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EXHIBIT 4.4
AMENDED AND RESTATED PROMISSORY NOTE
This AMENDED AND RESTATED NOTE is made as of the 15th day of
May, 1997 by and between COMMUNITY CENTERS ONE L.L.C., a Delaware limited
liability company ("Borrower") having its principal place of business at The
Heritage, 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx, Xxxx 00000, and XXXXXX
BROTHERS HOLDINGS INC., D/B/A XXXXXX CAPITAL, A DIVISION OF XXXXXX BROTHERS
HOLDINGS INC., a Delaware corporation ("Lender") having an address at Three
World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
A. Lender is the current owner and holder of that certain note
described on Schedule I attached hereto and made a part hereto (the "Initial
Note").
B. Borrower and Lender have agreed to modify and restate the terms and
extend the term of the Initial Note in accordance with the terms set forth
below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and in and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby covenant and agree as follows:
A. Neither this Amended and Restated Note (hereinafter referred to as
the "Note"), any other notes entered into pursuant to the Loan Agreement
(defined below) nor anything contained herein or therein shall be construed as a
substitution or novation of the indebtedness evidenced hereby or of the Initial
Note, which shall remain in full force and effect, as supplemented, amended and
restated as provided herein.
B. All of the terms, provisions and obligations contained in the
Initial Note are hereby supplemented, amended, restated and increased in their
entirety to read as follows:
PROMISSORY NOTE
$42,750,000.00 New York, New York
As of May 15, 1997
FOR VALUE RECEIVED COMMUNITY CENTERS ONE L.L.C., a Delaware
limited liability company having its principal place of business at 'Me
Heritage, 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx, Xxxx 00000, as maker
("Borrower"), hereby unconditionally promises to pay to the order of XXXXXX
BROTHERS HOLDINGS INC., D/B/A XXXXXX CAPITAL, A DIVISION OF XXXXXX BROTHERS
HOLDINGS INC., a Delaware corporation, having an address at Three World
Financial Center, 200
0
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as payee ("Under"), or at such other
place as the holder hereof may from time to time designate in writing, the
principal sum of FORTY-TWO MILLION SEVEN HUNDRED FIFTY THOUSAND AND 00/100
DOLLARS ($42,750,000.00) in lawful money of the United States of America with
interest thereon to be computed from the date of this Note at the Applicable
Interest Rate (defined below), and to be paid in installments as follows:
ARTICLE 1: PAYMENT TERMS
A payment of interest only on the tenth (10th) day of June,
1997, for interest accruing for the period commencing on and including the date
of this Note, through and including the ninth (9th) day of June, 1997, and on
the tenth (10th) day of each calendar month thereafter, or if such date is not a
Business Day (defined below), then on the next succeeding Business Day (each, a
"Scheduled Payment Date") up to and including the tenth (10th) day of May, 2002,
or if such date is not a Business Day, then on the next succeeding Business Day,
for interest accruing from and including each Scheduled Payment Date through,
but excluding, the next succeeding Scheduled Payment Date; each of such payments
to be applied to the payment of interest computed at the Applicable Interest
Rate; and the balance of the principal sum and all interest thereon shall be due
and payable on the tenth (10th) day of June, 2002, or if such date is not a
Business Day, then on the next succeeding Business Day (the "Maturity Date").
Interest on the principal sum of this Note shall be calculated on the basis of a
three hundred sixty (360) day year based on the actual number of days elapsed.
All payments to be made under this Note shall be made by wire
transfer of immediately available federal funds.
The term "Business Day" as used herein shall mean any day
excluding Saturday, Sunday and any day which shall be in New York City a legal
holiday or a day on which Lender or banking institutions are authorized or
required by law or other government actions to close.
ARTICLE 2: INTEREST
The term "Applicable Interest Rate" as used in this Note shall
mean an interest rate equal to seven and three hundred seventy-eight thousandths
percent (7.378%) per annum.
