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EXHIBIT 4.1
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COMMUNITY CENTERS ONE L.L.C.,
COMMUNITY CENTERS TWO L.L.C. and
SHOPPERS WORLD COMMUNITY CENTER, L.P.
(collectively, the Borrowers)
and
LEHMAN BROTHERS HOLDINGS INC., D/B/A
LEHMAN CAPITAL, A DIVISION OF LEHMAN
BROTHERS HOLDINGS INC.
(Lender)
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LOAN AGREEMENT
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Dated: As of May 15, 1997
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THIS LOAN AGREEMENT made as of the ____ day of May, 1997,
between COMMUNITY CENTERS ONE L.L.C., a Delaware limited liability company ("CC
ONE") having an office at The Heritage, 34555 Chagrin Boulevard, Moreland Hills,
Ohio 44022, COMMUNITY CENTERS TWO L.L.C., a Delaware limited liability company
("CC TWO") having an office at The Heritage, 34555 Chagrin Boulevard, Moreland
Hills, Ohio 44022, and SHOPPERS WORLD COMMUNITY CENTER, L.P., a Delaware limited
partnership ("Shoppers World", and together with CC One and CC Two, sometimes
hereinafter referred to individually as a "Borrower" and collectively as the
"Borrowers"), having an office at The Heritage, 34555 Chagrin Boulevard,
Moreland Hills, Ohio 44022, and LEHMAN BROTHERS HOLDINGS INC., D/B/A LEHMAN
CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation,
having an office at Three World Financial Center, 200 Vesey Street, New York,
New York 10285 (hereinafter referred to as "Lender");
W I T N E S S E T H:
WHEREAS, Lender has made a loan to CC One in the principal
amount of $153,000,000.00 (the "153 Loan");
WHEREAS, Lender has also made a loan to CC One in the
principal amount of $37,000,000.00 (the "37 Loan");
WHEREAS, the 153 Loan is evidenced by that certain note dated
as of November 17, 1995 made by CC One to Lender, in the original principal
amount of $153,000,000.00 (the "Existing 153 Note") and secured by six (6)
certain Mortgages, Deeds of Trust, Deeds to Secure Debt and other real estate
security instruments, as the case may be, each dated as of November 17, 1995,
made by CC One and each in the principal amount of $153,000,000.00 as more
particularly described on Schedule C-1 attached hereto and made a part hereof
(collectively, the "Existing 153 Security Instruments"), covering six (6)
parcels of land more fully described in Schedule A-1 through A-6 attached hereto
and made a part hereof (the "153 Parcels") and subject to the terms of a certain
Loan Agreement dated as of November 17, 1995 made by and between CC One and
Lender (the "Original CC One Loan Agreement");
WHEREAS, the 37 Loan is evidenced by that certain note dated
as of November 17, 1995 made by CC One to Lender, in the original principal
amount of $37,000,000.00 (the "Existing 37 Note") and secured by a certain Deed
of Trust and other real estate security instruments, dated as of November 17,
1995, made by CC One in the principal amount of $37,000,000.00 as more
particularly described in said Schedule C-1 (the "Existing 37 Security
Instrument"; the Existing 153 Security Instruments and the Existing 37 Security
Instrument are hereinafter each individually referred to as an "Existing CC One
Security Instrument" and collectively, as the "Existing CC One Security
Instruments"), covering a parcel of land more fully described in Schedule A-7
attached hereto and made a part hereof (the "37 Parcel"; the 153 Parcels and the
37 Parcel are hereinafter each
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individually referred to as a "CC One Parcel", and collectively as the "CC One
Parcels");
WHEREAS, Lender is the owner and holder of six (6) notes, each
dated as of March 22, 1996 in the aggregate principal sum of $140,000,000.00
made by CC Two and Shoppers World, which notes have been endorsed to Lender as
of the date hereof (said notes, as endorsed, are hereinafter collectively
referred to as the "Existing UBS Notes");
WHEREAS, the Existing UBS Notes are secured by three (3)
Mortgages, Deeds of Trust, Deeds to Secure Debt and other real estate security
instruments, as the case may be, in the principal amount of $140,000,000.00, as
more particularly described on Schedule C-2 attached hereto and made a part
hereof (collectively, the "Existing UBS Security Instruments"), covering three
(3) parcels of land more fully described in Schedules A-8 through A-10 attached
hereto and made a part hereof (the "UBS Parcels");
WHEREAS, at the request of Borrowers, Lender has agreed to
extend, modify, amend and restate the terms of the Existing 153 Note, the
Existing 153 Security Instruments, the Existing 37 Note, the Existing 37
Security Instrument, the Existing UBS Notes and the Existing UBS Security
Instruments;
WHEREAS, the Existing 153 Note, the Existing 37 Note and the
Existing UBS Notes are collectively hereinafter referred to as the "Existing
Notes";
WHEREAS, the Existing 153 Security Instruments, the Existing
37 Security Instrument and the Existing UBS Security Instruments are
collectively hereinafter referred to as the "Existing Security Instruments", and
the CC One Parcels and the UBS Parcels shall be hereinafter referred to
individually as a "Parcel", and collectively as the "Parcels";
WHEREAS, in pursuance of said modification, on the date
hereof, Borrowers and Lender, among other things, are (i) entering into this
Agreement, (ii) modifying and restating the Existing Notes pursuant to certain
amended and restated promissory notes more particularly described on Schedule
D-1 attached hereto and made a part hereof (each Existing Note, as amended and
restated, a "Note", and collectively, the "Notes"), and (iii) modifying and
restating each of the Existing Security Instruments pursuant to those certain
amended and restated mortgages, deeds of trust or deeds to secure debt, as the
case may be, as more particularly described on Schedule D-2 attached hereto and
made a part hereof (each Existing Security Instrument, as modified and restated,
a "Security Instrument"; collectively, the "Security Instruments"), such that
each of the Security Instruments shall be in the principal amount of
$322,500,000.00 and shall secure each of the Notes (other than the Security
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Instrument to be recorded in Collier County, Florida which shall
be in the principal sum of $153,000,000.00); and
WHEREAS, at the request of Borrowers, Lender has agreed, among
other things, to (i) establish the Operating Account (defined below) and (ii)
permit Borrowers to release certain Properties (hereinafter defined) from the
lien of the Security Instruments from and after the Defeasance Lockout
Termination Date (defined below) in certain instances upon defeasance of a
portion of the Notes as more fully set forth herein;
NOW, THEREFORE, in consideration of ten dollars ($10) and
other good and valuable consideration, the receipt of which is hereby
acknowledged, Lender and Borrowers hereby covenant and agree as follows:
1. THE NOTE AND THE SECURITY INSTRUMENTS. The indebtedness of
Borrowers shall be: (i) evidenced by the Notes, and (ii) secured by, among other
things, (a) the Security Instruments made by Borrowers covering the fee estate
of Borrowers in each Parcel, the Improvements (as such term is defined in the
Security Instruments) located on each Parcel and other property, rights and
interests of Borrowers in the same (individually, a "Property" and collectively,
the "Properties"), and (b) certain modification and restatement of assignments
of leases and rents each given by a Borrower to Lender dated the date hereof and
covering the Properties (the "Assignments of Rents").
