made
by Lender on any day during the fifteen (15) day period preceding the date of
such prepayment. Lender shall not be obligated or required to have actually
reinvested the prepaid principal balance at the Reinvestment Yield or otherwise
as a condition to receiving the prepayment fee.
(c) Partial
prepayments of this Note shall not be permitted, except for partial prepayments
resulting from Xxxxxx’s election to apply insurance or condemnation proceeds to
reduce the outstanding principal balance of this Note as provided in the
Security Instrument, in which event no prepayment fee or premium shall be due
unless, at the time of either Xxxxxx’s receipt of such proceeds or the
application of such proceeds to the outstanding principal balance of this Note,
an Event of Default exists, which Event of Default is unrelated to the
applicable casualty or condemnation, in which event the applicable prepayment
fee or premium shall be due and payable based upon the amount of the prepayment.
No notice of prepayment shall be required under the circumstances specified in
the preceding sentence. No principal amount repaid may be reborrowed. Any such
partial prepayments of principal shall be applied to the unpaid principal
balance evidenced hereby but such application shall not reduce the amount of the
fixed monthly installments required to be paid pursuant to Section 1.2 above.
Except as otherwise expressly provided in this Section, the prepayment fees
provided above shall be due, to the extent permitted by applicable law, under
any and all circumstances where all or any portion of this Note is paid prior to
the Maturity Date, whether such prepayment is voluntary or involuntary,
including, without limitation, if such prepayment results from Lender’s exercise
of its rights upon the occurrence of an Event of Default and acceleration of the
Maturity Date of this Note (irrespective of whether foreclosure proceedings have
been commenced), and shall be in addition to any other sums due hereunder or
under any of the other Loan Documents. No tender of a prepayment of this Note
with respect to which a prepayment fee is due shall be effective unless such
prepayment is accompanied by the applicable prepayment fee.
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(d) i) On any
Payment Date on or after the earlier to occur of (x) three (3) years following
the first Payment Date hereunder, and (y) the day immediately following the date
which is two (2) years after the “startup day,” within the meaning of Section
860G(a) (9) of the Internal Revenue Code of 1986, as amended from time to time
or any successor statute (the “Code”), of a
“real estate mortgage investment conduit,” within the meaning of Section 860D of
the Code (a “REMIC
Trust”), that
holds this Note, and provided no Event of Default has occurred and is continuing
hereunder or under any of the other Loan Documents, at Borrower’s option, Lender
shall cause the release of the Property from the lien of the Security Instrument
and the other Loan Documents (a “Defeasance”) upon
the satisfaction of the following conditions:
(A) Borrower
shall give not more than ninety (90) days’ or less than thirty (30) days’ prior
written notice to Lender specifying the date Borrower intends for the Defeasance
to be consummated (the “Release
Date”), which
date shall be a Payment Date.
(B) All
accrued and unpaid interest and all other sums due under this Note and under the
other Loan Documents up to and including the Release Date shall be paid in full
on or prior to the Release Date.
(C) Borrower
shall deliver to Lender on or prior to the Release Date:
(1) a sum of
money in immediately available funds (the “Defeasance
Deposit”) which
shall be sufficient to enable Lender to purchase, through means and sources
customarily employed and available to Lender, or at the election of Borrower to
enable a third party defeasance company selected by Borrower and reasonably
acceptable to Lender to purchase on behalf of Lender, for the account of
Borrower, (x) direct, non-callable, fixed rate obligations of the United States
of America or (y) non-callable, fixed rate obligations, other than U.S. Treasury
Obligations, that are “government securities” within the meaning of Section
2(a)(16) of the Investment Company Act of 1940, as amended, that provide for
payments prior, but as close as possible, to all successive monthly Payment
Dates occurring after the Release Date and to the Lockout Expiration Date, with
each such payment being equal to or greater than the amount of the corresponding
installment of principal and/or interest required to be paid under this Note
(including, but not limited to, the scheduled outstanding principal balance of
the Loan due on the Maturity Date based upon payments of principal and interest
through the Lockout Expiration Date) for the
balance of the
term hereof (the “Defeasance
Collateral”), each
of which shall be duly endorsed by the holder thereof as directed by Xxxxxx or
accompanied by a written instrument of transfer in form and substance
satisfactory to Lender in its sole discretion (including, without limitation,
such instruments as may be required by the depository institution holding such
securities or the issuer thereof, as the case may be, to effectuate book-entry
transfers and pledges through the book-entry facilities of such institution) in
order to perfect upon the delivery of the Defeasance Security Agreement (as
hereinafter defined) the first priority security interest in the Defeasance
Collateral in favor of Lender in conformity with all applicable state and
federal laws governing granting of such security interests.