ARTICLE 3: DEFAULT AND ACCELERATION
(a) The whole of the principal sum of this Note, (b) interest,
default interest at the Default Rate, late charges and other sums, as provided
in this Note, the Security Instruments (defined below) or the Other Security
Documents (defined below),
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(c) all other monies agreed or provided to be paid by Borrower in this Note, the
Security Instruments or the Other Security Documents, (d) all sums advanced
pursuant to any of the Security Instruments to protect and preserve any of the
Properties (defined below) and the lien and the security interest created
thereby, and (e) all sums advanced and costs and expenses incurred by Lender in
connection with the Debt (defined below) or any part thereof, any renewal,
extension, or change of or substitution for the Debt or any part thereof, or the
acquisition or perfection of the security therefor, whether made or incurred at
the request of Borrower or Lender (all the sums referred to in (a) through (e)
above shall collectively be referred to as the "Debt") shall without notice
become immediately due and payable at the option of Lender if any payment
required in this Note is not paid when due or on the Maturity Date or on the
happening of any other default, after the expiration of any applicable notice
and grace periods, if any, herein or under the terms of the Security Instruments
or any of the Other Security Documents (collectively, an "Event of Default").
ARTICLE 4: DEFAULT INTEREST
Borrower does hereby. agree that upon the occurrence of an
Event of Default, Lender shall be entitled to receive and Borrower shall pay
interest on the entire unpaid principal sum at a rate (the "Default Rate") equal
to (i) the greater of a per annum rate equal to (x) the Applicable Interest Rate
plus four percent (4%) or (y) the Prime Rate (defined below) plus four percent
(4%) or (ii) the maximum interest rate that Borrower may by law pay, whichever
is lower. In the event that, and for so long as, any Event of Default shall have
occurred and be continuing, the outstanding principal sum and, to the extent
permitted by law, overdue interest in respect thereof, shall bear interest at
the Default Rate, calculated from the date the default giving rise to such Event
of Default without regard to any grace or cure periods contained herein.
Interest calculated at the Default Rate shall be added to the Debt, and shall be
deemed secured by the Security Instruments. This clause, however, shall not be
construed as an agreement or privilege to extend the date of the payment of the
Debt, nor as a waiver of any other right or remedy accruing to Under by reason
of the occurrence of any Event of Default.
The "Prime Rate" shall mean at any particular date, a rate per
annum equal to the rate of interest published in The Wall Street Journal as the
"prime rate", as in effect on such day, with any change in the prime rate
resulting from a change in said prime rate to be effective as of the date of the
relevant change in said prime rate; provided, however, that if more than one
prime rate is published in The Wall Street Journal for a day, the average of the
Prime Rates shall be used; provided, further, however, that the Prime Rate (or
the average of the prime rates) will be rounded to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%.
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In the event that The Wall Street Journal should cease or
temporarily interrupt publication, then the Prime Rate shall mean the daily
average prime rate published in another business newspaper, or business section
of a newspaper, of national standing chosen by Lender. If The Wall Street
Journal resumes publication, the substitute index will immediately be replaced
by the prime rate published in The Wall Street Journal.
In the event that a prime rate is no longer generally
published or is limited, regulated or administered by a governmental or
quasi-governmental body, then Lender shall select a comparable interest rate
index which is readily available to Borrower and verifiable by Borrower but is
beyond the control of Lender. Lender shall give Borrower prompt written notice
of its choice of a substitute index and when the change became effective. Such
substitute index will also be rounded to the nearest 1/16 of 1% or, if there is
no nearest 1/16 of 1%, to the next higher 1/16 of 1%.
The determination of the Prime Rate by Lender shall be
conclusive absent manifest error.
ARTICLE 5: PREPAYMENT
The principal sum of this Note shall not be prepayable at any
time, in whole or in part, prior to the period commencing six (6) months prior
to the Maturity Date (the "Permitted Prepayment Period"). Provided no Event of
Default exists from and after the commencement of the Permitted Prepayment
Period, the entire outstanding principal sum of this Note may be prepaid in
whole, but not in part, on any Scheduled Payment Date upon: (i) not less than
thirty (30) days and not more than forty-five (45) days prior written notice
(the "Prepayment Notice") to Lender specifying the Scheduled Payment Date on
which prepayment is to be made (the "Prepayment Date"); (ii) payment of all
accrued and unpaid interest on the outstanding principal balance of this Note to
and including the Prepayment Date; and (iii) payment of all other sums then due
under this Note, the Security Instruments and the Other Security Documents
including, without limitation, payment in full of all principal, interest and
all other sums due under the Related Note (defined below). If a Prepayment
Notice is given by Borrower to Lender pursuant to this Article, the principal
balance of this Note and each of the Related Notes and the other sums required
under this Article shall be due and payable on the Prepayment Date.