2. LOAN DOCUMENTS. The term "Loan Documents" as used in this
Agreement shall collectively mean the Notes, the Security Instruments, the
Assignments of Rents, the Assignments of Agreements, Permits and Contracts, the
Certificates of Compliance and Indemnification Agreements, the Assignment of
Management Agreements and Subordination of Management Fees each dated the date
hereof between one or more Borrowers and Lender, this Agreement and all other
documents and instruments of any nature whatsoever executed or delivered in
connection with the Loan.
3. TERMINATION OF ORIGINAL LOAN AGREEMENT. The Original Loan
Agreement is hereby terminated, shall be null and void and of no further force
and effect and is hereby replaced and superseded in its entirety by this Loan
Agreement.
4. PROPERTY RELEASES. Subject to the terms and conditions set
forth herein, from and after the Defeasance LockOut Termination Date Borrowers
shall have the right, from time to time, on any Scheduled Payment Date (as
defined in the Notes) to obtain a release (a "Property Release") of a Property
from the lien of the related Security Instrument (i) provided that no default
under this Agreement, the Notes, the Security Instruments or any other Loan
Documents, that in Lender's sole judgment is
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material, has occurred and is continuing, (ii) subject to compliance with the
provisions set forth below in this Section 4 and in Section 6 of this Agreement;
and (iii) provided that, unless Borrowers shall at the time of such Property
Release be an entity that complies with subsection 8.4(a)(iv)(B) of the Security
Instruments, legal, record, economic and beneficial ownership of the Property
for which a Property Release is being requested (the "Release Premises") is
simultaneously with the granting of the Property Release transferred (a "Release
Premises Transfer") to and shall be owned immediately after such Property
Release by a person(s), party(ies) or,entity(ies) other than any Borrower, the
managing member of any Borrower, or any general partner of any Borrower or any
person, party or entity owned or controlled by any of the foregoing ("Release
Premises Transferee"). In the event that the Borrowers seeks to release a
Property from the lien of the related Security Instrument, Lender shall release
such Property from the lien of the related Security Instrument and the Loan
Documents, but only upon receipt by Lender of the following:
A. At least thirty (30) days but no more than
sixty (60) days prior written notice of its request to obtain a
release of the Release Premises;
B. A certificate of each Borrower certifying the
requirements set forth in Paragraphs 4.I. and 4.J. of this
Loan Agreement shall be true after giving effect to such
transfer;
C. At least three (3) Business Days (as defined
in the Notes) prior to such Property Release an irrevocable
notice of defeasance and the certification by Borrowers in
the form attached hereto as Exhibit A;
D. Defeasance Collateral (defined below) with a
Collateral Value (defined below) required under Paragraph 6
hereof;
E. A wire transfer of immediately available
federal funds in an amount equal to all sums due under the
applicable Note or Notes under Section 6 of this Agreement
and under the Loan Documents in connection with a
defeasance;
F. Evidence satisfactory to Lender that, other than
the Security Instruments, there are no liens (except as permitted under
the Security Instruments), mortgages, deeds of trust or other security
instruments, as the case may be, encumbering the Properties remaining
encumbered by the lien of the Security Instruments, including without
limitation a "bring down" or "date down" of the title insurance
policies insuring the liens of the Security Instruments on such
remaining Properties;
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G. All proposed documents related to the Release
Premises Transferee and such documents, certificates and assurances
that Lender shall request to evidence and confirm that the Release
Premises is simultaneously with the Property Release being transferred
to a Release Premises Transferee;
H. Payment of all Lender's costs and expenses,
including due diligence review costs and reasonable counsel fees and
disbursements incurred in connection with the release of the Property
from the lien of the related Security Instruments and the review and
approval of the documents and information required to be delivered in
connection therewith ("Property Release Expenses");
I. Evidence satisfactory to Lender that the Aggregate
Debt Service Coverage Ratio (hereinafter defined) for the twelve (12)
month period immediately after the Property Release with respect to the
Properties remaining encumbered by the liens of the Security
Instruments shall be equal to or greater than the greater of (i) the
Aggregate Debt Service Coverage Ratio with respect to all of the
Properties for the four (4) fiscal quarters immediately preceding the
date hereof (the "Origination DSCR") or (ii) the Aggregate Debt Service
Coverage Ratio with respect to the Properties then encumbered by the
liens of the Security Instruments immediately prior to such release,
for the four (4) fiscal quarters immediately preceding the proposed
Property Release (the "Current DSCR");
J. Evidence reasonably satisfactory to Lender
that Borrower is Solvent (hereinafter defined) and shall not
be rendered Insolvent (hereinafter defined) by the Property
Release of the Release Premises; and
K. If the Securities (as defined in the Security
Instruments) are then rated by the Rating Agencies (as defined in the
Security Instruments), the written confirmation of the Rating Agencies
that neither the Property Release nor the Defeasance (defined below)
shall result in a downgrade, withdrawal or qualification of the then
current ratings by the applicable Rating Agencies of the Securities and
otherwise in form and substance reasonably satisfactory to Lender and
its counsel.
The term "Aggregate Debt Service Coverage Ratio' shall mean
the ratio of (a) the product of (i) the Net Operating Income (as defined in the
Security Instruments) of each of the Properties other than the Release Premises
(if the calculation is being made in connection with a Property Release) and any
Property which has, prior to any particular Property Release, been theretofore
released, to be produced by the operation of such Properties during the
applicable period, times (ii) 97.5% to
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(b) the payments that would be due under the Notes (excluding payments due on
any portion of the principal balance of the Notes theretofore defeased) after
giving effect to the Defeasance of principal to be received for such Property
Release for the applicable period, assuming for the purposes of this calculation
a loan constant of nine and 501100 percent (9.50%). For purposes of calculating
Aggregate Debt Service Coverage Ratio, all tenants under Leases that are in
occupancy as of the date hereof shall be deemed to have been paying rent for the
four (4) fiscal quarters immediately preceding July 1, 1997.
