PROMISSORY NOTE
EXHIBIT
10.19
| $52,000,000.00 |
June
30,
2006
|
FOR
VALUE
RECEIVED, SCOTSDALE
MI LLC (“Scotsdale”),
CARRIAGE
PARK MI LLC (“Carriage
Park”),MACOMB
MANOR MI LLC
(“Macomb
Manor”), and CARRIAGE
HILL MI LLC (“Carriage
Hill”), each
a
Delaware limited liability company, having its principal place of business
c/o
Lightstone Holdings LLC, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx
00000 (hereinafter
collectively referred to as the
“Borrower”;
references herein to the Borrower unless otherwise specifically stated, shall
also mean and refer to each and every one of Scotsdale, Carriage Park, Macomb
Manor and Carriage Hill, jointly and severally),
as
maker, hereby unconditionally promises to pay to the order of CITIGROUP
GLOBAL MARKETS REALTY CORP.,
a New
York corporation,
as
lender, having an address at 000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
(“Lender”),
or at
such other place as the holder hereof may from time to time designate in
writing, the principal sum of FIFTY-TWO MILLION AND NO/100 DOLLARS
($52,000,000.00), or so much thereof as is advanced, in lawful money of the
United States of America, with interest thereon to be computed from the date
of
this Note at the Interest Rate, and to be paid in accordance with the terms
of
this Note and that certain Loan and Security Agreement dated the date hereof
between Borrower and Lender (as amended, restated, supplemented or otherwise
modified from time to time, the “Loan
Agreement”).
All
capitalized terms not defined herein shall have the respective meanings set
forth in the Loan Agreement.
ARTICLE
1: PAYMENT TERMS
Xxxxxxxx
agrees to pay the principal sum of this Promissory Note (the “Note”)
and
interest on the unpaid principal sum of this Note from time to time outstanding
at the rates and at the times specified in Article
II
of the
Loan Agreement and the outstanding balance of the principal sum of this Note
and
all accrued and unpaid interest thereon shall be due and payable on the Maturity
Date.
ARTICLE
2: DEFAULT AND ACCELERATION
The
Loan
shall without notice (except as provided in the Loan Agreement) become
immediately due and payable at the option of Lender (except as otherwise set
forth in Article
VIII
of the
Loan Agreement) if any payment required in this Note is not paid on or prior
to
the date when due or if not paid on the Maturity Date or on the happening of
any
other Event of Default.
ARTICLE
3: LOAN DOCUMENTS
This
Note
is being executed and delivered pursuant to the Loan Agreement and is secured
by, among other things, those
certain Mortgages,
Assignment of Leases and Rents, Security Agreement and Fixture Filings, each
dated as of the date hereof (collectively, the “Instrument”)
executed by Xxxxxxxx, encumbering each Borrower’s fee simple interest in and to
certain real properties and improvements, as more particularly described therein
(collectively, the “Property”),
those
certain Assignments of Leases and Rents, each dated as of the date hereof
(collectively, the “Assignment
of Leases”),
executed by each Borrower and all other Loan Documents. All of the terms,
covenants and conditions contained in the Loan Agreement, the Instrument, the
Assignment of Leases and the other Loan Documents are hereby made part of this
Note to the same extent and with the same force as if they were fully set forth
herein. In the event of a conflict or inconsistency between the terms of this
Note and the Loan Agreement, the Instrument, the Assignment of Leases or the
other Loan Documents, the terms and provisions of the Loan Agreement shall
govern.
ARTICLE
4: SAVINGS CLAUSE
Notwithstanding
anything to the contrary, (a) all agreements and communications between Borrower
and Lender are hereby and shall automatically be limited so that, after taking
into account all amounts deemed interest, the interest contracted for, charged
or received by Lender shall never exceed the maximum lawful rate or amount,
(b)
in calculating whether any interest exceeds the lawful maximum, all such
interest shall be amortized, prorated, allocated and spread over the full amount
and term of all principal indebtedness of Borrower to Lender, and (c) if through
any contingency or event, Lender receives or is deemed to receive interest
in
excess of the lawful maximum, any such excess shall be deemed to have been
applied toward payment of the principal of any and all then outstanding
indebtedness of Borrower to Lender, or if there is no such indebtedness, shall
promptly be returned to Borrower.