Lender shall not be obligated to accept any prepayment of the
principal balance of this Note unless it is (i) made during the Permitted
Prepayment Period, (ii) made in accordance with the terms of this Article, (iii)
accompanied by all sums due in connection therewith and with all sums due under
the Related Notes, and (iv) made on a Scheduled Payment Date. Notwithstanding
anything contained herein to the contrary, provided no Event of Default
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exists, no Prepayment Consideration (defined below) shall be due in connection
with a complete or partial prepayment resulting from the application of
insurance proceeds or condemnation awards pursuant to Section 4.4 of the
Security Instruments.
If a Default Prepayment (defined herein) occurs, Borrower
shall pay to Lender the entire Debt, including, without limitation, the
Prepayment Consideration.
For purposes of this Note, the term "Default Prepayment" shall
mean a prepayment of the principal amount of this Note made during the
continuance of any Event of Default or after an acceleration of the Maturity
Date under any circumstances, including, without limitation, a prepayment
occurring in connection with reinstatement of any Security Instrument provided
by statute under foreclosure proceedings or exercise of a power of sale, any
statutory right of redemption exercised by Borrower or any other party having a
statutory right to redeem or prevent foreclosure, any sale in foreclosure or
under exercise of a power of sale or otherwise.
For purposes of this Note, the term "Prepayment Consideration"
shall mean an amount equal to the present value of a series of payments each
equal to the Payment Differential (defined below) and payable on each Scheduled
Payment Date through and including the Maturity Date discounted at the
Reinvestment Yield (defined below) for the number of months remaining from the
date of such prepayment (the "Prepayment Date") to each such Scheduled Payment
Date through and including the Maturity Date. The term "Reinvestment Yield" as
used herein shall be equal to the yield on the U.S. Treasury issue (primary
issue) with a maturity date closest to the Maturity Date, with 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 the Prepayment Date
(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. The term "Payment Differential" as used herein shall be equal to
(x) the Applicable Interest Rate minus the Reinvestment Yield, divided by (y)
twelve (12), and multiplied by (z) the principal sum due on such Prepayment
Date, provided that the Payment Differential shall in no event be less than
zero. In no event, however, shall Lender be required to reinvest any prepayment
proceeds in U.S. Treasury obligations or otherwise. Lender shall notify Borrower
of the amount, and the basis of determination, of the required Prepayment
Consideration.
ARTICLE 6: SECURITY
This Note is secured by the Security Instruments and the
Other Security Documents. The term "Security Instruments" as used in this Note
shall mean the Amended and Restated Deed of Trust and
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Security Agreement dated as of the date hereof given by Borrower to (or for the
benefit of) Lender covering the fee estate of Borrower in certain premises
located in San Diego County, California, and each of the Related Security
Instruments covering the fee estate in certain premises as described on Schedule
2 attached hereto and made a part hereof and other property, as more
particularly described therein (collectively, the "Properties") and intended to
be duly recorded in said Counties, and each in the original principal sum of
$322,500,000.00 (other than such mortgage to be recorded in Xxxxxxx County,
Florida, which is in an amount of $153,000,000.00). The term "Related Notes"
shall mean those certain notes described on Schedule 3 attached hereto, and
which, together with the Note, are secured by the Security Instruments. The term
"Related Security Instruments' shall mean those certain mortgages, deeds of
trust and deeds to secure debt described on Schedule 2 attached hereto and made
a part hereof. The term "Related Borrowers" shall mean Community Centers Two
L.L.C., a Delaware limited liability company, and Shoppers World Community
Center, L.P., a Delaware limited partnership. The term "Other Security
Documents" as used in this Note shall mean all and any of the documents other
than this Note or the Security Instruments now or hereafter executed by Borrower
and/or any Related Borrower and/or others and by or in favor of Lender, which
wholly or partially secure or guarantee payment of this Note or any of the
Related Notes, including, but not limited to, that certain Loan Agreement dated
the date hereof between Borrowers, the Related Borrowers, and Lender and the
Related Notes. Whenever used, the singular number shall include the plural, the
plural number shall include the singular, and the words "Lender" and "Borrower"
shall include their respective successors, assigns, heirs, executors and
administrators.
