EXHIBIT 10.14
PROMISSORY NOTE
$43,500,000.00 Port Washington, New York
November 1, 2004
FOR VALUE RECEIVED CEDAR-FRANKLIN VILLAGE LLC, a Delaware limited
liability company, as maker, having its principal place of business at c/o Cedar
Shopping Centers Partnership, L.P., 44 South Bayles Avenue, Suite 304, Port
Washington, NY 11050 ("Borrower"), hereby unconditionally promises to pay to the
order of EUROHYPO AG, NEW YORK BRANCH, the New York branch of a German banking
corporation, as lender, having an address at 1114 Avenue of the Americas,
Twenty-Ninth Floor, New York, New York 10036 ("Lender"), or at such other place
as the holder hereof may from time to time designate in writing, the principal
sum of FORTY-THREE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($43,500,000.00) in lawful money of the United States of America, with interest
thereon to be computed from the date of this Note at the Interest Rate, and to
be paid in accordance with the terms of this Note and that certain Loan
Agreement dated the date hereof between Borrower and Lender (the "Loan
Agreement"). All capitalized terms not defined herein shall have the respective
meanings set forth in the Loan Agreement.
ARTICLE 1: PAYMENT TERMS
Borrower agrees to pay the principal sum of this 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 Debt shall without notice become immediately due and payable at the
option of Lender 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 secured by the Mortgage and the other Loan Documents. All
of the terms, covenants and conditions contained in the Loan Agreement, the
Mortgage 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.
ARTICLE 4: SAVINGS CLAUSE
Notwithstanding anything to the contrary, (a) all agreements 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 immediately 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 Debt 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, other than notices required in accordance with the Loan
Documents or applicable law. 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 Loan
Agreement 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 Debt under this Note, the Loan
Agreement 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 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 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 and their partners or members 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, the Mortgage or any other Loan Document.)
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ARTICLE 7: TRANSFER
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 Loan 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 Lender shall thereafter
forever be relieved and fully discharged from any liability or responsibility in
the matter, to the extent first arising after such transfer; but Lender shall
retain all rights hereby given to it with respect to any liabilities and the
collateral not so transferred.
ARTICLE 8: EXCULPATION
The provisions of Section 11.22 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
THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY BORROWER
AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THIS NOTE
WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, 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 PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
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ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING
OUT OF OR RELATING TO THIS NOTE MAY AT LENDER'S OPTION BE INSTITUTED IN ANY
FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO
SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER WAIVES ANY
OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON
CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
STUART H. WIDOWSKI
44 SOUTH BAYLES AVENUE
PORT WASHINGTON, NEW YORK 11050
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE
OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT
SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID
SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH
SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE
PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT
HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT
AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF
PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED
AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT
LEAVING A SUCCESSOR.
ARTICLE 10: NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 11.6 of the Loan Agreement.
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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day
and year first above written.
CEDAR-FRANKLIN VILLAGE LLC,
a Delaware limited liability company
By: Cedar-Franklin Village 2 LLC, a Delaware
limited liability company, its sole member
By: Cedar Shopping Centers Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Cedar Shopping Centers, Inc., a
Maryland corporation, its
general partner
By: _______________________
Name: Brenda J. Walker
Title: Vice President