The term "IRS Code" as used herein shall mean the Internal
Revenue Code of 1986, as amended, and the related Treasury Department
regulations, including temporary regulations.
The term "Solvent" as used herein to any Person (hereinafter
defined) shall mean that (i) the sum of the assets of such Person, at a fair
valuation based upon appraisals or comparable valuation, will exceed its
liabilities, including contingent liabilities, (ii) such Person will have
sufficient capital with which to conduct its business as presently conducted and
as proposed to be conducted and (iii) such Person has not incurred debts, and
does not intend to incur debts, beyond its ability to pay such debts as they
mature. For purposes of this definition, "debt" means any liability on a claim,
and "claim" means (x) a right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured, or (y) a right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed; undisputed, secured,
or unsecured. With respect to any such contingent liabilities, such liabilities
shall be computed in accordance with GAAP at the amount which, in light of all
the facts and circumstances existing at the time, represents the amount which
can reasonably be expected to become an actual or matured liability.
The term "Person" shall mean and include any individual,
partnership, limited liability company, joint venture, firm, corporation,
association, company, trust or other enterprise or any government or political
subdivision or agency, department or instrumentality thereof.
The term "Insolvent" as used herein shall have the meaning set
forth in Section 101(31) of Title 11 of the United States Code, as the same may
be amended from time to time.
5. OPERATING ACCOUNT. (a) Borrowers shall cause all monies
owing and paid in respect of the Properties or the Security Instruments and in
respect of all Rents (as defined in the Security Instruments) from any Leases
(as defined in the
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Security Instruments) and Operating Agreements (as defined in the Security
Instruments) and all other operating income, and all income or other gains from
investment or reinvestment thereof to be directly deposited by the obligor or
tenant thereunder or the Manager or Qualified Manager (as such terms are defined
in the Security Instruments), as the case may be, in one or more
interest-bearing operating accounts that are Eligible Accounts (hereinafter
defined) for each Borrower (collectively, the "Operating Account") to be
established by each Borrower in the name of Lender or its designated agent in
accordance with this Paragraph 5 at The National City Bank or at another bank
which is an Eligible Institution (defined below) (the "Depository") selected by
Borrowers upon prior written notice to Lender (unless reasonably disapproved by
Lender), separate from all other monies of Borrower or Lender. Borrowers shall
irrevocably authorize and direct each tenant under a Lease and each counterparty
under an Operating Agreement to pay all Rents to the Depository for deposit in
the applicable Operating Account. Borrowers shall deposit into, and shall
maintain at all times, a minimum balance in the Operating Account equal to in
the aggregate $2,747,205.42 (the "Minimum Balance"), which Minimum Balance shall
be equal to the sum of (i) the Monthly Tax Escrow, (ii) the Monthly Insurance
Escrow (each as defined in any of the Security Instruments) and (iii) one
regularly scheduled payment of principal and interest due under the Notes, and
shall be adjusted by Lender from time to time based upon increases or decreases
in Taxes or Insurance Premiums (each as defined in the Security Instruments) as
determined by Lender in its reasonable discretion. Upon the occurrence of a
Primary Event or a Secondary Event (each defined below), Lender (or its
designated agent) shall be the only party entitled to withdraw any funds from
the Operating Account. Prior to the occurrence of a Primary Event or a Secondary
Event, Borrowers shall be the only parties entitled to withdraw any funds from
the respective Operating Account. Lender shall deliver to the Depository an
authorization, naming each Borrower as an authorized signatory under the
respective Operating Account and authorizing such Borrower to withdraw funds
from the Operating Account prior to such time as the Depository shall receive
notice from Lender (on which the Depository shall be entitled to rely,
notwithstanding any notice to the contrary from any Borrower, that a Primary
Event or a Secondary Event has occurred). Such account shall be established in a
manner satisfactory to Lender and consistent with the terms of this Paragraph 5
and the Depository shall acknowledge and agree in writing to hold such account
subject to Lender's first priority security interest therein and the rights and
obligations of Lender and Borrowers under the provisions of this Paragraph 5.
Borrowers hereby grant a security interest in, and assign, the Operating Account
to Lender to secure the Obligations (as defined in and under each of the
Security Instruments), to be used by Lender to pay amounts permitted to be
withdrawn by Lender in accordance with this Paragraph 5. Notwithstanding the
fact that the Operating Account shall be in the name of Lender, all
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interest and other investment income shall, for all purposes, including under
the IRS Code, shall be the income and property of Borrowers (to be deposited and
held in the Operating Account in accordance with the provisions of this
paragraph 5 and subject to the security interests herein granted to Lender). All
initial and ongoing bank account and lock box maintenance fees and expenses
shall be paid by Borrowers.
(b) The provisions of this Subparagraph 5(b) shall apply at
all times after the occurrence of a Primary Event (unless a Secondary Event has
occurred, in which event, at Lender's option, the provisions of subparagraph
5(c) shall apply). On the first day of each calendar month (or if not a Business
Day, the next succeeding Business Day) Lender shall make a withdrawal (the
"Required Amounts Withdrawal") from the Operating Account equal to the aggregate
sum of (i) the monthly installments of interest (the "Interest Payment") due
under the Notes on the tenth day of each calendar month (or if not a Business
Day, the next succeeding Business Day) (the "Scheduled Payment Date"), and (ii)
an amount sufficient to satisfy all other payment obligations of Borrowers
pursuant to the Notes, the Security Instruments and the other Loan Documents
(collectively, the "Required Amounts"). The Required Amounts withdrawn by Lender
on each Scheduled Payment Date shall be applied to the Interest Payment then due
and payable and, if applicable, applied toward any other payment obligations,
including the deposit of such sums in the respective escrow accounts established
by Lender in accordance with the terms of the Notes, the Security Instruments or
the other Loan Documents including, without limitation, the Escrow Fund (as
defined in each Security Instrument). On each Scheduled Payment Date,
immediately after the Required Amounts Withdrawal, to the extent applicable,
Lender (or its designated agent) shall deliver to Borrowers a certificate via
facsimile certifying that the amounts withdrawn by Lender (or its designated
agent) on such Scheduled Payment Date equal the Required Amounts due and payable
on the Scheduled Payment Date and that such Required Amounts have been applied
to the Interest Payment then due and payable and, if applicable, applied toward
any other payment obligations. No person or entity shall withdraw any monies
from the Operating Account except Lender (or its designated agent) for the
purpose of making payments pursuant to this Subparagraph 5(b). Notwithstanding
the foregoing, provided that no Event of Default shall have occurred and be
continuing and the balance in the Operating Account on any Scheduled Payment
Date immediately after the Required Amounts Withdrawal is equal to or greater
than the Minimum Balance, then on and after each such Scheduled Payment Date,
Lender shall, upon the request of Borrowers, withdraw on behalf of Borrowers, on
a weekly basis through and including the last day of such calendar month in
which such Scheduled Payment Date falls, the amounts which have been deposited
into the Operating Account, and which are in available funds, on or prior to the
last day of such calendar month in excess of the Minimum Balance, provided
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Borrowers deliver prior to each such withdrawal to the Depository and Lender via
facsimile transmission, a certificate of Borrowers in which each Borrower
certifies that as of the date of the requested withdrawal:
(i) all payments then due to Borrowers'
creditors and all Operating Expenses (as defined in each of
the Security Instruments) then due have been paid in full, or
are no more than sixty (60) days delinquent, unless Borrowers
are contesting the amount of such payments in accordance with
Section 3.17 of the related Security Instrument; and
(ii) Borrowers shall use the amounts
withdrawn to first pay such past due amounts to its creditors
and for Operating Expenses.