All of the terms, covenants and conditions contained in the
Security Instruments and the Other Security 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.
ARTICLE 7: SAVINGS CLAUSE
This Note is subject to the express condition that at no time
shall Borrower be obligated or required to pay interest on the principal balance
due hereunder at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Borrower is permitted by applicable law to contract or agree to pay. If by the
terms of this Note, Borrower is at any time required or obligated to pay
interest on the principal balance due hereunder at a rate in excess of such
maximum rate, the Applicable Interest Rate or the Default Rate, as the case may
be, shall be deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to have been
payments in reduction of principal and not on account of the interest due
hereunder. All
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sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the Debt, shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term of the Note
until payment in full so that the rate or amount of interest on account of the
Debt does not exceed the maximum lawful rate of interest from time to time in
effect and applicable to the Debt for so long as the Debt is outstanding.
ARTICLE 8: LATE CHARGE
If any sum payable under this Note is not paid on or prior to
the date on which it is due, Borrower shall pay to Lender upon demand an amount
equal to the lesser of five percent (5%) of the unpaid sum or the maximum amount
permitted by applicable law to defray the expenses incurred by Lender in
handling and processing the delinquent payment and to compensate Lender for the
loss of the use of the delinquent payment and the amount shall be secured by the
Security Instruments and the Other Security Documents.
ARTICLE 9: 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 Under, 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 10: JOINT AND SEVERAL LIABILITY
If Borrower consists of more than one person or party, the
obligations and liabilities of each person or party shall be joint and several.
ARTICLE 11: WAIVERS
Borrower and all others who may become liable for the payment
of all or any part of the Debt do hereby severally waive presentment and demand
for payment, notice of dishonor, protest and notice of protest and non-payment
and all other notices of any kind. No release of any security for the Debt 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 Security
Instruments or the Other Security Documents made by agreement between Lender or
any other person or party shall release, modify, amend, waive, extend, change,
discharge, terminate or affect the liability of Borrower, and any other person
or entity who may become liable for the payment of all or any part of the Debt,
under this Note, the Security Instruments or the Other Security Documents. No
notice to or demand on Borrower shall be
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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 Security Instruments or the Other Security Documents. If Borrower is a
partnership, the agreements herein contained shall remain in force and
applicable, notwithstanding any changes in the individuals comprising the
partnership, and the term "Borrower," as used herein, shall include any
alternate or successor partnership, but any predecessor partnership and their
partners shall not thereby be released from any liability. If Borrower is a
corporation, the agreements contained herein shall remain in full force and
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. If
Borrower is a limited liability company, the agreements contained herein shall
remain in full force and applicable, notwithstanding any changes in the members
comprising the limited liability company, and the term "Borrower" as used herein
shall include any alternative or successor limited liability company, but any
predecessor limited liability company or its members 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, corporation or limited liability company, as
applicable, which may be expressly permitted by the Security Instruments or any
Other Security Documents.)
ARTICLE 12: TRANSFER
Lender shall have the right in its sole discretion at any time
during the term of this Note to sell, assign, syndicate, participate, pledge,
hypothecate or otherwise transfer and/or dispose of all or any portion of its
interest in this Note, including by issuance of mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated or
unrated public offering or private placement. Upon the transfer of this Note,
Borrower hereby waiving notice of any such transfer, Lender may deliver all the
collateral mortgaged, granted, pledged or assigned pursuant to the Security
Instruments and the Other Security Documents, or any part thereof, to the
transferee who shall thereupon become vested with all the rights herein or under
applicable law given to Lender with respect thereto, and Under shall thereafter
forever be relieved and fully discharged from any liability or responsibility in
the matter; but Lender shall retain all rights hereby given to it with respect
to any liabilities and the collateral not so transferred.