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(2) a pledge
and security agreement, in form and substance reasonably satisfactory to Lender,
creating a first priority security interest in favor of Lender in the Defeasance
Collateral (the “Defeasance Security
Agreement”);
(3) a
certificate of Borrower certifying that all of the requirements set forth in
this subsection 1.5(d)(i) have been satisfied or waived;
(4) one or
more opinions of counsel for Borrower in form and substance and delivered by
counsel which would be reasonably satisfactory to Lender stating, among other
things, that (i) Xxxxxx has a perfected first priority security interest in the
Defeasance Collateral and that the Defeasance Security Agreement is enforceable
against Borrower in accordance with its terms (subject to creditors rights and
bankruptcy), (ii) in the event of a bankruptcy proceeding or similar occurrence
with respect to Borrower, none of the Defeasance Collateral nor any proceeds
thereof will be property of Borrower’s estate under Section 541 of the U.S.
Bankruptcy Code, as amended, or any similar statute and the grant of security
interest therein to Lender shall not constitute an avoidable preference under
Section 547 of the U.S. Bankruptcy Code, as amended, or applicable state law,
(iii) the release of the lien of the Security Instrument and the pledge of
Defeasance Collateral will not directly or indirectly result in or cause any
REMIC Trust that then holds this Note to fail to maintain its status as a REMIC
Trust and (iv) the defeasance will not cause any REMIC Trust to be an
“investment company” under the Investment Company Act of 1940;
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(5) evidence
in writing from any applicable Rating Agency (as defined in the Security
Instrument) to the effect that the Defeasance will not result in a downgrading,
withdrawal or qualification of the respective ratings in effect immediately
prior to such Defeasance for any Securities (as hereinafter defined) issued in
connection with the securitization which are then outstanding; provided,
however, no
evidence from a Rating Agency shall be required if this Note does not meet the
then-current review requirements of such Rating Agency.
(6) a
certificate in form and scope acceptable to Lender in its reasonable discretion
from an independent accountant reasonably acceptable to Lender certifying that
the Defeasance Collateral will generate amounts sufficient to make all payments
of principal and interest due under this Note (including the scheduled
outstanding principal balance of the Loan due on the Maturity
Date);
(7) Borrower
and any guarantor or indemnitor of Borrower’s obligations under the Loan
Documents for which Borrower has personal liability executes and delivers to
Lender such documents and agreements as Lender shall reasonably require to
evidence and effectuate the ratification of such personal liability and guaranty
or indemnity, respectively for any acts, omissions, liabilities or obligations
arising on or prior to the Release Date;
(8) such
other certificates, documents or instruments as Lender may reasonably require;
and
(9) payment
of all reasonable fees, costs, expenses and charges actually incurred by Xxxxxx
in connection with the Defeasance of the Property and the purchase of the
Defeasance Collateral, including, without limitation, all reasonable legal fees
and costs and expenses incurred by Lender or its agents in connection with
release of the Property, review of the proposed Defeasance Collateral and
preparation of the Defeasance Security Agreement and related documentation, any
revenue, documentary, stamp, intangible or other taxes, charges or fees due in
connection with transfer of the Note, assumption of the Note, or substitution of
collateral for the Property shall be paid on or before the Release Date. Without
limiting Borrower’s obligations with respect thereto, Lender shall be entitled
to deduct all such fees, costs, expenses and charges from the Defeasance Deposit
to the extent of any portion of the Defeasance Deposit which exceeds the amount
necessary to purchase the Defeasance Collateral.