Notwithstanding anything to the contrary herein, in the event
that, and only for so long as, the balance in the Operating Account on any
Scheduled Payment Date immediately after the Required Amounts Withdrawal is less
than or equal to the Minimum Balance, Borrowers shall have no right to request
Lender to make withdrawals on its behalf.
(c) Upon the occurrence of a Secondary Event, Borrowers shall
not be entitled to any monies theretofore or thereafter deposited into the
Operating Account and Lender shall be entitled to all such monies and may apply
same to the payment of the Debt (as defined in this Security Instruments) in
such order and priority as is required or permitted by the Notes, the Security
Instruments, the other Loan Documents and applicable law.
(d) The term "Eligible Account" as used herein shall mean an
account that is (i) maintained with The National City Bank or a depository
institution or trust company the longterm unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the long-term unsecured debt
obligations of which) have been rated by the Rating Agencies in a rating
category of not less than A+ or Aa3, as applicable, or the short-term deposits
or commercial paper of which are rated in a rating category of not less than A-1
or PI, as applicable, (an "Eligible Institution") at the time of any deposit
therein; (ii) a segregated trust account or accounts maintained with a federal
or state chartered depository institution or trust company with trust powers
acting in its fiduciary capacity, which in the case of any state chartered
depository institution or trust company is subject to regulations or has
established internal guidelines regarding fiduciary funds on deposit
substantially similar to federal requirements; or (iii) such other account as is
reasonably acceptable to Lender, provided that Lender receives written
confirmation by the Rating Agencies that the selection of
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such account shall not result in a downgrade, withdrawal or qualification of the
ratings then assigned to the Securities.
(e) The term "Primary Event" as used herein shall mean the
occurrence of one or more of the following: (i) the Aggregate Debt Service
Coverage Ratio for any four (4) consecutive quarters falls below 1.375 to 1.00,
unless such fall in the Aggregate Debt Service Coverage Ratio is due solely to
the construction of a Debt Service Alteration (as defined in the Security
Instruments) and Borrower has posted one or more Letters of Credit in accordance
with the terms of Subsection 4.5(g) of the Security Instruments; or (ii) the
long-term unsecured debt rating of the Manager (as defined in any of the
Security Instruments), or the Qualified Manager (as defined in any of the
Security Instruments) if such Qualified Manager has a Qualified Rating (defined
below), falls to BB+ or Ba1, as applicable; or (iii) if the Qualified Manager
does not have a Qualified Rating, and the Rating Agencies, as a condition to
confirming that the employment of the Qualified Manager would not result in a
downgrade, withdrawal or qualification of the ratings then assigned to the
Securities, require that a lock-box be established; or (iv) if the Qualified
Manager does not have a Qualified Rating and the Rating Agencies did NOT require
the establishment of a lock-box as a condition to confirming that the employment
of the Qualified Manager would not result in a downgrade, withdrawal or
qualification of the ratings then assigned to the Securities, any notice that
the continued employment of such Qualified Manager without the establishment of
a lock-box would result in the ratings then assigned to the Securities being
downgraded, withdrawn or qualified by the Rating Agencies. Upon the occurrence
thereof, a Primary Event shall NOT be deemed cured if one or more of the
foregoing conditions (i), (ii), (iii) and (iv) shall cease to exist and the
provisions of Section 5(b) shall control for so long as the indebtedness secured
by the Security Instruments shall remain outstanding. The term "Qualified
Rating" shall mean, with respect to a Qualified Manager, that its long term
unsecured debt is assigned a rating of at least BBB- or Baa3, as applicable, by
the Rating Agencies.
(f) The term "Secondary Event" as used herein shall mean (i)
the occurrence of an Event of Default under any of the Security Instruments, if
Lender, in its sole and absolute discretion, so elects by written notice to
Borrower after the occurrence thereof (prior to Lender making such election, any
such event shall constitute a Primary Event), (ii) Borrower fails at any time to
maintain the Minimum Balance in the Operating Account, or (iii) the acceleration
of the Debt.
(g) The term "Qualified Institutional Lender" as used herein
shall mean a financial institution or other lender with a long-term unsecured
debt rating that is not less than AA or Aa, as applicable.
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(h) If any Event of Default shall have occurred and be
continuing, the license granted in Section 1.2 of the Security Instruments shall
immediately cease and terminate, with or without any action or proceeding or the
intervention of a receiver appointed by a court, and Lender or an agent
appointed by Lender may, to the fullest extent permitted by the Leases and the
Operating Agreements, and in addition to, and not in limitation of, any and all
other rights and remedies that Lender may have under this Agreement, the Note,
the Security Instruments or any other Loan Documents, do any or all of the
following:
(i) exercise any of Borrowers' rights under the
Leases or the Operating Agreements, including notifying
tenants and counterparties thereunder or thereto to pay Rent
or other sums due to an account or location selected by
Lender;
(ii) enforce the Leases and the Operating Agreements;
(iii) demand, collect, sue for, attach, levy, recover,
receive, compromise and adjust, and make, execute and deliver
receipts and releases for all rents or other payments that may
then be or may thereafter become due, owing or payable with
respect to the Leases or the Operating Agreements;
(iv) demand that any sums held by Borrowers with respect
to any Lease (including, but not limited to, any security
deposits, other deposits or prepayments) or Operating
Agreement be immediately remitted to Lender; and
(v) generally, do, execute and perform any other act,
deed, matter or thing whatsoever that ought to be done,
executed and performed in and about or with respect to the
Leases and the Operating Agreements, as fully as allowed or
authorized by the Security Instruments.