ARTICLE 13: WAIVER OF TRIAL BY JURY
BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
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COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN EVIDENCED BY THIS NOTE, THE APPLICATION FOR THE LOAN
EVIDENCED BY THIS NOTE, THIS NOTE, THE SECURITY INSTRUMENTS OR THE OTHER
SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES,
DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
ARTICLE 14: EXCULPATION
(a) Except as otherwise provided herein, in the Security
Instruments or in the Other Security Documents, Lender shall not enforce the
liability and obligation of Borrower to perform and observe the obligations
contained in this Note or the Security Instruments by any action or proceeding
wherein a money judgment shall be sought against Borrower, except that Lender
may bring a foreclosure action, action for specific performance or other
appropriate action or proceeding to enable Lender to enforce and realize upon
this Note, the Security Instruments, the Other Security Documents, and the
interest in the Properties, the Rents (as defined in the Security Instruments)
and any other collateral given to Lender created by this Note, the Security
Instruments and the Other Security Documents; provided, however, that a:ny
judgment in any such action or proceeding shall be enforceable against Borrower
only to the extent of Borrower's interest in the Properties, in the Rents and in
any other collateral given to Lender. Lender, by accepting this Note and the
Security Instruments, agrees that it shall not, except as otherwise provided in
Section 11-10 of the Security Instruments, xxx for, seek or demand any
deficiency judgment against Borrower in any such action or proceeding, under or
by reason of or under or in connection with this Note, the Other Security
Documents or the Security Instruments. The provisions of this Article shall not,
however, (i) constitute a waiver, release or impairment of any obligation
evidenced or secured by this Note, the Other Security Documents or the Security
Instruments; (ii) impair the right of Lender to obtain a deficiency judgment in
any action or proceeding in order to preserve its rights and remedies, including
without limitation, foreclosure, non-judicial foreclosure, or the exercise of a
power of sale, under any of the Security Instruments; however, Lender agrees
that it shall not enforce such deficiency judgment against any assets of
Borrower other than the Properties, including the Rents and any other collateral
given to Lender created by this Note, the Security Instruments and the Other
Security Documents or in the exercise of its rights and remedies under the
Security Instruments; (iii) impair the right of Lender to name Borrower as a
party defendant in any action or suit for judicial foreclosure and sale under
the Security Instruments; (iv) affect the validity or enforceability of any
indemnity, guaranty, master lease or similar instrument made in connection with
this Note, the Security Instruments, or the Other Security Documents; (v) impair
the right of Lender to obtain the appointment of a receiver; (vi) impair the
enforcement of the Assignments of Leases and Rents executed in
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connection herewith and in connection with each of the Security Instruments;
(vii) impair the right of Lender to obtain a deficiency judgment or judgment on
the Note against Borrower if necessary to obtain any insurance proceeds or
condemnation awards to which Lender would otherwise be entitled under the
Security Instruments; provided however, Lender shall only enforce such judgment
against the insurance proceeds and/or condemnation awards; or (viii) impair the
right of Lender to enforce the provisions of Sections 11.10, 12.3, and 12.4 of
the Security Instruments.
(b) Notwithstanding the provisions of this Article 14 to the
contrary, Borrower shall be personally liable to Lender for the Losses (as
defined in the Security Instruments) it incurs due to: (i) fraud or intentional
misrepresentation by Borrower, or any affiliate of Borrower or any general
partner, member, officer, director, employee or agent of any of the foregoing in
connection with the execution and the delivery of this Note, the Security
Instruments or the Other Security Documents or any certificate, document or
other instrument delivered or to be delivered to Lender from time to time under,
or in connection with this Note, the Security Instruments and/or any Other
Security Documents; (ii) Borrower's misapplication or misappropriation of Rents
received by Borrower; (iii) Borrower's misapplication or misappropriation of
tenant security deposits or Rents collected in advance; (iv) the misapplication
or the misappropriation of insurance proceeds or condemnation awards; (v)
Borrower's failure to pay Taxes, Insurance Premiums, Other Charges (as such
terms are defined in the Security Instruments), charges for labor or materials
or other charges that can create liens on the Properties; (vi) any Lease (as
defined in the Security Instruments) or any of the provisions thereof being
superior to the lien or the Security Instruments or any of the provisions
thereof, or (vii) Borrower's failure to comply with the provisions of Section
4.2 of the Security Instruments.