(D) In
connection with the Defeasance Deposit, unless Borrower shall make satisfactory
arrangements with a third party provider reasonably acceptable to Xxxxxx,
Borrower hereby authorizes and directs Lender using the means and sources
customarily employed and available to Lender to use the Defeasance Deposit to
purchase for the account of Borrower the Defeasance Collateral. Furthermore, the
Defeasance Collateral shall be arranged such that payments received from such
Defeasance Collateral shall be paid directly to Lender to be applied on account
of the indebtedness of this Note. Any part of the Defeasance Deposit in excess
of the amount necessary to purchase the Defeasance Collateral and to pay the
other and related costs Borrower is obligated to pay under this Section
1.5 shall be
promptly refunded to Borrower.
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(ii) Upon
compliance with the requirements of subsection 1.5(d)(i), the entire Property,
shall be released from the lien of the Security Instrument and the other Loan
Documents, and the Defeasance Collateral shall constitute collateral which shall
secure this Note, and all other obligations under the Loan Documents. Lender
will, at Xxxxxxxx’s expense, execute and deliver any agreements reasonably
requested by Borrower to release the lien of the Security Instrument from the
Property.
(iii) Upon the
release of the Property in accordance with this Section
1.5(d),
Borrower shall assign all its obligations and rights under this Note, together
with the pledged Defeasance Collateral, to a newly created successor entity
which complies with the terms of Section
2.29 of the
Security Instrument designated by
Lender in its sole discretion. Such successor entity shall execute an assumption
agreement in form and substance satisfactory to Lender in its sole discretion
pursuant to which it shall assume Borrower’s obligations under this Note and the
Defeasance Security Agreement. As conditions to such assignment and assumption,
Borrower shall (x) deliver to Lender an opinion of counsel in form and substance
satisfactory to a prudent lender and delivered by counsel satisfactory to a
prudent lender stating, among other things, that such assumption agreement is
enforceable against Borrower and such successor entity in accordance with its
terms and that this Note and the Defeasance Security Agreement as so assumed,
are enforceable against such successor entity in accordance with their
respective terms, and (y) pay all costs and expenses (including, but not limited
to, legal fees) incurred by Lender or its agents in connection with such
assignment and assumption (including, without limitation, the review of the
proposed transferee and the preparation of the assumption agreement and related
documentation). Upon an assumption of the Note in case of full defeasance,
Borrower and any guarantor shall be relieved of its obligations hereunder, under
the other Loan Documents other than as specified in Section
1.5(d)(i)(C)(7) above
and under the Defeasance Security Agreement (or other Defeasance
document).
Section
1.6 Security. The
indebtedness evidenced by this Note and the obligations created hereby are
secured by, among other things, that certain deed of trust of even date herewith
(the “Security Instrument”). The Security Instrument, together with this Note
and all other documents to or of which Xxxxxx is a party or beneficiary now or
hereafter evidencing, securing, guarantying, modifying or otherwise relating to
the indebtedness evidenced hereby, are herein referred to collectively as the
“Loan Documents”. All terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Security Instrument. All of the terms and
provisions of the Loan Documents are incorporated herein by reference. Some of
the Loan Documents are to be filed for record on or about the date hereof in the
appropriate public records.
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ARTICLE II
DEFAULT
Section
2.1 Events of
Default. It is
hereby expressly agreed that should any default occur in the payment of
principal or interest as stipulated above and such payment is not made on the
date such payment is due, or should any other default occur under any other Loan
Document and not be cured within any applicable grace, cure or notice period (if
any), then an Event of Default (an “Event of
Default”) shall
exist hereunder, and in such event the indebtedness evidenced hereby, including
all sums advanced or accrued hereunder or under any other Loan Document, and all
unpaid interest accrued thereon, shall, at the option of Lender and without
notice to Borrower, at once become due and payable and may be collected
forthwith, whether or not there has been a prior demand for payment and
regardless of the stipulated date of maturity.
Section
2.2 Late
Charges. In the
event that any payment (other than the final payment due on the Maturity Date)
is not received by Lender on the date when due (subject to any applicable grace
period), then, in addition to any default interest payments due hereunder,
Xxxxxxxx shall also pay to Lender a late charge in an amount equal to five
percent (5%) of the amount of such overdue payment.
Section
2.3 Default Interest
Rate. So long
as any Event of Default exists hereunder or under any other Loan Document,
regardless of whether or not there has been an acceleration of the indebtedness
evidenced hereby, and at all times after maturity of the indebtedness evidenced
hereby (whether by acceleration or otherwise), interest shall accrue on the
outstanding principal balance of this Note, from the date due until the date
credited, at a rate per annum equal to five percent (5%) in excess of the Note
Rate, or, if such increased rate of interest may not be collected under
applicable law, then at the maximum rate of interest, if any, which may be
collected from Borrower under applicable law (as applicable, the “Default Interest
Rate”), and
such default interest shall be immediately due and payable.