(i) Borrowers hereby irrevocably authorize and direct, with
respect to each of the Properties, each tenant under a Lease and each
counterparty under an Operating Agreement, upon receipt of notice from Lender
that a Primary Event has occurred, to pay directly to Lender or as directed by
Lender, all rents, issues and profits accruing or due under such tenant's Lease
or counterparty's Operating Agreement from and after the receipt of such notice.
Borrowers agree that any tenant or counterparty to an Operating Agreement shall
have the right to rely upon the notice from Lender and shall pay such rents,
issues and profits to or as directed by Lender, notwithstanding any notice from
or contrary claim by Borrowers, and Borrowers shall have no right or claim for
any rents, issues and profits so paid to Lender.
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(j) Nothing in this Paragraph 5 shall relieve Borrowers of
their obligations to make all payments due under the Note, the Security
Instruments and the other Loan Documents when due and payable.
6. DEFEASANCE.
(a) Subject to compliance with and satisfaction
of the terms and conditions of Paragraph 4 of this Agreement and the terms and
conditions of this Section 6, Borrowers may elect on any Scheduled Payment Date
after the earlier of (x) the third (3rd) anniversary of the date of this
Agreement or (y) two (2) years from the "startup day" within the meaning of
Section 86OG(a)(9) of the IRS Code of a REMIC Trust (defined below) (the
"Defeasance Lock-Out Termination Date"), to obtain a Property Release of one or
more Properties from the related Security Instruments by delivering to Lender,
as security for the payment of a portion of all interest due and to become due
throughout the term of the Notes on, and the portion of the principal balance of
the Notes equal to the lesser of (A) 125 % of the sum of the Allocated Loan
Amounts of each of such Release Premises, or (B) the then aggregate unpaid
principal balance of the Notes, Defeasance Collateral (defined below) with
Collateral Value (defined below) sufficient, without consideration of any
reinvestment of interest therefrom, to pay (i) all amounts then due relating to
such portion of the Notes, including accrued interest thereon, (ii) the portion
of the outstanding principal amount of the Notes equal to the lesser of (1) 125%
of Allocated Loan Amounts of each of such Release Premises or (2) the then
aggregate unpaid principal balance of the Notes (the lesser of such amount, the
"Defeasance Amount") and (iii) the portion of the interest that will become due
under such portion of the Notes on any date prior to and including the Maturity
Date (all such interest as described in this clause (iii) together with the
Defeasance Amount and such amounts described in clause (i) being hereinafter
referred to as the "Defeasance Property").
(b) As a condition to any Defeasance, prior to
any Defeasance, Borrowers shall have delivered to Lender:
(i) all necessary documents to amend and restate the
Note or Notes, as the case may be, to reflect that
the Note or Notes, as the case may be, evidence
the portion of the principal balance of the Notes
that has not been defeased and to issue a
substitute note having a principal balance equal
to the Defeasance Amount (the "Defeased Note") and
another substitute note having a principal balance
equal to the undefeased portion of the Note (the
"Undefeased Note"). The Undefeased Note shall
have terms identical to the terms of the Note,
except for the principal balance which shall be
equal to the undefeased principal portion of the
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14
Note. Each Defeased Note shall (A) be in a principal
amount equal to the Defeasance Amount, (B) be payable
to the order of Lender, (C) be dated as of the date
hereof, (D) mature on the Maturity Date, (E) be
secured by the Defeasance Collateral and Cash
delivered in connection with the Defeasance and (F)
otherwise contain substantially the same terms as the
Note. Each Defeased Note shall evidence a portion of
the existing indebtedness hereunder and not any new
or additional indebtedness of Borrower. A Defeased
Note cannot be the subject of any further Defeasance.
(ii) an opinion of Borrowers' counsel in form
reasonably satisfactory to Lender stating (A) that
the Defeasance Collateral and the proceeds thereof
have been duly and validly assigned and delivered
to the Defeasance Obligor and that Lender has a
valid, perfected, first priority lien and security
interest in the Defeasance Collateral delivered by
Borrower and the proceeds thereof and all
obligations, rights and duties under and to the
Defeasance Note, (B) that if the holder of the
Notes or any Note shall at the time of the
Property Release be a REMIC (defined below), (x)
the Defeasance Collateral has been validly
assigned to the REMIC Trust, (y) the Defeasance
has been effected in accordance with the
requirements of Treasury Regulation 1.860(g)-
2(a)(8) (as such regulation may be amended or
substituted from time to time) and will not be
treated as an exchange pursuant to Section 1001 of
the IRS Code and (z) the tax qualification and
status of the REMIC Trust as a REMIC will not be
adversely affected or impaired as a result of the
Defeasance, and (C) such other matters as Lender
or its counsel may reasonably require.
"REMIC" shall mean a "real estate mortgage investment
conduit" within the meaning of Section 860D of,the
IRS Code.
"REMIC Trust" shall mean a REMIC which holds the
Notes.
(iii) written confirmation from the Rating Agencies that
such Defeasance will not result in a withdrawal,
downgrade or qualification of the then current
ratings by the applicable Rating Agencies of the
Securities and otherwise in form and substance
reasonably satisfactory to Lender and its counsel.
If required by the Rating Agencies, Borrower
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shall, at Lender's expense (the cost of which shall
be subject to Lender's prior approval, which approval
shall not be unreasonably withheld), also deliver or
cause to be delivered a nonconsolidation opinion with
respect to the Defeasance Obligor in form and
substance satisfactory to Lender and the Rating
Agencies.
(iv) a certificate of Borrower's independent certified
public accountant certifying that the Defeasance
Collateral generates monthly amounts equal to or
greater than each monthly installment of principal
and interest required to be paid under the
Defeased Note through and including the Maturity
Date and payments due thereon.
(v) Borrower shall deliver such other certificates,
documents or instruments as Lender may reasonably
request.