(c) Notwithstanding the foregoing, the agreement of Lender not
to pursue recourse liability as set forth in Subsection (a) above SHALL BECOME
NULL AND VOID and shall be of no further force and effect in the event of
Borrower's default under Section 4.3 (unless Borrower is a "Permitted
Transferee" as defined in, and that meets the requirements of Subsection
8.4(a)(iii)(B) of each of the Security Instruments) or Article 8 of the Security
Instruments, or if any of the Properties or any part thereof shall become an
asset in (i) a voluntary bankruptcy or insolvency proceeding, or (ii) an
involuntary bankruptcy or insolvency proceeding which is not dismissed within
ninety (90) days of filing.
(d) Nothing herein shall be deemed to be a waiver of any right
which Lender may have under Sections 506(a), 506(b), 1111(b) or any other
provision of the Bankruptcy Code to file a claim for the full amount of the
indebtedness secured by the Security Instruments or to require that all
collateral shall continue to
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secure all of the indebtedness owing to Lender in accordance with this Note, the
Security Instruments and the Other Security Documents.
ARTICLE 15: AUTHORITY
Borrower (and the undersigned representative of Borrower, if
any) represents that Borrower has full power, authority and legal right to
execute and deliver this Note, the Security Instruments and the Other Security
Documents and that this Note, the Security Instruments and the Other Security
Documents constitute valid and binding obligations of Borrower.
ARTICLE 16: APPLICABLE LAW
This Note shall be governed, construed, applied and enforced
in accordance with the laws of the state of New York and the applicable laws of
the United States of America.
ARTICLE 17: SERVICE OF PROCESS
(a) (i) Borrower will maintain a place of business or an agent
for service of process in New York, New York and give prompt notice to Lender of
the address of such place of business and of the name and address of any new
agent appointed by it, as appropriate. Borrower further agrees that the failure
of its agent for service of process to give it notice of any service of process
will not impair or affect the validity of such service or of any judgment based
thereon. If, despite the foregoing, there is for any reason no agent for service
of process of Borrower available to be served, and if it at that time has no
place of business in New York, New York, then Borrower irrevocably consents to
service of process by registered or certified mail, postage prepaid, to it at
its address given in or pursuant to the first paragraph hereof.
(ii) Borrower initially and irrevocably designates
Xxxxx Xxxxxxxxxx, with offices on the date hereof at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, to receive for and on behalf of
Borrower service of process in New York, New York with respect to this Note.
(b) With respect to any claim or action arising hereunder or
under the Security Instruments or the Other Security Documents, Borrower (a)
irrevocably submits to the nonexclusive jurisdiction of the courts of the States
in which the respective Properties are located and the court of the State of New
York and the United States District Court located in the Borough of Manhattan in
New York, New York, and appellate courts from any thereof, and (b) irrevocably
waives any objection which it may have at any time to the laying on venue of any
suit, action or proceeding arising out of or relating to this Note brought in
any such court, irrevocably waives any claim that any such suit, action
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or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) Nothing in this Note will be deemed to preclude Lender
from bringing an action or proceeding with respect hereto in any other
jurisdiction.
ARTICLE 18: COUNSEL FEES
In the event that it should become necessary to employ counsel
to collect the Debt or to protect or foreclose the security therefor, Borrower
also agrees to pay all reasonable fees and expenses of Lender, including,
without limitation, reasonable attorney's fees for the services of such counsel
whether or not suit be brought.
ARTICLE 19: NOTICES
All notices or other written communications hereunder shall be
deemed to have been properly given (i) upon delivery, if delivered in person or
by facsimile transmission with receipt acknowledged by the recipient thereof,
(ii) one (1) Business Day after having been deposited for overnight delivery
with any reputable overnight courier service, or (iii) three (3) Business Days
after having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to Borrower: Community Centers One L.L.C.
The Heritage
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
With a copy to:
Community Centers One L.L.C.
c/o DRA Advisors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
Xxxxx & Xxxxxxxxx
3200 National City Center
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
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Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Lender: Xxxxxx Brothers Holdings Inc. d/b/a
Lehman Capital, a Division of
Xxxxxx Brothers Holdings Inc.