Section
2.4 Borrower’s
Agreements.
Borrower acknowledges that it would be extremely difficult or impracticable to
determine Xxxxxx’s actual damages resulting from any late payment or default,
and such late charges and default interest are reasonable estimates of those
damages and do not constitute a penalty. The remedies of Lender in this Note or
in the Loan Documents, or at law or in equity, shall be cumulative and
concurrent, and to the extent permitted by applicable law may be pursued singly,
successively or together, in Xxxxxx’s discretion.
Section
2.5 Borrower to Pay
Costs. In the
event that this Note, or any part hereof, is collected by or through an
attorney-at-law, Xxxxxxxx agrees to pay all costs of collection, including, but
not limited to, reasonable attorneys’ fees.
Section
2.6 Exculpation.
Notwithstanding anything to the contrary contained in this Note or the other
Loan Documents, the obligations of Borrower hereunder shall be non-recourse
except with respect to the Property and as otherwise provided in Section 18.32
of the Security Instrument, the terms of which are incorporated
herein.
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ARTICLE III
GENERAL
CONDITIONS
Section
3.1 No Waiver;
Amendment. No
failure to accelerate the indebtedness evidenced hereby by reason of default
hereunder, acceptance of a partial or past due payment, or indulgences granted
from time to time shall be construed (i) as a novation of this Note or as a
reinstatement of the indebtedness evidenced hereby or as a waiver of such right
of acceleration or of the right of Lender thereafter to insist upon strict
compliance with the terms of this Note, or (ii) to prevent the exercise of such
right of acceleration or any other right granted hereunder or by any applicable
laws; and to the fullest extent permitted by law, Borrower hereby expressly
waives the benefit of any statute or rule of law or equity now provided, or
which may hereafter be provided, which would produce a result contrary to or in
conflict with the foregoing. No extension of the time for the payment of this
Note or any installment due hereunder made by agreement with any person now or
hereafter liable for the payment of this Note shall operate to release,
discharge, modify, change or affect the original liability of Borrower under
this Note, either in whole or in part, unless Xxxxxx agrees otherwise in
writing. This Note may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
Section
3.2 Waivers.
Presentment for payment, demand, protest and notice of demand, protest and
nonpayment and all other notices are hereby waived by Xxxxxxxx. Borrower hereby
further waives and renounces, to the fullest extent permitted by law, all rights
to the benefits of any moratorium, reinstatement, marshaling, forbearance,
valuation, stay, extension, redemption, appraisement, exemption and homestead
now or hereafter provided by the Constitution and laws of the United States of
America and of each state thereof, both as to itself and in and to all of its
property, real and personal, against the enforcement and collection of the
obligations evidenced by this Note or the other Loan Documents.
Section
3.3 Limit of
Validity. The
provisions of this Note and of all agreements between Borrower and Lender,
whether now existing or hereafter arising and whether written or oral,
including, but not limited to, the Loan Documents, are hereby expressly limited
so that in no contingency or event whatsoever, whether by reason of demand or
acceleration of the maturity of this Note or otherwise, shall the amount
contracted for, charged, taken, reserved, paid or agreed to be paid
(“Interest”) to
Lender for the use, forbearance or detention of the money loaned under this Note
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, performance or fulfillment of any provision hereof or
of any agreement between Borrower and Lender shall, at the time performance or
fulfillment of such provision shall be due, exceed the limit for Interest
prescribed by law or otherwise transcend the limit of validity prescribed by
applicable law, then, ipso facto, the obligation to be performed or fulfilled
shall be reduced to such limit, and if, from any circumstance whatsoever, Lender
shall ever receive anything of value deemed Interest by applicable law in excess
of the maximum lawful amount, an amount equal to any excessive Interest shall be
applied to the reduction of the principal balance owing under this Note in the
inverse order of its maturity (whether or not then due) or, at the option of
Lender, be paid over to Borrower, and not to the payment of Interest. All
Interest (including any amounts or payments judicially or otherwise under the
law deemed to be Interest) contracted for, charged, taken, reserved, paid or
agreed to be paid to Lender shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of this Note,
including any extensions and renewals hereof until payment in full of the
principal balance of this Note so that the Interest thereon for such full term
will not exceed at any time the maximum amount permitted by applicable law. To
the extent United States federal law permits a greater amount of interest than
is permitted under the law of the State in which the Property is located, Lender
will rely on United States federal law for the purpose of determining the
maximum amount permitted by applicable law. Additionally, to the extent
permitted by applicable law now or hereafter in effect, Lender may, at its
option and from time to time, implement any other method of computing the
maximum lawful rate under the law of the State in which the Property is located
or under other applicable law by giving notice, if required, to Borrower as
provided by applicable law now or hereafter in effect. This Section 3.3 will
control all agreements between Borrower and Lender.