(c) In connection with any Defeasance hereunder, Lender shall,
or if there are any outstanding Securities (as defined in the Security
Instruments), Lender may, at its option, and if it elects not to, Lehman
Brothers Realty Corporation ("LBRC") shall, at Lender's expense, establish or
designate a successor entity (the "Defeasance Obligor") and Borrower shall
transfer and assign all obligations, rights and duties under and to the Defeased
Note together with the pledged Defeasance Collateral to such Defeasance Obligor.
Such Defeasance Obligor shall assume the obligations under the defeased Note and
any security agreement executed in connection with the Defeasance or the
Defeasance Collateral delivered in connection therewith (the "Defeasance
Security Agreement"), and Borrower shall be relieved of its obligations under
such documents.
(d) Each of the obligations of the United States of America
that is part of the Defeasance Collateral shall be duly endorsed by the holder
thereof as directed by Lender or accompanied by a written instrument of transfer
in form and substance wholly satisfactory to Lender (including, without
limitation, such instruments as may be required by the depository institution
holding such securities or by 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
Collateral the first priority security interest therein in favor of the Lender
in conformity with all applicable state and federal laws governing the granting
of such security interests. Borrower shall authorize and direct that the
payments received from such obligations shall be made directly to Lender or
Lender's designee and applied to satisfy the obligations of Borrower under the
Defeased Note. Borrower shall execute and deliver a Defeasance Security
Agreement in form and substance reasonably satisfactory
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to Lender creating a first priority lien on the Defeasance Collateral delivered
in connection with the Defeasance and the Obligations purchased with the
Defeasance Collateral.
(e) The Defeasance Collateral shall generate payments on or
prior to, but as close as possible to, the Business Day prior to each successive
scheduled payment date after the Defeasance Date upon which payments are
required under this Agreement and the Defeased Note, including the amounts due
on the Maturity Date (the "Scheduled Defeasance Payments").
(f) Notwithstanding any release of any of the Security
Instruments granted pursuant to this Paragraph 6 and Paragraph 4 or any
Defeasance hereunder, Borrowers shall and hereby agree to continue to be bound
by and obligated under Subsections 7.4(a)(i) through (vii), inclusive, of each
of such Security Instruments, 10.1(a), 10.1(f), 11.1(a), 11.1(f), 11.1(i) and
11.1(l), Sections 3.1, 6.1, 7.2, 11.2, 11.5, 11.7, 11.10 and 13.2 and Articles
12 and 14 of each of such released Security Instruments; provided however that
all references therein to "Property" or "Personal Property" shall be deemed to
refer only to the Defeasance Collateral delivered to Lender.
(g) No Property Release or Defeasance to be made pursuant to
this Paragraph 6 shall be made or given or effective until the first day after
expiration of the period during which the delivery to Lender of Defeasance
Collateral in connection therewith is subject to avoidance and recovery as a
preferential transfer under 11 U.S.C. ss. 547 in the event of a bankruptcy of
the delivering person or entity without such avoidance and recovery (which day
shall be identified in writing by Borrower at any time that Borrower delivers
Defeasance Collateral to Lender), unless Lender receives, at the time of such
delivery, an opinion of counsel to the effect that such delivery of Defeasance
Collateral would not be avoided and recovered as a preferential transfer under
11 U.S. C. ss. 547 in the event of the filing of a bankruptcy petition in
respect of the conveying or delivering person or entity.
(h) All Defeasance Collateral shall be used and applied first
to defease a portion of the Note of Borrower which is the owner of the Property
that is subject to the Property Release, in a principal amount equal to the
Allocated Loan Amount relating to such Property, together with such amount that
is necessary for the payment of all interest due and to become due with respect
to such portion of such Note, and the balance of any Defeasance Collateral shall
be applied to Defease each of the Notes pro-rata. In no event shall the
Allocated Loan Amounts for the remaining Properties be reduced as a result of
any Defeasance. Upon any Property Release the Defeasance Collateral delivered in
connection therewith shall constitute Collateral which shall secure the
Obligations.
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(i) Any revenue, documentary stamp or intangible taxes or any
other tax or charge due in connection with the creation of the Defeased Note,
the modification of the Note or Notes, as the case may be, or otherwise required
to accomplish the Defeasance shall be paid by Borrowers simultaneously with the
occurrence of any Defeasance.
(j) The term "Defeasance Collateral" as used herein shall mean
non-callable and non-redeemable securities evidencing an obligation to timely
pay principal and interest in a full and timely manner that are direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged.
(k) The term "Collateral Value" as used herein shall mean as
of any date with respect to Defeasance Collateral delivered to Lender, the
aggregate amount of payments of principal of such Defeasance Collateral and the
predetermined and certain income therefrom that will be paid or payable to
Lender on or before the Business Day prior to each day on which payments are due
on the obligations in respect of which such Defeasance Collateral was delivered,
without consideration of any reinvestment of such income, all as certified in
writing by a recognized and reputable independent certified public accounting
firm or investment banking firm selected by Borrower.