Three World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
and to: Xxxxxx Brothers Holdings Inc. d/b/a
Lehman Capital, a Division of
Xxxxxx Brothers Holdings Inc.
Three World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx and Xxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or addressed as such party may from time to time designate by written notice to
the other parties.
Either party by notice to the other may designate additional
or different addresses for subsequent notices or communications.
ARTICLE 20: MISCELLANEOUS
(a) Wherever pursuant to this Note (i) Lender exercises any
right given to it to approve or disapprove, (ii) any arrangement or term is to
be satisfactory to Lender, or (iii) any other decision or determination is to be
made by Lender, the decision of Lender to approve or disapprove, all decisions
that arrangements or terms are satisfactory or not satisfactory and all other
decisions and determinations made by Lender, shall be in the sole and absolute
discretion of Lender and shall be final and conclusive, except as may be
otherwise expressly and specifically provided herein.
(b) Wherever pursuant to this Note it is provided that
Borrower pay any costs and expenses, such costs and expenses shall
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include, but not be limited to, legal fees and disbursements of Lender, whether
retained firms, the reimbursement for the expenses of in-house staff, or
otherwise.
ARTICLE 21: NO NOVATION
Borrower and Lender hereby confirm the legal operation and
effect of the Initial Note so that the Initial Note, as amended and restated in
this Note, shall be binding upon and inure to the benefit of the respective
parties hereto, their successors and assigns and all holders hereof. Nothing
contained in this Note shall be construed as a substitution or novation of
Borrower's indebtedness or of the Initial Note, which shall remain in full force
and effect, as amended and restated hereby.
IN WITNESS WHEREOF, Borrower and Lender have executed this
instrument as of the day and year first above written.
COMMUNITY CENTERS ONE L.L.C., a
Delaware limited liability company
By: DD Community Centers One, Inc.,
an Ohio corporation, its
managing member
By:
------------------------------
Name:
Title:
By: DRA Opportunity Fund, a
Delaware corporation, a member
By:
------------------------------
Xxxxx Xxxxx
Executive Vice President
By: DD Retail Partners 11, L.P., a
Delaware limited partnership, a
member
By: Master Realty Inc., a
Delaware corporation, its
sole general partner
By:
--------------------------
Xxxxx Xxxxx
Vice President
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By: DD Retail Partners III, L.P., a
Delaware limited partnership, a
member
By: Master Realty Inc., a
Delaware, corporation,
its sole general partner
By:
--------------------------
Xxxxx Xxxxx
Vice President
By: DD Retail Partners IV, L.P., a
Delaware limited partnership, a
member
By: Master Realty Inc., a
Delaware corporation, its
sole general partner
By:
--------------------------
Xxxxx Xxxxx
Vice President
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XXXXXX BROTHERS HOLDINGS INC., D/B/A
LEHMAN CAPITAL, A DIVISION OF XXXXXX
BROTHERS HOLDINGS INC., a Delaware
By:
----------------------------------
Name:
Title:
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SCHEDULE 1
(Description of Initial Note)
1. Promissory Note dated as of November 17, 1995 made by
Community Centers One L.L.C. ("Borrower") to Xxxxxx Brothers Holdings Inc.,
D/B/A Lehman Capital, a Division of Xxxxxx Brothers Holdings Inc. ("Lender") in
the original principal amount of $37,000,000.00.