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Section
3.4 Use of
Funds.
Borrower hereby warrants, represents and covenants that no funds disbursed
hereunder shall be used for personal, family or household purposes.
Section
3.5 Unconditional
Payment. Subject
to Section 2.6 above, Borrower is and shall be obligated to pay principal,
interest and any and all other amounts which become payable hereunder or under
the other Loan Documents absolutely and unconditionally and without any
abatement, postponement, diminution or deduction and without any reduction for
counterclaim or setoff. In the event that at any time any payment received by
Lender hereunder shall be deemed by a court of competent jurisdiction to have
been a voidable preference or fraudulent conveyance under any bankruptcy,
insolvency or other debtor relief law, then the obligation to make such payment
shall survive any cancellation or satisfaction of this Note or return thereof to
Borrower and shall not be discharged or satisfied with any prior payment thereof
or cancellation of this Note, but shall remain a valid and binding obligation
enforceable in accordance with the terms and provisions hereof, and such payment
shall be immediately due and payable upon demand.
Section
3.6 Governing
Law. This
Note shall be governed by and construed in accordance with the laws of the State
of Nebraska and the applicable laws of the United States of America. Borrower
hereby irrevocably submits to the jurisdiction of any court of competent
jurisdiction located in the State of Nebraska in connection with any proceeding
out of or relating to this Note.
Section
3.7 Waiver of Jury
Trial.
XXXXXXXX, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, AFTER CONSULTATION WITH COMPETENT COUNSEL, WAIVES, RELINQUISHES
AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE DEBT EVIDENCED BY THIS
NOTE OR ANY CONDUCT, ACT OR OMISSION OF LENDER OR BORROWER, OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR
ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR BORROWER, IN EACH OF
THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE.
-10-
ARTICLE IV
MISCELLANEOUS
PROVISIONS
Section
4.1 Successors and Assigns;
Joint and Several; Interpretation. The
terms and provisions hereof shall be binding upon and inure to the benefit of
Xxxxxxxx and Xxxxxx and their respective heirs, executors, legal
representatives, successors, successors in title and assigns, whether by
voluntary action of the parties or by operation of law. As used herein, the
terms “Borrower” and “Lender” shall be deemed to include their respective heirs,
executors, legal representatives, successors, successors in title and assigns,
whether by voluntary action of the parties or by operation of law. If Borrower
consists of more than one person or entity, each shall be jointly and severally
liable to perform the obligations of Borrower under this Note. All personal
pronouns used herein, whether used in the masculine, feminine or neuter gender,
shall include all other genders; the singular shall include the plural and vice
versa. Titles of articles and sections are for convenience only and in no way
define, limit, amplify or describe the scope or intent of any provisions hereof.
Time is of the essence with respect to all provisions of this Note. This Note
and the other Loan Documents contain the entire agreements between the parties
hereto relating to the subject matter hereof and thereof and all prior
agreements relative hereto and thereto which are not contained herein or therein
are terminated.
Section
4.2 Taxpayer
Identification.
Borrower’s Tax Identification Number is 00-0000000.
Section
4.3 State Specific
Provisions. A
credit agreement must be in writing to be enforceable under Nebraska law. To
protect the Borrower and the Lender from any misunderstandings or
disappointments, any contract, promise, undertaking, or offer to forbear
repayment of money or to make any other financial accommodation in connection
with this loan of money or grant or extension of credit, or any amendment of,
cancellation of, waiver of, or substitution for any or all of the terms or
provisions of any instrument or document executed in connection with this loan
of money or grant or extension of credit, must be in writing to be
effective.