7. RELEASE OF OUT-PARCELS. Upon the request of Borrowers,
Lender shall release one or more Out-Parcels (defined below) from the lien of
the related Security Instrument and execute instruments of release or partial
release in duly recordable form (an "Out-Parcel Release") provided that
Borrowers shall, at their sole cost and expense, comply with all of the
following terms, conditions and provisions with respect to such Out-Parcel and
requested OutParcel Release:
(a) at the time of any such Out-Parcel Release, no Event of
Default shall have occurred and be continuing under the Note, the
Security Instruments or any of the other Loan Documents;
(b) ingress to and egress from all portions of the Property of
which the Out-Parcel forms a part remaining after the Out-Parcel
Release (the "Remaining Property") shall be over fully dedicated public
roads;
(c) Borrowers shall have obtained: (i) (x) subdivision,
zoning, building and all other governmental approvals necessary or
required so that the Out-Parcel and the Remaining Property, shall, upon
such Out-Parcel Release, together and separately, satisfy and comply,
in all material respects and so that any immaterial non-compliance does
not adversely affect the lien of the Security Instruments or the value
or utility of the Properties as regional power
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centers, with all the applicable subdivision, zoning, building,
environmental protection and all other applicable laws, rules,
regulations and federal, state or local requirements, including sewer
capacity requirements, or (y) a legal opinion by counsel reasonably
satisfactory to Lender, that the Out-Parcel and the Remaining Property
are each entitled to be used and occupied as of right without reference
to or reliance on the other parcel, and (ii) either a legal opinion by
counsel reasonably satisfactory to Lender stating that, or an
endorsement to the title insurance policy insuring the lien of the
related Security Instrument insuring that, the Out-Parcel has been
designated, assessed and taxed as a separate tax lot independent from
the Remaining Property;
(d) prior to the Out-Parcel Release, Borrowers shall prepare
and provide to Lender: (i) subdivision map(s) of all those portions of
the Property which are approved by all governmental and
quasi-governmental authorities having jurisdiction over the OutParcel
and/or the Remaining Property, whose approval as to such plans and maps
is required; and (ii) copies of each and all proposed easements and
cross-easements and mutual or non-exclusive easements for ingress,
egress, access, pedestrian walkways, parking, traffic flow, utilities
and services and utilities shared by the Remaining Property and the
Out-Parcel and the like which may be required by any governmental or
quasi-governmental authority having jurisdiction or which are necessary
or advisable;
(e) such subdivision map(s) shall show such parking structures
and parking layouts as will afford, to the Improvements (as defined in
the Security Instruments) located on the Remaining Property, the
equivalent of the exclusive use of the aggregate number of parking
spaces to be provided on the Property under all Leases (as defined in
the Security Instruments) affecting the Remaining Property, and the
number of parking spaces required by the then applicable zoning
requirements for the Remaining Property;
(f) Borrowers shall provide Lender with such surveys,
drawings, plans, specifications, proposed easements and consents,
certificates and agreements, such legal opinions from attorneys
acceptable to Lender and such other evidence as Lender may reasonably
request or require to determine that the foregoing conditions have been
satisfied;
(g) all Leases demising any part of the Remaining Property
shall remain in full force and effect and unaffected in any manner as
a result of the Out-Parcel Release;
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(h) all Operating Agreements (as defined in the Security
Instruments) affecting all or any part of the Remaining Property or the
Out-Parcel shall remain in full force and effect and remain otherwise
unaffected as a result of the Out-Parcel Release;
(i) Borrowers shall deliver to Lender evidence that, other
than the Security Instruments, there are no liens, mortgages, deeds of
trust or other security instruments, as the case may be, encumbering
the Properties remaining encumbered by the lien of the Security
Instruments, including the Remaining Property, including without
limitation a "bring down" or "date down" of the title insurance
policies insuring the liens of the Security Instruments on such
remaining Properties;
(j) The applicable Borrowers shall simultaneously with the
Out-Parcel Release transfer title to the Out-Parcel to a Release
Premises Transferee and such Release Premises Transferee shall assume
all obligations and liabilities (other than those related to the Notes,
which the Out-Parcel is being released from) related to the Out-Parcel,
if any, from and after the date of such transfer and such third party
Release Premises Transferee shall erect and operate additional
structures whose use is integrated and consistent with the use of the
related Property;
(k) Borrower shall pay all of Lender's costs and expenses
(including reasonable counsel fees and disbursements) incurred in
connection with Under's review of the foregoing items, the
determination of the satisfaction of such conditions and otherwise
incurred in connection with the Out-Parcel Release;
(l) Borrowers shall have delivered to Lender (i) a
certification of Borrowers that the Borrowers have reasonably
determined that the use of the Out-Parcel that is the subject of the
Out-Parcel Release shall not cause a material decrease in the Net
Operating Income of the applicable Property, which determination shall
be based on the changes to the related Property's base rents and common
area contributions directly caused by the intended use of the
Out-Parcel being released without regard to any percentage rents, which
Borrower may assume shall remain constant, together with such
documentation supporting the basis of such determination as may be
reasonably requested by Lender, and (ii) written confirmation from the
Rating Agencies that such Out-Parcel Release shall not result in a
downgrade, withdrawal or qualification of the rating then assigned to
the Securities by the Rating Agencies; and
(m) Lender shall release such Out-Parcel from the lien
of the related Security Instrument, promptly after: (i) all
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such easements, consents and rights as described above shall have been
obtained; and (ii) all of the requirements of this paragraph 7 have
been satisfied.
All instruments of release shall be in duly recordable form
and contain such covenants, conditions and restrictions and shall reserve such
rights and easements with respect to the OutParcel as are necessary to protect
and preserve Lender's interests in the Remaining Property after any such
release.
With respect to such items requiring Lender's approval in this
Section 7, if Lender shall fail to either approve, disapprove or otherwise
respond to Borrowers' written request for such approval and delivery by
Borrowers to Lender of all such maps, plans, easements or cross easements and
all appropriate documentation relating to such request and such items, within
forty-five (45) days of Lender's receipt of such request and all such maps,
plans, easements or cross easements as the case may be, and all such
documentation and information, Lender's approval with respect to such request
shall be deemed given; provided, however, notwithstanding the foregoing,
Lender's consent or approval or deemed consent or approval of any item shall not
diminish, reduce or be deemed a waiver of Borrowers' obligation to comply with
each and every other term, condition and provision set forth herein.
The term "Out-Parcel" as used herein shall mean those certain
parcels of land constituting portions of the Properties known as (i) Broadway
Marketplace, Denver, Colorado; (ii) Fairfax Towne Center, Fairfax, Virginia;
(iii) Town Center Prado, Marietta, Georgia; (iv) Woodfield Village Green,
Schaumburg, Illinois; (v) Shoppers World, Framingham, Massachusetts; (vi)
Independence Commons, Independence, Missouri, and (vii) Carmel Mountain Plaza,
San Diego, California, which are unimproved and non-revenue producing and which
are more particularly described on Schedules F-1 to F-7 attached hereto and made
a part hereof.
Borrowers shall cause all Alterations (as defined in the
Security Instruments) required to be performed in connection with any Out-Parcel
Release pursuant to Section 7 to be performed and completed in accordance with
Section 4.5 of the related Security Instrument and all such Alterations shall be
subject to Section 4.5 thereof.
8. EVENTS OF DEFAULT. The term "Event of Default" as
used in this Agreement shall have the meaning ascribed to such term in the
Notes and the Security Instruments.
Upon and during the occurrence of an Event of Default or a
default beyond applicable notice and grace periods, if any, under this Agreement
and, if Lender shall not have exercised its option under clause (i) below,
during the continuance thereof,
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Lender (i) may, at its option and in its sole discretion, declare the Debt
immediately due and payable, and (ii) may pursue any and all remedies provided
for in the Loan Documents, or otherwise available.