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SCHEDULE 2
(Description of Related Security Instruments)
1. Amended and Restated Deed of Trust and Security Agreement
dated the date hereof by Community Centers One L.L.C., to Public Trustee of the
City and County of Denver, State of Colorado, for the benefit of Xxxxxx Brothers
Holdings Inc., D/B/A Lehman Capital, a Division of Xxxxxx Brothers Holdings
Inc., in the principal amount of $322,500,000.00, encumbering the property known
as Broadway Marketplace, Denver, Colorado, to be recorded in the office of the
public records of Denver County, Colorado;
2. Amended and Restated Mortgage and Security Agreement dated
the date hereof by Community Centers One L.L.C., as mortgagor, to Xxxxxx
Brothers Holdings Inc., D/B/A Lehman Capital, a Division of Xxxxxx Brothers
Holdings Inc., as mortgagee, in the principal amount of $322,500,000.00,
encumbering the property known as Carillon Place, Naples, Florida, to be
recorded in the Official Records of Xxxxxxx County, Florida;
3. Amended and Restated Deed to Secure Debt and Security
Agreement dated the date hereof by Community Centers Two L.L.C., and Community
Centers One L.L.C., to Xxxxxx Brothers Holdings Inc., D/B/A Lehman Capital, a
Division of Xxxxxx Brothers Holdings Inc., in the principal amount of
$322,500,000.00, encumbering the properties known as Perimeter Pointe, Xxxxxx,
Georgia and Town Center Xxxxx, Marietta, Georgia, to be recorded in the office
of public records of Xxxxxx and Xxxx Counties, respectively;
4. Amended and Restated Mortgage and Security Agreement dated
the date hereof by Community Centers One L.L.C., as mortgagor, to Xxxxxx
Brothers Holdings Inc., D/B/A Lehman Capital, a Division of Xxxxxx Brothers
Holdings Inc., as mortgagee, in the principal amount of $322,500,000.00,
encumbering the property known as Woodfield Village Green, Schaumburg, Illinois,
to be recorded in the office of the Recorder of Xxxx County, Illinois;
5. Amended and Restated Mortgage and Security Agreement dated
the date hereof by Shoppers World Community Center, L.P., as grantor, to Xxxxxx
Brothers Holdings Inc., D/B/A Lehman Capital, a Division of Xxxxxx Brothers
Holdings Inc., as beneficiary, in the principal amount of $322,500,000.00,
encumbering the property known as Shoppers World, Framingham, Massachusetts, to
be recorded in the Middlesex South District Registry of Deeds;
6. Amended and Restated Deed of Trust, Security Agreement and
Fixture Filing dated the date hereof by Community Centers Two L.L.C., as grantor
to Chicago Title Insurance Company, as Trustee and to Xxxxxx Brothers Holdings
Inc., D/B/A Lehman Capital, a Division of Xxxxxx Brothers Holdings Inc., as
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beneficiary, in the principal amount of $322,500,000.00, encumbering the
property known as Independence Commons, Independence, Missouri, to be recorded
in the public records of Xxxxxxx County, Missouri;
7. Amended and Restated Deed of Trust and Security Agreement
dated the date hereof by Community Centers One L.L.C., as grantor, to Chicago
Title Insurance Company, as trustee, and Xxxxxx Brothers Holdings Inc., D/B/A
Lehman Capital, a Division of Xxxxxx Brothers Holdings Inc., as beneficiary, in
the principal amount of $322,500,000.00, encumbering the property known as New
Hope Commons, Durham, North Carolina, to be recorded in the office of the
Register of Deeds of Durham County, North Carolina; and
8. Amended and Restated Deed of Trust and Security Agreement
dated the date hereof by Community Centers One L.L.C., as grantor, to Alexander
Title Agency Incorporated, as trustee, and Xxxxxx Brothers Holdings Inc., D/B/A
Xxxxxx Capital, a Division of Xxxxxx Brothers Holdings Inc., as beneficiary, in
the principal amount of $322,500,000.00, encumbering the property known as
Fairfax Towne Center, Fairfax, Virginia, to be recorded in the office of the
Clerk of the Circuit Court of Fairfax County, Virginia.
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SCHEDULE 3
(Description of Related Notes)
1. Amended and Restated Promissory Note dated the date hereof,
by and between Community Centers Two L.L.C. and Shoppers World Community Center,
L.P. ("Borrower") and Xxxxxx Brothers Holdings Inc., D/B/A Lehman Capital, a
Division of Xxxxxx Brothers Holdings Inc., in the principal amount of
$126,750,000.00.
2. Amended and Restated Promissory Note dated the date hereof,
by and between Community Centers One L.L.C. and Xxxxxx Brothers Holdings Inc.,
D/B/A Lehman Capital, a Division of Xxxxxx Brothers Holdings Inc., in the
principal amount of $153,000,000.00.
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