ARTICLE
5: NO ORAL CHANGE
This
Note
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or
Lender, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
ARTICLE
6: WAIVERS
Borrower
and all others who may become liable for the payment of all or any part of
the
Loan do hereby severally waive presentment and demand for payment, notice of
dishonor, notice of intention to accelerate, notice of acceleration, protest
and
notice of protest and non-payment and all other notices of any kind except
those
expressly required by a Loan Document. No release of any security for the Loan
or extension of time for payment of this Note or any installment hereof, and
no
alteration, amendment or waiver of any provision of this Note, the Loan
Agreement, the Instrument, the Assignment of Leases or the other Loan Documents
made by agreement between Lender or any other Person shall release, modify,
amend, waive, extend, change, discharge, terminate or affect the liability
of
Borrower or any other Person who may become liable for the payment of all or
any
part of the Loan under this Note, the Loan Agreement, the Instrument, the
Assignment of Leases or the other Loan Documents. No notice to or demand on
Borrower shall be deemed to be a waiver of the obligation of Borrower or of
the
right of Lender to take further action without further notice or demand as
provided for in this Note, the Loan Agreement, the Instrument, the Assignment
of
Leases or the other Loan Documents. If Borrower is a partnership or limited
liability company, the agreements herein contained shall remain in force and
be
applicable, notwithstanding any changes in the individuals comprising the
partnership or limited liability company and their partners or members, and
the
term “Borrower,” as used herein, shall include any alternate or successor
partnership or limited liability company, but any predecessor partnership or
limited liability company shall not thereby be released from any liability.
If
Borrower is a corporation, the agreements contained herein shall remain in
full
force and be applicable notwithstanding any changes in the shareholders
comprising, or the officers and directors relating to, the corporation, and
the
term “Borrower,” as used herein, shall include any alternative or successor
corporation, but any predecessor corporation shall not be relieved of liability
hereunder. (Nothing in the foregoing sentence shall be construed as a consent
to, or a waiver of, any prohibition or restriction on transfers of interests
in
such partnership, limited liability company or corporation, which may be set
forth in the Loan Agreement or any other Loan Document.)
-2-
ARTICLE
7: TRANSFER
Upon
the
transfer of this Note, Xxxxxx may deliver all the collateral granted, pledged
or
assigned pursuant to the Loan Documents, or any part thereof, to the transferee
who shall thereupon become vested with all the rights and obligations herein
or
under applicable law given to Lender with respect thereto, and Lender shall
thereafter forever be relieved and fully discharged from any liability or
responsibility in the matter; but Lender shall retain all rights and obligations
hereby given to it with respect to any liabilities and the collateral not so
transferred.
ARTICLE
8: EXCULPATION
The
provisions of Article
XII
of the
Loan Agreement are hereby incorporated by reference into this Note to the same
extent and with the same force as if fully set forth herein.
ARTICLE
9: GOVERNING LAW
(A)
THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF
CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE
FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
NOTE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(B) EACH
OF BORROWER AND LENDER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK OR WITHIN
THE COUNTY AND STATE IN WHICH THE PROPERTY IS LOCATED AND IRREVOCABLY AGREES
THAT, SUBJECT TO XXXXXX’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS NOTE OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH
COURTS. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH THE PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES
TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS NOTE, SUCH
OTHER LOAN DOCUMENTS OR SUCH OBLIGATION. NOTHING HEREIN SHALL AFFECT THE RIGHT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT
OF LENDER TO BRING PROCEEDINGS AGAINST ANY BORROWER PARTY IN THE COURTS OF
ANY
OTHER JURISDICTION.
-3-
ARTICLE
10 :
NOTICES
All
notices or other written communications hereunder shall be delivered in
accordance with Section
13.5
of the
Loan Agreement.
[NO
FURTHER TEXT ON THIS PAGE]
-4-
IN
WITNESS WHEREOF, this Note has been executed as of the date first above
written.
|
BORROWER:
|
||
|
SCOTSDALE
MI LLC,
a Delaware limited liability
company
|
||
| |
||
| By: | LVP Michigan Multifamily Portfolio LLC, a Delaware limited liability company, | |
| its sole Managing Member | ||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxxxxx | |
| Title: | President |
|
CARRIAGE
PARK MI LLC,
a
Delaware limited liability company
|
||
| |
||
| By: | LVP Michigan Multifamily Portfolio LLC, a Delaware limited liability company, | |
| its sole Managing Member | ||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxxxxx | |
| Title: | President |
|
MACOMB
MANOR MI LLC,
a
Delaware limited liability company
|
||
| |
||
| By: | LVP Michigan Multifamily Portfolio LLC, a Delaware limited liability company, | |
| its sole Managing Member | ||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxxxxx | |
| Title: | President |
|
CARRIAGE
HILL MI LLC,
a
Delaware limited liability company
|
||
| |
||
| By: | LVP Michigan Multifamily Portfolio LLC, a Delaware limited liability company, | |
| its sole Managing Member | ||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxxxxx | |
| Title: | President |