9. ANCHOR LEASES. The term "Anchor Leases" as used in the
Security Instruments shall mean, with respect to each Property, the Leases
listed on Schedule E attached hereto, as such Schedules may be amended from time
to time by Lender to reflect the replacement of such Leases with other Leases
for the same space to replacement anchor tenants.
10. INCORPORATION OF PROVISIONS. The Notes, the Security
Instruments and the Loan Documents are subject to the conditions, stipulations,
agreements and covenants contained herein to the same extent and effect as if
fully set forth therein until this Agreement is terminated by the payment in
full of the Debt.
11. FURTHER ASSURANCES. Borrowers shall on demand of Lender do
any act or execute any additional documents reasonably required by Lender to
confirm the lien of the Security instruments.
12. REPRESENTATIONS AND WARRANTIES. Each Borrower, as to
itself, represents and warrants to Lender as follows:
(a) Borrower is duly qualified to do business in
the States in which its Properties are located.
(b) Borrower (and the undersigned representative, if
any, of Borrower) has the full power and authority to execute and
deliver this Agreement and the Loan Documents, and the same constitute
the legal, valid and binding obligations of Borrower.
13. CONSTRUCTION OF AGREEMENT. The titles and headings of the
paragraphs of this Agreement have been inserted for convenience of reference
only and are not intended to summarize or otherwise describe the subject matter
of such paragraphs and shall not be given any consideration in the construction
of this Agreement.
14. PARTIES BOUND, ETC. The provisions of this Agreement shall
be binding upon and inure to the benefit of Borrowers, Lender and their
respective heirs, executors, legal representatives, successors and assigns
(except as otherwise prohibited by this Agreement).
15. WAIVERS. Lender may at any time and from time to time
waive any one or more of the conditions contained herein, but any such waiver
shall be deemed to be made in pursuance hereof and not in modification thereof,
and any such waiver in
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any instance or under any particular circumstance shall not be considered a
waiver of such condition in any other instance or any other circumstance.
16. GOVERNING LAW. (i) This Agreement shall be deemed to be a
contract entered into pursuant to the laws of the State of New York and shall in
all respects be governed, construed, applied and enforced in accordance with the
laws of the State of New York, provided however, that with respect to the
creation, perfection, priority and enforcement of the lien of the Security
Instruments, and the determination of deficiency judgments, the laws of the
State where the related Property is located shall apply and with respect to the
creation, perfection, priority and enforcement of the security interest in the
Operating Account and the monies deposited therein, the laws of the State in
which the Operating Account is located shall apply.
(ii) Any legal action or proceeding with respect to this Agreement
or any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, Borrowers hereby accept, each for
itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and appellate courts from any
thereof. Each Borrower irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such
Borrower at its address set forth in Article 16 of the Note. Each
Borrower-hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Agreement or any other Loan Document
brought in the courts referred to above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
Nothing herein shall affect the right of Lender, to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against any Borrower in any other jurisdiction.
17. SEVERABILITY. If any term, covenant or provision of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such term, covenant or provision.
18. NOTICES. All notices required to be given under the terms
of this Agreement shall be given in accordance with and to the addresses set
forth in Article 16 of the Note.
19. FEES AND EXPENSES. Borrowers shall pay to Lender, upon
demand, all expenses incurred by Lender in connection with
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the collection of the Debt, the enforcement of the Loan Documents, and in curing
any defaults under the Loan Documents (including, without limitations reasonable
attorneys' fees), with interest thereon at a rate per annum equal to the rate of
interest payable pursuant to the Notes, provided that such interest rate shall
in no event exceed the maximum interest rate which Borrowers may by law pay,
from the date of payment by Lender to the date of payment to Lender, which sums
and interest shall be secured by the Security Instruments.
20. MODIFICATION. This Agreement may not be modified, amended
or terminated, except by an agreement in writing executed by the parties hereto.
21. NO ORAL AGREEMENTS. ORAL AGREEMENTS OR COMMITMENTS TO LOAN
MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER(S)) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
WE MAY LATER AGREE IN WRITING TO MODIFY IT.
22. SECURITY INSTRUMENTS SCHEDULES. The Schedules 5.6 and 5.10
referred to in the Security Instruments are attached hereto as Schedules 5.6 and
5.10.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Borrowers and Lender have duly executed
this Agreement the day and year first above written.
COMMUNITY CENTERS ONE LLC., 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:________________________________
David Luski
Executive Vice President
By: DD Retail Partners II, L.P., a
Delaware limited partnership, a
member
By: Master Realty Inc., a Delaware
corporation, its sole general
partner
By:___________________________
David Luski
Vice President
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:___________________________
David Luski
Vice President
-23-
25
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:___________________________
David Luski
Vice President
-24-
26
COMMUNITY CENTERS TWO L.L.C., a Delaware
limited liability company
By: DD Community Centers Two, Inc., an
Ohio corporation, its managing
member
By:________________________________
Name:
Title:
By: DRA Opportunity Fund, a Delaware
corporation, a member
By:________________________________
David Luski
Executive Vice President
By: DD Retail Partners II, L.P., a
Delaware limited partnership, a
member
By: Master Realty Inc., a Delaware
corporation, its sole general
partner
By:___________________________
David Luski
Vice President
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:___________________________
David Luski
Vice President
-25-
27
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:______________________
David Luski
-26-
28
SHOPPERS WORLD COMMUNITY CENTER, L.P., a
Delaware limited partnership
By: DD Community Centers Three, Inc.,
an Ohio corporation, its general
partner
By:________________________________
Name:
Title:
By: SW OPP SUB, INC., a Delaware
corporation, its general partner
By:________________________________
Name:
Title:
By: Developers Diversified Realty
Corporation, an Ohio corporation, a
limited partner
By:________________________________
Name:
Title:
By: DRA Opportunity Fund, a Delaware
corporation, a limited partner
By:________________________________
David Luski
Executive Vice President
By: DD Retail Partners II, L.P., a
Delaware limited partnership, a
limited partner
By: Master Realty Inc., a Delaware
corporation, its sole general
partner
By:___________________________
David Luski
Vice President
-27-
29
By: DD Retail Partners III, L.P.,
a Delaware limited
partnership, a limited partner
By: Master Realty Inc., a
Delaware corporation, its
sole general partner
By:______________________
David Luski
Vice President
-28-
30
LEHMAN BROTHERS HOLDINGS INC., D/B/A
LEHMAN CAPITAL, A DIVISION OF LEHMAN
BROTHERS HOLDINGS INC., a Delaware
corporation
By:_____________________________________
Name:
Title:
-29-