[THE
BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
-11-
IN
WITNESS WHEREOF, Xxxxxxxx has executed this Note under seal as of the date first
written above.
|
LVP
OAKVIEW STRIP CENTER LLC,
a
Delaware limited liability company
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |
|
Name:
Xxxxx Xxxxxxxxxxxx
Title:
President
|
||
| STATE OF NEBRASKA | ) |
| ) ss. | |
| COUNTY OF _____________ | ) |
The
foregoing instrument was acknowledged before me this ______ day of December,
2006 by Xxxxx Xxxxxxxxxxxx as President of LVP OAKVIEW STRIP CENTER LLC, a
Delaware limited liability company, on behalf of the limited liability
company.
1-1
ANNEX 1
TO $27,500,000.00 PROMISSORY
NOTE
BY LVP
OAKVIEW STRIP CENTER LLC
TO
WACHOVIA BANK, NATIONAL ASSOCIATION
|
Payment
Date
|
Scheduled
Payment
|
|
|
2/11/2007
|
127,996.80
|
|
|
3/11/2007
|
115,610.02
|
|
|
4/11/2007
|
127,996.80
|
|
|
5/11/2007
|
123,867.88
|
|
|
6/11/2007
|
127,996.80
|
|
|
7/11/2007
|
123,867.88
|
|
|
8/11/2007
|
127,996.80
|
|
|
9/11/2007
|
127,996.80
|
|
|
10/11/2007
|
123,867.88
|
|
|
11/11/2007
|
127,996.80
|
|
|
12/11/2007
|
123,867.88
|
|
|
1/11/2008
|
127,996.80
|
|
|
2/11/2008
|
127,996.80
|
|
|
3/11/2008
|
119,738.95
|
|
|
4/11/2008
|
127,996.80
|
|
|
5/11/2008
|
123,867.88
|
|
|
6/11/2008
|
127,996.80
|
|
|
7/11/2008
|
123,867.88
|
|
|
8/11/2008
|
127,996.80
|
|
|
9/11/2008
|
127,996.80
|
|
|
10/11/2008
|
123,867.88
|
|
|
11/11/2008
|
127,996.80
|
|
|
12/11/2008
|
123,867.88
|
|
|
1/11/2009
|
127,996.80
|
|
|
2/11/2009
|
127,996.80
|
|
|
3/11/2009
|
115,610.02
|
|
|
4/11/2009
|
127,996.80
|
|
|
5/11/2009
|
123,867.88
|
|
|
6/11/2009
|
127,996.80
|
|
|
7/11/2009
|
123,867.88
|
|
|
8/11/2009
|
127,996.80
|
|
|
9/11/2009
|
127,996.80
|
|
|
10/11/2009
|
123,867.88
|
|
|
11/11/2009
|
127,996.80
|
|
|
12/11/2009
|
123,867.88
|
|
|
1/11/2010
|
127,996.80
|
|
|
2/11/2010
|
127,996.80
|
|
|
3/11/2010
|
115,610.02
|
|
|
4/11/2010
|
127,996.80
|
|
|
5/11/2010
|
123,867.88
|
|
|
6/11/2010
|
127,996.80
|
|
|
7/11/2010
|
123,867.88
|
|
|
8/11/2010
|
127,996.80
|
|
|
9/11/2010
|
127,996.80
|
|
|
10/11/2010
|
123,867.88
|
|
|
11/11/2010
|
127,996.80
|
|
|
12/11/2010
|
123,867.88
|
|
|
1/11/2011
|
127,996.80
|
|
|
2/11/2011
|
127,996.80
|
|
|
3/11/2011
|
115,610.02
|
|
|
4/11/2011
|
127,996.80
|
|
|
5/11/2011
|
123,867.88
|
|
|
6/11/2011
|
127,996.80
|
|
|
7/11/2011
|
123,867.88
|
|
|
8/11/2011
|
127,996.80
|
|
|
9/11/2011
|
127,996.80
|
|
|
10/11/2011
|
123,867.88
|
|
|
11/11/2011
|
127,996.80
|
|
|
12/11/2011
|
123,867.88
|
|
|
1/11/2012
|
127,996.80
|
